Fr>'  Treading  Room  Oaly 


f 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


tiii  iiaatiing  iibou  U&ly 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/encyclopaediaofp01mckiiala 


THE 


ENCYCLOPAEDIA 

1)1 


PLEADING  AND  PRACTICE 


UNDER  THE  CODES  AND  PRACTICE  ACTS, 

AT  COMMON  LAW,  IN  EQUITY 

AND  IN  CRIMINAL  CASES. 


COMPILED  UNDER  THE  EDITORIAL  SUPERVISION  OF 


WILLIAM     M.     McKINNEY 


Vol.    I . 


NORTHPORT.    LONG   ISLAND,    N.   Y.: 

EDWARD   THOMPSON   COMPANY,  Law  Publishers. 

1895. 

445  6      3 


-r      '■' 
/99S' 

Copyright,  1894, 

BV 

Edward  Thompson  Co. 


MADE  AT  NORTHPORT,    L.    I.,    N.    Y. 

ROBERT  DRUMMOND,  J.  M.  DUNN, 

Printer.  Bindir. 


••.•15V&if> 


Tor  f{€-f*ji^^'^g  T^fyvyyf' Only 


^ 


—    >s 


\ 


PREFACE. 


This  work  was  conceived  and  its  execution  planned  by  Mr. 

James  Cockcroft,  to  whom  also  belongs  the  credit  of  project 

\  ing  and  carrying  to  a  splendid  consummation  the  master  legal  work 

^  of  the  nineteenth  century,  TAe  American  aud  English  Encyclo- 

^  pcBdia  of  Law. 

The   practicality  of  treating  the  whole  body  of  substantive 
'^  law  in  the  form  of  an  encyclopaedia  has  already  been  demon- 

J  strated.     It  has  been  shown  beyond  doubt  that  there  is  great 

advantage  and  economy  to  be  derived  from  having  in  one  series 
V  of  books  practically  all  the   law  of  general    application.     The 

^"        present  work  is  an  attempt  to  do  for  pleading  and  practice  what 
•   i  its  prototype  has  done  for  substantive  law.     The  dif^culties  of  the 

work  were  recognized,  but  they  have  not  proved  insurmountable. 
Pleading  is  generally  recognized  to  be  a  subject  adaptable  for 
comprehensive  treatment  which  will  be  useful  in  all  the  states. 
That  part  of  procedure  which  is  commonly  called  practice  is  not 
C^  so  uniform,  but  the  lack  of  uniformity  does  not  go  nearly  to  the 

Uj  extent  which  is  popularly  supposed.     There  have  been  a  great 

many  instances  where  one  state  has  adopted  the  legislation  or 
followed  the  methods  of  another.  Thus,  the  New  York  Code  of 
Civil  Procedure  is  the  fountain-head  of  the  practice  of  those 
states  which  have  adopted  the  reform  procedure.  The  common- 
law  and  chancery  systems  of  England,  wherever  they  still  prevail 
in  this  country,  have  been  modified  by  statutes  and  practice  acts 
which  have  passed,  often  with  but  slight  changes,  from  one  state 


PREFACE. 

to  another.  Criminal  pleading  and  practice  vary  in  details,  but 
there  is  so  much  similarity  in  the  different  jurisdictions  that 
authorities  from  a  score  or  more  of  states  are  applicable  in  each 
of  them.  It  is,  therefore,  believed  that  the  custom  of  writing 
books  on  practice  for  use  in  one  state  only  is  not  the  outcome  of 
necessity,  and  that,  if  valuable  and  useful  material  is  not  to  be 
sacrificed,  the  treatment  must  be  comprehensive. 

One  of  the  chief  duties  of  an  editor  of  an  encyclopaedia  is  the 
selection  of  titles  for  articles.  In  this  work  two  considerations 
have  been  kept  in  mind  ;  first,  the  title  should  be  one  which 
would  naturally  occur  to  the  investigator  seeking  the  information 
contained  in  the  matter  which  it  heads  ;  second,  the  usual  large 
titles  should  be  broken  up  into  numerous  smaller  titles,  in  order 
that  the  treatment  may  be  more  thorough  and  to  conform  to  the 
general  scheme  of  the  work. 

No  pretense  is  made  to  state  that  part  of  practice  (if  such  there 
be)  which  is  not  laid  down  in  the  books.  Contributors  were  not 
expected  to  advise,  or  to  tell  what  they  knew  as  individuals.  They 
have  been  directed  to  compile  their  contributions  entirely  from 
the  authorities,  and  if  merit  is  found  in  their  work,  it  will  be 
chiefly  because  it  is  a  good  compilation  of  such  materials. 

The  general  style  of  contributions  has  been  kept  as  uniform  as 
is  possible  where  so  many  different  authors  are  engaged.  Noth- 
ing has  been  so  much  insisted  upon  from  contributors  as  that 
their  articles  shall  completely  exhaust  the  subjects  treated  of,  and 
that  all  the  decisions  in  point  shall  be  collected  and  used.  It  is 
clearly  recognized  that  the  chief  value  of  a  law  book  of  this  kind 
lies,  not  in  the  cogitations  of  the  numerous  writers,  but  in  the  in- 
telligence, completeness,  and  accuracy  with  which  they  have  ar- 
ranged and  digested  the  immense  mass  of  decisions,  statutes  and 
rules  that  govern  pleading  and  practice. 

William  M.  McKiNNEY. 

NoRTHPORT,  N.  Y.,  Feb.  1895. 

iv 


TABLE  OF   TITLES. 


Abatement  in  Pleading F.  A.  Card. i 

Abbreviations S.  R.  Perry 42 

Abduction 50 

Abiding  the  Event F.  A.  Card. 53 

Abortion 62 

Accessories  and  the  Like 66 

Accord  and  Satisfaction W.  L.  Crawford 73 

Accounts  and  Accounting W.  L.  Crawford 83 

Actions W.  L.  Crawford 108 

Additional  Allowance  of  Costs.  . . .  Wm.  Seton  Gordon 211 

Address 234 

Adjournments Wtn.  P.  Aiken 238 

Admiralty Edward  G.  Benedict 249 

Adultery 305 

Affidavits W.  Calvin  Chesnut. 309 

Affidavits  of  Merits F.  A.  Card 338 

Affirmation Ward  B.  Coe 377 

Affray 382 

Agreed  Case William  A.  McQuaid. . . .  384 

Alimony Ward  B.  Coe 407 

Amendments Charles  C.  Moore 458 

Amount  in  Controversy Richard  F.  Kimball. 702 

Another  Suit  Pending Charles  C.  Moore 750 

Answers  in  Code  Pleading W.  L.  Craiuford 777 

Answers  in  Equity  Pleading.  ..W.  A.  Martin  and  S.  R,  Perry   863 
Appeal  Bonds Wm.  P.  Aiken 963 


ABATEMENT   OF  ACTIONS. 

By  Absence  of  Jurisdiction,  see  JURISDICTION. 

By  Pendency  of  Another  Action,  see  ANOTHER  SUIT  PENDING. 

By  Death  of  Parties,  see  DEA  TH. 

By  Defect  of  Parties,  see  PARTIES. 

By  Dissolution  or  Consolidation  of  Corporations,  see  CORPORA  TIONS. 

Revival  of  Actions,  see  REVIVOR. 


ABATEMENT  IN  PLEADING. 

By  F.  A.  Card. 

I.  Definition,  i. 
II.  Kinds  of  Pleas  in  Abatement,  3. 

1.  Generally,  3. 

2.  Pleas  to  the  Jurisdiction,  3. 

3.  Infancy,  9. 

4.  Coverture,  9. 

5.  Capacity  to  Sue,  10. 

6.  Real  Party  in  Interest,  li. 
•7.  Misnomer,  12. 

8.  Misjoinder,  13. 

9.  Nonjoinder,  14.,  , 

10.  Privilege  and  Non-Tenure,  19. 

11.  Defects  in  Process  and  Proceedings,  19. 

12.  Variance,  20. 

13.  Service,  20. 

14.  Action  Premature,  22. 

15.  Another  Action  Residing,  23. 

ni.  Requisites  and  Construction,  23. 
rv.  Prayer,  Signature,  and  Verification,  27. 
V.  Judgment  and  Trial,  30. 
VI.  Waiver  of  Plea,  32- 
VII.  Pleas  Puis  Darrein  Continuance,  36. 
VIII.  Replication,  etc.,  38. 
IX.  In  Equity,  4°. 

I.  Definition. — Pleas  in  abatement  are  those  which  set  up 
matter  tending  to  defeat  or  suspend  the  suit  or  proceeding  in 
which  they  are  interposed,  but  which  do  not  debar  the  plaintiff 
from  recommencing  at  some  other  time  or  in  some  other  way. 

I  Encvc.  PI.  &  Pr.— I.  I 


Definition. 


ABATEMENT  IN   PLEADING. 


Definition. 


They  do  not  Go  to  the  Merits  of  the  claim  or  cause  of  action,  but  rather 
to  the  procedure,  and  are  thus  distinguished  from  pleas  in  bar, 
which  are  addressed  to  the  merits  and  tend  to  show  that  the  plain- 
tiff cannot  maintain  any  action  at  any  time.* 

Must  Give  Plaintiff  a  Better  Writ.— Pleas  in  abatement  also  differ  from 
pleas  in  bar,  not  only  in  that  they  do  not  go  to  the  merits,  but  also 
that  they  must  not  only  point  out  the  plaintiff's  error,  but  must 
show  him  how  it  may  be  corrected  and  furnish  him  with  materials 
for  avoiding  the  same  mistake  in  another  suit  in  regard  to  the  same 
cause  of  action,  or,  in  technical  language,  must  give  the  plaintiff  a 
better  writ.'-* 

The  Distinction  between  Pleas  in  Abatement  and  in  Bar  is  recognized  in 
equity  as  well  as  at  law.^  It  is  a  clear,  distinct,  and  substantial 
distinction,  and  is  recognized  and  enforced  at  the  present  time 
and  notwithstanding  changes  in  the  form  or  manner  of  pleading.* 


1.  Chittyon  Pleading  (i6th  Am.  ed.), 
p.  462;  3  Blackstone's  Com.  301,  302; 
Co.  Litt.  134  b,  277  a;  Stephen  on 
Pleading,  p.  47;  Moore  v.  Sargent, 
112  Ind.  487. 

Pleas  are  divided  into  Two  General 
Classes — pleas  in  abatement  and  pleas 
in  bar.  A  plea  in  abatement  is  defined 
to  be  a  plea  that,  without  disputing  the 
justice  of  the  plaintiff's  claim,  objects 
to  the  place,  mode,  or  time  of  assert- 
ing it,  and  requires  that  therefore  and 
fro  kac  vice  judgment  be  given  for  the 
defendant,  leaving  it  open  to  renew  the 
suit  in  another  place  or  form  or  at  an- 
other time  ;  while  to  the  second  class 
belong  all  those  pleas  having  for  their 
object  the  defeating  of  the  plaintiff's 
claim.  Hence  a  plea  in  bar  of  the  ac- 
tion may  be  defined  as  one  which 
shows  some  ground  for  barring  or  de- 
feating the  action,  and  makes  prayer 
to  that  effect.  Pitt's  Sons  Mfg.  Co.  v. 
Commercial  Nat.  Bank,  121  111.  587. 

2.  Chitty  on  Pleading  (i6th  Am.  ed.), 
p.  463. 

3.  InEquity. — Pleas  are  of  two  sorts, 
in  abatement  and  in  bar.  The  former 
question  the  propriety  of  the  remedy 
or  legal  sufficiency  of  the  process  rather 
than  deny  the  cause  of  action;  the 
latter  dispute  the  very  cause  of  action 
itself.     Beames  PI.  in  Eq.  59. 

All  declinatory  and  dilatory  pleas 
in  equity  are  properly  pleas,  if  not 
in  abatement,  at  least  in  the  nature 
of  pleas  in  abatement,  and  there- 
fore in  general  the  objections  founded 
thereon  must  be  taken  ante  litem  con- 
testatam  by  plea,  and  are  not  avail- 
able by  way  of  answer  or  at  the  hearing. 
Story  Eq.  PI.  sec.  708. 


4.  Distinction  Still  Exists. — Although 
the  Code  of  Io^chi  has  abolished  ail 
technical  forms  of  actions  and  plead- 
ings, this  does  not  have  the  effect  of 
abolishing  pleas  in  abatement  and 
making  kll  pleas  to  be  in  bar,  and  a  de- 
fendant may  still  interpose  the  same 
pleas  in  abatement  as  formerly,  as,  to 
the  jurisdiction,  another  action  pend- 
ing, etc.,  as  at  common  law.  Rawson 
V.  Guiberson,  6  Iowa  507. 

An  answer  is  bad  on  demurrer  which 
is  pleaded  in  bar  to  the  whole  com- 
plaint, but  which  sets  up  facts  which 
only  bar  part  of  the  claim  alleged  in 
the  complaint,  and  notwithstanding 
which  the  plaintiff  is  entitled  to  some 
relief.  Orb  v.  Coapstick  (Ind.  1894), 
36  N.  E.  Rep.  278;  Walter  A.  Wood 
Mowing  Mach.,  etc.,  Co.  v.  Niehaus 
(Ind.  App.  1894),  35  N.  E.  Rep.  1112. 

Denial  of  Corporate  Existence. — Where 
a  corporation  is  plaintiff,  and  sues  on  a 
contract,  a  denial  in  the  answer  of  the 
corporate  existence  of  the  plaintiff  will 
be  considered  as  a  plea  in  bar  unless 
it  be  expressly  pleaded  in  abatement. 
Such  a  denial  involves  more  than  the 
mere  capacity  of  the  plaintiff  to  sue  ; 
it  goes  to  the  merits  of  the  action,  and 
may  be  pleaded  either  in  bar  or  in 
abatement.  Oregonian  R.  Co.  v.  Ore- 
gon, etc.,  Co.,  10  Savvy.  (U.  S.)  476. 

Absence  of  Interest  in  Plaintiff. — An 
answer  which  states  facts  showing 
that  the  plaintiff  had  no  interest  in  the 
subject-matter  of  the  action  at  the  time 
of  its  commencement,  and  that  some 
other  person  named  was  at  the  time 
the  real  party  in  interest  in  such  suit, 
is  in  absolute  bar  of  the  suit  and  not 
in  abatement  of  it.     State  v.  Ruhlman, 


Kinds  of  Pleas.        ABATEMENT  IN  PLEADING. 


Jurisdiction. 


II.  Kinds  of  Pleas  in  Abatement— 1.  Generally.— Pleas  in  abate- 
ment were  originally  divided  into  three  kinds,  viz.:  to  the  juris- 
diction of  the  court ;  to  the  disabihty  of  the  parties  plaintiff  or  de- 
fendant ;  and  in  abatement  of  the  writ  or  declaration.* 

Order  of  Pleading.— These  pleas  were  required  to  be  pleaded  in  their 
proper  order,  viz, :  ist,  to  the  jurisdiction  ;  2d,  to  the  disability  of 
the  parties;  3d,  to  the  declaration  or  count ;  and  4th,  to  the  writ.* 

The  Usual  Pleas  to  the  Disability  of  a  plaintifif  were  that  the  plaintiff 
was  a  fictitious  person,  died  before  suit  brought,  an  alien  enemy, 
an  infant,  insane  or  under  guardianship,  married  and  her  husband 
not  a  party,  and  that  plaintiff  had  not  the  representative  capacity  in 
which  he  sued.  The  usual  pleas  to  the  disability  of  the  defendant 
were  coverture,  infancy,  privilege,  etc.^ 

The  Usual  Pleas  to  the  Action  of  the  Writ  were  that  the  action  was 
misconceived,  that  the  action  was  prematurely  brought,  and  that 
another  action  was  pending.* 

2.  Pleas  to  the  Jurisdiction — Denial  of  Jurisdiction  to  Particular  Court.— 
The  pleas  to  the  jurisdiction  of  the  court  which  can  be  taken  as, 
and  which  are  considered  to  be,  pleas  in  abatement,  are  those 
which,  while  admitting  jurisdiction  in  some  court,  deny  it  to  the 
particular  court  in  which  the  suit  is  brought  for  some  reason 
alleged ;  for  if  no  court  has  jurisdiction,  the  objection  goes  in 
bar  and  not  in  abatement.* 


Ill  Ind.  17;  Pixley  v.  Van  Nostern,  loo 
Ind.  34;  Morningstar  v.  Cunningham, 
no  Ind.  328,  59  Am.  Rep.  211 

Matter  of  Defence  which  Goes  to  the 
Merits  of  the  action  cannot  be  pleaded 
in  abatement.      Peck    v.    Barnum,    24 

Vt.  75. 

A  Plea  for  Want  of  Proper  Parties  is  a 
plea  in  bar,  and  goes  to  the  whole  bill. 
Howth  V.  Owens,  29  Fed.  Rep.  722. 

1.  I  Saund.  on  Pleading,  318  n. ;  i 
Chitty  on  Pleading,  pp.  456-468;  Story's 
Equity  Pleading,  sees.  705,  708;  3 
Blackstone's  Com.,  pp. 301-303;  Gould's 
Pleading  (5th  ed.),  p.  211.  Pleas  in 
abatement  of  the  writ  were  also  sub- 
divided into  those  to  its  form  and  those 
to  its  action.     See  authorities  supra. 

2.  Chitty  on  Pleading,  pp.  456-469. 
This  order  could  not  he  reversed,  for  each 
plea  in  its  order  was  held  to  admit  the 
one  prior  in  such  order  of  pleading. 
Chitty,  pp.  456-469. 

3.  Anderson's  Law  Diet. 
Objections  to   the  disability  of  the 

parties  seem  also  to  have  been  taken 
under  the  form  of  objections  to  the  de- 
claration and  to  the  form  of  the  writ. 
Chitty  on  Pleadings,  pp.  456-469. 

4.  Anderson's  Law  Diet.;  Chitty  on 
Pleadings  (i6th  Am.  ed.),  pp.  456-469; 


Southard  v.  Hill,  44  Me.  92,  69  Am. 
Dec.  85.  And  ordinarily  all  writs  were 
recited  in  the  count  or  declaration,  and 
objections  were  raised  to  the  declara- 
tion and  to  the  form  of  the  writ.  The 
usual  objections  so  taken,  in  addition 
to  the  disability  of  parties,  were  va- 
riance between  the  writ  and  declara- 
tion, defect  in  the  process,  defect  in 
the  return,  non-joinder,  misjoinder, 
and  misnomer  of  a  party.  See  authori- 
ties cited  supra. 

Modern  Practice. — In  modern  practice 
pleas  in  abatement  are  usually  con- 
sidered under  the  heads  of  the  various 
objections  for  which  they  are  inter- 
posed, and  they  are  so  considered  in 
this  article. 

5.  When  no  Court  has  Jurisdiction  the 
objection  can  be  taken  advantage  cf 
under  the  general  issue,  and  cannot 
be  raised  by  plea  in  abatement.  A 
plea  in  abatement  in  such  a  case  is 
bad,  for  it  cannot  give  a  better  writ, 
viz.,  name  a  court  of  the  county  hav- 
ing jurisdiction.  Maisonnaise  I'.  Keat- 
ing, 2  Gall.  (U.  S.)  344;  Rex  v.  John- 
son, 6  East  599  ;  Mostyn  v.  Fabrigas, 
Cowp.  172  ;  Otis  V.  Wakeman,  1  Hill 
(N.  Y.)  604  ;  Rea  v.  Hayden,  3  Mass. 
24;  Lawrence  v.  Smith,  5  Mass.  362; 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Jurisdiction. 


Objection  must  be  Taken  by  Plea  or  Demurrer. — The  objection  in  abate- 
ment that  a  court  has  no  jurisdiction  must  be  taken  by  a  plea  in 
abatement,  unless  lack  of  jurisdiction  appears  on  the  face  of  the 
record,  when  it  may  be  taken  by  demurrer.*  This  rule  applies  to 
the  question  of  the  citizenship  of  parties  as  determining  the  juris- 
diction of  a  court  of  the  United  States.*     And  it  has  been  held  to 


Stewart  v.  Potomac  Ferry  Co.,  12  Fed. 
Rep.  296. 

Flea  in  Abatement  Substantially  a  Plea 
in  Bar. — An  answer  setting  up  matter 
showing  that  the  court  has  no  juris- 
diction of  the  subject-matter  of  the 
action,  although  it  be  in  form  a  plea 
in  abatement,  is  not  within  the  rule 
established  by  the  statute  of  Massa- 
chusetts that  an  appeal  cannot  be  taken 
from  a  judgment  on  a  plea  in  abate- 
ment, because  it  is  in  substance  a  plea 
in  bar.  Selin  v.  Connecticut  River 
Lumber  Co.,  150  Mass.  560. 

1.  Meyer  v.  Smith  (Tex.  Civ.  App. 
1893),  21  S.  W.  Rep.  995  ;  Ludwick  v. 
Beckamire,  15  Ind.  198  ;  Waterman  v. 
Tuttle,  18  111.  292  ;  Bishop  v.  Vose, 
27  Conn.  I  ;  McLean  v.  McDugald, 
8  Jones  (N.  Car.)  85  ;  Killian  v.  Full- 
bright,  3  Ired.  (N.  Car.)  9  ;  Wood  v. 
Mann,  i  Sumn.  (U.  S.)  578  ;  Smith 
V.  Kernochen,  7  How.  (U.  S.)  198  ; 
Rowland  v.  Veale,  Cowp.  20 ;  Wells 
V.  Hughes,  89  Va.  543  ;  Slator  v. 
Trostel  (Tex.  Civ.  App.  1892),  21  S. 
W.  Rep.  285  ;  Duke  v.  Miller,  15  Hun 
(N.  Y.)  356  ;  Coe  v.  Raymond,  22  Hun 
(N.  Y.)  461  ;  Papfinger  v.  Yutte,  102 
N.  Y.  38;  McLean  z/.  St.  Paul,  etc., 
R.  Co.,  9  Civ.  Pro.  Rep.  (N.  Y.)  394; 
Hamburger  v.  Baker,  35  Hun  (N.  Y.) 
455  ;  Curtis  v.  Howard  (Fla.,  1894),  14 
So.  Rep.  812  ;  Hurlburt  v.  Palmer 
(Neb.,  1894),  57  N.  W.  Rep.  1019  ; 
Southern  Pac.  R.  Co.  v.  Denton,  146 
U.  S.  202  ;  Day  v.  Henry,  104  Ind. 
324  ;  Shephard  v.  Graves,  14  How.  (U. 
S.)  505  ;  Knappz/.  Knapp,  59  Fed.  Rep. 
641  ;  Bishop  v.  Silver  Lake  Min.  Co., 
62  N.  H.  455  ;  Varner  v.  West,  i 
Woods  (U.  S.)  493  ;  Jones  v.  League, 
18  How.  (U.  S.)  76  ;  D'Wolf  v.  Rabaud, 
I  Pet.  (U.  S.)  476  ;  Evans  v.  Daven- 
port, 4  McLean  (U.  S.)  574. 

Service  on  Corporation. — Where  a  dec- 
laration served  on  an  agent  of  a  for- 
eign corporation  does  not  negative 
the  existence  of  a  cause  of  action  aris- 
ing in  the  state,  a  defence  that  such 
cause  of  action  arose  outside  of  the 
state  must  be  presented  by  plea  and 
not  by  a  motion  to  quash,  so  that  the 


decision  of  the  court  may  be  reviewed 
by  appeal  in  the  ordinary  way.  Max- 
well V.  Speed,  60  Mich.  36. 

Service  Defective. — An  answer  that 
defendant  being  a  foreign  corporation 
ought  not  to  be  held  to  answer  the 
plaintiff's  writ  because  proper  service 
has  not  been  made  on  it  to  give  the 
court  jurisdiction,  is  a  plea  in  abate- 
ment. Young  V.  Providence,  etc., 
Steamship  Co.,  150  Mass.  550;  28  Am. 
&  Eng.  Corp.  Cas.  603. 

Fraud  in  Obtaining  Jurisdiction. — 
Where  jurisdiction  depends  on  the 
amount  in  controversy,  this  is  deter- 
mined by  the  petition  ;  and  if  items 
are  fraudulently  inserted  therein  for 
the  purpose  of  conferring  jurisdiction, 
the  defendant  must  raise  the  question 
by  pleading  such  fact  in  abatement. 
Dwyer  v.  Bassett,  63  Tex.  274  ;  Tid- 
ball  V.  Eichoff,  66  Tex.  58. 

False  Return. — Where  an  alias  sum- 
mons which  is  necessary  to  confer 
jurisdiction  is  founded  on  a  false  re- 
turn of  the  sheriff,  a  plea  in  abatement 
is  the  proper  way  of  quashing  the 
writ,  notwithstanding  the  sheriff's  re- 
turn. Carlisle  v.  Cowan,  85  Tenn. 
165. 

Too  Late  after  Mandate  to  Lower  Court. 
— After  a  mandate  has  gone  down 
from  the  United  States  Supreme  Court 
to  the  court  below  to  enforce  its  decree, 
it  is  then  too  late  for  the  defendant  to 
file  a  plea  in  abatement  for  want  of 
jurisdiction,  and  he  will  not  be  al- 
lowed to  do  so.  Whvte  v.  Gibbs,  20 
How.  (U.  S.)  541. 

2.  Smith  V.  Kernochen,  7  How.  (U. 
S.)  198  ;  Wood  V.  Mann,  i  Sumn.  (U. 
S.)  578  ;  D'Wolf  V.  Rabaud,  i  Pet.  (U. 
S.)  476  ;  Jones  v.  League,  18  How.  (U. 
S.)  76  ;  Mexican  Cent.  R.  Co.  v.  Pink- 
ney,  149  U.  S.  194  ;  Evans  v.  Daven- 
port, 4  McLean  (U.  S.)  574. 

Federal  Courts  do  not  Follow  State  Prac- 
tice.— In  the  federal  courts  jurisdic- 
tional questions  must  be  raised  by  a 
special  plea  to  the  jurisdiction.  The 
practice  of  a  state  court  permitting 
such  questions  to  be  raised  under  a 
general    denial    cannot    prevail   in    a 


Kinds  of  Fleas. 


ABATEMENT  IN  PLEADING. 


Jorisdiction. 


apply,  and  was  enforced,  notwithstanding  a  provision  of  statute 
saving  objections  to  the  jurisdiction,  although  not  taken  by- 
demurrer  or  answer.*  \n  Michigan  the  objection  has  been  allowed 
to  be  set  up  in  a  notice  of  defence  under  the  general  issue,'-*  and 
in  Illinois  it  seems  it  may  be  raised  by  motion.^  After  the  deter- 
mination of  a  demurrer  it  has  been  held  too  late  to  so  plead  in 
abatement,^  but  the  contrary  is  also  held.*  If  the  question  of 
jurisdiction  which  could  be  raised  by  plea  in  abatement  is  not 
properly  raised,  the  plaintiff  may  obtain  judgment  notwithstand- 
ing Sjjch  want  of  jurisdiction.® 


federal  court  sitting  in  such  state  so 
as  to  permit  evidence  as  to  the  citizen- 
ship of  the  parties  to  be  given  under 
such  a  denial.  But  if  such  a  question 
exists,  an  issue  must  be  directed  to  be 
made  by  the  pleadings  in  order  to  de- 
termine it.  Imperial  Refining  Co.  v. 
Wyman,  38  Fed.  Rep^  574  ;  6  Ry.  & 
Corp.  L.  J.  94. 

Amendment  in  Conrt's  Discretion. — It 
is  within  the  discretion  of  a  federal 
court  to  allow  a  plea  in  bar  to  be 
withdrawn,  and  a  plea  in  abatement 
denying  jurisdiction  on  account  of 
citizenship  to  be  filed.  Eberly  v. 
Moore,  24  How.  (U.  S.)  147. 

Where  on  the  trial  plaintiff  gave 
evidence  which  the  defendant  claimed 
tended  to  show  he  was  not  a  citizen  of 
the  disttict  in  which  the  suit  was 
brought,  and  the  court  refused  to 
allow  defendant  to  file  a  plea  in  abate- 
ment on  that  ground,  and  thus  raise 
the  question  of  citizenship,  held,  was 
a  question  resting  in  the  discretion 
of  the  lower  court,  and  with  its  action 
thereon  the  supreme  court  would  not 
interfere.  Mexican  Cent.  R.  Co.  v. 
Pinkney,  149  U.  S.  194. 

1.  Statutory  Provisions  Saving  Objec- 
tions to  Jurisdiction. — The  provision  of 
the  New  York  Code  saving  objections 
to  the  jurisdiction,  although  not  taken 
by  demurrer  or  answer,  applies  only 
to  objections  showing  that  no  court 
has  jurisdiction,  and  going  to  the 
power  of  the  court.  It  does  not  save 
objections  formerly  properly  raised  by 
a  plea  in  abatement  to  the  jurisdiction. 
Such  objections  are  waived  unless 
taken  by  demurrer  or  answer.  De 
Bussierre  v.  Holliday.  4  Abb.  N. 
Cas.  (N.  Y.)  Ill  ;  55  How.  Pr.  (N.  Y.) 
210;  Papfinger  v.  Yutte,  102  N.  Y. 
38 ;  Donnelly  v.  Woalsey  (Supreme 
Ct.),  38  N.  Y.  St.  Rep.  39;  Hal- 
brook  V.  Baker,  16  Hun  (N.  Y.) 
176  ;  Gray  v.    Ryle,   50  N.   Y.   Super. 


Ct.  198  ;  Patten  v.  Neal,  62  How.  Pr. 
(Co.  Ct.  N.  Y.)  158;  Burling  v.  Free- 
man, 2  Hun  (N.  Y.)  661  ;  Robinson  v. 
Ocean  Steam  Nav.  Co.  (Super.  Ct.),  16 
N.Y.St.  Rep.583;Heenanz/.  New  York, 
etc.,  R.  Co.,  6  Civ.  Pro.  Rep.  (Co.  Ct. 
N.  Y.)  348;  I  How.  Pr.  N.  S.  (N.  Y.)  53  ; 
Mosselman  v.  Caen,  21  How.  Pr.(N.  Y. 
Supreme  Ct.)  248;  34  Barb.  (N.  Y.)  66. 

2.  In  Notice  of  Defence. — Although  a 
plea  in  abatement  would  be  the  better 
practice,  yet  an  objection  to  jurisdic- 
tion, on  the  ground  that  it  was  ob- 
tained by  ordering  goods  merely  for 
the  purpose  of  attaching  them,  may  be 
set  up  in  a  notice  of  defence  under  the 
general  issue.  Copas  v.  Anglo-Amer- 
ican Provision  Co.,  73  Mich.  541. 

3.  By  Motion. — The  question  whether 
a  party  is  entitled  to  exemption  from 
the  service  of  process  may  be  raised 
by  plea  in  abatement,  although  it  is 
frequently  presented  by  motion.  Gregg 
V.  Sumner,  21  111.  App.  no. 

4.  After  Decision  on  Demurrer. — It  is 
too  late  to  plead  to  the  jurisdiction 
after  appearance  and  the  determination 
of  an  issue  of  law,  viz.,  on  demurrer. 
Slanter  v.  Hallowell,  90  Ind.  286. 

5.  By  demurring  to  a  declaration 
for  want  of  jurisdiction,  a  defendant 
does  not  waive  his  right  to  plead  in 
abatement  for  want  of  jurisdiction  ; 
and  where  the  defendant  did  demur 
therefor,  and  his  demurrer  was  sus- 
tained, and  the  plaintiff  filed  an  amend- 
ed declaration  on  its  face  showing 
jurisdict^ion,  the  defendant  may  plead 
in  abatement  thereto  facts  showing 
want  of  jurisdiction,  or  may  traverse 
the  facts  alleged  by  plaintiff  to  show 
jurisdiction.  Donaldson  v.  Hazen, 
Hempst.  (U.  S.)  425. 

6.  Waiver. — Where  there  is  no  plea  to 
the  jurisdiction,  judgment  may  be 
given  against  a  defendant  who  is  not 
a  resident  of  the  county,  as  well  as 
against  a  codefendant  who  is  a  resi- 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Jurisdiction. 


Pleas  must  be  Clear,  Distinct,  and  Positive. — Such  pleas  must  clearly  and 
distinctly  show  want  of  jurisdiction.*  They  must  be  certain  to 
every  intent.*  They  must  exclude  every  contrary  inference,  and 
negative  all  statutory  exceptions.'  They  should  show  another 
court  having  jurisdiction  of  the  matter  in  litigation.'*     But  a  plea 


dent,  in  an  action  on  time  checks  for 
labor  performed  out  of  the  county. 
San  Antonio,  etc.,  R.  Co.  v.  Cockrill, 
72  Tex.  613. 

1.  Must  be  Certain  and  Clear.  —  A 
plea  in  abatement  to  the  jurisdiction 
of  a  superior  court  must  clearly  and 
distinctly  aver  a  want  of  jurisdiction, 
as  it  is  presumed  until  the  contrary  is 
shown.     Diblee  v.  Davison,  25  111.  486. 

Where  there  are  four  defendants, 
and  a  plea  to  the  jurisdiction  alleges 
only  two  of  them  are  residents  of  the 
county  where  the  proceedings  are  had, 
it  is  bad  for  not  stating  the  residence 
of  the  other  two.  Lester  v.  Stevens, 
29  111.  155. 

2.  Certain  to  Every  Intent.  —  Pleas 
in  abatement  to  the  jurisdiction  must 
be  certain  ;  hence,  where  a  plea  to  the 
jurisdiction  alleged  "that  the  defend- 
ant was  a  resident  of  the  state  of 
New  York  instead  of  the  state  of 
Michigan,  as  alleged  in  the  declara- 
tion," held,  that  the  plea  was  bad,  for 
it  should  have  alleged  that  the  de- 
fendant was  a  citizen  of  New  York 
(not  merely  a  resident),  as  it  is  citizen- 
ship, not  residence,  which  determines 
the  jurisdiction  of  United  States  courts, 
and  a  person  may  be  a  resident  of  one 
state  while  a  citizen  of  another.  Evans 
V.  Davenport,  4  McLean  (U.  S.)  276. 

3.  Must  Negative  Inferences  and  Ex- 
ceptions.— A  plea  in  abatement  to  the 
jurisdiction  negativing  several  statu- 
tory exceptions  which  would  other- 
wise have  conferred  jurisdiction,  but 
failing  to  specifically  deny  the  exist- 
ence of  them  all,  is  fatally  defective 
on  exception  taken  thereto.  Burchard 
V.  Record  (Tex.,  1891),  17  S.  W.  Rep. 
241. 

In  a  suit  for  specific  performance  of 
a  contract  to  convey  realty,  a  plea  in 
abatement  to  the  jurisdiction,  that  the 
same  is  not  laid  in  the  county  of  de- 
fendant's residence,  is  fatally  defective 
where  it  does  not  negative  the  exist- 
ence of  any  statutory  exceptions  to 
the  rule  requiring  actions  to  be 
brought  in  such  county.  Carvin  v. 
Hill,  83  Tex.  73. 

Where  a  plea  in  abatement  to  an  at- 
tachment does  not  allege  that  the  de- 


fendant resides  in  the  county  in  which 
the  suit  is  instituted,  and  hence  the 
ordinary  process  of  law  could  have 
been  served  upon  him  there,  but 
merely  alleges  that  the  defendant  is  a 
citizen  of  the  state,  it  is  bad  on  de- 
murrer. James  v.  Dowell,  15  Miss. 
333- 

Where  to  a  suit  on  a  judgment  of 
the  Supreme  Court  held  at  Albany, 
brought  against  the  defendant  in  the 
Superior  Court  of  New  York,  the  de- 
fendant pleaded  in  abatement  to  the 
jurisdiction  of  the  court,  "that  the 
cause  pf  action  accrued  in  the  county 
of  Albany,"  it  was  held  bad  for  not 
averring  that  the  record  of  the  judg- 
ment was  filed  in  Albany.  Kelly  v. 
Mullany,  2  Hall  (N.  Y.)  205. 

Affinity  of  Justice  Signing  Writ. — 
Where  a  plea  in  abatement  alleged 
"that  James  Hickox,  the  justice  of 
the  peace  who  signed  the  writ  and 
took  security  by  way  of  recognizance 
for  the  costs  of  prosecution  in  said 
suit,  was  at  the  time  of  signing  said 
writ  and  taking  said  security  by  way 
of  recognizance  for  the  costs  of  prose- 
cution as  justice  of  the  peace  as  afore- 
said, and  still  is,  related  to  said  de- 
fendant within  the  fourth  degree  of 
aflSnity,"  it  was  held  bad  because  not 
containing  an  allegation  (except  by 
way  of  recital)  that  the  writ  was 
signed  by  James  Hickox,  in  not 
showing  that  the  writ  was  not  other- 
wise signed  at  the  time  of  service  there- 
of than  by  James  Hickox,  and  in  not 
alleging  the  particular  relationship 
which  constituted  the  affinity.  Landon 
V.  Roberts,  20  Vt.  286. 

4.  Should  Show  Jurisdiction  in  Some 
Other  Court. — Where  a  plea  to  the 
jurisdiction  of  the  court  is  filed,  it 
must  show  jurisdiction  in  another 
court  on  its  face,  or  it  will  be  disre- 
garded. It  is  not  sufficient  to  deny 
the  jurisdiction  of  that  court,  without 
specifying  what  court  has  jurisdiction. 
Ridling  v.  Stewart,  77  Ga.  539  ;  Fain 
V.  Crawford  (Ga.,  1892),  16  S.  E.  Rep. 
106. 

A  plea  to  the  jurisdiction  must  show 
another  court  in  the  state  which  has 
jurisdiction  ;  hence,  where  a  plea  to  a 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Jurisdiction. 


in  abatement  of  the  writ,  it  is  said,  need  not  do  so.*  It  is  not 
sufficient  for  the  plea  to  show  facts  making  it  discretionary  with 
the  court  to  exercise  jurisdiction.* 

Where  the  Lack  of  Kesidence  necessary  to  confer  jurisdiction  is  relied 
on,  the  plea  must  clearly  show  such  want  of  residence  and  nega- 
tive any  inference  of  its  existence,^  and  also  state  the  defend- 


suit  brought  in  a  justice's  court  in  F. 
county  alleged  "  that  at  the  commence- 
ment of  the  suit  the  defendant  was  a 
I'esident  of  De  K.  county,  and  resides 
there  now,  and  has  so  resided  for  the 
past  year,  and  that  the  said  justice 
court  of  F.  county  has  no  jurisdiction 
of  the  person  of  the  defendant,  and 
that  a  suit  against  the  same  defendant 
by  the  same  plaintiff  in  relation  to 
the  same  subject-matter  is  pending  in 
the  court  of  defendant's  residence," 
such  plea  was  held  bad  for  not  show- 
ing what  court  in  De  K.  county  had 
jurisdiction.  Fain  v.  Crawford  (Ga., 
1892),  16  S.  E.  Rep.  106. 

A  plea  in  abatement  to  the  jurisdic- 
tion must  be  certain,  according  to  the 
most  rigid  rules  of  precision,  and  it 
must  always  show  another  form  in 
which  the  rights  in  litigation  are  sub- 
ject to  judicial  authority.  Hence  a 
plea  in  abatement  in  replevin,  "that 
defendant  took  the  goods  as  deputy 
United  States  marshal,  on  execution 
issued  out  of  the  United  States  Circuit 
Court  against  a  third  person  "  (speci- 
fied), is  bad  on  demurrer  for  failing 
to  allege  that  the  execution  was  issued 
on  any  judgment,  or  that  any  judg- 
ment had  been  obtained  against  the 
plaintiff  in  replevin  or  the  defendant 
in  execution,  or  that  the  property  was 
levied  on  as  belonging  to  the  defend- 
ant in  the  execution.  Heyman  v. 
Covell,  36  Mich.  157. 

1.  Plea  in  Abatement  of  the  Writ. — 
Where  a  defendant  was  not  sued  in 
the  proper  county,  and  pleaded  in 
abatement  "  that  he  was  before  and  at 
the  time  of  the  commencement  of  the 
suit,  and  at  all  times  thereafter,  a 
resident  of  McLean  county,  and  was 
not  a  resident  of  Cook  county,  and  that 
he  was  not  found  or  served  with  pro- 
cess in  Cook  county,  not  elsewhere 
than  in  the  county  of  McLean,  and 
that  said  plaintiffs  were  not  at  the 
commencement  of  said  action  resi- 
dents of  said  county  of  Cook,  nor  are 
they  now  residents  of  said  county," 
held,  good  on  demurrer  as  a  plea  in 
abatement  of  the  writ,  and  not  tech- 


nically to  the  jurisdiction,  and  that  as 
such  it  need  not  show  some  other 
court  which  had  jurisdiction.  Scott  v. 
Waller,  65  111.  181. 

2.  Not  Sufficient  to  Show  Jurisdiction 
Discretionary. — In  an  action  on  a  prom- 
issory note,  the  defendant's  answer 
alleged  that  the  defendant  was  a  non- 
resident of  the  state  ;  that  the  plaintiff 
was  a  foreign  corporation  ;  that  the 
note  in  suit  was  made  in  another  state; 
and  that  by  reason  of  these  facts  the 
court  had  no  jurisdiction  either  of  the 
subject-matter  of  the  action  or  the 
person  of  defendant.  Held,  demur- 
rable, because  under  the  New  York 
statute  the  court  has  jurisdiction  if  it 
chooses  to  exercise  it.  Colorado  State 
Bank  v.  Gallagher,  76  Hun  (N.  Y.) 
310. 

3.  Should  Show  Want  of  Kesidence. — 
A  plea  to  the  jurisdiction  merely  alleg- 
ing that  a  party  is  a  citizen  of  Oregon 
temporarily  residing  in  London,  Eng- 
land, without  specially  denying  the 
allegation  made  that  he  is  a  citizen  of 
Rhode  Island  and  resident  in  England, 
is  insufficient.  First  Nat.  Bank  v. 
Salem  Capital  Flour  Mills  Co.,  31  Fed. 
Rep.  580. 

In  an  action  on  a  foreign  judgment 
a  plea  which  alleges  that  defendant  at 
the  time  of  the  commencement  of  the 
action  in  which  the  judgment  was  ob- 
tained, or  at  anytime  before  its  rendi- 
tion, was  not  resident  or  domiciled 
within  the  jurisdiction,  and  had  no 
notice  or  knowledge  of  the  suit  or  op- 
portunity of  defending  it,  is  bad  for 
failing  to  allege  that  he  was  not  a  sub- 
ject or  citizen  of  the  foreign  country 
and  amenable  to  its  jurisdiction.  Brit- 
ish Linen  Co.  v.  McEwan,  8  Manitoba 
Rep.  gg. 

In  an  action  before  a  justice  in  one 
county,  a  plea  to  the  jurisdiction  to 
the  effect  that  defendant  is  now  a  bona- 
fide  citizen  of  another  county,  and  was 
residing  there  at  and  long  before  the 
commencement  of  the  suit,  and  claims 
the  privilege  of  being  sued  in  his  own 
county,  and  has  not  waived  the  right 
of   being  sued    in  the   county  of   his 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


JurisdictiOQ. 


ant's  place  of  residence.* 

Prayer. — The  plea  should  conclude  with  a  prayer,  praying  judg- 
ment whether  the  court  will  take  cognizance  of  the  action  or 
suit.*     It  has  been  held  that  a  plea  of  a  fraudulent  assignment  to 


residence,  nor  authorized  suit  to  be 
brought  against  him  in  the  county  in 
which  he  was  sued,  is  defective  in  not 
alleging  with  certainty  that  defendant 
was  not  a  resident  of  the  county  in 
which  the  suit  was  brought.  Noel  v. 
Denman,  76  Tex.  306. 

Several  Defendants. — An  answer  in 
abatement  by  one  defendant  that  the 
action  is  brought  in  the  wrong  county, 
on  the  ground  that  the  answering  de- 
fendants are  residents  of  another 
county,  is  demurrable  if  it  fails  to 
show  that  the  other  defendant  is  not  a 
resident  of  the  county  in  which  the  ac- 
tion is  brought.  Brown  v.  Underbill, 
4  Ind.  App.  77. 

A  plea  in  abatement  averring  "that 
the  cause  of  action  arose  in  the  county 
of  L.  and  was  specifically  made  pay- 
able there,  and  defendant  was  served 
there,  but  with  process  issued  in  the 
county  of  C,  and  that  a  codefendant 
served  with  process  in  C.  county  also 
resides  in  the  county  of  L. ,"  is  good 
on  demurrer.  •  Hamilton  v.  Dewey,  22 
111.  490. 

1.  Should  Show  where  Defendant  Re- 
sides.— In  a  suit  in  a  county  court  by  a 
non-resident  plaintiff,  where  defend- 
ant is  described  in  the  writ  as  a 
resident  of  the  county  where  the  writ 
is  returnable,  if  defendant  pleads  in 
abatement  that  he  is  not  a  resident  of 
that  county,  he  must  allege  and  prove 
his  residence  in  some  county  in  the 
state.  Vanderburg  v.  Clark,  22  Vt. 
185. 

A  plea  in  abatement  to  the  jurisdic- 
tion on  the  ground  that  defendant 
does  not  reside  in  the  county  in  which 
the  suit  was  brought  and  the  cause  of 
action  did  not  arise  there  must  state 
where  defendant  resides  and  where 
the  cause  of  action  arose.  Middleton 
V.  Pinnell,  2  Gratt.  (Va.)  203. 

A  plea  in  abatement  of  a  writ  aver- 
ring "that  at  and  before  the  date  of 
the  writ  (which  was  issued  in  one 
county  and  was  directed  to  the  sheriff 
of  another  county),  and  ever  since,  the 
defendant  resided  in  the  county  in 
which  the  writ  was  issued,"  is  a  good 
plea.  Clarke  v.  Hite,  5  Blackf.  (Ind.) 
167. 

Where  the  material  fact  raised  by  a 


plea  in  abatement  was  whether  the 
defendant  resided  at  A.  when  suit  was 
commenced,  an  averment  "  that  at  the 
time  of  the  issuing  and  service  of  the 
writ  the  defendant  did  reside,  and  for 
a  long  time  before  had  and  ever  since 
has  resided,  in  the  town  of  B.  and  nctt 
elsewhere,"  is  bad  on  demurrer,  as 
not  sufficiently  direct  and  positive ; 
but  an  averment  "  that  at  the  time 
aforesaid  he  did  reside  in  A."  is  gOQid 
and  sufficient.  Durand  v.  Griswold, 
26  Vt.  48. 

Abuse  of  Criminal  Process. — Where  a 
defendant  pleads  in  abatement  to  the 
jurisdiction  of  the  district  court  of  the 
county  in  which  the  suit  is  brought 
"  that  all  the  defendants  were  at  the 
time  of  the  commencement  of  the  ac- 
tion residents  of  another  county  ;  that 
by  the  abuse  of  the  criminal  process  of 
the  state  a  codefendant  was  taken  from 
a  jail  in  the  county  where  all  the  de- 
fendants resided  to  the  county  in  which 
the  suit  was  brought  and  there  served 
with  process  and  thereafter  returned 
to  said  jail  ;  and  that  such  abuse  of 
criminal  process  and  service  was  re- 
sorted to  for  the  purpose  of  obtaining 
jurisdiction  of  the  person  of  the  de- 
fendant who  so  pleaded,"  held,  a  good 
plea  to  the  jurisdiction.  Hurlburt  v. 
Palmer  (Neb. ,  1S94),  57  N.  W.  Rep.  1019. 

Where  a  plea  in  abatement  averred 
that  the  defendant  was  not  a  resident 
of  the  state,  but  resided  in  the  state 
of  M.  when  the  writ  was  served,  with- 
out stating  in  -what  place  in  the  state  of 
M. defendant  resided,  it  was  held  good. 
Colburn  v.  Talles,  13  Conn.  524. 

2.  Prayer. — Leonard  v.  Grant,  6 
Sawy.  (U.  S.)  603  ;  Adams  v.  White,  2 
Pittsb.  (Pa.)  21. 

A  plea  in  abatement  by  a  non-resi- 
dent corporation  sued  in  equity  be- 
ginning:  "This  defendant,  appearing 
specially  and  solely  to  object  to  the 
jurisdiction  of  this  court,  pleads  to  the 
jurisdiction  of  this  court  over  it,  and 
for  cause  of  plea  says  that  this  de- 
fendant is  not  compellable  to  appear  in 
response  to  said  writs  and  does  not  ac- 
cept or  waive  service  thereof  " — set- 
ting up  matter  showing  want  of  juris- 
diction, and  concluding — "  wherefore 
defendant  prays  the  judgment  of  this 


8 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Coverture. 


evade  the  insolvent  laws  should  be  liberally  construed.*  Whether 
it  has  jurisdiction  may  be  determined  by  the  court  on  the  trial  of 
the  plea  or  the  issue  of  fact  raised.* 

3.  Infancy— Plea  or  Demurrer. — The  objection  that  the  plaintiff  is 
an  infant  and  sues  in  his  own  name  should  be  raised  by  a  plea  in 
abatement  or  by  demurrer.^ 

Waiver. — If  it  is  not  so  taken  it  is  deemed  waived.* 

4.  Coverture — Demurrer  or  Plea. — The  objection  of  the  marriage  of 
a  female  plaintiff  or  the  non-joinder  of  her  husband  can  be  taken 
advantage  of  only  by  plea  in  abatement  or  by  demurrer.' 

Verification. — Such  a  plea  is  a  dilatory  one  requiring  an  affidavit 
of  verification  where  dilatory  pleas  are  required  to  be  verified.® 

Non-joinder. — It  has  been  held  not  to  be  a  plea  of  non-joinder  with- 
in the  common-law  procedure  act.'' 


honorable  court  whether  it  ought  to  be 
required  to  appear  in  accordance  with 
any  writ  of  subpoena  issued  in  said 
suit  " — ^^-/a^  proper  in  form  and  that  it 
did  not  raise  an  issue  on  the  merits  so 
as  to  operate  as  an  appearance  by  de- 
fendant. U.  S.  V.  American  Bell 
Teleph.  Co.,  29  Fed.  Rep.  17. 

1.  Fraudulent  Assignment. — A  plea  in 
abatement  to  the  jurisdiction  on  the 
ground  that  a  claim  has  been  collu- 
sively  and  fraudulently  assigned  in 
order  to  evade  the  provisions  of  the 
law  in  relation  to  insolvent  estates  is 
not  to  be  treated  as  dilatory  and  cap- 
tious like  most  pleas  in  abatement,  but 
should  be  liberally  construed.  Wal- 
lace V.  Clark,  3  Woodb.  &  M.  (U.  S.) 

359- 

2.  A  plea  to  the  jurisdiction  of  a 
probate  court  on  the  ground  that  a  bill 
has  been  filed  in  a  court  of  equity  and 
that  court  has  assumed  jurisdiction 
need  not  set  out  the  bill,  as  its  suf- 
ficiency is  a  question  to  be  determined 
on  the  trial  of  the  plea.  Tygh  v. 
Dolan,  95  Ala.  269. 

Where  an  action  was  brought  in  a 
county  court  to  foreclose  a  mortgage 
on  machinery,  the  defendant  in  his 
answer  alleged  "that  at  the  time  the 
mortgage  was  given  and  also  at  that 
time  the  machinery  was  a  fixture  and 
part  of  the  homestead  of  one  of  the  de- 
fendants, who  was  a  married  man  and 
the  head  of  a  family,  and  that  the  court 
had  no  jurisdiction  to  decree  a  fore- 
closure of  the  mortgage,"  held,  that 
it  was  error  to  sustain  a  general  de- 
murrer to  the  answer  and  exclude  evi- 
dence of  the  facts  alleged  therein  on 
the  trial;  that  the  court  had  power 
to    hear     evidence     and     determine 


whether  it  had  jurisdiction,  whether 
want  of  jurisdiction  appeared  in  the 
petition  or  in  the  answer.  Gentry  v. 
Bowser,  2  Tex.  Civ.  App.  388. 

3.  Schemerhorn  z/.  Jenkins,  7  Johns. 
(N.  Y.)  373;  Blood  V.  Harrington,  i 
Pick.  (Mass.)  552  ;  Drago  v.  Moso,  i 
Speers  (S.  Car.)  212  ;  Young  v.  Young, 
3  N.  H.  345  ;  Gully  v.  Dunlop,  24  Miss. 
410. 

4.  Weinberger  v.  Frieden,  N.  Y. 
Daily  Reg.,  Mch.  6,  1884;  Smart  v. 
Haring,  14  Hun  (N.  Y.)  276;  Perkins 
V.  Stimmei,  114  N.  Y.  359;  17  Civ.  Pro. 
Rep.  (N.  Y.)  25. 

5.  Powell  V.  Glenn,  21  Ala.  458 ; 
Sheidle  v.  Weishlee,-  16  Pa.  St.  134 ; 
Lasterz/.  Toliver,  11  Ark.  450;  Chirac  r/. 
Reinicker,  11  Wheat.  (U.  S.)  280  ;.  Sur- 
tell  V.  Brailsford,  2  Bay  (S.  Car.) 
333. 

Necessary  Allegations. — A  plea  of 
coverture  in  abatement  should  allege 
the  existence  of  the  coverture  at  the 
time  of  the  commencement  of  the  ac- 
tion and  its  continuance  up  to  the  time 
of  the  filing  of  the  plea,  by  the  con- 
tinued life  of  the  husband.  These  are 
the  necessary  allegations  of  such  a 
plea.  Atwood  v.  Higgins,  76  Me.  423; 
Lovell  V.  Walker,  9  M.  &  W.  299  ;  i 
Dowl.  N.  S.  952.  This  is  so  although 
part  of  the  cause  of  action  accrued 
after  the  coverture,  and  if  not  verified 
plaintiff  is  entitled  to  judgment  for 
want  of  a  plea,  lb. 

6.  In  order  to  avoid  the  statute  of 
limitations  the  disability  of  coverture 
must  be  pleaded  ;  it  is  not  available 
unless  pleaded.  Crow  v.  Fiddler,  3 
Tex.  Civ.  App.  576. 

7.  Riordan  v.  Walsh,  6  Ir.  R.  C.  L. 
189. 


Kinds  of  Pleas.        ABATEMENT  IN  PLEADING.      Capacity  to  Sue. 


5.  Capacity  to  Sue — When  Raised  by  Plea. — Any  facts  showing  a 
want  of  capacity  to  sue  on  the  part  of  the  plaintiff  should  be  set 
up  by  a  plea  in  abatement  unless  apparent  on  the  face  of  the 
record,  in  which  case  the  objection  can  be  taken  advantage  of  by 
demurrer.*      If  not  so  taken  it  is  deemed  waived.* 

Party  Suing  in  Kepresentative  Capacity.— This  rule  applies  to  the  case 
of  a  plaintiff  who  sues  in  a  representative  capacity  and  is  not 
entitled  to  sue  in  such  capacity.^ 

Admission  of  Capacity.— Failure  to  so  raise  the  objection  is  an  ad- 
mission of  plaintiff's  capacity  to  sue  in  the  particular  action  which 
he  has  brought.'* 

Requisites  of  the  Plea.— Such  pleas  should  be  clear,  definite,  and 
certain.*  It  is  not  sufficient  to  merely  deny  that  a  corporation 
exists  or  was  organized,®  or  to  allege  merely  that  it  has 
ceased  to  exist.''     The  facts  causing  the    incapacity   should   be 


1.  Edwards  v.  Ford,  2  Bailey  (S. 
Car.)  461;  Shivers  v.  Wilson,  5  Har. 
&  J.  (Md.)  130;  Rich  V.  Penfield,*  i 
Wend.  (N.  Y.)  380;  Elektron  Mfg.  Co. 
V.  Jones  Bros.  Electric  Co.,  8  Ohio  Cir. 
Ct.  311;  Society,  etc.,  z'.  Pawlet,  4  Pet. 
(U.  S.)  480;  Hoyt  V.  Hoyt,  58  Vt.  538; 
Cook  V.  Lansing,    3    McLean   (U.  S.) 

571- 

2.  Waiver. — Pierrepont  v.  Loveless, 
4  Hun  (N.  Y.)  696;  Jemmerson  v.  Ken- 
nedy (Supreme  Ct.),  26  N.  Y.  St.  Rep. 
469;  Palmer  v.  Davis,  28  N.  Y.  242; 
Hathaway  v.  Orient.  Ins.  Co.  (Supreme 
Ct.),  33  N.  Y.  St.  Rep.  678;  Mossel- 
man  v.  Caen,  34  Barb.  (N.  Y.)  66; 
Nanz  V.  Oakley,  122  N.  Y.  631;  ig  Civ. 
Pro.  Rep.  (N.  Y.)  246;  People  v. 
Metropolitan  Tel.  Co.,  31  Hun  (N.  Y.) 
599;  Perkins  v.  Stimmel,  114  N.  Y. 
359;  Kilpatrick  v.  Dean  (City  Ct.),  19 
N.  Y.  St.  Rep.  837;  4  N.  Y.  Supp.  708; 
Society,  etc.,  v.  Pawlet,  4  Pet.  (U.  S.) 
480.     ■ 

3.  Lang  v.  Whidden,  2  N.  H.  435; 
Treasurer  v.  Wiggins,  i  McCord  (S. 
Car.)  568;  Clapp  v.  Beardsley,  i  Vt. 
151;  Childress  v.  Emory,  8  Wheat.  (U. 
S.)642;  Picquet  v.  Swan,  3  Mason  (U. 
S.)  469. 

Assignee's  Bond. — The  objection  that 
a  general  assignee  for  the  benefit 
of  creditors  has  not  filed  his  official 
bond,  and  is  therefore  not  entitled  to 
maintain  an  action  for  the  alleged  con- 
version of  a  part  of  the  assigned 
estate,  should  be  raised  by  demurrer 
or  answer,  or  it  is  waived.  Kilpatrick 
V.  Dean  (City  Ct.),  19  N.  Y.  St.  Rep. 
837  ;  4  N.  Y.  Supp.  708. 

4.  Plaintiff  a  Corporation. — If  a  de- 
fendant wishes  to  insist  on  the  want 


of  capacity  of  a  plaintiff,  a  corpora- 
tion, to  sue  as  a  corporation,  he  must 
do  so  by  a  special  plea  in  abatement 
or  in  bar.  Pleading  the  general  issue 
or  to  the  merits  is  an  admission  not 
only  of  the  plaintiff's  capacity  to  sue 
in  general,  but  also  to  sue  in  the  par- 
ticular action  which  he  has  brought. 
Society,  etc.,  v.  Pawlet,  4  Pet.  (U.  S.) 
480. 

5.  Wright  V.  Wright,   54  N.  Y.  437. 

6.  Benial  of  Incorporation. — A  denial 
that  defendant  is  or  ever  was  a  cor- 
poration, organized  and  existing  under 
the  laws  of  a  specified  country,  is  bad 
as  a  denial  of  corporate  existence,  be- 
cause it  practically  admits  it  was 
organized  somewhere.  Wright  v. 
Fire  Ins.  Assoc,  12  Mont.  474. 

Where  an  answer  alleges  "that  de- 
fendant denies  any  knowledge  or  in- 
formation sufficient  to  form  a  belief  as 
to  the  alleged  incorporation  of  plain- 
tiff "  (a  corporation),  it  is  not  sufficient 
to  raise  an  issue  as  to  the  incorpo- 
ration of  plaintiff  under  the  provisions 
of  the  N.  Y.  Code  of  Civ.  Pro.  §  1776, 
providing  "  that  proof  of  the  exist- 
ence of  a  corporation  need  not  be 
made  unless  the  answer  is  verified 
and  contains  an  affirmative  allegation 
that  the  plaintiff  is  not  a  corporation." 
Martin  Cantine  Co.  v.  Warshauer 
(Supreme  Ct.),  28  N.  Y.  Supp.  139  ;  7 
Misc.  Rep.  (N.  Y.)  412;  East  River 
Electric  Light  Co.  v.  Clark  (C.  PL),  45 
N.  Y.  St.  Rep.  635  ;  18  N.  Y.  Supp. 
463.     See  also  Corporations. 

7.  Corporation  Ceased  to  Exist. — 
Where  the  existence  of  a  corporation 
is  expressly  averred  or  admitted  it  is 
not    sufficient   to    allege    that   it  has 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Seal  Party. 


stated.*  But  merely  denying  tlie  validity  of  the  appointment  of 
a  receiver  has  been  held  sufficient.*  The  answer  of  a  guardian 
«^ ///(?;«  should  disclose  for  whom  he  was  appointed  such  guardian 
or  it  cannot  be  considered  for  any  purpose.^ 

6.  Real  Party  in  Interest — How  Objection  Taken.— The  objection  that 
the  plaintiff  is  not  the  real  party  in  interest  or  that  his  title  to  the 
cause  of  action  is  defective  should  be  taken  by  a  plea  in  abatement 
or  by  demurrer.* 

Requisites.— Such  pleas  must  clearly  point  out  the  defects  existing, 
be  definite  and  certain,  and  negative  contrary  inferences.* 


ceased  to  exist.  The  facts  must  be 
set  forth  showing  that  its  existence 
has  terminated.  People  v.  Stanford, 
77  Cal.  360. 

1.  Wound  up  Business. — A  plea  that 
the  charter  of  a  corporation  has  ex- 
pired, and  that  it  had  ceased  to  exist 
at  law  at  the  time  the  alleged  cause  of 
action  against  it  for  a  tort  arose,  is  a 
bad  plea  unless  it  also  is  alleged  that 
the  corporation  had  ceased  to  exist 
and  had  wound  up  its  business  in  fact 
as  well  as  in  law.  Miller  v.  New^burg 
Orrel  Coal  Co.,  31  W.  Va.  836. 

Failure  to  File  Articles  of  Incorpora- 
tion.— The  failure  of  a  corporation 
plaintiff  to  file  a  copy  of  its  articles 
of  incorporation  in  the  office  of  the 
county  clerk,  as  required  by  statute 
in  California,  is  ground  for  a  plea  in 
abatement,  and  should  be  so  spe- 
cially pleaded.  An  allegation  in  the 
answer  that  plaintiff  has  not  legal 
capacity  to  sue,  and  never  was  a  cor- 
poration duly  organized  under  the 
laws  of  the  state,  does  not  raise  the 
question  or  set  up  the  fact  of  its  fail- 
ure to  file  its  articles  of  incorporation 
with  the  county  clerk.  Ontario  State 
Bank  v.  Tibbits,  80  Cal.  68. 

Intervenor  not  Filing  Bond. — A  plea 
that  an  intervenor  in  sequestration 
proceedings  does  not  show  any  cause 
therefor,  and  that  his  petition  is  in- 
sufficient in  law,  is  merely  a  general 
demurrer,  and  does  not  raise  the  ob- 
jection that  no  oath  and  bond  were 
made  and  filed  in  the  action.  Irvin 
V.  Ellis,  76  Tex.  164. 

Alien  Enemy. — Where  the  defendant 
pleads  that  the  plaintiff  is  an  alien 
enemy  and  therefore  cannot  sue,  he 
must  aver  that  the  plaintiff  possessed 
that  character  at  the  time  of  the  com- 
mencement of  the  suit.  Elgee  v. 
Lovell,  I  Woolw.  (U.  S.)  102. 

2.  Appointment  of  Receiver. — An  an- 
swer denying  the  validity  of  the  ap- 


pointment of  a  receiver  is  sufficient, 
although  it  does  not  point  out  the 
specific  defect,  where  he  has  not  al- 
leged in  his  petition  the  various  steps 
leading  to  his  appointment.  Matter 
of  O'Connor  (Supreme  Ct.),  47  N.  Y. 
St.  Rep.  415. 

The  denial  by  executors,  in  answer 
to  a  petition  for  an  accounting,  of 
the  validity  of  the  appointment  of  the 
petitioner  as  receiver  of  a  beneficiary 
under  the  will, sufficiently  puts  the  ap- 
pointment in  issue,  although  the  spe- 
cific defect  is  not  pointed  out  where 
the  steps  leading  to  the  appointment 
are  not  set  out  in  the  petition.  Matter 
of  Beecher's  Estate  (Supreme  Ct.),  19 
N.  Y.  Supp.  971. 

3.  Newman  v.  Maldonado  (Cal., 
1892),  30  Pac.  Rep.   833. 

4.  Lanier  v.  Trigg,  6  Smed.  &  M. 
(Miss.)  641  ;  45  Am.  Dec.  293  ;  Hazlip  v. 
Leggett,  6  Smed.  &  M.  (Miss.)  326; 
Coburn  v.  Palmer,  8  Cush.  (Mass.)  124  ; 
Gerrish  v.  Gary,  i  Allen  (Mass.)  213; 
Burnett  v.  Lyford,  93  Cal. 114;  Boyseau 
V.  Campbell,  McAll.  (U.  S.)  119;  Var- 
num  V.  Taylor,  59  Hun  (N.  Y.)  554; 
Spooner  v.  Delaware,  etc.,  R.  Co.,  115 
N.  Y.  22. 

In  Kansas  should  be  by  Answer,  not  Flea. 
— In  an  action  on  a  promissory  note 
against  the  maker  and  endorsers,  the 
question  whether  plaintiff  is  the  owner 
of  the  note  cannot  be  raised  by  plea  in 
abatement  or  motion,  even  if  it  be 
claimed  the  note  was  indorsed  to  plain- 
tiff in  pursuance  of  a  conspiracy  to 
enable  the  action  to  be  brought  in  a 
county  where  it  could  not  be  brought 
by  the  person  claimed  to  be  the  real 
owner  of  the  note.  Such  question  can 
only  be  raised  by  answer.  Linney  v. 
Thompson,  44  Kan.  765 

5.  Assignment  of  Claim. — An  objection 
to  the  prayers  of  the  plaintiffs  in  an 
action  on  an  insurance  policy  for  the 
reason  that  one  of  them  has  assigned 


II 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Misnomer. 


Good  and  Bad  Pleas.— That  the  plaintiff  had  transferred  the  note  in 
suit  as  collateral  security  has  been  held  a  good  plea.*  But  that 
the  suit  is  not  that  of  the  plaintiff,  or  not  authorized  by  him,  or 
that  plaintiff  has  agreed  that  his  attorney  shall  have  the  recovery, 
have  been  held  bad  pleas.* 

As  a  Plea  in  Bar.— Where  such  a  plea  has  the  effect  of  a  plea  in  bar 
a  final  verdict  may  be  rendered  on  the  issue  formed.* 

7.  Misnomer  (see  also  Names). — At  Common  Law  the  misnomer  of 
a  party  plaintiff  or  defendant  was  pleadable  in  abatement,  and 
was  not  a  ground  for  setting  aside  the  proceedings  or  vacating 
the  judgment.* 

In  the  United  States  pleas  in  abatement  for  misnomer  are  generally 
allowed,  and  are  the  only  proper  mode  of  raising  the  objection, 
although  not  mentioned  in  the  various  codes  as  one  of  the 
grounds  of  demurrers  or  dilatory  answers.*     Their  propriety  has 


his  claim  and  has  no  existing  demand 
is  bad  and  untenable  where  it  does  not 
appear  whether  the  assignment  was  in 
writing  or  not,  whether  made  before 
or  after  suit,  or  whether  absolute  or 
conditional.  Globe  Reserve  Mut. 
Ins.  Co.  V.  Duffy,  76  Md.  293. 

Member  of  a  Trust  or  Combination. — An 
answer,  in  an  action  to  recover  the 
price  of  goods  alleged  to  have  been 
sold  and  delivered,  which  alleges  by 
way  of  a  plea  in  abatement  "  that  the 
plaintiff  is  a  member  of  a  trust  or  com- 
bination which  is  the  real  party  in  in- 
terest," is  defective  for  not  alleging 
whether  the  alleged  trust  is  a  partner- 
ship or  corporation,  and  also  whether 
any  of  its  members  other  than  plain- 
tiff have  any  interest  in  the  goods  sold 
or  in  the  money  to  be  paid  therefor. 
National  Distilling  Co.  v.  Cream  City 
Importing  Co.  (Wis.,  1893),  56  N.  W. 
Rep.  864. 

1.  Assignment  of  Note  as  Collateral. — 
In  an  action  on  a  promissory  note,  an 
answer  alleging  that  the  action  is  not 
brought  in  the  name  of  the  real  party 
in  interest,  and  that  the  plaintiff  had 
endorsed  the  note  and  delivered  it  to 
other  parties  as  collateral  security,  is 
not  demurrable.  Johnson, z'.  Chilson, 
29  Neb.  301. 

2.  Suit  not  that  of  PlaintiflF. — In  a  suit 
for  seduction  and  breach  of  promise  of 
marriage,  a  plea  that  the  suit  is  not 
the  suit  of  the  plaintiff  is  properly 
stricken  out,  for  the  question  of  main- 
tenance is  one  for  the  court,  not  the 
jury.  Graham  v.  McReynolds,  88 
Tenn.  240. 

Suit  not  Authorized. — An  answer  al- 
leging on  information  and  belief  that 


plaintiff  never  authorized  the  suit  and 
is  not  aware  of  its  institution  presents 
no  defence  and  is  not  sufficient  to  re- 
quire an  inquiry  into  the  authority  of 
plaintiff's  attorney.  Robinson  v.  Rob- 
inson, 32  Mo.  App.  88. 

Attorney  to  have  Recovery. — In  an  ac- 
tion for  damage  for  injuries  to  person 
and  property,  a  plea  in  abatement 
that  plaintiff  has  no  interest  because 
he  had  agreed  with  his  attorneys  that 
they  should  sue  in  his  name,  pay  all 
costs,  and  receive  the  whole  amount 
recovered,  is  bad,  because  a  claim  for 
damages  to  the  person  is  not  assign- 
able.    Jones  V.  Matthews,  75  Tex.  i. 

3.  In  Abatement  and  Bar. — A  plea 
which  alleges  "  that  the  plaintiff  is  not 
the  owner  of  the  note  in  suit,  but  that 
his  name  was  used  by  the  real  owner 
of  the  note  in  order  to  acquire  stand- 
ing in  a  federal  court,"  is  a  plea  in  bar 
as  well  as  in  abatement,  and  by  it  an 
issuable  defence  is  raised  which  is 
properly  submitted  to  a  jury,  and  a 
verdict  for  the  plaintiff  thereon  is  a 
verdict  on  the  merits,  which  will  not 
be  set  aside.  Lanning  v.  Lockett,  11 
Fed.  Rep.  814. 

4.  Chitty  on  Pleading,  pp.  248,  451  ; 
Gould  on  Pleading,  ch.  5,  §g  69-84. 

In  England  pleas  in  abatement  for 
this  cause  were  abolished  by  the  Pro- 
cedure Act,  3  &  4  Wm.  IV,  ch.  42, 
§11. 

5.  First  Nat.  Bank  v.  Jaggers,  31 
Md.  38  ;  100  Am.  Dec.  53  ;  Wilcox  v. 
State,  31  Tex.  586  ;  White  v.  Miller,  7 
Hun  (N.  Y.)  427  ;  Miller  v.  Stettiner, 
22  How.  Pr.  (N.  Y.  Super.  Ct.)  518; 
Traver  v.  Eighth  Ave.  R.  Co.,  3  Keyes 
(N.   Y.)  497 ;    McCrory   v.    Anderson, 


12 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Uisjoinder. 


been  questioned,*  but  it  is  well  settled  that  the  objection  must 
be  raised  by  plea  or  demurrer  whether  the  misnomer  be  that  of 
plaintiff*  or  defendant,^  and  is  waived  if  not  so  taken.* 

Application  of  Kule. — This  rule  applies  to  a  misnomer  in  a  repre- 
sentative capacity,*  to  the  case  of  a  default,®  and  in  equity.'' 

Eaises  Issue  of  Fact. — A  plea  of  misnomer  raises  an  issue  of  fact 
which  is  to  be  sustained  by  evidence  and  determined  like  other 
issues  of  fact,  and  not  by  a  motion  on  the  pleadings  to  dismiss 
the  complaint.* 

8.  Misjoinder — Method  of  Eaising  Objection.— The  mode  in  which  the 
objection  of  misjoinder  of  parties  should  be  raised  varies  in  different 
jurisdictions.  In  some  it  is  held  that  the  objection  of  misjoinder 
of  parties  plaintiff  can  be  raised  under  the  general  issue,  and  need 
not  be  taken  by  plea  in  abatement.®  It  is  also  held  that  in  ac- 
tions on  contract  the  misjoinder  of  parties  defendant  can  betaken 


103  Ind.  12  ;  Paden  v.  King,  30  Ind. 
181  ;  Sinton  v.  Steamboat  R.  R.  Rob- 
erts, 46  Ind.  476  ;  Ridenour  v.  Mayo, 
29  Ohio  St.  138  ;  State  v.  Bell  Teleph. 
Co.,  36  Ohio  St.  296  ;  38  Am.  Rep.  583  ; 
Pennsylvania  Co.  v.  Sloan,  125  111.  72. 

1.  Elliott  V.  Hart,  7  How.  Pr.  (N. 
Y.  Supreme  Ct.)  25  ;  Dole  v.  Manlev, 
II  How.  Pr.  (N.  Y.  Supreme  Ct.)  138. 

2.  Hudson  v.  Poindexter,  42  Miss. 
304 ;  Simmons  v.  Thomas,  43  Miss. 
31  ;  Melvin  v.  Clark,  45  Ala.  285  ;  Tay- 
lor V.  Littell,  21  La.  Ann.  665  ;  Silver- 
nagl  V.  Fluker,  21  La.  Ann.  188  ;  Den- 
tal Vulcanite  Co.  ^.  Wetherbee,  3 
Fish.  Pat.  Cas.  (U.S.)  87. 

It  has  been  held  not  a  fatal  defect 
for  an  answer  to  designate  the  orig- 
inal plaintiff  as  plaintiff,  although  his 
executrix  has  been  substituted  for 
him  as  plaintiff.  Williams  v.  Eiken- 
bury,    36  Neb.  478. 

3.  Seely  v.  Boon,  i  N.  J.  L.  138  ; 
Pate  V.  Bacon,  6  Munf.  ((Va.)  219; 
Jewett  V.  Burroughs,  15  Mass.  469; 
David  V.  David,  i  Greene  (Iowa)  427  ; 
Porter  v.  Cresson,  10  S.  &  R.  (Pa.) 
257  ;  Gilbert  v.  Nantucket  Bank,  5 
Mass.  97  ;  Miller  v.  Stettiner,  7  Bosw. 
(N.  Y.),  692  ;  Waterbury  v.  Mather,  16 
Wend.  (N.  Y.)  611  ;  Salisbury  v.  Gil- 
lett,  3  111.  290  ;  Synes  v.  State,  5  Port. 
(Ala.)  236;  Mann  v.  Carley,  4  Cow. 
(N.  Y.)  148  ;  Scull  V.  Briddle,  2  Wash. 
(U.  S.^  200  ;  Kincaird  v.  Howe,  10 
Mass.  205  ;  Smith  v.  Bowker,  i  Mass.' 
76  ;  Barnes  v.  Perine,  9  Barb.  (N.  Y.) 
202 ;  Christian  Soc.  v.  McCumber,  3 
Met.  (Mass.)  235  ;  Moss  v.  Flint,  13 
111.  570;  Pendleton  v.  Bank  of  Ky., 
I  T.  B.  Mon.  (Ky.)  174;  Carpenter  v. 


State,  8  Mo.  291  ;  Thompson  v.  Elliott, 

5  Mo.  118. 

Contra. — Rock  Island  v.  Steele,  31 
111-  543. 

4.  Bank  of  Havana  v.  Magee,  20 
N.  Y.  355  ;  Traver  v.  Eighth  Ave.  R. 
Co.,  3  Keyes  (N.  Y.)  497;  State  v. 
Bell  Teleph.  Co.,  36  Ohio  St.  296  ;  38 
Am.  Rep.  5S3  ;  Young  v.  South  Trede- 
gar Iron  Co.,  85  Tenn.  189  ;  4  Am.  St. 
Rep.  752. 

5.  Misnomer  in  Representative  Capacity. 
— The  rule  as  to  misnomer  of  de- 
fendants applies  to  a  misnomer  relat- 
ing to  the  representative  capacity  of  a 
defendant,  as  where  a  defendant  is 
sued  as  executor  when  he  is  an  ad- 
ministrator, or  vice  versa,  and  objec- 
tion must  be  taken  by  a  plea  in  abate- 
ment.   Clements  v.  Swain,  2  N.  H.  475. 

6.  Corporations.  —  Unless  the  mis- 
nomer of  a  corporation  is  taken  ad- 
vantage of  by  plea  it  is  waived,  as 
well  where  the  corporation  suffers  a 
default  as  where  it  answers.  Whittle- 
sey V.  Frantz,  74  N.  Y.  457. 

7.  In  Equity  a  plea  in  abatement  for 
misnomer  is  proper,  but  such  a  plea 
does  not  end  the  suit.  The  defendant 
after  he  has  pleaded  in  abatement  and 
disclosed  his  true  name  must  plead  in 
chief.  Dixon  v.  Cavenaugh,  i  Overt. 
(Tenn.)  365. 

8.  Mijler  v.  George,  30  S.  Car.  526. 

9.  Rhoads  v.  Booth,  14  Iowa  575; 
Gerry  v.  Gerry,  11  Gray  (Mass.)  382; 
Tate  V.  Citizens'  Mut.  F.  Ins.  Co.,  13 
Gray  (Mass.)  79;  Glover  z/.  Hunnewell, 

6  Pick.  (Mass.)  222;  Hill  v.  Davis,  4 
Mass.,  137;  Whiting  v.  Cook,  8  Allen 
(Mass.)  63. 


13 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Non-joinder. 


advantage  of  under  the  general  issue.*  In  New  York,  Missouri, 
and  Utah  the  objection  of  misjoinder  of  parties  must  be  taken  by 
answer  in  the  nature  of  a  plea  in  abatement  or  by  demurrer.® 

"Who  Can  Object.— One  who  is  properly  made  a  defendant  cannot 
object  to  the  joinder  of  other  parties  where  it  does  not  affect 
him.^ 

Time  for  Objection.— The  objection  of  misjoinder  should  properly 
be  taken  at  the  earliest  opportunity.* 

A  Plea  to  Several  Counts  must  be  good  as  to  all  of  them,  or  judg- 
ment will  be  given  against  the  pleader.* 

9.  Non-joinder — piea  or  Demurrer.— As  a  general  rule,  the  objec- 
tion of  the  non-joinder  of  proper  parties  plaintiff  or  defendant 
should  be  taken  advantage  of  by  plea  in  abatement  or  answer  in 
the  nature  thereof  when  the  objection  does  not  appear  on  the 
face  of  the  record,  and  by  demurrer  when  it  does  so  appear.® 


1.  Gray  v.  Palmers,  i  Esp.  135; 
Whiting  V.  Cook,  8  Allen  (Mass.)  63; 
Blight  V.  Ashley,  Pet.  (C.  C.)  16; 
Porter  v.  Harris,  i  Lev.  63;  Shirreflf 
V.  Wilks,  I  East  52;  Robeson  v.  Gan- 
derton,  9  C.  &  P.  476  ;  38  E.  C.  L.  191; 
Hannah  v.  Smith,  3  T.  R.  662;  Mana- 
han  V.  Gibbons,  19  Johns.  (N.  Y.)  109; 
Burnham  v.  Webster,  5  Mass.  270; 
Peebles  v.  Rand,  43  N.  H.  339; 
Browne  v.  Warner,  2  J.  J.  Marsh.  (Ky.) 
38;  Jenkins  v.  Hunt,  2  Rand.  (Va.) 
446. 

In  actions  of  tort  the  misjoinder  of 
proper  parties  defendant  can  be  taken 
advantage  of  only  by  a  plea  in  abate- 
ment. Warner  v.  Wilson,  4  Gal.  310; 
Harlem  v.  Emmert,  41  111.  320. 

2.  Hier  v^  Staples,  51  N.  Y.  136; 
Zabriskie  v.  Smith,  13  N.  Y.  322  ;  64 
Am.  Dec.  551;  Fosgate  v.  Herkimer 
Mfg.  Co.,  12  Barb.  (N.  Y.)  352  ;  aff'd 
12  N.  Y.  580;  Dillaye  v.  Parks,  31  Barb. 
(N.  Y.)  132;  Bayle  v.  Lawton,  23  N. 
Y.  Wkly.  Dig.  172;  Zimmerman  v. 
Schoenfeldt,  3  Hun  (N.  Y.)  692; 
Palmer  v.  Davis,  28  N.  Y.  242;  O'Brien 
V.  Glenville  Woolen  Co.,  50  N.  Y.  128; 
Fox  V.  Mayer,  54  N.  Y.  125;  Donahue 
V.  Bragg,  49  Mo.  App.  273;  Crenshaw 
V.  Ullman,  113  Mo.  633;  Preshaw  v. 
Dee,  6  Utah  360. 

Misjoinder  of  Defendants  in  Georgia. — 
In  Georgia  the  improper  joipder  of 
defendants  does  not  cause  an  abate- 
ment or  quashing  of  an  action,  but  the 
action  proceeds  against  the  others 
(proper  parties)  to  judgment  and  exe- 
cution in  the  same  manner  as  if  the 
defendants  found  not  liable  and  dis- 
charged    had     not     been     originally 


joined  as  defendants.  Wooten  v. 
Nail,  18  Ga.  609. 

3.  Misjoinder  of  Other  Defendants. — 
In  a  suit  for  an  infringement  of  a  pat- 
ent, a  citizen  of  the  district  in  which 
the  suit  is  brought,  and  who  is  a  de- 
fendant, cannot  successfully  demur  on 
the  ground  that  he  is  joined  as  de- 
fendant with  a  corporation  over  whom 
the  court  has  no  jurisdiction.  Cramer 
V.  Singer  Mfg.  Co.,  59  Fed.  Rep.  74. 

A  party  who  is  properly  a  defendant 
in  an  action  cannot  successfully  demur 
on  the  ground  of  misjoinder  of  parties 
defendant.  Bigelow  z/.  Sanford(Mich., 
1894),  57  N.  W.  Rep.  1037. 

4    Adams   v.  Adams,  64  N.   H.  224. 

5.  Plea  to  Several  Counts. — Where  a 
plea  in  abatement  for  the  misjoinder 
of  parties  is  pleaded  to  several  counts 
in  a  declaration,  and  is  bad  as  to  any 
one  of  the  counts,  it  must  be  held  bad 
altogether  and  judgment  of  respondeat 
ouster  given,  although  it  would  have 
been  a  good  plea  if  it  had  been  pleaded 
separately  to  the  other  counts.  Phil- 
lips V.  Claggett,  ID  M.  &.  W.  102  ;  6 
Jur.  629. 

6.  Gock  V.  Keneda,  29  Barb.  (N.  Y.) 
120  ;  Cushman  v.  Family  Fund  Soc.  (C. 
PL),  13  N.  Y.  Supp.  428;  Davis  v. 
Bechstein,  69  N.  Y.  440,  25  Am.  Rep. 
218;  Carr  v.  Security  Ins.  Co.,  109 
N.  Y.  504;  Risley  v.  Wightman,  13 
Hun  (N.  Y.)  163  ;  Ostrander  v.  Weber, 
114  N.  Y.  95  ;  Browning  v.  Marvin, 
22  Hun  (N.  Y.)  547  ;  Reed  v.  Hayt,  51 
N.  Y.  Super.  Ct.  121;  log  N.  Y.  659; 
Brown  v.  Brown,  29  Hun  (N.  Y.)  498  ; 
Fisher  v.  Hall,  41  N.  Y.  416  ;  Farwell 
V.    Importers',    etc.,    Bank,  90   N.  Y. 


14 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Non-joinder. 


As  to  Defendants,  there  seems  to  be  no  question  that  the  objection 
must  be  thus  raised,  whether  the  action  be  on  contract  or  in 
tort.i 

In  Actions  for  Torts  the  non-joinder  of  proper  parties  plaintiff 
must  be  taken  advantage  of  by  a  plea  in  abatement  when  it  is  not 
apparent  on  the  face  of  the  record  ;  and  if  not  so  taken,  all  the 
defendant  can  do  is  to  restrict  the  damages  to  the  interest  of  the 
plaintiff  or  plaintiffs  suing.* 

Plaintiffs  in  Contract.— In  actions  on  contract  it  has  been  held  in 
many  cases  that  the  non-joinder  of  proper  parties  plaintiff  could 
be  taken  advantage  of  under  the  general  issue  without  a  plea  in 


483;  Karelsen  v.  Sun  Fire  Office,  45 
Hun  (N.  Y.)  144;  Arnstein  v.  Haulen- 
beck  (C.  PI.),  34  N.  Y.  St.  Rep.  297  ; 
Blount  z/.  Wetherell,  32  Hun  (N.Y.)  386; 
Wemple  v.  McManus  (Super.  Ct.),  39 
N.  Y.  St.  Rep.  141;  Sullivan  v.  New 
York,  etc.,  Cement  Co.,  119  N.  Y.  348  ; 
Zabriskie  v.  Smith,  13  N.Y.  322;  64  Am. 
Dec.  551  ;  Maxwell  v.  Pratt,  24  Hun 
(N.  Y.)  448  ;  Hallem  v.  Jones,  2  Misc. 
Rep.  (N.  Y.  C.  PI.)  249;  Stelling  v. 
Grabowsky  (Supreme  Ct.),  46  N.  Y. 
St.  Rep.  700  ;  19  N.  Y.  Supp.  280 ;  Jem- 
mison  v.  Kennedy,  55  Hun  (N.  Y.)  47  ; 
Douglass  V.  Leonard  (C.  PI.),  44  N.  Y. 
St.  Rep.  293  ;  18  N.  Y.  Supp.  591  ;  Le 
Page  V.  McCrea,  i  Wend.  (N.Y.)  164;  19 
Am.  Dec.  469;  Baldwin  v.  Second  Street 
Cable  Co.,  77  Cal.  390;  Williams  v. 
Patrons  of  Husbandry  (Mo.,  1886),  5 
West.  Rep.  105;  State  v.  True,  20  Mo. 
App.  176;  Atkinson  v.  Mott,  102  Ind. 

431- 

1.  Allen  V.  Lucket,  3  J.  J.  Marsh. 
(Ky.)  164;  Com.  v.  Davis,  9  B.  Mon. 
(Ky.)  128  ;  Moore  v.  Russell,  2  Bibb 
(Ky.)443;  Andrews  v.  Allen,  4  Harr. 
(Del.)  452;  White  v.  Cushing,  30  Me. 
267 ;  Robinson  v.  Robinson,  10  Me. 
240;  Winslow  z/.  Merrill,  11  Me.  127; 
State  V.  Chandler,  79  Me.  172  ;  Nealley 
V.  Moulton,  12  N.  H.  485  ;  Gove  v. 
Lawrence,  24  N.  H.  128  ;  Powers  v. 
Spear,  3  N.  H.  35  ;  Exum  v.  Davis, 
ID  Rich.  (S.  Car.)  357;  Storey  v.  Mc- 
Neill, Harp.  (S.  Car.)  173  ;  Hamilton  v. 
Buxton,  6  Ark.  24;  Allen  v.  Sewall,  2 
Wend.  (N.  Y.)  327  ;  Le  Page  v.  Mc- 
Crea, I  Wend.  (N.  Y.)  164 ;  19  Am. 
Dec.  469;  Robertson  v.  Smith,  18 
Johns.  (N.  Y.)  459;  9  Am.  Dec.  227; 
Williams  v.  Allen,  7  Cow.  (N.  Y.)3i6; 
Ziele  V.  Campbell,  2  Johns.  Cas.  (N.Y.) 
382;  Gay  z/.  Cary,  9  Cow.  (N.  Y.)44; 
Pharis  v.  Gere,  14  N.  Y.  Wkly.  Dig. 
387;  Sheltonz/.  Banks,  loGray  (Mass.) 


401  ;  Barstow  v.  Fossett,  11  Mass.  250; 
McGregor  v.  Balch,  17  Vt.  562  ;  Mer- 
shon  V.  Hobensack,  22  N.  J.  L.  373  ; 
Lieberman  v.  Brothers  (N.  J.,  1S93),  26 
Atl.  Rep.  828;  Hine  v.  Houston,  2 
Greene  (Iowa)  161;  Hurley  v.  Roche, 
6  Fla.  746;  Potter  v.  McCoy,  26  Pa.  St. 
458;  Horton  v.  Cook,  2  Watts  (Pa.)  40; 
Wilson  V.  Wallace,  8  S.  &.  R.  (Pa.)  55; 
Merrick  v.  Bank  of  Metropolis,  8  Gill 
(Md.)  59;  Clementson  v.  Beatty,  i 
Cranch  (C.  C.)  178;  Miner  v.  Mechan- 
ics' Bank,  I  Pet.  (U.  S.)  46;  Hender- 
son V.  Hammond,  19  Ala.  340;  Barnett 
V.  Watson,  i  Wash.  (Va.)  372;  Conley 
V.  Good,  I  111.  135;  Mason  v.  Fairfield, 
2  Ind.  84;  Gilbert  v.  Allen,  57  Ind. 
524;  McArthur  v.  Ladd,  5  Ohio  St.  517; 
Ritter  v.  Hamilton,  4  Tex.  325;  Davis 
V.  Willis,  47  Tex.  154;  Bowen  v.  Culp, 
36  Mich.  224;  Coffee  v.  Eastland,  i 
Cooke  (Tenn.)  159. 

2.  Edwards  v.  Hill,  11  111.  22;  John- 
son V.  Richardson,  17  111.  302;  Frazier 
V.  Spear,  2  Bibb  (Ky.)  385;  Bell  v. 
Layman,  i  T.  B.  Mon.  (Ky.)  40;  15 
Am.  Dec.  83;  Hobbs  v.  Hatch,  48  Me. 
55;  Morley  v.  French,  2  Cush.  (Mass.) 
130;  Phillips  V.  Cummings,  11  Cush. 
(Mass.)  469;  Thompson  v.  Hoskin,  11 
Mass.  419;  Chandler  v.  Spear,  22  Vt. 
388  ;  Briggs  v.  Taylor,  35  Vt.  57  ; 
White  V.  Webb,  15  Conn.  302;  Johnson 
V.  Ransom,  24  Conn.  531;  Chouteau  v. 
Hewitt,  ID  Mo.  130;  True  v.  Congdon, 
44  N.  H.  48;  Wilson  v.  Gamble,  9 
N.  H.  74;  Garvin  v.  Paul,  47  N.  H.  158; 
Reading  R.  Co.  v.  Boyer,  13  Pa.  St. 
497;  Dubois  V.  Glaub,  52  Pa.  St.  238  ; 
Walworth  v.  Abel,  52  Pa.  St.  370 ; 
Winters  v.  McGhee,  3  Sneed  (Tenn.) 
128;  Gilbert  v.  Dickerson,  7  Wend. 
(N.  Y.)  449  ;  22  Am.  Dec.  592;  Wheel- 
wright V.  De  Peyster,  i  Johns.  (N.  Y.) 
471. 


15 


Kinds  of  Pleas.        ABATEMENT  IN  PLEADING. 


Non-joinder. 


abatement  or  answer  in  the  nature  thereof;*  but  this  is  not  a 
universal  rule.* 

Executors  and  Administrators.— Objection  to  non-joinder  of  executors 
or  administrators,  either  as  plaintiffs  or  defendants,  it  has  been 
held,  must  be  raised  by  plea  in  abatement.* 

Partners.— And  the  same  rule  has  been  applied  to  partners 
plaintiff  or  defendant.* 


1.  Addison  v.  Overend,  6  T.  R.  770; 
Scott  V.  Godwin,  i  B.  &  P.  73;  Snel- 
grove  V.  Hunt,  2  Stark  424  ;  3  E.  C.  L. 
473;  Wiggins  V.  Cummings,  8  Allen 
(Mass.)  353;  Baker  v.  Jewell,  6  Mass. 
460,  4  Am.  Dec.  162;  Thompson  v.  Hos- 
kin,  II  Mass.  420;  Wright  v.  Post,  3 
Conn.  142;  Pitkin  v.  Roby,  43  N.H.  139; 
Doremus  v.  Selden,  19  Johns.  (N.  Y.) 
213;  Robertson  v.  Smith,  18  Johns. 
(N.  Y.)  459  ;  9  Am.  Dec.  227;  Dob  v. 
Halsey,  16  Johns.  (N.  Y.)  34;  8  Am. 
Dec.  293;  Ziele  v.  Campbell,  2  Johns. 
Cas.  (N.  Y.)  384;  Snell  v.  Deland,  43 
111.  323;  Smith  V.  Crichton,  33  Md.  103; 
Duval  V.  Mayson,  23  Ark.  30;  Hicks  z/. 
Branton,  21  Ark.  189;  Hoard  z/. Wilcox, 
47  Fa.  St.  51. 

2.  White  V.  Brooks,  43  N.  H.  409; 
Langs'.  Whidden,  2  N.  H.  435;  Garner 
V.  Tiffany,  Minor  (Ala.)  167;  Dorseyz/. 
Lawrence,  Hard.  (Ky.)  517.  See  also 
authorities  cited  under  note  i. 

Part  Owners  of  ChatteL — If  one  of  sev- 
eral part  owners  of  a  chattel  sues  alone, 
the  defendant  can  take  advantage  of 
the  fact  only  by  a  plea  in  abatement. 
Addison  v.  Overend,  6  T.  R.  766;  Sedg- 
worth  V.  Overend,  7  T.  R.  279. 

Libel  for  Salvage. — In  a  libel  for  salv- 
age the  objection  "  that  there  are  other 
persons  who  co-operated  with  the  libel- 
lants  in  rendering  the  services  for 
which  the  libel  is  filed,  and  who  should 
be  joined,"  is  in  the  nature  of  a  plea  in 
abatement,  and  if  valid  is  waived  un- 
less taken  by  answer  or  exception  to 
the  libel  in  the  court  of  original  juris- 
diction. The  Camanche,  8  Wall.  (U. 
S.)476. 

Non-joinder  of  Plaintiff's  Husband. — 
Under  the  New  Jersey  practice  act, 
notice  of  the  non-joinder  of  plaintiff's 
husband  must  be  given  in  order  to 
make  it  a  defence  at  the  trial.  Brady 
V.  Potts  (N.  J.,  1887),  II  Atl.  Rep.  345. 

In  Equity. — An  objection  to  the  non- 
joinder of  parties  plaintiff  on  the 
ground  that  the  plaintiff  is  a  bankrupt, 
and  that  his  assignee  in  bankruptcy  is 
not  joined  as  a  party,  cannot  be  prop- 
erly set  up  in  an  answer  in  equity,  but 


should  be  raised  by  a  plea  in  abate- 
ment. Kittredge  v.  Claremont  Bank, 
3  Story  (U.  S.)  590. 

3.  Gordon  v.  Goodwin,  2  Nott  &  M. 
(S.  Car.)  70;  10  Am.  Dec.  573  ;  Newton 
V.  Cocke,  ID  Ark.  169  ;  Lillard  v.  Lil- 
lard,  5  B.  Mon.  (Ky.)  340;  Hunt  v.  Kear- 
ney, 3  N.  J.  L.  721. 

4.  Smith  V.  Cooke,  31  Md.  174  ;  100 
Am.  Dec.  58;  McDonald  v.  Western 
Refrigerating  Co.,  35  111.  App.  283; 
Puschel  w.  Hoover,  16  111.  340;  Thomp- 
son V.  Strain,  16  111.  369;  Deal  v.  Bogue, 
20  Pa.  St.  228;  57  Am.  Dec.  702;  Bellas 
V.  Fagely,  19  Pa.  St.  273;  Chorpenning 
V.  Royce,  58  Pa.  St.  474;  Alexander  v. 
McGinn,  3  Watts  (Pa.)  220;  Dorsey  v. 
Lawrence, Hard.  (Ky.)5i7;  Chappell  !». 
Proctor,  Harp.  (S.  Car.)  49;  Clement- 
son  V.  Beatty,  i  Cranch  (C.  C.)  178; 
Coffee  V.  Eastland,  i  Cooke  (Tenn.)  159. 

Cannot  Show  Partnership  under  Gen- 
eral Denial. — Under  a  mere  denial  in 
an  answer  of  an  alleged  partnership  a 
defendant  cannot  claim  or  show  that 
there  are  other  persons  interested  in 
the  firm  who  should  have  been  made 
plaintiffs.  Karelsen  v.  Sun  Fire  Office, 
45  Hun  (N.  Y.)  144. 

Non-joinder  of  Partners  as  Plaintiffs.— 
Where  plaintiff  declares  in  assumpsit, 
the  objection  that  other  persons  were 
partners  with  defendant  in  the  busi- 
ness in  which  the  contract  is  alleged  to 
have  been  made,  and  should  have  been 
joined  as  defendants,  is  matter  of 
abatement,  and  is  only  available  when 
pleaded.  If  defendant  fails  to  plead  it 
in  abatement,  plaintiff  may  prove  the 
contract  of  the  firm  and  the  partner- 
ship and  have  judgment  against  de- 
fendant alone  for  the  whole  debt,  every 
partner  being  liable  to  creditor  for  firm 
debts.  Smith  v.  Cooke,  31  Md.  174  ; 
100  Am.  Dec.  58. 

Need  not  Prove  Knowledge  of  Partner- 
ship.— Where  the  defendant  pleads  in 
abatement  the  non-joinder  of  his  part- 
ners who  were  joint  promisors  with 
him,  in  order  to  support  the  plea  he  is 
not  obliged  to  prove  that  the  plaintiff 
when  he  contracted  knew  he  was  deal- 


16 


Kinds  of  Pleas.        ABATEMENT  TN  PLEADING. 


Nonjoinder. 


When  by  Demurrer.— Where  the  objection  appears  on  the  face  of  the 
record,  the  question  should  be  raised  by  demurrer,  it  seems  to  be 
generally  held.^  To  warrant  a  demurrer  it  should  appear  from 
the  record  that  the  omitted  party  is  alive.* 

At  Any  Stage  of  Action.— In  some  cases  it  has  been  held  that  the 
defect  of  the  non-joinder  of  proper  parties  defendant  may  be 
taken  advantage  of  at  any  stage  of  the  action  and  need  not  be 
raised  by  plea  or  demurrer.* 

Requisites  of  Plea.— A  plea  in  abatement  for  non-joinder  should  give 
the  names  of  the  parties  omitted,*  and  show  that  they  are  alive 


ing  with  a  partnership.  Norwood  v. 
Sutton,  I  Cranch  (C.  C.)  327. 

Plea  Good  if  only  Part  of  Claim  Joint. — 
In  an  action  against  A.,  B.,  and  C.  for 
work  done,  they  pleaded  that  the  work 
was  done  for  them  jointly  with  an- 
other, and  on  trial  it  was  proved  to  be 
so  as  to  part  of  the  work.  Held,  that 
the  plea  was  an  answer  to  the  action. 
Hill  V.  White,  6  Bing.  N.  Cas.  23;  37 
E.  C.  L.  263;  8  Scott  245;  3  Jur.  1077. 

Joint  Contractors  as  Variance. — The 
non-joinder  of  one  of  several  joint  con- 
tractors as  defendant,  whose  liability 
is  shown  by  the  evidence,  can  be  taken 
only  by  plea  in  abatement,  and  cannot 
be  taken  advantage  of  under  the  gen- 
eral issue  on  the  ground  of  a  variance 
between  the  pleading  and  proof.  Wil- 
son V.  McCormick,  86  Va.  qgs. 

Joint  Contractors — Jury  Charge. — In  an 
action  on  a  contract,  to  wit,  to  recover 
a  loan  which  defendant  claims  was 
made  to  him  jointly  with  another,  the 
failure  to  join  such  other  person  as  de- 
fendant can  be  taken  advantage  of  only 
by  a  plea  in  abatement; and  where  the 
defendant  fails  to  interpose  such  a 
plea,  it  is  error  for  the  trial  justice  to 
charge  the  jury  "  that  if  they  find  the 
loan  was  made  to  defendant  and  such 
other  person  jointly,  they  must  find 
for  defendant."  Pearce  v.  Pearce,  67 
111.  207. 

Members  of  Association. — In  an  ac- 
tion against  members  of  an  association 
individually,  if  plaintiff  names  only 
part  of  those  who  should  be  named, 
defendants  should  interpose  a  plea  in 
abatement;  and  if  they  do  not  do  so, 
those  who  are  named  must  submit  to 
judgment  against  them.  Davison  v. 
Holden,  55  Conn.  103. 

1.  Note  6,  p.  14,  and  cases  there  cited. 
Where  it  is  alleged  in  a  complaint  that 
the  plaintiff  is  the  owner  of  a  note  by 
means  of  an  indorsement  from  a  firm 
of  which  he  is  a  member,  the  suffi- 
ciency of  the  indorsement  can  be 
tested  only  by  demurrer  for  defect  of 


parties.  It  cannot  be  presented  in  an 
attack  on  the  complaint  in  the  assign- 
ment of  errors.  Eichelberger  v.  Old 
Nat.  Bank,  103  Ind.  402;  Fulton  v. 
Loughlin,  118  Ind.  288. 

Overruling  of  Demurrer  does  not  Pre- 
vent a  Plea. — To  a  libel  in  admiralty 
for  a  breach  of  a  charter  party,  the  de- 
fendant may  plead  in  abatement  that 
there  are  other  owners  and  necessary 
parties,  notwithstanding  the  fact  that 
a  demurrer  for  an  apparent  variance 
between  the  libel  and  the  charter  party 
had  been  previously  overruled.  Card 
V.  Hines,  35  Fed.  Rep.  598. 

2.  Gilbert  v.  Allen,  57  Ind.  524;  Davis 
V.  Willis,  47  Tex.  154;  Bowen  v.  Culp, 
36  Mich.  224;  Fowler  v.  Rickerby,  3 
Scott  N.  R.  138;  2  M.&  G.  760;  9D0WI. 
Pr.  Cas.  682. 

Contra. — Where  from  plaintiff's 
pleadings  it  appears  that  a  joint  con- 
tractor with  the  defendants  has  not 
been  made  a  party,  and  there  is  no 
averment  of  his  death,  the  objection  of 
his  non-joinder  may  be  raised  by 
demurrer,  as  well  as  by  a  plea  in 
abatement.  State  v.  Chandler,  79  Me. 
172. 

3.  McGregor  v.  Balch,  17  Vt.  562; 
Merrick  v.  Bank  of  Metropolis,  8  Gill 
(Md.)  5g;  Harwood  v.  Roberts,  5  Me. 
441;  Nealley  v.  Moulton,  12  N.  H.  485; 
Ela  z/.  Card,  2  N.  H.  175;  9  Am.  Dec. 
46;  Cook  V.  Berkley,  3  Call  (Va.)  378; 
Newell  V.  Wood,  i  Munf.  (Va.)  555; 
Jordan  v.  Wilkins,  3  Wash.  (Va.)  no; 
Saunders  v.  Wood,  i  Munf.  (Va.)  406; 
Leftwich  v.  Berkeley,!  Hen.  &  M.  (Va.) 
61. 

On  Appeal. — Where  in  an  action  on  a 
bond  it  appears  by  the  declaration  that 
one  of  the  obligors  named  in  the  bond 
is  not  joined  as  a  defendant  in  the  ac- 
tion thereon,  a  plea  in  abatement  is  not 
necessary  to  raise  this  objection,  but  it 
may  be  taken  on  error  to  review  a 
judgment  by  default.  Cummings  v. 
People,  50  111.  132. 

4.  Tweedy  v.   Jarvis,  27  Conn.   42; 


I  Encyc.  PI.  &  Pr.— 2. 


17 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Non-joinder. 


and  within  the  jurisdiction  of  the  court  and  within  reach  of  its 
process.*  It  has  been  held  that  it  need  not  state  the  place  of 
abode*  or  the  age  of  the  party.^  Where  the  omitted  parties 
are  executors,  it  should  show  that  they  qualified  and  are  acting  as 
such.*  Pleas  in  abatement  for  non-joinder  should  be  clear, 
definite,  and  certain,  and  should  show  the  interest  in  the  matter 
of  the  omitted  party  or  parties.^     But  they  need  not  negative 


American  Express  Co.  v.  Haggard,  37 
111.  465;  87  Am.  Dec.  257;  Mershon  v. 
Hobensack,  22  N.  J.  L.  372;  Aulanier 
V.  Governor,  i  Tex.  653;  Wadsworth  z/. 
Woodford,  i  Day  (Conn.)  28;  Wilson 
V.  Nevers,  20  Pick.  (Mass.)  20;  Fink 
V.  Naples,  15  Ind.  297;  Schwartz  v. 
Wechler,  23  Civ.  Pro.  Rep.  (N.  Y.  C. 
PI.)  21;  29  Abb.  N.  Cas.  (N.  Y.)  332;  2 
Misc.  Rep.  (N.  Y.)  67;  Crellin  v.  Brook, 
I  C.  &  K.  571;  47  E.  C.  L.  570;  Case  v. 
Minot,  158  Mass.  577;  Baker  v.  Reese, 
150  Pa.  St.  44. 

1.  Goodhue  v.  Luce,  82  Me.  222; 
Door  County  v.  Keogh,  77  Wis.  24; 
Carico  v.  Moore,  4  Ind.  App.  20;  Palmer 
V.  Field,  76  Hun  (N.  Y.)  229;  Holt  v. 
Streeter,  74  Hun  (N.  Y.)  538. 

Should  show  Parties  Alive. — In  an  ac- 
tion to  recover  possession  of  land  the 
defendant  pleaded  in  abatement  "that 
the  premises  in  the  writ  and  declara- 
tion mentioned  were  at  the  time  named 
in  said  writ  and  declaration  in  the  pos- 
session of  him  the  said  Robert  Robert- 
son (defendant)  together  with  one 
Isaac  Plummer,  and  not  in  the  posses- 
sion of  said  Robertson  alone,  and  this 
he  is  ready  to  verify.  Wherefore,  in- 
asmuch as  the  said  Isaac  Plummer  is 
not  named  in  said  writ  and  declaration 
together  with  the  said  Robert  Robert- 
son, he  prays  judgment  of  said  writ 
and  declaration  that  the  same  may  be 
quashed,  etc."  Held,  bad  on  demurrer 
for  not  alleging  the  omitted  person 
to  be  alive  and  within  the  jurisdiction. 
Furbish  v.  Robertson,  67  Me.  35. 

Bad  if  shows  Parties  not  within  Juris- 
diction.— A  plea  in  abatement  for  non- 
joinder of  co-contractors  is  bad  if  it 
shows  some  of  the  co-contractors  are 
non-residents  within  the  jurisdiction, 
for  by  3  &  4  Will.  IV,  ch.  42,  §  8,  defend- 
ant is  required  to  state  that  all  are 
resident  within  the  jurisdiction,  and 
must  verify  the  plea  by  affidavit. 
Gell  V.  Curzon,  4  D.  &  L.  810;  11  Jur. 
737- 

Ordinary  Language  Sufficient. — Al- 
though in  a  plea  of  non-joinder  in 
abatement  it  must  be  averred  that  the 
omitted  defendant  is  alive  and  within 


the  jurisdiction  of  the  court,  it  is  suf- 
ficient if  this  is  done  in  language 
which  ordinarily  imports  this  ;  hence 
where  the  answer  alleged  "that  the 
defendants  and  one  K.  (the  omitted 
party)  are  co-partners  doing  business 
at  Belmont,  Alleghany  County,  New 
York,  by  the  name  and  style  of  S.  & 
K.,  and  that  the  note  set  out  in  the 
complaint  is  the  note  of  said  firm  in  its 
firm  business,"  it  was  held  to  sufficient- 
ly import  that  the  omitted  party  was 
living  and  within  the  jurisdiction,  and 
to  be  good.  Lefferts  v.  Silsby,  54  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193. 

Need  not  Allege  Positively. — In  an  ac- 
tion against  the  city  of  Sheboygan, 
Wisconsin,  to  recover  damages  for  in- 
juries caused  by  a  defective  street,  it 
is  a  good  plea  in  abatement  for  de- 
fendant to  state  the  name  of  the  person 
whose  negligence  caused  the  defect  in 
the  street  and  allege  that  he  is  a  resi- 
dent of  the  city,  and  it  need  not  be  al- 
leged that  he  is  living  within  the  juris- 
diction of  the  court.  Raymond  v. 
Sheboygan,  70  Wis.  318. 

2.  Besidence. — A  plea  in  abatement 
for  non-joinder  need  not  set  forth  the 
places  of  abode  and  additions  of  the 
persons  omitted.  Ela  v.  Rand,  3  N.  H. 
95- 

3.  Age. — A  plea  in  abatement  for 
the  non-joinder  of  a  person  alleged  to 
be  a  joint  contractor  with  defendant 
need  not  allege  that  the  omitted  person 
was  of  full  age  when  he  entered  into 
the  contract.  Roberts  v.  McLean,  16 
Vt.  608;  42  Am.  Dec.  529. 

4.  Executors. — Where  a  plea  of  non- 
joinder of  co-executors  as  plaintiffs 
does  not  show  where  they  reside  and 
that  they  were  executors  at  the  time 
the    suit   was  commenced,  it   is  bad. 

Beach  v.  Baldwin,  9  Conn.  476. 

Where  an  action  affects  executors,  a 
plea  in  abatement  "  that  there  are  other 
executors  not  named  in  the  writ  "  is  bad 
if  it  does  not  allege  that  the  omitted 
executors  qualified  and  took  on  them- 
selves the  execution  of  the  will.  Bur- 
row V.  Sellers,  i  Hayvv.  (N.   Car.)  501. 

5.  Interest    of    Omitted    Parties. — A 


18 


Kinds  of  Pleas.        ABA  TEMENT  IN  PLEADING.  Defects  in  Process. 


matter  which  would  be  insufficient  in  a  replication  thereto,* 

10.  Privilege  and  Non-tenure. — The  objection  of  a  personal 
privilege  of  a  defendant  should  in  general  be  raised  by  a  plea  in 
abatement,*  and  the  same  rule  has  been  held  in  real  actions  in 
relation  to  the  claim  of  non-tenure  or  disclaimer.^ 

11,  Defects  in  Process  and  Proceedings. — Defects  in  process  not 
appearing  on  the  face  of  the  record  and  which  do  not  render  it 
void  must  be  taken  by  a  plea  in  abatement,  or  they  are  waived,* 


plea  in  abatement  predicated  on  the 
non-joinder  of  parties  defendant 
should  set  forth  definitely  the  nature 
and  intent  of  the  interest  of  each  per- 
son who  is  claimed  to  be  a  necessary 
party.  State  v.  Goodnight,  70  Tex. 
682. 

Interest  in  Fund. — Where  a  defend- 
ant is  sued  to  recover  a  fund  in  his 
hands,  an  answer  by  him  alleging  that 
there  are  other  persons  besides  plain- 
tiff who  claim  an  interest  in  the  fund 
and  from  whom  he  should  be  protected 
is  bad  and  insufficient  for  not  setting 
out  the  names  of  such  parties  and  stat- 
ing their  interest  in  the  fund.  John- 
son V.  Gooch  (N.  Car.,  1894),  19  S.  E, 
Rep.  62. 

Plea  of  No  Partnership. — Where  the 
maker  of  a  note  who  was  sued  alone  on 
a  note  signed  in  his  name  with  the  ad- 
dition of  "&  Co."  pleaded  "no  part- 
nership," such  plea  is  insufficient  to 
prevent  judgment;  for,  if  true,  it  shows 
no  one  else  ought  to  have  been  sued 
but  him.  To  raise  the  question  of  non- 
joinder he  should  have  pleaded  it. 
Hirsch  v.  Oliver  (Ga.,  1893),  18  S.  E. 
Rep,  154. 

Tenant  in  Common. — Where  defend- 
ant pleads  in  abatement  the  non- 
joinder of  tenants  in  common  of  a 
dam,  he  should  allege  the  dam  to  be 
real  estate  or  the  plea  is  bad.  South- 
ard V.  Hill,  44  Me.  92:69  Am.  Dec.  85, 

Claiming  under  Different  Titles. — A 
plea  in  abatement  setting  up  "that 
plaintiffs  and  defendants  are  tenants 
in  common  with  other  different  owners 
of  certain  land  (of  which  the  land  in 
suit  forms  part)  and  asking  that  the 
suit  abate  until  such  other  owners  are 
brought  in,"  is  bad  on  demurrer  where 
it  appears  that  defendants  claim  the 
specific  lands  sued  for  under  deeds 
from  such  other  persons  or  their  ven- 
dors and  have  made  no  attempt  to 
bring  them  in  as  parties.  Smith  v. 
Powell,  5  Tex.  Civ.  App.  373. 

As  a  Separate  Defense. — The  non- 
joinder of    proper    parties    must    be 


distinctly  pleaded  as  a  separate  and 
distinct  defense;  hence  where  in  an 
action  on  contract  the  defendant's  an- 
swer alleged  that  the  contract  was 
made  with  the  plaintiff  and  a  third 
person  and  that  they  had  not  per- 
formed it  on  their  part,  held,  it  did  not 
raise  the  question  of  non-joinder, 
Chaffee  v.  Morss,  67  Barb.  (N.  Y.)252; 
5  Thomp.  &  C.  (N.  Y.)  708. 

1.  Personal  Discharge  of  Co  promisor. 
— A  plea  in  abatement  lies  for  the  non- 
joinder of  a  joint  contracting  party. 
Facts  which  merely  go  to  the  personal 
discharge  of  such  co-promisor,  such  as 
death,  insolvency,  etc,  need  not  be 
alleged  in  the  plea,  because  they  would 
be  insufficient  in  a  replication  thereto 
and  hence  need  not  be  anticipated  and 
included  by  the  plea,  Goodhue  v. 
Luce,  82  Me.  222. 

Discontinuance  as  to  One  of  Two  Defend- 
ants.— Where  plaintiff  discontinues 
after  verdict  as  to  one  of  two  defend- 
ants sued  jointly,  it  amounts  merely 
to  an  amendment  and  does  not  entitle 
the  other  defendant  to  plead  in  abate- 
ment matter  which  would  have  been 
a  good  plea  in  abatement  had  such 
defendant  originally  sued  alone. 
Schweyer  v.  Oberkoetter,  25  111.  App. 
183. 

2.  Shelby  v.  Johnson,  7  Humph. 
(Tenn.)  503;  Grove  v.  Campbell,  9 
Yerg.  (Tenn.)  7, 

3.  Prescott  v.  Hutchinson,  13  Mass. 
439;  Otis  V.  Warren,  14  Mass.  240; 
Fogg  V.  Fogg,  31  Me.  302;  Dewey  v. 
Brown,  2  Pick.  (Mass.)  387;  Wyman  v. 
Brown,  50  Me.  139;  Brown  v.  Milti- 
more,  2  N.  H.  442;  Young  v.  Tarbell, 
37  Me.  509;  Fosdick  v.  Gooding,  i  Me, 
54;  Mills  V.  Pierce,  2  N.  H.  10;  New- 
begin  v.  Langley,  39  Me.  200;  63  Am. 
Dec.  612;  Campbell  v.  Wallace,  12  N. 
H.  362. 

4.  Pattee  v.  Lowe,  35  Me.  121;  Ste- 
vens V.  Ewer,  2  Met.  (Mass.)  74;  Frank- 
fort Bank  v.  Anderson,  3  A.  K.  Marsh. 
(Ky.)  i;  Bliss  v.  Connecticut,  etc.,  R. 
Co.,    24   Vt.  428;  Owings  V.    Beall,   3 


19 


Kinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Service,  etc. 


This  is  also  the  rule  as  to  all  irregularities  in  proceedings  which 
are  not  jurisdictional.* 

12.  Variance— How  Objection  Raised. — A  variance  between  the  writ 
and  the  declaration  or  count  should  be  taken  advantage  of  by  a 
plea  in  abatement.* 

Oyer.— A  plea  in  abatement  for  a  variance  should  crave  oyer 
of  the  originals,*  which  may  be  done   in  one  paragraph.* 

Enrollment. — The  plea  should  set  out  the  originals  and  make 
profert  of  and  enroll  the  copies  served.* 

Enforcement  of  Rules. — In  many  of  the  states  oyer  of  the  writ 
is  still  allowed,  and  in  them  the  rules  as  to  variance  are  enforced.® 

13.  Service,  etc. — Taking  Advantage  of  Defects.-Where  the  court  has 
jurisdiction  and  there  has  been  an  appearance,  defects  in  the  ser- 
vice of  process  should  in  general  be  taken  advantage  of  by  a  plea 
in  abatement.'' 


Litt.  (Ky.)  103;  Jordan  v.  Bell,  8  Port. 
(Ala.)  53;  McCrea  v.  Starr,  i  Murph, 
(N.  Car.)  252;  Payne  v.  Grim,  2  Munf. 
(Va.)297;  Dudley  z/.  Carmolt,  i  Murph. 
(N.  Car.)  339;  Miller  v.  Gages,  4  Mc- 
Lean (U.  S.)  436;  Johnson  v.  King,  20 
Ala.  270. 

1.  Cabell  V.  Payne,  2  J.  J.  Marsh. 
(Ky.)  134;  Borden  v.  Fowler,  14  Ark. 
471;  Cowell  V.  Oxford,  6  N.  J.  L.  432. 

2.  Wilson  V.  Shannon,  6  Ark.  196; 
Duvall  V.  Craig,  2  Wheat.  (U.  S.) 
45;  Turner  v.  Brown,  9  Ala.  866; 
Prince  v.  Lamb,  i  111.  378;  Cruik- 
shank  v.  Brown,  10  111.  75;  Carpenter 
V.  Hoyt,  17  111.  529;  McKennaz'.  Fisk, 
t  How.  (U.  S.)  241;  Garland  v.  Chattle, 
12  Johns.  (N.  Y.)  430;  Chirac  v.  Rei- 
nicker,  11  Wheat.  (U.  S.)  280. 

On  Appeal. — A  variance  between  the 
writ  and  the  declaration  is  unavail- 
able when  presented  for  the  first  time 
in  an  appellate  court;  such  an  ob- 
jection must  be  taken  by  a  plea  in 
abatement.  Fonville  v.  Monroe,  74 
111.  126. 

Where  there  is  a  Total  Departure  from 
the  writ  in  the  declaration  it  is  not 
necessary  to  plead  the  variance  in 
abatement,  but  the  declaration  may 
be  stricken  from  the  files  on  motion. 
Chapman  v.  Spence,  22  Ala.  588. 

3.  Goldsticker  v.  Stetson,  21  Ala. 
404;  Chapman  v.  Davis,  4  Gill  (Md.) 
166;  Nichols z/.  Smalley,  7  Blackf.  (Ind.) 
200;  Lary  v.  Evans,  35  N.  H.  172. 

4.  Pitman  v.  Perkins,  28  N.  H.  90. 
It  is  immaterial  whether  oyer  be 
craved  of  the  writ  and  declaration  or 
only  of  the  writ,  where  the  declaration 
is  incorporated  into  the  writ.  Lyman 
V.  Dodge,  13  N.  H.  197. 

Where  the  Writ  Constitutes  a  Fart  of  the 


Record  it  is  not  necessary  for  the  de- 
fendant to  crave  oyer  of  the  writ  as 
preliminary  to  presenting  a  plea  in 
abatement.  Pierce  v.  Lacy,  23  Miss. 
193- 

5.  Garner  v.  Johnson,  22  Ala.  494; 
Nelson  v.  Sweet,  4  N.  H.  256;  Findlay 
V.  Pruitt,  9  Port.  (Ala.)  195;  Tucker 
V.  Perley,  5  N.  H.  345;  Goodall  v. 
Durgin,  14  N.  H.  576;  Dinsmore  v. 
Pendexter,  28  N.  H.  18;  Lary  v. 
Evans,  35  N.  H.  172. 

The  name  of  the  indorser  on  the 
writ  and  of  the  sheriff  on  the  summons 
need  not  necessarily  be  enrolled  in 
setting  them  out.  Knowles  i'.  Rowell, 
8  N.  H.  542. 

Enrollment  Substantially  Correct. — An 
enrollment  must  be  substantially  cor- 
rect, but  misspelling  and  inaccuracies 
of  a  clerical  nature  are  not  material 
unless  they  occur  in  parts  of  the  rec- 
ord necessary  to  bring  out  the  point 
made  by  the  plea.  Baker  v.  Brown, iS- 
N.  H.  551;  Colby  V.  Dow,  18  N.  H.  557. 

Where  the  word  "Greeting"  is  part 
of  a  summons,  a  plea  attempting  to 
show  a  variance  between  the  writ  and 
summons  but  omitting  that  word  from 
the  summons  as  enrolled  is  bad  on  de- 
murrer. Goodall  V.  Durgin,  14  N.  H. 
576. 

6.  Pitman  v.  Perkins,  28  N.  H.  90; 
Carpenter  v.  Hoyt,  17'  111.  529  ;  Chap- 
man V.  Spence,  22  Ala.  58S;  Pierce  v. 
Lacy,  23  Miss.  193;  McNeill  v.  Arnold, 
17  Ark.  178:  Chirac  v.  Reinicker,  11 
Wheat.  (U.  S.)302;  Garland  v.  Chattle, 
12  Johns.  (N.  Y.)  430;  Bank  of  New 
Brunswick  v.  Arrowsmith,  9  N.  J.  L. 
284. 

7.  Curtis  z*.  Baldwin,  42  N.  H.  398; 
Carlisle  v.    Weston,  21   Pick.  (Mass.) 


Xinds  of  Pleas.       ABATEMENT  IN  PLEADING. 


Service,  etc. 


By  Motion  or  Writ  of  Error.— The  objection  has  been  allowed  to  be 
raised  by  motion  to  dismiss^  and  on  writ  of  error.*  Pleading  in 
abatement  has  been  held  not  a  waiver  of  the  right  to  move  to 
quash  the  writ.' 

Must  Show  Service  Defective. — A  plea  in  abatement  for  defective  ser- 
vice must  clearly  and  distinctly  show  that  the  service  made  was 
defective,  and  also  that  the  writ  or  process  was  not  served  in  any 
other  way.* 

Exclude  Contrary  Inferences. — It  should  exclude  all  matters  which,  if 
alleged  in  reply,  would  defeat  it.' 

error  "  that  the  plaintiff  ought  to 
have  served  it  by  leaving  a  copy  there- 
of with  A.,  who  was  his  (defendant's) 
attorney  at  the  time  of  the  pretended 
service,  is  now  his  attorney,  and  was 
his  attorney,  who  appeared  in  the 
original  cause,"  it  is  sufficient,  al- 
though it  is  not  averred  that  A.  was 
the  only  attorney  who  appeared  for 
defendant,  there  being  sufficient  al- 
leged to  enable  the  plaintiff  to  make 
a  legal  service.  Colburn  v.  Tolles,  13 
Conn.  524. 

Service  on  Agent  of  Corporation. — In 
an  attachment  suit  in  Vermont  against 
a  foreign  corporation,  a  plea  in  abate- 
ment by  the  corporation  alleging  that 
the  person  on  whom  the  copy  of  the 
writ  was  served  was  not  a  clerk  or 
other  officer  or  stockholder  of  the  cor- 
poration is  insufficient,  because  it  fails 
to  allege  that  he  was  not  an  agent  or 
attorney,  or  that  the  copy  was  not 
left  with  him  at  the  place  of  attach- 
ment. Shampeau  v.  Connecticut 
River  Lumber  Co.,  37  Fed.  Rep.  771. 

Service  on  Besident  of  State. — Where 
a  writ  describes  the  defendant  as  a 
resident  of  the  state,  a  plea  in  abate- 
ment averring  facts  showing  the  ser- 
vice defective  on  defendant  as  a  res- 
ident of  the  state  is  good  and  suffi- 
cient. Defendant  is  not  required  to 
negative  proper  service  on  him  as  a 
non-resident.     Cady  v.  Gay,  31  Conn. 

395. 

Show  by  Whom  should  be  Served. — 
A  plea  in  abatement  for  defective  ser- 
vice alleging  "that  the  writ  was 
served  by  one  deputy  sheriff  on  an- 
other deputy  sheriff"  is  sufficient.  It 
need  not  allege  by  whom  it  ought  to 
have  been  served.  Guild  v.  Richard- 
son, 6  Pick.  (Mass.)  369;  Brown  v. 
Gordon,  i  Me.   165. 

False  Return  of  Sheriff. — In  Missis- 
sippi if  it  is  desired  to  impeach  the 
truth  of  a  sheriff's  return,  it  must  be 
done  by  a  plea  in  the  nature  of  a  plea 


535;  Laverty  v.  Turner,  4  Dev.  (N. 
Car.)  275;  Simonds  v.  Parker,  i 
Met.  (Mass.)  508;  Hinton  v.  Ballard, 
3  W.  Va.  582;  Brigham  v.  Clark,  20 
Pick.  (Mass.)  43;  Barksdale  v.  Neal, 
16  Gratt.  (Va.)  314. 

1.  No  Authority  in  Person  Serving. — 
Where  total  want  of  authority  in  the 
person  who  undertook  to  serve  a  writ 
appears  on  the  face  of  the  process,  the 
defect  may  be  taken  advantage  of  by 
plea  in  abatement  or  motion  to  dis- 
miss.    Howard  v.  Walker,  39  Vt.  163. 

2.  Not  Served  according  to  Statute. — 
Where  service  of  a  writ  on  an  absent 
defendant  who  had  a  last  and  usual 
place  of  abode  within  the  state  is  not 
made  by  leaving  the  summons  or  copy 
thereof  at  such  place,  as  required  by 
the  statute,  such  defect  of  service  may 
be  raised  by  plea  in  abatement  or  writ 
of  error.  Tilden  v.  Johnson,  6  Cush. 
(Mass.)  354. 

3.  Motion  to  Quash  after  Plea. — By 
pleading  in  abatement  for  a  defective 
service  the  defendant  does  not  waive 
the  right  to  insist  on  the  impropei-  ser- 
vice of  the  process,  and  he  may  with- 
draw his  plea  and  make  a  motion  to 
quash  the  writ  for  the  defect  in  the 
service.  Halsey  v.  Hurd,  6  McLean 
(U.  S.)  14. 

4.  Pearson  v.  French,  9  Vt.  349; 
Morse  v.  Nash,  30  Vt.  76;  Adams  v. 
Hodsdon,  33  Me.  225;  Tweed  v.  Lib- 
tey,  37  Me.  49. 

5.  Should  show  Defendant  an  Inhabit- 
ant.— As  a  plea  in  abatement  must  in- 
clude all  matters  which  if  alleged  in 
reply  would  defeat  it,  it  is  not  suffi- 
cient to  aver  facts  showing  defendant 
was  not  served,  unless  it  be  also  al- 
leged that  the  defendant  was  at  the 
time  an  inhabitant  of  the  state. 
Tweed  v.  Libbey,  37  Me.  49;  Adams  v. 
Hodsdon,  33  Me.  225. 

Enable  Plaintiff  to  make  Better  Ser- 
vice.— Where  defendant  pleads  in 
abatement  to  the  service  of  a  writ  of 


21 


Kinds  of  Pleas.        ABA  TEMENT  IN  PLEADING.  Action  Premature. 


Privilege  as  a  Witness.— When  defendant  relies  on  his  privilege 
while  attending  court  as  a  witness  as  rendering  service  on  him 
defective,  the  plea  should  be  strictly  accurate  in  all  respects,  and 
should  set  out  fully  the  court  in  which  he  was  attending,  the  suit 
in  which  he  was  a  witness,  that  the  suit  was  then  pending  in  the 
court,  the  names  of  the  parties  to  the  suit,  and  state  the  party  for 
whom  he  was  summoned  as  a  witness.* 

Material  Matters.— Pleas  in  abatement  for  defective  service  should 
not  allege  and  rely  on  immaterial  matters.* 

14.  Action  Premature— How  Objection  Eaised.— The  objection  that  an 
action  is  prematurely  brought  must  be  raised  by  plea  in  abate- 
ment unless  it  appears  on  the  face  of  the  record  and  can  be  taken 
by  demurrer.3  It  cannot  be  alleged  as  a  defence  on  the  merits,-* 
nor  to  limit  the  recovery.^ 


in  abatement  which  shall  set  forth 
the  facts  on  which  reliance  is  had  to 
establish  the  falsity  of  the  return,  and 
on  which  plea  issue  may  be  joined  and 
a  trial  by  jury  had.  A  motion  to  set 
aside  the  return  as  untrue  is  im- 
proper. Mayfield  v.  Barnard,  43 
Miss.  270. 

Not  Agent  of  Corporation. — Where 
in  a  suit  against  a  corporation  it  is 
claimed  that  the  person  on  whom  ser- 
vice of  process  was  made  was  not  the 
agent  of  the  corporation,  that  ques- 
tion must  be  raised  by  plea  in  abate- 
ment unless  the  grounds  therefor  ap- 
pear on  the  face  of  the  record,  in 
which  case  it  may  be  by  motion  to 
quash  the  return  of  service.  Rubel 
V.  Beaver  Falls  Cutlery  Co.,  22  Fed. 
Rep.  282. 

Service  by  Officer  Out  of  Office. — 
Where  defendant  pleads  in  abatement 
"  that  the  officer  by  whom  the  writ 
was  served  was,  after  his  appoint- 
ment as  a  deputy  sheriff,  appointed 
and  commissioned  as  a  justice  of  the 
peace,  whereby  the  former  office  be- 
came vacant,"  the  plea  is  bad  for  not 
alleging  that  the  officer  both  took  and 
subscribed  the  oath  of  office  as  justice. 
— Chapman  v.  Shaw,  3  Me.  372. 

1.  Baker  v.  Compton,  2  Head 
(Tenn.)  471. 

2.  No  Service  on  Defendants  Not  Plead- 
ing.— A  plea  in  abatement  by  two  de- 
fendants to  a  writ  of  error  against 
four  defendants  (the  two  not  plead- 
ing being  described  in  the  writ  as 
residents,  of  another  state),  to  the 
effect  "  that  no  service  has  been 
made  on  the  two  defendants  not 
pleading,  alleging  that  they  reside  in 
the  same  state  and   traversing  their 


residence  in  another  state,"  is  bad  on 
the  ground  that  the  fact  traversed  is 
immaterial.  Denslow  v.  Moore,  i 
Day  (Conn.)  290. 

Service  at  Wrong  Time. — A  plea  in 
abatement  "that  it  does  not  appear 
by  the  writ  that  it  was  served  ten 
days  before  the  term"  is  frivolous 
and  will  be  set  aside.  Nelson  v.  Cum- 
mins, I  Overt  (Tenn.)  436. 

3.  Midland  R.  Co.  v.  Stevenson,  6 
Ind.  App.  702  ;  Carter  v.  Turner,  2 
Head  (Tenn.)    52  ;  Smith   v.    Holmes, 

19  N.  Y.  271  ;  Herndon  v.  Garrison,  5 
Ala.  380  ;  Giboney  v.  German  Ins.  Co., 
48  Mo.  App.  185  ;  Clements  v.  Swain, 
2  N.  H.  475  ;  Walker  v.  Johnson,  2 
McLean  (U.  S.)  92  ;  Wingate  v.  Smith, 

20  Me.  287  ;  Collette  v.  Weed,  68  Wis. 
428. 

Suit  before  Statutory  Time. — Where  a 
statute  provided  that  no  suit  to  collect 
a  tax  alleged  to  be  erroneously  as- 
sessed should  be  brought  until  it 
had  been  taken  to  the  collector  of 
internal  revenue,  held,  that  the  fail- 
ure to  take  such  an  appeal  before 
bringing  suit,  and  thus  suing  pre- 
maturely, was  matter  which  must  be 
set  up  by  a  plea  in  abatement,  and 
not  having  been  so  set  up,  the  right 
to  object  therefor  was  lost.  Hendy  v. 
Soule,  Deady  (U.  S.)  400. 

4.  Collette  v.  Weed,  68  Wis.  428. 

5.  Not  to  Limit  Kecovery. — The  pre- 
mature commencement  of  a  suit  can- 
not be  used  to  limit  recovery  to  a  cer- 
tain sum  ;  it  is  matter  of  abatement, 
but  not  in  bar.  Grigsby  v.  German 
Ins.  Co.,  48  Mo.  App.  276. 

In  Indiana  matter  tending  to  show 
that  an  action  is  prematurely  brought 
can  only  be  set  up  by  plea  in  abate- 


22 


Eequisites  and         ABATEMENT  IN   PLEADING.  Construction. 

Such  Matter  if  Pleaded  in  Bar  has  been  held  demurrable,*  but  not  so 
when  pleaded  in  abatement.* 

15.  Pendency  of  Another  Action  as  a  ground  for  a  plea  in  abate- 
ment.    See  Another  Suit  Pending. 

III.  Requisites  and  Constkuction — construed  strictly. — Pleas  in 
abatement,  as  they  do  not  deny  the  merits  of  plaintiff's  claim, 
but  merely  tend  to  delay  the  remedy,  are  not  favored  by  the 
courts,  and  the  greatest  strictness  is  applied  to  them,  and  they 
will  not  be  aided  in  construction  by  any  intendments.  With 
them  correctness  of  form  is  matter  of  substance,  and  any  defect 
of  form  is  fatal.  They  must  answer  the  whole  case  and  contain 
a  full,  direct,  and  positive  averment  of  all  material  facts.* 


ment  ;  and  if  pleaded  with  matter  in 
bar  and  not  verified,  it  will  be  stricken 
out.  Moore  v.  Sargent,  112  Ind. 
484. 

1.  Note  Not  Due  in  Bar. — An  answer 
in  bar  to  a  suit  on  a  note  alleging 
"the  note  was  by  a  mutual  mistake 
made  payable  at  an  earlier  date  than 
intended  "  is  demurrable.  It  is  matter 
which  must  be  pleaded  in  abatement, 
and  cannot  be  set  up  in  bar.  Norris 
V.  Scott,  6  Ind.  App.  18. 

2.  Agreement  to  Extend  Time.  — 
Where  an  answer  in  foreclosure  al- 
leges the  making  of  an  agreement  ex- 
tending the  time  of  payment,  and  also 
that  the  extended  time  for  payment 
has  not  yet  expired,  it  is  sufficient  and 
not  demurrable,  unless  it  appear  from 
the  answer  that  a  default  has  been 
made  subsequent  to  the  making  of  the 
agreement.  Eby  v.  Ryan,  22  Neb. 
470. 

3.  Durand  v.  Griswold,  26  Vt.  48  ; 
Morse  v.  Nash,  30  Vt.  76  ;  Pearson  v. 
French,  9  Vt.  349  ;  Lary  v.  Evans,  35 
N.  H.  172 ;  Dinsmore  v.  Pendexter, 
28  N.  H.  18  ;  Tweed  v.  Sibbey,  37  Me. 
49;  Hazzard  v.  Haskell,  27  Me.  549  ; 
Burnham  v.  Howard,  31  Me.  569 ; 
Ellis  V.  Ellis,  4  R.  I.  no;  V^ales  v. 
Jones,  I  Mich.  254  ;  Belden  v.  Laing, 
8  Mich.  500  ;  Townsend  v.  Jeffries,  24 
Ala.  329  ;  Roberts  v.  Heim,  27  Ala. 
678  ;  Haywood  v.  Chestney,  13  Wend. 
(N.  Y.)495  ;  Settle  z/.  Settle,  loHumph. 
(Tenn.)  504  ;  Prosky  v.  West,  16  Miss. 
711  ;  Moss  V.  Ashbrooks,  12  Ark.  369  ; 
Mandel  v.  Peet,  18  Ark.  236  ;  Fowler 
V.  Arnold,  25  111.  284;  Hollaway  v. 
Freeman,  22  111.  197  ;  Clark  v.  Warner, 
6  Conn.  358  ;  Parsons  v.  Ely,  2  Conn. 
377;  Wadsworth  &  Woodford,  i  Day 
(Conn.)  28  ;  Thompson  v.  Lyon,  14 
Cal.   39  ;    Sarco  v.   Clements,  36  Cal. 


132  ;  Anonymous,  Hempst.  (U.  S.)2i5; 
Powell  V.  Fullerton,  2  B.  &  P.  420. 

Plea  by  President  of  Corporation. — 
Great  precision  is  required  in  pleas  in 
abatement  both  in  form  and  structure, 
and  they  are  not  favored  by  the  courts. 
Hence  where  a  corporation,  sued  as 
defendant,  puts  in  a  plea  in  abatement 
which  purports  to  be  put  in  by  "its 
president  and  secretary,"  instead  of 
"by  its  attorney,"  it  will  be  held  bad 
on  demurrrer.  Nixon  v.  Southwestern 
Ins.  Co.,  47  111.  444. 

Bad  Beginning  of  Plea.  —  Pleas  in 
abatement  must  be  strictly  accurate 
even  in  matters  of  form  ;  hence  a 
plea  for  misnomer  commencing  "and 
the  defendant,  against  whom,  etc., 
comes,"  etc.,  is  bad,  for  it  admits  such 
defendant  to  be  the  person  sued. 
Feasler  v.  Schriever,  68  111.  322. 

Actions  Accruing. — A  plea  in  abate- 
ment alleging  "that  the  said  causes 
of  action  did  not  accrue  nor  were  they 
made  payable  in  the  county  of,  etc.," 
is  bad  for  not  averring  that  no  one  of 
them  did  accrue  or  was  made  payable 
in  said  county.  Dunlap  v.  Turner, 
64  111.  47. 

Alterationof  Plea.— If  pleas  in  abate- 
ment and  the  jurats  thereto  appear  on 
their  face  to  have  been  altered,  this, 
if  assigned,  may  be  ground  for  ruling 
them  out.  Holloway  v.  Freeman,  22 
111.  197. 

Pleading  without  Proper  Defense. — 
Where  a  plea  in  abatement  com- 
menced, "And  the  defendant  by  his 
attorney  appears  to  this  suit  and 
makes  known  here  to  this  honorable 
court  that  the  said  attachment  was 
unlawfully  sued  out,"  etc.,  it  was  held 
bad  on  special  demurrer  on  the  ground 
that  it  was  pleaded  without  proper 
defence.    Prosky  v.  West,  16  Miss.  711. 


23 


Eequisites  and         ABATEMENT  IN   PLEADING.  ConBtruction. 


Must  be  Certain  and  Anticipate  Defence. — Such  pleas  must  be  certain 
to  every  intent,  and  leave  nothing  to  be  drawn  by  inference.* 
They  must  anticipate  and  include  all  such  supposable  matter  as 
would,  if  alleged   by  the  opposite  party,  defeat  the  plea.*     But 


1.  Baker  v.  Reese,  150  Pa.  St.  44  ; 
Biddeford  Sav.  Bank  v.  Mosher,  79 
Me,  242  ;  Fahy  v.  Brannagan,  56  Me. 
42  ;  Llano  Imp.  Co.  v.  Cross,  5  Tex. 
Civ.  App.  175  ;  Webster  v.  Baggs,  6 
R.  I.  247  ;  State  v.  Duggan,  15  R.  I. 
403;  Chaney  v.  State,  118  Ind.  494; 
State  V.  Emery,  59  Vt.  84  ;  Burnside 
V.  Matthews,  54  N.  Y.  78  ;  Wright  v. 
Wright,  54  N.  Y.  437. 

SubmiBsion  of  Claim  under  Statute. — 
Pleas  in  abatement  must  be  certain  to 
every  intent,  and  where  such  a  plea  is 
founded  on  the  pendency  of  a  submis- 
sion under  the  statute  of  all  demands 
between  the  parties  to  a  referee,  it 
should  state  the  name  of  the  referee, 
allege  his  acceptance,  and  conclude 
with  a  prayer  for  judgment  of  the 
writ,  or  it  is  bad.  Fahy  v.  Brannagan, 
56  Me.  42. 

Must  Allege  Assignment  Bona  Fide. — 
Where  to  an  attachment  suit  it  was 
pleaded  in  abatement  "  that  the  de- 
fendant therein  had  made  an  assign- 
ment of  his  property  for  the  benefit 
of  his  creditors  before  the  suit  was 
brought,  and  that  the  deed  of  assign- 
ment was  registered  and  the  assignee 
in  possession,"  held,  such  plea  was 
fatally  defective  in  failing  to  aver  that 
the  assignment  was  bona  fide,  or 
to  n]ake  profert  of  the  assignment. 
Lowenheim  v.  Ireland,  2  Baxt.  (Tenn.) 
214. 

Facts  showing  Opposing  Title. — Where 
in  an  action  to  foreclose  a  vendor's 
lien  the  defendant  pleads  in  abate- 
ment an  outstanding  title  in  another 
than  plaintiff,  such  plea  is  bad  where 
it  fails  to  allege  the  facts  showing  the 
title  of  the  other  opposed  to  plaintiff's 
title.  Llano  Imp.,  etc.,  Co.  v.  Cross, 
5  Tex.  Civ.  App.  175. 

Non-residence  at  Time  Action  Com- 
menced.— A  plea  in  abatement  for  the 
non-residence  of  a  trustee  made  a  de- 
fendant must  allege  the  non-residence 
of  the  trustee  at  the  time  of  the  com- 
mencement of  the  action.  An  allega- 
tion of  his  non-residence  at  the  time 
of  the  service  of  the  writ  is  not  suffi- 
cient in  such  a  plea  to  show  his  non- 
residence  at  the  time  of  the  commence- 
ment of  the  action.  Biddeford  Sav. 
Bank  v.  Mosher,  79  Me.  242. 


Plaintiffs  Death  after  Filing  Declara- 
tion.— A  plea  in  abatement  "  that  after 
the  service  of  the  writ  and  before  the 
filing  and  entering  of  the  action  in 
court  the  plaintiff  died,  and  an  ad- 
ministrator was  appointed  and  quali- 
fied to  act  for  her  estate,"  is  bad  on 
demurrer  under  a  statute  of  Rhode 
/f/</«a' "  requiring  the  executor  or  ad- 
ministrator of  a  deceased  party  to  a 
pending  action  to  appear  and  further 
prosecute  or  defend  the  action,  "the 
entry  of  a  suit  in  court  being  defined  to 
be  "  the  filing  of  the  necessary  papers 
with  the  clerk  and  payment  of  the 
entry  fee  on  the  first  or  second  day  of 
the  term  ,"  because  such  plea  is  con- 
sistent with  the  supposition  that  plain- 
tiff died  after  the  filing  of  the  declara- 
tion, which  would  then  be  properly 
filed  in  her  name,  although  before  the 
entry  of  the  action  in  court.  Webster 
V.  Baggs,  6  R.  I.  247. 

Justice  Interested  in  Matter. — A  plea 
in  abatement  in  an  action  before  a 
justice  to  punish  a  fraudulent  debtor 
under  the  Michigan  statute,  that  the 
justice  is  interested  in  the  matter,  need 
not  allege  that  he  was  interested  at 
the  time  the  warrant  was  issued.  It 
is  sufficient  where  it  alleges  that  the 
justice  is  interested  and  is  an  attorney 
in  an  action  involving  title  to  the  prop 
erty  defendant  is  charged  with  fraud- 
ulently concealing.  Clark  V.  Mikesell, 
81  Mich.  45. 

Notification  to  Holder  of  Legal  Title. — 
In  a  suit  to  recover  a  drainage  assess- 
ment an  answer  is  insuflScient  which 
merely  alleges  that  the  defendant  was 
not  ^  party  to  and  had  no  notice  of 
the  assessment  proceedings,  but  fails 
to  allege  that  defendant's  grantor, 
who  held  the  legal  title  when  the  peti- 
tion therein  was  filed,  was  not  notified 
and  was  not  a  party.  Chaney  v.  State, 
118  Ind.  494. 

2  Bank  of  Vergennes  v.  Barker, 
27  Vt.  243 ;  Bowman  v.  Stowell,  21 
Vt.  309  ;  Bank  of  Rutland  v.  Barker, 
27  Vt.  293  ;  Goodhue  v.  Luce,  82  Me. 
222 ;  Capwell  v.  Sipe,  17  R.  I.  475  ; 
McCauley  v.  State,  21  Md.  556  ;  Man- 
del  V.  Peet,  rS  Ark.  236. 

Attending  Court  as  a  Witness. — A  plea 
in  abatement  that  defendant,  who  is  a 


24 


Requisites  and         ABATEMENT  IN  PLEADING.  Construction. 


this  rule  applies  only  to  such  supposable  matter  as  can  properly 
be  alleged  and  set  up  in  the  replication  and  anticipated  by  the 
plea,  and  not  to  every  imaginable  matter.^ 

Duplicity. — Such  pleas  must  not  be  double ;  duplicity  is  fatal  to 
them.*  A  statute  allowing  several  pleas  has  been  held  not  to 
allow  duplicity  ;^   but  the  contrary  has  also  been  held."* 

Must  Give  Better  Writ. — Pleas  in  abatement  must  state  enough  to 
enable  the  plaintiff  by  amendment  to  completely  avoid  the  mis- 
take or  supply  the  defect  on  which  the  defendant  relies,  or  in  tech- 
nical language  they  must  give  the  plaintiff  a  better  writ.* 


non-resident,  was  at  the  time  he  was 
served  with  process  in  attendance  on 
the  court  as  a  witness  is  bad  in  not 
negativing  such  attendance  in  any 
other  capacity  than  as  a  witness.  Cap- 
well  V.  Sipe,  17  R.  I.  475- 

Ratification  by  Agent's  Act. — A  plea 
in  abatement  that  the  person  who 
signed  an  attachment  bond  for  the 
plaintiffs  had  no  competent  authority 
from  them  to  make  it  is  bad  unless  it 
also  alleges  that  the  act  of  so  signing 
said  bond  was  not  subsequently 
adopted  and  ratified  by  plaintiffs. 
Mandel  v.  Peet,  18  Ark.  236. 

Action  by  State's  Attorney. — Where  an 
action  is  brought  in  the  name  of  the 
state,  a  plea  in  abatement  on  the 
ground  "  that  it  is  not  brought  by  the 
state's  attorney"  should  negative  all 
statutory  exceptions  to  the  require- 
ment that  suits  be  brought  in  the 
name  of  the  state's  attorney,  or  it  is 
defective.  McCauley  v.  State,  21  Md. 
556. 

1.  Goodhue  v.  Luce,  82  Me.  222  ; 
Clark  V.  Mikesell,  81  Mich.  45  ;  Web- 
ster V.  Baggs,  6  R.  I.  247. 

2.  Steamboat  Napoleon  v.  Etter,  6 
Ark.  103  ;  Culver  v.  Balch,  23  Vt.  618; 
Roberts  v.  Moon,  5  T.  R.  487  ;  Cobb  v. 
Miller,  9  Ala.  499  ;  Cobb  v.  Force,  6 
Ala.  46S  ;  Garner  v.  Johnson,  22  Ala. 
494  ;  State  v.  Heselton,  67  Me.  598. 

Several  Distinct  Pleas  Bad. — If  several 
distinct  pleas  in  abatement,  each  dis- 
tinct and  good  in  itself,  are  pleaded  at 
the  same  time,  they  will  be  held  bad 
for  duplicity  as  though  pleaded  in  one 
plea.     Culver  v.  Balch,  23  Vt.  618. 

Issues  on  Two  Distinct  Matters. — When 
to  an  indictment  by  the  grand  jury 
the  accused  pleaded  in  abatement 
"  that  the  county  had  not  been  legally 
divided  into  jury  districts  ;  that  two 
of  the  towns  had  in  their  jury  boxes 
more  names  than  were  allowed  by 
law,  and  that  in   two  other  towns  no 


notice  of  the  drawing  of  jurors  was 
given," — held,  such  plea  was  bad  for 
duplicity  as  tendering  issues  upon 
two  or  more  distinct,  independent, 
and  separate  matters  of  fact.  State  v. 
Heselton,  67  Me.  598- 

Specifying  Several  Particulars  not 
Double. — A  plea  in  abatement  which 
alleges  a  variance  between  the  writ 
and  summons,  and  then  proceeds  to 
specify  by  setting  forth  two  par- 
ticulars, each  of  which  was  itself  a 
fatal  variance,  is  not  double,  and  so 
bad  for  duplicity.  Dyke  v.  Percival, 
14  N.  H.  578. 

3.  Vermont. — The  statute  of  Ver- 
mont authorizing  a  defendant  to  plead 
several  pleas  does  not  embrace  pleas 
in  abatement,  so  as  to  allow  several 
such  pleas  to  be  pleaded  at  the  same 
time.     Culver  v.  Balch,  23  Vt.  618. 

4.  Mississippi. — The  statute  of  Alis- 
sissippi  making  it  lawful  for  a  de- 
fendant to  plead  as  many  pleas  in  bar 
as  he  chooses,  although  some  be  to  the 
party  or  the  character  of  the  party 
suing,  etc.,  extends  to  and  embraces 
pleas  in  abatement.  James  v.  Dowell, 
7  Smed.  «&  M.  (Miss).  333  ;  Pharris  v. 
Conner,  3  Smed.  &  M.  (Miss.)  87. 

5.  Evans  v.  Stevens,  4  T.  R.  224  ; 
Godson  V.  Good,  6  Taunt.  595  ;  Ha- 
worth  V.  Spraggs,  8  T.  R.  515  ;  Chitty 
on  Pleading  (i6th  Am.  ed.),  p.  473  ; 
Haywood  v.  Chestney,  13  Wend.  (N. 
Y.)  495  ;  Ellis  V.  Ellis,  4  R.  I.  no  ;  East 
V.  Cain,  49  Mich.  473  ;  Society,  etc.,  v. 
Pawlet,  4  Pet.  (U.  S.)  501  ;  Cook  v. 
Burnley,  11  Wall.  (U.  S.)  658  ;  Balti- 
more, etc.,  R.  Co.  V.  Harris,  12  Wall. 
(U.  S.)  84;  Middleton  v.  Pinnell,  2 
Gratt.  (Va.)  203  ;  Fink  v.  Maple,  15 
Ind.  297  ;  Pointer  v.  State,  89  Ind. 
257  ;  Deforest  v.  Elkins,  2  Ala.  50 ; 
Townsend  v.  Jeffries,  24  Ala.  329 ; 
Brown  v.  Gordon,  i  Me.  165  ;  Parsons 
V.  Ely,  2  Conn.  377  ;  Wadsworth  v. 
Woodford,  i  Day  (Conn.)  29  ;  Clark  v. 


25 


Eequisites  and       ABATEMENT  IN  PLEADING.         Construction, 

Matter  Affecting  Codefendant. — Such  pleas  should  not  set  up  matter 
which  affects  only  a  codefendant  and  not  the  party  pleading.* 
Cannot  be  Amended. — Pleas  in  abatement  cannot  be  amended.* 
Eules  not  Obsolete. — The  foregoing  rules  are  not  obsolete,  but  are 
still  enforced  in  practice.^ 


Warner,  6  Conn.  355  ;  Boston,  etc.. 
Foundry  v.  Spooner,  5  Vt.  93  ;  Pear- 
son V.  French,  9  Vt.  349  ;  Vanderburg 
V.  Clark,  22  Vt.  388  ;  Durand  v.  Gris- 
wold,  26  Vt.  48  ;  Lester  v.  Stevens,  29 
111.  155. 

No  Authority  to  Sue. — Pleas  in  abate- 
ment are  not  favored,  and  are  strictly 
construed  against  the  pleader  ;  and  a 
plea  for  defect  of  parties  must  give 
the  plaintiff  a  better  writ  and  state 
precisely  who  should  be  made  parties. 
Such  a  plea  alleging,  "  Defendant 
further  says  that  the  plaintiff  herein 
has  no  authority  to  institute  or  main- 
tain this  proceeding  against  her,"  is 
bad.  Shockley  v.  Fischer,  21  Mo. 
App.  551. 

No  Defect  Shown. — Where  a  plea  in 
abatement  craves  oyer  of  the  affidavit, 
bond,  and  writ,  but  does  not  point  out 
any  defect  therein  so  as  to  give  plain- 
tiff a  better  writ,  it  is  demurrable. 
Mohr  V.  Chaffe,  75  Ala.  387. 

Reason  of  no  Jurisdiction. — On  objec- 
tion to  the  jurisdiction  of  the  person, 
the  reason  therefor  must  be  specially 
assigned.  Freeman  v.  Burks,  16  Neb. 
328. 

No  Action  at  All. — Where  a  plea  in 
abatement  tends  to  show  that  plain- 
tiff can  maintain  no  action  at  all,  it 
is  bad.  To  be  good  it  should  give 
plaintiff  a  better  writ.  Evans  v. 
Stevens,  4  T.  R.  227. 

Should  Set  Out  Title. — A  plea  in  abate- 
ment by  a  defendant  to  an  action 
against  him  as  assignee  of  a  lease  to 
the  effect  "  that  the  estate  is  vested  in 
him  jointly  with  another"  is  bad  for 
not  setting  out  the  title  specially. 
Heap  V.  Livingstone,  7  Jur.  934  ;  11 
M.  &  W.  896  ;   I  D.  &  L.  334. 

1.  Shannon  v.  Comstock,  21  Wend. 
(N.  Y.)  457  ;  34  Am.  Dec.  262  ;  Bonzey 
V.  Redman,  40  Me.  336  ;  Bridge  v. 
Payson,  i  Duer  (N.  Y.)  614;  Bell  v. 
Layman,  i  T.  B.  Mon.  (Ky.)  40;  15 
Am.  Dec.  83. 

Codefendant  not  Served. — That  a  co- 
defendant  has  not  been  served  is  not 
sufficient  as  a  plea  in  abatement  unless 
it  be  also  alleged  that  such  defendant 
not  served  is  a  co-promisor  or  a  co- 


obligor  with  the  defendant  pleading. 
.  Patten  v.  Starrett,  20  Me.  145. 

2.  Amendments. — Evans  v.  Prosser, 
3  T.  R.  186;  Digby  v.  Alexander,  8 
Bing.  416  ;  21  E.  C.  L.  339  ;  Mandel  v. 
Peet,  18  Ark.  236  ;  Trinder  v.  Durant, 
5  Wend.  (N.  Y.)  72  ;  Jenkins  v.  Pepoon, 
2  Johns.  Cas.  (N.  Y.)  312  ;  Getchell  v. 
Boyd,  44  Me.  482  ;  Roberts  v.  Heim, 
27  Ala.  678  ;  Townsend  v.  Jeffries,  24 
Ala.  329.     See  also  Amendments. 

3.  U.  S.  V.  Williams,  i  Dill.  (U.  S.) 
485  ;  Donahue  v.  Bragg,  49  Mo.  App. 
273  ;  Harney  v.  Parkersburg  Ins.  Co., 
37  W.  Va.  272  ;  Parsons  v.  Ely,  2  Conn. 
377  ;  Lyons  v.  Rafferty,  30  Minn.  526  ; 
State  Bank  v.  Hinton,  i  Dev.  (N.  Car.) 
397  ;  Stark  v.  Whitman,  58  Tex.  375. 

Common-law  Rules  in  Force  in  United 
States  Courts. — The  sufficiency  of  pleas 
in  abatement  must  be  tested  by  com- 
mon-law rules  in  the  United  States 
courts  in  the  absence  of  any  legisla- 
tion by  Congress  on  the  question  of 
authorized  rules  of  court.  U.  S.  v, 
Williams,  i  Dill.  (U.  S.)  485. 

West  Virginia. — The  rules  of  strict 
pleading  still  apply  on  demurrer  to  a 
plea  in  abatement  in  West  Virginia, 
and  material  provision  and  exception 
in  a  statute  must  be  averred  in  such 
plea  or  it  is  bad.  Harney  v.  Parkers- 
burg Ins.  Co.,  37  W.  Va.  272. 

Missouri. — Showing  a  misjoinder  of 
parties  plaintiff  by  the  answer  is  not 
sufficient  to  save  an  objection  thereto, 
unless  objection  to  such  misjoinder  is 
distinctly  taken  by  the  answer.  Dona- 
hue V.  Bragg,  49  Mo.  App.  273. 

Texas. — Where  defendant  pleads  in 
abatement  that  he  is  not  sued  in  the 
county  where  he  resides,  his  plea 
must  fully  negative  the  exceptions  in 
the  statute  which  would  authorize  suit 
against  him  in  the  county  in  which  he 
is  sued.  Stark  v.  Whitman,  58  Tex. 
375-. 

Minnesota. — A  plea  or  answer  in 
abatement  for  the  misnomer  of  de- 
fendants must  be  so  full  and  explicit  as 
to  exclude  wholly  any  right  in  plaintiff" 
to  sue  defendants  by  the  name  used. 
Lyons  v.  Rafferty,  30  Minn.  526. 

Connecticut. — Where  an  alteration  in 


Prayer,  Signature.  ABA  TEMENT  IN  PLEADING,     and  Verification. 


IV.  PKAYEE,  Signature,  and  Verification — Proper  Prayer  Neces- 
sary.—Pleas  in  abatement  must  have  a  proper  beginning  and  con- 
clusion/ and  it  is  the  conclusion  or  prayer  which  is  of  most 
importance,  for  it  is  held  to  determine  the  character  of  the  plea 
and  shows  whether  it  be  in  bar  or  in  abatement.''*  If  the  prayer  be 
omitted,  or  there  be  a  wrong  prayer,  the  plea  is  bad  ;'  hence  if 
matter  of  abatement  concludes  in  bar,  it  is  bad  ;"*  but  matter  in 
bar  pleaded  in  form  as  abatement  has  been  held  available.* 


a  writ,  rendering  security  given  there- 
on void,  is  the  ground  of  a  plea  in 
abatement,  the  plea  must  be  com- 
plete in  itself  and  show  by  precise 
and  distinct  averments  of  fact  that 
security  was  necessarily  required  at 
the  time  of  granting  the  writ,  and  that 
the  alteration  was  made  under  such 
circumstances  that  it  avoided  the  se- 
curity given.     Parsons  v.  Ely,  2  Conn. 

377- 

North  Carolina. — A  plea  in  abatement 
"  that  no  bond  or  security  was  taken  " 
is  sufficient,  being  equivalent  to  an  al- 
legation that  the  bond  or  security 
was  not  taken  and  returned.  State 
Bank  v.    Hinton,    i    Dev.    (N.    Car.) 

397- 

1.  Pitt's  Sons'  Mfg.  Co.  v.  Commer- 
cial Nat.  Bank,  121  111.  582;  Scott  v. 
V.  Norris,  6  Ind.  App.  18  &  102;  Godson 
Smith,  2  Moore,  157;  Godson  v.  Good, 
6  Taunt.  587;  Jenkins  v.  Pepoon,  2 
Johns.  Cas.  (N.  Y.)  312;  Foxwist  v. 
Tremaine,  2  Saund.  209;  Holden  v. 
Scanlin,  30  Vt.  177. 

2.  Jenkins  v.  Pepoon,  2  Johns.  Cas. 
(N.Y.)3i2;  Schoonmakerz/.  Elmendorf, 
10  Johns.  (N.  Y.)  49;  Otis  v.  Warren, 
14  Mass.  240;  Lyman  v.  Dodge,  13 
N.  H.  197;  Landon  v.  Roberts,  20  Vt. 
286;  Peck  V.  Griswold,  26  Vt.  97; 
Smith  V.  Chase,  39  Vt.  89;  Lyman  v. 
Central  Vt.  R.  Co.,  59  Vt.  167;  Sabine 
V.  Johnstone,,  i  B.  &  P.  60. 

Contra. — Hargis  v.  Ayres,  8  Yerg. 
(Tenn.)  467. 

Relief  Prayed  for  Determines  it.  — 
Whether  a  plea  is  in  abatement  or  in 
bar  is  determined  from  its  conclusion, 
not  from  its  subject-matter.  It  is  the 
relief  prayed  for  by  the  plea  that  de- 
termines its  character.  The  proper 
prayer  of  a  plea  in  abatement  is  that 
the  writ  and  declaration  be  quashed; 
and  where  matter  in  abatement  con- 
cluded with  a  prayer  in  bar,  viz., 
prays  judgment  whether  plaintiff  ought 
to  have  or  maintain  his  action,  etc., 
held  bad,  as  being  matter  in  abatement 
pleaded  in  bar.     Pitt's  Sons'  Mfg.  Co. 


V.    Commercial    Nat.    Bank,    121    111. 
582. 

3.  Wade  v.  Bridges,  24  Ark.  569 ; 
Lownes  v.  Brown,  22  Ark.  359;  Haz- 
zard  V.  Haskell,  27  Me.  549;  Yelverton 
V.  Conant,  18  N.  H.  123;  West  Felici- 
ana R.  Co.  V.  Johnson,  5  How.  (Miss.) 
273;  Haywood  v.  Chestney,  13  Wend. 
(N.Y.)495;  Shaw  i/.  Butcher,  19  Wend. 
(N.  Y.)  2i6;  Webb  v.  Samuel,  2  Miles 
(Pa.)  201;  Smith  v.  Chase,  39  Vt.  89; 
Mantz  V.  Hendley,  2  Hen.  &  M.  (Va.) 
308. 

4.  Wickliffe  v.  Carroll,  14  B.  Mon. 
(Ky.)  137;  Brown  v.  Bickle,  7  Ark. 
410;  Stone  V.  Miller,  7  Barb.  (N.  Y.) 
368;  Leathers  v.  Meglasson,  2  T.  B. 
Mon.  (Ky.)  64;  Robertson  v.  Fisher, 
3  Cai.  (N.  Y.)  99;  Banks  v.  Lewis,  4 
Ala.  599;  Schoonmaker  v.  Elmendorf, 
ID  Johns.  (N.  Y.)  49;  Godson  v.  Smith, 
2  Moore  157;  Godson  v.  Good,  6  Taunt. 
587. 

Indefinite  Prayer. — A  plea  ending, 
"  wherefore  he  prays  judgment,  etc.," 
is  bad,  as  it  cannot  be  ascertained 
whether  it  is  in  bar  or  abatement. 
Jenkins  v.  Pepoon,  2  Johns.  Cas. 
(N.  Y.)3i2. 

Prayer  in  Bar. — A  plea  to  the  juris- 
diction purporting  to  answer  the  cause 
of  action  as  a  bar  thereof,  but  failing 
to  state  matter  in  bar,  and  ending  with 
a  prayer  for  judgment  whether  plain- 
tiff ought  to  have  or  maintain  his  suit, 
is  defective,  as  pleading  matter  in 
abatement  in  bar.  Lyman  v.  Central 
Vt.  R.  Co.,  59  Vt.  167. 

5.  In  Bar  Available  on  Demurrer. — 
Where  a  defendant  pleaded  in  abate- 
ment to  the  jurisdiction  of  the  court 
that  by  virtue  of  a  specified  statute  he 
was  liable  to  be  sued  in  her  Majesty's 
courts  of  record  in  Dublin  and  not 
elsewhere,  and  the  plea  was  demurred 
to,  held,  that  although  the  plea  was  in 
form  a  plea  in  abatement,  it  disclosed 
matter  in  bar  which  the  defendant 
could  take  advantage  of  on  demurrer. 
Dundalk  Western  R.  Co.  v.  Tapster, 
I  Q.  B.  697  ;  5  Jur.  699  ;  i  G.  &.  D.  657. 


27 


Prayer,  Signature,  ABA  TEMENT  IN  PLEADING,     and  Verification- 


Form  of  Prayer.— The  usual  and  proper  prayer  is  one  "praying 
judgment  of  the  writ  and  declaration  and  that  the  same  be 
quashed."  *  The  prayer  in  abatement  of  an  attachment  should 
be  "  that  the  attachment  be  quashed."  *  Where  the  plaintiff  de- 
murs to  the  plea,  he  should  pray  judgment  of  respondeat  ouster 
and  not  judgment  in  chief. ^ 

Signature.— Pleas  in  abatement  should  in  general  be  signed  by 
counsel.* 

Affidavit.— They  are  generally  required  to  be  verified  by  affidavit.' 

to  pray  that  the  writ  be  quashed,  al- 
though the  principal  defendant  was 
properly  served.  Thayer  v.  Ray,  17 
Pick.  (Mass.)  166. 

Prayer  for  Affirmative  Relief. — Where 
in  a  suit  on  a  note  against  the  maker 
the  defendant  pleads  in  abatement 
that  by  mistake  or  fraud  the  note  was 
so  altered  as  to  be  made  due  before  it 
was  intended  by  the  parties  to  become 
due,  the  plea  should  conclude  with  a 
prayer  for  a  reformation  of  the  note 
or  some  affirmative  relief,  or  it  is  bad. 
Scott  V.  Norris,  6  Ind.  App.  18  &  102. 

West  Virginia. — The  West  Vh-ginia 
Code,  ch.  125,  §  26,  provides  "that  no 
formal  defence  shall  be  required  in  a 
plea,  but  it  may  commence,  the  defend- 
ant says,  etc.,"  held,  such  provision 
applied  to  pleas  to  the  local  jurisdic- 
tion as  well  as  to  pleas  in  bar.  Wooddell 
V.  West  Virginia  Imp.  Co.,  38  W.  Va. 
23- 

4.  Holloway  v.  Freeman,  22  111.  197; 
I  Tidd's  Pr.  639,  640. 

Contra. — Colburn  v.  Tolles,  13  Conn. 
524;  Wilcox  V.  Chambers,  34  Conn. 
179- 

5.  Verification  Required. — Teasedale  v. 
The  Rambler,  Bee  Adm.  g;  Doe  v. 
Roe,  2  Burr.  1046  ;  4  &  5  Anne,  ch. 
16,  §  11;  Dobbin  v.  Wilson,  3  N.  &  M. 
260;  Davis  V.  Campbell,  35  Tex.  779; 
Whittenberg  v.  Newton,  31  Tex.  474; 
Knefel  v.  Williams,  30  Ind.  11  ;  Indi- 
anapolis R.  Co.  V.  Summers,  28  Ind. 
521;  Blake  v.  Nichols,  4  Blackf.  (Ind.) 
311;  Haines  v.  Gurley,  5  Blackf.  (Ind.) 
269;  Trenton  Bank  z'.  Wallace,  9  N.  J.  L. 
83;  Nixon  ^'.  Schooley,  26  N.  J.  L.  461; 
Humphrey  v.  Whitten,  17  Ala.  30; 
Prim  V.  Davis,  2  Ala.  24;  Hart  v. 
Turk,  15  Ala.  675;  Collier  v.  Craw- 
ford, Minor  (Ala.)  100;  Hall  v.  Wal- 
lace, 20  Ala.  438;  State  v.  Middleton, 
5  Port.  (Ala.)  484;  Holden  v.  Scanlin, 
30  Vt.  177;  Durand  v.  Griswold,  26 
Vt.  48;  Young  V.  Stringer,  5  Hayw. 
(Tenn.)  32;  Bank  of  Tennessee  v. 
Jones,   I  Swan  (Tenn.)  391;    Reed  v. 

8 


1.  Bonneau  v.  Dickinson,  12  Ala. 
475;  Hazzard  v.  Haskell,  27  Me.  549; 
Yelverton  v.  Conant,  18  N.  H.  123; 
Baker  z/.  Brown,  18  N.  H.  551;  Brig- 
ham  V.  Este,  2  Pick.  (Mass.)  420; 
Ilsley  V.  Stubbs,  5  Mass.  280. 

Praying  Judgment  of  the  Declaration 
Only  is  improper.  Moffatt  v.  Van  Mul- 
lingen,  2  Chit.  Rep.  539  ;  18  E.  C.  L. 
410;  2  B.  &  P.  i24«;  Whiting  v.  Des 
Anges,  4  B.  &  L.  678  ;  3  C.  B.  910; 
Davies  v.  Thompson,  9  Jur.  736  ;  14  M. 
&  W.  161.  But  where  suit  was  com- 
menced by  the  filing  and  service  of  a 
declaration,  praying  judgment  of  a 
declaration  was  held  proper.  Shaw 
V.  Dutcher,  19  Wend.  (N.  Y.)  216. 

Where  Suit  is  Commenced  by  Bill,  it  is 
held  that  judgment  of  the  bill  should 
be  prayed.  Haywood  v.  Chestney,  13 
Wend.  (N.  Y.)  495. 

Abatement  in  Part. — Where  the  mat- 
ter pleaded  went  only  in  part  abate- 
ment of  the  writ,  yet  judgment  of  the 
whole  writ  was  prayed,  it  was  held 
proper,  for  the  court  could  abate  the 
writ  in  part  and  let  it  stand  good  for 
the  remainder.  Powell  v.  Fullerton, 
2  B.  &  P.  420;  Thayer  v.  Ray,  17  Pick. 
(Mass.)  166. 

Several  Defendants. — Prayer  of  gen- 
eral judgment  of  the  writ  by  one  of 
several  defendants  pleading  mis- 
nomer was  held  bad.  Webb  v.  Sam- 
uel, 2  Miles  (Pa.)  201. 

2.  Mantz  v.  Hendley,  2  Hen.  &  M. 
(Va.)  308. 

3.  Anonymous,  2  Wils.  302. 
Prayer    for   Disability   of    Plaintiff. — 

Where  the  ground  of  abatement  is  the 
disability  of  the  plaintiff,  a  prayer  "for 
judgment  of  the  writ  and  declaration, 
and  that  the  same  be  quashed,"  is  bad ; 
it  should  be  for  "  judgment  whether 
the  defendant  should  be  compelled  to 
answer."  West  Feliciana  R.  Co.  v. 
Johnson,  5  How.  (Miss.)  276. 

Defective  Service  on  Trustee. — Where 
a  defendant  trustee  objects,  to  a  de- 
fective service  on  himself  it  is  proper 


Prayer,  Signature,  ABA  TEMENT  IN  PLEADING,     and  Verification. 

But  this  is  not  required  in  all  jurisdictions.^  Such  an  affidavit  is. 
for  the  benefit  of  the  plaintiff,  and  the  requirement  of  it  may  be 
waived  by  him.*  If  the  affidavit  is  defective,^  the  plaintiff  may 
treat  the  plea  as  a  nullity  and  enter  judgment  for  want  of  a 
plea.* 

Requisites  of  Affidavit.— The  affidavit  should  state  that  the  plea  is 
true  in  substance  and  fact  and  not  merely  that  it  is  a  true  plea.* 
It  should  be  coextensive  with  the  plea  and  leave  nothing  to  be 
collected  by  inference.*  ~  It  should  strictly  agree  with  the  plea, 


Bremer,  Peck  (Tenn.)  275;  N.  Y.  Code 
of  Civ.  Pro.,  §  513;  Marston  v.  Law- 
rence, I  Johns.  Cas.  (N.  Y.)  97;  Rich- 
mond V.  Tallmadge,  16  Johns.  (N.  Y.) 
307;  Robinson  v.  Fisher,  3  Cai.  (N.  Y.) 
99;  Smith  TJ.  Atlantic  Ins.  Co.,  22  N. 
H.  21;  Graham  v.  Fahnestock,  5  Gill 
(\ki.)  215;  Town  V.  Wilson,  8  Ark. 
464;  White  V.  Yell,  12  Ark.  139;  Whid- 
den  V.  Seelye,  40  Me.  247;  63  Am.  Dec. 
661;  Bancroft  v.  Eastman,  7  111.  259; 
King  V.  Haines.  23  111.  340. 

Statute  of  Anne. — The  Stat.  4  &  5 
Anne,  ch.  16,  t^  11  (4),  provided  that 
no  dilatory  plea  shall  be  received 
unless  the  party  offering  such  plea  do 
by  affidavit  prove  the  truth  thereof 
or  show  some  probable  matter  to  the 
court  to  induce  them  to  believe  that  the 
fact  of  such  dilatory  plea  is  true. 

Benevolent  Associations — Misjoinder. — 
In  an  action  on  a  beneficiary  certifi- 
cate of  a  benevolent  association  al- 
leged to  have  been  executed  by  two 
defendants,  one  of  them  cannot  set  up 
a  misjoinder  of  defendants  unless  he 
presents  a  plea  verified  by  affidavit  de- 
nying such  alleged  execution  of  such 
certificate.  Supreme  Lodge  A.  O.  U. 
W.  V.  Zuhlke,  30  111.  App.  98;  129  111. 
298. 

L  Rhode  Island. — A  plea  in  abate- 
ment for  non-joinder  of  joint  promisors 
need  not  in  Rhode  Island  be  accom- 
panied by  an  affidavit  of  its  truth,  for 
in  that  state  the  statute  4  &  5  Anne,  ch. 
16,  ^  II  is  not  among  the  statutes  de- 
clared in  force  by  the  act  of  1749,  and 
there  is  no  statute  or  rule  of  court  re- 
quiring such  an  affidavit.  National 
Niantic  Bank  v.  Adams  Express  Co., 
16  R.  I.  343. 

Connecticut. — No  affidavit  of  the  truth 
of  a  plea  in  abatement  is  required  in 
Connecticut.  Colburn  v.  ToUes,  13 
Conn.  524;  Wilcox  v.  Chambers,  34 
Conn.  179. 

2.  Waiver  of  Affidavit. — Graham  v. 
Ingleby,  i   Exch.   651;  5  D.   &  L.  737; 


Richmond    v.    Tallmadge,    16    Johns. 
(N.  Y.)  307. 

3.  Defective  Affidavit. — Munden  v. 
Duke  of  Brunswick,  4  C.  B.  321;  56 
E.  C.  L.  319;  Esdaile  v.  Truswell,  2 
Exch.  312;  Richards  v.  Setree,  3  Price 
197;  Davidson  v.  Watkins,  3  Dowl. 
Pr.  Cas.  129  ;  Bray  v.  Haller,  2  Moore 
213;  Dobbin  v.  Wilson,  3  N.  &  M.  260; 
Fennick  v.  Grimes,  5  Cranch  (C.  C.) 
603;  Edmonson  v.  Barrell,  2  Cranch 
(C.  C.)  228. 

4.  White  V.  Gascoyne,  3  Exch.  36; 
Rapp  V.  Elliot,  2  Dall.  (U.  S.)  184. 

5.  Dobbin  v.  Wilson,  3  N.  &  M.  260. 
Affidavit  to  Flea  of  Non-joinder. — Where 

a  defendant  pleaded  in  abatement  the 
non-joinder  of  a  joint  contractor,  and 
in  his  affidavit  in  support  thereof 
stated  that  himself  and  the  omitted 
person  were  partners  during  the  pe- 
riod within  which  the  cause  of  action 
was  alleged  to  have  accrued,  but  did 
not  show  they  continued  partners 
down  to  the  time  laid  in  the  common 
counts,  the  affidavit  was  held  insuf-- 
ficient.  Dobbin  v.  Wilson,  3  N.  &  M. 
260. 

6.  Poole  V.  Pembrey,  3  Tyr.  387;  I 
Dowl.  Pr.  Cas.  693;  Esdaile  v.  Trus- 
well, 2  Exoh.  312;  17  L.  J.  Exch.  294. 

Error  in  Addition. — Where  in  the 
title  of  a  plea  in  abatement  the  de- 
fendant described  himself  as  "  Charles 
Frederick  Augustus  William  Sovereign, 
Duke  of  Brunswick  and  Luneberg, 
sued,  etc.,"  and  in  the  affidavit  to  the 
plea  he  was  similarly  described,  but  in 
the  appearance  which  he  had  entered 
the  word  "sovereign"  was  omitted. 
held,  plaintiff  properly  signed  judgment 
treating  the  plea  as  a  nullity.  Munden 
V.  Duke  of  Brunswick,  4  C.  B.  321;  56 
E.  C.  L.  319;  16  L.  J.  C.  P.  311. 

Residence  of  Co-contractor. — Under  3 
&  4  Will.  IV,  ch.  42,  i^  8,  an  affidavit  in 
support  of  a  plea  in  abatement  for  the 
non-joinder  of  a  co-contractor  with 
defendant  must  state  the  residence  of. 


29 


Judgment 


ABATEMENT  IN  PLEADING. 


and  Trial. 


and  variance  in  the  name  of  a  party  has  been  held  to  render  it 
defective.*  When  annexed  to  the  plea  it  was  held  it  need  not 
be  entitled  in  the  cause*  or  state  the  addition  of  the  defendant.^ 
It  could  be  made  by  a  third  party  or  the  attorney*  and  sworn  to 
before  the  defendant's  attorney.*  It  could  not  be  sworn  to  before 
the  declaration  was  delivered.® 

V.  Judgment  and  Trial— judgment  for  Defendant.— Where  the  de- 
defendant  succeeds  on  a  plea  in  abatement,  whether  the  issue  be 
one  of  law  or  of  fact,  the  proper  judgment  is  "  that  the  writ  be 
quashed  unless  a  temporary  disability  or  privilege  be  pleaded, 
when  it  is  "that  the  plaintiff  remain  without  day  until,  etc."'' 

Judgment  for  Plaintiff  on  Demurrer. — Where  the  plaintiff  succeeds  on 
an  issue  of  law,  the  proper  judgment  is  "that  the  defendant 
answer  over,"®  unless  it  be  to  matter  Y>^Qa.dtd puis  darrein  con- 


such  co-contractor  at  the  time  the  plea 
is  pleaded. 

1.  Maybury  v.  Mftrdie,  5  D.  &.  L. 
360;  12  Jur.  80;  Lambe  v.  Smythe,  10 
Jur.  394;  15  L.  J.  Exch.  287;  White  v. 
Gascoyne,  18  L.  J.  Exch.  no;  Newton 
V,  Stewart,  15  L.  J.  Q.  B.  384. 

2.  Prince  v.  Nicholson,  5  Taunt.  333; 
I  Marsh.  70. 

3.  Poole  V.  Pembrey,  3  Tyr.  387;  i 
Dowl.  Pr.  Cas.  693. 

4.  Anonymous,  i  Chit.  Rep.  58;  Lum- 
ley  V.  Foster,  Barnes  344. 

6.  Horsfali  v.  Matthewman,  3  M.  & 
S.  154. 

Contra. — Cooper  v.  Archer,  12  Price 
149. 

6.  Westerdale  z*.  Kemp,  i  Tyr.  260;  i 
Dowl.  Pr.  Cas.  281;  Johnson  v.  Popple- 
well,  2  C.  &.  J.  544;  2  Tyr.  715. 

Sworn  to  on  Same  Day. — But  where  de- 
fendant swore  to  the  affidavit  at  Liver- 
pool on  the  day  the  declaration  was 
filed  in  town  (London)  and  before  he 
could  have  seen  it,  held,  not  a  nullity  so 
as  to  entitle  plaintiff  to  sign  judgment. 
Lang  V.  Comber,  4  East  348. 

7.  Chitty  on  PI.,  p.  466;  McKinstry 
V.  Pennoyer,  2  111.  319  ;  McCutchen  v. 
McCutchen,  8  Port.  (Ala.)  151  ;  Black- 
burn V.  Watson,  85  Pa.  St.  241;  Cush- 
man  v.  Savage,  20  111.  330;  Sarco  v. 
Clements,  36  Cal.  132. 

Whether  to  Writ  or  Declaration. — 
Whether  a  plea  in  abatement  is  tech- 
nically to  the  writ  or  the  declaration, 
the  action  should  abate  if  the  aver- 
ments of  the  plea  bring  the  case  with- 
in a  statute  on  the  subject  raised  there- 
by.    Tiffany  v.  Spalding,  22  111.  493. 

One  of  Two  Defendants. — Where  two 
defendants  are  sued  and  one  pleads  in 
abatement  and  the  other  in  bar,  if  the 


plea  in  abatement  is  sustained  the  ac- 
tion should  abate  as  to  the  defendant 
so  pleading  and  be  retained  for  trial  as 
to  the  other  defendant.  Foster  v,  Col- 
lins, 5  Smed.  &  M.  (Miss.)  259. 

Plaintiff  cannot  Reply. — Where  an 
issue  joined  on  a  plea  in  abatement  is 
found  for  the  defendant,  whether  it  be 
an  issue  of  fact  or  of  law,  the  proper 
judgment  is  that  the  writ  be  quashed  ; 
and  where  a  demurrer  to  a  plea  in 
abatement  is  overruled,  it  is  error  to 
give  the  plaintiff  leave  to  reply,  unless 
there  be  some  statute  authorizing  it. 
Clark  V.  Latham,  25  Ark.  16. 

8.  Renner  v.  Reed,  3  Ark.  339;  Tur- 
ner V.  Carter,  i  Head  (Tenn.)  520;  Cra- 
vens V.  Bryant,  3  Ala.  278;  Clark  v. 
Hite,  5  Blackf.  (Ind.)  167;  Moore  v. 
Morton,  i  Bibb  (Ky.)  234;  Ritter  v. 
•Hamilton,  4  Tenn.  325;  Fitch  v.  Loth- 
rop,  I  Root  (Conn.)  192;  Trow  v.  Mes- 
ser,  32  N.  H.  361;  Nichols  v.  Heacock, 
I  Root  (Conn.)  286;  Bradshaw  v.  More- 
house, 6  111.  395;  Baker  v.  Fales,  16 
Mass.  147;  Fulcher  z^.  Lyon,  4  Ark.  445; 
McBee  v.  State,  i  Meigs  (Tenn.)  122; 
Lambert  v.  Lagow,  i  Blackf.  (Ind.) 
388. 

Defendant's  Right  to  Plead  Over. — 
Where  the  court  overrules  a  plea  in 
abatement,  the  defendant  should  have 
leave  to  answer  or  plead  to  the  merits. 
Kendrick  v.  Davis,  3  Coldw.  (Tenn.) 
524- 

Plea  Frivolous. — When  a  plea  in 
abatement  is  stricken  out  as  frivolous, 
the  defendant  may  answer  over.  Gib- 
son V.  Laughlin,  Minor  (Ala.)  182. 

To  Plead  Over  Instanter. — The  de- 
fendant may  be  ordered  by  the  court  to 
plead  over  instanter.  Cotton  v.  Rea- 
vill,  2  Bibb  (Ky.)  199. 


30 


Jadgment 


ABATEMENT  IN  PLEADING. 


and  TriaL 


iinuance,  when  the  judgment  may  be  final.* 

Judgment  for  Plaintiff  on  Issue  of  Fact.— Where  an  issue  of  fact  joined  on 
a  plea  of  abatement  is  found  in  favor  of  the  plaintiff,  the  effect  of 
it  is  an  admission  of  the  merits  of  the  plaintiff's  claim,  and  the 
judgment  thereon  is  final  in  favor  of  the  plaintiff,  and  the  jury 
which  determines  the  issue  should  determine  the  plaintiff's  dam- 


ages.- 

Tried  by  Record. — Where  the  issue 
on  defendant's  plea  in  abatement  of  a 
former  recovery  is  tried  by  the  record 
and  found  against  the  defendant,  the 
proper  judgment  is  "that  defendant 
answer  over."  Johnston  v.  Hubbell, 
Wright  (Ohio)  69;  Marston  v.  Law- 
rence, I  Johns.  Cas.  (N.  Y.)  97. 

Non  Pros,  if  Plaintiff  does  not  Eeply. — 
If  plaintiff  fails  to  file  a  replication  to 
defendant's  plea  in  abatement,  defend- 
ant is  entitled  to  a  judgment  of  non 
pros.  Gaston  v.  Parsons,  8  Port.  (Ala.) 
469. 

1.  Hutchinson  v.  Brock,  11  Mass. 
124;  Turner  v.  Carter,  i  Head  (Tenn.) 
520;  Renner  v.  Marshall,  i  Wheat.  (U. 
S.)  215. 

Wrong  Prayer — Jadgment  Final. — 
Where  the  defendant  improperly  com- 
mences or  concludes  his  plea  in  bar 
and  it  contains  matter  only  pleadable 
in  abatement,  or  where  he  pleads  in 
abatement  puis  darrein  continuance,  the 
judgment  may  be  final.  Turner  v. 
Carter,  i  Head  (Tenn.)  520. 

Final  by  Statute — Massachusetts. — In 
Massachusetts  since  the  act  of  1840  a 
decision  on  any  question  arising  on  a 
plea  in  abatement  by  the  superior 
court  or  common  pleas  is  final, 
whether  it  be  upon  the  face  of  the  rec- 
ord, as  by  demurrer  or  otherwise,  or 
upon  the  admission  of  evidence  or  in- 
structions to  the  jury.  Such  a  decision 
cannot  be  reviewed  in  the  supreme 
court.  Hamlin  v.  Jacobs,  99  Mass. 
500. 

2.  Courts  of  United  States  Final, — Under 
the  provisions  of  the  22d  section  of  the 
Judiciary  Act  of  17S9,  the  decisions  or 
rulings  of  circuit  and  district  courts  of 
the  United  States  on  a  plea  in  abate- 
ment are  final  and  cannot  be  reversed 
by  the  supreme  court.  Piquignot  v. 
Pennsylvania  R.  Co.,  16  How.  (U.  S.) 
104.  See  Mexican  Cent.  R.  Co.  v. 
Pinkney,  149  U.  S.  194  ;  Chase  v. 
Deming,  42  N.H.  274;  Dodge  v.  Morse, 
3  N.  H.  232  ;  Straus  v.  Weil,  5  Coldw. 
(Tenn.)  120;  Hollingsworth  v.  Duane, 
Wall.  (C.  C.)  51  ;  Myers  v.   Erwin,  20 


Ohio  381  ;  Moore  v.  Morton,  i  Bibb 
(Ky.)  234  ;  Boston  Glass  Manufactory 
V.  Landgon,  24  Pick.  (Mass.)  49;  35 
Am.  Dec.  292  ;  McCartee  v.  Chambers, 
6  Wend.  (N.Y.)  649  ;  Ailing  v.  Shelton, 
16  Conn.  436 ;  Haighs  v.  Holley,  3 
Wend.  (N.  Y.)  258  ;  Mehaffy  v.  Share, 
2  P.  &  W.  (Pa.)  361  ;  Jewett  v.  Davis, 
6  N.  H.  518  ;  Eichorn  v.  Le  Maitre,  2 
Wils.  367;  Mechanics,  etc..  Bank  v.  Da- 
kin,  24  Wend.  (N.  Y.)  41 1 ;  Thompson  v. 
Haislip,  14  Ark.  220  ;  Witmer  v.  Scho- 
latter,  2  Rawle  (Pa.)  359  ;  Babcock  v. 
Scott,  I  How.  (Miss.)  100;  Rexw.  Shake- 
speare, 10  East  83;  Marsh  v.  Smith,  18 
N.  H.  366. 

Statute  allowing  Pleas  in  Abatement 
and  Bar. — In  Indiana  under  the  pro- 
visions of  the  code  a  defendant  may 
plead  in  abatement  and  in  bar  at  the 
same  time.  Under  such  provision, 
where  defendant  pleads  in  abatement 
only  and  the  issue  joined  thereon  is 
found  against  the  defendant,  the 
plaintiff  is  entitled  to  final  judgment 
and  defendant  cannot  plead  over. 
Thompson  v.  Greenwood,  28  Ind.  327. 

After  Judgment  against  him  Defendant 
cannot  Plead  in  Bar. — Under  the  code  of 
Indiana,  all  defences  whether  in  bar 
or  abatement  must  be  pleaded  in  the 
same  answer;  and  where  a  defendant, 
sued  for  goods  sold,  pleaded  in  abate- 
ment the  non-joinder  of  a  joint  pur- 
chaser, and  this  issue  was  decided 
against  him,  held,  it  was  proper  to 
refuse  him  leave  to  withdraw  his 
answer  and  plead  in  bar.  Bond  v. 
Wagner,  28  Ind.  462. 

Defendant  cannot  Demur  after  Issue  found 
against  Plea. — After  the  defendant  has 
pleaded  in  abatement  to  the  jurisdic- 
tion, raising  an  issue  of  non-residence, 
and  that  issue  has  been  found  against 
him,  it  is  too  late  for  him  to  demur. 
Final  judgment  should  be  rendered 
for  plaintiff,  and  the  jury  who  found 
on  the  issue  of  non-residence  should 
assess  plaintiff's  damages.  Brown  v. 
Illnois  Cent.  Mut.  Ins.  Co. ,42  111.  366. 

Final  Judgment  on  Plea  in  Beview. — 
Where   defendant  in  a  writ  of  review 


31 


Waiver  of  Plea.       ABATEMENT  TN   PLEADING.       Waiver  of  Plea. 

Burden  of  Sustaining  Plea. — The  burden  of  sustaining  the  plea  rests, 
on  the  defendant.* 

Trial.— A  plea  involving  the  question  of  records  is  to  be  tried  by 
the  court,*  and  only  the  records  referred  to  in  the  plea  can  be  ex- 
amined.^ 

Attacking  Declaration.— If  defeated  on  his  plea,  defendant  cannot 
attack  the  declaration."* 

Bad  Plea— Signing  Judgment.— It  has  been  held  that  plaintiff  need; 
not  demur  to  a  bad  plea,  but  may  sign  judgment.* 

VI.  Waiver  of  Plea.— The  right  of  a  defendant  to  plead  in. 
abatement  may  be  lost  or  waived  in  various  ways. 

By  Pleading  to  Merits.— Pleas  in  abatement  were  required  to  be 
pleaded  before  pleas  in  bar  or  to  the  merits,  and  it  was   and   still 


pleads  in  abatement  thereof  "  that  the 
writ  has  been  materially  altered  since 
it  was  sued  out,"  and  the  jury  finds 
against  defendant  on  this  plea,  the 
plaintiff  in  review. is  entitled  to  judg- 
ment in  chief  in  his  favor.  Good  v. 
Lehan,  8  Cush.  (Mass.)  301. 

Whole  Plea  not  Proved. — Where  a  de- 
fendant, sued  in  the  county  court  of 
Rutland,  pleaded  in  abatement  that 
she  was  not  a  resident  of  the  county 
of  Rutland,  but  was  a  resident  of 
Woodstock  in  the  county  of  Windsor, 
and  on  issue  thereon  joined  the  court 
found  the  fact  "that  defendant  was 
not  a  resident  of  Rutland,"  but  did 
not  find  where  she  resided,  and  ren- 
dered judgment  for  defendant  "that 
the  writ  abate," — held,  on  appeal,  that 
this  was  error,  as  defendant  had  not 
proved  the  substantial  allegations  in 
the  plea,  and  that  judgment  should 
have  been  rendered  for  the  plaintiff  in 
chief  for  the  relief  asked  in  the  com- 
plaint. Vanderburg  v.  Clark,  22  Vt. 
185. 

Plea  Sustained  in  Part  Only. — In  an 
action  of  ejectment  the  prayer  of  a  plea 
in  abatement  was  that  the  writ  be 
quashed  as  to  all  the  defendants  for 
defects  in  the  service.  It  was  shown 
the  service  was  defective  only  as  to 
part  of  the  defendants  and  was  good  as 
to  the  others,  and  the  action  was  such 
that  it  might  by  law  proceed  against 
the  defendant  duly  served  only.  Held, 
the  prayer  of  the  plea  was  too  broad 
and  it  should  be  dismissed.  Bliss  v. 
Smith,  42  Vt.  198. 

1.  Another  Action  Pending. — The  plea 
of  another  action  pending  is  an  affirm- 
ative plea,  and  the  burden  of  proving 
it  pests  on  the  defendant,  and  he  must 
sustain  it  by  record  evidence.     Proof 


of  the  issuing  of  a  writ  for  the  same 
cause  of  action  makes  a  priina-facie 
case  and  shifts  the  burden  of  proof  to 
plaintiff.  Fowler  v.  Byrd,  i  Hempst.. 
(U.  S.)_2i3. 

Non-joinder. — On  a  plea  that  a  joint 
promisor  is  not  joined  with  defend- 
ant in  the  writ,  the  burden  of  proof 
rests  on  defendant.  Jewett  v.  Davis, 
6  N.  H.  518. 

Right  to  Office. — Where  plaintiff's 
right  to  an  office  is  put  in  issue  by  a 
plea  in  abatement,  plaintiff  must  prove 
himself  such  de  jure  as  well  as  de  facto. 
Davis  V.  Mofiitt,  4  Greene  (Iowa) 
92. 

2.  Variance  between  Writ  and  De- 
claration.—Where  a  plea  in  abatement 
raises  the  question  of  a  variance  be- 
tween the  writ  and  declaration,  the 
question  is  to  be  determined  by  the 
court  without  the  intervention  of  a 
jury.     Dickinson  I*.  Noland,  7  Ark.  25. 

Another  Action  Pending. — Where,  in 
an  equity  action,  defendant  pleads  in 
abatement  the  pendency  of  another 
suit  between  the  same  parties,  the 
question  is  to  be  determined  by  a  master 
in  chancery.  McEwen  v.  Broadhead, 
II  N.  J.  Eq.  129. 

3.  Pearson  v.  French,  9  Vt.  349; 
Bowman  v.  Stonell,  21  Vt.  309  ;  Strick- 
land V.  Martin,  23  Vt.  484. 

4.  Shaw  V.  Dutcher,  19  Wend.  (N. 
Y.)  216. 

5.  Plea  not  Conforming  to  Rules  of 
Pleading. — Pleas  in  abatement  are  re- 
quired to  be  precisely  accurate  in  form; 
and  where  such  a  plea  does  not  con- 
form to  the  rules  established  as  to  such 
pleas,  the  plaintiff  is  not  compelled  to 
demur  to  it,  but  may  treat  it  as  a 
nullity  and  sign  judgment.  Anony- 
mous, Hempst.  (U.  S.)  215. 


Z^ 


Waiver  of  Plea.       ABATEMENT  IN  PLEADING.      Waiver  of  Plea. 

is  the  rule  in  many  jurisdictions  that  by  pleading  to  the  merits 
either  before  or  at  the  same  time  he  pleaded  in  abatement  a 
defendant  lost  his  right  to  plead  in  abatement.*     So,  too,  a  prior 
plea  in  abatement  is  waived  by  a  subsequent  plea  to  the  merits.* 
Affidavit  of  Merits— Going  to  Trial.— Filing  an   affidavit   of    merits^   or 


1.  Reagan  v.  Irvin,  25  Ark.  86 ; 
Johnson  v.  Killian,  6  Ark.  172;  Odle 
V.  Floyd,  5  Ark.  248  ;  Butts  v.  Grayson, 

14  Ark.  445;  Bacon  v.  Weston,  11  Cush. 
(Mass.)  164  ;  Plantation  No.  9  v.  Bean, 
40  Me.  218  ;  Pattee  v.  Lowe,  35  Me.  121  ; 
Gilbert  v.  Tramell,  2  Coldvv.  (Tenn.) 
282  ;  Allen  v.  Reed,  66  Tex.  13  ;  Drake 
V.  Brander,  8  Tex.  351  ;  Fugate  v. 
Glasscock,  7  Mo.  577  ;  Ferguson  v. 
Wood,  23  Tex.  177  ;  Burchard  v. 
Record  (Tex.,  1891),  17  S.  W.  Rep.  241  ; 
Washington,  etc.,  Tel.  Co.  v.  Hobson, 

15  Gratt.  (Va.)  122  ;  Palmer  v.  Green, 
I  Johns.  Cas.  (N.  Y.)  loi  ;  Anoymous, 

3  Cai.  (N.Y.)  103  ;  Hastings  v.  Bolton, 
I  Allen  (Mass.)  529  ;  Foot  v.  Knowles, 

4  Met.  (Mass.)  386  ;  Simonds  v.  Parker, 
I  Met.  (Mass.)  508  ;  Wolcott  v.  Mead, 

12  Met.  (Mass.)  516  ;  Wilson  v.  Hamil- 
ton, 4  S.  &  R.  (Pa.)  238;  Clymer  v. 
Thomas,  7  S.  &  R.  (Pa.)  181  ;  Jones 
V.  Cincinnati,  etc.,  R.  Co.,  14  Ind.  89; 
New  Albany,  etc.,  R.  Co.  v.  Wilson,  16 
Ind.  402  ;  State  v.  Ruhlman,  iii  Ind. 
17;  Keller  z/.  Miller,  17  Ind.  206;  Hop- 
wood  V.  Patterson,  2  Oregon  49  ;  Del- 
reauline  v.  Boisneuf,  4  Har.  &  M. 
(Md.)4i3;  Kerr  v.  Willetts,  48  N.  J. 
L.  78  ;  Bliss  V.  Barnes,  McCahon, 
(Kan.)  91  ;  Chaffee  v.  Ludeling,  34  La. 
Ann.  962;  Silvernagle  z/.  Fluker,  21  La. 
Ann.  188  ;  Simmons  v.  Thomas,  43 
Miss.  31  ;  5  Am.  Rep.  470  ;  Green  v. 
Craig,  47  Mo.  90  ;    Hatry  v.   Shuman, 

13  Mo.  547  ;  Brown  v.  Powell,  45  Ala. 
149  ;  Hartz/.  Turk,  15  Ala.  677;  Lyman 
V.  Central  Vt.  R.  Co.,  59  Vt.  167;  Papke 
V.  Papke,  30  Minn.  260 ;  French  v. 
Donohue,  29  Minn.  11 1;  Baltimore,  etc., 
R.Co.  V.  Harris,i2  Wall.(U.S.)65:  Cook 
V.  Burnley,  11  Wall.  (U.S.)  659  ;  Dowell 
Z'.Cardwell,  4Sawy.(U.S.)  217;  Spencer 
V.  Lapsley,  20  How.  (U.  S.)  264;  Fen- 
wick  V.  Grimes,  5  Cranch  (C.  C.)  603  ; 
Sheppard  v.  Graves,  14  How.  (U.  S.) 
512  ;  Bayreau  v.  Campbell,  McAU. 
(U.  S.)  119. 

Rule  not  Changed  by  Pleas  by  Answer. 
— The  statute  of  Massachusetts  au- 
thorizing pleas  in  abatement  to  be 
made  by  answer  does  not  extend  a 
defendant's  time  for  filing  such  a  plea, 
nor  does  it  authorize  him  to  answer  in 

I  Encyc.  PI.  &  Pr.— 3.  33 


abatement  and  to  the  merits  at  the 
same  time  and  in  the  same  answer. 
Pratt  V.  Sanger,  4  Gray  (Mass.)  84. 

Due  Order  of  Pleading. — Where  a 
petition  apparently  shows  jurisdiction, 
the  question  of  want  of  jurisdiction 
can  only  be  raised  by  a  plea  in  abate- 
ment ;  and  under  the  provisions  of 
article  1262  of  the  Texas  Revised 
Statutes,  requiring  the  defendant  to 
file  his  pleadings  in  due  order  of 
pleading,  such  a  plea  must  be  filed 
before  an  answer  on  the  merits  or 
it  is  too  late.  Hoffman  v.  Cleburne 
Bldg.,  etc.,  Assoc,  2  Tex.  Civ.  App. 
688. 

Death  before  Action  brought  Waived. — 
Where  the  defendant  has  pleaded  the 
general  issue  after  the  death  of  the 
plaintiff  has  been  suggested,  her  per- 
sonal representative  substituted,  and 
the  declaration  amended  accordingly, 
it  is  too  late  to  raise  the  objection  that 
plaintiff  died  before  the  action  was 
originally  brought,  as  this  objection 
could  be  taken  only  by  a  plea  in  abate- 
ment and  is  waived  by  pleading  to  the 
merits.     Mills  v.  Bland,  76  111.  381. 

No  Beply  Necessary. — After  pleading 
in  bar,  a  plea  in  abatement  for  non- 
joinder is  a  nullity  and  requires  no 
response.    Lewis  v.  State,  65  Miss.  468. 

2.  Hart  v.  Turk,  15  Ala.  675  ;  Smith 
V.  State,  19  Conn.  493  ;  Chapman  v. 
Davis,  4  Gill  (Md.)  166;  Sheppard  v. 
Graves,  14  How.  (U.S.)  505  ;  Gilmore 
V.  Howland,  26  111.  200  ;  Burnham  v. 
Webster,  5  Mass.  266  ;  Wade  v.  Kelly, 
2  Stew.  (Ala.)  448  ;  Hotchkiss  v. 
Thompson,  i  Morr.  (Iowa)  156  ;  Davis 
V.  Dickson,  2  Stew.  (Ala.)  370  ;  Robert- 
son V.  Lea,  I  Stew.  (Ala.)  141. 

Right  Reserved  to  Appeal  Waived. — 
Where,  on  the  decision  of  a  demurrer, 
the  right  is  reserved  to  a  defendant  to* 
ask  the  opinion  of  an  appellate  court 
on  a  plea  in  abatement  interposed  by 
him,  such  right  is  waived  and  lost  by 
the  defendant's  filing  a  plea  to  the 
merits.  Pattee  v.  Harrington,  11  Pick. 
(Mass.)  221. 

3.  Walpole  z/.  Gray,  11  Allen  (Mass.) 
149 ;  Whipple  v.  Rogerson,  12  Gray 
(Mass.)  347. 


Waiver  of  Plea.      ABATEMENT  IN  PLEADING.      Waiver  of  Plea. 

going  to  trial  on  the  merits  without  objection  has  been  held  a 
waiver  of  a  plea  in  abatement.*  But  pleading  over  after  demurrer 
has  been  held  not  a  waiver.* 

Pleading  Out  of  Order.— Pleas  in  abatement  should  be  pleaded  in  due 
order,  and  by  pleading  a  plea  subsequent  in  the  order  of  plead- 
ing it  has  been  held  that  the  right  a  plea  naturally  preceding  it 
in  the  order  of  pleading  is  waived.*  So,  too,  it  has  been  held  that 
where  a  defendant  has  once  pleaded  in  abatement,  he  can  after- 
wards only  plead  in  bar.'* 

Withdrawing  Plea  to  Merits.— After  a  plea  to  the  merits  the  defend- 
ant cannot  withdraw  it  and  plead  in  abatement,  except  by  leave 
of  court,  which  will  only  be  granted  in  general  under  very  special 
circumstances.^ 


1.  Cannot  Object  in  Appeal. — By  going 
to  trial  on  the  merits  without  objection, 
a  defendant  waives  a  plea  in  abate- 
ment and  cannot  afterwards  object 
that  it  was  not  disposed  of,  or,  if  it  was 
passed  on,  to  the  ruling  of  the  court 
on  it,  to  which  no  exception  was  taken. 
Starr  v.  Wilson,  i  Morr.  (Iowa)  438  ; 
Cook  V.  Stuben  County  Bank,  i  Greene 
(Iowa)  447. 

Trial  on  Merits — Waiver. — A  defence 
which  under  the  old  practice  was  only 
available  by  way  of  plea  in  abatement 
must,  under  the  North  Carolina  Code, 
be  set  up  in  some  way  by  answer  and 
insisted  on  before  a  trial  on  the  merits 
is  had,  and  if  it  be  not  so  pleaded  it 
will  be  considered  as  waived.  Hicks 
V.  Beam,  112  N.  Car.  642. 

2.  In  Bar  after  Decision  of  Bemurrer  to 
Plea. — Where,  on  demurrer  to  a  defend- 
ant's plea  in  abatement,  judgment  is 
rendered  in  favor  of  the  plaintiff,  a 
subsequent  plea  in  bar  by  defendant 
is  not  a  waiver  of  such  plea  in  abate- 
ment.    Delahay  v.  Clement,  4  111.  201. 

3.  Brown  v.  Peevey,  6  Ark.  37 ; 
Taylor  v.  Kelley,  13  Ark.  loi;  Mitchum 
V.  Droze,  11  Rich.  (S.  Car.)  196. 

4.  Houck  V.  Scott,  8  Port.  (Ala)  169; 
Cook  V.  Yarwood,  41  111.  115. 

But  this  does  not  apply  where  the 
declaration  is  amended  after  plea  ;  in 
such  case  it  has  been  held  defendant 
may  again  plead  in  abatement.  Mills 
V.  Bishop,  Kirby  (Conn.)  6. 

5.  MeggS"  V.  Shaffer,  Hard.  (Ky.) 
70;  Ripley  v.  Warren,  2  Pick.  (Mass.) 
593;  Stone  V.  Proctor,  2  D.  Chip.  (Vt.) 
114;  Keller  v.  Miller,  17  Ind.  206; 
Riddle  v.  Stevens,  2  S.  &.  R.  (Pa.)  537; 
Clymer  v.  Thomas.  7  S.  &  R.  (Pa.)  178; 
Palmer  v.  Evertson,  2  Cow.  (N.  Y.) 
417;    Clapp    V.     Balch,     3    Me.     216; 


Engle  V.  Nelson,  i  Pa.  St.  442;  Hart 
V.  Turk,  15  Ala.  675;  Betzaldt  v. 
American   Ins.  Co.,  47  Fed.  R^p.   705. 

Power  of  Court.  —  The  court  has 
power  in  its  discretion  to  allow  a  plea 
in  bar  or  to  the  merits  to  be  with 
drawn  and  a  plea  in  abatement  put  in. 
Talby  v.  Hamilton,  i  Hall  (N.  Y.)222; 
Evans  v.  Davenport,  4  McLean  (U.  S.) 
76;  Kern  v.  Huiderkoper,  103  U.  S. 
485. 

Contra. — Bank  of  Columbia  v.  Scott, 
I  Cranch  (C.  C.)  134;  Yeatman  v. 
Henderson,  i  Pittsb.  (Pa).  20. 

What  is  Withdrawal. — Filing  a  plea 
in  abatement  by  special  leave  of  court 
is  in  effect  the  withdrawal  of  a  former 
plea  to  the  merits.  Kern  v.  Huide- 
koper,  103  U.  S.  4S5. 

Not  Allowed  although  in  Due  Time. 
— The  defendant  will  not  be  allowed 
to  withdraw  his  answer  pleading  the 
general  issue  and  put  in  a  plea  of 
coverture  in  abatement,  although  such 
plea  in  abatement  is  presented  in  due 
time,  and  defendant  swears  that  the 
general  issue  was  pleaded  without  his 
knowledge  or  consent  by  a  person 
whom  he  never  intended  to  retain 
as  his  attorney.  Anonymous,  3  Cai. 
(N.Y.)  103. 

Unknown  at  Time  of  Flea  to  Merits. — 
After  an  answer  on  the  merits  is  filed, 
the  court  has  no  power  to  allow  a  plea 
in  abatement  to  the  effect  that  neither 
party  lived  in  the  county  where  the 
writ  was  returnable,  although  plain- 
tiff is  described  in  the  writ  as  a  resi- 
dent of  that  county,  and  the  fact  that 
he  was  not  such  a  resident  was  not 
known  to  the  defendant  at  the  time 
his  answer  on  the  merits  was  filed. 
Hastings  v.  Bolton,  i  Allen  (Mass.) 
529- 


34 


Waiver  of  Plea.       ABATEMENT  IN  PLEADING.      Waiver  of  Plea. 


Exception  to  Eule.— In  many  of  the  states  the  rule  that  matter  in 
abatement  must  be  pleaded  and  disposed  of  before  matter  in 
bar  does  not  obtain,  and  in  them  the  defendant  may  plead  matter 
in  abatement  and  to  the  merits  in  the  same  answer,  and  the  one 
is  not  held  to  be  a  waiver  of  or  to  overrule  the  other.^  But  it  is 
still  held  that  objections  in  abatement  are  waived  if  not  taken  by 
answer  or  demurrer.*  Where  pleas  in  abatement  and  to  the 
merits  are  allowed  at  the  same  time,  it  has  been  held  that  there 
should  be  a  separate  decision  or  verdict  on  the  pleas  in  abate- 
ment.' 


1.  New  York. — In  New  York  the  pro- 
visions of  the  Code  allow  a  defend- 
ant to  plead  as  many  defences  as  he 
chooses  in  one  answer.  The  effect  of 
this  is  practically  to  abolish  the  dis- 
tinction between  pleas  in  bar  and 
in  abatement,  so  far  as  the  order  of 
pleading  them  is  concerned,  so  that  by 
pleading  to  the  merits  a  defendant 
does  not  waive  a  plea  in  abatement 
contained  in  the  same  answer.  N.  Y. 
Code  of  Civ.  Pro.  §  507;  Sweet  v.  Tut- 
tle,  14  N.  Y.  465;  Gardner  v.  Clark, 
21  N.  Y.  399;  Merchants'  Nat.  Bank 
V.  Macnaughton,  i  Abb.  N.  Cas. 
(N.  Y.)  293«;  Bridge  v.  Payson,  5 
Sandf.  (N.  Y.)  210;  Hamburger  v. 
Baker,  35  Hun  (N.  Y.)  455. 

Indiana. — In  Indiana  it  was  held 
that  matter  in  abatement  could  be 
pleaded  at  the  same  time  as  matter  in 
bar  and  was  not  overruled  thereby. 
Thompson  v.  Greenwood,  28  Ind.  327; 
Bond  V.  Wagner,  28  Ind.  462. 

But  the  Revised  Stat,  of  1881,  §  365, 
restored  the  old  rule  and  requires 
matter  in  abatement  to  be  pleaded  be- 
fore matter  in  bar. 

Iowa. — The  Iowa  Code  of  1873,  § 
2732,  provides  that  matter  of  abate- 
ment may  be  stated  in  the  answer  or 
reply,  either  together  with  or  without 
causes  of  defence  in  bar,  and  no  one  of 
such  causes  shall  be  deemed  to  over- 
rule the  other;  nor  shall  a  party  after 
a  trial  on  matter  in  abatement  be  al- 
lowed in  the  same  action  to  answer 
or  reply  matter  in  bar. 

Arkansas.  —  Under  the  Arkansas 
Code  the  rule  of  the  common  law 
that  matter  in  abatement  is  waived  by 
pleading  in  bar  does  not  prevail,  and 
the  two  defences  may  be  set  up  in  the 
same  answer.  Erb  v.  Perkins,  32  Ark. 
428;  Grider  v.  Apperson,  32  Ark.  332. 

Missouri. — Under  the  provisions  of 
the  Missouri  Code,  which  contemplate 
but  one  answer,  the  question  of  the 
citizenship  of  the  plaintiffs  suing  in  a 


federal  court  may  be  raised  in  the  an- 
swer and  joined  therein  with  other 
matters  of  defence,  and  not  be  set  up 
primarily  by  a  separate  plea  in  abate- 
ment. Kingman  v.  Holthaus,  59  Fed. 
Rep.  305.  And  this  is  the  same  also  as 
to  other  defences  in  abatement.  Chris- 
tian V.  Williams,  in  Mo.  429;  Little  v. 
Harrington,  71  Mo.  390,  overruling 
Rippstein  v.  St.  Louis,  etc.,  Mut.  L. 
Ins.  Co.,  57  Mo.  86,  and  Fordyce  v. 
Hathorn,  57  Mo.  120. 

Wisconsin. — In  Wisconsin,  under  the 
provisions  of  the  Code,  a  defendant 
may  plead  in  abatement  at  the  same 
time  with  a  plea  on  the  merits,  and 
the  rule  that  the  right  to  plead  in 
abatement  is  lost,  and  a  previous  plea 
in  abatement  waived,  by  a  plea  to  the 
merits,  does  not  obtain  there.  Free- 
man V.  Carpenter,  17  Wis.  126; 
Dutcher  v.  Dutcher,  39  Wis.  651. 

Washington. — A  plea  in  abatement  is 
not  necessary  in  common-law  actions 
to  raise  the  question  of  the  jurisdiction 
of  the  United  States  Circuit  Court, 
where  the  state  practice  dispenses  with 
the  necessity  of  such  plea  before  an- 
swering on  the  merits.  Green  v.  Ta- 
coma,  53  Fed.  Rep.  562. 

Bhode  Island. — In  Rhode  Island  a 
plea  in  abatement  is  not  waived  by  fil- 
ing at  the  same  time  a  plea  to  the 
merits  or  an  affidavit  of  merits.  Gard- 
ner V.  Janes,  5  R.  I.  235. 

Georgia. — By  the  provision  of  the 
Code  of  Georgia  a  plea  to  the  merits  is 
not  a  waiver  of  a  plea  in  abatement. 
Jernigan  v.  Carter,  51  Ga.  232. 

2.  N.  Y.  Code  of  Civ.  Pro.  §  499; 
Kromer  v.  Reynolds,  19  N.  Y.  Wkly. 
Dig.  383;  Holbrook  v.  Baker,  16  Hun 
(N.  Y.)  176;  Briggs  v.  Carroll,  50  Hun 
(N.  Y.)  586;  Selye  v.  Zimmer,  15  N.  Y. 
Supp.  881;  61  Hun  (N.  Y.)623;  DePuy 
V.  Strong,  37  N.  Y.  372;  Garvey  v. 
New  York  L.  Ins.,  etc.,  Co.  (Supreme 
Ct.),  14  N.  Y.  St.  Rep.  909. 

3.  Separate    Findings. — Where    it    is 


35 


Tleas  Fui»I>firTf>in  ABA  r£Af£NT  IN   PLEADING.  Continuance, 


By  D«murring.-By  demurring  it  is  held  that  a  defendant  waives  the 
right  to  plead  in  abatement.* 

By  Lache.  or  Agreement.-The  right  to  plead  in  abatement  may  alsa 
be  lost  or  waived  by  laches*  or  by  an  agreement  "  to  plead  and 
try  at  the  next  term."' 

After  Imparlance.— It  is  held  too  late  to  SO  plead  after  a  general 
imparlance."*    But  after  a  special  imparlance  it  has  been  allowed.* 

Proceeding  in  Cause— The  right  to  plead  in  abatement  has  been  held 
to  be  lost  by  proceeding  in  the  cause  and  not  raising  the 
objection.* 

PiainUflf'i  Demurrer.— By  demurring  to  a  plea  in  abatement  it  has 
been  held  the  objection  that  it  was  filed  too  late  is  not  waived ;  '' 
but  the  contrary  has  also  been  held.** 

VIL  Pleas  Puis  Daebein  Continuance — Matter  Arising  after  issue. — 
Where  matter  of  abatement  arises  or  occurs  after  issue  joined  it 
may,  and  must,  to  be  available,  be  pleaded  by  plea  puis  darrein 
continuance,  and  may  be  so  pleaded  although  the  right  to  plead 


allowed  the  defendant  by  the  practice 
to  plead  several  pleas,  and  hence  the 
rule  that  pleading  to  the  merits  waives 
pleas  in  abatement  dofs  not  prevail, 
the  jury,  where  the  case  is  tried  before 
them,  should  be  instructed  to  find 
separately  on  the  issues  in  abatement 
and  in  bar.     Gardner  z/.  Clark,  21  N.  Y. 

399- 

First  Disposed  of  by  Court. — Although 
the  Georgia  Code  provides  that  a  plea 
to  the  merits  is  not  a  waiver  of  a  plea 
to  the  jurisdiction,  it  should  be  so  con- 
strued as  to  require  the  plea  to  the 
jurisdiction  to  be  disposed  of  first. 
Jernigan  v.  Carter,  51  Ga.  232. 

1.  Fergerson  v.  Rawlins,  23  111.  69; 
Knowlton  v.  Culver,  i  Chand.  (Wis.) 
16;  Foreman  v.  Gibson,  15  Ark.  206; 
Indiana,  etc.,  R.  Co.  v.  Scearce,  23  Ind. 
223;  Meyer  z'.  Smith  (Tex.  Civ.  App., 
1893).  21  S.  W.  Rep.  995. 

2.  Stiles  V.  Horner,  21  Conn.  507; 
York  V.  Gregg,  9  Tex.  85;  Smith  v. 
State,  19  Conn.  493. 

3.  Shaw  V.  Bowen,  i  Overt.  (Tenn.) 
249. 

4.  Webster  v.  Byrnes,  32  Md.  86; 
Roberts  v.  Sherman,  28  111.  79;  Hinck- 
ley V.  Smith,  4  Watts  (Pa.)  433; 
Chamberlain  v.  Hite,  5  Watts  (Pa.) 
373;  Holloway  v.  Freeman,  22  111.  202; 
Coates  V.  McCamm,  2  Browne  (Pa.) 
173;  McCarney  v.  McCamp,  i  Ashm. 
(Pa.)  4;  Chambers  v.  Haley,  Peck 
(Tenn.)  159;  Martin  v.  Com.,  i  Mass. 
347;  Archer  v.  Claflin,  31  111.  306; 
Witmer  v.  Schlatter,  15  S.  &  R.  (Pa.) 
150;  Coffin  V.  Jones,  5  Pick.  (Mass.)  61 ; 
Wyman  v.  Dorr,  3   Me.   186;   Otis   v. 


Ellis,  78  Me.  75;  Jennisonz/.  Hopgood, 
2  Aik.  (Vt.)  31. 

Cannot,  although  Declaration  Amended. 
— Where,  after  a  general  imparlance 
and  pl^  of  the  general  issue,  the  plain- 
tiff amends  his  declaration  on  leave  ob- 
tained, the  defendant  cannot  plead  in 
abatement  a  variance  between  the  writ 
and  amended  declaration,  which  vari- 
ance existed  between  the  writ  and 
original  declaration.  Chapman  v. 
Davis,  4  Gill  (Md.)  166. 

Ignorance  of  Ground  of  Abatement  no 
Excuse. — When  a  cause  of  abatement 
arises  after  the  first  day  of  the  term, 
defendant  must  inform  himself  of  it 
and  file  his  plea  within  a  reasonable 
time  or  it  is  too  late.  Ignorance  of  the 
cause  of  abatement  will  not  justify  the 
filing  of  the  plea  after  the  proper  time. 
James  v.  Morgan,  36  Conn.  348. 

6.  Purple  V.  Clark,  5  Pick.  (Mass.) 
206;  McCarney  v.  McCamp,  i  Ashm. 
(Pa.)  4;  Coates  z/.  McCamm,  2  Browne 
(Pa.)  173. 

Eemoval  of  Cause. — After  removing 
an  action  to  the  Supreme  Judicial 
Court  in  Massachusetts  pursuant  to 
the  provisions  of  the  statute  of  1840, 
ch.  87,  §  3,  a  defendant  may  plead  in 
abatement.  Colt  v.  Partridge,  7  Met. 
(Mass.)  570. 

6.  State  V.  Faust,  7  Coldw.  (Tenn.) 
109;  Spalding  v.  Watheh,  7  Bush 
(Ky.)  659;  Otis  V.  Warren,  14  Mass. 
239;  Barstow  z/.  Fossett,  11  Mass.  250. 

7.  Jennison  v.  Hopgood,  2  Aik. 
(Vt.)  31. 

8.  Northum  v.  Kellogg,  15  Conn. 
569. 


36 


Pleas  Puis  Darrein  ^^^r^J/^-^Vr  IN  PLEADING. 


Continuance. 


it  would  have  been  lost  under  the  rules  of  pleading  had  it  arisen 
before  issue.* 

Supplemental  Answer. — Under  many  of  the  codes  such  matter  is  to 
be  set  up  by  supplemental  answer.'-^ 

Pleaded  as  Soon  as  Known. — Such  matter  should  be  pleaded  as  soon 
as  it  comes  to  the  knowledge  of  the  party.^  It  may  be  pleaded 
at  a  trial  if  not  known  until  then,*  but  not  after  verdict.^ 

Waives  Other  Pleas — Pleas  puis  darrein  continuance  are  a  waiver 
of  all  other  pleas,  which  are  considered  as  stricken  from  the  rec- 
ord, and  the  party  pleading  them  is  compelled  to  stand  on  them 
alone  as  though  he  had  pleaded  no  other  plea.** 


1.  Straight  v.  Hanchett,  23  111.  App. 
584;  Gaines  v.  Conn,  2  Dana  (Ky.) 
231  ;  Bradley  v.  Welch,  i  Munf.  (Va.) 
2S4  ;  Hunt  V.  Wilkinson,  2  Call.  (Va.) 
49;  I  Am.  Dec.  534;  Lacroix  v.  Mac- 
quart,  I  Miles  (Pa.)  42  ;  Wilson  v. 
Hamilton,  4  S.  &  R.  (Pa.)  38;  Hos- 
tetter  v.  Kaufman,  11  S.  &  R.  (Pa.)  146; 
Yeaton  v.  Lynn,  5  Pet.  (U.  S.)  224; 
Good  V.  Davis,  Hempst.  (U.  S.)  16; 
Thompson  v.  U.  S.,  103  U.  S.  480; 
Leavitt  v.  School  Dist.  No.  9,  78  Me. 
574;  Jennings  v.  Dockham  (Mich., 
1894),  58  N.  W.  Rep.  66. 

2.  N.  C.  Code  C.  P.  §  136  ;  Revd. 
St.  Ohio,  §  5119,  L.  i83o;  Revd.  St. 
Wis.  §  2787,  L.  1878  ;  N.  Y.  Code 
Civ.  Pro.  §  544  ;  Cal.  Code  C.  P.  § 
464 ;  Neb.  Code  C.  P.  §  149  ;  Bullitt's 
Ky.  Code,  g  135  ;  Kansas  Civ.  Pro. 
§  144  ;  Iow.a  Code  of  1886,  §  2731  ;  Ind. 
Revd.  St.  §  399,  L.  1881;  Colo.  Code  C. 
P.  §  74 ;  Oregon  Code  C.  P.  §  105. 

Ejectment. — Any  rights  which  may 
accrue  to  a  defendant  subsequent  to 
the  commencement  of  an  action  of 
ejectment  must  be  alleged  by  a  plea 
puis  darrein  continuance.  Jennings  v. 
Dockham  (Mich.,  1894),  58  N.  W.  Rep. 
66. 

Real  Action. — If  during  the  pendency 
of  a  real  action  the  title  and  right  of 
possession  pass  from  plaintiff  and  be- 
come vested  in  defendant,  this  may  be 
pleaded  specially  to  bar  the  further 
maintenance  of  the  action,  but  cannot 
be  pleaded  in  bar  of  the  suit  generally. 
Leavitt  v.  School  District  No.  9,  78 
Me.  574. 

No  Evidence  of  Fact  not  Pleaded. — In  a 
mandamus  proceeding  to  compel  a 
township  clerk  to  perform  an  official 
duty,  he  pleaded  in  his  answer  that 

he  had  resigned  the  office  before  pro-    puis  darrein   continuance,  because  the 
cess  was  served  on  him.     At  the  trial     defendant  has  no  day  in  court.     Alex- 
he    offered    in  evidence    proof    that    a     ander  v.  Fink,  12  Johns.  (N.  Y.)  218. 
successor  to  him  in  the  office  had  been         6,  Spafford   v.  Woodruff,  2  McLean 
appointed.     Held,  that  such  evidence     (U.    S.)    191  ;    Wisdom    v.    Williams, 

37 


was  properly  rejected  because  such  ap- 
pointment had  not  been  set  up  by  plea 
puis  darrein  co7itinuance.  Thompson 
V.  U.  S.,  103  U.  S.  480. 

Disability  of  Plaintiff  to  Sue.— If  a  dis- 
ability on  the  part  of  the  plaintiff  to 
sue  exists,  and  existed  at  the  time  the 
action  was  commenced,  the  plaintiff 
may  be  nonsuited  at  the  trial  because 
of  it;  but  if  the  disability  arose  during 
the  pendency  of  the  action,  it  must  be 
pleaded  by  plea  puis  darreiti  continu- 
ance, and  if  not  so  pleaded  is  waived. 
Yeaton  v.  Lynn,  5  Pet.  (U.  S.)  224. 

3.  After  Continuance.  —  Where  new 
matter  of  abatement  occurs  after  a 
continuance,  defendant  should  plead  it 
in  abatement  as  soon  as  it  comes  to  his 
knowledge,  and  not  allow  a  continu- 
ance to  intervene  before  doing  so  ;  but 
the  court  may  for  special  reasons  allow 
it  to  be  pleaded  nunc  pro  tunc  after  an 
intervening  continuance.  Wilson  v. 
Hamilton,  4  S.  &  R.  (Pa.)  238;  Hos- 
tetter  v.  Kaufman,  11  S.  &  R.  (Pa.) 
146. 

4.  At  Trial. — In  an  action  tried  by  jury 
the  refusal  of  the  presiding  justice, 
after  the  case  had  been  opened  to  the 
jury,  to  allow  defendant's  counsel  to 
file  a  supplemental  pleading  setting 
up  a  release  made  since  the  last  con- 
tinuance, and  without  the  knowledge 
of  the  attorney  for  either  party,  but 
which  had  come  to  the  knowledge  of 
defendant's  attorney  on  the  preceding 
day,  is  erroneous,  and  his  action  in  so 
refusing  will  be  reversed  on  appeal. 
Seehorn  v.  Big  Meadows,  etc.,  Co., 
60  Cal.  240. 

5.  After  Verdict  or  Beport. — After  a 
verdict  or  report  of  referee  a  defend- 
ant cannot  plead  matter  of  abatement 


168916 


Replication,  etc.     ABA  TEMENT  IN  PLEADING.     Replication,  etc. 


Certainty. — Great  certainty  and  precision  are  required  in  these 
pleas.^  They  should  show  that  the  matter  arose  since  the  last 
continuance,*  and  state  the  time  when  it  arose.^ 

Judgment. — If  the  issue  on  a  plea  piiis  darrein  conti?iiia7ice  is 
found  against  the  defendant,  the  judgment  is  peremptory  and 
final.-* 

Vin.  Replication,  etc. — same  Euies  apply  to  Plaintiff.— In  relation 
to  pleas  in  abatement  the  same  rules  apply  to  the  plaintiff  as  to 
a  defendant,  and  when  plaintiff  pleads  in  abatement  to  a  cause 
of  action  set  up  by  defendant  he  must  observe  those  rules  in  his 
plea.' 

Hempst.  (U.  S.)  460  ;  Wallace  v.  Mc- 
Connell,  13  Pet.  (U.  S.)  136  ;  Elliott  v. 
Teal,  5  Sawy.  (U.  S.)  188 ;  Good  v. 
Davis,  Hempst.  (U.  S.)  16  ;  Straight  v. 
Hanchett,  23  111.  App.  584. 

Although  Several  Pleas  Allowed. — 
Pleas  puis  darrein  continuance  by  oper- 
ation of  law  supersede  all  other  pleas 
and  defences,  and  the  parties  must 
settle  the  pleadings  de  novo  as  though 
no  other  pleas  had  been  filed.  These 
rules  of  the  common  law  are  in  force 
in  and  not  affected  by  the  Practice  Act 
of  Illinois  allowing  defendant  to  plead 
as  many  matters  of  fact  in  several  pleas 
as  he  deems  necessary,  and  to  file  addi- 
tional pleas  any  time  before  final  judg- 
ment. Straight  v.  Hanchett,  23  111. 
App.  584- 

1.  Spafford  v.  Woodruff,  2  McLean 
(U.  S.)  191  ;  Field  v.  Coppers,  81  Me. 
36  ;  Augusta  v.  Moulton,  75  Me.  551  ; 
Templeton  v.  Clary,  i  Blackf.  (Ind.) 
28S  ;  Gileson  v.  Bourland,  13  111.  App. 
Straight  7/.  Hanchett,  23  111.  App. 


352 
584. 

If  Bad,  Repleader  Allowed. — Great 
certainty  is  required  in  pleas  puis 
darrein  continuance  both  in  substance 
and  form;  and  where  such  a  plea  sets 
up  a  release  of  the  cause  of  action 
since  issue  joined,  but  fails  to  state 
the  place  where  the  release  was  made, 
and  the  day  of  the  last  continuance, 
or  even  that  there  had  been  any 
continuance,  it  is  bad  on  demurrer. 
Where  such  a  plea  is  held  bad  on  de- 
murrer a  repleader  may  be  allowed 
on  terms.    Field  v.  Coppers,  81  Me.  36. 

2.  Should  show  Day  of  Last  Continuance. 
— Great  certainty  is  required  in  pleas 
puis  darrien  continuance,  and  if  the 
day  of  the  last  continuance  is  not 
shown  the  defect  is  fatal.  Augusta  v. 
Moulton,  75  Me.  551. 

Stating  Defense  Arose  since  Continuance. 
Where  a  plea  puis  darrien  continuance 


only  states  generally  that  the  defense 
arose  since  the  last  continuance,  with- 
out any  further  details  and  without 
the  proper  conclusion  and  verification, 
it  is  defective.  Gileson  v.  Bourland, 
13  111.  App.  352. 

Where  matter  of  defence  set  up  in 
a  plea  arose  after  the  commencement 
of  the  suit  it  cannot  be  pleaded  in  bar 
of  the  action  generally,  but  must  be 
pleaded  as  to  the  further  maintenance 
of  the  suit  ;  and  where  it  arises  after 
pleas  pleaded  and  issue  joined  it  can 
only  be  pleaded  puis  darrien  continu- 
ance. Such  a  plea  must  show  the  de- 
fense arose  after  the  last  continuance, 
and  must  meet  the  same  requisites  as 
to  certainty,  etc.,  as  a  plea  in  abate- 
ment. Straight  v.  Hanchett,  23  111. 
App.  584. 

Need  not  show  Arose  since  Continuance. 
— Where  a  plea  in  abatement  alleged 
"that  pending  the  writ,  etc.,  the 
plaintiff  had  married,  and  that  her 
husband  was  still  living,"  it  cannot 
be  set  aside  on  motion  for  not  ex- 
pressly alleging  the  coverture  to 
have  Qccurred  puis  darrein  continu- 
ance, because  the  time  of  the  alleged 
marriage  was  since  the  last  continu- 
ance. Templeton  v.  Clary,  i  Blackf. 
(Ind.)  288. 

3.  Pleas  in  abatement  puis  darrein 
continuance  are  required  to  be  stated 
with  great  certainty,  the  matter  of 
defense  must  be  clearly  and  specific- 
ally stated,  and  the  time  when  it 
arose.  Spafford  v.  Woodruff,  2  Mc- 
Lean (U.  S.)  191. 

4.  Renner  v.  Mashall,  i  Wheat.  (U. 
S.)2i5. 

5.  Defendant's  Offset  or  Counter-claim. — 
Where  defendant's  answer  sets  up  a 
set-off  or  other  claim  which  may  con- 
stitute an  independent  cause  of  action, 
the  same  rule  applies  thereto  as  to  a 
complaint,  to  wit :  if  there  be  a  defect 


38 


KepUcation,  etc.     ABATEMENT  IN  PLEADING.     Keplication,  ete. 

Demurrer.— If  the  plaintiff  desires  to  test  the  legal  sufficiency  of 
defendant's  plea  in  abatement,  he  must  demur  thereto.^  A  gen- 
eral demurrer  is  sufficient,  and  a  special  demurrer  is  not  usually 
required.*  On  such  demurrer  it  is  held  defendant  cannot  take 
advantage  of  defects  in  the  declaration.* 

Waiver.— By  taking  issue  on  a  plea  in  abatement  plaintiff  has 
been  held  to  waive  defects  in  its  verification.*  But  where  the 
plea  is  a  nullity,  it  is  held  that  no  act  of  apparent  acquiescence  is  a 
waiver  of  objections  to  it.* 

Defeating  Plea  without  Replication.— In  some  cases  a  plaintiff  has  been 
allowed  to  practically  defeat  a  plea  in  abatement  without  any  rep- 
lication by  showing  on  the  trial  facts  which  rendered  it  nugatory.* 
But  this  is  not  always  allowed.'' 


of  parties,  and  such  defect  be  apparent 
on  the  face  of  the  answer,  plaintiff  may 
take  advantage  of  it  by  demurrer;  but 
if  not  apparent  on  the  face  of  the  an- 
swer, plaintiff  must  take  advantage  of 
it  by  plea.  Talmage  v.  Bierhause, 
103  Ind.  270. 

1.  Brooks?'.  Patterson,  i  Johns.  Cas. 
(N.  Y.)  328;  Rex  V.  Cooke,  2  B.  &  C. 
618;  9  E.  C.  L.  201;  4  D.  &  R.  114; 
Rex  V.  Clarke,  i  D.  &  R.  43;  Ralph  v. 
Brown,    3  W.   &   S.  (Pa.)  395. 

Stricken  Out  on  Motion. — If  no  ground 
for  abating  the  suit  is  presented  by  a 
plea  in  abatement,  it  may  be  stricken 
out  on  motion.  Pridgen  v.  Andrews, 
7  Tex.  461. 

2.  Clifford  v.  Cony,  i  Mass.  495; 
Mantz  V.  Hendley,  2  Hen.  &  M.  (Va.) 
308;  Hart  V.  Turk,  15  Ala.  675  ;  Shaw 
V.  Dutcher,  19  Wend.  (N.  Y:)  216; 
Lloyd  V.  Williams,  2  M.  &.  S.  484. 

Special  Demurrer  in  United  States 
Courts. — Where  the  ground  of  demurrer 
is  that  a  plea  contains  matter  in  bar, 
but  begins  and  ends  in  abatement,  it 
should  be  raised  by  special  demurrer 
in  the  United  States  courts  and  not  by 
general  demurrer.  Deshler  v.  Dodge, 
16  How.  (U.  S.)  622. 

3.  Defective  Service. — Where  a  plea 
in  abatement  to  the  service  of  a  writ  is 
demurred  to,  the  demurrer  does  not 
reach  back  so  as  to  enable  the  defend- 
ant to  take  advantage  of  a  defect  in 
the  declaration.  Bent  v.  Bent,  43  Vt. 
42. 

4.  King  V.  Haines,  23  111.  340. 

5.  Plea  a  Nullity. — No  act  of  a  plain- 
tiff in  apparently  acquiescing  in  a  plea 
in  abatement  will  be  construed  into  a 
recognition  of  it  where  the  plea  is  a 
nullity.  Garratt  v.  Hooper,  i  Dowl. 
Pr.  Cas.  28. 


6.  Death  of  Person  not  Joined. — Where 

defendant  pleaded  in  abatement  the 
non-joinder  of  a  person  who  was  the 
partner  of  plaintiff  and  jointly  inter- 
ested with  plaintiff  in  the  cause  of  ac- 
tion in  suit,  and  alleged  he  was  living 
at  the  commencement  of  the  action,  it 
was  held  that  plaintiff  could  at  the 
trial  and  without  reply  defeat  this  plea 
by  proof  that  such  person  was  dead 
and  the  plaintiff  owned  the  entire  cause 
of  action ;  that  as  the  object  of  the  plea 
was  to  give  a  better  writ  and  so  protect 
defendant  by  a  correct  judgment,  he 
obtained  full  protection  by  the  proof 
of  such  facts  on  the  trial.  Groot  v. 
Agens,  107  N.  Y.  633. 

Ratification  of  Agent's  Act. — Where 
defendant  pleads  in  abatement  in  an 
action  on  an  attachment  bond  on  the 
ground  that  the  bond  was  not  executed 
by  the  plaintiff,  but  does  not  deny  that 
the  suit  was  commenced  by  the  author- 
ity of  the  plaintiff,  the  plea  is  nega- 
tived by  the  plaintiff  appearing  and 
prosecuting  the  suit.  Dove  v.  Martin, 
23  Miss.  588. 

Substitution  of  New  Sureties. — In  an 
attachment  proceeding  the  defendant 
pleaded  in  abatement  that  the  sureties 
on  the  bond  filed  by  plaintiff  were  in- 
solvent, and  thereafter  the  court  on 
plaintiff's  motion  allowed  plaintiff  to 
substitute  other  sureties  and  then 
struck  out  defendant's  plea  in  abate- 
ment. Held  proper,  as  substituting  a 
new  bond  was  a  full  protection  of  de- 
fendant's rights,  and  when  filed  it  re- 
lated back  to  the  commencement  of  the 
proceedings.  Shaw  v.  Trunsler,  30 
Tex.  390. 

7.  Offer  to  give  New  Sond. — Where 
defendant  pleads  in  abatement  for  the 
want  of  the  giving  of  a  bond  by  a  non- 


39 


In  Equity. 


ABATEMENT  IN  PLEADING. 


In  Equity. 


IX.  In  Equity  — Same  as  at  Law.— In  equity,  pleadings  in  abate- 
ment are  practically  the  same  as  at  law  and  governed  by  the 
same  principles.^ 

Construed  as  at  Law.— They  are  construed  with  the  same  strictness 
as  pleas  at  common  law,  and  must  be  verified.*  They  must  be 
clear,  certain,  and  definite.^  The  pendency  of  a  suit  in  a  foreign 
state  or  country  is  not  a  good  plea  in  abatement  in  equity  any 
more  than  it  would  be  at  law."* 

Must  Raise  Objections  by  Demurrer  or  Answer. — Objections  which  tend  to 
abate  the  suit  must  be  raised  by  plea  in  abatement  or  demurrer,  or 
they  are  deemed  waived.'  The  question  of  the  pendency  of  another 
suit  must  be  so  raised;**  also  that  the  suit  is  prematurely  brought ;'' 

Arcot  V.  East  India  Co.,  i  Ves.  Jr.  371, 
3  Bro.  C.  C.  292. 

4.  Dillon  V.  Alvares,  4  Ves.  357  ; 
Foster  v.  Vassall,  3  Atk.  590;  Houl- 
ditch  V.  Donegall,  i  Sim.  &  Stu.  491; 
Peruvian  Guano  Co.  v.  Bockwoldt,  23 
Ch.  Div.  225;  Lynch  v.  Hartford  F. 
Ins.  Co.,  17  Fed.  Rep.  627;  McHenry 
V.  Lewis,  21  Ch.  Div.  202;  Scott  v. 
Rand,  118  Mass.  215;  Mutual  L.  Ins. 
Co.  V.  Brune,  96  U.  S.  588;  Urlin  v. 
Hudson,  II  Vern.  332;  Way  v.  Bragaw, 
16  N.  J.  Eq.  213;  84  Am.  Dec.  147; 
Tansey  w.  McDonnell,  142  Mass.  220. 

Stay  of  One  Suit. — The  pendency  of  a 
suit  in  another  state  between  the  same 
parties  and  for  the  same  cause  of  ac- 
tion cannot  be  pleaded  in  abatement  of 
a  suit  in  this  state  {New  Jersey).  The 
defendant's  remedy  is  to  procure  a 
stay  of  proceedings  until  the  suit  in 
the  foreign  jurisdiction  is  discon- 
tinued. Kerr  v.  Willetts,  48  N.  J.  L. 
70;  Hadden  v.  St.  Louis,  etc.,  R.  Co., 
57  How.  Pr.  (N.  Y.  Supreme  Ct.)  390; 
Nichols  V.  Nichols,  12  Hun  (N.  Y.) 
428. 

5.  Story  Eq.  PI.  §  708;  Dodge  v. 
Perkins,  4  Mason  (U.  S.)  435;  Living- 
ston V.  Story,  II  Pet.  (IJ.  S.)  393; 
Pierce  v.  Feagans,  39  Fed.  Rep.  587; 
Hoyt  V.  Hoyt,  58  Vt.  538. 

6.  Another  Action. — The  pendency  of 
another  suit  between  the  same  parties 
for  the  same  cause  of  action  in  the 
same  court  of  equity  or  some  other 
court  of  equity  must  be  alleged  and 
brought  up  by  plea;  it  cannot  be  raised 
by  answer.  Battell  v.  Matot,  58  Vt. 
271;  Pierce  v.  Feagans,  39  Fed.  Rep. 
587;  Buscher  v.  Knapp,  107  Ind.  340. 

7.  Debt  not  Due. — The  defence  that  a 
suit  is  prematurely  brought  is  properly 
raised  by  answer  in  equity;  and  where 
an  attachment  in  the  suit  has  been  de- 
feated by  a  plea  in  abatement  on  the 


resident,  the  subsequent  offer  to  give 
a  valid  bond  does  not  avoid  the  plea. 
Cummins  v.  Cassily,   5  B.  Mon.  (Ky.) 

74. 

Bringing  in  Omitted  Persons. — Where, 
after  defendant  pleads  in  abatement 
for  non-joinder  of  defendants,  the 
plaintiff  amends  by  summoning  the 
persons  named  in  the  plea,  yet  after- 
wards discontinues  as  to  such  persons, 
this  does  not  avoid  the  plea  and  it  still 
remains  in  force.  Wilson  v.  Nevers, 
20  Pick.  (Mass.)  20. 

1.  They  are  called  pleas  in  the  na- 
ture of  pleas  in  abatement,  and  are 
divided  into  those  to  the  jurisdiction, 
to  the  person  of  the  plaintiff  or  de- 
fendant, and  to  the  bill  or  the  frame 
of  the  bill.  And  those  to  the  bill  or 
frame  of  the  bill  are  divided  into  and 
include  another  action  pending,  want 
of  proper  parties,  multiplicity  of  suits, 
and  multifariousness.  Story's  Eq.  PI. 
§§  710,  722,  735. 

2.  Burk  V.  Brown,  2  Atk.  399 ; 
Dudgeon  v.  Watson,  23  Fed.  Rep.  161; 
Beck  V.  Beck,  36  Miss.  72. 

3.  A  plea  in  abatement  to  the  juris- 
diction of  a  court  of  general  jurisdic- 
tion must  allege  that  the  court  has  not 
jurisdiction  of  the  subject,  and  show 
by  what  means  it  is  deprived  of  it, 
and  also  show  what  court  has  jurisdic- 
tion.    Story  Eq.  PL  §  715. 

To  Jurisdiction. — A  plea  to  the  juris- 
diction, alleging  as  ground  therefor 
*'  that  the  subject-matter  of  the  suit  is 
not  cognizable  in  any  municipal  court 
of  justice,"  is  bad,  being  in  fact  a  plea 
in  bar  and  not  a  plea  to  the  jurisdic- 
tion in  abatement.  A  plea  to  the  juris- 
diction of  aparti»ularcourt  must  show 
a  remedy  to  the  party  in  some  other 
court,  but  this  plea  shows  there  is  no 
remedy  in  any  court,  and  is  bad  as  a 
plea  to   the   jurisdiction.      Nabob  of 


40 


In  Equity. 


ABATEMENT  IN  PLEADING. 


In  Equity. 


that  the  plaintiff  is  insane  ;*  that  proper  parties  are  not 
brought  in*  unless  they  are  necessary  parties  ;^  that  plaintiff  has 
no  interest  in  the  matter  of  the  suit,"*  or  no  standing  in  court  ;* 
and  that  plaintiff  has  an  adequate  remedy  at  law.® 

Cannot  Withdraw  Answer.— A  defendant  in  equity  cannot  withdraw 
his  answer  and  file  a  plea  in  abatement  without  leave  of  court.'' 


ground  that  the  debt  was  not  due, 
there  can  be  no  decree  for  the  debt 
where  the  prematurity  of  the  suit  is 
relied  on  as  a  defence  in  the  answer  in 
the  suit.  Pigue  v.  Young,  85  Tenn. 
263. 

1.  Insanity. — The  objection  that  a 
plaintiff  by  reason  of  mental  unsound- 
ness is  incapable  of  bringing  or  main- 
taining a  suit  must  in  equity  be  taken 
by  plea  in  the  nature  of  a  plea  in 
abatement  and  cannot  be  raised  by 
answer.     Hoyt  v.  Hoyt,  58  Vt.  538. 

2.  Proper  Parties. — In  equity,  where 
the  non-joinder  of  one  who  might  be 
made  a  party  does  not  operate  to  the 
prejudice  of  other  parties  to  the  suit, 
the  objection  to  such  non-joinder  must 
be  taken  by  plea;  it  cannot  be  raised 
for  the  first  time  at  the  hearing.  Griffin 
V.  Lovell,  42  Miss.  402;  Snook  v.  Pear- 
sail,  95  Mich.  534. 

3.  Necessary  Parties. — The  provision 
of  the  N.  Y.  Code  that  objections  not 
taken  by  demurrer  or  answer  are 
deemed  waived  apply  in  general  to  a 
defect  of  parties,  but  where  by  reason 
of  such  defect  a  complete  determina- 
tion of  the  matter  cannot  be  had  with- 
out prejudice  to  the  rights  of  others, 
such  defect  is  not  waived  by  the  omis- 
sion to  raise  it  by  demurrer  or  answer, 
and  may  be  taken  advantage  of  on  ap- 
peal. Bear  v.  American  Rapid  Tel. 
Co.,  36  Hun  (N.  Y.)  400;  Osterhoudt  !>. 
Ulster  County,  98  N.  Y.  239;  Reed  v. 
Hoyt,  51  N.  Y.  Super.  Ct.  121 ;  affd  109 
N.  Y.  659. 

4.  Interest  in  Subject-matter. — If,  in 
a  suit  brought  by  two  plaintiffs,  one  of 
them  has  no  interest  in  the  subject- 
matter  of  the  suit,  the  objection  may 
be  taken  by  a  plea  in  the  nature  of  a 
plea  in  abatement;  and  if  the  plea  is 
shown  to  be  true,  it  is  a  good  defence 


to  the  whole  suit.     Makepeace  z/.  Hay- 
thorne,  4  Russ.  244. 

5.  Plaintiffs  Standing  in  Court. — 
The  question  of  the  standing  in  court 
of  a  plaintiff  who  alleges  sufficient 
facts  to  give  him  such  standing  should 
be  raised  by  a  plea  in  the  nature  of  a 
plea  in  abatement,  and  not  by  aver- 
ments in  the  answer  to  the  effect  that 
the  facts  as  alleged  by  the  plaintiff  are 
untrue  and  that  the  bill  is  not  filed  in 
good  faith.  Mazet  v.  Pittsburgh,  137 
Pa.  St.  548. 

6.  Bemedy  at  Law — Plea. — In  an 
equity  action  the  objection  that  the 
plaintiff  has  an  adequate  remedy  at 
law,  if  not  apparent  on  the  face  of  the 
complaint,  should  be  set  up  in  the  an- 
swer or  it  is  waived.  Thomas  v. 
Grand  View  Beach  R.  Co.,  76  Hun 
(N.  Y.)  601;  Mentz  v.  Cook,  108  tf.  Y. 
509;  Ostrander  v.  Weber,  114  N.  Y., 
95- 

But  "that  no  court  of  equity  has 
jurisdiction  "  may,  it  seems,  be  raised 
on  the  trial.  Le  Bussiere  z'.  Halladay, 
4  Abb.  N.  Cas.  (N.  Y.)  in. 

Demurrer — Remedy  at  Law. — Where  it 
appears  from  the  face  of  a  complaint 
that  no  ground  for  equitable  relief  is 
stated,  the  objection  that  a  court  of 
equity  would  have  no  jurisdiction  need 
not  be  taken  by  answer.  Nutting  v. 
Atwood  (Super  Ct.),  53  N.  Y.  St.  Rep. 
152;  23  N.  Y.  Supp.  816;  GuUickson  f . 
Madsen  (Wis.,  1894),  57  N.  W.  Rep. 
965- 

7.  Withdrawal  of  Answer. — After 
the  defendant  has  answered  and  there 
has  been  a  replication  thereto  the  de- 
fendant cannot  file  a  plea  in  abatement 
on  the  ground  of  the  disability  of 
plaintiff  unless  he  is  given  leave  to 
withdraw  his  answer.  Bush  v.  Linthi- 
cum,  59  Md.  344. 


41 


ABBREVIATIONS. 

By  S.  R.  Perry. 

I.  In  General,  42. 
IL  Within  Judicial  Knowledge,  43- 

1.  Officials,  43. 

2.  Proper  Navies,  43. 

a.  Initials,  43. 

b.  Contractions,  46. 

c.  Prefixes  and  Suffixes,  46. 

3.  Time,  47. 

4.  Amount  and  Description,  47. 

III.  Miscellaneous,  48. 

I.  In  General. — The  best  practice  requires  words  in  legal 
instruments  to  be  written  out  at  length,  but  an  abbreviation 
does  not  constitute  legal  error  where  its  use  for  the  full  term  has 
been  so  constant  that  its  meaning  is  unvarying  and  a  matter  of 
general  knowledge.* 

Courts  will  Take  Notice  of  such  abbreviations  as  within  judicial  cog- 
nizance. The  legality  of  an  abbreviation  as  within  the  scope  of 
judicial  notice  must  be  carefully  distinguished  from  the  admis- 
sibility of  an  abbreviation  as  evidence  sufficient  to  justify  a  find- 
ing of  its  true  meaning  as  a  fact  by  the  court  or  jury.  An  abbre- 
viation may  be  evidence  of  its  own  meaning,  or  where  coupled 
with  averments  in  a  pleading  may  be  explained  by  parol  evi- 
dence.* 

1.  New     York. — New     York     Code  Rogers,  3  Mo.  227  ;  Fenton  v.  Perkins, 

Civ.  Pro.  sec.  22  ;  Jackson  v.  Gumaer,  2  3  Mo.  144. 

Cow.  (N.  Y.)  552  ;  Dana  v.  Fiedler,  12  New    Hampshire. — Smith  v.   Butler, 

N.  Y.  40  ;  62  Am.  Dec.  130  ;  Patterson  25  N.  H.  521  ;  Berry  v.  Osborn,  28  N. 

V.  People,  12  Hun  (N.  Y.)  139.  H.  279. 

Illinois. — Lee  v.  Mendel,  40  111.  359  ;  New  Jersey. — Scudder  v.  Coryell,  10 

Rowley  v.  Berrian,  12  111.  198  ;   Shat-  N.  J.  L.  344. 

tuck  V.  People,  5  111.  481  ;  Livingston,  Texas. — Brown    v.    State,    16    Tex. 

V.  Ketelle,  6  111.  116;  41  Am.  Dec.  166  ;  App.  245. 

Holbrook  v,  Nichol,  36  111.  161.  Ohio. — Rice  z".  Buchanan  (Ohio,  1844), 

Indiana. — Kearns  v.  State,  3  Blackf.  i  W.  J.  L.  395. 

(Ind.)  336  ;  Buell  z/.  State,  72  Ind.  523  ;  Arkansas. — Elliott  v.  State  Bank,  4 

Miller  ».  Wild  Cat  Gravel  Road  Co.,  Ark.  437. 

52    Ind.    51  ;     U.    S.    Express    Co.    v.  United  States. — Gordon  v.  Holliday, 

Keefer,    59     Ind.    263;    Steinmetz    v.  i  Wash.  (U.  S.)  285. 

Versailles,  etc..  Turnpike  Co.,  57  Ind.  And  see  other  cases  cited  through- 

460  ;  Hedderich  v.  State,  loi  Ind.  564  ;  out  this  article. 

51  Am.  Rep.  768.  2.  New  York. — Silberman  v.   Clark, 

Missouri. — South  Missouri  Land  Co.  96  N.  Y.  522  ;   Lewis  v.  Few,  5  Johns. 

V.  Jeffries,  40  Mo.  App.  361  ;  Birch   v.  (N.  Y.)  i  ;  Storey  v.  Salomon,  6  Daly 

42 


Within  Judicial 


ABB  RE  VIA  TIONS. 


Knowledge. 


11.  Within  Judicial  Knowledge— 1.  Officials.— Courts  have  ju- 
dicial knowledge  of  abbreviations  customarily  used  to  designate 
the  official  character  of  their  functionaries  and  other  public 
officials.* 

2,  Proper  Names — a.  INITIALS. — It  is  a  presumption  of  law  that 
every  individual  has  a  full  Christian  name,  and  exact  practice 
requires  that  in  all  legal  instruments  a  person  should  be  desig- 
nated  by  his  Christian  name  and  not  by  initials.  Accordingly 
the  general  rule  of  common  law  is  that  the  statement  of  the 
Christian  name  by  initials  is  ground  for  plea  in  abatement*  or 
motion  to  quash  the  indictment.^ 

Distinction  between  Vowels  and  Consonants. — In  course  of  time  this  rule 
was  modified  to  the  extent  of  allowing  judicial  notice  to  be  taken 
of  an  initial  if  a  vowel,  but  not  if  a  consonant."*     The  modern 


(N.  Y.)  531  ;  Dana  v.  Fiedler,  i  E.  D. 
Smith  (N.  Y.)  463  ;  Collenden  v.  Dins- 
more,  55  N.  Y.  200;  14  Am.  Rep.  224; 
Taylor  v.  Beavers,  4  E.  D.  Smith  (N. 
Y.)2i5. 

Indiana. — Muirhead  v.  Snyder,  4 
Ind.  486  ;  Lasselle  v.  Hewson,  5 
Blackf.  (Ind.)  161  ;  Louden  v.  Wal- 
pole,  I  Ind.  319;  Jaqua  v.  Witham, 
etc.,  Co.,  106  Ind.  545  ;  Frazer  v. 
State,  106  Ind.  471  ;  Barton  v.  Ander- 
son, 104  Ind.  578  ;  Jordan  Ditching, 
etc.,  Assoc.  V.  Wagoner,  33  Ind.  50  ; 
Burroughs  v.  Wilson,  59  Ind.  536  ; 
Locke  V.  Merchants'  Nat.  Bank,  66 
Ind.  353. 

Illinois. — Keith  v.  Sturges,  51  111. 
142  ;  American  Express  Co.  v.  Lesem, 

39  111-  333- 

Missouri. — McNichol  v.  Pacific  Ex- 
press Co.,  12  Mo.  App.  401. 

Connecticut. — Comstock  v.  Savage, 
27  Conn.  184. 

Georgia, — Wilson  v.  Coleman,  81  Ga. 
297. 

Rhode  Island. — Kinney  v.  Flynn,  2 
R.  I.  319. 

Compare  Ellis  v.  Park,  8  Tex.  205  ; 
Russell  V.  Martin,  15  Tex.  238. 

1.  In  State  v.  Kinney,  8r  Mo.  loi,  it 
was  held  that  since  a  court  is  bound 
to  take  judicial  notice  of  its  own 
officers  it  will  notice  their  signatures 
whether  their  official  designation  is 
added  or  not. 

"J.  P."  Equivalent  to  Jastice  of  the 
Peace. — Shattuck  v.  People,  5  111.  481; 
Scudder  v.  Coryell,  10  N.  J.  L.  344; 
Hawkins  v.  State  (Ind.,  1894),  36  N.  E. 
Rep.  419.  See  also  Com.  v.  Melling, 
14  Gray  (Mass.)  388;  Livingston  v. 
Kettelle,  6  111.  116  ;  41  Am.  Dec.  166. 

"N,  P."    for  JTotary  Public.  —  Row- 


ley V.  Berrian,  12  III.  200,  where  the 
court  says:  "The  letters  '  N.  P.'  as 
clearly  indicate  the  office  of  notary 
public  as  do  'J.  P.' that  of  justice 
of  the  peace;  and  this  court  has  re- 
peatedly decided  that  such  is  the 
meaning  of  the  latter  initials." 

"  C.  C.  C."  for  Clerk  of  Circuit  Court. — 
A  jurat  signed  by  a  clerk  of  a  circuit 
court  as  "  C.  C.  C."  is  not  invalid. 
Buell  V.  State,  72  Ind.  523. 

"Com'sr.,  etc." — Held,  these  words 
are  sufficiently  descriptive  of  an  officer 
qualified  to  take  affidavits.  Jackson 
V.  Gumaer,  2  Cow.  (N.  Y.)  552. 

"  Adm'r  "  for  Administrator.  —  Mose- 
ley  V.  Mastin,  37  Ala.  316. 

"  Sup't"  for  Superintendent.  —  South 
Missouri  Land  Co.  v.  Jeffries,  40  Mo. 
App.  361. 

2.  Rust  V.  Kennedy,  4  M.  &  W.  586  ; 
7  Dowl.  Pr.  Cas.  199;  3  Jur.  198;  Myers 
z/.  Sealy,  5  Rich.  (S.  Car.)  473;  Frank 
V.  Levie,  5  Robt.(N.  Y.)  599;  Gerrish  v. 
State,  53  Ala.  476;  Melvin  v.  Clark,  45 
Ala.  285;  Cantley  v.  Moody,  7  Port. 
(Ala.)  443;  Fisher  v.  Northrup,  79 
Mich.  287;  Willis  v.  People,  2  111. 
399;  Zellers  v.  State,  7  Ind.  659  ; 
Gardner  v.  State,  4  Ind.  632;  Smith 
V.  State,  8  Ohio  294. 

In  Miller  v.  Hay,  12  Jur.  985  ;  18 
L.  J.  Exch.  487,  it  is  stated  that  de- 
scribing a  defendant  in  a  declaration 
by  surname  and  the  initial  letter  only 
of  his  Christian  name  is  not  amendable 
under  3  and  4  Will.  IV,  c.  42,  §  11,  but 
is  an  insufficient  designation,  of  which 
advantage  must  have  been  taken  by 
special  demurrer. 

3.  Gardner  v.  State,  4  Ind.  632; 
State  V.  Kutter,  59  Ind.  572. 

4.  Kinnersley    v.     Knott,    7   C.    B. 


43 


"Within  Judicial 


ABB  RE  VI A  TIONS. 


Knowledge. 


tendency  of  courts,  however,  has  been  to  hold  an  initial,  whether 
vowel  or  consonant,  to  be  a  proper,  or  at  least  an  allowable,  de- 
signation of  a  party  to  an  action,  since  it  answers  all  purposes  of 
description  and  identification,  and  the  rule  now  seems  to  be  settled 
that  an  initial  is  equivalent  to  the  full  Christian  name.* 


980;  62  E.  C.  L.  978;  13  Jur.  65S; 
Nash  V.  Calder,  5  Dowl.  &  L.  341. 

In  Lomax  v.  Landells,  6  C.  B.  577; 
60  E.  C.  L.  577;  6  Dowl.  &  L.  396,  the 
-court  said:  "  A  vowel  which  is  in  it- 
self a  word  and  may  be  pronounced 
separately  may  be  a  name;  though  a 
consonant,  which  is  incapable  of  be- 
ing pronounced  without  the  addition 
of  a  vowel,  cannot." 

1.  Wiggins  V.  State,  80  Ga.  468  ; 
State  V.  Johnson,  93  Mo.  317  ;  State 
V.  Wall,  39  Mo.  532  ;  Fenton  v. 
Perkins,  3  Mo.  144  ;  Birch  v.  Rogers, 
3  Mo.  227  ;  Brown  v.  Piper,  91  U.  S. 
37  {dictum — that  the  court  will  notice 
customary  abbreviations  of  Christian 
names);  U.  S.  v.  Winter,  13  Blatchf. 
(U.  S.)  276  ;  Wassels  v.  State,  26  Ind. 
30  ;  Anderson  v.  State,  26  Ind.  89;  Lee 
V.  Mendel,  40  111.  359  ;  Vandermark  v. 
People,  47  111.  122  ;  Pickering  v. 
Pulsifer,  9  111.  79  ;  Ross  v.  Clawson, 
47  111.  402  ;  Greathouse  v.  Kipp,  4  111. 
371  ;  State  v.  Webster,  30  Ark.  166  ; 
State  V.  Seely,  30  Ark.  162  ;  Thompson 
V.  State,  48  Ala.  165  ;  State  v.  Brite, 
73  N.  Car.  26  ;  State  v.  Anderson,  3 
Rich.  (S.  Car.)  172;  Easterling  v.  State, 
35  Miss.  210  ;  Com.  v.  Certain  Intox- 
icating Liquors,  142  Mass.  470. 

In  Tweedy  v.  Jarvis,  27  Conn.  45, 
Storrs,  C.J.,  said  :  "We  see  no  sensi- 
ble or  rational  ground  for  any  distinc* 
tion  between  a  vowel  and  a  consonant, 
and  think  that  either  of  them  may  be 
a  name  ;  and  that  name  is  denoted  by 
the  sound  by  which  it  is  called  or  pro- 
nounced when  it  is  spoken  audibly  as 
a  letter."  And  in  Reg.  v.  Dale,  15  Jur. 
657;  5  Eng.  L.  &  Eq.  360,  Lord  Camp- 
bell remarked  that  he  had  been  reliably 
informed  that  an  individual  had  been 
baptized  by  the  name  of  "  T." 

Upon  an  appeal  from  an  order  grant- 
ing a  motion  to  dissolve  an  attach- 
ment because  the  initials  only  and 
not  the  Christian  names  of  the  parties 
were  given,  the  court  said:  "The 
papers  do  not  give  the  full  Christian 
names  of  all  the  parties,  but  give  the 
initial  letters  thereof  only.  This  we 
think  is  sufficient.  The  reason  upon 
which  a  different  rule  was  once  found- 
ed in  England  haiS  never  existed  in  this 


state.  The  full  Christian  name  is  now 
seldom  written  anywhere.  Search  the 
records  of  our  courts,  our  statutes, 
the  lists  of  members  of  the  legislature, 
election  returns,  written  contracts, 
and  other  written  instruments,  news- 
papers, etc.,  and  everywhere  it  will 
be  found  that  as  a  rule  the  initials  only 
of  the  Christian  name  are  used."  Fer- 
guson V.  Smith,  10  Kan.  396. 

In  Perkins  v.  McDowell,  3  Wyoming 
328,  the  plaintiff  sued  as  "J.  M.  Mc- 
Dowell," and,  on  demurrer,  the  court, 
per  Van  Devanter,  C.J.,  said  :  "  While 
it  does  not  occur  frequently,  there  are 
many  instances  where  single  letters 
constitute  the  only  Christian  name. 
We  cannot,  then,  judicially  know  that 
the  letters  "  J.M.  "  are  not  the  Chris- 
tian name  of  the  plaintiff;  it  follows 
that  there  is  no  defect  apparent  on 
the  face  of  the  petition  in  this  respect." 

"  I  know  no  law,  nor  do  I  see  any 
reason,  why  a  man  may  not  take  the 
letters  A  W  for  his  first  name,  or,  as  it 
is  generally  called,  his  Christian  name; 
for,  as  there  is  no  union  here  between 
church  and  state  and  no  obligation  on 
parents  to  baptize  their  children,  this 
may  be  as  often  changed  as  the  patro- 
nymic." Colcock,  J.,  in  City  Council  z'. 
King,  4  McCord  (S.  Car.)  4S7. 

Judgment  cannot  be  Collaterally  At- 
tacked.-— When  a  party  has  signed  his 
Christian  name,  when  its  use  is  re- 
quired in  business,  by  initials  only, 
such  initials  constitute  his  business 
Christian  name,  and  a  judgment 
against  him  designating  his  given 
name  by  initials  cannot  be  collaterally 
attacked.  Oakley  v.  Pegler,  30  Neb. 
628. 

Writ. — A  defendant  was  described 
in  a  writ  as  "  W.  W.  Kilpin."  He  en- 
tered an  appearance  as  Williams  Wells 
Kilpin.  In  the  title  of  an  affidavit  he 
was  described  as  William  Wells  Kilpin. 
Held,  well  entitled.  Lomax  z/.  Kilpin, 
6  M.  &.  W.  94:  16  J.  L.  Exch.  23. 

Indictment. — When  the  name  of  a 
person  as  the  owner  of  property  is  in- 
troduced in  an  indictment,  the  des- 
ignation of  his  Christian  name  by 
initials  has  been  held  sufficient.  State 
V.  Black,  31  Tex.  560. 


44 


Within  Judicial 


ABB  RE  VIA  TIONS. 


Knowledge.. 


A  Middle  Initial  is   no  part  of  a  man's  name,  and  it  is  therefore 
immaterial  tliat  it  is  entirely  disregarded ^ 


But  see  Diggs  v.  State,  49  Ala.  311, 
where  it  is  said  an  indictment  against 
a  defendant  by  the  initial  of  his  Chris- 
tian name,  or  by  his  middle  name  only, 
or  by  the  initial  of  his  first  and  his 
middle  name,  \%  prima  facie  subject  to 
a  plea  in  abatement, 

Bond. — An  obligor  on  a  bond  may  be 
sued  in  the  name  which  he  subscribed 
thereto,  whether  full  or  not.  Com.  v. 
Hughes,  ID  B.  Mon.  (Ky.)  160. 

Affidavit. — Where  action  was  brought 
against  defendant  by  initial  of  Chris- 
tian name  "  W "  and  proceeded  to 
execution  so  entitling  him,  an  affidavit 
in  support  of  an  application  against 
the  sheriff  for  not  returning  a.  Ji.  fa. 
cannot  be  read  if  it  describes  the  de- 
fendant by  Christian  name  of  "Wil- 
liam." Reg.  V.  Surrey,  8  Dowl.  Pr. 
Cas.  510;  4  Jur.  559. 

Objection  Waived  by  Judgment. — 
Where  defendants  to  a  bill  of  fore- 
closure allowed  judgment  to  be  given 
fro  confesso,  they  were  held  to  admit 
that  the  petitioner,  who  described  him- 
self by  full  Christian  name,  was  the 
same  individual  as  the  mortgagee 
described  only  by  initials.  Ramsdell 
V.  Eaton,  12  Mich.  117. 

In  Breedlove  v.  Nicolet,  7  Pet.  (U. 
S.)  413,  where  the  plaintiff's  name  as 
given  in  a  pleading  was  "  J.  J.  Sigg," 
and  objection  thereto  was  raised 
for  the  first  time  on  a  writ  of  error, 
Marshall,  C.  J.,  said  :"  He  may  have 
assumed  the  letters  "J.  J.'  as  dis- 
tinguishing him  from  other  persons  of 
the  surname  of  Sigg.  Objections 
to  the  name  of  the  plaintiff  cannot  be 
taken  advantage  of  after  judgment." 

Where  the  plaintiff  sued  as  "  O.  B. 
Abbott,"  and  obtained  judgment,  it 
was  held  that  it  would  not  be  presumed, 
for  the  purpose  of  invalidating  the 
judgment,  that  he  had  any  other 
Christian  name.  Fewlass  v.  Abbott, 
28  Mich.  270. 

Cured  by  Answer. — Where  the  answer 
designates  the  plaintiff  by  full  name 
and  the  complaint  sets  out  only  the 
initials,  //^/a'.that  the  complaint,  though 
defective,  is  cured  by  answer.  Sherrod 
V.  Shirley,  57  Ind.  13. 

Cured  by  Verdict. — An  indictment  or 
other  pleading  defective  from  the  ab- 
breviation of  a  name  is  cured  by  a 
verdict.  Smith  v.  State,  8  Ohio  294  ; 
State  V.  Webster,   30  Ark.   166  ;  State 


V.  Johnson,  93  Mo.  317  ;  State  v.  Mc- 
Millan, 68  N.  Car.  440 ;  Com.  v.  Mell- 
ing,  14  Gray  (Mass.)  388. 

Identification.  —  Papers  filed  in  a 
cause  subsequent  to  pleading  need 
only  refer  to  a  party  or  person  with 
sufficient  accuracy  to  identify  him. 
Gordon  v.  State,  59  Ind.  75  ;  Starks  v. 
Stafford,  14  Oregon  317  ;  Elting  v. 
Gould,  96  Mo.  535. 

Amendment. — Where  only  an  initial 
is  used  the  court  may  allow  an  amend- 
ment.  Beggs  V.  Wellman,  82  Ala.  391. 

Publication  of  Summons. — An  order  of 
publication  which  gave  the  party's 
name  as  "  Q.  Noland "  instead  of 
Quinces  R.  Noland  conferred  no  juris- 
diction. Skelton  v.  Sackett,  91  Mo. 
377- 

Indiana. — A  judgment  rendered 
against  a  person  designated  by  the 
initials  of  his  Christian  name  was  held 
irregular  but  not  void.  Bridges  v. 
Layman,  31  Ind.  384. 

New  Jersey. — Initials  are  insufficient 
in  pleading  except  where  parties  are 
described  by  initials  in  bills  of  ex- 
change, etc.,  under  N.  J.  R.  S.  p.  852 
§  28.  State  V.  Richards,  42  N.  J.  L. 
69.  Compare  State  v.  Leon,  42  N.  J.  L. 
540. 

Ohio, — The  insertion  of  initial  letter 
only  in  a  writ  is  a  fatal  defect.  Herf 
V.  Shulze,  10  Ohio  263. 

South  Carolina. — It  was  held  where  a. 
Christian  name  was  given  by  initials^ 
there  was  no  name  at  all.     Norris  v. 
Graves,  4  Strobh.  (S.  Car.)  32. 

1.  New  Jersey. — Dilts  v.  Kinney,  15 
N.  J.  L.  130. 

New  York. — Franklin  v.  Talmadge, 
5  Johns.  (N.  Y.)  84;  Cornes  v.  Wilkin, 
79  N.  Y.  129;  Roosevelt  v.  Gardinier, 
2  Cow.  (N.  Y.)  463;  People  v.  Cook,  14 
Barb.  (N.  Y.)  259,  307. 

Pennsylvania. — Bratton  v.  Seymour, 
4  Watts  (Pa.)  329;  Paul  v.  Johnson,  9 
Phila.  (Pa.)  32. 

Illinois. — Tucker  v.  People,  122  111. 
583;  Bletch  V.  Johnson,  40  111.  116; 
Erskine  v.  Davis,  25  111.  228;  Hum- 
phrey V.  Phillips,  57  111.  132. 

Indiana. — Miller  v.  State,  69  Ind. 
284;  Choen  v.  State,  52  Ind.  347;  2X 
Am.  Rep.  179;  West  v.  State,  48  Ind. 
483;  O'Connor  v.  State,  97  Ind.  104. 

Ohio. — Wagner  v.  Zeigler,  44  Ohio 
St.  59- 

New  Hampshire. — Hart  v.  Lindsey,, 


45 


Within  Judicial 


ABB  RE  VIA  TIONS. 


Knowledge. 


or  erroneously  stated. 

b.  Contractions. — Courts  will  take  judicial  notice  of  the  cus- 
tomary abbreviations  or  contractions  of  Christian  names.* 

c.  Prefixes  and  Suffixes. — The  commonly  abbreviated  pre- 
fixes and  suffixes  are  not  considered  either  as  names  in  themselves 
or  as  parts  of  names.' 


17  N.  H.  235;  43  Am,  Dec.  597;  Wood 
V.  Fletcher,  3  N.  H.  61. 

Vermont. — Walbridge  v.  Kibbee,  20 
Vt.  543;  Isaac  z/.  Wiley,  12  Vt.  674  ; 
Allen  V.  Taylor,  26  Vt.  599. 

Alabama. — Edmundson  v.  State,  17 
Ala.  179. 

Texas. — State  v.  Manning,  14  Tex. 
402  ;  McKay  v.  Speak,  8  Tex.  376. 

United  States. — Keene  v.  Meade,  3 
Pet.  (U.  S.)  I. 

England. — Rex.  v.  Newman,  i  Ld. 
Raym.  562. 

Contra. — Com.  v.  Perkins,  I  Pick. 
(Mass.)  388;  Com.  v.  Hall,  3  Pick. 
(Mass.)  262;  Com.  v.  Shearman,  11 
Cush.  (Mass.)  546;  Com.  v.  McAvoy, 
16  Gray  (Mass.)  235;  Terry  v.  Sisson, 
125  Mass.  560.  See  Rex  v.  Craven, 
Russ.  &  R.  C.  C.  14;  Rex  v.  Deeley,  i 
Moo.  C.  C.  303;  Rex  v.  Owen,  i  Moo. 
C.  C.  118. 

1.  Johnson  v.  Day,  2  N.  Dak.  295; 
States.  Black,  12  Mo.  App.  53i;Girons 
V.  State,  29  Ind.  93;  Morgan  v.  Woods, 
33  Ind.  23;  Schofield  v.  Jennings,  68 
Ind.  232;  Miller  v.  People,  39  111.  457; 
Langdon  v.  People,  133  111.  395;  Rooks 
V.  State,  83  Ala.  79;  Hicks  v.  Riley, 
83  Ga.  332;  Delphino  v.  State,  11  Tex. 
App.  30;  People  V.  Lockwood,  6  Cal. 
205;  Milk  V.  Christie,  i  Hill  (N.  Y.) 
102. 

Contra. — Price  v.  State,  19  Ohio,  423; 
State  V.  Hughes,  i  Swan  (Tenn.)  261; 
Com.  V.  Buckley,  145  Mass.  181; 
Parker  v.  Parker,  146  Mass.  320. 

2.  "Th."  for  Thomas.  —  Ogden  v. 
Gibbons,  5  N.  J.  L.  531;  Studstill  v. 
State,  7  Ga.  2. 

"  Jas."  for  James. — Stephen  v.  State, 
II  Ga.  241. 

"Christy"  for  Christopher. — Weaver 
V.  McElhenon,  13  Mo.  89. 

"Ben."  for  Benjamin. — Burnton  v. 
State,  75  Ind.  477. 

"Isc."for  Isaac. — An  attestation  of 
the  execution  of  a  bill  of  sale  purported 
to  be  by  "  Isc.  Simpson,  clerk  to  F.  L. 
L."  The  affidavit  filed  with  it, commenc- 
ing "  I,  Isaac  Simpson,  clerk  to  F.  L. 
L.,"  etc.,  was  signed  "  Isc.  Simpson." 
Held,  that  by  reasonable  inference  the 


attesting  witness  of  the  bill  of  sale  and 
the  deponent  were  the  same  person. 
Routh  V.  Boutell,  i  El.  &  El.  850;  5 
Jur.  N.  S.  785;  14  L.  T.  N.  S.  286;  35 
L.  J.  C.  P.  274;  14  N.  W.  609. 

"Jos."  for  Joseph. — Com.  v.  O'Bald- 
win,  103  Mass.  210.  But  see  U.  S.  v. 
Keen,  i  McLean  (U.  S.)  441,  where 
a  draft  signed  "Jos.  Johnson"  was 
held  inadmissible  under  a  count  stat- 
ing it  to  be  signed  by  Joseph  Johnson. 
In  this  case  the  court  said  that  judi- 
cial notice  could  not  be  taken  of  the 
fact  that  "Jos."  meant  Joseph,  since 
it  might  equally  as  well  mean  Jo- 
sephus,  Joshua,  or  some  other  Chris- 
tian name. 

"Geo."  for  George.  —  Patterson  v. 
People,  12  Hun  (N.  Y.)  139.  In  Wil- 
son V.  Shannon,  6  Ark.  196,  however, 
a  plea  that  the  defendant's  name  was 
"  George  "  and  not  "  Geo."  as  stated  in 
the  declaration,  was  held  a  good  de- 
fence. 

"  Bart."  for  Bartholomew — Variance. — 
In  Rives  v.  Marrs,  25  111.  277,  the  de- 
cision was  contrary  to  the  general  rule. 
The  court  said:  "We  cannot  judi- 
cially know  that  '  Bart.'  is  a  contrac- 
tion for  Bartholomew.  We  are  unable 
to  know  that  it  is  not  a  full  name  or 
the  contraction  of  some  other.  If  the 
name  is  correctly  given  in  the  declara- 
tion, there  should  have  been  an  aver- 
ment that  the  bill  was  made  payable 
to  him  by  the  name  adopted,  which 
would  have  entitled  the  party  to  prove 
that  it  was  a  contraction  of  and  used 
for  the  full  name."  To  same  effect  see 
Curtis  V.  Marrs,  29  111.  508. 

3.  "Mrs."  and  "  Mr." — Thus  a  sum- 
mons against  "  Mrs.  Smith  "  has  been 
held  erroneous.  Schmidt  v.  Thomas, 
33  111.  App.  X09,  where  the  court  said  : 
"  It  seems  superfluous  to  cite  authority 
that  the  abbreviation  '  Mrs.'  is  not  a 
name,  yet  it  has  been  so  decided." 
State  V.  Richards,  42  N.  J.  L.  69  ;  State 
V.  Gibbs,  44  N.  J.  L.  169. 

It  is  ground  of  special  demurrer 
that  the  Christian  names  of  persons 
are  omitted  and  "Mr."  substituted  if 
such  omission  or  substitution  occurs. 


46 


Within  Judicial 


ABBREVIA  TIONS. 


Knowledge. 


Surnames  with  Prefix.— Where  surnames,  however,  having  a  prefix 
are  ordinarily  written  with  an  abbreviation,  it  is  sufficient  to 
write  them  in  the  same  manner  in  pleading.* 

3.  Time. — Abbreviations  for  words  denoting  periods  of  time 
such  as  month,  forenoon,  afternoon,  etc.,  will  be  judicially 
noticed.* 

4.  Amount  and  Description. — Where  such  customary  letters,  sym- 
bols, or  figures  are  used  for  amounts  or  in  matters  of  description 
as  clearly  convey  their  meaning  they  are  legal.* 


r 


not  in  describing  a  written  instrument, 
but  in  stating  a  transaction  between 
the  parties,  on  which  the  action  turns. 
Held,  therefore,  that  a  plea  setting 
forth  the  terms  of  an  illegal  game  was 
specially  demurrable,  because  the 
treasurer  and  secretary  were  named 
only  as  "Mr.  Richards"  and  "Mr. 
Selway."  Gatty  v.  Field,  9  Ad.  & 
El.  431  ;  58  E.  C.  L.  428.  See  also 
Tomlin  v.  Preston,  i  Chit.  Rep.  397  ; 
18  E.  C.  L.  114;  Tomlin  v.  Snow,  i 
Chit.  Rep.  398. 

"  Jr."  and  "  Sr." — The  abbreviations 
"Jr."  and  "Sr."  are  no  part  of  a 
name  proper,  and  the  omission  of 
them  does  not  constitute  error. 

California. — San  Francisco  v.  Ran- 
dall, 54  Cal.  408. 

Vermont. — Jameson  v.  Isaacs,  12  Vt. 
611  ;  Brainard  v.  Stilphin,  6  Vt.  g  ;  27 
Am.  Rep.  532  ;  Prentiss  v.  Blake,  34 
Vt.  460 ;  Blake  v.  Tucker,  12  Vt.  39  ; 
Keith  V.  Ware,  6  Vt.  680. 

Massachusetts. — Kincaid  v.  Howe,  10 
Mass.  203  ;  Cobb  v.  Lucas,  15  Pick. 
(Mass.)  7. 

Illinois. — Headley  v.   Shaw,   39  111. 

354- 

N'ew  Jersey. — State  v.  Atkinson,  27 
N.  J.  L.  420. 

New  York. — People  v.  Cook,  14 
Barb.  (N.  Y.)  259  ;  Padgett  v.  Law- 
rence, ID  Paige  (N.  Y.)  170  ;  40  Am. 
Dec.  232  ;  People  v.  Collins,  7  Johns. 
(N.  Y.)  549  ;  Jackson  v.  Prevost,  2 
Cai.  (N.  Y.)  164  ;  Fleet  v.  Youngs, 
II  Wend.  (N.  Y.)  522. 

Indiana. — Geraghty  v.  State,  no 
Ind.  103  ;  Ross  v.  State,  116  Ind.  495. 

Ohio. — Wagner  v.  Zeigler,  44  Ohio 
St.  59- 

Connecticut. — Coit  v.  Starkweather, 
8  Conn.  293. 

Maine. — State  v.  Grant,  22  Me.  171. 

Kentucky. — Johnson  v.  Ellison,  4  T. 
B.  Mon.  (Ky.)  526  ;  16  Am.  Dec.  163. 

New  Hampshire. — State  v.  Weare,  38 
N.  H.  314. 


Wisconsin. — Clark  v.  Gilbert,  i  Pin- 
ney  (Wis.)354. 

Missouri. — Neil  v.  Dillon,  3  Mo.  59. 

England. — Hogdon's  Case,  i  Lewin 
C.  C.  236  ;  Rex  v.  Bailey,  7  C.  &  P. 
264;  32  E.  C.  L.  505  ;  Lepoit  v.  Browne, 
I  Salk.  7. 

But  see  State  v.  Vittum,  9  N.  H.  519  ; 
Boyden  v.  Hastings,  17  Pick.  (Mass.) 
200. 

1.  State  V.  Kean,  10  N.  H.  347  ;  34 
Am.  Dec.  162.  See  also  Moynahan  v. 
People,  3  Colo.  367,  citing  above  case  ; 
Campbell  v.  Wolf,  33  Mo.  459  ;  Fen- 
ton  V.  Perkins,  3  Mo.  144. 

2.  "Octb."  for  October. — Kearns  v. 
State,  3  Blackf.  (Ind.)  336. 

"  Feby."  for  February. — Cutting  v. 
Conklin,  28  111.  506. 

"  A.M."  and  "P.M.  "  for  Forenoon  and 
Afternoon.  —  Hedderich  v.  State,  loi 
Ind.  564;   51  Am.  Rep.  768. 

"A.D."for  Anno  Domini. — Brown  r/. 
State,  16  Tex.  App.  245  ;  State  v. 
Hodgeden,  5  Vt.  481  ;  Com.  v.  Clark, 
4  Cush.  (Mass.)  596. 

"  Ms."  for  Months. — Dana  v.  Fiedler, 
12  N.  Y.  40;  62  Am.  Dec.  130. 

3.  As  "$"  for  dollar  ,"C.,"  "Ct.," 
"Cts."  for  cents,  "  M."  for  mills, 
"VI."  for  valuation,  "  Tx."  for  tax, 
"  Lt."  for  lot,  "  Bk."  for  block,  "  Pt." 
for  part.  Jackson  z/.  Cummings,  15  111. 
449  ;  Atkin  v.  Hinman,  7  111.  437. 

A  statement  of  damages  in  a  declara- 
tion "at  one  thou,  dollars"  was  held 
valid.  Rice  v.  Buchanan  (Ohio,  1844), 
I  W.  L.  J.  395. 

Where  the  dollar  mark  was  omitted 
and  a  perpendicular  line  used  to  sep- 
arate dollars  and  cents,  held,  the  mean- 
ing was  sufficiently  clear.  Gutzwiller 
V.  Crowe,  32  Minn.  70;  Smith?/.  Head- 
ley,  33  Minn.  384. 

But  where  the  dollar  mark  has  been 
omitted  and  there  is  no  mark,  dot,  or 
line  to  separate  dollars  and  cents,  and 
to  show  what  is  meant,  it  has  been 
held  void.     Tidd  v.   Rines,  26  Minn. 


47 


Kiscellaneous. 


A  BBRE  VIA  TIONS. 


Miscellaneous. 


III.  Miscellaneous, — Other  words,  letters,  and  symbols  which 
have  obtained  an  invariable  and  universal  meaning  by  continual 
use  may  be  used  for  their  full  written  equivalent.* 


201;  Lawrence  v.  Fast,  20  111.  339  ;  61 
Am.  Dec.  274;  Lane  v.  Bommelmann, 
21  111.   143;  Avery  v.  Babcock,  35  111. 

175- 

A  fee  bill  comprised  of  several 
items  was  footed  up  and  the  result 
expressed  thus  "  15.10:  total."  Held, 
that  the  bill  lacked  the  requisite  cer- 
tainty.     Peter  v.  Hill,  13  111.   App.  36. 

Vermont. — The  mark  commonly  used 
to  denote  dollars  (S)  is  not  part  of  the 
English  language,  within  the  statute 
of  this  state,  which  requires  declara- 
tions and  other  pleadings  to  be  drawn 
in  the  English  language;  and  a  declara- 
tion in  assumpsit  upon  a  promissory 
note  in  which  the  amount  for  which 
the  note  was  given  was  only  expressed 
in  figures  with  the  mark  for  dollars 
prefixed  (thus,  S226.15)  was  held  in- 
suflScient  on  demurrer.  Clark  v. 
Stoughton,  18  Vt.  50;  44  Am.  Dec.  361. 

Tax  Judgments. — A  description  of 
land  by  abbreviations  is  sufficient  if 
the  meaning  is  plain.  As,  "Matthias 
Wagoner,  S.  E.  1/4  of  N.  W.  1/4  Sec. 
18  T.  21,  N.  R.  7  E.,  40  acres."  This 
was  held  a  suflScient  description. 
Jordan  Ditching,  etc.,  Assoc,  v. 
Wagoner,  33  Ind.  50.  To  same  effect 
see  Frazer  v.  State,  106  Ind.  471  (S.  E. 
1/4  N.  W.  1/4  Sec.  16,  etc.),  appd.  in 
Wasson  v.  First  Nat.  Bank,  107  Ind. 
206;  Sibley  v.  Smith,  2  Mich.  486. 
Cotnpare  Detroit  Young  Men's  Soc.  v. 
Detroit,  3  Mich.  172;  Smith  v.  Headley, 
33  Minn.  384. 

But  a  description  of  the  land  against 
which  the  judgment  purports  to  be 
rendered,  as  "  S.  2  N.  E.  4  S.  E.  4  "  of 
a  designated  section,  township,  and 
range,  is  fatally  defective,  and  the 
judgment  is  upon  its  face  of  no  effect. 
Keith  V.  Hayden,  26  Minn.  212. 

Deed. — The  description  of  land  in  a 
deed  as  "  No.  8  Rg.  N.  W.  P.  Elliotts- 
ville"was  held  not  sufficient  to  pass 
title  to  any  particular  parcel.  Moulton 
V.  Egery,  75  Me.  485.  To  like  effect, 
Roberts  v.  Deeds,  57  Iowa  320. 

Indictment — Description  of  Land. — 
An  indictment  charging  a  conspiracy 
to  procure  the  allowance  of  a  false  and 
fraudulent  claim  against  the  United 
States  for  compensation  for  a  survey 
of  land  claimed  to  have  been  made  by 
defendant,  describing  the  land  as  "  Tp. 


I  S.  I  W.;  Tp.  I  S.  R.  16  W.  S.  B.  M.," 
and  not  otherwise  locating  the  lands, 
held,  defective.  The  court,  per  Field, 
J.,  said:  "  An  indictment  is  to  be  read 
to  the  accused  unless  the  reading  is 
waived.  The  language  should  there- 
fore be  so  plain  that  one  of  ordinary 
intelligence  can  understand  its  mean- 
ing. For  that  purpose  common  words 
are  to  be  used  as  descriptive  of  the 
matter.  Abbreviations  of  words  em- 
ployed by  men  of  science  or  in  the  arts 
will  not  answer  without  full  explana- 
tion of  their  meaning  in  ordinary 
language.  The  use  of  the  initials 
'  A.  D.'  to  indicate  the  year  of  our 
Lord  is  an  exception  because  of  its 
universality.  Arabic  figures  and 
roman  letters  have  also  become  indica- 
tive of  numbers  as  fully  as  words 
written  out  could  be.  They  are  of 
such  general  use  as  to  be  known  by  all 
men.  They  therefore  may  be  em- 
ployed in  indictments.  But  the  initials 
here  have  reference  to  the  public 
lands  as  marked  in  the  public  surveys. 
They  are  signs  used  in  a  particular 
department  of  public  business  and  are 
not  matters  of  general  and  universal 
knowledge  by  all  speakers  of  the 
English  language."  U.  S.  v.  Reichert, 
32  Fed.  Rep.  142. 

1.  "Vs."  for  Against. — Thus  "vs." 
is  a  legal  term  for  against.  Nor 
are  "vs."  and  like  abbreviations  sub- 
ject to  objection  as  being  Latin,  where 
statutes  forbid  the  use  of  language 
other  than  English,  they  having  be- 
come anglicized  by  use.  Smith  z/.  But- 
ler, 25  N.  H.  521. 

"  &c."  for  and  so  forth. — Berry  v. 
Osborn,  28  N.  H.  279;  Bryan  v.  Bates, 
15  111.  87,  where  a  plea  which  read  "as 
to  the  assault,  etc.,"  was  held  to  imply 
"  battery." 

"&"  for  and. — Brown  v.  State,  16 
Tex.  App.  245;  Com.  v.  Clark,  4  Cush. 
(Mass.)  596. 

"  L.  S."  for  Seal. — Smith  v.  Butler, 
25  N.  H,  521  ;  Holbrook  v.  Nichol,  36 
111.  r6i. 

"Ads."  for  Ad  Sectam. — Bowen  v. 
Wilcox,  76  111.  II 

"Co.,"  "Com."  for  Company. — Keith 
V.  Sturges.  51   111.  142. 

"  TI.  States"  for  United  States. — The 
declaration  in  an  action  for  libel  con- 


48 


Miscellaneous. 


ABBREVIA  TIONS. 


Hiscellaneoos. 


tained  the  words  "  U.  States,"  but  in 
the  paper  produced  in  evidence  it  was 
written  United  States.  Held,  immate- 
rial variance.  The  court,  per  Kent,  Ch. 
J.,  said  the  jury  might  consider  "  U. 
States  "  as  an  abbreviation  of  "  United 
States,"  especially  if  there  was  usage 
to  warrant  it.  In  a  late  proclamation 
of  the  President  of  the  United  States 
and  in  various  public  documents  we 
find  the  words  "  U.  States"  used  for 
United  States.  Lewis  v.  Few,  5  Johns. 
(N.  Y.)  I. 

•  C.  0.  D."  for  Collect  on  Delivery.— 
"These  letters  are  by  no  means  caba- 
listic ;  they  have  no  occult  or  myste- 
rious meaning,  as  used  in  appellee's 
complaint.  In  the  ordinary  commerce 
of  the  country  these  letters  have 
acquired  such  a  fixed  and  determinate 
meaning  that  courts  and  juries,  from 
their  general  information,  will  readily 
understand  what  is  meant  thereby 
when  they  are  used  as  the  appellees 
have  used  them  in  their  complaint.  If 
the  complaint  were  defective,  for  the 
want  of  an  averment  of  the  mean- 
ing of  those  letters,  the  defect  could 
only  be  reached  by  a  motion  to  make 
more  specific,  and  which  would  cer- 
tainly be  cured  by  the  verdict."  Per 
Howk,J.,  in  U.S.  Express  Co.  z'.  Keefer 
59  Ind.  263.  See  State  v.  Intoxicating 
Liquors,  73  Me.  278. 

But  in  Collender  v.  Dinsmore,  55  N. 
Y.  205,  Allen,  J.,  said:  "The  letters 
"C.  O.  D."  followed  by  an  amount  of 
money  have  come  to  be  very  well 
understood  in  the  community  and  by 
the  public,  but  perhaps  could  not 
without  the  aid  of  extrinsic  evidence 
be  read  and  interpreted  by  the  courts; 
that  is,  their  meaning  may  not  be  con- 
sidered as  judicially  settled  or  so  well 
understood  that  judicial  notice  can  be 
taken  of  the  purpose  for  which  these 
letters  are  used." 

See  also  American  Merchants'  Union 
Express  Co.  v.  Wolf,  79  111.  430  ;  Mc- 
Nichol  V.  Pacific  Express  Co.,  12  Mo. 
App.  401. 


In  Illinois  it  is  held  that  in  order  to 
introduce  parol  proof  of  the  sense  in 
which  the  letters  "  C.  O.  D."  were 
used  it  was  necessary  to  aver  in  plead- 
ing that  they  were  used  in  the  sense 
contended  for.  American  Express  Co. 
V.  Lessem,  39  111.  312. 

Doable  Comma,  "  " — The  use  of  the 
double  comma  to  indicate  repetition  is 
sanctioned  not  only  by  common  usage 
but  by  standard  literarv  authority. 
Miller  v.  Wild  Cat  Gravel  Road  Co., 
52  Ind.  59. 

Attorney's  Eee  Bill. — An  attorney  in 
rendering  his  bill  may  use  such  ab- 
breviations as  are  commonly  used  in 
the  English  language,  under  the  stat- 
utes of  2  George  II,  c.  23,  and  12 
George  II,  c.  13,  s.  5.  A  bill  contain- 
ing the  following  abbreviations, 
"  Drawg.  declar.  ffs.  15,  Instrons.  for 
case,  attg.  you  in  long  confce.  Pre- 
paring afft.,"  was  held  such  as  any- 
body would  understand  and  therefore 
good.  Frowd  v.  Stillard,  4  C.  &  P. 
51;  19  E.  C.  L.  268. 

"0.  F.  B.  A." — Where  a  writ  was 
endorsed  "Dr.  Peter  Brudgeman,  O. 
F.  B.  A. ,"  it  was  held  clear  from  the  re- 
mainder of  the  writ  that  "  Odd  Fellows 
Building  Association"  was  meant. 
Odd  Fellows  Bldg.  Assoc,  v.  Hogan, 
28  Ark.  261. 

"C.  B.  &  Q.  R.  E.  Co."— Courts  will 
not  take  judicial  notice  that  "  C.  B.  & 
Q.  R.  R.  Co."  stands  for  Chicago,  Burl- 
ington and  Quincy  Railroad  Co.  Ac- 
colo  V.  Chicago,  etc.,  R.  Co.,  70  Iowa 
185. 

Names  of  States. — The  Texas  courts 
hold  that  the  ordinary  abbreviations 
of  the  names  of  states,  as  "Mo."  for 
Missouri,  "La."  for  Louisiana,  etc., 
are  not  within  judicial  cognizance. 
Ellis  V.  Park,  8  Tex.  205  ;  Russell  v. 
Martin,  15  Tex.  238. 

Degree  Mark. — The  use  of  the  degree 
mark,"","  is  bad  in  Vermont.  State 
V.  Jericho,  40  Vt.  121 ;  94  Am.  Dec. 
387. 


I  Encyc.  PI.  &  Pr.— 4. 


49 


ABDUCTION, 


I.  Introductory,  50. 
II.  The  Indictment,  50. 
III.  Instructions,  52. 

As  to   the   Abduction   of   Children,  see  KIDNAPPING. 

I.  Introductory. — An  abduction  is  the  act  of  taking  away  or 
detaining  a  woman  either  against  her  own  will  or,  in  the  case  of 
a  minor,  against  the  will  of  her  parent  or  other  person  having  the 
lawful  charge  of  her.* 

II. — The  Indictment — The  Form.— At  common  law  an  indict- 
ment for  abduction  was  exceedingly  technical  in  form.  The 
offence  being  a  statutory*  one,  all  the  elements  thereof  as  con- 


1.  Sweet's  Law  Diet.  ;  Anderson's 
Law  Diet.  ;  Am.  &  Eng.  Ency.  Law, 
vol.  I,  tit.  Abduction.  This  artiicle 
treats  only  of  procedure  in  abduction 
proper  ;  the  kindred  subjects  of  kid- 
napping and  seduction  are  treated  of 
under  their  respective  titles. 

2.  The  crime  of  abduction  was  de- 
lined  by  statute  of  3  Hen.  VII,  c.  2. 

The  following  was  a  good  form  of 
indictment  under  this  statute:  "That 
A.  B.,  late  of,  etc.,  on,  etc.,  at,  etc.,  in 
and  upon  one  M.  W.,  spinster,  then 
and  yet  being  under  the  age  of  four- 
teen years,  and  a  maid,  and  only 
daughter  and  heir  of  P.  W.,  then  lately 
deceased,  she  the  said  M.  W.  then  and 
there  having  substance  in  movable 
goods  to  the  value  of  one  thousand 
pounds  of  lawful  money  of  Great 
Britain,  and  in  lands  and  tenements 
to  the  value  of  fifteen  hundred  pounds 
by  the  year,  of  like  lawful  money,  did 
make  an  assault,  and  her  the  said  M. 
then  and  there  did  put  in  great  danger 
of  her  life,  and  her  the  said  M.,  with 
force  and  arms,  at  the  parish  afore- 
said, in  the  county  aforesaid,  unlaw- 
fully, feloniously,  and  against  the  will 
of  her  the  said  M.,  violently  did  take, 
force,  and  convey  away,  with  intention 
that  he  the  said  A.  B.,  for  lucre  and 
the  sake  of  her  substance,  feloniously 


should  marry  and  have  the  said  M.  to 
wife  ;  and  that  the  said  A.  B.  after- 
wards, to  wit,  on,  etc.,  by  the  assent, 
procurement,  and  abetment  of  the  said 
A.  M.,  J.  J.,  and  C,  the  wife  of  F.  C, 
late  of,  etc.,  gentleman,  and  W.  C, 
late  of  the  same  parish  and  county, 
clerk,  with  force  and  arms,  at,  etc., 
feloniously  and  for  lucre  of  the  said 
substance  of  the  said  M.  W. ,  did  marry, 
and  had  the  said  M.  W.  to  wife  ; 
against  the  form  of  the  statute,  etc., 
and  against  the  peace,  etc.  And  the 
jurors,  etc.,  do  further  present  that 
the  said  A.  M.,  J.  J.,  C.,  the  wife 
of  F.  C,  and  W.  C,  on  the  said  four- 
teenth day  of  November,  in  the  year 
aforesaid,   at,    etc.,    in   the  county  of 

aforesaid,  with   force  and  arms, 

knowingly  and  feloniously  were  as- 
sisting, aiding,  procuring,  assenting, 
abetting,  and  maintaining  the  afore- 
said A.  B.  in  doing  and  committing 
the  felony  aforesaid,  against  the  form 
of  the  statute,  etc.,  and  against  the 
peace,  etc."  Chitty's  Criminal  Law, 
vol.  3,  818.  See  other  precedents : 
Cro.  C.  C.  475  ;  Trem.  P.  C.  34 ;  Pla. 
Cor.  174 ;  West.  224  ;  Ra.  Ent.  487  ; 
Stark.  432.  See  the  indictment  on 
which  Sweden  and  his  assistants  were 
convicted  for  carrying  away  Miss  Raw- 
lins, 5  Harg.  St.  Tr.  465. 


50 


The  Indictment. 


4.BDUCTI0N. 


The  Indictment. 


tained  in  the  statute  were  set  out  in  the  indictment.  But  under 
the  Hberal  rules  of  criminal  practice  which  now  obtain  in  the 
various  states  an  information  or  indictment  is  sufficient  if 
it  follows  the  language  of  the  statute  and  alleges  all  the  acts  and 
facts  which  the  legislature  has  said  shall  constitute  the  offence, 
and  is  direct  and  certain  as  to  the  party  to  be  charged,  and  the 
abduction  itself.' 

Allegations— Consent  of  Parent.— The  indictment  need  not  allege  that 
the  taking  was  without  the  consent  of  the  parent  or  guardian.* 

Custody.— But  it  isproper  to  state  from  whose  custody  the  female 
was  taken.3 

Age  of  Female.— It  is  not  necessary  to  allege  that  defendant  knew 
that  the  female  was  under  the  statutory  age.* 

Charge  of  Malice.— Nor  need  the  indictment  allege  that  the  accused 
acted  maliciously,  wilfully,  or  feloniously.* 

Intention  of  Abduction.— It  is  not  necessary  to  state  that  the  abduc- 
tion was  done  with  the  intention  to  marry  or  defile.® 


1.  People  V.  Fowler,  88  Cal.  136. 
The  following  were    held  sufficient 

forms  of  indictment : 

"The  grand  jurors  of  the  State  of 
Missouri,  summoned  from  the  body 
of  Ralls  County,  empanelled,  charged, 
and  sworn,  upon  their  oaths  present 
that    William     H.     Johnson,    late    of 

the  county  aforesaid,  on  the day 

of  ,    1887,  at  the  county  of  Ralls, 

State  aforesaid,  did  then  and  there 
bring  one  Rosa  Price,  a  female  under 
the  age  of  eighteen  years,  to  wit,  seven- 
teen years,  unlawfully  and  feloniously 
take  from  one  Lewis  Price,  her  father, 
he  the  said  Lewis  Price  then  and  there 
having  the  legal  charge  of  the  per- 
son of  the  said  Rosa  Price,  without 
the  consent  and  against  the  will  of  the 
said  Lewis  Price,  for  the  purpose  of 
concubinage,  by  having  illicit  sexual 
intercourse  with  him,  the  said  William 
H.  Johnson,  against  the  peace  and 
dignity  of  the  state."  State  v.  Johnson, 
115  Mo.  486. 

The  defendant,  at  a  time  and  place 
mentioned,  "did  unlawfully,  wilfully, 
and  feloniously  take  one  Nora  M. 
Greenslitt  into  a  certain  building  (par- 
ticularly described  as  a  livery  stable) 
for  the  purpose  of  sexual  intercourse 
with  him,  the  said  Wesley  Keith  ;  .  .  . 
she,  the  said  Nora  M.  Greenslitt, 
being  then  and  there  an  unmarried 
female,  and  under  the  age  of  sixteen 
years,  to  wit,  of  the  age  of  ten  years; 
contrary  to  the  form  of  the  statute," 
etc.     State  v.  Keith,  47  Minn.  559. 

2.  State  V.  Jamison,  38  Minn.  21. 


3.  State  z^.  Jamison,  38  Minn.  21.  But 
where  the  indictment  alleges  that  the 
defendant  took  a  female  under  18  years 
of  age  from  the  custody  of  her  mother, 
it  is  not  necessary  to  allege  that  the 
mother  had  the  legal  charge  of  the 
person  of  the  girl.  People  v.  Fowler, 
88  Cal.  136.  Nor  need  the  order  of 
commitment  recite  that  the  father, 
mother,  or  guardian  had  legal  charge 
of  the  female's  person.  Ex  p.  Estrado, 
88  Cal.  316. 

4.  People  V.  Fowler,  88  Cal.  136. 

5.  Higgins  v.  Com.  (Ky.  1893),  21 
S.  W.  Rep.  23. 

6.  Cro.  Car.  489.  It  is  safe  to  insert 
such  allegation,  however.  i  Hale 
660.  But  some  of  the  states  in  their 
"abduction"  statutes  make  mention 
of  carnal  intercourse  and  concubinage. 
This  gives  rise  probably  to  a  different 
rule  than  the  one  stated  in  the  text. 
See  the  following  cases  : 

"For  the  Purpose  of  Prostitution." — 
An  indictment  charging  the  defendant 
with  the  abduction  of  a  female  "  for 
the  purpose  of  having  illicit  sexual 
intercourse  with  her"  does  not  charge 
an  abduction  of  a  female  "  for  the  pur- 
pose of  prostitution,"  within  the  mean- 
ing of  the  statute.  2  G.  &  H.  441,  sec. 
16  ;  Osborn  v.  State,  52  Ind.  526. 

Rev.  St.  Ind.  1881,  §  1993,  provides 
for  the  punishment  of  any  person  who 
"entices  or  takes  away  any  female  of 
previous  chaste  character  from  wher- 
ever she  may  be  to  a  house  ot  ill  fame 
or  elsewhere  for  the  purpose  of  pros- 
titution."    Held,  that,  in  an  informa- 


51 


Instructions. 


ABD  UCTION. 


Instructions. 


At  common  law  it  was  necessary  to  state  that  the  taking  was 
for  lucre.* 

Place  and  Manner.— The  place  and  the  manner  of  the  taking  must 
also  be  set  forth.* 

Joinder  of  Counts.— The  indictment  for  abduction  may  contain  sev- 
eral counts.^ 

III.  INSTSTJCTIONS. — Where  the  statute  defines  different  kinds 
of  abduction,  the  court  may  read  and  explain  all  the  kinds  to  the 
jury,  although  the  defendant  is  only  charged  with  one."* 


tion  under  said  section,  an  allegation 
that  the  enticing  was  done  "  with  the 
felonious  intent  of  rendering  [the  per- 
son enticed]  a  prostitute"  was  equiva- 
lent to  alleging  that  it  was  done  "  for 
the  purpose  of  prostitution."  Nichols 
V.  State,  127  Ind.  406. 

Insufficient  Indictment. — Under  Gen. 
St.  Ky.  c.  29,  art.  4,  >^  9,  rendering  any 
one  who  shall  "  unlawfully  take  or  de- 
tain any  woman,  against  her  will,  with 
intent  to  have  carnal  knowledge  of 
her,  liable  to  punishment,"  it  is  not 
sufficient  that  an  indictment  charges 
the  defendant  with  having  carnal 
knowledge  of  a  woman  against  her 
will,  with  intent  to  have  such  knowl- 
edge. Krambiel  v.  Com.  (Ky.,  1887), 
2  S.  W.  Rep.  555. 

Surplusage. — An  information,  other- 
wise good,  charging  E.  O.  with  the 
abduction  of  a  female  under  the  age  of 
18  years  from  her  parents  for  the  pur- 
pose of  concubinage  is  not  vitiated  by 
the  addition  of  the  words  "  for  the 
purpose  of  having  sexual  intercourse 
with  him,  the  said  E.  O."  State  v. 
Overstreet,  43  Kan.  299. 

1.  Cro.  Car.  484.  But  if  the  jury 
were  not  satisfied  that  the  prisoner 
was  actuated  by  motives  of  lucre,  and 
they  were  satisfied  that  he  used  force 
to  the  person  of  the  female,  they  might 
convict  him  of  an  assault  under  7  Will. 
IV  and  I  Vict.  c.  85,  s.  11.  Reg.  v.  Bar- 
ratt,  gC.  &  P.  387  ;  38  E.  C.  L.  167,  per 
Parke,  B. 

2.  Cro.  Car.  484.  Where  the  allega- 
tion was  that  the  female  was  enticed 
from  the  city  of  Muncie  to  the  city  of 
Indianapolis,  this  was  held  defective 


in  not  stating  the  particular  house  or 
place  in  which  she  was  enticed.  Nich- 
ols V.  State,  127  Ind.  406.  But  a  de- 
fect in  not  stating  the  house  from 
which  the  girl  was  enticed  is  cured  by 
verdict.  Nichols  v.  State,  127  Ind.  406. 
Contra. — It  is  not  necessary  to  state 
from  what  place  the  girl  was  taken. 
State  V.  Keith,  47  Minn.  559.  The 
manner  of  detention  need  not  be 
stated.  Cargill  57.  Com.  (Ky.,  1890),  13 
S.  W.  Rep.  916. 

3.  Mason  v.  State,  29  Tex.  App.  24, 
where  the  joinder  of  counts  for  kid- 
napping and  abduction  was  sustained; 
State  V.  Tidwell,  5  Strobh.  (S.  Car.)  i, 
where  counts  under  both  the  3d  &  4th 
sections  of  the  stat.  4&  5  Phil.  &.  M., 
ch.  8,  were  joined. 

Somewhat  analogous  to  the  rule 
stated  in  the  text  is  that  which  allows 
a  declaration  for  enticing  away  a  minor 
daughter  from  her  father  to  contain  a 
count  for  harboring  and  secreting  her. 
Stowe  V.  Heywood,  7  Allen  (Mass.) 
118. 

Not  Separate  Offences. — When  an  in- 
dictment charges  an  assault  and  bat- 
tery only  as  a  part  of  or  mode  of  exe- 
cuting a  forcible  arrest  and  abduction, 
it  is  not  subject  to  the  objection  that 
it  contains  two  separate  and  distinct 
offences.  People  v.  Ah  Own,  39  Cal. 
604. 

An  indictment  for  abduction  which 
charges  taking  "for  the  purpose  of 
prostitution  and  sexual  intercourse  " 
does  not  charge  two  offences.  People 
V.  Powell,  4  N.  Y.  Crim.  Rep.  585. 

4.  People  V.  Brandt  (Supreme  Ct.), 
14  N.  Y.  St.  Rep.  419. 


s* 


ABIDING  THE   EVENT. 


By  F.  A.  Card. 

I.  Definition,  53. 

II.  Stipulations  and  Ageeements,  54. 
m.  Staying  Peoceedings,  56. 
IV.  Bonds  and  Recognizances,  57- 

V.  Costs,  59. 
VI.  Funds  in  Couet,  61. 

I.  Definition. — "  Abiding  the  event,"  or  "  to  abide  the  event," 
mean  either  awaiting  the  event  or  acting  in  accordance  with  the 
event,  as  by  obeying  or  conforming  to  the  order  or  decree  of  the 
court.*  The  terms  are  most  used  to  indicate  awaiting  the  event 
without   action,'-*  but  are    frequently  used  to  indicate  action    in 


1.  Anderson's  Law  Diet.  p.  6;  Jack- 
son V.  State,  30  Kan.  88. 

Application  of  Term. — In  determining 
the  application  of  the  term  the  ques- 
tion is  not  the  abstract  meaning  of  the 
words,  but  their  meaning  as  applied 
to  the  facts  of  the  particular  case. 
Hodges  V.  Pingree,  108  Mass.  585. 

Where  the  statute  required  a  recog- 
nizance conditioned  "  that  the  defend- 
ant will  appear  before  the  proper  court 
at  the  proper  time  and  there  remain 
to  abide  the  judgment  of  the  court  of 
appeals,"  and  a  bond  was  given  con- 
ditioned "  that  the  defendant  will  ap- 
pear and  await  the  action  of  the  court 
of  appeals  and  not  depart  until  dis- 
charged by  order  of  the  court,"  a 
motion  to  dismiss  the  appeal  because 
the  bond  was  not  in  accordance  with 
the  statute  was  granted,  the  court 
holding  that  the  bond  given  did  not 
require  appellant  to  abide  the  judg- 
ment of  the  court,  but  only  to  await 
the  action  of  the  court,  and  was  not  a 
substantial  compliance  with  the  stat- 
ute.    Wilson  V.  State,  7  Tex.  App.  38. 

2.  In  Arbitration  Bonds  the  words 
"  abide  the  award  "  mean  the  same  as 
to  stand  to  the  award,  viz.,  to  await 
the  award  without  revocation.  It  does 
not  mean  that  the  parties  will  acqui- 
esce in  and  not  dispute  the  validity  of 


the  award  when  made.  Vynior's  Case, 
8  Coke  82;  Chamley  v.  Winstanley,  5 
East  266;  Shaw  v.  Hatch,  6  N.  H.  162; 
Marshall  v.  Reed,  48  N.  H.  36. 

Where  a  bond  was  conditioned  to 
pay  stipulated  damages  in  case  de- 
fendant did  not  abide  by  and  perform 
an  award,  held,  an  averment  of  an 
award  in  favor  of  plaintiff,  and  a  refu- 
sal of  defendant  to  pay  the  award  on 
demand,  showed  a  breach  of  the  bond. 
Sleeper  v.  Pickering,  17  N.  H.  461. 

Where  a  Bond  in  Ne  Exeat  was  given 
conditioned  "  to  abide  and  perform  the 
judgment  of  the  court,"  and  the  surety 
on  the  bond,  having  placed  his  princi- 
pal in  the  custody  of  the  court,  peti- 
tioned to  be  released  from  the  bond, 
his  attorney  contending  that  the  effect 
of  the  bond  was  to  abide  the  event  of 
the  suit,  the  motion  was  denied,  the 
court  stating  that  it  could  not  regard 
a  bond  to  perform,  etc.,  as  equivalent 
to  one  to  abide  the  event  of  the  suit, 
and  further  holding  that  in  ne  exeat 
a  surety  had  no  right  to  surrender  his 
principal.  Griswold's  Petition,  13  R.  I. 
126. 

Agreement  to  Perfect  Eeference. — On  a 
bond  conditioned  that  defendant  would 
in  good  faith  abide  by  and  fulfil  his 
agreement  in  having  and  perfecting  a 
reference,  held,  that  evidence  that  de- 


53 


stipulations 


ABIDING    THE  EVENT. 


and  Agreements. 


conformance  with  the   event,^    the  word   "  event "  meaning   re- 
sult.* 

II.  Stipulations  and  AGEEEMENTS. — Power  of  Attorney. — The  term 
"  abide  the  event  "  is  frequently  found  in  stipulations  between  at- 
torneys as  to  the  conduct  of  actions.  An  attorney,  as  such,  by 
virtue  of  his  employment  has  power  to  bind  his  client  by  stipula- 
tion that  but  one  of  several  actions  shall  be  tried,  and  that  the 
judgment  in  the  action  tried  shall  determine  the  judgment  in  the 
other  actions.* 


fendant  prevented  one  of  the  referees 
from  wholly  completing  and  perfecting 
the  reference  showed  a  breach  of  the 
bond.  Quimby  v.  Melvin,  35  N.  H. 
198. 

1.  A  Bond  to  Appear  and  Abide  the  Order 
of  the  Court  means  to  perform,  execute, 
and  conform  to  such  order  as  the  court 
makes.  It  is  not  satisfied  by  appear- 
ance merely.  Taylor  v.  Hughes,  3 
Me.  433;  Hodge  v.  Hodgdon,  8  Cush. 
(Mass.)  297;  Jackson  v.  State,  30  Kan. 
88. 

Where  on  appeal  from  a  money 
judgment  a  bond  was  given  "  to  abide 
and  satisfy  the  judgment  or  order 
which  the  appellate  court  may  give," 
it  was  held  that  it  meant  to  execute, 
perform,  and  conform  to  the  judgment 
or  order  and  required  the  carrying  it 
into  complete  effect.  Erickson  v. 
Elder,  34  Minn.  371. 

Abiding  Equity  Decision  in  Partition 
Suit. — Where  it  was  agreed  that  a  par- 
tition at  law  should  "abide  the  deci- 
sion "  in  an  equity  suit  brought  for 
the  same  purpose,  held,  the  title  having 
been  determined  in  the  equity  suit, 
that  partition  at  law  should  be  ordered 
in  accordance  with  the  decision  in  the 
equity  suit  as  to  title.  Hodges  v. 
Pingree,  108  Mass.  585. 

2.  The  event  is  the  result  of  all  pro- 
ceedings incident  to  the  litigation. 
Field  V.  Great  Northern  R.  Co.,  39 
L.  T.  80,  3  Ex.  Div.  261. 

When  Each  Party  Succeeds  in  Fart  the 
word  "event"  is  to  be  read  distribu- 
tively,  so  that  each  will  be  entitled  to 
his  share  of  costs.  Myers  v.  Defries, 
42  L.  T.  137. 

Order  for  New  Trial. — The  "  event  "  is 
the  decision  on  the  particular  ground 
on  which  the  new  trial  is  granted; 
viz.,  if  the  new  trial  was  decided  on 
a  different  ground  from  that  on  which 
the  motion  therefor  was  granted,  it 
would  not  be  the  event  contemplated 
bv  the  order  for  a  new  trial.  Jones 
V.  Williams.  L.  R.  8  Q.   B.   280;  Daw- 


son V.  Harris,  11  C.  B.  N.  S.  801,  103 
E.  C.  L.  799. 

Witness  Interested  in  Event. — Where 
the  question  was  whether  a  witness 
was  competent,  viz.,  as  being  inter- 
ested in  the  event  of  the  action,  held, 
that  event  meant  result,  and  that  the 
witness  was  incompetent  if  interested 
in  the  result  of  the  action.  Fitch  v. 
Bates,  II  Barb.  (N.  Y.)473. 

3.  Ohlquest  v.  Farwell,  71  Iowa 
231 ;  Slaven  v.  Germain,  64  Hun  (N.  Y.) 
506;  Eidam  v.  Finnegan,  48  Minn. 
53;  Dilworth  v.  Curts,  139  111.  508; 
North  Missouri  R.  Co.  v.  Stephens, 
36  Mo.  150,  88  Am.  Dec.  138. 

An  attorney  by  virtue  of  his  general 
employment  is  authorized  to  do  all  acts 
necessary  to  the  prosecution  or  de- 
fence which  pertain  to  the  remedy. 
The  choice  of  proceedings,  manner  of 
the  trial,  and  the  like,  are  within  the 
sphere  of  his  authority,  and  his  client 
is  bound  by  his  acts.  Hence  he  may 
consent  to  consolidate  several  actions 
for  trial,  or  that  the  trial  of  one  shall 
determine  the  others,  for  this  pertains 
to  the  remedy,  manner  of  trial,  and  is 
not  an  agreement  for  judgment  or  a 
compromise.  Ohlquest  v.  Farwell, 
71  Iowa  233. 

Power  of  Special  Counsel.  —  Where 
counsel  was  employed  especially  to 
argue  a  demurrer  and  was  not  the 
general  counsel  or  attorney  of  the 
party,  held,  he  had  no  power  to  stipu- 
late that  a  decision  on  the  demurrer 
should  be  final,  and  thus  bind  the 
party  for  whom  he  appeared  to  abide 
by  the  result  of  such  decision.  Baron 
V.   Cohen,  62  How.  Pr.  (N.  Y.)  367. 

Partition  Suits  in  Other  States.  — 
Where  it  was  stipulated  by  and  be- 
tween the  parties  by  written  agree- 
ment that  all  real  estate  owned  by 
them  in  common  should  be  partitioned 
in  New  York,  although  some  of  it  was 
in  other  states,  such  agreement  was 
enforced  by  enjoining  the  prosecution 
of  partition    suits    in    other    states,  it 


54 


stipulations 


ABIDING    THE  EVENT. 


and  Agreement 


Form  of  Stipulations.  — Such  stipulations  are  usually  in  the  form 
that  those  not  tried  shall  abide  the  event  or  decision  of  the  one 
tried.  Usually  such  stipulations  should  be  in  writing  or  entered 
in  the  court  minutes  to  be  binding,  and  this  is  the  safer  practice.* 

An  Attorney  for  Infants  has  not  power  to  bind  them  by  such  a 
stipulation  without  the  consent  and  concurrence  of  the  court.* 

Meaning  of  Words  in  Stipulations. — When  used  in  such  stipulations 
the  words  mean  that  the  parties  shall  acquiesce  in  and  be  bound 
by  the  judgment  in  the  action  tried.* 


being  held  equivalent  to  an  agree- 
ment to  abide  by  the  decision  of  the 
courts  of  New  York  as  to  the  parti- 
tion of  said  lands.  Bowers  v.  Durant, 
43  Hun  (N.  Y.)  348. 

Defence  Common  to  Two  Actions. — 
Where  it  was  stipulated  that  a  defence 
common  to  two  actions  should  abide 
an  appeal  in  one  of  them,  held,  binding 
and  enforced.  Riggs  v.  Commercial 
Mut.  Ins.  Co.,  125  N.  Y.  11. 

Where,  in  a  number  of  actions  by 
different  plaintiffs  against  the  same 
defendant,  it  was  stipulated  by  the 
respective  attorneys  "  that  two  of  the 
actions,  representing  the  two  classes 
of  cases  involved,  should  be  tried,  and 
that  a  like  judgment  should  be  entered 
in  all  the  cases  of  the  same  class  as  in 
the  one  tried  without  a  trial,  and  that 
if  an  appeal  was  taken  all  cases  of  the 
same  class  should  abide  the  determi- 
nation of  the  appeal,  it  being  the  inten- 
tion to  determine  all  questions  involved 
by  the  trial  of  the  two  suits  specified," 
— the  defendant,  being  defeated  and 
having  appealed,  subsequently  moved 
to  dismiss  its  own  appeal  on  the 
ground  of  a  mistake  of  fact  in  enter- 
ing into  the  stipulation.  On  appeal 
from  an  order  granting  such  motion, 
held,  it  was  erroneous  and  should  be 
reversed;  that  the  stipulation  was 
such  as  the  attorneys  had  power  to 
make,  was  fair,  mutual  and  binding, 
and  would  be  enforced.  McKinley  v. 
Wilmington  Star  Min.  Co.,  7  111.  App. 

392. 

1.  Where  such  a  stipulation  was  en- 
tered into  in  open  court,  but  was  not 
reduced  to  writing  and  filed  with  the 
clerk  or  entered  in  the  minutes,  held, 
void,  and  that  it  was  not  rendered 
valid  by  an  order  subsequently  ob- 
tained by  one  of  the  parties  without 
the  consent  of  the  other  to  enter  it 
on  the  minutes  mine  pro  tunc.  Bork- 
heim  v.  North  British,  etc.,  Ins.  Co., 
38  Cal.  623. 


The  Iowa  Code  provided  that  no  evi- 
dence of  an  agreement  of  an  attorney 
to  bind  his  client  should  be  received 
except  the  statement  of  the  attorney 
or  his  written  agreement  filed  or  en- 
tered on  the  minutes.  Held,  the  affi- 
davit of  the  opposing  attorney  could 
not  be  received  as  evidence  of  an 
agreement  as  to  the  submission  of 
several  actions.  Searlesz/.  Lux  (Iowa, 
1892),  52  N.  W.  Rep.  327. 

2.  Where  some  of  the  parties  to  an 
action  were  infants  and  their  attorney 
entered  into  a  stipulation  that  the  ac- 
tion should  abide  the  event  of  another 
action,  held,  that  the  power  of  an 
attorney  for  infants,  or  of  a  guardian 
ad  litem  for  infants,  did  not  extend  so 
far  as  to  authorize  such  stipulation; 
that  it  would  not  be  enforced  as  to 
the  infants  unless  it  had  been  ratified 
and  approved  by  the  court  on  evi- 
dience  clearly  showing  it  was  for  the 
interest  of  the  infants;  that  the  ac- 
tions involved  the  same  questions 
and  the  infants  were  represented  by 
the  same  guardian  ad  litem.  The 
judgment  entered  on  such  stipulation 
was  reversed  as  to  the  infants  and 
affirmed  as  to  the  adults.  Eidam  v. 
Finnegan,  48  Minn.  53. 

3.  Ohlquest  v.  Farwell,  71  Iowa 
231;  Eidam  v.  Finnegan,  48  Minn.  53; 
Slaven  v.  Germain,  64  Hun  (N.  Y.) 
506;  Holahan  v.  Sackett  Harbor,  etc., 
R.  Co.,  24  How.  Pr.  (N.  Y.)  155. 

Stipulation  in  Different  Forms.  —  In 
one  case  the  stipulation  appeared  in 
three  forms,  viz.:  in  clerk's  min- 
utes it  was,  "On  stipulation  this 
case  was  ordered  over  the  term  to 
abide  the  result  of  the  case  of  H. 
now  pending  in  General  Term;"  in 
judge's  minutes,  "  Stipulated  that  is- 
sues in  this  case  except  question  of 
damage  abide  result  of  H.  case  now 
pending  in  General  Term;"  in  stenog- 
rapher's minutes,  "  Stipulated  that 
issues  in  this  case  except  question  of 


55 


stipulations 


ABIDING    THE  EVENT. 


and  Agreements. 


III.  Staying  Proceedings  in  One  Action  to  Abide  the  Event  of 
Anothek.     See  Another  Suit  Pending. 


damages  abide  result  of  H.  case 
now  pending  in  General  Term,  and 
that  if  H.  case  is  decided  in  favor  of 
plaintiff  all  questions  of  fact  and  law 
in  this  case  are  thereby  decided  in 
favor  of  this  plaintiff  except  the  ques- 
tion of  damages."  The  court  held 
the  meaning  of  these  several  en- 
tries was  substantially  the  same; 
that  the  stipulation  was  binding,  and 
no  question  could  bi;  tried  except  the 
question  of  damage,  the  H.  case  hav- 
ing been  decided  in  favor  of  plaintiff 
by  the  General  Term.  Slaven  v.  Ger- 
main, 64  Hun  (N.  Y.)  506. 

Actions  of  Ejectmeni. — Where  in  sev- 
eral actions  of  ejectment  it  was  stipu- 
lated that  all  but  one  should  be  stayed 
and  should  abide  the  event  of  the  one 
tried,  and  in  case  of  judgment  therein 
for  defendant,  the  defendants  in  the 
others  should  deliver  possession  to 
plaintiff  or  purchase  of  him,  held, 
plaintiff  having  been  nonsuited  in  the 
action  tried,  that  the  stipulation  was 
binding  and  estopped  defendants  or 
their  grantees  from  claiming  title  to 
the  property.  Brown  v.  Sprague,  5 
Den.  (N.  Y.)  552. 

Where  Two  Actions  on  Covenant  were 
Consolidated  for  trial  under  stipulation 
that  they  should  be  tried  on  the  issue 
of  title  and  judgment  might  include 
recovery  on  other  issues  as  title  might 
appear,  held,  to  narrow  the  whole 
question  to  that  of  title  and  make 
judgment  dependent  on  that  issue 
alone.  Welsh  v.  Cooley,  44  Minn. 
446. 

Decision  of  Appellate  Court. — Where, 
on  motion  for  a  stay  pending  decision 
of  another  action  by  appellate  court, 
a  stay  was  ordered  on  condition  that 
defendant  stipulate  that  the  action 
abide  the  result  of  said  appeal,  and  a 
stipulation  was  entered  into  to  the 
effect  that  unless  the  appellate  court 
held  the  bonds  involved  in  the  action 
valid,  defendant's  answers  should  be 
stricken  out  and  plaintiff  have  judg- 
ment as  demanded,  and  the  appellate 
court  decided  the  appeal  without  pass- 
ing on  the  question  of  the  validity  of 
the  bonds,  held,  defendant  was  bound 
by  the  stipulation  and  it  would  be  en- 
forced. McNeill  V.  Andes,  40  Fed. 
Rep.  45. 

Repeal  of  Statute  Pending  Action. — 
Where   it  was   stipulated   that  one  of 


several  actions  should  be  tried  and 
the  others  abide  the  final  judgment  in 
the  one  tried,  and  a  like  judgment 
should  be  entered  in  each  of  the  oth- 
ers, held,  binding  and  enforced,  al- 
though meanwhile  the  legislature  had 
repealed  the  act  on  which  the  judg- 
ment rendered  in  the  one  tried  was 
based.  North  Missouri  R.  Co.  v. 
Stephens,  36  Mo.  150,  88  Am.  Dec.  138. 

Stipulation  to  Abide  by  "Issue." — 
Where  it  was  stipulated  between  attor- 
neys "that  a  certain  action  should  abide 
by  the  issue  in  a  specified  case,"  and 
in  the  specified  case  the  plaintiff 
finally  succeeded  and  his  attorney 
then  moved  for  judgment  in  the  action 
covered  by  the  stipulation  upon  the 
stipulation  and  the  proceedings  in  the 
specified  case,  and  the  motion  was 
granted  and  judgment  for  plaintiff 
entered,  held,  proper  ;  that  to  abide 
by  the  issue  meant  the  ultimate  result 
or  end  of  the  specified  case,  and  that 
the  only  question  left  open  by  the 
stipulation  was  that  of  damages,  as  to 
which  there  was  no  error,  and  the 
judgment  was  aflirmed.  Niagara  Ins. 
Co.  V.  Scammon,  35  111.  App.  586. 

Amending  of  Pleadings  not  Changing 
Issue  does  not  Affect  Stipulation. — Where 
it  was  stipulated  between  attorneys 
"  that  one  of  a  number  of  actions  should 
be  tried  as  a  test  case  and  the  others 
should  abide  the  result  of  the  test 
case,"  held,  binding,  although  the 
judgment  in  the  test  case  was  once 
reversed  and  a  new  trial  had  on 
amended  pleadings  not  substantially 
changing  the  issues.  Judgment  en- 
tered on  such  stipulation  was  aflSrmed. 
Galbreath  v.  li.ogers,  45  Mo.  App.  327. 

Where  in  two  cases  it  was  stipulated 
and  entered  in  the  minutes  "that  one 
should  be  tried  and  proceedings  in  the 
other  stayed  until  final  judgment  in 
the  one  tried,  and  that  on  such  final 
judgment  a  judgment  should  be  en- 
tered in  the  other  action  correspond- 
ing to  and  like  the  judgment  in  the 
one  tried,"  held,  that  on  final  judg- 
ment for  plaintiff  in  the  case  tried  he 
was  entitled  to  enter  a  like  judgment 
in  the  case  not  tried,  and  that  the  fact 
that  in  the  case  tried  a  judgment  for 
plaintiff  was  reversed  and  a  new  trial 
had  on  amended  pleadings  not  sub- 
stantially changing  the  issues  did  not 
affect  the  stipulation  or  render  it  nu- 


56 


Bonds  and 


ABIDING    THE  EVENT. 


Becognizances. 


IV.  Bonds  and  Recognizances. — criminal  Proceedings. — The  words 
"to  abide  the  order,  judgment,  or  decision  of  the  court,"  or 
equivalent  words,  when  used  in  bonds  or  recognizances  given  in 
a  criminal  or  ^?^^.yz-criminal  proceeding,  are  usually  held  to  re- 
quire an  awaiting  of  the  order  or   decision.* 


\ 


gatory,  the  new  trial  resulting  in  judg- 
ment for  plaintiff  as  on  the  first  trial. 
Gilmour  v.  American  Cent.  Ins.  Co., 
67  Cal.  368. 

"To  Await"  Held  Equivalent  to  "to 
Abide." — Where  it  was  stipulated  be- 
tween attorneys  "that  a  number  of 
untried  cases  should  be  submitted  to 
the  court  upon  the  same  evidence  given 
in  a  specified  case  tried,  and  that  the 
findings  in  the  case  tried  should  be  the 
findings  in  those  not  tried,  and  that 
the  untried  cases  should  await  but  not 
abide  the  decision  of  the  case  tried," 
held,  its  effect  was  to  make  the  decis- 
ion in  the  case  tried  conclusive  in  the 
other  cases,  and  the  sole  function  of 
the  court  was  to  enter  judgment  in 
the  untried  cases  on  the  findings  in 
the  case  tried,  and  that  exceptions  not 
taken  in  the  case  tried  could  not  be 
raised  in  the  other  cases.  State  v. 
Hannibal,  etc.,   R.  Co.,  34  Mo.  App. 

597- 

Married  Woman  Bonnd  by  Attorney's 
Stipulation. — Where  in  a  number  of 
cases  in  which  one  of  the  defendants 
was  a  married  woman  it  was  stipulated 
between  attorneys  "that  one  of  the 
cases  should  be  tried  and  that  the  oth- 
ers should  abide  the  result  of  the  one 
tried,  and  that  the  pleadings  in  the 
case  tried  should  be  considered  as  filed 
in  the  other  cases,"  and  the  court 
consented  to  the  stipulation  and  or- 
dered it  filed,  and  an  order  thereon 
was  entertained  in  each  case  ;  and 
plaintiff  having  recovered  judgment 
in  the  case  tried,  judgment  for  him 
was  entered  in  the  other  cases  on  mo- 
tion and  production  of  the  stipulation 
and  proceedings  had  in  the  case  tried, 
— held,  on  appeal  from  one  of  the  judg- 
ments so  entered,  that  the  stipulation 
was  binding  and  judgment  properly 
entered  thereon  ;  that  the  fact  that 
one  of  the  defendants  was  a  married 
woman  did  not  affect  the  stipulation 
that  her  attorney,  as  such,  had  power 
to  and  bound  her  by  the  stipulation. 
Galbreath  v.  Rogers,  30  Mo.  App.  405. 

1.  State  V.  Holmes,  23  Iowa  458  ; 
People  V.  Clary,  17  Wend.  (N.  Y.)374. 

The  obligation  of  the  sureties  is 
fulfilled  when  the  accused  appears  and 


awaits  the  decision  of  the  court  or  is 
put  under  the  control  of  the  court. 
State  V.  Holmes,  23  Iowa  458  ;  Peo- 
ple V.  Clary,  17  Wend.  (N.  Y.)  374  ; 
People  V.  McCully,  i  Edm.  Sel.  Cas. 
(N.  Y.)  270  ;  State  v.  Stout,  11  N.  J.  L. 
124. 

In  contempt  proceedings  the  condi- 
tion of  such  a  bond  is  broken  by  fail- 
ure of  the  accused  to  appear  on  the 
day  named.  Thomas  v.  Cameron,  17 
Wend.  (N.  Y.)  59. 

Respite  by  Court. — Where  action  was 
brought  against  the  sureties  in  a  crim- 
inal matter,  the  bond  being  condi- 
tioned that  the  accused  would  appear 
and  abide  the  order  of  the  court,  and 
the  defence  was  that  the  accused  ap- 
peared on  a  certain  day  and  the  court, 
against  the  objection  of  the  sureties, 
respited  the  recognizance  to  another 
day,  held,  a  good  defence  and  equiva- 
lent to  a  surrender ;  that  the  purpose 
of  the  bond  was  to  secure  the  appear- 
ance of  the  accused  and  put  him  under 
the  power  of  the  court,  and  this  had 
been  practically  performed.  People 
V.  Clary,    17  Wend.  (N.  Y.)  374. 

Power  of  Justice. — Where  a  justice 
had  power  to  take  a  bond  fortheappear- 
ance  of  the  accused,  and  one  was  taken 
conditioned  that  he  would  appear  and 
abide  the  judgment  of  the  court,  held, 
equivalent  to  a  bond  to  appear,  and 
within  the  power  of  the  justice,  al- 
though counsel  for  the  sureties  con- 
tended that  taking  a  bond  to  abide  the 
judgment  of  the  court  was  beyond  the 
power  of  the  justice  and  rendered  the 
obligation  void.  Sturges  z/.  Sherwood, 
15  Conn.  149. 

Second  Failure  of  Accused. — Where 
a  bond  for  the  appearance  of  the 
accused  was  taken,  and  was  for- 
feited on  his  failure  to  appear,  and 
afterwards  the  accused  was  rearrested 
and  said  forfeiture  cancelled  and  set 
aside,  held,  sureties  not  liable  for  a 
second  failure  of  the  accused  to  ap- 
pear, because  when  he  was  rearrested 
he  was  in  the  custody  of  the  court, 
and  thereby  the  sureties  were  relieved 
from  liability  ;  that  the  purpose  of  the 
bond  was  to  secure  appearance  of  the 
accused,   and  the    sureties   would   be 


57 


Bonds  and 


ABIDING    THE  EVENT. 


Becognizances. 


Civil  Actions. — But  in  bonds  and  recognizances  given  in  civil 
actions  and  proceedings,  they  are  generally  held  to  require  com- 
pliance with,  or  performance  of,  the  order  or  decision.* 


liable  if  he  failed  to  appear  or  abide 
the  judgment  of  the  court.  (The  form 
of  the  bond  was  not  stated.)  State  v. 
Holmes,  23  Iowa  460. 

Continuous  Appearance. — Where  in  a 
criminal  case  the  condition  of  the 
recognizance  was  "to appear  before 
the  court  and  answer  concerning  the 
charge,  and  not  to  depart  without 
leave  of  court."  held,  it  bound  not 
only  to  appear  on  the  day  named,  but 
to  continue  to  appear  until  the  accused 
was  acquitted  or,  if  found  guilty,  un- 
til sentence  was  imposed.  And  where 
the  accused  appeared  at  the  trial  and 
was  found  guilty,  but  departed  before 
sentence  was  pronounced  on  him,  held, 
the  sureties  on  the  recognizance  were 
liable.  Dennard  v.  State,  2  Kelly 
(Ga.)  139. 

Held  to  Bind  to  Performance  of  the 
Judgment. — Where  the  condition  of  the 
recognizance  was  "that  the  accused 
shall  be  and  appear  before  the  judge 
of  the  court  to  answer,  and  not  depart 
without  leave,  and  abide  the  order 
and  judgment  thereof,"  and  the  ac- 
cused appeared  for  trial,  was  con- 
victed, and  fined  ;  moved  for  a  new 
trial,  which  was  denied  ;  then  failed 
to  appear  and  pay  the  fine,  and  the 
recognizance  was  declared  forfeited, 
the  sureties  contended  they  were  dis- 
charged by  the  appearance  of  the  ac- 
cused and  his  submission  to  trial. 
Held,  the  sureties  were  liable  ;  that 
the  condition  bound  the  accused  not 
only  to  appear,  but  to  abide  the  judg- 
ment of  the  court,  viz.,  to  perform 
and  satisfy  it  by  payment  of  the  fine 
imposed.  State  v.  Whitson,  8  Blackf. 
(Ind.)  178. 

But  where,  in  a  contempt  proceed- 
ing, the  accused,  although  not  in  court 
when  called,  is  subsequently  arrested, 
brought  into  court,  and  adjudged 
guilty  of  contempt  and  imprisoned, 
the  obligation  of  the  sureties  is  per- 
formed, and  they  were  held  not  liable 
to  prosecution  on  the  bond,  and  an  ac- 
tion against  them  thereon  was  per- 
petually stayed.  Barton  v.  Butts,  32' 
How.  Pr.  (N.  Y.)456. 

An  appeal  bond  to  appear  and  abide 
the  judgment  of  the  court  does  not 
prevent  the  imposition  of  sentence, 
under  the  Alabama  statutes.  In  re 
Newton,  94  Ala.  431. 


1.  Jackson  v.  State,  30  Kan.  88  ; 
Hodge  V.  Hodgdon,  8  Cush.  (Mass.) 
294  ;  Taylor  v.  Hughes,  3  Me.  433  ; 
Fowler  v.  Thorn,  4  Ark.  208. 

In  bastardy  proceedings  a  bond  to 
abide  the  order  of  the  court  requires 
performance  of  the  order,  and  failure 
thereof  renders  the  sureties  liable. 
Jackson  v.  State,  30  Kan.  88. 

In  arbitration  bonds  the  words  "to 
abide  the  award"  or  "stand  to  the 
award  "  have  been  held  to  mean  simply 
to  await  the  award  without  revoca- 
tion, not  to  perform  it  when  made. 
Marshall  v.  Reed,  48  N.  H.  35. 

But  by  the  mere  submission  to  ar- 
bitration it  is  held  the  law  implies  a 
promise  to  abide  by  and  perform  the 
award.  Kyd  on  Awards,  pp.  11  &  278, 
Ed.  of  1808  ;  Knox  v.  Symmonds,  3 
Bro.  C.  C.  361  ;  Valentine  v.  Valen- 
tine, 2  Barb.  Ch.  (N.  Y.)  437. 

A  promise  to  pay  the  amount  found 
due  is  implied  from  an  agreement  to 
abide  by  the  decision  of  the  arbitra- 
tors.    Efner  v.  Shaw,  2  Wend.  (N.  Y.) 

567- 

In  libels  in  admiralty  a  bond  is  re- 
quired conditioned  to  abide  and  an- 
swer the  decree  of  the  court,  g  U.  S. 
Stat,  at  Large,  p.  181,  Act  of  Mch.  3, 
1847,  ^  I  ;  The  Gran  Para,  10  Wheat. 
(U.  S.)498. 

Such  a  bond  requires  performance 
of  such  a  decree,  as  distinguished  from 
merely  awaiting  the  decree.  The  Pal- 
myra, 12  Wheat.  (U.  S.)  19  ;  The 
Wanata,  95  U.  S.  611. 

A  bond  on  appeal  to  pay  money  or 
otherwise  abide  the  decision  of  the 
court  requires  performance  of  such 
judgment.  Fowler  v.  Thorn,  4  Ark. 
210. 

Miscellaneous. — Under  the  provision 
of  the  code  of  California,  on  appeal 
from  a  judgment  for  the  delivery  of 
personal  property,  the  appellant  must 
give  a  bond  to  obey  the  order  of  the 
appellate  court,  as  well  as  an  ordinary 
bond,  before  he  can  obtain  a  stay. 
Swasey  v.  Adair,  88  Cal.  203. 

A  bond  to  pay  money  according  to 
the  order  of  the  court  can  be  enforced 
only  according  to  the  true  intent  of 
the  condition  under  which  it  was 
given  and  for  the  benefit  of  those  for 
whom  it  was  given.  Elmendorf  v. 
Lansing,  5  Cow.  (N.  Y.)  468. 


58 


Costs. 


ABIDING    THE  EVENT. 


Costs. 


V.  Costs. — The  term  "  costs  to  abide  the  event  "  has  long  been 
used.*  It  is  the  general  rule,  in  the  absence  of  statute  to  the  con- 
trary, that  costs  should  abide  the  event  of  the  suit  or  action  and 
go  to  the  prevailing  party.  ^  The  event  on  which  costs  depend 
is  usually  the  final  disposition  of  the  litigation.^ 

Where  a  New  Trial  is  granted  costs  are  usually  given  to  abide  the 
event."*       In   such   case   the   costs   of   appeal   go   to   the   party 


1.  By  Statute  g  Ann.  ch.  20  it  was 
provided  that  in  disputes  in  relation 
to  municipal  officers  the  relator  should 
receive  or  pay  costs  according  to  the 
event  of  the  suit.  3  Blackstone  Com. 
p.  264. 

It  was  one  of  the  usual  terms  of  ar- 
bitration agreements  or  rules  that  costs 
should  abide  the  event.  2  Chitty's 
General  Practice  p.  86. 

2.  McReynolds  v.  Gates,  7  Humph. 
(Tenn.)  29  ;  GarroU  v.  Hardy,  21  Mo. 
66  ;  Turley  v.  Logan  Gounty,  17  111. 
151  ;  Glifton  v.  Sparks,  29  Mo.  App. 
560.     See  GosTS. 

3.  Green  v.  Wright,  46  L.  J.  G.  P. 
427  ;  Field  v.  Great  Northern  R.  Go., 
47  L.  J.  Q.  B.  662  ;  Reeves  v.  McGre- 
gor, 9  Ad.  &  El.  577,  36  E.  G.  L.  201  ; 
Meule  V.  Goddard,  5  B.  &  Aid.  766; 
First  Nat.  Bank  v.  Fourth  Nat.  Bank, 
84  N.  Y.  469;  2  Ghitty's  General  Prac- 
tice p.  86. 

Parties  should  not  be  compelled  to 
pay  costs  while  a  suit  is  still  pending, 
but  they  should  abide  the  event  of  the 
suit.     Carroll  v.  Hardy,  21  Mo.  66. 

Costs  should  only  be  awarded  on 
the  true  merits  as  they  appear  at  the 
final  disposition  of  the  case,  and  not 
at  any  intermediate  stage.  Turley  v. 
Logan  County,  17  111.  151. 

Where  an  action  is  discontinued, 
that  is  such  a  final  disposition  as  de- 
termines the  right  to  costs.  Van  Wyck 
V.  Baker,  11  Hun  (N.  Y.)  309. 

Where  costs  were  to  abide  the  event 
in  an  action  in  which  defendant  inter- 
posed a  counterclaim,  held,  the  event 
on  which  costs  depended  was  which 
party  succeeded  in  getting  judgment, 
the  claims  and  demands  of  both  par- 
ties being  considered  and  adjusted. 
Ghatfield  v.  Sedgwick,  4  G.  P.  Div. 
459.  Contra,  Stooke  v.  Taylor,  5  Q.B. 
Div.  569. 

Where  costs  are  to  abide  or  follow 
the  event  it  means  the  result  or  out- 
come of  the  litigation;  and  if  there  are 
several  issues,  it  is  to  be  read  distribu- 
tivelyas  "  events,"  and  costs  follow  to 
each  party  according  to  the  issues  or 


events  on  which  they  succeed.  Myers 
V.  Defries,  49  L.  J.  Ex.  266;  Abbott 
V.  Andrews,  51  L.  J.  Q.  B.  641;  Goutard 
V.  Garr,  53  L.  J.  Q.  B.  55  ;  Hawke  v. 
Brear,  54  L.  J.  Q.  B.  315  ;  Hardy  v. 
Fetherstonhaugh,  10  B.  &  S.  628. 

Where  there  were  several  issues  and 
the  arbitrator  only  made  a  general 
finding  for  one  party,  the  case  was 
sent  back  for  findings  on  the  several 
issues,  so  that  the  question  of  costs 
could  be  determined.  Ellis  z/.  Desilva, 
50  L.  J.  Q.  B.  328. 

The  general  costs  follow  the  general 
result  or  balance  of  the  decision  on 
the  issues  or  events.    Goutard  v.  Garr, 

53  L.  J.  Q.  B.  55  ;  Lund  v.  Campbell, 

54  L.  J.  Q.  B.  281. 

Where  in  an  arbitration  costs  were 
to  abide  the  event,  it  means  such  an 
event  as  in  law  would  entitle  to  costs. 
Hence  if  successful  party  would  not  be 
entitled  to  costs  under  the  rules  or 
statutes  governing  costs,  he  cannot  ob- 
tain costs  although  successful  in  the 
arbitration.  Ward  v.  Mallinder,  5  East 
489  ;  Swinglehurst  v.  Altham,  3  T.  R. 
38. 

Although  costs  be  given  to  abide  the 
event,  the  right  to  them  depends  on  the 
right  to  general  costs  in  the  action; 
and  if  party  finally  successful  is  not  en- 
titled to  general  costs,  he  cannot  have 
costs  given  to  abide  the  event.  New 
V.  Anthony,  4  Hun  (N.  Y.)  52,  6 
Thomp.  &  C.  (N.  Y.)  243;  Snyder  z/. 
Collins,  12  Hun  (N.  Y.)  383. 

4.  U.  S.  V.  Beaty,  Hempst.  (U.  S.) 
496  ;  Walker  v.  Barrow,  6  Minn.  50S; 
Robbins  v.  Hudson  River  R.  Co.,  7 
Bosw.  (N.  Y.)  I  ;  Jacobsohn  v.  Bel- 
mont, 7  Bosw.  (N.  Y.)  14;  Den  v. 
Johnson,  18  N.  J.  L.  loi. 

But  where  verdict  is  set  aside  as 
against  the  weight  of  evidence  and 
new  trial  granted,  costs  should  be 
awarded  absolutely  and  not  to  abide 
the  event,  to  be  paid  by  the  party  on 
whose  motion  it  is  set  aside.  Peck  v. 
Fonda,  etc.,  R.  Co.,  25  N.  Y.  St.  Rep. 
95,6  N.  Y.  Supp.  379,53  Hun  (N.Y.)  634; 
Maher  v.  Simmons,  47  Hun  (N.Y.)  480. 


59 


Costs. 


ABIDING   THE  EVENT. 


Costs. 


finally  successful  in  the  action,  although  he  may  not  have  been 
the  party  successful  on  the  appeal  on  which  the  new  trial  was 
granted.*  But  where  costs  to  abide  event  are  given  to  a  party 
specified  as  the  appellant  or  respondent,  that  party  only  in  general 
can  have  costs  of  appeal.*     Where  judgment  is  reversed  and  new 

13  Civ.  Pro.  Rep.  (N.  Y.)  434;  House 
V.  Lockwood,  48  Hun  (N.  Y.)  550.  And 
the  court  of  appeals  refused  to  inter- 
fere with  this  construction  of  its  own 
orders  by  the  lower  court.  Union 
Trust  Co.  V.  Whiton,  78  N.  Y.  491. 

South  Carolina. — But  under  statute 
of  South  Carolina  as  to  costs,  costs 
of  appeal  go  to  party  successful  on 
appeal  whether  finally  successful  or 
not.  Huff  z/.  Watkins,  25  S.  Car.  245; 
Cleveland  v.  Cohn,  13  S.  Car.  397. 

Party  Finally  Successful  not  Entitled  to 
Costs  of  Appeal. — Where  an  order  grant- 
ing a  new  trial  with  costs  to  abide  the 
event  was  affirmed  by  the  general  term 
with  costs,  held,  the  party  successful 
on  appeal  was  entitled  to  costs  of  ap- 
peal although  not  finally  successful. 
Stevenson  v.  Pusch,4oHow.  Pr.  (N.Y.) 
91. 

Party  Successful  Finally  not  Entitled  to 
Costs  of  Intermediate  Appeal. — Where 
plaintiff  succeeded  on  trial  and  at  gen- 
eral term,  but  judgment  was  reversed 
by  court  of  appeals  and  reargument 
ordered  at  general  term  with  costs  to 
abide  the  event,  held,  plaintiff  not  en- 
titled to  costs  of  the  first  argument  at 
general  term.  Bigler  v.  Pinkney,  24 
Hun  (N.  Y.)  224. 

2.  Van  Gelder  v.  Van  Gelder,  84 
N.  Y.  658;  Fischer  v.  Langbein,  31 
Hun  (N.  Y.)  273;  Donovan  v.  Board 
of  Education,  i  Civ.  Pro.  Rep.  (N.  Y.) 
311,  note;  Howell  v.  Van  Siclen,  4 
Abb.  N.  Cas.  (N.  Y.)  i. 

But  a  Statute  as  to  Costs  Controls  this 
Rule, — Where  costs  are  governed  by 
statute  and  go  as  a  matter  of  right  to 
the  party  finally  successful,  he  is  enti- 
tled to  the  costs  of  an  appeal  which 
were  expressly  given  to  his  opponent 
to  abide  the  event.  Murtha  v.  Cur- 
ley,  92  N.  Y.  361,  65  How.  Pr.  (N.  Y.) 
86,  3  Civ.  Pro.  Rep.  (N.  Y.)  266;  Re- 
vere Copper  Co.  v.  Dimmock,  29  Hun 
(N.  Y.)  299;  Sanders  v.  Townshend,  11 
Abb.  N.  Cas.  (N.  Y.)  217;  Donovan  v. 
Vandemark,  22  Hun  (N.  Y.)  307. 

When  costs  are  a  matter  of  right, 
the  discretion  given  by  statute  on 
granting  new  trials  is  limited  to  costs 
in  the  appellate  court.  Sturgis  v. 
Spofford,  58  N.  Y.  103. 


Where  a  new  trial  is  granted,  costs 
to  abide  event,  the  event  is  the  decis- 
ion on  the  particular  ground  on  which 
the  new  trial  was  granted.  Jones  v. 
Williams,  L.  R.  8  Q.  B.  280;  Dawson 
V.  Harris,  11  C.  B.  N.  S.  801;  103  E. 
C.  L.  799. 

Where  new  trial  is  granted,  costs  to 
abide  the  event,  the  new  trial  or  the 
result  thereof  is  the  event  which  de- 
termines the  right  thereto.  First  Nat. 
Bank  v.  Fourth  Nat.  Bank,  84  N.  Y. 
470;  Koon  V.  Thurman,  2  Hill  (N.  Y.) 
357,  distinguishing  Union  Trust  Co.  v. 
Whiton,  78  N.  Y.  491,  in  which  it  was 
held  the  court  would  not  interfere  with 
the  discretion  of  the  lower  courts  on 
this  point. 

Where  a  decree  of  a  surrogate  ad- 
mitting a  will  to  probate  was  reversed 
and  a  new  trial  granted,  costs  to  abide 
the  event,  to  be  paid  out  of  the  estate 
to  the  one  finally  successful,  were 
given.  Lake  v.  Ranney,  33  Barb. 
(N.  Y.)  70. 

1.  First  Nat.  Bank  v.  Fourth  Nat. 
Bank,  84  N.  Y.  469;  Donovan  v.  Vande- 
mark, 22  Hun  (N.  Y.)  307;  Tall  v.  Mo- 
hawk Valley,  etc.,  Ins.  Co.,  15  How. 
Pr.  (N.  Y.)  315  ;  Comly  v.  New  York, 
I  Civ.  Pro.  Rep.  (N.  Y. )  306  ;  Carney  v. 
Rider,  2  Cow.  (N.  Y.)  617;  Mott  v. 
Consumers'  Ice  Co.,  8  Daly  (N.  Y.) 
244;  Sanders  v.  Townshend,  63  How. 
Pr.  (N.  Y.)  343  ;  Lotti  v.  Krakauer,  i 
Civ.  Pro.  Rep.  (N.  Y.)  312,  note;  Van 
Wyck  V.  Baker,  11  Hun  (N.  Y.)  309; 
Isaacs  V.  New  York  Plaster  Works,  43 
N.  Y.  Super.  Ct.  397;  Flynn  v.  Equi- 
table Assur.  Soc,  18  Hun  (N.  Y.)  212  ; 
Marx  V.  McCloud,  21  N.  Y.  St.  Rep. 
957.  3  N.  Y.  Supp.  74,  50  Hun  (N.  Y.) 
603;  Koon  V.  Thurman,  2  Hill  (N.  Y.) 

357- 

But  in  the  first  department  (N.  Y.) 
it  is  held  only  the  appellant  on  the  ap- 
peal can  have  the  costs  of  appeal  if 
he  be  finally  successful,  and  that  re- 
spondent cannot  have  them  although 
he  finally  succeeds.  Union  Trust  Co. 
V.  Whiton,  17  Hun  (N.  Y.)  593;  Sheri- 
dan V.  Genet,  48  Hun  (N.Y.)  17,  note  ; 
Lydd  V.  Kenny,  i  Civ.  Pro.  Rep.  (N. 
Y.)  310,  note  ;  Durant  v.  Abendroth, 
48  Hun  (N.Y.)  16,  15  N.Y.  St.  Rep.  342, 


60 


Costs. 


ABIDING    THE  EVENT. 


Funds  in  Court. 


trial  granted  with  costs  to  abide  the  event,  the  finally  successful 
party  is  entitled  to  the  costs  of  the  various  trials,*  and  also  all  costs 
of  the  action  up  to  that  time,  including  costs  in  the  appellate  court. "^ 

In  Equitable  Actions  the  discretion  of  the  court  usually  controls 
the  rule.     See  COSTS. 

Test  Action. — Where  it  is  stipulated  that  one  or  more  actions  shall 
abide  the  event  of  another,  the  result  of  the  test  action  determines 
the  costs  of  the  others.* 

VI.  Funds  in  Court. — In  many  cases  property  in  possession  or 
under  control  of  the  court  is  held  to  abide  the  event  of  the  court's 
action.* 


Where  the  decision  of  the  appellate 
court  was  costs  to  abide  event,  but 
was  erroneously  entered  as  costs  to 
appellant  to  abide  event,  the  order 
will  be  corrected  to  conform  to  decis- 
ion. Martine  v.  Huyler,  34  N.  Y.  St. 
Rep.  326,  12  N.  Y.  Supp.  66;  58  Hun 
(N.  Y.)6o8. 

Where  judgment  for  plaintiff  was 
reversed,  with  costs  to  defendant  to 
abide  the  event,  and  afterwards  defend- 
ant had  leave  to  amend  his  answer  on 
payment  of  costs  to  that  time,  held, 
this  did  not  deprive  defendant  of  his 
contingent  right  to  costs  given  by  the 
order  reversing  the  judgment.  Have- 
meyer  v.  Havemeyer,  62  How.  Pr.  (N. 
Y.)476.   . 

1.  Howell  V.  Van  Siclen,  4  Hun 
(N.  Y.)  425,  4  Abb.  N.  Cas.  (N.  Y.)  i, 
70  N.  Y.  595;  Isaacs  v.  New  York 
Plaster  Works,  43  N.  Y.  Super.  Ct.  397; 
Carpenter  v.  Manhattan  Ins.  Co.,  25 
Hun  (N.  Y.)  194;  Powers  z'.  Manhattan 
R.  Co.,  20  Civ.  Pro.  Rep.  (N.  Y.) 
73. 

But  where  plaintiff  was  nonsuited, 
and  on  appeal  judgment  was  reversed, 
with  costs  to  abide  event,  and  plain- 
tiff was  again  nonsuited,  held,  de- 
fendant could  not  tax  the  costs  of  the 
first  trial.  Lydd  v.  Kenny,  i  Civ.  Pro. 
Rep.  (N.  Y.)  311,  note. 

2.  Franey  v.  Smith,  126  N.  Y.  661, 
37  N.  Y.  St.  Rep.  480;  Powers  v.  Man- 
hattan R.  Co.,  20  Civ.  Pro.  Rep.  (N. 
Y.)  78,   14  Supp.  N.  Y.  130. 

Where  the  court  of  appeals  re- 
verses a  judgment  and  grants  a  new 
trial,  with  costs  to  abide  the  event,  it 
means  all  costs  of  action  up  to  and  in- 
cluding the  costs  in  the  court  of  ap- 
peals, whether  the  action  be  legal  or 
equitable,  and  the  party  finally  suc- 
cessful is  entitled  to  such  costs.  Fra- 
ney V.  Smith,  126  N.  Y.  661. 


Where  in  an  action  at  law  judgment 
for  plaintiff  was  reversed  by  general 
term,  with  costs  to  abide  event,  but 
was  affirmed  by  the  court  of  appeals, 
with  costs,  and  decision  of  general 
term  reversed,  held,  plaintiff  had  a 
legal  right  to  all  costs  of  all  courts. 
Revere  Copper  Co.  v.  Dimmock,  29 
Hun  (N.  Y.)  299;  Sanders  v.  Towns- 
hend,  11  Abb.  N.  Cas.  (N.  Y.)  217. 

3.  Where  it  was  stipulated  that 
but  one  of  a  number  of  cases  pending 
on  appeal  should  be  argued,  and  that 
the  decision  of  the  appellate  court 
in  the  one  should  stand  as  the  decis- 
ion in  the  others,  held,  that  the 
party  successful  in  the  test  case  was 
entitled  to  costs  of  appeal  in  all  the 
cases.  Hauselt  v.  Godfrey,  3  Civ. 
Pro.  Rep.  (N.  Y.)  116. 

Where  it  was  stipulated  that  several 
suits  should  abide  the  event  of  the  one 
first  tried,  held,  the  party  successful 
in  the  suit  tried  was  entitled  to  costs 
in  all  the  suits.  Minturn  v.  Main,  2 
•Sandf.  (N.  Y.)  737. 

4.  In  Interpleader  Proceedings  the  fund 
in  dispute  must  be  brought  into  court 
to  be  held  to  await  the  event  of  the 
litigation.  Van  Zandt  v.  Van  Zandt, 
17  Civ.  Pro.  Rep.  (N.  Y.)  448,  26  N. 
Y.  St.  Rep.  963;  Vosburgh  v.  Hunt- 
ington, 15  Abb.  Pr.  (N.  Y.)  254;  Fai- 
vre  V.  Union  Dime  Sav.  Inst.,  36  N.  Y. 
St.  Rep.  79;  Johnston  v.  Stimmel,  26 
Hun  (N.  Y.)  435  ;  First  Nat.  Bank.  v. 
West  River  R.  Co.,  46  Vt.  633;  Russell 
V.  First  Presbyterian  Church,  65  Pa. 
St.  9. 

Beferences. — Where  part  of  an  estate 
was  held  to  belong  to  certain  heirs,  a 
reference  was  ordered  to  determine 
their  shares,  and  the  fund  directed  to 
be  paid  into  court  to  abide  the  decis- 
ion of  the  referee.  Betts  v.  Betts,  4 
Abb.  N.  Cas.  (N.  Y.)  323,  note. 


61 


ABORTION. 


I.  Defined,  62. 
II.  Form  of  Indictment,  62. 

III.  Certainty,  6^. 

IV.  Allegation  of  Pregnancy,  63. 
V.  Allegation  of  Intent,  64. 

VI.  Specifying  Means,  64. 
VII.  Negativing  Exceptions,  64. 
VIII.  Joinder  of  Counts,  65. 

I.  Defined. — Any  person  who  does  any  act  calculated  to  pre- 
vent a  child  being  born  alive  is  guilty  of  abortion.^ 

II.  Form  of  the  Indictment.— In  drafting  an  indictment  for 
abortion  it  is  sufficient  to  follow  the  words  of  the  statute  defining 
the  crime.* 


1  Amer.  and  Eng.  Ency.  Law,  tit. 
Abortion.  See  the  full  definition  in 
N.  Y.  Penal  Code,  §  294. 

2.  The  following  forms  of  indict- 
ment were  held  sufficient : 

Averring  that  the  defendant  on  the 
15th  of  January,  1857,  at  Ludlow, 
"  with  force  and  arms,  maliciously  and 
without  lawful  justification,  did  force 
and  thrust  a  certain  metallic  instru- 
ment, which  he,  the  said  Wood,  then 
and  there  had  and  held  in  his  hand, 
into  the  womb  and  body  of  a  certain 
woman  by  the  name  of  Sarah  Chaffee, 
she,  the  said  Sarah,  being  then  and 
there  pregnant  with  child,  with  the 
wicked  and  unlawful  intent  of  him, 
the  said  Wood,  then  and  there  thereby 
to  cause  and  procure  the  said  Sarah 
to  miscarry  and  prematurely  to  bring 
forth  the  said  child  with  which  she 
was  then  and  there  pregnant  as  afore- 
said ;  and  the  said  Sarah,"  at  said 
place  and  time,  "  by  means  of  the  said 
forcing  and  thrusting  of  said  instru- 
ment into  the  womb  and  body  of  the 
said  Sarah  in  manner  aforesaid,  did 
bring  forth  said  child,  of  which  she 
was   so   pregnant,  dead;   against   the 


peace,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and 
provided."  Com.  v.  Wood,  11  Gray 
(Mass.)  85.  See  Com.  v.  Jackson,  15 
Gray  (Mass.),  187  ;  Com.  v.  Brown,  121 
Mass.  69. 

"  That  at  said  county  of  Orange,  in 
the  State  of  Indiana,  on  the  29th  day 
of  August,  1878,  William  F.  Sher- 
wood, Jr.,  and  Arcus  Lindley  did 
then  and  there  unlawfully  and  wil- 
fully employ  and  use  in  and  upon  the 
body  and  womb  of  one  Emma  King, 
who  was  then  and  there  a  pregnant 
woman,  as  the  said  William  F.  Sher- 
wood, Jr.,  and  Arcus  Lindley  well 
knew,  a  certain  instrument  called  a 
catheter,  with  intent  then  and  there 
and  thereby  to  procure  and  produce 
the  miscarriage  of  the  said  Emma 
King,  it  not  being  then  and  there 
necessary  to  cause  said  miscarriage 
to  preserve  the  life  of  the  said  Emma 
King."    State  v.  Sherwood,  75  Ind.  15. 

As  to  what  form  the  indictment 
should  take  see  the  following  cases, 
where  indictments  were  construed  : 
Dougherty  v.  People,  i  Colo.  514 ; 
State     V.      Mclntyre,     19    Minn.    93  ; 


62 


Certainty. 


ABORTION. 


Allegation  of  Pregnancy. 


III.  Cektainty — Taking  medicine. — The  indictment,  while  it  must 
be  certain,  need  not  be  more  than  reasonably  certain.  It  is  not 
necessary  to  aver  that  the  medicine  advised  to  be  taken  was 
actually  taken.* 

The  Kind  of  Wound.— The  indictment  need  not  show  what  kind  of  a 
wound  an  instrument  used  for  abortion  produced,  nor  what  dis- 
ease it  caused.* 

The  Term  "Womb."— The  term  "womb"  need  not  be  used. 
Any  equivalent  words  are  sufficient.' 

Description  of  Person.— The  indictment  need  not  expressly  allege 
that  the  abortion  was  comm.itted  on  a  "  woman."  Giving  her 
name  is  sufficient.* 

"  Maliciously  and  Feloniously."— Nor  need  the  indictment  allege 
that  the  crime  was  done  "  maliciously  and  feloniously."  * 

IV.  Allegation  of  Peegnancy.— The  allegation  of  pregnancy 
is  a  material  one,  and  its  omission  is  fatal.® 

Attempting  to  Procure.- But  where  the  indictment  is  only  for  at- 
tempting to  procure  an  abortion  such  allegation  is  not  necessary.'' 


People  V.  Stockham,  i  Park.  Cr.  Rep. 
(N.  Y.)  424  ;  U.  S.  V.  May,  2  McAr- 
thur  (D.  C.)  512,  an  indictment  in  the 
District  of  Columbia.  See  also  3  Chit- 
ty's  Criminal  Law,  797,  for  a  form 
under  the  old  English  practice. 

1.  State  V.  Murphy,  27  N.  J.  L.  112. 
And  where  the  indictment  is  for  pro- 
curing the  woman  to  take  drugs,  it  is 
not  necessary  to  allege  that  she  swal- 
lowed them.  State  v.  Owens,  22 
Minn.  238.  But  see  Lamb  v.  State,  67 
Md.  524,  where  it  was  held  that  the 
indictment  must  allege  that  the  woman 
took  the  drugs. 

2.  Rhodes  v.  State,  128  Ind.  189. 

3.  Baker  v.  People,  105  111.  452, 
where  the  term  "  private  parts"  was 
used.  Compare  Com.  v.  Corbin,  136 
Mass.  429;  Traylor  v.  State,  loi  Ind. 
65. 

4.  Com.  V.  Boynton,  116  Mass.  343. 
But  the  verdict  must  show  that  the 
crime  was  committed  on  the  person 
named  in  the  indictment;  where  the 
verdict  found  the  defendant  guilty  of 
using  instruments  "upon  the  person 
of  a  pregnant  woman,"  without  nam- 
ing her,  this  was  held  defective. 
Cobel  V.  People,  5  Park.  Cr.  Rep. 
(N.  Y.)  348. 

5.  Com.  7/.  Jackson,  15  Gray  (Mass.) 
187;  Com.  V.  Sholes,  13  Allen  (Mass.) 
554;  Holland  v.  State,  131  Ind.  568, 
holding  that  the  use  of  the  words 
"feloniously  and  unlawfully"  in  an 
indictment  applies  to  both  the  intent 
and  the  act. 


In  Com.  V.  Thompson,  108  Mass. 
461,  it  was  held  that  the  averment 
that  the  defendant  "maliciously  and 
without  any  lawful  justification," 
sufficiently  alleged  the  crime  under  a 
statute  making  it  a  crime  to  "  unlaw- 
fully "  cause  a  miscarriage. 

6.  Com.  V.  Bangs,  9  Mass.  386; 
Com.  V.  Parker,  9  Met.  (Mass.)  263; 
43  Am.  Dec.  396;  State  v.  Reed,  45 
Ark.  333;  State  v.  Emerich,  13  Mo. 
App.  492;  State  V.  Emerich,  87  Mo. 
no.  But  not  where  the  statute  defin- 
ing the  crime  omits  to  state  that  the 
offense  must  be  committed  on  a  preg- 
nant woman.  Com.  v.  Wood,  11  Gray 
(Mass.)  86;  Com.  v.  Follansbee,  155 
Mass.  274;  Com.  v.  Taylor,  132  Mass. 
261. 

Equivalent  Words. — Instead  of  using 
the  words  "  pregnant  woman"  the 
indictment  may  charge  the  offence  to 
have  been  committed  upon  "  a  woman 
with  child."  Eckhardt  v.  People,  83 
N.  Y.  462;  38  Am.  Rep.  462. 

Good  for  Misdemeanor. — The  omission 
of  an  allegation  of  pregnancy,  while 
fatal  to  the  indictment  as  a  charge  of 
felony,  is  still  good  as  charging  a  mis- 
demeanor, if  the  other  elements  are 
alleged.       State    v.    Reed,    45     Ark. 

333- 

Allegation  of  death. — The  indictment 
need  not  allege  that  the  woman  either 
did  or  did  not  die.  Com.  v.  Thomp- 
son, 108  Mass.  461. 

7.  Com.  V.  Tibbetts,  157  Mass.  519; 
Mills  V.  Com.,  13  Pa.  St.  630. 


63 


Allegation  of  Intent. 


ABOR  TION. 


Negativing  Exceptions. 


V.  Allegation  of  Intent. — The  intent  to  commit  the  abortion 
must  be  alleged.* 

But  the  allegation  of  intent  need  not  always  be  expressly 
made  ;  it  may  be  inferred  from  other  allegations.* 

VI.  Specifying  Means— Naming  Medicine.— The  particular  kind  of 
medicine  used  to  accomplish  the  abortion  need  not  be  stated.^ 

Describing  Instruments. — Nor  need  the  indictment  describe  the  in- 
struments used."* 

VII.  Negativing  Exceptions— General  Euie.— Where  an  act  is  made 
criminal,  with  exceptions  embraced  in  the  same  clause  of  the 
statute  which  creates  the  offence,  so  as  to  be  descriptive  of  the 
offence  intended  to  be  punished,  the  indictment  stating  the  act  to 
have  been  done  must  negative  the  exceptions  so  as  to  show 
affirmatively  that  the  precise  crime  defined  has  been  committed.^ 
Therefore,  as  the  statutes  defining  the  crime  of  abortion  con- 
tain certain  exceptions,  these  exceptions  must  be  negatived.® 


1.  People  V.  Lohman,  2  Barb.  (N.Y.) 
2i6  ;  State  v.  Drake,  30  N.  J.  L.  422, 
where  it  was  held  that  the  intent  to 
both  cause  atid  procure  the  miscarriage 
must  be  alleged. 

2.  Scott  z/.  People,  141  111.  195,  where 
the  allegation  of  the  use  of  instrument 
was  held  sufficient  as  showing  intent. 
Navarro  v.  State,  24  Tex.  App.  378, 
an  allegation  of  assault. 

Miscarriage  of  Mother. — Alleging  that 
the  defendant  intended  to  cause  the 
miscarriage  of  the  mother,  instead  of 
charging  the  intent  to  cause  the  abor- 
tion of  the  child,  is  sufficient.  Mills 
V.  Com.,  13  Pa.  St.  670. 

Omission  to  Aver. — Where  an  indict- 
ment omits  to  aver  an  intent  to  de- 
stroy the  child,  a  conviction  may  be 
had  thereon  for  a  misdemeanor.  Loh- 
man V.  People,  I  N.  Y.  379;  49  Am. 
Dec.  340.  C<7w/<zr^Crichton  z/.  People, 
41  N.  Y.  341. 

3.  Carter  v.  State,  2  Ind.  617  ;  State 
V.  Reed,  45  Ark.  333  ;  Com.  v.  Morri- 
son, 16  Gray  (Mass.)  224  ;  State  v.  Van 
Houten,  37  Mo.  357  ;  Watson  v.  State, 
9  Tex.  App.  237. 

Sufficient  Averment. — The  averment 
that  it  was  a  drug  calculated  to  pro- 
duce abortion  is  sufficient.  Watson  v. 
State,  9  Tex.  App.  237. 

Must  Allege  that  the  Medicine  was  Ad- 
ministered.— A  charge  in  the  indict- 
ment that  the  defendant  administered 
a  certain  poison,  or  drug,  or  medicine 
is  bad  where  it  does  not  charge  that 
he  administered  the  whole  of  the  pro- 
hibited things,  nor  any  one  of  them. 
State  V.  Drake,  30  N.  J.  L.  422. 


Finding  by  Jury. — The  jury  in  their 
finding  need  not  find  the  character  or 
quality  of  the  drug.  State  v.  Owens, 
22  Minn.  238. 

Precedents  of  Indictments. — See  the 
following  cases,  where  the  kind  of 
medicine  was  stated  in  the  indictment  : 
Rex  V.  Cadman,  i  Moo.  C.  C.  114  ; 
Rex  V.  Scudder,  i  Moo.  C.  C.  216  ;  Rex 
V.  Harle'y,  4  C.  &  P.  369;  19  E.  C.  L. 
423;  Rex  V.  Coe,  6  C.  &  P.  403;  25 
E.  C.  L.  458  ;  Reg.  v.  Farrow,  Dears.  & 
B.  C.  C.  164  ;  Rex  v.  Phillips,  3 
Campb.  77. 

4.  Com.  V.  Thompson,  159  Mass.  56. 
But  the  indictment  alleged  that  the  in- 
strument was  unknown.  And  where 
it  is  charged  that  the  abortion  has 
been  made  with  several  different  in- 
struments, it  is  sufficient  if  the  proof 
shows  that  any  one  of  the  instruments 
was  used.  Scott  v.  People,  141  111. 
195.  See  State  v.  Barker,  28  Ohio 
St.  583. 

5.  Beasley  v.  People,  89  111.  571. 

6.  The  most  usual  exception  in 
abortion  statutes  is  that  which  allows 
an  abortion  to  be  committed  on  the 
advice  of  a  certain  number  of  physi- 
cians. This  exception  must  be  nega- 
tived. State  V.  Meek,  70  Mo.  355;  35 
Am.  Rep.  427  ;  State  v.  Mclntyre,  19 
Minn.  93. 

New  Jersey. — If  the  negative  allega- 
tion that  the  mother  or  child  did  not 
die,  which  lessens  the  punishment 
under  the  statute,  be  necessary  in  the 
indictment,  §  53  of  the  Criminal  Pro- 
cedure Act  requires  that  any  objection 
to  the  omission  shall  be  taken  before 


64 


Joinder  of  Coanto. 


ABORTION. 


Joinder  of  Counts. 


Manner  of  Negativing.— The  precise  words  of  the  statute  need  not  be 
negatived.      Equivalent  words  are  sufficient.* 

VIII.  Joinder  of  Counts. — The  indictment  for  abortion  may 
contain  several  counts.* 

Specifying  Different  Means. —The  use  of  different  counts  is  generally- 
adopted  for  the  purpose  of  alleging  the  same  abortion  to  have 
been  committed  by  different  means.  It  is  the  practice  in  charg- 
ing the  same  crime  in  different  ways.    Such  practice  is  allowable.^ 


the  jury  is  sworn,  and  it  is  then  amend- 
able. State  V.  Gedicke,  43  N.  J.  L.  87. 
Texas. — In  an  indictment  under 
Pasch.  Dig.,  art.  2196,  for  abortion,  it 
is  not  necessary  that  the  indictment 
should  negative  the  existence  of  the 
circumstances  which  would  justify  the 
act  under  art.  2197.  State  v.  Russe, 
41  Tex.  33. 

1.  Sufficient  Negative  Allegations. — 
The  allegation  "  it  not  being  then  and 
there  necessary  to  cause  such  miscar- 
riage for  the  preservation"  of  the  life 
of  the  patient  sufficiently  negatives 
the  exception  in  the  statute  providing 
that  "  unless  the  same  were  done  as 
necessary  for  the  preservation  of  the 
mother's  life."  Beasley  v.  People,  89 
111.  572. 

An  allegation  "  that  procurement  of 
miscarriage  was  not  necessary  to  pre- 
serve life"  is  equivalent  to  "that  mis- 
carriage was  not  necessary  to  preserve 
life"  and  sufficient.  Willey  v.  State, 
52  Ind.  246.  See  also  Hatchard  v. 
State,  79  Wis.  357. 

Insufficient  Negative  Allegations.  — 
"The  employment  of  said  instrument 
not  being  necessary  to  preserve  the 
life  of  the  woman"  does  not  negative 
the  exception  that  "the  miscarriage 
was  not  necessary  to  save  the  life  of 
the  woman."  Bassett  v.  State,  41  Ind. 
303- 

Averring  that  the  use  of  instru- 
ments was  not  necessary  to  save  the 
life  of  the  woman  does  not  negative 
"unless  miscarriage  is  necessary  to 
save  the  life  of  the  woman."  Bassett 
V.  State,  41  Ind.  303  ;  Willey  v.  State, 
46  Ind.  363.  See  State  v.  Vawter,  7 
Blackf.  (Ind.)  592. 

2.  Com.  V.  Follansbee,  155  Mass. 
274 ;  Slate  v.  Slagle,  82  N.  Car.  653. 

I  Encyc.  PI.  &  Pr.— 5.  65 


Abortion  and  Manslaughter.  —  Abor- 
tion and  involuntar}''  manslaughter 
may  be  charged  in  one  count.  Tray- 
lor  V.  State,  loi  Ind.  65. 

3.  People  z*.  Davis,  56  N.  Y.  95;  Davis 
V.  People,  2  Thomp.  &  C.  (N.  Y.)  212  ; 
State  V.  Owens,  22  Minn.  238,  where 
the  indictment  alleged  in  the  alter- 
native the  use  of  different  means  ; 
Lyons  v.  People,  68  111.  271  ;  Beasley 
V.  People,  89  111.  571  ;  Com.  v.  Thomp- 
son, 159  Mass.  56;  Rhodes  v.  State, 
128  Ind.  189,  where  the  indictment 
showed  both  miscarriage  and  death  ; 
Com.  V.  Brown,  14  Gray  (Mass.)  419, 
where,  an  allegation  about  the  inser- 
tion of  the  hand  was  held  surplusage; 
Com.  V.  Holmes,  103  Mass.  440,  where 
it  was  held  that  the  omission  to  aver 
that  the  different  counts  were  different 
descriptions  of  the  same  offence  was 
cured  by  verdict  ;  Com.  v.  Adams,  127 
Mass.  15  ;  Com.  v.  Snow,  116  Mass. 
47  ;  Wandell  v.  State  (Tex.  Cr.  App. 
1894),  25  S.  W.  Rep.  27,  where  the  in- 
dictment was  held  bad  for  duplicity, 
in  having  onlj'  one  count.  See  Rail- 
ing V.  Com.,  no  Pa.  St.  100. 

Result  of  Different  Means. — Where  the 
indictment  has  two  counts,  one  charg- 
ing the  crime  to  have  been  committed 
by  instruments,  the  other  by  means  of 
medicines,  under  such  an  indictment 
It  may  be  shown  that  the  abortion 
was  the  result  of  both  means.  Tabler 
V.  State,  34  Ohio  St.  127.  See  State  v. 
Baldwin,  79  Iowa  737  ;  Com.  v.  Brown, 
14  Gray  (Mass.)  419;  Montgomery  v. 
State,  80  Ind.  338;  41  Am.  Rep.  815  ; 
Com.  V.  Grover,  16  Gray  (Mass.)  602  ; 
People  jy.  Aiken,  66  Mich,  460  ;  11  Am. 
St.  Rep.  512  ;  Armstrong  v.  People,  37 
111.  459 ;  State  v.  HoUenbeck,  36  Iowa 
112. 


ACCESSORIES   AND   THE   LIKE. 
I.  Defined,  66. 

1.  Principals,  66. 

2.  Accessories,  66. 

II.  Peincipals  in  the  Second  Degeee,  67. 

ni.  ACCESSOEY  BEFOKE   THE  FACT,  dZ. 
IV.  ACCESSOEY   AFTEE  THE  FACT,  69. 

V.  Distinction  between  Accessoeies  and  Peincipais  Abolished,  69. 

1.  Generally,  69. 

2.  Accessory  may  be  Charged  as  Principal,  70. 

3.  May  be  Treated  as  Accessory,  70. 

4.  How  to  Allege  the  Offence  where  Accessory  Treated  as  Principal,  70. 

5.  Alleging  Offence  where  Accessory  Treated  as  such,  70. 

6.  May  be  Charged  as  both  Principal  and  Accessory,  71. 

7.  Principal  need  not  be  first  Convicted,  71. 

8.  May  be  Convicted  as  either  Principal  or  Accessory,  71. 

9.  Statute  does  not  affect  Accessory  After  the  Fact,  72. 

1.  Defined — 1.  Principals. — The  principal  in  the  commission  of 
a  crime  may  be  in  one  of  two  degrees,* 

Principal  in  the  First  Degree.— A  principal  in  the  first  degree  is  he  that 
is  the  actor  or  actual  perpetrator  of  the  crime.*^ 

Principal  in  the  Second  Degree. — A  principal  in  the  second  degree  is 
he  who  is  present  aiding  and  abetting  the  fact  to  be  committed. ^ 

2.  Accessories — Before  the  Fact.— An  accessory  before  the  fact  is  he 
that,  being  absent  at  the  time  of  the  actual  perpetration  of  the 
felony,  procures,  counsels,  commands,  incites,  or  abets  another  to 
commit  it.* 

After  the  Fact.— An  accessory  after  the  fact  is  where  a  person 
knowing  a  felony  to  have  been  committed  receives,  relieves,  com- 
forts, or  assists  the  felon.® 

1.  Chitty  on  Criminal  Law,  vol.  i,  be  strict,  actual,  and  immediate  so  as 
255  ;  I  Hale,  233,  615  ;  4  Bla.  Com.  to  make  the  person  an  eye-  or  ear-wit- 
34  ;  4  Burr  2074.  ness  of  what  passes  ;  it  may  be  a  con- 

2.  Chitty  on  Criminal  Law,  vol.  i,  structive  presence.  Com.  v.  Knapp, 
255  ;  Com.  V.  Knapp,  q  Pick.   (Mass.)  9  Pick.  ^Mass.)  517. 

516,    517  ;    I     Hale    233,    615  ;    4    Bla.         4.   Chitty  on  Criminal  Law,  vol.    i. 
Com.  34:  4  Burr  2074.  262  ;      i     Hale     615  ;     4     Bla.    Com. 

3.  Chitty  on  Criminal   Law,  vol.   i,     36. 

255;  4  Burr   2074;   I   Hale   233,   615;  5.  Chitty  on   Criminal   Law,  vol.   i, 

4  Bla.  Com.  34.  264  ;    i   Hale     618  ;    4     Bla.    Com.    37; 

Constructive  Presence. — It  is  not  nee-  Com.  Dig.,  Justices,  T.  2.     See  People 

essary,  however,    that    this  presence  v.  Dunn,  53  Hun  (N.  Y.)  381. 

66 


Principals  in  tlie 


ACCESSORIES. 


Second  Degree. 


11.  Principals  IN  THE  Second  DEGBEE — no  Distinction  by  Early  Law.— 
A  principal  in  the  second  degree  was  unknown  to  the  early 
common  law.  He  was  regarded  as  an  accessory  before  the  fact, 
and  he  was  not  liable  to  be  brought  to  trial  till  the  principal  of- 
fenders were  convicted  or  outlawed.* 

Distinction  Made.— But  as  this  rule  was  productive  of  much  mis- 
chief, the  judges  by  degrees  adopted  a  different  rule,  and  at  length 
it  became  settled  law  that  all  those  who  were  present,  aiding  and 
abetting,  are  principals  in  the  second  degree,  and  could  be  prose- 
cuted though  the  principal  in  the  first  degree  is  neither  outlawed 
nor  found  guilty.* 

May  Be  Charged  as  Principal  in  the  First  Degree. — The  principal  in 
the  second  degree  may  now  be  charged  as  principal  in  the  first 
degree.' 

No  Evidence  Showing  Principal  in  First  Degree  Guilty. — But  one  can- 
not be  convicted  as  principal  in  the  second  degree  where  there 
is  no  evidence  of  the  guilt  of  the  principal  in  the  first  degree.* 

Form  of  Indictment.— When  several  are  present  and  abet  a  fact, 
an  indictment  may  lay  it  generally  as  done  by  all,  or  specially  as 
done  by  one  and  abetted  by  the  rest.* 

Joinder  of  Offenders.— The  principal  in  the  second  degree  may 
be  included  in  the  indictment  with    the    principal   in   the  first 


1.  Russell  on  Crimes,  vol.  i,  49;  Coal- 
heavers'  Case,  I  Leach  66  ;  Fost.  428  ; 
Rex  V.  Towle  R.  &  R.  314  ;  Chitty's 
Criminal  Law,  vol.  i,  256  ;  i  Hale  437. 

2.  Russell  on  Crimes,  vol.  i,  49. 
This  law  was  by  no  means  settled 
till  after  the  time  of  Edw.  IIL  Russell 
on  Crimes,  vol,  i,  49  ;  9  Co.  67  b  ; 
Plowd.  98  a  ;  i  Hale  437  ;  Hawk,  b. 
2,  c.  29,  s.  37;  Chitty's  Criminal  Law, 
vol.   I,  256. 

3.  Com.  V.  Chapman,  11  Cush. 
(Mass.)  422;  Com.  v.  Fortune,  105 
Mass.  592.  See  People  v.  Bearss,  10 
Cal.  69;  Thompson  v.  Com.,  i  Mete. 
(Ky.)  13. 

Surplusage. — Where  the  indictment 
charges  one  as  principal  in  the  second 
degree,  but  alleges  such  acts  on  his 
part  as  make  him  a  principal  in  the 
first  degree,  the  words  "principal  in 
the  second  degree  "  may  be  rejected 
as  surplusage.  Hansford  v.  State,  54 
Ga.  55. 

To  be  Convicted  as  Charged. — On  an 
indictment  charging  a  defendant  as 
principal  in  the  first  degree,  he  cannot 
be  convicted  as  principal  in  the  second 
degree.  Washington  v.  State,  36  Ga. 
222;  Shaw  V.  State,  40  Ga.  120.  See 
McCoy  r/.  State,  52  Ga.  287.  And  con- 
versely, one  indicted  as  principal  in 


the  second  degree  cannot  be  convicted 
as  a  principal  in  the  first  degree.  Kess- 
ler  V.  Com.,  12  Bush  (Ky.)  18. 

4.  Jones  v.  State,  64  Ga.  697.  See 
Hansford  v.  State,  54  Ga.  55;  State  v. 
Clayton,  11  Rich.  (S.  Car.)  581;  State 
V.  Carver,  49  Me.  588;  State  v.  Jen- 
kins, 14  Rich.  (S.  Car.)  215. 

5.  Hussell  on  Crimes,  vol.  i,  5-7;  2 
Hawk.  P.  C.  c.  23,  s.  76,  and  c.  25, 
s.  64;  Rex  V.  Young,  3  T.  R.  98. 

No  Difference  in  Punishment. — And 
even  in  offences  in  which  there  would 
have  been  only  one  principal  in  the 
first  degree,  as  in  rape,  a  charge 
against  all  as  principals  in  the  first  de- 
gree is  valid,  if  there  be  no  difference 
in  the  punishment  between  the  prin 
cipals  in  the  first  and  those  in  the 
second  degree.  Rex  v.  Vide,  Fitz. 
Corone,  pi.  86;  Rex  v.  Burgess,  Tr. 
T.    1813;    Russell   on    Crimes,  vol.   i, 

57- 

Presence. — An  indictment  against  the 
principal  in  the  second  degree  in 
murder  should  show  distinctly  that  he 
was  present  when  the  morta'  stroke 
was  given.  Rex  v.  Winifred,  i 
Leach  515;  Russell  on  Crimes,  vol.  i, 
57;  Heydon's  Case,  4  Co.  41  a,  42  b; 
Rafferty's  Case,  2  Lewin  271;  Reg  v. 
Ramsden,  i  Cox  C.  C.  37. 


67 


Before  the  Fact. 


ACCESSORIES. 


Before  tlie  Fact. 


degree.  All  the  offenders  may  be  included  in  the  same  indict- 
ment.* 

III.  Accessory  Before  the  Fact — Must  be  indicted  as  such.— The 
distinction  between  principal  and  accessory  is  not  a  formal  one, 
but  material,  and  relates  to  the  regularity  of  criminal  proceed- 
ings ;  and  therefore  one  indicted  as  principal  cannot  be  con- 
victed as  accessory  before  the  fact.  He  must  be  indicted  as  an 
accessory.* 

Joinder  with  Principal.— It  is  usual  and  proper  to  include  both 
the  principal  and  the  accessory  before  the  fact  in  the  same  indict- 
ment.' 

Indicted  Alone.— But  the  accessory  before  the  fact  may  be  indicted 
alone.^ 

Principal  Must  be  Convicted.— It  was  a  drastic  principle  of  the  com- 
mon law  that  an  accessory  before  the  fact  could  not  be  convicted 
unless  the  principal  was.* 


1.  Chitty's  Criminal  Law,  vol.  i, 
267;  2  Hale  173;  2  Burr  984;  i  Sess. 
Cas.  426;  Hawk.  b.  2,  c.  25,  s.  89; 
Com.  Dig.  Indictment,  F;  Bac.  Abr. 
Indictment,  G.  5;  Cro.  C.  C.  41,  42; 
Burn  J.  Indictment,  IV;  Rex  v.  Har- 
tall,  7  C.  &  P.  475;  32  E.  C.  L.  589; 
Rex  V.  Haynes,  4  M.  &  S.  221;  Rex  z/. 
Nelms,  6  C.  &  P.  347;  25  E.  C.  L.  432; 
Heydon's  Case,  4  Co.  41  a.  See  also 
State  V.  Taylor,  21  Mo.  477;  Rex  v. 
O'Brian,  i  Den.  C.  C.  9;  Rex  v.  Har- 
grave,  5  C.  &  P.  170;  24  E.  C.  L.  260; 
State  V.  Pile,  5  Ala.  72;  Parker's  Case, 
2  Dy.  186  a. 

2.  People  V.  Katz,  23  How.  Pr.  (N. 
Y.  Supreme  Ct.)  93;  State  v.  Wyckoff, 
31  N.  J.  L.  65;  Keithler  v.  State,  10 
Smed.  &  M.  (Miss.)  192;  George  v. 
State,  39  Miss.  570;  Phillips  v.  State, 
26  Tex.  App.  228;  Josephine  v.  State, 
39  Miss.  613;  Hughes  v.  State,  12  Ala. 
45S;  Norton  v.  People,  8  Cow.  (N.  Y  ) 
137;  Hatchett  z/.  Com.,  75  Va.  925.  See 
State  V.  Mairs,  i  N.  J.  L.  453. 

3.  Chitty's  Criminal  Law,  vol.  i, 
272;  Keech  v.  State,  15  Fla.  592;  Loyd 
V.  State,  45  Ga.  57;  State  v.  York,  37 
N.  H.  175;  Holmes  v.  Com.,  25  Pa.  St. 
221;  Mulligan  v.  Com.,  84  Ky.  229; 
Post.  365;  I  Hale.  623;  Burn.  J.  Acces- 
sories, IV;  Williams  J.  Accessories,  V 
Com.  Dig.  Justices  T.  3;  Sampson  v. 
Com..  5  W.  &  S.  (Pa.)  385. 

Form  of  Indictment. — Where  the  par- 
ties are  thus  joined  in  the  same  pro- 
ceeding, the  proper  course  is  first  to 
state  the  guilt  of  the  principal,  as  if 
he  alone  had  been  concerned,  and  then 
to    state  "that  C.   D.,    late  of,    etc.. 


before  the  committing  of  the  said 
felony  and  murder  in  form  aforesaid, 
to  wit,  on,  etc.,  with  force  and  arms, 
etc.,  did  maliciously  and  feloniously 
incite,  move,  procure,  aid,  and  abet  the 
said  A.  B.  to  do  and  commit  the  said 
felony  in  manner  aforesaid,  against 
the  peace."  Chitty's  Criminal  Law, 
vol.  I,  272.  See  form  i,  Leach  515;  Wil- 
liams  J.  Accessories,  V. 

Two  Counts. — The  indictment  may 
contain  two  counts,  one  charging  both 
defendants  as  principals,  the  other 
charging  one  defendant  as  principal 
and  the  other  as  accessory  before  the 
fact.  Josephine  v.  State,  39  Miss.  615. 

4.  Chitty's  Criminal  Law,  vol.  i, 
273  ;  Bishop  on  Criminal  Procedure, 
vol.  2,  s.  II. 

Necessary  Averments. — In  an  indict- 
ment against  the  accessory  alone,  after 
the  conviction  of  the  principal,  it  is 
not  necessary  to  aver  that  the  latter 
committed  the  felony,  but  it  is  suf- 
ficient to  recite  with  certainty  the  rec- 
ord of  the  conviction.  Chitty's  Crim- 
inal Law,  vol.  I,  273.  See  7  T.  Rep. 
465  ;  Post.  365  ;  Com.  Dig.  Justices  T. 
3  ;  State  v.  Crank,  2  Bailey  (S.  Car.) 
67. 

5.  Tully  V.  Com.,  11  Bush  (Ky.)  154  ; 
State  V.  Serau,  28  N.  J.  L.  519;  Arm- 
strong V.  State,  28  Tex.  App.  526 ; 
Com.  V.  Phillips,  16  Mass.  423;  Ander- 
son V.  State,  7  Ohio  250 ;  Com.  v. 
Kaas,  3  Brews.  (Pa.)  422  ;  Holmes  v. 
Com.,  25  Pa.  St.  221.  Where  the  prin- 
cipal and  accessory  were  tried  together, 
the  principal  must  first  be  convicted  ; 
if  the  jury  acquitted  him,  this  acquit- 


68 


After  the  Fact. 


ACCESSORIES. 


Sistinction  Between. 


Accessory  to  Several  Defendants.— But  where  there  are  several  offend- 
ers, some  of  whom  have  been  convicted,  the  accessory  may  be 
tried  for  being  accessory  to  those  convicted.* 

IV.  ACCESSOEY  AFTEE  THE  FACT — Joinder  with  Principal.— The  acces- 
sory after  tlie  fact  could  be  joined  in  the  same  indictment  with 
the  principal.* 

Averment  of  Knowledge.— The  averment  of  knowledge  is  indispensa- 
bly requisite.^ 

Allegations  of  Manner.— It  is  not  necessary  to  use  the  word  "  acces- 
sory "  in  the  indfctment,  or  to  set  forth  the  manner  and  means  by 
which  the  accessory  after  the  fact  received,  concealed,  or  comforted 
the  principal.* 

Aconittal  of  Principal.— The  acquittal  of  the  principal  acquitted  the 
accessory  after  the  fact.* 

V.  Distinction  Between  Accessoeies  and  Peincipals  Abolished— 
1.  Generally. — In  some  states  the  distinction  between  accessories 

ted  the  accessory.  Chitty's  Criminal 
Law,  vol.  I,  272.  And  even  if  the 
principal  died  before  conviction,  the 
accessory  could  not  be  tried  without 
his  consent.  Com.  v.  Phillips,  16  Mass. 
422. 

Verdict  Against  Accessory. — If  the  ac- 
cessory were  tried  separately,  and  a 
verdict  of  guilty  rendered,  and  subse- 
quently the  principal  was  acquitted, 
no  judgment  could  be  rendered  on 
such  a  verdict.  The  accessory  was 
entitled  to  go  free.  Bowen  v.  State, 
25  Fla.  645  ;  McCarthy  v.  Stat-e,  44 
Ind.  214.  See  Groves  v.  State,  76  Ga. 
808  ;  Loyd  v.  State,  45  Ga.  58. 

1.  Stoops  z/.  Com.,  7  S.&R.  (Pa.) 491; 
Com.  V.  Knapp,  10  Pick.  (Mass).  477  ; 
Starin  v.  People,  45  N.  Y.  333  ;  Baron 
V.  People,  I  Park.  Cr.  Rep.  (N.  Y.) 
246.  See  Com.  v.  Glover,  in  Mass. 
395  ;  Com.  V.  Adams,  127  Mass.  15  ; 
Sampson  v.  Com.,  5'W.  &  S.  (Pa.)  3S5. 

2.  Chitty  on  Criminal  Law,  vol.  i, 
272  ;  Fost.  365  ;  i  Hale  623  ;  Burn  J. 
Accessories,  IV;  Williams  J.  Acces- 
sory, V.  ;  Com.  Dig.  Justices  T.  3. 

Form  of  Indictment. — Where  a  man  is 
indicted  as  an  accessory  after  the  fact, 
together  with  his  principal,  the  orig- 
inal felony  is  to  be  stated  as  though 
against  the  principal  alone,  and  the 
conclusion  must  aver  that  the  acces- 
sory did  receive,  harbor,  and  maintain 
the  principal  felon,  well  knowing  he 
had  committed  the  felony.  Chitty's 
Criminal  Law,  vol.  i,  273. 

Same  Count. — Principals  and  acces- 
sories after  the  fact  may  be  included 
in  the  same  count  of  the  indictment. 
Bullock  V.  State,  10  Ga.  48. 


Massachusetts.  —  The  principal  and 
accessory  may  be  joined  in  an  indict- 
ment for  stealing  and  receiving  stolen 
goods.  Com.  V.  Adams,  7  Gray  (Mass.) 
43- 

The  form  of  the  indictment  in  such 
case  is  as  a  "felonious  accessory." 
Com.  V.  Andrews,  3  Mass.  126.  See 
Rohan  v.  Sawin.  5  Cush.  (Mass.)  287. 
But  this  is  probably  the  case  of 
making  one  guilty  of  receiving  stolen 
goods  an  accessory  before  the  fact,  in- 
stead of  after. 

3.  I  Hale  622 ;  Com.  Dig.  Justices 
T.  2  ;  Hawk.  b.  2,  c.  29,  s.  33  ;  Burn  J. 
Indictment,  III  ;  2  Lev.  208;  State  v. 
Davis,  14  R.  I.  281  ;  Chitty's  Criminal 
Law,  vol.  I,  273.  .  See  also  Blakeley 
V.  State,  24  Tex.  App.  616,  where  the 
form  of  the  allegation  of  knowledge 
was  approved;  Tully  z/.  Com.,  11  Bush 
(Ky.)  155- 

4.  Chitty's  Criminal  Law,  vol.  i, 
273  ;  3  P.  Wms.  477  ;  Co.  Ent.  56,  57 ; 
Rast.  Ent.  48,  51;  9  Co.  114;  Hawk, 
b.  2,  29,  s.  17. 

Surplusage. — Where  an  indictment 
for  an  offence  of  being  accessory  after 
the  fact  to  a  theft  alleged,  as  acts 
constituting  the  aid  and  assistance 
given  the  principal,  that  the  defendant 
concealed  him,  it  was  held  that  the 
indictment  was  not  vitiated  by  the  al- 
legation of  other  acts  besides  the  con- 
cealment. State  V.  Smith,  24  Tex. 
285. 

5.  Chitty  on  Criminal  Law,  vol.  i, 
272.  And  this  was  so  even  if  the 
principal  was  acquitted  on  the  ground 
of  infancy.  Edwards  v.  State,  80  Ga. 
127. 


69 


Distinction  Between 


ACCESSORIES. 


and  Principals  Abolished. 


before  the  fact  and  principals  is  abolished,  and  all  of  them  are 
made  principals.* 

2.  Accessory  may  be  Charged  as  Principal. — Where  this  is  the 
case  the  accessory  may  be  indicted  and  convicted  as  though  he 
were  a  principal.'^ 

3.  May  be  Treated  as  Accessory. — Though  the  statute  abolishes 
the  distinction  between  accessory  before  the  fact  and  principal, 
the  accessory  may  still  be  treated  as  such  ;  the  indictment  may 
charge  the  accessory  as  a  principal,  or  allege  the  matter  according 
to  the  facts.^ 

4.  How  to  Allege  the  Oflfence  when  Accessory  Treated  as  Principal. — 
It  is  suflficient  to  allege  in  the  indictment  that  the  accessory  him- 
self committed  the  crime.'* 

5.  Alleging  Offence  when  Accessory  Treated  as  Such — Common  law 
Indictment Suflacient.— If  an  indictment  charges  facts  sufificient  to  con- 
stitute the  defendant  an  accessory  before  the  fact  at  common  law, 
it  sufficiently  charges  him  as  principal  under  the  statute,  and 
need  not  allege  further  matter  which  might  be  proved  without 
pleading  if  the  defendant  had  been  charged  directly  as  principal.* 


1.  People  V.  Bearss,  lo  Cal.  68;  Bax- 
ter V.  People,  8  111.  368;  Wicks  v.  State, 
44  Ala.  398.  See  also  the  other  cases 
collected  under  this  section. 

Distinction  not  Abrogated. — A  statute 
which  provides  that  an  accessory  be- 
fore the  fact  "may  be  indicted  and 
convicted  of  a  substantive  felony 
whether  the  principal  felon  shall  or 
shall  not  have  been  convicted,  or 
shall  or  shall  not  be  amenable  to  jus- 
tice," does  not  abrogate  the  distinc- 
tion between  principal  and  accessory, 
but  clearly  preserves  the  difference 
between  the  two.  State  v.  Ricker,  29 
Me.  84. 

2.  State  V.  Pugsley,  75  Iowa  742  ; 
Com.  V.  Hughes,  33  Leg.  Int.  (Pa.)  44; 
Campbell  v.  Com.,  84  Pa.  St.  187  ; 
Brandt  v.  Com.,  94  Pa.  St.  290  ;  State 
V.  Cassady,  12  Kan.  551  ;  State  v. 
O'Neal,  I  Houst.  Cr.  Cas.  (Del.)  58  ; 
State  V.  Chapman,  6  Nev.  320  ;  State 
V.  Orrick,  106  Mo.  in  ;  Bonsell  v.  U. 
S.,  I  Greene  (Iowa)  in. 

Punishment  the  Same. — When  prin- 
cipals in  the  first  and  second  degrees 
are  punished  alike  no  distinction  need 
be  made  between  them  in  the  indict- 
ment. Leonard  v.  State,  77  Ga. 
764. 

3.  State  V.  Payton,  90  Mo.  220;  State 
V.  Anderson,  89  Mo.  313;  Territory  v. 
Guthrie,  2  Idaho  398. 

It  is  better  practice  to  treat  the  ac- 
cessory in  the  indictment  as  such  than 


as  principal.     People  v.  Schwartz,  32 
Cal.  161. 

Contra. — When  a  statute  makes  all 
accessories  principals,  they  must  be 
indicted  as  principals  and  not  other- 
wise. Coates  V.  People,  72  111.  303, 
304  ;  Dempsey  v.  State,  47  111.  323  ; 
Baxter  v.  People,  8  111.  369  ;  People 
V.  Campbell,  40  Cal.  129. 

4.  People  V.  Rozelle,  78  Cal.  84  ; 
State  V.  Chapman,  6  Nev.  320;  State  v. 
Pile,  5  Ala.  72.  See  State  v.  Rose, 
20  La.  Ann.  143  ;  State  v.  Littel  (La. 
1893),  12  So.  Rep.  750. 

When  Necessary  to  Set  Out  the  Aiding 
and  Abetting. — Where  the  distinction 
between  accessories  and  principals  is 
abolished,  in  all  cases  of  felony,  where 
by  the  statute  creating  the  offence,  or 
by  the  existing  common  law,  only  per- 
sons of  a  certain  class,  or  standing  in 
a  certain  relation,  are  competent  to 
commit  such  felony,  the  indictment 
against  aiders  and  abettors  not  belong- 
ing to  such  class,  or  standing  in  such 
relation,  must  set  out  the  aiding  and 
abetting  in  which  alone  the  crime  con- 
sists. Shannon  v.  People,  5  Mich.  72, 
where  the  crime  charged  was  the 
counselling  the  abandoning  a  child. 

5.  People  V.  Rozelle,  78  Cal.  84. 
The  acts  of  the  accessory  should  be 
stated  as  fully  in  the  indictment  as 
they  are  in  the  statute.  People  v. 
Schwartz,  32  Cal.  161.  See  People  v. 
Campbell,  40  Cal.  129. 


70 


Distinction  Between 


ACCESSORIES. 


and  Principals  Abolished. 


Must  Show  Principal  Committed  the  Offence.— The  indictment  must  show 
that  the  principal  committed  the  offence.* 

Name  of  Principal.— The  name  of  the  principal  is  a  material  allega- 
tion in  such  form  of  an  indictment.* 

statutory  Allegation. — When  a  statute  provides  that  the  indictment 
shall  allege  that  the  defendant  was  an  accessory,  an  omission  of 
this  allegation  is  fatal  even  after  verdict.* 

6.  May  be  Charged  as  both  Principal  and  Accessory. — Although  a 
statute  may  abolish  the  distinction  between  principal  and  ac- 
cessory, it  is  yet  optional  for  the  pleader  to  treat  an  offender  as 
both  a  principal  and  an  accessory  before  the  fact  in  the  same 
indictment."* 

7.  Principal  need  not  be  first  Convicted. — The  chief  effect  of 
the  statute  abolishing  the  distinction  between  principal  and  ac- 
cessory is  that  it  is  no  longer  necessary  to  first  convict  the  princi- 
pal before  convicting  the  accessory.  He  may  be  convicted  al- 
though the  principal  is  not  tried  at  all  or  has  been  acquitted.* 

8.  May  be  Convicted  as  either  Principal  or  Accessory — indicted  as 
Principal. — One  indicted  as  principal  may  be  convicted  as  an  ac- 
cessory before  the  fact.* 

Indicted  as  Accessory. — And  conversely,  one  indicted  as  accessory 
may  be  convicted  on  evidence  showing  him  a  principal.''' 


1.  People  V.  Crenshaw,  46  Cal.  66  ; 
People  V.  Thrall,  50  Cal.  415  ;  People 
V.  Schwartz,  32  Cal.  161  ;  Ulmer  v. 
State,  14  Ind.  52. 

2.  People  V.  Coyodo,  40  Cal.  586. 

3.  Sage  V.  State,  120  Ind.  201. 

4.  People  V.  Davidson,  5  Cal.  134; 
People  V.  Valencia,  43  Cal.  552  ;  People 
V.  Shepardson,  48  Cal.  187. 

Separate  Counts. — An  indictment 
against  two  persons  may  charge  in  one 
count  one  as  principal  and  the  other 
as  accessory,  and  in  another  count  the 
latter  as  principal  and  the  former  as 
accessory.  People  v.  Valencia,  43  Cal. 
552.     See  Methard  v.  State,  19  Ohio  St. 

363- 

One  Count. — Both  the  offences  of  be- 
ing principal  and  accessory  may  be 
charged  in  one  count.  Hartshorn  v. 
State,  29  Ohio  St..  635.  Comp.  State 
V.  HoUenscheit,  61  Mo.  303  ;  State  v. 
Davis,  29  Mo.  392  ;  State  v.  Taylor,  21 
Mo.  477  ;  Allen  v.  State,  10  Ohio  St. 
288. 

5.  Hartshorn  v.  State,  29  Ohio  St. 
635  ;  Com.  V.  Kelly,  10  L.  Bar.  (Pa.) 
107  ;  People  v.  Kief,  126  N.  Y.  661  ; 
People  V.  Newberfy,  20  Cal.  440 ; 
People  V.  Bearss,  10  Cal.  68  ;  People  v. 
Outeveras,  48  Cal.  19 ;  People  v.  Ah 
Fat,  dS   Cal.    61  ;   Gains   v.    State,    46 


Ohio  St.  457  ;  State  v.  Anderson,  89 
Mo.  312  ;  Noland  v.  State,  19  Ohio  131  ; 
Brown  v.  State,  18  Ohio  St.  497.  See 
People  V.  Lyon,  99  N.  Y.  210. 

Evidence  must  Show  Principal  Guilty. 
— Although  the  principal  has  not  been 
convicted,  still  the  evidence  must  show 
him  guilty.  Searles  v.  State,  6  Ohio 
Cir.  Ct.  331  ;  Baxter  v.  People,  7  III. 
578. 

North  Carolina. — The  statute  dis- 
penses with  the  necessity  of  the  con- 
viction of  the  principal  felon  before  an 
accessory  can  be  tried  and  punished, 
but  the  common-law  rule,  that  an  ac- 
quittal of  the  principal  is  an  acquittal 
of  the  accessory,  is  still  in  force.  State 
V.  Jones,  loi  N.  Car.  719. 

6.  Dempsey  v.  People,  47  111.  323  ; 
Hanoff  V.  State,  37  Ohio  St.  178  ;  State 
V.  Hessian,  58  Iowa  68 ;  Bonsell  v. 
U.  S.,  I  Greene  (Iowa)  iii  ;  State  v. 
Brown,  25  Iowa  561  ;  State  v.  Thorn- 
ton, 26  Iowa  79;  State  v.  Comstock, 
46  Iowa  265  ;  Collins  v.   State,  88  Ga. 

347- 

Contra. — People  v.  Trim,  39  Cal.  75  ; 
People  V.  McGungill,  41  Cal.  429 ; 
Smith  V.  State,  37  Ark.  274  ;  Williams 
V.  State,  41  Ark.  173. 

7.  State  V.  Ross,  29  Mo.  32.  See 
Benge  v.  Com.,  92  Ky.  i. 


71 


Distincti<?n  Between 


ACCESSORIES. 


and  Principals  Abolislied. 


9.  Statute  does  not  Affect  Accessory  After  the  Fact — Not  to  be 
Charged  as  Principal.— The  Statute  only  abolishes  the  distinction  be- 
tween principal  and  accessory  before  the  fact.  The  accessory  after 
the  fact  is  left  as  at  common  law ;  he  must  be  indicted  as  such, 
and  cannot  be  treated  as  a  principal.^ 


3.  State  V.  Allen,  37  La.  Ann.  685  ; 
Wade  V.  State,  71  Ind.  535  ;  Reynolds 
v.  People,  83  111.  479  ;  People  v.  Gassa- 
way,  28  Cal.  405  ;  People  v.  Keefer, 
65  Cal.  232. 

Contra. — He  may  be  convicted  as  an 
accessory  after  the  fact,  though  in- 
dicted as  principal.  Yoe  v.  People, 
49  111.  410. 

The  reason  that  an  accessory  after 
the  fact  cannot  be  treated  as  a  princi- 
pal depends  not  upon  questions  of  pro- 
cedure so  much  as  it  does  on  the 
nature  of  his  crime.  "  The  offense 
of  which  an  accessory  after  the  fact 
may  be  guilty  is  not  included,  nor  has 
it  any  connection  with  the  principal 
crime.  This  is  apparent  from  the  def- 
initions given  in  our  statute  and  in 
the  common  law.  The  one  cannot  be 
committed  until  the  principal  offense 
is  an  accomplished  fact.  Persons  oc- 
cupying a  certain  relation  to  the  of- 
fender are  excluded  from  the  operation 
of  the  statute.  The  guilty  knowledge, 
which  is  'the  essence  of  the  offense, 
comes  after  the  principal  crime  is  com- 
mitted, and  of  course  they  can  have 
no  connection  with  each  other.  But 
no  better  test  need  be  sought  than  the 
fact  that  a  party  indicted  as  a  principal 
and  acquitted  may  yet  be  indicted  as 
an  accessory  after  the  fact,  or  if  in- 
dicted as  an  accessory  after  the  fact 
and  acquitted  he  may  be  indicted  as  a 
principal;  and  the  reasons  assigned  in 
the  common-law  authorities  is  that 
they  are  offenses  of  several  natures. 


Hence  a  conviction  for  one  is  no  bar 
to  a  prosecution  for  the  other."  Per 
Scott,  J.,  in  Reynolds  v.  People,  83 
111.  479,  481. 

"  There  is  an  important  and  material 
difference  between  an  accessory  before 
the  fact  and  an  accessory  after  the 
fact.  The  former  is  a  principal  and  is 
to  be  punished  as  a  principal.  If  found 
guilty  as  an  accessory  to  the  commis- 
sion of  a  robbery  before  the  act  of 
robbery  is  perpetrated,  he  may  be 
punished  by  imprisonment  in  the  state 
prison  for  any  length  of  time  between 
one  year  and  the  time  of  his  death. 
But  if  a  person  be  found  guilty  as  an 
accessory  after  the  fact,  the  statute 
provides  that  he  shall  be  imprisoned 
for  any  term  not  exceeding  two  years, 
and  fined  in  a  sum  not  exceeding  five 
thousand  dollars,  according  to  the  cir- 
cumstances of  the  case  and  the  enor- 
mity of  the  crime."  Per  Curry,  J.,  in 
People  V.  Gassaway,  28  Cal.  405,  406. 

Evidence. — But  the  fact  that  one  in- 
dicted as  a  principal  cannot  be  con- 
victed as  an  accessory  after  the  fact 
should  not  be  confounded  with  the 
rule  of  evidence  that  the  acts  of  the  ac- 
cused done  after  the  commission  of 
the  crime  are  evidence  against  him. 
Wade  V.  State,  71  Ind.  535,  542. 

Georgia. — For  the  proper  form  of  the 
indictment  and  mode  of  trial  of  an  ac- 
cessory after  the  fact,  in  larceny, 
whose  offense  consists  in  receiving  the 
stolen  goods,  under  Georgia  Code,  see 
Jordan  v.  State,  56  Ga.  92. 


72 


ACCORD   AND   SATISFACTION. 

By  W.  L.  Crawford. 

I.  "What  is  Plea  of  Accokd  and  Satisfaction,  73. 
II.  May  be  Pleased  in  all  Actions,  73- 
m.  Mattee  must  be  Pleaded,  74. 
IV.  At  What  Time  to  be  Pleaded,  75. 
V.  FoEM  of  the  Plea,  76. 
VI,  Necessaey  Allegations,  m. 
VII.  Insufficient  Allegations,  80. 
Vin.  Miscellaneous,  81. 

1.  Nul  Tiel Record,  8l. 

2.  Tender,  82. 

3.  Pro  Tanto,  82. 

4.  Question  for  Jury,  82. 

5.  Estoppel,  82. 

6.  Admission,  82. 

7.  Chancery,  82. 

8.  Affirming  Accord,  82. 

I.  What  is  Plea  of  Accoed  and  Satisfaction. — The  plea  of 
accord  and  satisfaction  is  the  technical  pleading  which  sets  up 
that  the  defendant  has  extinguished  the  demand  of  plaintiff  by 
an  accord  and  satisfaction.* 

II.  May  be  Pleaded  in  All  Actions. — Accord  and  satisfaction 
generally  is  a  good  plea  in  all  actions  where  damages  only  are  to 
be  recovered.^ 

1.  Chitty  on  Pleadings,  vol.  3,  p.  924.  He   may,   however,   agree   to  do   so; 

Distinguished  from  Payment  and  Ee-  and  an  agreement  to  accept  something 

lease. — The  subject  of  accord  and  sat-  in    satisfaction,    accompanied    by   the 

isfaction  is  often  confounded  with  the  delivery  or  performance  of  what  is  so 

kindred   subjects  of  "payment"  and  agreed  upon,  satisfies  and  discharges 

"  release"  ;  but  they  are  all  perfectly  his  right  of  action.     Such  an  arrange- 

segregated  in  law  and  should  not  be  ment  is  called   in  technical  language 

used  interchangeably  or  as  synonyms,  an  accord  and  satisfaction,  and,  when 

The  following  are  definitions  of  accord  completely  executed,  forms  a  good  de- 

and  satisfaction:   "A  right  of  action  fence  to  an  action."     Leake's  Digest 

for  a  breach  of  contract  cannot  be  dis-  of  the  Law  of  Contracts,  876,  Ed.  1878. 

charged  by  any  payment  or  perform-  See  also  3  Black.  Comm.  15. 

ance,   or   tender  of   payment  or    per-  2.   Bac.  Abr.  "Accord  and  Satisfac- 

formance,    without    the    consent    and  tion ";  Cooper  w.  Parker,  14  C.  B.  118, 

acceptance  of  the  promisee  ;   for  the  78  E.   C.   L.   118  ;   Waters  v.  Smith,  2 

promisee,  after   breach,   becomes  en-  B.  &  Ad.  889,  22  E.  C.  L.  205  ;  Wil- 

titled  to  the  compensation  or  remedy  kinson  v.  Byers,   i  Ad.  &  El.   106,  28 

provided  by  process  of  law,  and  is  not  E.  C.  L.  48. 

bound   to  accept   any  tender  or  offer  Chitty  gives    forms  of   the   plea   in 

made  in  satisfaction  of  his  legal  rights,  actions  of  assumpsit,  covenant,  case, 

73 


Matter  must  be     ACCORD   AND   SATISFACTION. 


Pleaded. 


III.  Matter  must  be  Pleaded. — At  common  law,  accord  and 
satisfaction  might  have  been  given  in  evidence  under  the  plea 
of  non-assumpsit ;'  but  by  Hilary  Rules  (4  Will.  4)  the  matter 
had   to  be  pleaded  specially.* 

Under  the  Codes. — The  American  code  practice  requires  that  all 
matter  of  accord  and  satisfaction  shall  be  pleaded.^ 


and  trespass.  Chitty  on  Pleadings, 
vol.  3,  pp.  924,  1002,  1031,  1062. 

1.  First  Nat.  Bank  v.  Kimberlands, 
16  W.  Va.  555  ;  Paramore  v.  Johnson, 
I  Ld.  Raym.  566  ;  Martin  v.  Thornton, 
4  Esp.  i8i  ;  Burge  v.  Dishman,  5 
Blackf.  (Ind.)  272.  See  Page  v.  Pren- 
tice, 7  Blackf.  (Ind.)  322,  where  it  was 
held  optional  to  either  plead  specially 
or  give  in  evidence  under  general 
issue. 

But  in  Longstreet  v.  Ketcham,  i  N. 
J.  L.  170,  it  was  held  that  accord  must 
be  pleaded  ;  and  in  Kenyon  v.  Suth- 
erland, 8  111.  99,  it  was  held  that  ac- 
cord and  satisfaction  must  be  specially 
pleaded  in  an  action  of  trespass. 

Need  for  Special  Plea. — "Anciently 
matters  in  discharge  which  admitted 
that  once  there  was  cause  of  action 
must  uniformly  have  been  pleaded 
specially  ;  afterwards  a  distinction  was 
made  between  express  and  implied 
assumpsits  ;  in  the  former  these  mat- 
ters were  required  to  be  pleaded,  but 
hot  in  the  latter  ;  at  length,  however, 
they  were  allowed  to  be  given  in  evi- 
dence under  the  general  issue.  ...  So 
also  payment,  accord  and  satisfaction, 
etc might  have  been  given  in  evi- 
dence under  the  plea  of  non-assump- 
sit, although  there  were  also  a  special 
plea,  in  which  the  ground  of  defence 
might  not  have  been  correctly  stated." 
Chitty  on  Pleading,  vol.  i,  478. 

Directions  for  Pleading. — "  Where  a 
thing  is  pleaded  by  way  of  concord  it 
is  issuable  ;  but  if  the  concord  be  not 
executed  by  giving  and  receiving,  it 
cannot  be  pleaded  in  bar  to  the  action. 
Therefore  the  best  way  of  pleading  it 
is  by  setting  forth  that  the  thing  was 
given  and  received  in  the  full  satisfac- 
tion, etc.,  according  to  the  resolution 
in  Pinnell's  Case.  But  both  are  tra- 
versable, as,  for  instance  :  The  condi- 
tion of  a  bond  was  that  if  the  defend- 
ant compounded  with  one  Earle  for 
his  lands,  then  he  should  pay  the 
plaintiff  thirty  pounds  ;  in  an  action 
of  debt  brought  on  this  bond  the  de- 
fendant pleaded  that  he  had  not  made 
any  composition  with  Earle,  etc.  ;  the 
plaintiff  replied  that  Earle  did  grant  a 


rent  charge  in  fee  to  the  defendant  in 
satisfaction  of  his  title,  and  so  he 
made  a  composition  ;  the  defendant 
protestando  that  Earle  non  concessit,  pro 
placito  dicit  that  he  did  not  accept  it  in 
satisfaction,  and  it  was  adjudged  a 
good  plea."  Per  Curiam  in  Young  v. 
Rudd,  5  Mod.  86. 

The  best  and  safest  way,  says 
Lord  Coke,  to  plead  an  accord  is  to 
plead  it  by  way  of  satisfaction  and  not 
by  way  of  accord  ;  for  if  it  be  pleaded 
by  way  of  accord,  a  precise  execution 
thereof  in  every  part  must  be  pleaded  ; 
and  if  there  be  a  failure  in  any  part, 
the  plea  is  insufficient  ;  but  if  it  is 
pleaded  by  way  of  satisfaction,  the 
defendant  need  plea  no  more  but  that 
he  paid  the  plaintiff  lo^.  (or  whatever 
it  be)  in  full  satisfaction  for  the  action, 
which  sum  he  received.  4  Min.  Inst. 
146,  citing  Peytoe's  Case,  g  Co.  80  b. 

It  is  customary,  however,  and  it  is 
believed  safer  to  allege  (i)  the  accord 
or  agreement ;  (2)  the  satisfaction  per- 
formed in  pursuance  of  the  accord  ;  (3) 
the  acceptance  of  the  satisfaction  as 
such.  4  Min.  Inst.  146,  citing  Sib- 
ree  v.  Tripp,  15  M.  &  W.  23  ;  Curle- 
wis  V.  Clark,  3  Exch.  375  ;  Boosy  v. 
Wood,  3  H.  &  C.  484. 

2.  See  R.  G.  T.  T.  1853,  r.  8. 

Sham  Plea. — Accord  and  satisfaction 
could  not  at  common  law  be  pleaded 
as  a  sham  plea.     Richley  v.   Proone, 

1  B.  &  C.  286,  8  E.  C.  L.  123. 

3.  Taylor  v.  Frink,  2  Iowa  84  ;  Coles 
V.  Soulsby,  21  Cal.  47  ;  Sweet  v.  Bur- 
dett,  40  Cal.  97  ;  Glazer  v.  Cliff,  10 
Cal.  303  ;  Piercy  v.  Sabin,  10  Cal.  22, 
70  Am.  Dec.  692  ;  Fitch  v.  Brockmon, 

2  Cal.  578.  Contra,  Gavin  v.  Annan,  2 
Cal.  494.  Compare  Wallace  v.  Chand- 
ler, 16  Ark.  651  ;  Jackson  v.  Olmstead, 
87  Ind.  92  ;  Frick  v.  Algeier,  87  Ind. 

255- 

See  Pomeroy's  Code  Remedies,  3d 
Ed.  §  665,  where  the  author  is  of  the 
opinion  that  if  "payment"  may  be 
shown  under  a  general  denial,  accord 
and  satisfaction  should  be  allowed  to 
be  shown. 

Plaintiffs  Evidence  Supplying  Place  of 
Plea. — When,    in   an    action    brought 


74 


At  what  time        ACCORD   AND   SATISFACTION.       to  be  Pleaded. 

IV,  At  What  Time  to  be  Pleaded. — Puis  Darrein  continuance.— 
Usually  the  plea  of  accord  and  satisfaction  is  pleaded  in  answer 
to  plaintiff's  declaration  or  petition.  But  an  accord  and  satisfac- 
tion arising  after  the  last  pleading,  which  goes  simply  in  discharge 
of  the  original  cause  of  action,  must  generally  be  availed  of  by 
"^X&z. puis  darrein  co7itinuancc.^  When  pleaded  puis  darrein  con- 
tinuance it  is  a  plea  in  bar  to  plaintiff's  declaration*-*  and  need 
not  be  accompanied  by  an  affidavit  of  its  truth,*  and  waives  all 
previous  defences.* 

May  be  shown  in  Appellate  Court. — Matter  of  accord  and  satisfaction 
happening  after  trial  may  be  shown  in  the  appellate  court,  and 
the  appellate  court  has  a  right  to  hear  and  consider  evidence  of 


upon  a  claim,  the  plaintiff,  as  part  of 
his  case,  proves  the  payment  and  the 
circumstances  under  which  it  was 
made,  the  defendant  may  rely  upon  the 
facts  as  constituting  an  accord  and 
satisfaction,  though  not  pleaded  as 
such  in  the  answer.  Looby  v.  West 
Troy,  24  Hun  (N.  Y.)  78. 

Agreement  of  Composition. — Where, 
to  an  action  upon  a  promissory  note, 
an  agreement  of  composition  between 
the  debtor  and  his  creditors,  includ- 
ing the  plaintiff,  is  relied  upon  as  a 
defence,  such  agreement  must  be  spe- 
cially pleaded,  and  cannot  be  con- 
sidered under  a  plea  of  accord  and 
satisfaction  by  the  giving  of  new 
notes.     Smith  v.  Owens,  21  Cal.  11. 

Fact  treated  as  in  Issue. — Where  the 
record  discloses  that  the  fact  of  accord 
and  satisfaction,  though  not  presented 
by  the  pleadings,  is  treated  as  in  issue, 
and  evidence  introduced  touching  it, 
without  objection,  and  it  is  submitted 
to  the  jury,  this  court  will  treat  the 
objection  to  the  pleadings  as  having 
been  waived,  and  will  examine  the  de- 
fence as  though  it  had  been  specially 
pleaded.  Berdell  v.  Bissell,  6  Colo. 
162. 

Instruction  to  Jury. — Where  the  only 
issue  made  by  the  pleadings  is  as  to 
the  fact  of  a  warranty  as  to  the  dis- 
position of  certain  horses  sold  by  the 
defendant  to  the  plaintiff,  and  there  is 
no  plea  or  proof  of  accord  and  satis- 
faction or  payment,  there  is  no  foun- 
dation for  an  instruction  as  to  the 
verdict  which  the  jury  should  render, 
if  they  should  find  that  there  had  been 
a  settlement  between  the  parties,  and 
it  is  error  to  give  such  instruction. 
Gibbs  V.  Wall,  10  Colo.  153  ;  see  also 
American  v.  Rimpert,  75  111.  228  ; 
Bruce  v.  Bruce,  4  Dana  (Ky.)  530. 


Not  Interfering  with  Assignment. — 
Where  the  plaintiffs  held  defendant's 
accommodation  note,  and  agreed  with 
him  that  if  he  would  not  interfere 
with  an  assignment  made  by  the  payee 
they  would  release  him,  it  was  held 
that,  although  a  good  defence,  it 
should  have  been  pleaded.  Wimpf- 
heimer  v.  Ludwig  (City  Ct.),  i  N.  Y. 
Supp.  432. 

Matter  held  an  Accord  and  Satisfac- 
tion.— An  agreement  entered  into  after 
defendant  had  commenced  a  prosecu- 
tion against  plaintiff  for  an  assault 
and  battery,  but  before  the  return  of 
the  warrant,  to  the  effect  "that  the 
parties  would  mutually  drop  the  mat- 
ter and  be  friends,  and  never  do  or 
say  anything  more  in  relation  thereto, 
and  that  defendant  would  abandon  the 
prosecution  and  plaintiff  would  pay 
costs,"  and  its  performance  by  defend- 
ant, is  an  accord  and  satisfaction  which 
must  be  specially  pleaded,  and  cannot 
be  given  in  evidence  under  the  gen- 
eral issue.  Phillips  v.  Kelly,  29  Ala. 
628. 

1.  Washington  v.  Louisville,  etc.,  R. 
Co.,  136  111.  49;  Good  V.  Davis, 
Hempst.  (U.  S.)  16. 

2.  Robertson  v.  Burkell,  3  111.  278. 

3.  Ibidem. 

Motion  to  Dismiss  Appeal. — Where, 
after  a  judgment  in  a  justice's  court 
and  previous  to  an  appeal,  the  suit 
between  the  parties  is  settled,  and  the 
defendant  notwithstanding  prosecutes 
an  appeal,  the  plaintiff  cannot  allege 
the  accord  and  satisfaction  by  way  of 
plea/Mjj  darrein  continuance;  his  proper 
course  is  to  apply  to  the  C.  P.  by  mo- 
tion to  dismiss  the  appeal.  Schenck 
V.  Lincoln,  17  Wend.  (N.  Y.)  506. 

4.  Good  V.  Davis,  Hempst.  (U.  S.) 
16. 


75 


Form  of  the 


ACCORD  AND  SATISFACTION. 


Flea. 


an  accord  and  satisfaction  outside  of  the  record  transmitted  from 
the  trial  court.* 

Eight  may  he  Curtailed. — The  plea  of  accord  and  satisfaction  being 
a  strictly  legal  defence,  the  court  may  require  it  to  be  made  within 
the  time  limited  by  law.'-* 

V.  FOBM  or  THE  Plea. — At  common  law  the  pleading,  like  all  other 
pleadings,  was  a  certain  set  one  and  followed  approved  prece- 
dent.* 

Under  the  Codes. — But  under  the  codes  of  procedure  in  America, 
and  the  new  procedure  in  England,  the  form  of  the  pleading 
amounts  to  little,  provided  the  plea  embodies  the  substance  of  a 
good  accord  and  satisfaction.* 

Verification. — Where  an  answer  sets  up  an  accord  and  satisfac- 
tion between  the  maker  and  the  payee  of  a  note,  as  a  defence  to 
an  action  by  the  indorsee,  the  Colorado  statute  requires  the 
same  to  be  verified  or  else  the  genuineness  of  the  note  is  ad- 
mitted.^ 


1.  Atlantic,  etc.,  R.  Co.  v.  Blanton,  80 
Ga.  562;  Salmon  v.  Pixlee,  2  Day 
(Conn.)  242,  citing  Cheong  May  v. 
U.  S.,  113  U.  S.  216;  Dakota  County 
V.  Glidden,  113  U.  S.  222;  San  Mateo 
County  V.  Southern  Pac.  R.  Co.,  116 
U.  S.  138.  See  also  Hartell  v.  Searcy, 
32  Ga.  190;  Kirtland  v.  Macon,  62  Ga. 
747;  Howard  v.  Durand,  36  Ga.  346, 
91  Am.  Dec.  767. 

Alluding  to  Accord  and  Satisfaction  in 
Testimony. — Where  the  plaintiff  in  his 
testimony  alluded  to  a  written  agree- 
ment with  a  railroad  for  a  settlement 
with  him  for  the  right  of  way,  which 
agreement  was  not  pleaded  as  a  de- 
fence nor  produced  at  the  trial,  the 
appellate  court  held  that  it  was  not 
before  the  court  for  the  purpose  of 
basing  upon  it  a  defence  of  accord  and 
satisfaction.  Combs  v.  Smith,  78  Mo. 
32. 

2.  Tilton  V.  Morgaridge,  12  Ohio 
St.  98,  where  the  court  refused  to 
permit  one  of  several  defendants  to 
set  up  by  answer  that  since  the  com- 
mencement of  the  suit,  and  prior 
to  the  last  two  continuances,  one 
of  his  codefendants  had  made  an 
accord  and  satisfaction  with  the  plain- 
tiff. 

3.  Common- law  Form. — The  following 
was  an  approved  form:  "  Because  he 
says,  that  after  the  making  of  the  said 
several  promises  and  undertakings  in 
the  said  declaration  mentioned,  and 
before  the  exhibiting  of  the  bill  of  the 
said  plaintiff  against  him  the  said  de- 
fendant in  this  behalf,  to  wit,  on,  etc., 


at,  etc.,  aforesaid,  he  the  said  defend- 
ant delivered  to  the  said  plaintiff  one 
pipe  of  wine,  of  great  value,  to  wit,  of 
the  value  of  ;ifioo,  in  full  satisfaction 
and  discharge  of  the  said  several  prom- 
ises and  undertakings,  and  of  all  the 
said  sums  of  money  in  the  said  decla- 
ration mentioned,  and  which  said  pipe 
of  wine  he  the  said  plaintiff  then  and 
there  accepted  and  received  of  and 
from  the  said  defendant  in  full  satis- 
faction and  discharge  of  the  said  sev- 
eral promises  and  undertakings,  and 
of  all  the  sums  of  money  in  the  said 
declaration  mentioned."  Chitty  on 
Pleadings,  vol.  3,  p.  925. 

4.  Code  Form. — The  defendant  an- 
swers   to    the   complaint  :  I.   That  on 

the day  of  ,  18 — ,  at ,  he 

delivered  to  the  plaintiff  the  promis- 
sory  note  of   A.   B.   for  dollars. 

II.  That  the  plaintiff  accepted  the 
same  in  full  satisfaction  of  the  claim 
set  up  in  the  complaint.  New  York 
Code,  vol.  6  (Book  of  Forms). 

Form  now  used  in  England. — ' '  That  he 
satisfied  and  discharged  the  plaintiff's 
claim  by  doing  work  and  providing 
materials  for  the  same  for  the  plain- 
tiff, and  by  delivering  goods  to  the 
plaintiff,  which  work  and  materials 
and  goods  were  so  done  and  provided 
and  delivered  by  the  defendant,  and 
were  accepted  by  the  plaintiff  re- 
spectively in  satisfaction  and  dis- 
charge of  the  said  claim."  BuUen  & 
Leake's  Precedents,  414. 

5.  Parkison  v.  Boddiker,  10  Colo. 
503. 


76 


Necessary 


ACCORD  AND  SATISFACTION. 


Allegations. 


I 


VI.  Necessary    Allegations    of   Accord  and    Satisfaction.— 

Allegation  of  Value. — The  money  value  of  the  thing  given  as  an  accord 

need   not  be  stated.* 

Allegation  of  Time. — The  allegation  of  time  is  not  a  material  one.* 
Allegation  of  Acceptance. — The  allegation  that  the  plaintiff  accepted 

and  received   the   matter  in    full  satisfaction  is  a  material   one 

and  its  omission  fatal.' 


1.  Chitty  on  Pleadings,  vol.  3,  p.  926, 
note  ;  see  form  in  Stephen  on  Pleading, 
235,  where  the  allegation  of  value  is 
omitted. 

But  the  plea  must  show  that  the 
matter  accepted  was  of  some  value. 
Davis  V.  Noaks,  3  J.  J.  Marsh.  (Ky.) 
497.  See  Bank  of  Com.  v.  Lethcher, 
3  J.  J.  Marsh.  (Ky.)  ig6. 

Amount  Stated  under  Videlicet. — 
Where  a  note  is  given  as  an  accord 
and  satisfaction,  its  amount  may  be 
stated  under  a  videlicet  ;  nor  need  the 
date  of  the  note  be  set  out.  Dunham 
V.  Ridgel,  2  Stew.  &  P.  (Ala.)  402. 

Money  Paid  in  Goods,  etc. — To  a  com- 
plaint by  an  executor  upon  a  due  bill, 
the  defendant  answered  that  he  had 
paid  the  deceased  the  full  amount  of 
the  principal  and  interest  due,  "and 
the  sum  of  money  was  paid  in  goods, 
wares,  and  merchandise,  and  was  paid 
in  full  satisfaction  of  said  note,  and 
was  so  received  by  deceased  in  his 
lifetime."  It  was  held  that  this  was 
substantially  a  good  plea  of  accord 
and  satisfaction.  Hart  v.  Crawford, 
41  Ind.  197. 

Equity  of  Redemption. — To  an  action 
on  the  bond,  against  mortgageor,  plea 
that  plaintiff  had  become  possessed  of 
the  equity  of  redemption  by  purchase 
must  aver  that  the  value  of  the  prem- 
ises was  equal  to  the  amount  due  on 
the  bond.  Spencer  v.  Harford,  4 
Wend.  (N.  Y.)  381. 

2.  Immaterial  Variance. — Upon  a  plea 
of  accord  and  satisfaction  by  payment 
and  acceptance  of  a  sum  less  than  the 
debt,  testimony  to  a  payment  of  such 
sum  at  a  date  subsequent  to  the  date 
of  the  accord  is  an  immaterial  vari- 
ance.   Sonnenberg  v.  Riedel,  16  Minn. 

83. 

What  Sufficient  Allegation. — An  aver- 
ment that,  prior  to  the  suing  out  of 
the  writ,  the  debt  was  discharged,  is 
sufficient  as  to  time.  Bird  v.  Caritat, 
2  Johns.  (N.  Y.)  342,  3  Am.  Dec.  433. 

Time  of  Delivery  of  Property.  —  If  a 
plea  of  accord  and  satisfaction,  by  the 
delivery  to  plaintiff   of   certain  prop- 


erty, does  not  state  a  time  when  the  de- 
livery was  made,  it  is  bad  on  special 
demurrer.  Pence  v.  Smock,  2  Blackf. 
(Ind.)  315. 

Ambiguous  Plea. — To  a  count  by  A 
against  B  for  goods  sold  and  delivered, 
B  pleaded,  as  to 4/.  parcel,  etc.,  that  on 
a  certain  day,  at  the  request  of  A,  he 
delivered  to  C,  for  A,  certain  goods; 
that  it  was  "  then,"  to  wit,  on  the  day 
and  year  aforesaid,  in  consideration 
thereof,  agreed  between  A  and  B  that 
A  should  accept  such  delivery  to  C  in 
full  satisfaction  and  discharge  of  the 
premises  as  to  the  4/.,  etc.,  and  that 
A  did  "  then  "  accept  such  delivery  in 
full  satisfaction  and  discharge.  It  was 
ruled  on  special  demurrer  for  ambigu- 
ity, that  the  plea  was  bad,  inasmuch 
as  it  might  mean  either  that  the  agree- 
ment to  accept  the  delivery  of  the 
goods  to  C  in  satisfaction  took  place 
at  the  same  time  as  the  delivery  or  at  a 
subsequent  period.  Stead  v.  Poyer,  i 
C.  B.  782,  50  E.  C.  L.  782. 

3.  Drake  v.  Mitchell,  3  East  256; 
Paine  v.  Masters,  i  Stra.  573;  Young 
V.  Jones,  64  Me.  563,  18  Am.  Rep.  279; 
Johnson  v.  Hunt,  81  Ky.  321;  Shaw 
V.  Burton,  5  Mo.  478;  State  Bank  v. 
Littlejohn,  i  Dev.  &  B.  (N.  Car.)  563; 
Hearn  v.  Kiehl,  38  Pa.  St.  147;  Mor- 
ris Canal,  etc.,  Co.  v.  Van  Vorst,  21 
N.  J.  L.  100. 

Lacking  Averment  of  Satisfaction. — 
To  a  declaration  on  a  contract  for  the 
delivery  of  600  loads  of  timber  at 
Dantzic,  the  defendant  pleaded  that 
after  the  accruing  of  the  causes  of  ac- 
tion and  before  suit  it  was  agreed  be- 
tween the  plaintiffs  and  defendants 
that  the  defendants  should  deliver  to 
the  plaintiffs  in  London  certain  other 
timber,  and  that  such  other  timber 
should  be  accepted  and  received  by 
the  plaintiffs  in  full  satisfaction  and 
discharge  of  all  causes  of  action 
upon  the  contract  in  the  declaration 
mentioned;  that  the  defendant  in 
part  performance  of  the  agreement 
delivered  to  the  plaintiffs,  and  they 
accepted   and    received   of    him,    143 


77 


Necessary 


ACCORD  AND   SATISFACTION. 


Allegations. 


Allegation  of  Mistake. — The  allegation  of  a  mistake  in  a  contract 
may  be  necessary  at  times  to  show  a  consideration  for  the  accord.^ 

ment  pleaded  had  been  accepted  by 
the  parties  in  accord  and  satisfaction 
of  the  causes  of  action  alleged  in  the 
declaration.  Held,  on  demurrer,  re- 
versing the  judgment  of  the  court  be- 
low, that  such  plea  was  bad.  It  could 
not  be  assumed  that  an  agreement,  the 
defendant's  version  of  which  was  set 
out  in  the  plea,  had  been  accepted  in 
accord  and  satisfaction.  Barclay  v. 
Bank  of  New  South  Wales,  5  App. 
Cas.  374. 

Allegation  of  Satisfaction. — To  an  ac- 
tion by  assignees  of  a  bankrupt  assur- 
ance association  the  defendant  pleaded 
that  before  the  bankruptcy  it  was 
agreed  between  the  association  and 
the  defendant  that  policies  which  had 
been  effected  by  the  defendant  with 
the  association,  and  which  were  exist- 
ing, should  be  forthwith  cancelled  and 
delivered  up  to  the  association,  which 
should  thereupon  be  exonerated  and 
discharged  from  the  insurances,  and 
that  the  premiums  thereupon  paid  or 
payable  by  the  defendant,  or  a  rata- 
ble proportion  thereof,  after  deducting 
so  much  as  would  be  fairly  payable  in 
respect  of  risks  already  incurred, 
should  be  allowed  in  account  to  the 
defendant,  and  set  off  against  the 
moneys  due  from  the  defendant  to  the 
association,  and  that  the  defendant 
thereupon  should  be  acquitted,  exon- 
erated, and  discharged  from  the  pay- 
ment of  so  much  of  the  moneys  as  the 
premiums  so  to  be  allowed  should 
amount  to.  The  plea  stated  that  the 
amount  of  premium  so  to  be  allowed 
was  a  certain  sum,  and  averred  that, 
in  pursuance  of  the  agreement,  the 
defendant  delivered  up  the  policies 
and  that  they  were  cancelled,  and  that 
the  defendant  was  in  consequence 
thereof  exonerated  and  discharged 
from  the  payment  of  that  sum.  Held, 
that,  the  plea  was  bad  in  substance  ; 
for  that,  the  agreement  being  to  de- 
liver up  the  policies  to  be  cancelled 
and  to  allow  the  premiums,  the  plea 
ought  to  have  alleged  that  such  allow- 
ance was  made.  Graham  v.  Gibson, 
4  Exch.  768. 

1.  Mistake  in  Contract. — In  an  action 
to  recover  a  balance  on  a  contract  to 
deliver  beef,  defendant  pleaded  that 
the  agreement,  as  understood  by  both 
parties,  was  $3.50  per  hundred  for 
steers,  with  20  per  cent  deduction  for 


loads  on  the  terms  aforesaid,  in  full 
satisfaction  and  discharge  of  the 
causes  of  action  in  the  declaration 
mentioned,  so  far  as  they  related  to 
143  loads  of  timber  in  the  contract  men- 
tioned, and  that  the  defendant  within 
a  reasonable  time  tendered  to  the 
plaintiffs  the  residue  of  the  timber  to 
complete  the  contract.  It  was  held  on 
demurrer,  that  this  was  not  good  as  a 
plea  of  accord  and  satisfaction  for 
want  of  an  averment  of  satisfaction. 
Gabriel  v.  Dresser,  15  C.  B.  622,  80 
E.  C.  L.  620. 

After  Writ  Sued  Oat. — And  where  the 
accord  and  satisfaction  takes  place  af- 
ter the  writ  is  sued  out,  the  plea  should 
allege  that  the  plaintiff  accepted  the 
thing  in  satisfaction  of  the  costs  and 
damages  sustained  by  the  non- per- 
formance of  the  promises.  Francis  v. 
Crywell,  i  D.  &  R.  546. 

Good  after  Verdict.— A  plea  of  accord 
and  satisfaction  which  fails  to  state 
that  the  matter  relied  on  as  an  accord 
was  accepted  as  a  satisfaction  by  the 
creditor  suing  is  bad  on  demurrer, 
but  good  after  a  verdict  sustaining  it. 
Wilkerson  v.  Bruce,  37  Mo.  App.  156. 

Acceptance  from  Stranger. — In  an  ac- 
tion of  covenant  plea  of  acceptance  of 
satisfaction  from  a  stranger  is  bad. 
Clow  V.  Borst,  6  Johns.  (N.  Y.)  37; 
Daniels  v.  Hallenback,  ig  Wend.  (N. 
Y.)  408;  Bleakley  v.  White,  4  Paige 
(N.  Y.)654. 

Agency.— Where  the  plea  was  that 
on  statement  of  account  defendant  de- 
livered notes  to  C.  for  plaintiff  without 
averring  that  C.  was  plaintiff's  agent, 
nor  that  the  notes  were  received  in 
satisfaction,  is  bad.  Bird  v.  Caritat, 
2  Johns.  (N.  Y.)  342,  3  Am.  Dec.  433. 

Acceptance  of  Draft. — A  plea  of  ac- 
cord and  satisfaction  alleging  delivery 
and  receipt  of  a  draft  is  bad  unless 
the  draft  was  paid  or  there  was  an 
express  agreement  extinguishing  the 
debt.     May  v.  Gamble,  14  Fla.  467. 

No  Presumption  of  Acceptance. — To  a 
declaration  alleging  a  breach  of  an 
agreement  therein  set  forth,  and  con- 
sequent damage  to  the  plaintiffs,  it 
was  pleaded  that  a  certain  agreement 
had  been  come  to  between  the  plain- 
tiffs and  defendants  after  dispute  had 
arisen.  The  plea  did  not  in  terms  ad- 
mit or  deny  the  alleged  breach,  nor 
did  it  in  terms  state  that  the  agree- 


78 


Necessary 


ACCORD   AND   SATISFACTION. 


Allegations. 


Eelease  of  an  Equity  of  Redemption. — Where  the  subject-matter  of  the 
plea  is  the  release  of  aa  equity  of  redemption  the  plea  will  receive 
a  liberal  construction  and  be  upheld  if  possible.* 

Courts  Liberal  in  Construction. — The  courts  are  liberal  in  their  con- 
struction of  the  plea  of  accord  and  satisfaction,  and  will  often 
hold  a  plea  good  although  informal.* 

Replication. — An  equitable  replication  may  be  pleaded  to  a  plea 
of  accord  and  satisfaction.  Where  the  accord  and  satisfaction  are 
received  by  the  creditor  on  the  faith  of  representations  which  are 
false,  this  may  be  set  up  in  reply  to  the  plea.^ 


all  cows  delivered,  which  latter  clause 
was  accidentally  omitted  from  the 
contract,  and  that  plaintiff  had  ac- 
cepted a  settlement  on  that  basis  in 
full  satisfaction  of  all  claims  there- 
under. On  plaintiff's  motion  to  strike 
out,  held,  treating  the  plea  as  one  of 
accord  and  satisfaction,  the  allegation 
of  mistake  was  necessary,  as  showing 
a  consideration  for  the  settlement,  and 
it  constituted  a  legal  defence.  Torrey 
V.  U.  S.,  42  Fed.  Rep.  207. 

1.  In  an  action  of  debt  upon  a 
writing  obligatory,  a  plea  that  the 
defendant  was  the  owner  of  the  equity 
of  redemption  in  certain  property  pur- 
chased by  the  plaintiff  at  a  sale  made 
by  a  sheriff  under  execution,  and  that 
before  the  time  for  redemption  expired 
the  plaintiff,  in  consideration  that  de- 
fendant would  waive  and  release  to 
plaintiff  his  right  of  redemption,  agreed 
to  release  and  discharge  defendant 
from  the  payment  of  the  obligation, 
and  that  in  pursuance  of  such  agree- 
ment the  defendant  did  waive,  release, 
and  quitclaim  his  said  right  of  re- 
demption to  the  plaintiff,  is  substan- 
tially a  good  plea  of  accord  and  satis- 
faction.    Bailey  v.  Cowles,  86  111.  333. 

Release  and  Quitclaim. — Where  a 
release  and  quitclaim  of  an  equity  of 
redemption  in  real  estate  is  pleaded 
as  an  accord  and  satisfaction,  it  is  not 
necessary  that  the  plea  should  allege 
that  such  release  and  quitclaim  were 
under  seal.     Bailey  v.  Cowles,  86  111. 

333- 

2.  Assigning  Effects. — A  plea  that  de- 
fendant agreed  with  plaintiff  and  oth- 
ers to  assign  effects  to  them  in  full 
satisfaction  of  their  claims,  and  that 
in  pursuance  thereof  the  assignment 
was  made  by  defendant,  states  a  good 
accord  and  satisfaction.  Watkinson 
V.  Inglesby,  5  Johns.  (N.  Y.)  386. 

To  Promissory  Note. — A  plea  in  a  suit 
showing   that   before  the   assignment 


of  a  note  the  payee  was  indebted  to 
each  of  the  defendants  in  certain  sums 
of  money,  and  that  the  payee  and 
another  person  were  indebted  in  a 
certain   other  sum  to  the  defendants, 

which  debts  amounted  to dollars, 

and  stating  that  such  indebtedness 
was  made  so  many  payments  on  the 
note,  described  in  the  declaration,  and 
was  received  and  accepted  by  the 
payee  as  a  payment  on  the  note,  be- 
fore its  assignment, — although  infor- 
mal, is  good.  Woods  v.  Harris,  5 
Blackf.  (Ind.)  585. 

Executing  New  Bond  to  New  Partner- 
ship.— Where  the  obligees  of  a  bond 
are  partners,  and  a  new  partner  is 
taken  into  the  firm,  a  plea  of  accord 
and  satisfaction  is  good  which  recites 
that  the  obligor  executed  a  new  bond 
to  the  new  partnership  which  was  ac- 
cepted in  satisfaction  of  the  first  bond. 
Pope  V.  Tunstall,  2  Ark.  209. 

Allegation  of  Agency.  —  Where  the 
plea  alleges  that  the  defendant's  note 
was  given  to  a  third  person  for  the 
plaintiff,  it  must  be  averred  that  he 
was  the  agent  of  the  plaintiff.  Bird  v. 
Caritat,  2  Johns.  (N.  Y.)  342,  3  Am. 
Dec.  433. 

Affidavit  of  Defence. — An  affidavit  of 
defence  setting  up  an  accord  and  satis- 
faction under  a  written  agreement 
must  be  specific  and  contain  the  ma- 
terial provisions  of  the  agreement. 
Simon  v.  Kendig,  4  Kulp.  (Pa.)  493. 

3.  Stears  v.  South  Essex  Gas  Light, 
etc.,  Co.,  9  C.  B.  N.  S.  180.  99  E.  C.  L. 
179,  where  a  plea  of  accord  and  satisfac- 
tion set  up  the  delivery  of  deeds  and  se- 
curities as  accord  and  satisfaction,  an 
equitable  replication  as  to  to  the  deeds 
and  securities,  that  they  were  accepted 
on  the  faith  of  representations  which 
were  false,  was  allowed.  See  Perry 
V.  Attwood,  6  El.  &  Bl.  6gi;  Turner  v. 
Browne,  4  D.  &  L.  201;  Jones  v.  Saw- 
kins,  5  C.  B.  142,   57  E.  C.  L.  141. 


79 


Irsof&cient 


ACCORD  AND   SATISFACTION. 


Allegations 


The  reply  may  set  up  the  facts  which  nulHfy  the  plea,  although 
such  facts  are  admissible  under  a  general  denial.* 

VII.  Insufficient  Allegations  of  Accord  and  Satisfaction. — 
Eeceived  on  Account. — Although  a  less  sum  may,  under  certain 
circumstances,  be  an  accord  and  satisfaction  of  a  greater  sum  due, 
it  must  not  only  be  paid  as  such,  but  the  plea  must  aver  that  it 
was  received  as  such.  An  omission  to  state  the  latter  allegation 
gives  rise  to  the  presumption  that  the  amount  received  was  re- 
ceived on  account.'-* 

To  Whom  Satisfaction  was  Made. — A  plea  of  accord  and  satisfaction 
must  show  to  whom  satisfaction  was  made.* 

"Satisfied  and  Discharged." — The  allegation  that  the  claim  of  plain- 
tiff has  been  "  satisfied  and  discharged  "  is  not  the  statement  of 
an  accord  and  satisfaction.* 

Statement  of  Legal  Conclusion. — Under  the  codes  an  accord  and 
satisfaction  cannot  be  pleaded  as  a  mere  legal  conclusion.  The 
facts  must  be  set  out  warranting  the  conclusion.* 


A  replication  which  traverses  the 
allegations  of  agreement  to  accept  in  a 
plea  of  accord  and  satisfaction  need 
not  notice  the  allegations  of  payment 
or  acceptance.  Bainbridge  v.  Lax,  9 
Q.  B.  819,  58  E.  C.  L.  818. 

1.  Pottlitzer  v.  Wesson  (Ind.  App. 
1893)  35  N.  E.  Rep.  1030,  where  the 
»nswer  alleged  that  a  certain  sum  was 
received  in  settlement,  and  the  reply 
set  out  that  the  sum  was  only  received 
pro  tafito  and  not  in  extinguishment 
of  the  whole  claim.  It  was  held  that 
this  reply  was  not  demurrable,  al- 
though a  general  denial  would  have 
sufficed. 

Denjring  Conveyance  of  Land,  etc. — 
Where  to  an  action  on  a  note  the  de- 
fendant pleaded  an  accord  and  satisfac- 
tion by  the  sale  and  conveyance  of  a 
tract  of  land  which  plaintiff  accepted 
and  received  in  discharge  and  satis- 
faction of  the  note,  to  which  plea  the 
plaintiff  replied,  denying  both  the 
conveyance  of  the  land  to  him  and  his 
acceptance  of  it,  it  was  held  on  de- 
murrer to  the  replication  that  it  was  a 
good  answer  to  the  plea,  and  was 
neither  double,  uncertain,  nor  objec- 
tionable. Dent  V.  Coleman,  10  Smed. 
&  M.  (Miss.)  83. 

2.  Insurance  Co.  v.  Insurance  Co.,  i 
Clev.  Rep.  (Ohio)  81,  where  an  aver- 
ment in  defence  to  an  action  on  a  re- 
insurance policy,  that  the  original  in- 
surer had  compromised  the  claim  of 
the  insured  at  60  cents  on  the  dollar, 
and  thereupon  the  reinsurer  had  paid 
to  the  insurer  a  specified  sum,  in  full 


satisfaction  and  discharge  of  all  claims, 
was  held  demurrable. 

3.  Nill  V.  Comparet,  15  Ind.  243. 

4.  Action  on  Notes. — An  answer  in  an 
action  on  notes  which  denies  that  cer- 
tain of  the  first  four  notes  have  not 
been  paid,  and  alleges  that  they  have 
been  "  satisfied  and  discharged,"  does 
not  plead  an  accord  and  satisfaction. 
Hogan  V.  Burns  (Cal.  1893)  33  Pac. 
Rep.  631. 

5.  Where  an  action  was  brought  by  a 
husband  and  wife  against  under- 
takers to  recover  damages  for  not 
properly  keeping  a  body  in  a  vault  as 
they  had  agreed,  the  answer  alleged,  in 
substance,  that  the  plaintiffs  had  failed 
to  pay  the  agreed  compensation  ;  that 
the  defendants,  by  mistake,  had  ship- 
ped the  body  to  some  point  of  inter- 
ment not  remembered  by  them  at  the 
time  the  body  was  demanded  by  the 
plaintiffs  ;  that  they  so  notified  the 
plaintiffs,  and  promised  them  to  im- 
mediately find  the  place  of  interment 
and  without  delay  return  the  body  ; 
that  the  plaintiffs  expressed  them- 
selves as  satisfied  with  this  arrange- 
ment ;  that  shortly  afterwards  said 
body  was  returned  to  the  defendants, 
and  was  taken  by  the  plaintiffs  and  in- 
terred ;  that  the  return  of  the  corpse 
was  taken  and  received  by  the  plain- 
tiffs in  full  and  perfect  satisfaction  of 
all  wrongs  and  injuries  incident  to  the 
mistake  made  by  the  defendants. 
Held,  that  the  last  averment  of  the 
answer  was  the  statement  of  a  mer^ 
conclusion,    not     warranted     by    ar.y 


80 


Insufficient 


ACCORD   AND    SATISFACTION. 


Allegations. 


Several  Counts  in  the  Declaration. — The  plea  must  answer  all  the 
counts  in  the  declaration,  otherwise  it  is  demurrable.* 

All  Elements  to  be  Embodied. — While  the  courts  are  liberal  in 
their  construction  of  pleas  of  accord  and  satisfaction,  still  they 
insist  that  all  the  necessary  legal  elements  requisite  to  this  defence 
should  be  embodied  in  the  plea.  A  failure  in  this  respect  makes 
the  plea  a  nullity.* 

VIII.  Miscellaneous. — 1.  Nul  Tiel  Record. — Accord  and  sati.s- 
faction  may  be  pleaded  with  mil  tiel  record  to  debt  on  judg- 
ment.* 


premises  preceding  it.  Held  also, 
that  the  answer  was  bad,  inasmuch  as 
it  was  the  duty  of  the  defendants  to 
procure  a  return  of  the  corpse,  and 
there  is  no  averment  that  the  plaintiffs 
agreed  with  the  defendants  that  they 
would  accept  such  return  in  satisfac- 
tion of  the  cause  of  action  upon  which 
the  complaint  is  based.  Renihan  v. 
Wright,  125  Ind.  536. 

1.  Hopkinson  v.  Tahourdin,  2  Chit. 
Rep.  303,  18  E.  C.  L.  343,  where  the 
plea  professed  to  answer  the  whole 
declaration,  which  contained  several 
counts,  and  stated  that  the  goods  were 
delivered  and  accepted  in  satisfaction 
"  of  the  cause  of  action."  It  was  held 
demurrable. 

2.  Neither  Accord  nor  Satisfaction. — A 
plea  to  an  indebitatus  count  which 
states  that  plaintiff  was  to  pay  himself 
out  of  some  of  defendant's  moneys 
which  he  was  to  receive,  and  through 
his  own  default  he  received  nothing, 
is  bad  as  being  neither  an  accord  nor 
a  satisfaction.  Gifford  v.  Whittaker, 
6  Q.  B.  249,  51  E.  C.  L.  247  ;  Griffiths 
V.  Owen,  13  M.  &  W.  58. 

Account  Stated. — A  plea  of  account 
stated,  though  it  avers  a  balance  and 
plaintiff's  promise  to  pay,  is  bad  on 
general  demurrer.  It  is  a  mere  ac- 
cord. Bump  z'.  Phoenix,  6  Hill  (N.Y.) 
308. 

Execution  Levied. — To  debt  on  a  judg- 
ment, defendant  pleaded  that  it  was 
confessed  on  a  stipulation  that  it 
should  be  levied  only  on  particular 
goods,  and  that  the  goods  were  levied 
upon  and  sold,  and  yielded  an  amount 
more  than  sufficient  to  pay  the  debt. 
Held,  a.  plea  not  of  accord  and  satis- 
faction, but  that  the  debt  had  been 
levied,  and  so  the  amount  of  the  levy 
was  not  issuable.  Welch  v.  Lynch,  7 
Barb.  (N.  Y.)  380.' 

Held  no  Accord  and  Satisfaction. — A., 
H.,  and  S.  jointly  commit  a  trespass  on 
I  Encyc.  PI.  &  Pr.— 6 


lands  forming  the  homestead  of  the 
former  owner,  at  that  time  held  by  the 
widow  by  virtue  of  her  dower  and 
quarantine  rights,  and  oust  the  widow, 
who  brings  an  action  for  such  tres 
pass.  Subsequently  she  files  a  bill  in 
chancery  against  H.  and  A.  for  dower 
and  quarantine  in  said  lands,  and  in 
such  suit  recovers  judgment  against 
them  for  about  four  thousand  dollars. 
In  consideration  of  three  thousand 
dollars,  the  widow  releases  H.  from 
all  liability  for  the  trespass,  reserv- 
ing in  said  release  the  right  to  enforce 
the  balance  of  the  decree  against  A., 
who  pays  it.  These  facts  were  held  to 
constitute  no  bar  to  her  action  for  the 
trespass  and  ouster  against  S.,  and  a 
plea  setting  up  these  facts  is  demurra- 
ble.    Smith  V.  Gayle,  62  Ala.  446. 

Plea  Construed. — In  an  action  on  a 
sealed  contract  by  which  plaintiffs 
rented  to  defendants  a  number  of 
ewes  at  a  certain  rent,  the  ewes  to  be 
returned  at  the  termination  of  the 
lease,  or  $1.25  a  head  to  be  paid  for 
all  not  returned  by  reason  of  "acci- 
dent," and  $1.50  for  those  disposed  of 
"in  any  other  manner,"  a  plea  of  ac- 
cord and  satisfaction  is  bad  that  sets 
up  that  defendants  entered  into  a  new 
contract  with  plaintiffs,  whereby  one 
of  defendants  agreed  to  hold  the  bal- 
ance of  the  ewes,  after  having  rede- 
livered a  part,  and  to  pay  therefor  20 
cents  per  head  annual  rent,  instead  of 
25  cents  as  stipulated  by  the  original 
contract,  and  that  the  new  contract 
was  executed  by  that  defendant's  con- 
tinuing to  hold  the  sheep  thereunder, 
and  that  it  was  agreed  that  this  new 
contract  should  be  a  full  and  complete 
satisfaction  of  the  original  contract. 
Armijo  v.  Abeytia  (N.  Mex.  1891),  25 
Pac.  Rep.  777. 

3.  Kershaw  v.  Robinson,  i  Brev.  (S. 
Car.)  380. 

Are  Inconsistent. — Where  a  proceed- 


Miscellaneous.        ACCORD    AND    SATISFACTION.       MiscellaneouB. 

2.  Tender. — Where  a  sum  of  money  is  the  subject-matter  of  the 
accord  and  satisfaction,  or  where  the  property  tendered  is  capa- 
ble of  production  in  court,  it  must  accompany  the  plea.* 

3.  Pro  Tanto. — The  part  execution  of  an  accord  and  satisfaction 
may  be  pleaded  as  satisfaction  pro  tantoJ^ 

4.  ftuestion  for  Jury. — Where  an  accord  and  satisfaction  is 
pleaded  the  subject-matter  of  which  is  that  matters  in  dispute 
have  been  submitted  to  arbitration  and  passed  on,  the  question 
is  one  for  the  jury.' 

6.  Estoppel. — A  plea  of  accord  and  satisfaction  needs  only  be  sup- 
ported by  the  same  amount  of  evidence  as  any  other  plea.  It  is 
error  to  apply  to  such  a  plea  the  doctrine  of  estoppel.* 

6.  Admission. — The  plea  of  accord  admits  the  allegations  of  the 
declaration  ;  and  where  bonds  are  sued  on,  they  may  be  intro- 
duced in  evidence  although  they  vary  from  the  description  of 
them  in  the  declaration.' 

7.  Chancery. — Chancery  will  not  assist  one  where  he  has  had  an 
opportunity  to  plead  the  accord  at  law.® 

8.  Affirming  an  Accord. — The  filing  a  supplemental  plea  of  accord 
and  satisfaction,  made  in  settlement  of  the  action,  is  a  ratification 
of  the  accord.'' 


inghy  scire  facias  vidLS  brought  to  re- 
vive a  judgment  and  the  defendant 
pleaded  nul  del  record,  statute  of  lim- 
itations, and  accord  and  satisfaction, 
it  was  held  that  although  the  defences 
of  nttl  tiel  record  and  accord  and  satis- 
faction were  inconsistent,  yet  they 
were  not  obnoxious  to  demurrer,  and 
a  defendant  does  not  waive  his  objec- 
tion to  the  sustaining  a  demurrer  to 
his  plea  of  accord  and  satisfaction  by 
going  to  trial  on  the  plea  of  nul  tiel 
record.  Tucker  v.  Edwards,  7  Colo. 
209. 

1.  Guion  V.  Doherty,  43  Miss.  538. 
But  probably  this  case  is  one  on  "  ten- 
der" only,  for  an  accord  is  no  defence 
unless  the  plaintiff  has  accepted  it. 

2.  Where  there  is  no  plea  that  a 
promise  by  a  wrong-doer  was  made  and 
accepted  in  satisfaction  of  the  tort,  any 
charge  of  the  court  as  to  rescission  for 
non-performance  of  the  promise  is  ir- 
relevant, the  tort  being  the  subject- 
matter  of  the  action.  A  mere  accord, 
though  partly  performed  or  executed, 
does  not  extinguish  the  original  right; 
the  part  execution  may  be  pleaded  as 
satisfaction  pro  tanto,     A  promise   of 


future  performance  will  amount  to  sat- 
isfaction if  expressly  accepted  as  such, 
but  generally  not  otherwise.  For  such 
a  promise  to  be  available  in  bar,  it 
must  be  pleaded,  and  its  acceptance 
averred.  Brunswick,  etc.,  R.  Co.  v. 
Clem,  80  Ga.  534. 

3.  Madden  v.  Blain,  66  Ga.  49. 

4.  Cheeves  v.  Danielly,  74  Ga.  712. 

5.  Dickinson  v.  Burr,  7  Ark.  34. 
General  Issue. — The  sheriff,  to  satisfy 

an  execution  against  the  defendant, 
wrongfully  levied  on  property  belong- 
ing to  a  third  person.  The  sheriff 
delivered  the  property  to  warehouse- 
keepers  to  keep;  the  third  person  then 
brought  suit  in  trespass  against  such 
warehousemen.  The  warehousemen 
pleaded  not  guilty,  and  also  accord  and 
satisfaction.  It  was  held  that  the  plea 
of  accord  and  satisfaction  was  not  an 
admission  of  the  cause  of  action  when 
the  general  issue  was  pleaded.  Prince 
V.  Puckett,  12  Ala.  832. 

6.  Burton  v.  Hynson,  14  Ark.  32; 
Stark  V.  Thompson,  3  T.  B.  Mon.  (Ky.) 
302. 

7.  Whitlock  V.  Coulter,  i  City  Ct. 
Rep.  (N.  Y.)428. 


82 


ACCOUNTS    AND   ACCOUNTING. 

By  W.  L.  Crawford. 

L  Common-law  Action  of  Accotint,  84. 

1 .  Generally  Fallen  into  Disuse,  84. 

2.  IV/ien  it  Lies,  84. 

3.  The  Declaration,  85. 

4.  The  Plea,  86. 

5.  Judgment  Quod  Cotnpi^tet,  Z6. 

6.  Proceedings  be/ore  the  Auditors.     See  REFERENCES,  Z^. 

7.  Final  Judgmeftt,  87. 

II.  Account  Stated,  87. 

1.  Generally,  87. 

2.  Must  be  Declared  on  as  Such,  88. 

3.  The  Complaint  or  Declaration,  88. 

4.  The  Answer  or  Plea,  89. 

III.  Actions  on  Accounts,  90. 

1.  Particularity,  90. 

2.  Statutory  Provisions,  90. 

3.  Pleading  by  Copy,  90. 

4.  Probated  Accounts,  gi. 

IV.  Accounting  in  Equity,  93. 

1 .  Equity  Jurisdiction  in  Cases  oj  Accounts,  93. 

a.  What  Must  be  Alleged,  93. 

b.  Basis  and  Extent  of  Jurisdiction,  93. 

c.  Mutual  Accounts,  94. 

d.  Complicated  Accounts,  95. 

e.  Fiduciary  RelatioJi,  96. 

2.  The  Bill  or  Complaint,  97, 

a.  Generally,  97. 

b.  Certainty  and  Particularity,  97, 

c.  Allegation  of  Demand,  98. 

d.  Offer  to  Pay  Balance,  98. 

e.  Prayer,  99. 

3.  The  Answer,  99. 

4.  The  Plea  of  Stated  Account,  100. 

a.  In  Equity,  100. 

b.  Uttder  the  Codes,  102. 

5.  Practice,  102. 

6.  TV/d?  Decree,  102. 

7.  Appellate  Proceedings,  103. 

8.  Parties,  104. 

9.  Proceedings  to  Impeach  an  Account,  107. 

^j  /£»  ^///y  ^  Particulars  in  account  cases,  see  BILLS  OF  PAR- 
TICULARS. 

Proceedings  before  Masters,  Auditors,  Committees,  and  Referees,  see  REF- 
ERENCES. 


Common  Law       A  CCO  UNTS  AND  ACCO  UN  TING.  Action  of  Account. 

1.  Common  Law  Action  of  Accotint — 1.  Generally  Fallen  into 
Disuse. — Account,  sometimes  called  account  render,  was  a  form 
of  action  at  common  law  against  a  person  who,  by  reason  of  some 
fiduciary  relation,  was  bound  to  render  an  account  to  another  but 
refused  to  do  so.*  In  England  the  action  early  fell  into  disuse.* 
And,  as  it  is  one  of  the  most  dilatory  and  expensive  actions  known 
to  the  law,  and  the  parties  are  held  to  the  ancient  rules  of  plead- 
ing, and  no  discovery  can  be  obtained,  it  never  was  adopted  to  a 
great  extent  in  the  United  States.^ 

states  Having  no  Chancery  Courts. — But  the  action  of  account  was 
adopted  in  several  states,  principally  because  there  were  no 
courts  of  chancery  in  which  a  bill  for  an  accounting  lay.A. 

2.  When  it  Lies — privity. — To  maintain  an  action  of  account 
there  must  be  either  a  privity  in  deed  by  the  consent  of  the  party^ 
or  a  privity  in  law.* 

For  a  Tort. — The  action  does  not  lie  against  a  disseisor  or  other 
wrongdoer,  or  to  recover  damages,  as  for  a  tort.* 

Against  Guardian. — An  action  of  account  for  rents  and  profits  could 
be  maintained  by  the  heir,  after  he  had  attained  the  age  of  14 
years,  against  the  guardian  in  socage.'' 

Against  Bailiff. — So,  at  the  common  law,  account  will  lie  against  a 
bailiff  or  receiver,  and  in  favor  of  trade  and  commerce,  by  one 
merchant  against  another.* 

Joint  Tenants  and  Tenants  in  Common. — But  this  action  did  not  lie  for 
one  joint  tenant  or  tenant  in  common  against  his  companion^ 
although  he  should  have  taken  the  whole  profits  to  his  own  use, 
unless  he  had  been  appointed  a  bailiff  to  render  an  account.®  But 
by  statute  4  Anne,  c.  16,  §27,  an  action  of  account  could  be  main- 
tained by  one  joint  tenant  or  tenant  in  common  against  the  other 
for  receiving  more  than  his  share  or  proportion.** 

1.  Abb.  L.  Diet.  Co.,  136  111.  499.  See  Bedell  p.  Jannsey, 

2.  3  Black.  Com.  162-3.  9  HI-  I93- 

3.  McMurray    v.    Rawson,    3    Hill         5.  Selwyn  Nisi  Prius,  i. 

(N.  Y.)59.  6.   Brinsmaid  v.  Collard,  9  Vt.  31; 

4.  The  reason  assigned  for  its  adop-     Selwyn  Nisi  Prius,  i. 

tion  in  Pennsylvania   was   that  there  7.  Selwyn  Nisi  Prius,  i.     And  it  is 

was  no  adequate  remedy  in  chancery;  the  only  action  other  than  one  on  his 

it  was  made  to  subserve  all  the  pur-  bond   that  can  be  brought  against  a 

poses  of  a  bill  in  equity.     James   v.  guardian,  qua  guardian,  in  a  court  of 

Browne,  i  Dall.  (Pa.)  339.  law.     Green  v.  Johnson,  3  Gill.  &  J. 

In  Connecticut,  while  a  suit  in  chan-  (Md.)  389. 

eery  lay  for  an  accounting,  yet  this  8.  Selwyn  Nisi  Prius,  1-4. 

remedy   could   not   be   sought   if   the  9.  Selwyn  Nisi  Prius,  4. 

action  of  account  afforded  an  adequate  10.  Selwyn  Nisi  Prius,  4. 

remedy.      Stannard   v.  Whittlesey,    9  To  be  Charged  as  Bailiff. — The  statute 

Conn.  556.     But  the  action  was  never  only  empowers  the  plaintiff  to  charge 

as  broad  in   Connecticut  as  the  equity  the    defendant    as  bailiff,   and   not  as 

proceeding  of  accounting.     Dexter  v.  receiver.     Selwyn  Nisi   Prius,  4.    But 

Hitchcock,  ID  Conn.  209.  the  defendant  is  only  answerable  for 

In  Illinois,  although  there  are  courts  so  much  as  he  has  actually  received, 

of  chancery,  the  action  of  account  is  not   for   what    he   might    have   made 

used  at  the  present  time  with  an  en-  without   his   wilful   default.      Selwya 

larged  scope.     Garrity  v.  Hamburger  Nisi  Prius,  4. 

84 


Common  Law        A  CCO  UNTS  A  ND  A  CCO  UN  TING.  Action  of  Account. 

Merchant  and  Broker. — In  case  of  a  running  account  between  a 
merchant  and  a  broker,  the  proper  remedy  for  recovering  the 
balance  was  by  an  action  of  account  and  not  of  assumpsit.^ 

Executors  and  Administrators. — At  common  law  executors  in  general 
could  not  have  this  action  for  an  account  to  be  made  to  the  tes- 
tator, because  the  account  rested  in  privity.*  But  the  statute 
West.  2,  13  Edw.  I,  Stat,  i,  c.  23,  gave  this  action  to  executors  ; 
and  the  statute  31  Edw.  Ill,  Stat,  i,  c.  11,  to  administrators.^ 

Partnership  Affairs. — The  action  of  account  was  sometimes  used 
to  settle  the  accounts  of  a  partnership.* 

3.  The  Declaration  —  Form. — The  declaration  was  somewhat 
like  a  bill  in  equity  for  an  accounting,  but,  unlike  such  bill,  it  did 
not  ask  that  an  account  be  taken,  but  concluded,  as  all  declara- 
tions at  law  do,  praying  damages  for  the  refusal  to  account.* 

Allegations  of  Keceipt. — The  declaration  must  allege  what  moneys 
"were  received,  and  of  whom  received.® 


More  than  Two. — When  there  are 
more  than  two  co-tenants,  the  action 
of  account  does  not  lie  between  them. 
Lacon  v.  Davenport,  16  Conn.  341. 

Joinder  of  Parties. — Tenants  in  com- 
mon cannot  join  in  an  action  of  ac- 
count ;  each  must  bring  his  separate 
action.  And,  conversely,  two  or  more 
cannot  be  sued,  unless  they  are  part- 
ners, in  the  same  action.  McPherson 
V.  McPherson,  11  Ired.  (N.  Car.)  391  ; 
53  Am.  Dec.  416. 

1.  Selwyn  Nisi  Prius,  4.  But  gen- 
erally the  fact  that  an  account  will  lie 
is  no  objection  to  bringing  assumpsit 
if  defendant  is  not  thereby  essentially 
prejudiced.  Tousey  v.  Preston,  i 
Conn.  179;  Wetmore  v.  Woodbridge, 
Kirby  (Conn.)  165. 

2.  Coke  Inst,  i,  89  b. 

3.  Coke  Inst.  89  b,  2. 

Between  Co-executors.  —  The  action 
does  not  lie  between  co-executors. 
Smith  V.  Chapman,  5  Conn.  26. 

4.  Stanford  v.  Demit,  i  Root  (Conn.) 
317;  Whelen  v.  Watmough,  15  S.  &  R. 
(Pa.)  153;  Griffith  v.  Willing,  3  Binn. 
(Pa.)  317. 

Partnership  Claims  Uncollected. — But 
it  is  doubtful  if  it  lay  while  any  of  the 
partnership  claims  were  still  uncol- 
lected or  property  undisposed  of.  Day 
V.  Lockwood,  24  Conn.  197. 

Part-owners  of  Vessels.  —  Part- 
owners  of  vessels  could  use  this 
action  for  the  adjustment  of  the  ex- 
penses and  profits  of  such  vessels. 
Pingree  v.  Maguire,  30  Me.  508;  Hardy 
^.  Sprovvl,  33  Me.  508. 

6.  See  Godfrey  v.  Saunders,  3  "^Yils. 


73,  where  the  declaration  and  all  the 
proceedings  are  set  out  in  extenso. 
This  case  is  replete  with  learning  on 
this  form  of  action.  Care  must  be 
taken  in  drafting  the  declaration  to 
allege  facts  warranting  a  common-law 
remedy.     See  May  v.  Williams,  3  Vt. 

239- 

Making  Demand. — It  was  not  neces- 
sary to  make  a  demand  before  com- 
mencing the  action  or  filing  the 
declaration.  Sturges  v.  Bush,  5  Day 
(Conn.)  457. 

Attachment. — The  declaration  might 
be  accompanied  with  an  attachment 
proceeding  which  commenced  the 
action.  Humphreys  v.  Matthews,  11 
111.  472. 

Necessity  of  Declaration. — Where  the 
cause  is  sent  to  a  referee  there  need 
be  no  declaration.  Barde  v.  Wilson, 
3  Yeates  (Pa.)  149.  As  the  action  lay 
before  a  justice  of  the  peace,  it  may 
be  questioned  whether  in  such  a  case 
the  elaborate  declaration  of  the  com- 
mon law  was  necessary.  See  Bulkly 
V.  Lewis,  I  Root  (Conn.)  217. 

6.  May  v.  Williams,  3  Vt.  239;  Jordan 
V.  Wilkins,  2  Wash.  (U.  S.)  483,  where 
a  nonsuit  was  granted  because  the 
evidence  showed  that  the  money 
received  belonged  to  plaintiff  jointly 
with  his  partners,  and  the  declaration 
charged  that  the  money  was  plaintiff's. 
See  also  Starkey  v.  Peters,  18  Conn. 
186;  Barnum  v.  Landon,  25  Conn.  148. 

Partnership  Affairs.  —  But  between 
partners  it  is  not  necessary  to  specify 
particularly.  It  is  sufficient  to  charge 
the    defendant    generally     with     the 


85 


Common  Law       A  CCO  UNTS  AND  ACCO  UN  TING.  Action  of  Account. 

Joinder  of  Counts — Several  counts  may  be  joined  in  the  same 
declaration.^ 

Prayer.— As  the  plaintiff  could  have  judgment  for  a  greater 
amount  of  damages  than  that  laid  in  the  declaration,  the  prayer 
was  not  material.* 

4.  The  Plea — when  to  be  Filed.— Pleas  in  bar  of  the  action  must 
be  filed  prior  to  the  interlocutory  judgment  to  account.^ 

What  Should  be  Pleaded.— The  defendant  should  plead  before  the 
court,  in  the  first  instance,  any  matter  which  shows  that  he  is  not 
liable  to  account,  whether  it  is  that  he  never  was  liable,  or  that  the 
liability  has  been  in  some  way  discharged.'* 

No  General  Issue. — In  the  action  of  account  there  is  no  general 
issue,  and  it  cannot  be  pleaded.* 

6.  Judgment  ftuod  Computet — Nature.— There  are  two  judgments 
in  the  action  of  account  ;  the  first  judgment  is  that  the  defendant 
do  account,  usually  termed  a  judgment  quod  computet.  This  is  in 
the  nature  of  an  award  of  the  court,  interlocutory  only,  and  not 
definitive.® 


receipt  of  money  for  their  joint  benefit. 
James  v.  Browne,  i  Dall.  (Pa.)  339; 
Robinson  v.  Wright,  Brayt.  (Vt.)  22. 

1.  Bailiff  and  Tenant  in  Common. — 
Counts  charging  the  defendant  as 
bailiff  and  also  as  tenant  in  common 
may  be  joined.  McAdam  v.  Orr,  4 
W.  &  S.   (Pa.)  550. 

Common  Book  Account. — A  count  in 
common  book-account  form  cannot  be 
joined  with  other  counts  in  this  action. 
May  V.  Williams,  3  Vt.  239. 

Different  Counts  for  Same  Cause  of 
Action. — The  same  cause  of  action 
may  be  stated  in  several  different 
counts  to  meet  the  proof.  Lacon  v. 
Davenport,  16  Conn.  344.  See  Smith 
V.  Smith,  2  Root  (Conn.)  42. 

2.  Gratz    v.  Philips,   5    Binn.  (Pa.) 

564. 

3.  Closson  V.  Means,  40  Me.  337  ; 
Black  V.  Nichols,  68  Me.  227. 

4.  Lee  v.  Abrams,  12  111.  iii. 
Estoppel. — All    matter     of    estoppel 

must  be  pleaded  or  it  will  be  con- 
sidered waived.  Brinsmaid  v.  Mayo, 
9  Vt.  31. 

Never  Bailiff  or  Eeceiver. — He  may 
plead  that  he  was  never  bailiff  or  re- 
ceiver. Chitty  on  Pleadings,  vol.  i, 
488  ;  Selwyn  Nisi  Prius,  4.  See  Spald- 
ing V.  Dunlap,  i  Root  (Conn.)  319, 
as  to  what  evidence  will  support  this 
plea. 

Fully  Accounted. — Or  that  he  has  fully 
accounted.  Bishop  v.  Baldwin,  14  Vt. 
145  ;  Lee  v.  Abrams,  12  111.  iii  ; 
Chitty  on  Pleadings,  vol.  i,  488  ;  Sel- 


wyn Nisi  Prius,  4 ;  Brinsmaid  v. 
Mayo,  9  Vt.  31.  Contra,  Mott  v. 
Downer,  i  Root  (Conn.)  425. 

'■  Plane  computavit  "  and  '•  Nothing  in 
arrear. " — The  plea  of  plene  computavit 
is  to  be  distinguished  from  the  plea 
before  the  auditors  of  "  nothing  in  ar- 
rear." See  Lee  v.  Abrams,  12  111. 
Ill  ;  Pickett  v.  Pearsons,  17  Vt.  470. 

Accounted  before  Auditors. — Or  that 
he  has  accounted  before  auditors  as- 
signed by  the  plaintiff.  Selwyn  Nisi 
Prius,  4. 

Release. — A  release  may  form  the 
subject-matter  of  the  plea.  Chitty  on 
Pleadings,  vol.  i,  488. 

Statute  of  Limitations. — The  statute 
of  limitations  is  pleadable  in  bar  be- 
fore the  interlocutory  judgment. 
Black  V.  Nichols,  68  Me.  227  ;  Chitty 
on  Pleadings,  vol.  i,  488. 

5.  Bishop  V.  Baldwin,  14  Vt.  145  ; 
Chitty  on  Pleadings,  vol.  i,  488. 

6.  Selwyn  Nisi  Prius,  4  ;  Closson 
V.  Means,  40  Me.  337  ;  McPherson  v. 
McPherson,  11  Ired.  (N.  Car.)  391  ;  53 
Am.  Dec.  416  ;  Garrityz/.  Hamburger 
Co.,  136  111.  501  ;  Black.  Com.  vol.  3, 
162.  This  judgment  determines 
nothing  beyond  a  liability  to  account. 
Lee  V.  Abrams,  12  111.  iii  ;  Hawleyt/. 
Burd,  6  111.  App.  454  ;  Newbold  v. 
Sims,  2  S.  &  R.  (Pa.)  317. 

Form  of  Judgment. — The  following 
form  was  used  in  Godfrey  v.  Saun- 
ders, 3  Wilson  88:  "Therefore  it  is 
considered  that  the  defendant  account 
with  the  plaintiff  of  the  time  aforesaid 


86 


Account  Stated.     A  CCO  UJVTS  AND  A  CCO  UN  TING.     Account  Stated. 

Necessity  of  tliis  Judgment.— It  is  essentially  necessary  that  this  judg- 
ment should  be  entered.^ 

Opening.— A  judgment  qiiod  computet,  being  interlocutory,  is 
within  the  control  of  the  court,  and  may  be  opened  at  a  term 
after  it  was  rendered.* 

6.  Proceedings  before  the  Auditors.     See  References, 

7.  Final  Judgment  —  Upon  what  Based. — The  final  judgment  is 
based  upon  the  auditor's  report,  and  only  indirectly  upon  the 
declaration.^ 

Form.— The  final  judgment  is  that  the  plaintiff  do  recover 
so  much  as  the  auditors  have  found  is  due  him  from  defend- 
ant.-* 

II.  Account  Stated— 1.  Generally— Defined.— An  account  stated  is 
an  agreement  between  persons  who  have  had  previous  transac- 
tions, fixing  the  amount  due  in  respect  of  such  transactions  and 
promising  payment.' 

Inserting  Count.— At  common  law  it  was  always  advisable  in  all 
declarations  in  assumpsit  to  insert  a  count  on  an  account 
stated.* 


in  which  he  and  the  said  S.  S.  were 
the  bailiffs  of  the  plaintiff,  and  had 
the  care  and  administration  of  the 
aforesaid  goods  and  merchandises  to 
be  merchandised  and  made  profit  of  for 
plaintiff."  Where  an  order  is  entered 
"  that  the  defendant  do  account  with 
the  plaintiff,  and  that  the  plaintiff  do 
account  with  the  defendant,"  this  is 
virtually  a  judgment  quod  computet. 
Garrity  v.  Hamburger  Co.,  136  111.  500. 

1.  Selwyn  Nisi  Prius,  4. 

Contra. — McLean  v.  Wade,  53  Pa.  St. 
146  ;  but  this  was  by  virtue  of  a  stat- 
ute. Unless  the  pleadings  present  an 
issue  calling  for  such  a  judgment,  it  is 
not  necessary  before  sending  the  case 
to  auditors.  Spalding  z*.  Day,  37  Conn. 
428. 

2.  Kitchin  v.  Strawbridge,  4  Wash. 
(U.  S.)  81.  It  may  be  opened  for  the 
purpose  of  allowing  the  plaintiff  to 
amend  his  declaration.  Garrity  v. 
Hamburger  Co.,  136  111.  499  ;  but 
the  proceedings  were  in  assumpsit, 
and  the  amendment  made  it  an  action 
of  account.  See  also  Sweigart  v.  Low- 
marter,  14  S.  &  R.  (Pa.)  200;  Bredin 
V.  Dwen,  2  Watts  (Pa.)  95  ;  Lee  v. 
Abrams,  12  111.  iii. 

3.  Garrity  v.  Hamburger  Co.,  136 
111.  501. 

4.  Selwyn  Nisi  Prius,  6. 

Writ  of  Error. — A  writ  of  error  lies 
upon  this  last  judgment  only;  but  al- 
though it  be  found  erroneous  and  is 


reversed,  the  judgment  of  quod  com- 
putet stands  in  force,  for  the  two 
judgments  are  distinct.  Selwyn  Nisi 
Prius,  6. 

Affirmed  by  Appellate  Court. — Where 
the  final  judgment  of  the  trial  [court 
in  an  action  of  account  is  affirmed,  the 
judgment  of  the  appellate  court  is 
final,  both  in  respect  to  the  principal 
and  ultimate  facts  upon  which  the 
right  of  recovery  or  ground  of  de- 
fence is  claimed  or  based,  and  in  re- 
spect to  the  evidentiary  and  subordin- 
ate facts.  Garrity  v.  Hamburger  Co., 
136  111.  501. 

Execution. — "It  is  not  unworthy  of 
remark  that  this  action  [of  account]  is 
the  first  of  a  civil  nature  in  which  pro- 
cess of  execution  against  the  person 
was  given.  This  process  is  given  by 
Stat.  Westm.  3,  13  Edw.  I,  c.  II,  but 
under  this  act  the  guardian  in  socage 
cannot  be  committed  to  prison,  for  he 
is  in  loco  parentis,  and  the  words  of 
the  statute  are  de  serventibus  baliviis." 
Selwyn  Nisi  Prius,  6. 

5.  Zacarius  v.  Palotti,  49  Conn.  38. 
See  Toland  v.  Sprague,  12  Pet.  (U. 
S.)  335  ;  Am.  &  Eng.  Ency.  Law,  tit. 
Account  Stated. 

6.  Chitty  on  Pleadings,  vol.  i,  358. 
The  rules  of  Hil.  Term,  4  Wm.  IV,  ex- 
pressly allowed  this  count  to  be  joined 
with  any  other  count  for  a  money  de- 
mand. Chitty  on  Pleadings,  vol.  i, 
359- 


87 


AocoTint  Stated.     A  CCO  UN  TS  AND  ACCO  UN  TING.     Account  Stated. 

2.  Must  be  Declared  on  as  Such. — To  enable  one  to  recover  as 
upon  an  "  account  stated, "  he  must  declare  upon  it  as  such.* 

Complaint  not  to  be  Dismissed. — But  if  the  complaint  claims  to  recover 
a  balance  alleged  to  be  due  on  an  account  stated,  and  the  aver- 
ments fail  to  show  an  account  stated,  but  are  sufficient  to  show 
plaintiff  entitled  to  an  accounting  under  the  Codes,  the  complaint 
should  not  be  dismissed,  but  a  judgment  for  an  accounting  should 
be  rendered.''* 

Amendment. — It  is  within  the  discretion  of  the  court  to  allow  an 
amendment  of  the  complaint  which  will  make  the  action  one  of 
account  stated.^ 

3.  The  Complaint  or  Declaration — sufficient  Complaint. — A  complaint 
to  recover  on  an  account  stated  is  sufificient  under  the  Codes, 
though  it  be  as  general  in  its  allegations  of  the  particulars  of  the 
cause  of  action  as  the  old  form  of  a  declaration  in  assumpsit.* 

Allegations  of  Assent — The  defendant's  assent  to  the  settlement 
must  be  averred.* 


1.  McCormick  Harvesting  Mach. 
Co.  V.  Wilson,  39  Minn.  467  ;  Tru- 
man V.  Owens,  17  Oregon,  523;  North- 
ern Line  Packet  Co.  v.  Piatt,  22 
Minn.  413;  Bump  v.  Cooper,  20  Ore- 
gon 527. 

Exception. — An  exception  that  the 
court  erred  in  treating  the  action  as 
one  upon  an  account  stated  cannot 
apply  to  an  instruction  that  the  plain- 
tiff's action  rests  not  merely  upon  an 
account  stated,  but  upon  an  express 
promise  to  pay  the  balance  ;  but  such 
exception  operates  as  a  waiver  of 
any  error  therein.  Hawley  v.  Har- 
ran,  79  Wis.  379. 

2.  Emery  v.  Pease,  20  N.  Y.  62. 
If  the  original  pleading  relies  on  the 
original  transactions  or  the  items  in- 
cluded in  the  account,  they  are  open 
to  proofs  by  the  other  party.  McCor- 
mick Harvesting  Mach.  Co.  v.  Wilson, 
39  Minn.  467;  Northern  Line  Packet 
Co.  V.  Piatt,  22  Minn.  413  ;  Sichel  v. 
Davies  (Supreme  Ct.),  15  N.  Y.  St.  Rep. 
317  ;  Zent  v.  Watts  (Supreme  Ct.),  i 
N.  Y.  Supp.  702.  See  Blewett  v. 
Gaynor,  77  Wis  378,  where  the  ac- 
tion was  held  not  to  be  merely  an  ac- 
tion upon  an  account  stated,  and  yet 
the  plaintiff  was  allowed  to  recover. 

Contra. — But  where  the  pleading  is 
so  framed  as  to  show  that  the  plaintiff 
relies  solely  on  an  account  stated,  he 
may  not  fall  back  on  the  accounts. 
Goings  V.  Patten,  i    Daly  (N.  Y.)  168. 

3.  Assent. — The  complaint  may  be 
amended   by  inserting  the  necessary 


allegation    of    assent    by    defendant. 
Volkening  v.  De  Graaf,  81  N.Y.  268. 

Parties. — There  may  be  an  amend- 
ment dismissing  one  defendant  and 
adding  new  causes  of  action  against 
the  other.     Oden  v.  Bonner,  93  Ala. 

393- 

4.  Cudlipp  z;. Whipple,  4  Duer  (N.Y.) 
610. 

The  Form. — The  following  is  an  ap- 
proved form:  "A.  B.,  by  C.  D.  his 
attorney,  sues  E.  F.  for  money  payable 
by  the  defendant  to  the  plaintiff  for 
money  found  to  be  due  from  the  de- 
fendant to  the  plaintiff  on  accounts 
stated  between  theml"  Chitty  on 
Pleadings  (i6th  Am.  ed.),  vol.  2,  34. 
And  see  McFarland  v.  Cutter,  i  Mont. 
383;  Heimrich  v.  England,  34  Minn. 
395;  and  Bouslog  v.  Garrett,  39  Ind. 
338,  where  the  complaints  were  held 
to  state  a  cause  of  action.  But  a  mere 
allegation  that  the  plaintiff  and  the 
defendant  "  have  had  accountings  and 
settlements  "  is  not  an  averment  of  an 
account  stated.  Ward  v.  Farrelly,  9 
Mo.  App.  370. 

Texas. — In  Texas,  when  the  plaintiff 
relies  upon  a  parol  settlement  of  ac- 
counts, he  must  set  forth  the  original 
accounts.  Neyland  v.  Neyland,  19  Tex. 
433;  Pridgen  v.  Hill,  12  Tex.  374. 

5.  Van  Blarcom  v.  Donovan,  16  Mo. 
App.  535- 

Insufficient  Averment. — An  averment 
that  one  party  made  a  statement  of  an 
account,  and  delivered  it  to  the  other 
party,  who  made  no  objection  to  it,  is 


88 


-Account  Stated.      A  CCO  UNTS  AND  A  CCO  UN  TING.     Account  Stated. 

Allegations  of  Breach. — The  allegations  of  breach  are  not  techni- 
cally construed.  The  courts  will  draw  the  inference  of  breach 
from  any  equivalent  expressions.* 

Bill  of  Particulars. — No  bill  of  particulars  need  be  filed.^ 

4.  The  Answer  or  Plea — Defence  must  be  Pleaded. — Any  defense  not 
admissible  under  a  general  denial  must  be  pleaded.* 

Error  and  Mistake — The  defense  of  error  or  mistake  must  be  spe- 
cially pleaded.'* 

Fraud. — But  where  the  evidence  shows  that  an  account  stated  is 
fraudulent,  the  account  may  be  inquired  into  though  not  sur- 
charged or  falsified  in  the  pleading  of  the  party  questioning  it.* 

Prematurely  Brought.— The  defense  that  the  action  is  brought  before 
the  account  was  fully  stated  must  be  specially  pleaded.* 

Denial  and  Non- Assumpsit.— Under  a  plea  of  non-assumpsit  the  de- 
fendant may  show  that  the  accounts  which  form  the  basis  of  the 
account  stated  are  incorrect.''  But  under  the  Codes  the  defend- 
ant, under  a  denial  of  an  account  stated,  cannot  be  permitted  to 
attack  the  correctness  of  the  items  of  which  the  account  settled 
is  composed.®     Under  a  general  denial  the  defendant  has  a  right 


not  sufficient.  Emery  v.  Pease,  20  N.Y. 
62;  St.  Louis  Lager  Beer  Bottling  Co. 
V.  Colorado  Nat.  Bank,  8  Colo.  70. 

1.  The  allegation  that  an  account 
was  stated  between  the  plaintiff  and 
defendant,  "and  upon  such  statement 
a  balance  of  $19,702  was  found  to  be 
due  from  the  defendant  to  the  plain- 
tiff," is  a  sufficient  charge  that  there 
was  a  breach  of  contract.  Johnston 
V.  Ferris  (C.  PI.),  12  N.  Y.  St.  Rep.  666. 
A  sufficient  allegation  of  breach  at 
common  law  was  :  "  The  defendant 
hath  not  paid  any  of  said  moneys,  or 
any  part  thereof."  Debenham  w.  Cham- 
bers, 3  M.  &  W.  128. 

2.  Salem  Gravel  Road  Co.  v.  Pen- 
nington, 62  Ind.  175;  Auzerais  v.  Nag- 
lee,  74  Cal.  60. 

Electing  to  File. — The  plaintiff  may 
elect  to  file  a  bill  of  particulars.  Rund- 
lett  V.  Weeber,  3  Gray  (Mass.)  267. 

3.  Hendy  v.  March,  75  Cal.  566  ; 
Barker  v.  Hoff,  52  How.  Pr.  (N.Y.  Su- 
preme Ct.)  382  ;  Anthony  v.  Day,  52 
How.  Pr.  (N.  Y.  Supreme  Ct.)  35  ; 
Weeks  v.  Hoyt,  5  Hun  (N.Y.)  347;  Zel- 
ler  V.  Sommer,  132  Pa.  St.  33;  St.  Louis 
Lager  Beer  Bottling  Co.  v.  Colorado 
Nat.  Bank,  8  Colo.  70;  Barker  v.  Hoff, 
52  How  Pr.  (N.  Y.  Supreme  Ct.)  382; 
Beach  v.  Kidder  (Supreme  Ct.),  8  N.  Y. 
Supp.  587;  Dunbar  v.  Johnson,  108 
Mass.  519.  And  the  evidence  is  con- 
fined to  the  issue  made  by  the  plead- 
ings.   Hawley  v.  Harran,  79  Wis.  379. 


4.  Hendy  v.  March,  75  Cal.  566;  Bar- 
ker V.  Hoff,  52  How.  Pr.  (N.  Y.  Supreme 
Ct.)  382;  Anthony  v.  Day,  52  How.  Pr. 
(N.Y.  Supreme  Ct.)  35;  Weeks  v.  Hoyt, 
51  Hun  (N.  Y.)  347;  St.  Louis  Lager 
Beer  Bottling  Co.  v.  Colorado  Nat. 
Bank,  8  Colo.  70.  See  Sichel  v.  Davies 
(Supreme  Ct.),  15  N.Y.  St.  Rep.  317. 

Mistake  Appearing. — Though  the  mis- 
take appear  in  the  evidence  and  is  re- 
lied on  by  the  defendant,  yet  if  no  such 
issue  is  made  by  the  pleadings,  a  non- 
suit should  be  granted.  Beach  v.  Kid- 
der (Supreme  Ct.),  8  N.  Y.  Supp.  587. 

Sufficient  Form. — It  is  sufficient  to 
allege  that  an  investigation  showed 
an  indebtedness  to  the  defendant,  setr 
ting  forth  the  items  from  which  the. 
error  in  the  account  arose.  Zeller  v. 
Sommer,  132  Pa.  St.  33. 

5.  Liscomb  v.  Agate,  67  Hun  (N.  Y.) 
3S8. 

6.  Baird  v.  Crank,  98  Cal.  293. 
But  where  the  answer  sets  up  this 
defense,  it  is  available  though  the 
answer  is  not  verified.  Johnston  v. 
Johnson,  44  Kan.  666. 

7.  Thomas  v.  Hawkes,  8  M.  &  W. 
140.  The  denial  of  an  account  stated 
was  in  the  form  of  non-assumpsit ;  the 
plea  of  "never  indebted"  could  not 
be  made  at  common  law.  Jacobs  v. 
Fisher,  i  C.  B.  178  ;  50  E.  C.  L.  177. 

8.  Warner  v.  Myrick,  16  Minn.  91  ; 
Moody  V.  Thwing,  46  Minn.  511. 
Contra. — Errors  may  be   shown   under 


89 


Actions  on 


A  ceo  UNTS  AND  ACCO  UN  TING. 


Accounts. 


to  give  any  evidence  which  shows  that  there  is  actually  no  ac- 
count between  him  and  the  plaintiff,  and  that  he  has  had  no  deal- 
ings at  any  time  with  him.* 

III.  Actions  on  Accounts— 1.  Particularity.— A  complaint  on  an 
account  should  identify  and  describe  the  claim  with  reasonable 
particularity.* 

Copy  of  Account. — If  the  account  consists  of  several  items,  a  copy 
thereof  should  be  filed  in  the  action.^ 

2.  Statutory  Provisions. — Statutes  have  been  passed  in  most  of 
the  states  dealing  with  the  subject  of  actions  on  accounts.  The 
most  usual  form  of  such  statutes  is  that  which  prescribes  that  it 
is  not  necessary  for  a  party  to  set  forth  in  a  pleading  the  items  of 
an  account  therein  alleged ;  but  in  that  case  he  must  deliver  to 
the  adverse  party  within  a  certain  time  a  bill  of  particulars."* 

3.  Pleading  by  Copy. — The  statute  sometimes  takes  the  form  of 
allowing  an  action,  counter-claim,  or  set-off  founded  upon  an 
account  to  be  brought  by  simply  setting  forth  a  copy  of  the 
account,  with  all  credits  thereon,  and  stating  that  there  is  due  on 
such  account  a  specified  sum.* 

When  it  may  be  Adopted. — An  action  may  be  brought  under  the 
above  form  of  statute,  although  there  was  a  special  contract,  if 
it  has  been  fully  performed,  or  if  the  additions  or  modifications 
have  been  sanctioned  by  the  defendant.® 


a  general  denial.     Bouslog  v.  Garrett, 
39  Ind.  378. 

1.  Field  V.  Knapp,  io8  N.  Y.  87. 

2.  Bay  v.  Saulspaugh,  74  Ind.  397  ; 
Love  V.  Doak,  5  Tex.  343  ;  Wilkinson 
V.  Thuelemeyer,  44  Tex.  470.  And  in  an 
action  on  an  account  the  answer  must 
be  particular  in  stating  the  defence. 
Savage  v.  Aiken,  21  Neb.  605.  The 
items  of  an  account  relied  on  must  be 
stated  or  filed  under  the  rules  of  plead- 
ing which  apply  to  the  court  in  which 
the  suit  is  instituted.  Smith  v.  Mc- 
Gehee,  i  Tex.  App.  Civ.  Cas.  §  940. 

Sufficient  Particularity. — In  a  peti- 
tion on  an  open  account  an  allegation 
of  contract  in  writing  to  pay  the  debt 
at  a  particular  place  is  sufficient,  with- 
out setting  out  the  contract.  Whit- 
taker  V.  Wallace,  2  Tex.  App.  Civ. 
Cas.  §  558.  Nor  is  it  necessary  to 
specify  the  articles,  in  an  action  on 
account  for  merchandise  sold  and  de- 
livered.    Freas  v.  Truitt,  2  Colo.  489. 

3.  Biddle  v.  Reed,  33  Ind.  329  ; 
Wolf  V.  Schofield,  38  Ind.  175  ;  Jones 
V.  Dronberger,  15  Ind.  443. 

Itemized. — The  account  should  be 
itemized.  Gulick  v.  Fortson,  i  Tex. 
App.  Civ.  Cas.  §425  ;  Bremond  v.  See- 
ligson,   I    Tex.  App.  Civ.   Cas.  §  636. 


Several  items  of  an  account  may  be 
joined  in  one  paragraph.  Gaff  v. 
Hutchinson,  38  Ind.  341.  And  it  is 
not  necessary  that  the  plaintiff  should 
prove  each  item  of  charge,  if  the  cor- 
rectness of  the  account  is  otherwise 
established.  Pryor  v.  Johnson,  32 
Ala.  27  ;  Gaunt  v.  Tucker,  18  Ala.  27  ; 
Johnson  z/  Kelly,  2  Stew.  (Ala.)  490; 
Holmes  v.  Gayle,  i  Ala.  517  ;  Ohio 
Creek  Coal  Co.  v.  Hinds,  15  Colo.  173. 
As  to  the  necessity  of  setting  out  an 
account,  and  as  to  its  effect,  etc.,  see 
Bryant  v.  Harris  Co.,  70  Miss.  683  ; 
Buehler  v.  Reed,  11  Iowa  182  ;  Semmes 
V.  Lee,  3  Cranch  (C.  C.)  439  ;  Lovejoy 
V.  Wilson,  I  Cranch  (C.  C.)  102.  The 
practice  of  furnishing  a  bill  of  particu- 
lars of  the  items  of  an  account  is 
treated  of  under  the  article  Bills  of 
Particulars. 

4.  See  ^  531  N'e7o  York  Code  Civil 
Procedure.  For  the  law  upon  such 
forms  of  statutes,  see  the  article 
Bill  of  Particulars. 

6.   See  Rev.  Sts.  Ohio,  §  5086. 

6.  Cincinnati  v.  Cameron,  33  Ohio 
St.  357- 

What  Constitutes  an  "Account." — To 
constitute  an  account  within  the  mean- 
ing of  such  statute,  it  is  not  necessary 


90 


Actions  on 


ACCO  UNTS  AND  ACCO  UN  TING. 


Accounts. 


Account  must  be  Specific. — The  account  annexed  must  be  specific. 
It  should  contain  the  particulars  of  the- claim,  as  well  as  the  de- 
scription and  price  of  the  goods ;  the  same  strictness  is  required 
as  would  be  necessary  under  the  old  practice  in  furnishing  a  bill 
of  particulars.* 

Allegation  that  Amount  is  "Due." — The  allegation  in  the  petition  of 
the  amount  due  on  the  account,  after  deducting  all  credits  thereon, 
is  a  material  one.* 

Remedies  for  Defective  Accounts. — If  an  account  on  which  the  plaintiff 
seeks  to  recover  is  attached  to  and  made  a  part  of  the  complaint, 
an  objection  that  it  is  unintelligible  can  only  be  raised  by 
demurrer.* 

4.  Probated  Accounts — Generally. — Some  states  allow  an  account 
coming  from  another  county  or  state  to  be  sued  on,  and  its  veri- 
fication by  affidavit  is  conclusive  unless  the  account  is  denied 
under  oath.  This  mode  of  procedure  is  adopted  to  expedite  the 
collection  of  claims  to  which  there  is  no  defence.  It  is  a  step 
toward  recognizing  the  distinction  between  litigious  claims  and 
those  debts  to  which  there  is  no  real  defence.* 

Meaning  of  "Account." — By  an   "account"   is  meant    such  in  its 


that  the  items  be  entered  in  an  account- 
book,  provided  they  are  such  as 
usually  form  the  subject  of  book  ac- 
counts. Black  V.  Chesser,  12  Ohio 
St.  621.  See  Boston,  etc.,  Iron  Works 
V.  Montague,  135  Mass.  319  ;  Smith  v. 
Weed  Sewing  Mach.  Co.,  26  Ohio  St. 
562.  But  a  petition  is  good  as  against 
a  general  demurrer  when  the  account 
consists  of  one  or  more  items  which 
are  the  proper  subjects  of  a  book  ac- 
count, and  of  other  cash  items  which 
are  not  ordinarily  the  subjects  of  such 
account.  McKemy  v.  Goodall,  i  Ohio 
Cir.  Ct.  23.  See  Dudley  v.  Geauger 
Iron  Co.,  13  Ohio  St.  169. 

Counter-claim  — A  counter-claim  may 
be  based  on  any  items  of  an  account. 
Roots  V.  Nye,  2  Handy  (Ohio)  230. 

1.  Goodheart  v.  Powers,  i  Handy 
(Ohio)  559. 

What  is  Sufficient. — But  it  is  a  suf- 
ficient giving  of  an  account  to  set 
down  in  writing  in  the  form  of  an 
account  the  items  thereof,  without 
having  previously  made  any  entries  in 
the  account-book.  Black  v.  Chesser, 
12  Ohio  St.  626.  See  Ralston  z/.  Kohl, 
30  Ohio  St.  92. 

2.  It  is  not  an  allegation  of  value 
or  damage  ;  it  must  be  controverted 
by  the  answer  or  else  the  court  may 
render  judgment  for  the  amount 
claimed  without  proof.  Dallas  v. 
Ferneau,  25  Ohio  St.  635. 


Word  "Indebted."  —  Alleging  that 
the  defendant  is  "indebted,"  instead 
of  that  there  is  "due,"  is  bad  on 
demurrer.  Archer  v.  Moore  Co.,  11 
Cinn.  L.  Bull.  (Ohio)  224.  See  also  Beck 
V.  Ball,  I  Clev.  Rep.  (Ohio)  147;  Higdon 
V.  Gardner,  2  Ohio  Cir.  Ct.  Rep.  340. 

3.  Goldsmith  v.  Sawyer,  46  Cal.  209. 
Failure  to  Attach  Copy. — Failure  to 

attach  a  copy  of  an  account  is  ground 
for  demurrer.  O'Brien  v.  Chicago 
Co.,  64  Iowa  411.  The  copy  must  be 
attached  no  matter  how  simple  the 
account  may  be.  Winters  v.  Page 
County,  70  Iowa  300. 

Only  a  Few  Items  Defective. — But  de- 
murrer to  all  the  items  of  an  account, 
when  some  of  them  are  properly  the 
subject  of  a  book  account  and  some 
not,  is  not  the  proper  remedy.  The 
demurrer  should  be  to  the  objection- 
able items.  McKemy  v.  Goodall,  12 
Cinn.  L.  Bull.  (Ohio)  295. 

Motion. — Some  authorities  hold  that 
the  proper  remedy  for  a  defective  ac- 
count is  a  motion  that  the  same  be 
made  more  specific  or  definite.  Flan- 
ders V.  Ish,  2  Oregon  320;  McKemy 
V.  Goodall,  I  Ohio  Cir.  Ct.  Rep.  23. 

Demanding  Bill  of  Particulars. — It  has 
also  been  held  that  the  remedy  for  an 
imperfect  account  is  to  demand  a  bill 
of  particulars.  Gibson  v.  Ohio  Farina. 
Co.,  2  Disney  (Ohio)  497. 

4.  See  §  4529  Code  Tennessee. 


91 


Actions  on 


ACCO  UA^TS  AND  ACCO  UN  TING. 


Accounts. 


popular  and  not  technical  sense,  and  the  word  applies  to 
transactions  between  persons  in  which,  by  sale  upon  the  one  side 
and  purchase  upon  the  other,  the  title  to  personal  property  is 
passed  from  the  one  to  the  other,  and  the  relation  of  debtor  and 
creditor  is  thereby  created  by  general  course  of  dealing.^ 

Petition  or  Declaration.— A  svvorn  account  attached  as  an  exhibit  to 
a  petition  does  not  relieve  the  pleader  from  making  all  the  neces- 
sary allegations  of  delivery  and  price  under  the  contract  of  which 
the  exhibit  might  be  the  evidence.  The  petition  in  itself  should 
contain  these  averments,  stated  in  such  direct  and  explicit  man- 
ner as  to  show  a  clear  cause  of  action,  without  reference  to  the  ac- 
count.'^ 

How  Issue  Made  up.— An  account  from  another  county  or  state  may 
be  probated  and  sued  on  to  any  amount ;  and  a  denial  by  defend- 
ant on  oath  makes  up  an  issue  and  puts  the  plaintiff  to  prove  the 
account.^ 

The  Affidavit. — As  the  practice  of  suing  on  probated  accounts  is  in 
derogation  of  the  common  law,  the  statute  is  construed  strictly. 
The  omission  in  the  affidavit  of  any  of  the  material  averments 
prescribed  by  the  statute  is  fatal  to  it  for  the  purposes  of  proof.* 


1.  Texas,  etc.,  R.  Co.  v.  Smith,  2 
Tex.  App.  Civ.  Cas.  §  51;  Galveston, 
etc.,  R.  Co.  V.  Schwartz,  2  Tex.  App. 
Civ.  Cas.  §  758. 

Book  Accounts. — In  Iowa  the  statute 
only  allows  the  action  to  be  for  items 
of  account  properly  provable  by  books 
of  original  entries.  Lyman  v.  Bech- 
tel,  55  Iowa  437. 

Torts. — The  statute  applies  only  to 
matters  of  account  and  not  to  torts. 
A  claim  against  a  common  carrier  for 
failure  to  deliver  goods  cannot  be 
the  subject  of  a  probated  account. 
"Western,  etc.,  R.  Co.  v.  Mead,  4  Sneed 
{Tenn.)  107;  Briggs  v.  Montgomery,  3 
Heisk.  (Tenn.)  677. 

Texas. — In  an  action  for  postdating 
items  of  an  account  (Hart.  Tex.  Dig. 
art.  2380),  the  petition  should  allege 
that  defendant  was  a  merchant  or  a 
trader.    Watson  v.  Loop,  12  Tex.  11. 

2.  Hemming  v.  McRea,  i  Tex.  App. 
Civ.  Cas.  g  752. 

Must  State  Account  is  Probated. — The 
declaration  must  state  that  the  account 
is  a  probated  one,  and  make  profert  of 
same.  Otherwise  the  defendant  need 
not  deny  it  under  oath.  Hunter  z*.  An- 
derson, I  Heisk.  (Tenn.)  i  ;  Wilkhorn 
V.  Gillespie,  6  Heisk.  (Tenn.)  329.  But 
permitting  the  account  to  be  read  to 
the  jury  is  a  waiver  of  the  right  to  ex- 
cept for  failure  to  make  profert  in  the 
declaration.  App  v.  Tiernan,  10 
Heisk.  (Tenn.)  45. 


Supplemental  Petition. — The  filing  a 
supplemental  petition  which  in  effect 
but  reiterates  the  original  does  not 
obviate  the  effect  which  the  defend- 
ant's denial  under  oath  has  on  the 
account.  Olive  v.  Hester,  63  Tex. 
190. 

Insufficient  Verification. — If  the  veri- 
fication of  the  account  is  defective, 
the  defect  goes  to  the  evidence,  and  is 
not  ground  of  demurrer  to  the  com- 
plaint. Elyton  Land  Co.  v.  Morgan, 
88  Ala.  434. 

3.  Cave  v.  Baskett,  3  Humph. 
(Tenn.)  340;  Briggs  v.  Montgomery, 
3  Heisk.  (Tenn.)  676;  Brien  v.  Peter- 
man,  3  Head  (Tenn.)  498  ;  Hunter  v. 
Anderson,  i  Heisk.  (Tenn.)  3. 

4.  McHugh  V.  Butler,  39  Mich.  145  ; 
Locke  V.  Farley,  41  Mich.  405  ;  Gor- 
don V.  Sibley,  59  Mich.  280  ;  Shandy  v, 
Courales,  i  Tex.  App.  Civ.  Cas.  §  235. 

Allegation  of  "Due." — The  allega- 
tion that  the  account  is  "  due  "  is  ma- 
terial. Shaunnessy  v.  Gierse,  i  Tex. 
App.  Civ.  Cas.  §  379 ;  McGowan  v. 
Lamb,  66  Mich.  615  ;  Duer  v.  Endres, 
I  Tex.  App.  Civ.  Cas.  §  322.  Where 
the  affidavit  stated  that  "  the  several 
items  of  said  account  respectively 
mature  as  there  stated,"  this  was  held 
to  be  defective,  and  not  the  equivalent 
of  "  due."  Shaunnessy  v.  Gierse,  i 
Tex.  App.  Civ.  Cas.  §  379.  But  an  affi- 
davit that  the  "annexed  account  is 
just,   due,   and  unpaid  "  substantially 


92 


Accounting  in        A  CCO  UN  TS  AND  A  CCO  UN  TING. 


Eqoityw 


What  Defence  can  be  Made.— The  statute  on  probated  accounts  does 
not  cut  off  all  defences  unless  the  account  is  denied  under  oath. 
Any  defence  can  be  made  to  a  probated  account,  without  denying 
it  under  oath,  that  can  be  made  to  a  note,  under  a  plea  of  7iil 
debet > 

IV.  Accounting  in  Equity— 1.  Equity  Jurisdiction  in  Cases  of  Ac- 
counts— a.  What  Must  be  Alleged. — A  general  allegation  that 
the  accounts  are  of  an  intricate  nature  is  insufficient  to  entitle  the 
plaintiff  to  maintain  a  bill  for  an  account;  such  allegation  must  be 
supported  by  specific  statements  of  facts  showing  the  intricate  and 
complex  nature  of  the  accounts.* 

b.  Basis  and  Extent  of  Jurisdiction. — The  basis  and 
extent  of  the  equitable  jurisdiction  over  matters  of  account  ap- 
pears to  have  been  seldom  considered  in  the  American  courts, 
but  is  often  discussed  in  the  English  authorities.*  The  best  con- 
sidered authorities  put  the  equitable  jurisdiction  upon  three 
grounds,  to  wit :  the  complicated  character  of  the  accounts  ;  the 
need  of  a  discovery ;  and  the  existence  of  a  fiduciary  or  trust  re- 
lation.* 


complies  with  a  statute  requiring  the 
affidavit  to  set  out  that  the  account 
"  is  justly  owing  and  due."  McGowan 
V.  Lamb,  66 "Mich.  615. 

Failure  to  Object. — A  party  failing  to 
object  to  the  verification  of  an  account 
within  a  reasonable  time  should  not 
afterwards  be  heard  in  opposing  it. 
Robbins  v.  Benson,  11  Oregon  514. 
And  taking  issue  may  be  a  waiver  of 
the  necessity  of  the  oath.  Loeb  v. 
Munn,  4  Heisk.  (Tenn.)  449.  See 
Brown  v.  Stabler,  i  Heisk.  (Tenn.) 
444. 

Besting  Case  on  Defective  Affidavit. — 
If  the  plaintiff  rests  his  case  on  an  in- 
effectual affidavit,  he  cannot,  after  the 
defence  has  rested,  go  back  and  prove 
his  demand  in  the  ordinary  way  as 
matter  of  right.  McHugh  v.  Butler, 
39  Mich.  185.  But  where  defendant, 
without  being  misled,  allows  an  ir- 
regular affidavit  to  be  introduced  with- 
out objection,  he  cannot,  after  the 
proofs  are  closed,  object  for  the  first 
time  that  it  proves  nothing.  Locke  v. 
Farley,  41  Mich.  405. 

New  Affidavit. — A  party  cannot  by  a 
new  and  ex  parte  affidavit  correct  a 
mistake  in  not  indorsing  on  the  sum- 
mons and  complaint  the  fact  that  the 
account  is  verified.  Gainer  v.  Pol- 
lock, 96  Ala.  554. 

Counter-Affidavit. — Where  a  verified 
account  is  sued  on  in  a  justice's  court, 
the  defendant  has  a  right  to  file  a 
counter-affidavit  for  the  first  time  on 


appeal  in  the  county  court.  Texas, 
etc.,  R.  Co.  V.  Norton,  i  Tex.  App. 
Civ.  Cas.  §  403. 

1.  Briggs  V.  Montgomery,  3  Heisk. 
(Tenn.)  677.  See  McCamant  v.  Bat- 
sell,  59  Tex.  363  ;  Cahn  v.  Salinas,  2 
Tex.  App.  Civ.  Cas.  §  104. 

Partnership. — Where  one  is  sued  as 
silent  partner  on  a  probated  account, 
the  partnership  must  be  proved, 
whether  the  account  is  denied  under 
oath  or  not.  Trundle  v.  Edwards,  4. 
Sneed  (Tenn.)  573. 

2.  Daniell  Ch.  PI.  &  Pr.  vol.  3, 
1929  ;  Padwick  v.  Hurst,  23  L.  J.  Ch. 
657  ;  Phillips  V.  Phillips,  9  Hare  471  ; 
Foley  V.  Hill,  i  Ph.  398  ;  Fluker  v. 
Taylor,  3  Drew  183  ;  Leake  v.  Cor- 
deaux,  4  W.  R.  806 ;  McMahon  v. 
Burchell,  2  Ph.  127  ;  Bartlett  v.  Parks, 
I  Cush.  (Mass.)  82. 

3.  Phillips  V.  Phillips,  9  Hare  471  ; 
Dinwiddle  v.  Bailey,  6  Ves.  139  ;  Mac- 
kenzie V.  Johnston,  4  Madd.  374  ;  King 
V.  Rossett,  2  Y.  &  J.  33  ;  Massey  v. 
Banner,  4  Madd.  416 ;  Padwick  v. 
Hurst,  18  Beav.  575  ;  Navulshaw  v. 
Brownrigg,  2  De  G.,  M.,  &  G.  241  ; 
Makepeace  v.  Rogers,  11  Jur.  N.  S". 
215  ;  Barry  v.  Stevens,  37  Beav.  258  ; 
Foley  V.  Hill,  2  H.  L.  Cas.  28  ;  Moxon 
V.  Bright,  L.  R.  4  Ch.  Cas.  292. 

4.  Allison  V.  Herring,  9  Sim.  583  ;, 
Pike  V.  Dickenson,  L.  R.  7  Ch.  61  ; 
Foley  V.  Hill,  2  H.  L.  Cas.  28  ;  Smith 
V.  Leveaux,  2  De  G.,  J.,  &  S.  i  ;  South 
Eastern  R.  Co.  v.  Brogden,  3  Mac.  &. 


9Z 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING, 


Equity. 


Tinder  Codes. — But  the  necessity  for  a  resort  to  equity  because  of 
the  compHcated  character  of  the  accounts  and  the  need  of  a  dis- 
covery is  in  some  states  very  slight  since  the  adoption  of  Codes 
of  Procedure,  since  a  court  of  law  can  send  to  a  referee  a  long 
account,  too  complicated  for  the  handling  of  a  jury,  and  furnishes 
by  an  examination  of  the  adverse  party  before  trial,  and  the 
production  and  deposit  of  books  and  papers,  almost  as  com- 
plete a  means  of  discovery  as  could  be  furnished  by  a  court  of 
equity,*  But  the  jurisdiction  of  the  latter  court  over  trusts 
and  those  fiduciary  relations  which  partake  of  that  character  re- 
mains, and  in  such  cases  the  right  to  an  accounting  seems  well 
established.* 

c.  Mutual  Accounts. — To  sustain  a  bill  for  an  account  there 
must  be  mutual  demands,  and  not  merely  payments  by  way  of 
set-off.  A  single  matter  cannot  be  the  subject  of  an  account. 
There  must  be  a  series  of  transactions  on  one  side  and  of  pay- 
ments on  the  other.* 


G.  23  ;  O'Connor  v.  Spaight,  i  Sch.  & 
Lef.  305  ;  Dinwiddie  v.  Bailey,  6  Ves. 
136  ;  Bliss  V.  Smith,  34  Beav.  508  ; 
Great  Western  Ins.  Co.  v.  Cunliffe,  L. 
R.  9  Ch.  525  ;  North  Eastern  R.  Co.  v. 
Martin,  2  Ph.  758  ;  Ranger  v.  Great, 
etc. ,  R.  Co. ,  5  H.  L.  Cas.  91 ;  Mitchell  v. 
Great  Works  Milling,  etc.,  Co.,  2  Story 
(U.  S.)  648  ;  Dubourg  de  St.  Colombe 
V.  U.  S.,  7  Pet.  (U.  S.)  25  ;  Fowle  v. 
Lawrason,  5  Pet.  (U.  S.)  502  ;  Kirk- 
man  r*.  Van  Lier,  7  Ala.  217;  Robin- 
son V.  Bullock,  58  Ala.  618  ;  Avery  v. 
Ware,  58  Ala.  479  ;  Bruce  v.  Burdet,  i 
J.  J.  Marsh.  (Ky.)  80  ;"  Power  v. 
Reeder,  9  Dana  (Ky.)  6  ;  Seymour  v. 
Long  Dock  Co.,  20  N.  J.  Eq.  407  ;  Nes- 
bit  V.  St.  Patrick's  Church,  9  N.  J.  Eq. 
76  ;  Wilson  v.  Mallet,  4  Sandf.  (N.  Y.) 
112  ;  Ludlow  V.  Simond,  2  Cai.  Cas. 
(N.  Y.)  I  ;  Post  V.  Kimberly,  9  Johns. 
(N.  Y.)  470  ;  Long  v.  Majestre,  i  Johns. 
Ch.  (N,  Y.)  305  ;  Lynch  v.  Willard,  6 
Johns.  Ch.  (N.  Y.)  342  ;  Marvin  v. 
Brooks,  94  N.  Y.  80 ;  Jones  v.  Bul- 
lock, 2  Dev.  Eq.  (N.  Car.)  368  ; 
Grubb's  Appeal,  90  Pa.  St.  228  ;  Pas- 
syunk  B'ld'g  Assoc. 's  Appeal,  83  Pa. 
St.  441  ;  Frisbee's  Appeal,  88  Pa.  St. 
146  ;  U.  S.  Bank  v.  Biddle,  2  Pars. 
Eq.  Cas.  (Pa.)  31  ;  Kerr  v.  Camden 
Steamboat  Co.,  i  Cheves  Eq.  (S.  Car.) 
189  ;  Nelson  v.  Allen,  i  Yerg.  (Tenn.) 
360;  Hay  V.  Marshall,  3  Humph. (Tenn.) 
623  ;  Hickman  v.  Stout,  2  Leigh 
(Va.)6. 

"  The  principle  upon  which  courts  of 
equity  originally  entertained  suits  for 
an  account,  where  the  party  had  a 
legal  title,   is,   that  though  he  might 


support  a  suit  at  law,  a  court  of  law 
either  cannot  give  a  remedy,  or  can- 
not give  so  complete  a  remedy  as  a 
court  of  equity  ;  andby  degrees  courts 
of  equity  assumed  a  concurrent  juris- 
diction in  cases  of  account ;  for  it  can- 
not be  maintained  that  this  court  in- 
terferes only  when  no  remedy  can  be 
had  at  law."  Per  the  Lord  Chancel- 
lor in  Carlisle  v.  Wilson,    13  Ves.   278. 

But  that  courts  of  law  and  equity 
have  concurrent  jurisdiction  in  all 
matters  of  accounts,  see  Chap- 
man V.  Koops,  3  B.  &  B.  289  ;  Fowle 
V.  Lawrason,  5  Pet.  (U.  S.)  495  ; 
Power  V.  Reeder,  9  Dana  (Ky.)  10; 
Breckenridge  v.  Brooks,  2  A.  K. 
Marsh.  (Ky.)  338;  King  v.  Balwin,  17 
Johns.  (N.  Y.)  384;  Duncan  v.  Lyon,  3 
Johns.  Ch.  (N.  Y.)  361  ;  Post  v.  Kim- 
berly, 9  Johns.  (N.  Y. )  483  ;  Hawley  v. 
Cramer,  4  Cow.  (N.  Y.)  717  ;  Ludlow 
V.  Simond,  2  Cai.  Cas.  (N.  Y.)  i  ; 
Martin  v.  Spier,  i  Hayw.  (N.  Car.) 
371  ;  Cummins  v.  White,  4  Blackf. 
(Ind.)  356  ;  Stothart  v.  Burnet,  Cooke 
(Tenn.)  417,  But  that  they  will  exer- 
cise a  sound  discretion  in  decreeing  or 
refusing  an  account,  see  Hickman  v. 
Stout,  2  Leigh  (Va.)  6. 

Story  places  the  jurisdiction  of 
equity  over  accounts  upon  the  ground 
that  the  chancery  machinery  is  better 
adapted  to  the  purpose  of  an  account 
in  general,  i  Story  Eq.  Jur.  §  465. 
See    Dyckman   v.   Valiente,   42  N.  Y. 

549- 

1.  Marvin  v.  Brooks,  94  N.  Y.  80. 

2.  Marvin  v.  Brooks,  94  N.  Y.  80. 

3.  Kennington    v.   Houghton,    2  Y. 


94 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING. 


Equity. 


d.  COxMPLICATED  ACCOUNTS. — Judges  in  the  English  equity- 
courts  have  been  somewhat  slow  to  maintain  jurisdiction  in  a  case 
where  the  ground  thereof  was  solely  that  the  account  was  compli- 
cated ;  and  although  there  are  very  many  cases  in  which  the  state- 
ment has  been  made  that  equity  would  sometimes  take  jurisdiction 
on  that  account,  yet  in  most  of  them  it  is  seen  that  there  were  also 
other  grounds  making  it  proper  for  equity  to  assume  cognizance 
of  the  cases.*  Whether  or  not  a  court  of  equity  will  take  juris- 
diction upon  the  sole  ground  of  the  account  being  complicated  is 
a  matter  largely  within  the  discretion  of  the  court.* 

If,  after  giving  due  effect  to  all  the  circumstances,  it  appears 


&  C.  C.  C.  624  ;  Padwick  v.  Hurst,  18 
Beav.  575  ;  Fluker  v.  Taylor,  3  Drew 
183  ;  North  Eastern  R.  Co.  v.  Martin, 
2  Ph.  758  ;  Wells  v.  Cooper  (MSS.), 
cited  in  6  Ves.  136  ;  Dinwiddie  v. 
Bailey,  6  Ves.  136  ;  Phillips  v.  Phil- 
lips, 9  Hare  471  ;  Allison  v.  Herring, 
9  Sim.  5S3  ;  Avery  v.  Ware,  58  Ala. 
475  ;  Dickinson  v.  Lewis,  34  Ala.  63S  ; 
Carter  v.  Bailey,  64  Me.  458  ;  Garner 
V.  Reis,  25  Minn.  475  ;  Walker  v. 
Cheever,  35  N.  H.  339 ;  Durant  v. 
Einstein,  5  Robt.  (N.  Y.)  423  ;  Porter 
V.  Spencer,  2  Johns.  Ch.  (N.  Y.)  169  ; 
Wilson  V.  Mallett,  4  Sandf.  (N.  Y.) 
112  ;  Salter  v.  Ham,  31  N.  Y.  321  ;  Mc- 
Lin  V.  McNamara,  2  Dev.  &  B.  Eq.  (N. 
Car.)  82;  Gloninger  v.  Hazard,  42 
Pa.  St.  389  ;  Passunk  B'ld'g  Assoc. 's 
Appeal,  83  Pa.  St.  441  ;  Hay  v.  Mar- 
shall, 3  Humph.  (Tenn.)  623  ;  Smith  z/. 
Marks,  2  Rand.  (Va.)  449  ;  Hickman 
V.  Stout,  2  Leigh  (Va.)  6.  Where  all  the 
items  of  account  are  on  one  side  the 
bill  cannot  be  sustained.  Pearl  v. 
Nashville,  10  Yerg.  (Tenn.)  179; 
Taylor  v.  Tompkins,  2  Heisk.  (Tenn.) 
89  ;  Pleasants  v.  Glasscock,  i  Smed.  «& 
M.  Ch.  (Miss.)  17. 

Not  a  Mutual  Account. — Where  a 
physician  had  an  account  running 
through  a  period  of  many  years 
against  A.  for  medical  services  ren- 
dered, whilst  the  latter  had  an  account 
against  the  physician  for  agricultural 
products  furnished  him  at  various 
times,  held,  that  a  bill  in  equity  could 
not  be  sustained  for  an  accounting. 
Haywood    v.    Hutchins,    65    N.   Car. 

5.74- 

1.  Uhlman  v.  New  York  Ins.  Co.,  109 
N.  Y.  433;  Taff  Vale  R.  Co.  v.  Nixon,  i 
H.  L.  Cas.  III. 

2.  Uhlman  v.  New  York  L.  Ins.  Co., 
109  N.  Y.  434;  North  Eastern  R.  Co.  v. 
Martin,  2  Ph.  758;  Phillips  v.  Phillips, 
9  Hare  471;  Bliss  v.  Smittt,  34  Beav. 


508.  In  a  case  in  which  a  change  of 
jurisdiction  is  sought  on  the  ground 
of  intricacy  or  complexity, the  accounts 
must  be  laid  before  the  court,  or  their 
nature,  character,  and  extent  so  far  dis- 
closed that  the  court  may  see  and  judge 
for  itself  whether  a  proper  case  for  the 
exercise  of  its  jurisdiction  exists  or 
not.      Ely  V.  Crane,  37  N.  J.  Eq.  157. 

Test. — The  test  sometimes  used  to 
find  whether  an  account  is  so  compli- 
cated that  equity  has  jurisdiction  is, 
can  a  court  of  law  examine  it  at  nisi 
prius  with  the  care  necessary  to  reach 
an  accurate  result.  Seymour  v.  Long 
Dock  Co.,  20  N.  J.  Eq.  407;  South  East- 
ern R.  Co.  V.  Brogden,  3  Mac.  &  G.  8; 
Foley  V.  Hill,  2  H.  L.  Cas.  28;  O'Con- 
nor V.  Spaight,  I  Sch.  &  Lef.  305;  Taff 
Vale  R.  Co.  v.  Nixon,  i  H.  L.  Cas.  no; 
Kennington  v.  Houghton,  2  Y.  &  C. 
C.  C.  627. 

Injunction. — The  authorities  show 
that  there  are  many  cases  in  which  a 
court  of  equity  will  entertain  jurisdic- 
tion in  matters  of  account  in  the  first 
instance,  where,  if  the  party  making 
the  claim  had  proceeded  at  law,  the 
court  would  not,  if  appealed  to  for  that 
purpose,  have  withdrawn  the  matter 
by  means  of  an  injunction  from  legal 
jurisdiction.  Crane  v.  Ely,  37  N.  J. 
Eq.  571  ;  Sweeny  v.  Williams,  36  N.  J. 
Eq.  627;  South  Eastern  R.  Co.  v.  Brog- 
den, 3  Mac.  &  G.  8;  Mcintosh  v.  Great 
Western  R.  Co.,  3  Sm.  &  G.  146;  Wat- 
ford, etc.,  R.  Co.  V.  London,  etc.,  R. 
Co.,  L.  R.  8  Eq.  231;  Flockton  v.  Peake, 
12  W.  R.  465.  The  common-law  pro- 
cedure act  has  not  taken  from  courts 
of  equity  the  right  to  restrain  actions 
involving  complicated  accounts  where 
the  accounts  could  be  more  completely 
taken  in  those  courts.  Croskey  v.  Eu- 
ropean, etc.,  Steam  Shipping  Co.,  i  J. 
&H.  108;  Crane  «/.  Ely,  37  N.  J.  Eq. 
571. 


95 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING. 


Equity. 


that  there  would  be  a  balance  of  very  great  inconvenience  and 
possible  oppression  to  the  defendant,  the  plaintiff  should  be  re- 
mitted to  his  action  at  law  to  recover  his  damages,  in  which 
action,  if  the  taking  of  an  account  becomes  necessary,  it  may  be 
easily  taken.^ 

e.  Fiduciary  Relation. — It  may  be  said  generally  that  when- 
ever there  is  a  fiduciary  relation,  such  as  that  of  trustee,  agent, 
executor,  etc.,  the  right  to  an  accounting  in  equity  is  undoubted. 
The  right  in  such  cases  is  based  upon  the  substantive  equity  of 
trusts,  which  jurisdiction  equity  always  had.* 


1.  Smith  V.  Leveaux,  2  De  G. ,  J. ,  &  S. 
i;  Kernot  v.  Potter,  3  De  G.,  F.,  &  J. 
447;  Phillips  V.  Phillips,  9  Hare  471; 
Fluker  v.  Taylor,  3  Drew  183  ;  Padwick 
V.  Hurst,  18  Beav.  575;  Flockton  v. 
Peake,  10  L.  T.  N.  S.  173;  Hemings  v. 
Pugh,  4  Giff.  456;  Barry  v.  Stevens,  31 
Beav.  258;  Dabbs  ?/.  Nugent,  11  Jur. 
N.  S.  943;  Edwards-Wood  z'.  Baldwin, 
4  Giff.  613;  Makepeace  v.  Rogers,  13  W. 
R.  450;  Navulshaw  v.  Brownrigg,  2  De 
G.,  M.,  &  G.  241;  Shephard  v.  Brown, 

4  Giff.  208;  Croskey  v.  European,  etc., 
Steam  Shipping  Co.,  i  J.  &  H.  108; 
Hunter  v.  Belcher,  2  D.  G. ,  J. ,  &  S.  194; 
South  Eastern  R.  Co.  v.  Brogden,  3 
Mac.  &  G.  8;  Southampton  Dock  Co.  v. 
Southampton  Harbor,  etc. ,  Board,  L.  R. 
II   Eq.  254;  Burdick  v.  Garrick,  L.  R. 

5  Ch.  233  ;  Moxon  v.  Bright,  L.  R.  4 
Ch.  292;  Watford,  etc.,  R.  Co.  v.  Lon- 
don, etc.,  R.  Co.,  L.  R.  8  Eq.  231;  Bliss 
V.  Smith,  34  Beav.  508;  Foley  v.  Hill, 
I  Ph.  399;  North  Eastern  R.  Co.  v.  Mar- 
tin, 2  Ph.  789;  Kennington  v.  Hough- 
ton, 2  Y.  &  C.  C.  C.  620;  O'Connor  v. 
Spaight,  I  Sch.  &  Lef.  305;  O'Mahony 
V.  Dickson,  2  Sch.  &  Lef.  400;  Frietas 
V.  Dos  Santos,  i  Y.  &  J.  574  ;  South 
Eastern  R.  Co.  v.  Brogden,  3  Mac.  &  G. 
8;  Taff  Vale  R.  Co.  v.  Nixon,  i  H.  L. 
Cas.  no;  Mitchell  v.  Great  Works  Mill- 
ing, etc.,  Co.,  2  Story  (U.S.)  648;  Kirk- 
man  V.  Van  Lier,  7  Ala.  217;  Trapnall 
V.  Hill,  31  Ark.  348;  State  v.  Churchill, 
48  Ark.  426;  Farmers'  Bank  v.  Polk, 
I  Del.  Ch.  167  ;  Seymour  v.  Long 
Dock  Co.,  20  N.  J.  Eq.  407;  Jewett  v. 
Bowman,  29  N.  J.  Eq.  176;  Nesbit  v. 
St.  Patrick's  Church,  9  N.  J.  Eq.  76; 
Printup  V.  Mitchell,  17  Ga.  558;  Wilson 
V.  Riddle,  48  Ga.  609;  Blood  v.  Blood, 
no  Mass.  545  ;  Frue  v.  Loring,  120 
Mass. 507;  Ward  v.  Peck,  114  Mass.  121; 
Watt  V.  Conger,  i  Smed.  &  M.  (Miss.) 
412;  Uhlman  v.  New  York  L.  Ins.  Co., 
109  N.  Y.  434;  Governor  v.  M'Ewen,  5 
Humph.  (Tenn.)24i;  Coffman  w.Sangs- 


ton,  21  Gratt.  (Va.)263;  Lafever  z/.  Bill- 
myer,  5  W.  Va.  33. 

Massachusetts.— The  statutes  of  Mas- 
sachusetts give  jurisdiction  in  equity 
upon  accounts  where  the  nature  of  the 
account  is  such  that  it  cannot  be  con- 
veniently and  properly  adjusted  in  an 
action  at  law.  Under  these  statutes 
the  plaintiff  is  entitled  to  an  account- 
ing on  a  complicated  account,  although 
it  be  a  matter  of  great  inconvenience 
to  the  defendant.  Piercez'.  Equitable  L. 
Assur.  Soc,  145  Mass.  56.  See  Hallett 
z'.Cumston,  no  Mass.  32;  General  Hos- 
pital V.  State  Mut.  L.  Assur.  Co.,  4  Gray 
(Mass.)  227;  Smith  v.  Mutual  L.  Ins. 
Co.,  14  Allen  (Mass.)  336;  New  Haven 
Horse  Nail  Co.  v.  Linden  Springs 
Co.,  142  Mass.  349;  Bartlett  v.  Parks, 
I  Cush.  (Mass.)  82;  Locke  v.  Bennett, 
7  Cush.  (Mass.)  445. 

2.  Moxon  V.  Bright,  L.  R.  4  Ch.  282; 
Southampton  Dock  Co.  v.  Southamp- 
ton Harbor,  etc..  Board,  L.  R.  11  Eq. 
254;  Mackenzie  v.  Johnston,  4  Madd. 
373;  Makepeace  v.  Rogers,  11  Jur.  N.  S. 
215;  King  V.  Rossett,  2  Y.  &  J.  33;  Pad- 
wick V.  Stanley,  9  Hare  627;  Shephard 
V.  Brown,  4  Giff.  208 ;  Hemings  v.  Pugh, 
4 Giff.  456;  Harrington  v.  Churchward, 

6  Jur.  N.  S.  576  ;  Strelly  v.  Winson,  i 
Vern.  297;  Smith  v.  Leveaux,  2  De  G., 
J.,  &  S.  i;  Navulshaw  v.  Brownrigg,  2 
De  G. ,  M. ,  &  G.  241 ;  Blakeley z/.  Biscoe, 
Hempst.  (U.  S.)  114;  Crothers  v.  Lee, 
29  Ala.  337;  Knotts  z*.  Tarver,  8  Ala. 
743;  Halsted  v.  Rabb,  8  Port.  (Ala.)  63; 
Garr  v.  Redman,  6  Cal.  574;  Davis  v. 
Davis,  I  Del.  Ch.  256;  Powes  v.  Cray, 

7  Ga.  206;  Buel  v.  Selz,  5  111.  App.  116; 
Gates  V.  Eraser,  9  111.  App.  624;  Clinton 
County  V.  Schuster,  82  111.  137;  Coquil- 
lard  V.  Suydam,  8  Blackf.  (Ind.)  24;  Mc 
Lellan  v.  Osborne,  51  Me.  118;  Webb  v. 
Fuller,  77  Me.  568  ;  Ferry  v.  Henry,  4 
Pick. (Mass. )75;  Hallett  z'.Cumston.iio 
Mass.  32;  Hodges  v.  Pingree,  10  Gray 
(Mass.)  14;  Darrah  v.  Boyce,  62  Mich. 


Accounting  in       A  CCO  UN  TS  AND  A  CCO  UN  TING. 


Equity. 


2.  The  Bill  or  Complaint— ^.  Generally. — It  is  necessary,  in 
order  to  obtain  the  equitable  remedy  of  accounting,  that  a  plain 
case  be  made  in  the  bill  or  complaint.*  But  the  courts  are  lib- 
eral in  their  construction  of  pleadings  for  an  accounting,  and  the 
bill  or  complaint  will  be  upheld  if  the  allegations  substantially 
make  out  a  case.'-* 

b.  Certainty  and  Particularity. — The  petition  or  bill 
for  an  accounting  must  be  definite  and  certain.^ 


480;  King  V.  Barnes,  109  N.  Y.  267; 
Wright  z/.  Wright, 59  How.  Pr.(N.Y.  Su- 
preme Ct.)  176;  Dyckman  v.  Valiente, 
42  N.  Y.  549  ;  Marvin  v.  Brooks,  94 
N.  Y.  71;  Walker  v.  Spencer,  45  N.  Y. 
Super.  Ct.  71;  State  v.  Quinn,74N.Car. 
359  ;  Darden  v.  Cowper,  7  Jones  (N. 
Car.),  210;  Shirley  v.  Goodnough,  15 
Oregon,  642;  Long  v.  Cochran,  9  Phila. 
(Pa.)  267;  Bentley  v.  Harris,  10  R.  I. 
434;  Kerr  v.  Camden  Steamboat  Co., 
Cheves  Eq.  (S.  Car.)  189;  Taylor  v. 
Tompkins,  2  Heisk.  (Tenn.)  89;  Hale 
V.  Hale,  4  Humph.  (Tenn.)  183;  Vilwig 
V.  Baltimore,  etc.,  R.  Co.,  79  Va.  449; 
Thornton  v.  Thornton,  31  Gratt.  (Va.) 
212;  Early  v.  Friend,  16  Gratt.  (Va.)  21; 
Wiswell  V.  Wilkins,  4  Vt.  137;  Leach  v. 
Bettie,  33  Vt.  195  ;  Rippe  v.  Stogdill, 
61  Wis.  38;  Colonial,  etc.,  Co.  v.  Hutch- 
inson Mortgage  Co.,  44  Fed.  Rep.  219. 

1.  Crane  v.  Ely,  37  N.  J.  Eq.  564  ; 
Short  V.  Barry,  58  Barb.  (N.  Y.)  177  ; 
Bouton  V.  Bouton,  42  How.  Pr.  (N.  Y. 
Supreme  Ct.)  11. 

2.  See  the  following  cases,  where 
the  bill  was  held  to  be  sufficient : 
Kerr  v.  Blodgett,  16  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  137  ;  Shaw  v.  Chase,  77 
Mich.  436  ;  Grady  v.  Hughes,  80  Mich. 
184  ;  Roller  v.  Spilmore,  13  Wis.  29  ; 
McLachlan  v.  Staples,  13  Wis.  448  ; 
Schwickerath  v.  Lohn,  48  Wis.  599; 
Rippe  V.  Stogdill,  61  Wis.  38  ;  De  Be- 
mer  v.  Drew,  57  Barb.  (N.  Y.)  438  ; 
Davis  V.  Grove,  2  Robt.  (N.  Y.)  134  ; 
Young  V.  Pearson,  i  Cal.  448  ;  Stand- 
ard Oil  Co.  V.  Scofield,  16  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)377;  Parker  z/.  Tur- 
ner (Supreme  Ct.),  8  N.  Y.  St.  Rep. 
500;  McRaven  v.  Dameron,  82  Cal.  57; 
More  V.  Calkins,  85  Cal.  177  ;  Casserly 
V.  Witherbee,  28  N.  Y.  Wkly.  Dig.  388  ; 
Noyes  v.  Wernberg,  15  N.  Y.  Wkly. 
Dig.  72.  And  see  Gutsch  Brewing  Co. 
V.  Fischbeck,  41  111.  App.  400,  where 
it  was  held  that  the  bill  would  not 
sustain  a  decree  for  an  accounting. 

Proper  Form  of  Complaint. — A  com- 
plaint which  sets  forth  a  partnership, 
a  dissolution,  the  existence  of  unset- 


tled accounts,  and  a  balance  in  favor 
of  plaintiff,  and  demands  an  account- 
ing, shows  facts  enough  to  constitute 
a  cause  of  action.  Ludington  v.  Taft, 
10  Barb.  (N.  Y.)  447.  And  for  the 
proper  form  of  complaint  in  an  action 
for  an  accounting  between  two  firms, 
partners  in  a  joint  adventure,  see  Da- 
vis V.  Grove,  2  Robt.  (N.  Y.)  134, 
where  the  subject  is  considered.  For 
a  complicated  bill  for  an  account,  see 
Bogardus  v.  Trinity  Church,  4  Paige 
(N.  Y.)  178. 

3.  Rogers  v.  Sims,  39  Mo.  App.  678  ; 
McAndrew  v.  Walsh,  31  N.  J.  Eq.  331  ; 
Trotter  z/.  Heckscher,  41  N.  J.  Eq.  302  ; 
Adams  v.  Gaubert,  69  111.  585  ;  Mc- 
Loskey  v.  Gordon,  26  Miss.  260. 

Framed  on  Definite  Theory. — The  bill 
must  be  framed  on  a  definite  theory. 
Upon  a  bill  for  an  accounting  by  an 
agent,  relief  cannot  be  had  as  for  a 
wilful  default,  the  bill  not  being  so 
drawn.  Singer  v.  Steele,  24  111.  App. 
58.     See  Young  v.  Pearson,  i  Cal.  448. 

Judgment  Must  Accord  with  Com- 
plaint.— The  complaint  must  be  so 
drawn  as  will  justify  the  judgment  ; 
there  can  be  no  judgment  for  a  differ- 
ent cause  of  action  than  that  set  forth 
in  the  complaint.  Arnold  v.  Angell, 
62  N.  Y.  508  ;  Weeks  v.  Hoyt,  5  Hun 
(N.  Y.)  347  ;  Darling  v.  Brewster,  55 
N.  Y.  667.  But  the  appellate  court 
will  not  necessarily  reverse  a  decree 
for  an  account,  although  the  bill 
merely  sets  forth  facts  for  which  as- 
sumpsit is  an  adequate  remedy.  Fi- 
delity Title,  etc.,  Co.  v.  Weitzel,  152 
Pa.  St.  498. 

Specification  of  Items. — The  mere  fact 
that  items  are  not  specified  does  not 
preclude  the  allowance  of  them  in  the 
settlement  of  the  account.  Tillotson 
V.  Tillotson,  34  Conn.  361.  But  prop- 
erty not  charged  in  the  bill  as  being 
in  the  respondent's  hands  cannot  be 
charged  against  him.  Gillett  v.  Hall, 
13  Conn.  435. 

Certificate  of  Counsel. — A  bill  for  an 
account  does  not  require   the   certifi- 


I  Encyc.  PI.  &  Pr.— 7. 


97 


Accounting  in       A  CCO  UN  TS  AND  A  CCO  UN  TING. 


Equity. 


Ignorance  and  Fraud. — But  where  the  plaintiff  is  ignorant  of  the 
matters  set  forth  in  his  complaint,  especially  if  such  ignorance 
is  caused  by  the  fraud  of  the  defendant,  or  by  his  refusal  to  per- 
mit the  plaintiff  to  examine  books  in  his  possession,  the  bill  for 
an  account  need  not  contain  such  certainty  and  particularity  of 
statement  as  would  otherwise  be  necessary.* 

Necessary  Allegations. — A  bill  for  an  account  must  show  by  specific 
allegations  that  there  was  a  fiduciary  relation  between  the  parties, 
or  that  the  account  is  so  complicated  that  it  cannot  conveniently 
be  taken  in  an  action  at  law.* 

Unnecessary  Allegations.— But  no  allegation  beyond  those  which  es- 
tablish the  fiduciary  relation  or  the  complicated  state  of  the  ac- 
count is  necessary.* 

Superfluous  Averments. — Superfluous  averments  in  the  bill  do  not 
vitiate.* 

c.  Allegation  of  Demand. — The  allegation  that  the  plain- 
tiff has  demanded  an  .accounting  from  the  defendant,  and  his  re- 
fusal, is  a  material  one,  and  must  be  inserted  in  the  bill.* 

d.  Offer  to  Pay  Balance. — A  distinct  offer  in  the  bill  to 
pay  the  balance  which  may  be  found  due  is  not  necessary.® 


cate    of    counsel.     Bachman    v.    Ein- 
horn,  5  W.  N.  C.  (Pa.)  250. 

1.  Towle  V.  Pierce,  12  Met.  (Mass.) 
329  ;  44  Am.  Dec.  679  ;  Crosby  v. 
"Watts,  41  N.  Y.  Super.  Ct.  208. 

2.  Badger  v.  McNamara,  123  Mass. 
117  ;  Walker  z/.  Brooks,  125  Mass.  241  ; 
Trapnall  v.  Hill,  31  Ark.  347. 

Must  aver  Indebtedness. — The  bill 
must  aver  an  indebtedness  to  the 
plaintiff  at  the  time  of  filing  it.  Vol- 
mer  v.  McCauley,  7  Phila.  (Pa.)  382  ; 
Metz  V.  Farnham,  8  Phila.  (Pa.)  267. 

Against  Devisees. — A  bill  for  an  ac- 
count, passing  the  executors,  and 
seeking  to  obtain  payment  out  of  the 
property  in  the  hands  of  the  devisees 
in  remainder,  should  show  affirma- 
tively that  the  money  never  came  to 
the  executors'  hands,  and  that  it  still 
remains  a  charge  on  the  estate.  Cla- 
son  V.  Lawrence,  3  Edw.  Ch.  (N.  Y.) 
48.  But  in  an  action  by  an  adminis- 
trator appointed  to  administer  upon 
the  assets  left  unadministered  on  the 
death  of  the  executor,  against  an  ex- 
ecutor of  such  former  executor,  to  re- 
cover the  assets,  it  is  not  necessary 
that  the  complaint  allege  that  the  as- 
sets ever  came  into  defendant's  hands. 
Walton  V.  Walton,  2  Abb.  Pr.  N.  S.  (N. 
Y.  Ct.  App.)  .^28. 

3.  Green  v.  Brooks,  81  Cal.  328  ; 
West  V.  Brewster,  i  Duer  (N.  Y.)647  ; 

.  Christy  v.  Libby,  2  Daly  (N.  Y.)  418. 


Fraud. — The  right  of  the  beneficiary 
of  a  trust  to  enforce  an  accounting 
from  the  trustee  does  not  rest  upon 
fraud,  and  no  such  allegation  is  neces- 
sary.    Green  v.  Brooks,  81  Cal.  328. 

4.  Kerr  v.  Blodgett,  16  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  137  ;  State  v.  Chad- 
wick,  10  Oregon  423.  See  Walker  v. 
Spencer,  45  N.  Y.  Super.  Ct.  71,  where 
it  was  held  that  the  complaint  was  not 
to  be  regarded  as  setting  up  several 
causes  of  action  merely  because  it  al- 
leged different  transactions.  In  Brown 
V.  Balde,  3  Lans.  (N.  Y.)  283,  it  was 
held  that  the  allegations  made  the  ac- 
tion one  on  a  bond  instead  of  for  an 
accounting,  although-there  were  suf- 
ficient averments  to  sustain  it  as  a  bill 
for  an  accounting.  See  further  Kerr 
V.  Webb,  9  Rich.  Eq.  (S.  Car.)  369  ; 
Muir  V.  Leake,  etc..  Orphan  House,  3 
Barb.  Ch.  (N.  Y.)  477. 

5.  Magauran  v.  Tiffany,  62  How.  Pr. 
(N.  Y.  Supreme  Ct.)  251  ;  Perry  v. 
Foster,  62  How.   Pr.  (N.  Y.  Supreme 

Ct.)228. 

Bill  by  Two. — Whe.-e  the  bill  is  on 
behalf  of  two,  an  averment  of  demand 
by  one  only,  and  without  stating 
authority  from  the  other,  is  sufficient. 
Ellas  V.  Lockwood,  Clarke  Ch.  (N.  Y.) 

3". 

6.  Craig  v.  Chandler,  6  Colo.  543  ; 
Barton  v.  May,  3  Sandf.  Ch.  (N.  Y.) 
450.      Contra, — Casserly  v.  Witherbee, 


98 


Accounting  in       ACCO  UNTS  AND  ACCO  UN  TING. 


Equity. 


e.  Prayer. — The  prayer  is  an  essential  part  of  the  complaint. 
Accounting  should  not  be  ordered  unless  prayed  for.* 

3.  The  Answer. — Almost  all  the  rights  of  the  defendant  are  set  up 
before  the  referee  or  master,  and  an  answer  in  an  accounting  case 
does  not  have  the  same  scope  as  in  other  cases.  As  the  taking  an 
account  will  be  decreed  if  there  have  been  dealings  between  the 
parties  calling  for  equitable  interposition,  all  those  questions  which 
usually  form  the  subject-matter  of  an  answer  are  left  to  the  master 
or  referee.* 

Cross-Bill. — A  defendant  is  entitled  to  an  account  of  what  the 
plaintiff  has  received,  without  filing  a  cross-bill  for  that  purpose,^ 

Denial.— A  denial  that  there  have  been  mutual  accounts,  or  that 
the  property  for  which  an  account  is  sought  was  ever  received,  is 
sufficient,  without  any  further  detailed  statement.* 


28  N.  Y.  Wkly.  Dig.  388;  but  this  was 
a  redemption  case. 

Proper  Form. — In  an  action  of  redemp- 
tion the  proper  form  of  an  offer  to  pay 
is,  that  on  the  payment  of  what,  if  any- 
thing, shall  be  found  due,  the  mort- 
gagee may  be  decreed  to  deliver  pos- 
session. Quin  V.  Brittain,  Hoffm. 
Ch.  (N.  Y.)  353.  An  allegation  of 
"  due  demand  "  is  an  implied  allega- 
tion of  an  offer  to  account  and  pay. 
Hill  V.  Haskin,  51  Cal.  175. 

1.  Dominguez  v.  Dominguez,  7  Cal. 
427.  See  Averill,  etc.,  Co.  v.  Verner, 
22  Ohio  St.  372. 

Prayer  for  Discovery. — A  bill  against 
a  corporation  for  an  accounting,  and  to 
recover  money  alleged  to  have  been 
obtained  through  fraud,  unaccom- 
panied by  a  prayer  for  discovery,  is 
demurrable.  Beggs  v.  Edison  Elec- 
tric Light,  etc.,  Co.,  96  Ala.  295.  But 
if  in  a  bill  for  a  discovery,  with  a 
prayer  for  an  account,  the  case  is  not 
the  proper  subject  of  an  action  for  an 
account,  the  fact  that  the  plaintiff  is 
entitled  to  a  discovery  will  not  neces- 
sarily entitle  him  to  an  account.  Magic 
Ruffle  Co.  V.  Elm  City  Co.,  14  Blatchf. 
(U.  S.)ii3. 

Governs  Decree. — The  accounting  is 
wholly  governed  by  the  prayer.  The 
decree  will  only  be  for  such  an  ac- 
counting as  is  prayed  for,  and  in  that 
aspect  only.  Scott  v.  Gamble,  9  N.  J. 
Eq.  218  ;  Welch  v.  Arnett  (N.  J.  Eq. 
1890),  20  Atl.  Rep.  48. 

For  Dissolation  of  Partnership. — Where 
an  accounting  of  the  general  accounts 
of  a  partnership  is  sought,  the  bill  must 
pray  for  a  dissolution.  Daniell  Ch. 
PI.  &  Pr.,  vol.  I,  334. 


General  Eelief. — If  the  facts  stated 
constitute  a  case  in  which  the  defend- 
ant should  render  an  account,  the  court 
may  compel  an  accounting  under  a 
prayer  for  general  relief.  Wood  v. 
Brown,  34  N.  Y.  337  ;  Dyckman  v. 
Valiente,  42  N.  Y.  549  ;  Haworth  v. 
Taylor,  108  111.  275. 

Duplicity. — The  prayer  is  not  looked 
to  in  determining  whether  there  is 
more  than  one  cause  of  action  ;  where 
a  complaint  demands  an  accounting  of 
the  partnership  business  both  before 
and  after  the  death  of  a  partner,  it  is 
but  one  cause  of  action.  Skidmore  v. 
Collier,  8  Hun  (N.  Y.)  50.  See  also 
Walker  z*.  Spencer,  45  N.  Y.  Super.  Ct. 
71  ;  Darling  v.  Brewster,  55  N.  Y.  667  ; 
Dav  V.  Stone,  15  Abb.  Pr.  N.  S.  (N.  Y. 
C.  PI.)  137. 

2.  See  article  References. 

3.  Scott  V.  Lalor,  18  N.  J.  Eq.  31. 
Cross  items  need  not  be  pleaded  to  be 
availed  of  except  when  the  whole 
account  is  set  out  in  the  answer. 
Goldthwait  v.  Day,  149  Mass.  185. 
But  see  Bailey  v.  Bergen,  4  Thomp.  & 
C.  (N.  Y.)  642,  wJiere  it  is  held  that  de- 
fendant's right  to  an  accounting  must 
be  specially  pleaded  in  order  to  avail 
as  a  ground  of  affirmative  relief. 

4.  Perry  v.  Foster,  62  How.  Pr.  (N. 
Y.  Supreme  Ct.)  228.  See  Noyes  v. 
Wernberg,  15  N.  Y.  Wkly.  Dig.  72  ; 
Livingston  v.  Livingston,  3  Johns.  Ch. 
(N.  Y.)  51. 

Demurrer. — A  denial  need  not  be  in- 
terposed as  a  defense  in  the  case  of 
stale  demands.  A  demurrer  may  be 
resorted  to  when  the  accounting  is 
sought  of  such  claims  as  are  stale. 
Bell  V.  Hudson,  73  Cal.  285. 


99 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING. 


Equity. 


Setting  out  the  Account.— As  to  whether  a  defendant  who  denies  by 
answer  the  complainant's  right  to  an  account  is  nevertheless  re- 
quired to  give  the  account  called  for,  the  decisions  are  conflicting.* 
The  weight  of  authority  is,  probably,  that  where  the  account  does 
not  appear,  by  the  allegations  and  charges  of  the  bill,  to  be  useful 
in  establishing  the  complainant's  right  to  it,  but  appears  merely  as 
that  which  must  ultimately  be  rendered  in  fulfilment  of  an  obliga- 
tion the  enforcement  of  which  is  sought,  the  defendant  need  not 
set  out  the  account  in  his  answer,  in  case  it  is  necessary  to  resort 
to  an  answer  rather  than  to  a  plea  or  demurrer  in  resisting  the  com- 
plainant's alleged  right  to  the  account ;  but  if  the  alleged  right 
may  be  resisted  by  plea  or  demurrer,  and  the  defendant,  instead 
of  availing  himself  of  either  of  those  pleadings,  chooses  to  answer, 
he  must  answer  fully,  setting  out  the  account.* 

4.  The  Plea  of  Stated  Account — a.  In  Equity. — A  plea  of  a  stated 
account  is  a  good  bar  to  a  bill  for  an  account ;  for  there  is  no  rule 
more  strictly  adhered  to  in  courts  of  equity  than  that,  when  a  de- 


1.  For  an  elaborate  review  of  them 
see  French  v.  Rainey,  2  Tenn.  Ch.  640. 
The  matter  is  discussed  in  the  follow- 
ing cases  :  Law  v.  Hunter,  i  Russ. 
100;  Walker  v.  Woodward,  i  Russ.  107; 
Elmer  v.  Creasy,  L.  R.  9  Ch.  69;  De  la 
Rue  V.  Dickenson,  3  Kay  &  J.  388;  Jer- 
rard  v.  Saunders,  2  Ves.  Jr.  457  ; 
Stephens  v.  Stephens,  2  Sel.  Cas.  51; 
Sweet  V.  Young,  Ambl.  353;  Donegal  v. 
Stewart,  3  Ves.  446;  Mazeredo  v.  Mait- 
land,  3  Madd.  72;  Lancaster  v.  Evors, 
I  Ph.  349;  Gethin  z*.  Gale,  Ambl.  353; 
Shaw  V.  Cling,  11  Ves.  283;  Clegg  v. 
Edmonson,  22  Beav.  125  ;  Hudson  v. 
Trenton  Locomotive,  etc.,  Co.,  16  N.  J. 
Eq.  475;  Shepherd  v.  Roberts,  3  Bro. 
C.  C.  239  ;  Swinborne  v.  Nelson,  16 
Beav.  416;  Great  Luxembourg  R.  Co. 
V.  Magnay,  23  Beav. 646;  Hall  v.  Noyes, 
3  Bro.  C.  C.  483  ;  Adams  v.  Fisher, 
3  Myl.  &  C.  526  ;  Howe  v.  McKernan, 
30  Beav.  547;  Phelips  v.  Caney,  4  Ves. 
107;  Leonard  v.  Leonard,  2  B  &  B.  323; 
Reade  v.  Woodroofe,  24  Beav.  421  ; 
Rowe  V.  Teed,  15  Ves.  376;  Randal  v. 
Head,  Hardr.  188  ;  John  v.  Dacie,  13 
Price,  632  ;  Jacobs  v.  Goodman,  2  Cox 

282  ;  V.   Harrison,  4  Madd.  252  ; 

Booth  7/.Smeath,2  Strob.Eq.(S.Car.)3i. 

2.  Pace  V.  Bartles,  45  N.  J.  Eq.  371, 
a  well-considered  case  in  which  the 
authorities  are  all  reviewed.  See 
Meeker  v.  Marsh,  i  N.  J.  Eq.  198; 
Pullman  Palace  Car  Co.  v.  Central 
Transp.  Co.,  34  Fed.  Rep.  357;  Phillips 
V.  Prevost,  4  Johns.  Ch.  (N.  Y.)  205. 
To  a  bill  in  equity  for  an  account  of 


sales  of  a  book  alleged  to  have  been 
published  by  the  defendant  on  the 
joint  account  of  the  plaintiff  and 
himself,  an  answer  which  denies  that 
any  such  book  was  published  during 
the  time  alleged,  and  asserts  that 
the  book  published  by  the  defend- 
ant was  a  different  one,  need  not 
render  an  account  of  sales.  Arm- 
strong V.  Crocker,  10  Gray  (Mass.)  269. 
Making  admissions  in  the  answer,  suf- 
ficient for  the  purposes  of  the  suit  up 
to  decree,  is  enough,  without  giving 
further  accounts.  Lockett  v.  Lockett, 
L.  R.  4  Ch.  336. 

Motion. — If  the  answer  does  not  set 
out  the  account,  the  plaintiff  is  entitled 
on  motion  to  have  produced  for  inspec- 
tion documents  in  the  possession  of 
defendant.  Robbins  v.  Davis,  i 
Blatchf.  (U.  S.)  238. 

Manner  of  Setting  out  Account.— 
Where  defendants  are  required  to  set 
out  accounts,  they  may  for  the  pur- 
pose of  rendering  their  schedules  less 
burdensome,  instead  of  going  too 
much  into  particularity,  refer  to  the 
original  accounts  in  their  possession  ; 
and  care  must  be  taken  to  avoid  any 
inconsistency  between  the  body  of  the 
answer  and  the  schedule.  Daniell  Ch. 
PI.  &  Pr.,  vol.  I,  725,  729;  White  v. 
Barker,  5  DeG.  &  S.  746  ;  Major  v. 
Arnott,  2  Jur.  N.  S.  387 ;  Drake  v. 
Symes,  i  Johns. 647;  Telford  v.  Ruskin, 
II  Sim.  401  ;  Bally  v.  Kendrick,  13. 
Price  291 ;  Lockett  v.  Lockett,  L.  R.  4. 
Ch.  336. 


100 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING.  Equity. 

fendant  sets  forth  a  stated  account,  he  shall  not  be  obliged  to  go 
upon  a  general  one.* 

What  May  be  Pleaded  as  a  Stated  Account.— Besides  the  technical  account 
stated  other  matters  may  be  pleaded 'as  such.  A  general  release 
of  all  demands,  not  under  seal,  may  be  pleaded  as  a  stated  account.* 
The  delivery  up  of  vouchers  is  an  affirmation  that  the  account  be- 
tween the  parties  was  a  stated  one  ;  and  where  such  a  transaction 
has  taken  place,  it  should  be  averred  in  the  plea.^  An  award  may 
amount  to  an  account  stated,*  and  so  may  an  accounting  and  final 
settlement  under  a  power.* 

Kequisites  of  Plea.— In  order  to  support  a  plea  of  a  stated  account 
it  must  be  shown  to  have  been  final.®  The  plea  must  show  that  it 
was  in  writing,  and  likewise  that  the  balance  was  in  writing,  or  at 
least  must  set  forth  what  the  balance  is.'^  It  is  not  necessary  to 
aver  that  the  account  was  settled  between  the  parties  upon  a  mi- 
nute investigation  of  items  ;  a  general  agreement  will  be  sufficient.* 
The  stated  account  must  be  alleged  to  be  just  and  true,  to  the  best 
of  the  defendant's  knowledge  and  belief.® 

Must  be  Supported  by  Answer. — An  answer  is  necessary  to  support 
the  plea  where  the  bill  anticipates  the  plea  of  an  account  stated, 
and  alleges  facts  to  avoid  it ;  and  the  answer  as  well  as  the  plea 
must  deny  those  allegations  of  the  bill.^*^ 

Amending  Bill.— Where  a  complainant  files  a  bill  for  a  general 
account,  and  the  defendant  sets  forth  a  stated  one,  the  complain- 
ant must  amend  his  bill.^^  By  the  amendment  he  must  surcharge 

1.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  666.  Rep.  466;  Greene  v.   Harris,   9   R,    I. 

2.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  667.  401. 

3.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  667.  9.   Driggs  v.  Garretson,  25  N.  J.  Eq. 

4.  Ives  V.  Ashelby,  26  111.  App.  244;  178;  Harrison  v.  Bradley,  5  Ired.  Eq. 
Coultas  V.  Green,  43  111.  277.  Where  (N.  Car.)  136;  Daniell  Ch.  PI.  &  Pr., 
the  parties  to  a  bill   for  the  settlement  vol.  i,  667. 

of  partnership  affairs  submit  the  ac-  10.   Harrison  v.  Farrington,  38  N.  J. 

counting  to  arbitration,  the  award  to  Eq.    359.      See    Schwarz    v.    Wendell, 

be  entered  as  the  finding  of  the  court,  Harr.   (Mich.)   395.      The   plea    of    an 

the  complainant  cannot  dismiss  where  account    stated    cannot    be    sustained 

the  court  has  overruled  a  motion  to  set  unless    it    be    supported    by    answer 

aside  the  award.     Ives  v.  Ashelby,  26  denying  the  receipt  of  any  part  of  the 

111.  App.  244.  money    for    which    the    defendant    is 

5.  Craig  v.  McKinney,  72  III.  305.  called  upon  to  account,  subsequently 

6.  Daniell  Ch.  PI.  &  Pr.,vol.  i,  666.  to  the  time  when  the  account  stated 

7.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  666.  was  adjusted.  Danels  v.  Taggart,  i 
But  it  need  not  be  alleged  that  it  was  Gill  &  J.  (Md.)  311  ;  Rouskulp  v. 
signed  by  the  parties,  as  acquiescence  Kershner,  49  Md.  524. 

in  it  for  a  length  of  time  will  render  it         Answer  in  Place  of  Plea. — Instead  of 

a  stated   account.      Wood  v.   Gault,  2  a    plea,   the    stated    accounts  may    be 

Md.  Ch.  Dec.  433.  given    in    an    answer.       Seamans    v. 

8.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  666.  Burt,  11  R.  I.  320. 

The  word  "  settle  "  has  a  definite  legal  11.    Brown  v.  Van  Dyke,  8  N.  J.  Eq. 

meaning,  and  implies  the  mutual  ad-  795  ;    Weed   v.  Smull,  7   Paige  (N.  Y.) 

justment  of  accounts  between  parties,  573;  Leeycraft   v.  Dempsey,  15  Wend, 

and  an  agreement  upon  the  balance.  (N.    Y.)  83  ;    Stoughton   v.    Lynch,    2 

Baxter  z/.  State,  9  Wis.  38.     See  Arm-  Johns.    Ch.    (N.    Y.)   209;    Cruise    v. 

strong  ».  Chemical  Nat.  Bank,  37  Fed.  Walker,  6  Phila.   (Pa.)  294.     But  the 

lOI 


Accounting  in       ACCO  UNTS  AND  ACCO  UN  TING. 


Equity* 


and  falsify  the  stated  account.* 

b.  Under  the  Codes — Must  be  Pleaded. — Under  the  Codes  a 
stated  account  must  be  specially  pleaded  to  be  available  as  a 
defence.* 

Eeply  must  Surcharge  and  Falsify. — In  analogy  to  the  equity  prac- 
tice, the  reply  must  surcharge  and  falsify  the  plea.  It  is  not 
enough  to  allege  that  the  account  was  not  a  full  account.*  But 
where  the  code  of  procedure  makes  no  provision  for  a  reply,  and 
the  only  pleadings  allowed  are  the  complaint  and  answer,  the 
plea  of  stated  account  must  be  taken  as  denied.* 

5.  Practice. — It  is  the  correct  practice  in  suits  for  an  accounting 
to  dispose  of  all  matters  in  bar  of  an  accounting,  before  the 
account  is  stated  or  a  reference  ordered.* 

Costs. — The  taxation  of  costs  is  discretionary.® 

6.  The  Decree. — The  ordinary  decree  in  an  accounting  case  is 
that  an  account  shall  be  taken.'' 


bill  need  only  be  amended  when  an 
account  has  been  given  by  the  defend- 
ant.    Vandyke  v.  Brown,  8  N.    J.    Eq. 

657. 

Setting  Down  for  Argument.  —  Not 
amending  the  bill  and  setting  down 
for  argument  a  plea  of  stated  accounts 
is  equivalent  to  demurring  to  it.  Al- 
len V.  Woonsocket  Co.,  11  R.  I.  288. 

1.  Costin  V.  Baxter,  6  Ired.  Eq.  (N. 
Car.)  197;  Holcomb  v.  Holcomb,  11  N. 
J.  Eq.  477.  The  amendment  must 
charge  either  fraud  or  particular 
errors.  Daniell  Ch.  PI.  &  Pr.,  vol. 
I,  668. 

2.  Mower  County  v.  Smith,  22 
Minn.  97  ;  Derby  v.  Yale,  13  Hun 
(N.  Y.)  273;  Liscomb  v.  Agate,  67 
Hun  (N.  Y.)  388.  But  where  the 
defendant  pleads  an  account  stated, 
he  may  either  rely  thereon,  or  he  may, 
on  the  trial,  fall  back  upon  the  ac- 
counts, and  show  that  there  is  in  fact 
a  balance  due  him.  Goings  v.  Patten, 
I  Daly  (N.  Y.)  168. 

3.  Barker  v.  Hoff,  52  How.  Pr.  (N. 
Y.  Supreme  Ct.)  382  ;  Suttle  v.  Dog- 
gett,  87  N.  Car.  203;  Grant  v.  Bell,  87 
N.  Car.  34;  Weeks  v.  Hoyt,  5  Hun 
(N.  Y.)  347.  See  Welsh  v.  German 
American  Bank,  42  N.  Y.  Super.  Ct. 
462;  Mount  V.  Ellingwood,  2  Thomp. 
&  C.  (N.  Y.)  527.  When  a  note  is  given 
for  balance  and  receipted  for  in  full 
by  mistake,  the  creditor  may  sue  on 
the  original  account,  and  to  a  defence 
of  account  stated,  where  the  reply  is 
a  general  denial,  all  the  facts  can  be 
shown.  Clark  v.  Marbourg,  33  Kan. 
471. 

Waiver. — But  the   surcharging  and 


falsifying  may  be  waived.  Unless  the 
evidence  of  surcharging  and  falsifica- 
tion is  objected  to  because  it  is  un- 
authorized by  the  pleading,  the 
failure  to  plead  it  is  waived.  Liscomb 
V.  Agate,  67  Hun  (N.  Y.)  388. 

4.  Price  v.  Eccles,  73  N.  Car.  162. 

5.  Auld  V.  Butcher,  2  Kan.  135. 
But  an  account  is  generally  ordered 
to  be  taken  before  trying  the  validity 
of  a  release,  especially  if  the  com- 
plainant replies  that  he  was  under 
age  when  he  signed  it.  Carter  v. 
Alston,  2  Hayw.  (N.  Car.)  237.  See 
Dampf's  Appeal,  106  Pa.  St.  72.  A 
reference  will  not  be  ordered  where  the 
evidence  shows  that  nothing  is  due. 
Nail  V.  Martin,  4  Ired.  Eq.  (N.  Car.) 
159.  On  the  hearing  of  a  bill  for  an  ac- 
count, the  only  evidence,  as  a  general 
rule,  material  or  competent  is  such  as 
goes  to  prove  or  disprove  the  com- 
plainant's right  to  an  account.  Stand- 
ish  V.  Babcock,  48  N.  J.  Eq.  386  ;  Hud- 
son V.  Trenton  Locomotive,  etc.,  Co., 
16  N.  J.  Eq.  475.  See  article  Refer- 
ences. 

6.  McGillaray  v.  Moser,  43  Kan. 
219;  Armstrong  v.  McAlpin,  18  Ohio 
St.  184.  See  Lubert  v.  Chauviteau,  3 
Cal.  458  ;  58  Am.  Dec.  415  ;  Wall  v. 
Covington,  76  N.  Car.  150.  If  it  ap- 
pears that  defendant  has  unreasonably 
neglected  to  render  an  account,  the 
court  may  impose  the  costs  on  him, 
though  nothing  is  due  plaintiff..  Knapp 
V.  Edwards,  57  Wis.  191.  See  article 
Costs. 

7.  Hudson  v.  Trenton  Locomotive, 
etc.,  Co.,  16  N,  J.  Eq.  475. 

Necessity  for. — Where  the  liability  to 

02 


Accounting  in       A  CCO  UNTS  A  ND  A  CCO  UN  TING. 


Equity. 


Frame  and  Scope.— The  decree  must  direct  to  what  matters  the 
account  shall  extend,  and  in  decreeing  a  general  account,  special 
directions  will  be  rendered  proper  and  necessary  by  the  particu- 
lar circumstances  of  the  case.^  The  decree  usually  directs  that 
all  the  matters  of  account  shall  be  adjusted  down  to  the  time  of 
stating  the  accounts,  although  no  facts  are  stated  in  respect 
to  them  in  the  pleadings.'-* 

Appeal. — An  interlocutory  decree  directing  an  accounting  is  not 
appealable.* 

Dismissal.— After  a  decree  for  an  account  the  complainant  can- 
not dismiss  his  bill  unless  upon  consent  of  defendant.* 

7.  Appellate  Proceedings.  (See  also  Appeals.) — Objections  to  the 


account  is  denied,  there  must  be  an 
interlocutory  decree  finding  such  lia- 
bility, before  there  can  be  a  reference 
to  a  master.  Collyer  v.  Collyer,  38 
Pa.  St.  257.  There  is  no  necessity  for 
an  interlocutory  decree  to  account 
where  the  parties  have  agreed  on  a 
final  settlement,  unless  ground  is  laid 
for  surcharging  and  falsifying  the  ac- 
count stated.  Calvit  v.  Markham,  3 
How.  (Miss.)  343.  If  on  the  hearing 
the  several  items  of  account  between 
the  parties  have  been  ascertained,  the 
court  can  render  judgment  for  the 
aggregate.  Blodgett  v.  Hitt,  29 
Wis.  171.  See  Ruckman  v.  Decker,  28 
N.  J.  Eq.  5.  Where  an  interlocutory 
order  for  an  account  is  not  reheard, 
it  ought'  to  be  taken  as  a  declara- 
tion that  the  plaintiff  is  entitled  to 
the  account  prayed  for.  Bailey  v. 
Wilson,  I  Dev.  &  B.  Eq.  (N.  Car.) 
182. 

Court  May  Take  Account. — The  court 
may  itself  take  or  state  the  account 
without  a  reference  to  a  master.  Em- 
ery V.  Mason,  75  Cal.  222. 

1.  Hudson  V.  Trenton  Locomotive, 
etc.,  Co.,  16  N.  J.  Eq.  476.  See  Os- 
ment  v.  McElrath,  68  Cal.  466  ;  58  Am. 
Rep.  17,  where  the  findings  were  held 
sufficient.  The  decree  for  an  account 
should  be  according  to  the  finding  of 
the  jury.  Todd  v.  Clark,  i  Desaus. 
Eq.  (S.  Car.)  112.  But  a  mere  formal 
error  does  not  vitiate  a  decree.  Turner 
V.  Morris,  27  Miss.  737. 

Principles  of  the  Case. — The  court 
ought  to  settle  the  principles  of  the 
case,  and  put  them  in  the  form  of  in- 
structions to  the  master.  Hunt  v. 
Gorden,  52  Miss.  194. 

Agreements. — The  court  must  settle 
the  construction  and  effect  of  agree- 
ments between  the  parties,  by  which 
their  mutual  dealings  were  regulated. 


and  by  which,  consequently,  the  ac- 
count must  be  controlled.  Hudson 
V.  Trenton  Locomotive,  etc.,  Co.,  16 
N.  J.  Eq.  475. 

Sales. — The  court  may  specify  as  to 
how  a  sale  in  an  accounting  suit  is  to 
be  conducted.  More  v.  Calkins,  85 
Cal.  177.  But  the  decree  appointing 
a  receiver  to  sell  need  not  expressly 
require  him  to  act  under  oath,  or  to 
make  return  of  his  doings.  Tomlin- 
son  V.  Ward,  2  Conn.  400. 

Numbering  Directions. — In  England, 
where,  by  any  decree  or  order,  any  ac- 
counts are  directed  to  be  taken,  such 
direction  is  to  be  numbered,  so  that 
each  distinct  account  may  be  desig- 
nated by  a  number.  Daniell  Ch.  PL 
&  Pr.,  vol.  2,  1005. 

2.  Crosbie  v.  Leary,  6  Bosw.  (N. 
Y.)  312  ;  Neel's  Appeal,  3  Penny  (Pa.) 
66  ;  Hagar  v.  Whitmore,  82  Me.  248  ; 
Moore  v.  Swanton  Tanning  Co.,  60  Vt. 
459  ;  Boyd  v.  Foot,  5  Bosw.  (N.  Y.) 
no.  See  McCaskill  v.  McBryde,  2 
Ired,  Eq.  (N.  Car.)  52. 

Eeservation. — Reservation  in  a  judg- 
ment of  leave  to  apply  for  an  account 
may  be  made.  Madison  Ave.  Baptist 
Church  V.  Baptist  Church,  43  N.  Y. 
Super.  Ct.  157.  See  Youngs  z/.  Youngs, 
53  N.  Y.  613. 

3.  Duff  V.  Duff,  71  Cal.  513.  See 
Jenks  V.  Langdon,  21  Ohio  St.  362. 
The  court  will  never  suspend  proceed- 
ings under  the  decree,  on  the  mere 
ground  that  if  they  are  prosecuted  the 
parties  will,  if  the  decree  is  reversed, 
be  put  to  unnecessary  expense.  The 
taking  of  the  account  will  not  be  sus- 
pended. Daniell  Ch.  PI.  &  Pr.,  vol. 
2,  1471- 

4.  Cozzens  v.  Sisson,  5  R.  I.  489  ; 
Daniell  Ch.  PI.  &  Pr.,  vol.  i,  794.  See 
also  as  to  decrees  in  accounting  cases, 
article  Decrees. 


103 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING. 


Equity. 


account  will  not  be  noticed  in  the  appellate  court  unless  excep- 
tions were  filed  in  the  court  below.*  And  where  an  intricate  ac- 
count is  brought  up  with  a  reference  to  a  master,  and  the  burden 
of  stating  it  is  thus  sought  to  be  imposed  on  the  appellate  court, 
the  court  will  reverse  in  order  that  a  reference  may  be  had.* 

8.  Parties. — The  rule  which  requires  that  all  parties  interested 
in  the  object  of  a  suit  should  be  parties  to  the  bill  applies  to  all 
cases  in  which  an  account  is  sought  against  a  defendant.  One 
person  cannot  exhibit  a  bill  against  an  accounting  party  without 
bringing  before  the  court  all  persons  who  are  interested  in  having 
the  account  taken,  or  in  the  result  of  it,  otherwise  the  defendant 
might  be  harassed  by  as  many  suits  as  there  are  parties  interested 
in  the  account.^ 

Partners.— Thus,  in  a  suit  for  a  partnership  account,  or  for  a 
share  of  a  partnership  adventure,  it  is  in  general  necessary  that 
all  persons  having  shares  in  the  same  adventure  should  be  parties.* 


1.  Williamson  v.  Downs,  34  Miss. 
402. 

2.  Steere  v.  Hoagland,  39  111.  264  ; 
Bressler  v.  McCune,  56  111.  475  ;  Groch 
V.  Stenger,  65  111.  481  ;  River  v.  Tous- 
lee,  62  111.  266  ;  Sallee  v.  Morgan,  67 
111.  376  ;  Moss  V.  McCall,  75  111.  190  ; 
Patten  v.  Patten,  75  111.  446  ;  Mosier  w. 
Norton,  83  111.  519  ;  Quayle  v.  Guild, 
83  111.  553  ;  Daly  v.  St.  Patrick's  Cath- 
olic Church,  97  111.  19;  Cooper  v.  Mc- 
Neil, 9  111.  App.  97  ;  Gibbs  v.  Meserve, 
12  111.  App.  613  ;  Dubourg  de  St. 
Colombe  v.  U.  S.,  7  Pet.  (U.  S.)  625. 
Where  the  cause  has  been  sent  back  by 
the  court  of  appeals  for  a  further  ac- 
count, so  much  of  the  account  as  was 
reported  prior  to  the  decree  needs  not 
to  be  supported  by  proof.  Henshaw 
V.  Freer,  Bailey  Eq.  (S.  Car)  311.  See 
article  Appeals. 

3.  Daniell  Ch.  PI.  &  Pr.,  vol.  i,  216  ; 
Story  Eq.  PI.  §  218  ;  Moffat  v.  Far- 
quharson,  2  Bro.  C.  C.  338  ;  Evans 
V.  Stokes,  I  Keen  24;  Stafford  v. 
London,  2  Eq.  Abr.  166  ;  Cowslad  v. 
Cely,  Pre.  Ch.  83  ;  Scurry  v.  Morse,  9 
Mod.  89  ;  Darthez  v.  Clemens,  6  Beav. 
165.  The  practice  used  to  formerly 
.obtain  in  chancery  of  referring  the  case 
to  a  master  to  inquire  if  all  the  persons 
interested  were  made  parties.  Daniell 
Ch.  PI.  &  Pr.,  vol.  I,  218  ;  Sandilands 
V.  Innes,  3  Sim.  264 ;  Waite  v.  Tem- 
pler,  I  S.  &  S.  319.  As  a  general 
rule,  when  by  a  fair  construction  of 
the  bill,  or  at  any  stage  of  the  pro- 
ceedings, it  becomes  certain  that  the 
judgment  or  decree  must  necessarily 
be   directly   against    such   of   the  re- 


spondents named  as  reside  without 
the  jurisdiction,  and  that  no  judg- 
ment or  decree  can  be  rendered 
against  the  respondent  before  the 
court  without  embracing  and  being 
binding  on  them  or  the  estate  in 
which  they  have  an  interest,  the 
hearing  cannot  ordinarily  proceed 
without  them.  Lawrence  v.  Rokes, 
53  Me.  no. 

4.  Ireton  v.  Lewis,  Rep.  temp. 
Finch  96  ;  Moffat  v.  Farquharson,  2 
Bro.  C.  C.  338  ;  Good  v.  Blewit,  13 
Ves.  397  ;  Hills  v.  Nash,  i  Ph.  594  ; 
Cullenz/.  Queensbury,!  Bro.  C.  C.  loi  ; 
Dozter  v.  Edwards,  3  Litt.  (Ky.)  72  ; 
Wells  V.  Strange,  5  Ga.  22  ;  Mudgett 
V.  Gager,  52  Me.  541  ;  Parsons  v. 
Howard,  2  Woods  (U.  S.)  i;  Wilson  v. 
Lassen,  5  Cal.  115;  Colman  v.  Clem- 
ents, 2.3  Cal.  247;  Young  v.  Allen,  52 
Cal.  466.  All  those  owning  interests 
in  a  mining  partnership  must  be  par- 
ties to  a  bill  filed  for  an  account  of  the 
business.  Settembre  v.  Putnam,  30 
Cal.  490.  In  a  suit  for  an  accounting  be- 
tween partners,  a  firm  with  whom  they 
dealt  are  not  necessary  parties.  Fisher 
V.  Sweet,  67  Cal.  230.  And  a  guaran- 
tor of  one  partner  is  not  a  proper 
party  to  a  suit  for  an  account  of  the 
partnership  property.  Bissell  v.  Ames, 
17  Conn.  126. 

Betiring  Partner. — A  retiring  partner 
should  be  a  party  to  an  accounting 
suit.  Wilson  v.  Lassen,  5  Cal.  115. 
But  a  partner  who  has  sold  his  inter- 
est to  another  partner  is  not  a  neces- 
sary party.  Kilbourn  v.  Sunderland, 
130  U.  S.  505.     But  where  the  interest 


104 


Accounting  in       ACCO  UNTS  AND  ACCO  UN  TING. 


Equity. 


Corporations.— When  a  stockholder  brings  an  action  on  behalf 
of  the  corporation  against  the  directors  for  an  accounting  of 
moneys  belonging  to  it,  the  corporation  is  a  necessary  party 
defendant.^ 

Assignees.— In  any  suit  by  a  creditor  against  an  assignee  for  the 
benefit  of  creditors,  to  compel  him  to  account,  all  the  creditors 
and  the  assignor  must  be  parties.* 

Trusts.- All  the  cestuis  que  trustent  entitled  to  the  income  or  any 
part  of  an  estate  in  the  hands  of  a  trustee  are  necessary  parties 
to  a  bill  against  such  trustee  for  an  accounting.* 


of  the  partner  has  been  sold  at  an  exe- 
cution sale,  such  partner  is  a  neces- 
sary party  to  an  accounting  suit  be- 
tween the  other  partner  and  the  pur- 
chaser, even  although  his  whereabouts 
is  unknown.    Wright  v.  Ward,  65  Cal. 

525. 

Insolvents. — In  bill  to  settle  part- 
nership accounts,  insolvent  partners 
must  be  parties;  and  if  bankrupt,  their 
assignees.  Fuller  v.  Benjamin,  23 
Me.  255;  Mallow  v.  Hinde,  12  Wheat. 
(U.  S.)  194. 

Bepresentatives  of  Deceased  Partners. — 
Representatives  of  a  deceased  partner 
should  be  made  parties  to  a  bill  to 
dissolve  a  partnership.  Burchard  v. 
Boyce,  21  Ga.  6.  And  the  heirs  must 
be  made  parties  when  a  sale  of  real 
estate  is  sought  in  an  accounting  case. 
Pugh  V.  Currie,  5  Ala.  446;  Lang  v. 
Waring,  25  Ala.  625;  40  Am.  Dec.  533; 
Andrews  v.  Brown,  21  Ala.  437;  56 
Am.  Dec.  252;  Whitney  v.  Gotten,  53 
Miss.  689.  See  De  Manderfield  v.  Field 
(N.  Mex.,  1893),  32  Pac.  Rep.  146;  Hills 
V.  McRea,  5  Eng.  Law  &  Eq.  233; 
Haig  V.  Gray,  i  De  G.  &  S.  741;  Van 
Aken  v.  Clark,  82  Iowa  256. 

1.  Beach  v.  Cooper,  72  Cal.  99; 
Moyle  V.  Landers,  83  Cal.  579.  And 
trustees  of  a  dissolved  corporation  are 
necessary  parties  to  any  action  affect- 
ing the  corporate  property.  Clark  v. 
San  Francisco,  53  Cal.  306.  When  a 
member  of  an  unincorporated  associa- 
tion sues  the  president  or  other  chief 
officer  for  an  accounting,  all  the  mem- 
bers must  be  made  parties,  or  the 
plaintiff  must  sue  for  the  benefit  of  all. 
Warth  V.  Radde,  18  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  396.  And  when  a  judg- 
ment creditor  of  a  corporation  files  a 
bill  for  an  account  from  the  estate  of 
a  deceased  stockholder,  all  the  other 
stockholders,  or  their  personal  repre- 
sentatives, must  be  made  parties.   New 


England  Commercial  Bank  v.  Stock- 
holders, 6  R.  I.  154. 

2.  McPherson  v.  Parker,  30  Cal. 
456  ;  89  Am.  Dec.  129.  And  in  a  bill 
by  the  assignor  against  the  assignee, 
all  the  creditors  are  necessary  parties. 
Carpenter  v.  Robinson,  i  Holmes 
(U.  S.)  67  ;  James  v.  Atlantic  Delaine 
Co.,  3  Cliff.  (U.  S.)6i4.  But  where  the 
creditors  have  a  right  to  appear  be- 
fore the  referee  as  though  they  were 
parties,  a  motion  that  they  be  brought 
in  as  plaintiffs  will  not  be  granted. 
Douglas  V.  Smith  (Supreme  Ct.),  21 
N.  Y.  Supp.  813. 

3.  Speakman  v.  Tatem,  45  N.  J.  Eq. 
388  ;  Stevens  v.  Melcher  (Supreme 
Ct.),  6  N.  Y.  Supp.  811  ;  Eldredge  v. 
Putnam,  46  Wis.  205  ;  Hubbard  v. 
Burrell,  41  Wis.  365  ;  Strohn  v.  Hart- 
ford F.  Ins.  Co.,  33  Wis.  648  ;  Mc- 
Cabe  V.  Bellows,  i  Allen  (Mass.)  269; 
Wilcox  V.  Pratt,  125  N.  Y.  688  ;  Norris 
V.  Hassler,  22  Fed.  Rep.  401  ;  Hind- 
marsh  V.  Southgate,  3  Russ.  324  ;  Hol- 
land V.  Prior,  i  Myl.  &  K.  237  ;  An- 
derson V.  Gaunter,  2  Myl.  &  K.  763  ; 
Palk  V.  Clinton,  12  Ves.  48  ;  Hobart  z'. 
Abbot,  2  P.  Wms.  643  ;  Norrish  v. 
Marshall,  5  Madd.  475  ;  Lockwood  7*. 
Abdy,  14  Sim.  437  ;  Murphy  v.  Jack- 
son, 5  Jones  Eq.  (N.  Car.)  11  ;  Ogil- 
vie  V.  Knox  Ins.  Co.,  2  Black  (U.  S.) 
539;  Brantly  z/.  Kee,  5  Jones  Eq.  (N. 
Car.)  332  ;  Fleming  v.  Gilmer,  35  Ala. 
62;  Gridley  z/.  Wynant,  23  How.  (U.S.) 
500  ;  New  Jersey  Franklinite  Co.  v. 
Ames,  12  N.  J.  Eq.  507 ;  Ashley  v. 
Sumner,  4  Jones  Eq.  (N.  Car.)  121  ; 
Bell  V.  Donohue,  8  Sawy.  (U.  S.) 
4S5  ;  Howth  V.  Owens,  29  Fed.  Rep. 
722  ;  Conolly  v.  Wells,  33  Fed.  Rep. 
205  ;  Parsons  v.  Neville,  3  Bro.  C.  C. 
365  ;  Cockburn  v.  Thompson,  16  Ves. 
328  ;  Pritchard  v.  Hicks,  i  Paige  (N.Y.) 
270  ;  Sheppardz'.  Starke,  3  Munf.  (Va.) 
29;  Brown  v.  Ricketts,  3  Johns.  Ch.  (N. 


Accounting  in       A  CCO  UNTS  AND  ACCO  UN  TING. 


Equity. 


"Unnecessary  Persons.— There  is  no  objection  to  joining  persons  as 
parties  who  are  not  necessary.  No  objection  can  be  taken  to  this 
by  a  necessary  party.* 

Waiving  Belief.— The  plaintiff  may  waive  relief  which  requires  the 
presence  of  other  necessary  parties,  and  take  only  that  which  may 
be  granted  without  them.* 


Y.)  553  ;  Davoue  v.  Fanning,  4  Johns. 
Ch.  (N.  Y.)  199  ;  West  v,  Randall,  2 
Mason  (U.  S.)  181  ;  Huson  v.  McKen- 
zie,  I  Dev.  Eq.  (N.  Car.)  467;  Aren- 
dell  V.  Blackwell,  i  Dev.  Eq.  (N.  Car.) 
358  ;  Bethell  v.  Wilson,  i  Dev.  &  B.  Eq. 
(N.  Car.)  610;  Kettle  v.  Crary,  i 
Paige  (N.  Y.)  417  note  ;  Ross  v.  Crary, 
T  Paige  (N.  Y.)  416  ;  Hallett  v.  Hallett, 

2  Paige  (N.  Y.)  19  ;  Egberts  v.  Wood; 

3  Paige  (N.  Y.)  517  ;  24  Am.  Dec.  236  , 
Sherrit  v.  Birch,  3  Bro.  C.  C.  229;  Da- 
vies  V.  Davies,  11  Eng.  Law  &  Eq. 
199  ;  Lenaghan  v.  Smith,  2  Ph.  301  ; 
Smith  V.  Snow,  3  Madd.  10  ;  Hares  v. 
Stringer,  15  Beav.  206  ;  Grace  v.  Ter- 
rington,  i  Coll.  3  ;  Barbour  v.  Whit- 
lock,  4  T.  B.  Mon.  (Ky.)  180  ;  Reid  v. 
Vanderheyden,  5  Cow.  (N.  Y.)  719  ; 
Hawkins  V.  Hawkins,  i  Hare  543  ; 
Caldecott  v.  Caldecott,  Cr.  &  Ph.  183  ; 
Shuttleworth  v.  Howarth,  Cr.  &  Ph. 
230  ;  Noland  v.  Turner,  5  J.  J.  Marsh. 
(Ky.)  179  ;  West  v.  Randall,  2  Mason 
(U.  S.)  181  ;  Kellar  v.  Beelor,  5  T.  B. 
Mon.  (Ky.)  573  ;  Oldham  v.  Collins,  4 
).  J.  Marsh.  (Ky.)  50.  Where  a  creditor 
tiles  a  bill  against  a  trustee,  any  cred- 

tor  may  come  in  under  the  decree 
while  the  fund  is  in  the  control  of  the 
court.  Brooks  v.  Gibbons,  4  Paige 
^N.  Y.)  374- 

1.  Story  Eq.  PI.  §  221  ;  Fletcher  v. 
Ashburner,  i  Bro.  C.  C.  497  ;  West 
V.  Randall,  2  Mason  (U.  S.)  197  ; 
Saville  v.  Tankred,  i  Ves.  loi  ;  Pari. 
Cases,  by  Tomlins,  174  ;  Bailey  v. 
Inglee,  2  Paige  (N.  Y.)  278  ;  Butler  v. 
Prendergast,  4  Bro.  P.  C.  174  ;  Lock- 
wood  V.  Abdy,  14  Sim.  437.  The  par- 
ties cannot  object  if  the  court  inves- 
tigates and  adjusts  the  accounts  of 
third  parties,  if  they  are  so  interwo- 
ven with  the  subject-matter  of  the  suit 
as  to  make  it  necessary,  and  no  injury 
can  be  claimed  to  have  been  caused 
thereby.  Butler  v.  Cornwall  Co.,  22 
Conn.  359.  In  an  action  against  one  for 
an  accounting,  another  may  be  joined 
as  a  party  for  the  purpose  of  explain- 
ing a  transaction  between  himself  and 
the  plaintiff,  although  no  decree  is 
asked  against  him.     Buie  v.  Mechan- 


ics, etc.,  Assoc,  74  N.  Car.  117.  See 
Rowland  v.  Gardner,  69  N.  Car.  53. 

2.  Settembre  v.  Putnam,  30  Cal. 
491;  Harvey  v.  Cooke,  4  Russ.  34;  Car- 
ter V.  New  Orleans,  19  Fed.  Rep.  659. 
But  the  plaintiff  must  undertake  to 
give  effect  in  the  cause  to  the  utmost 
rights  which  the  absent  party  could 
have  claimed  if  he  had  been  before  the 
court;  and  it  must  be  plain  that  the 
decree  will  not  bind  and  cannot  be  en- 
forced against  the  absent  party,  and 
that  all  questions  are  left  open  as  to 
him.  Lawrence  v.  Rokes,  53  Me.  no; 
Story  Eq.  PI.  ^  220.  And  the  court 
may  require  that  parties  not  served 
have  actual  knowledge  of  the  penden- 
cy of  the  bill.  Lawrence  v.  Rokes,  53 
Me.  no;  Fuller  v.  Benjamin,  23  Me. 
258. 

Method  ofWaiver. — A  mere  allegation 
in  the  bill  that  the  plaintiff  does  no* 
claim  that  there  is  due  to  him  any- 
thing from  the  defendant  not  served  is 
not  enough;  he  must  by  distinct  aver- 
ments show  that  the  decree  cannot 
affect  the  absent  defendant.  Mudgett 
V.  Gager,  52  Me.  541.  See  Towle  v. 
Pierce,  12  Met.  (Mass.)  329;  44  Am. 
Dec.  679;  Vose  v.  Philbrock,  3  Story 

(u.  s.)  335. 

Some  Accounted  with. — The  most 
usual  exception  to  the  rule  requiring 
all  persons  interested  in  the  accounts 
to  be  parties  is  that  which  allows  the 
plaintiff  to  waive  his  rights  against 
those  who  have  been  paid  and  ac- 
counted with,  and  proceed  against  the 
trustee  alone.  Daniell  Ch.  PI.  &  Pr., 
vol.  I,  218;  D'Wolf  V.  D'Wolf,  4  R.  L 
450;  Branch  v.  Booker,  3  Munf.  (Va.) 
43  ;  Moore  v.  Beauchamp,  5  Dana 
Ky.)  71  ;  Weymouth  v.  Boyes,  i  Ves. 
Jr.  416  ;  Hills  v.  Nash,  i  Ph.  594  ; 
Brown  v.  DeTastet,  Jac.  284;  Bray 
V.  Fromont,  6  Madd.  5  ;  Perry  v. 
Knott,  5  Beav.  293;  Smith  v.  Snow,  3 
Madd.  10;  Hares  v.  Stringer,  15  Beav. 
206;  Lenaghan  v.  Smith,  2  Ph.  301; 
Hunt  V.  Peacock,  6  Hare  361;  Milh- 
gan  V.  Milledge,  3  Cranch  (U.  S.)  220; 
West  V.  Randall,  2  Mason  (U.  S.)  196; 
Weymouth  v.   Boyes,  i   Ves.  Jr.  416;. 

06 


Accounting  in       A  CCO  UNTS  AND  A  CCO  UN  TING, 


Equity. 


9.  Proceedings  to  impeach  an  Account— The  Bill  or  Complaint.— The 
bill  or  complaint  filed  to  open  an  account  must  distinctly  allege 
the  ground  upon  which  it  is  sought  to  set  the  account  aside.  The 
error,  mistake,  or  fraud  must  be  alleged  with  particularity.* 

Tovvle  V.  Pierce,  12  Met.  (Mass.)  329; 
44  Am.  Dec.  679;  Vose  v.  Philbrock,  3 
Story  (U.  S.)  335;  Lawrence  v.  Rokes, 
53  Me.  no;  Mudgett  v.  Gager,  52  Me. 
541;  Palmer  v.  Stevens.  100  Mass. 
461. 

Liable  to  Account  Severally. — In  a  case 
where  there  are  several  persons,  each 
of  whom  is  liable  to  account  for  his 
own  receipts,  a  plaintiff  is  allowed  to 
file  a  bill  against  one  or  more  of  them 
for  an  account  of  his  or  their  own  re- 
ceipts and  payments,  without  making 
the  others  parties  to  the  suit.  Daniell 
Ch.  PI.  &  Pr.,  vol.  I.  271;  Cowslad  v. 
Cely,  Pre.  Ch.  83;  Devaynes  v.  Robin- 
son, 24  Beav.  86;  Kellaway  v.  John- 
son,5  Beav.  319;  Perry  v.  Knott, 5  Beav. 
293  ;  Shipton  v.  Rawlins,  4  Hare  622; 
Hall  V.  Austin,  2  Coll.  570. 

1.  Brodrib  v.  Brodrib,  56  Cal.  566; 
Branger  v.  Chevalier,  9  Cal.  353 ;  Cross 
V.  Sacramento  Sav.  Bank,  66  Cal.  462; 
Hopkins  v.  Beard,  6  Cal.  664;  Terry 
V.  Sickles,  13  Cal.  427;  Dominguez  v. 
Dominguez,  7  Cal.  424;  Kronenberger 
V.  Binz,  56  Mo.  121;  Stoughton  v. 
Lynch,  2  Johns.  Ch.  (N.  Y.)  209  ;  Ley- 
craft  V.  Dempsey,  15  Wend.  (N.  Y.) 
83;  Threlkeld  v.  Dobbins,  45  Ga.  144; 
Colburn  v.  Lansing,  46  Barb.  (N.  Y.) 
37  ;  Langdon  v.  Roane,  6  Ala.  518;  41 
Am.  Dec.  60;  Badger  z/.  Badger,  2  Cliff. 
(U.  S.)  137  ;  Horan  v.  Long,  11  Tex. 
229;  Stearns  v.  Page,  7  How.  (U.  S.) 
819;  Chubbuck  v,  Vernam,  42  N.  Y. 
432;  Porter  v.  Wormser,  94  N.  Y.  431; 


Brown  v.  Welsh,  27  N.  J.  Eq.  429 ; 
Mebane  v.  Mebane,  i  Ired.  Eq.  (N. 
Car.)  403;  Harrison  v.  Bradley,  5  Ired. 
Eq.  (N.  Car.)  136;  Daniell  Ch.  PI.  & 
Pr.,  vol.  I,  372.  But  see  Shugart  v. 
Thompson,  10  Leigh  (Va.)  452,  where 
it  was  held  that  the  bill  should  be  con- 
strued liberally. 

Fraud. — While  the  party  may  not 
surcharge  and  falsify  at  large,  but 
only  for  items  pointed  out  in  the  bill, 
yet  if  there  is  a  suspicion  of  fraud  cast 
upon  the  whole  account,  the  liberty  to 
surcharge  and  falsify  is  unrestricted, 
notwithstanding  the  bill  contains  no 
direct  averment  of  fraud.  Farnam  v. 
Brooks,  9  Pick.  (Mass.)  212;  Bullock  v. 
Boyd,  Hoffm.  Ch.  (N.  Y.)294;  Daniell 
Ch.  PI.  &  Pr.,  vol.  I,  668. 

Reply. — Where  the  defendant  pleads 
specially  denying  each  error  and  also 
all  fraud,  the  plaintiff  must  take  issue 
and  prove  the  error  or  fraud,  or  the 
court  will  not  disturb  the  account. 
Blackledge  v.  Simpson,  i  Hayw.  (N. 
Car.)  259.  See  Houston  v.  Dalton,  70 
N.  Car.  662;  Compton  v.  Culberson,  2 
Dev.  Eq.  (N.  Car.)  93. 

Annexing  Account. — If  the  defendant 
pleads  the  account  in  bar  he  must  an- 
nex a  copy  to  the  answer  in  support  of 
his  plea.  Weed  v.  Smull,  7  Paige 
(N.  Y.)  573;  Meeker  v.  Marsh,  i  N.  J. 
Eq.  198;  Seymour  v.  Long  Dock  Co.,  20 
N.  J.  Eq.  396.  And  the  account  should 
be  set  forth  with  particularity,  i  MilL 
418. 


107 


ACTIONS. 

By  W.  L.  Crawford. 

X  What  is  an  Action,  no. 

1.  Generally ;  Definition,  no. 

2.  Special  Proceedings,  112. 

a.  Generally,  \\i. 

b.  Particular  Proceedings,  112. 

II.  What  is  a  Cause  of  Action,  ii6. 
III.  When  is  an  Action  Commenced,  119. 

1 .  Generally,  119. 

2,  /«  the  Various  States,  119. 

TV".  Abolition  of  Forms  of  Action,  141. 

1.  Statutory  Provisions,  141. 

2.  Common-law  Distinction  Preserved  at  first,  142. 

3.  The  True  Pule  Followed,  J 43. 

4.  Substantive  Distinction  Preserved,  144. 

5.  A'(0  New  Causes  of  Action  Created,  145. 

6.  The  Civil  Action  a  Substitute,  145. 

V.  Character  of  Action  ;  How  Determined  under  Code,  146. 

1.  A  Question  of  Construction,  146. 

2.  When  the  Prayer  ?nay  be  Consulted,  147. 

3.  Actions  Ex  Contractu  and  Actions  Ex  Delictu,  i/^y. 

TI.  Splitting  Causes  of  Action,  148. 

1.  Generally,  148. 

2.  What  Constitutes  an  Entire  Cause  of  Action,  150. 

3.  Contracts  Generally,  151. 

4.  Specific  Contracts,  153. 

a.  Sales,  153. 

b.  Acounts,  153. 

c.  Instabnents,  154 

d.  Rent,  155. 

e.  Notes,  156. 

f.  fudgments,  156. 

g.  Services,  157. 

^.  Insurance  Policies,  157. 
/.  Interest,  i  57. 
y.  Assignments,  158. 
>6.  Collateral  Securities,  1 58. 
/.  Fraud,  158. 

5.  T'ijr/j,  159. 

6.  Claims  as  to  Real  Property,  162. 

7.  Fraud  and  Concealment  by  Defendant,  162. 

X08 


ACTIONS. 
VII.  Joinder  of  Actions  at  Common  Law,  163. 

1.  Comvwn-law  Slates,  163. 

2.  Joinder  of  Actions  Dependent  on  Form,  164. 

3.  Single  Cause  of  Action,  165, 

4.  Inconsistent  Counts,  166. 

5.  Debt,  167. 

6.  Trover  and  Case,  1 68.  ^ 

7.  Assumpsit,  169. 

8.  Trespass,  169. 

9.  Actions  Ex  Contractu  and  Actions  Ex  Delictu,  170. 

10.  Penalties,  171. 

11.  Touch inir  Real  Estate,  iy2)- 

12.  Certiorari  and  Mandamus,  17^. 

13.  Replevin,  174. 

14.  Slander  and  Malicious  Prosecution,  174. 

15.  Statement  of  Same  Cause  in  Different  Forms,  174. 

16.  Actions  at  Law  and  Suits  in  Equity,  175. 

17.  Louisiana,  176. 

18.  Actions  Brought  in  a  Representative  Capacity,  lyy. 

1 9.  Joinder  in  Equity,  1 80. 

vm.  Joinder  of  Causes  of  Action  under  the  Codes,  i8o. 

1.  Code  States,  180. 

2.  Causes  of  Action  Arising  out  of"  Same  Transaction,"  181.- 

a.  Generally,  181. 

b.  Single  Catise  of  Action,  183. 

c.  Meaning  of  the  Term  "  Transaction,"  185. 

d.  Damage  to  Land  and  Personal  Itijury,  1 86. 

e.  Injuries  to  Real  Property  and  Other  Causes  of  Action,  \ZG.. 

f.  Equitable  Remedies  Asked  Touching  Land,  187. 

g.  Courts  Inclined  to  Segregate  Real  Property  Cases,  188. 
h.  Assault  and  Battery  and  Slander,  1 88. 

/.   False  Imprisonment  and  Slander,  \%g. 
J.   False  Imprisonment  and  Malicious  Prosecution,  1 89. 
k.  Warranty  and  Fraud,  189. 

/.   Person  and  Property  Injured  by  Same  Negligent  Act,  1 89. 
m.  Multifariousness,  189. 

n.   Transaction   Must    Give   Causes    of   Action    in    Same- 
Right,  190. 
o.  California,  190. 
p.  Miscellaneous,  190. 

3.  Penalties,  191. 

4.  Judgments,  193. 

5.  hijuries  to  Character,  193. 

6.  Causes  of  Action  Ex  Delictu  and  Ex  Contractu,  194. 

a.  Generally,  194. 

b.  Complaint  to  be  Drawn  Upon  Definite  Theory,  194. 

c.  Cases  Involving  Conversion  of  Property,  195, 

d.  Miscellaneous,  196. 

7.  Causes  of  Action  Arising  Ex  Contractu,  197. 

8.  Divorce  Proceedings,  199. 

9.  Injuries  to  Property,  199. 

10.  Actions  to  Recover  Real  Property,  200. 

11.  Partition,  202. 

12.  Foreclosure,  203. 

13.  Torts,  204. 

14.  Mechanics'  Lien,  205. 

109 


What  is  an  Action.  ACTIONS.  Generally,  Definition. 

15.  Replevin,  205. 

16.  Forcible  Entry  and  Detainer,  206. 

17.  Certiorari,  206. 

18.  Mandaimts,  206. 

19.  Full  Relief,  206. 

a.  Generally,  206. 

b.  Legal  and  Equitable  Relief  Asked,  208. 

20.  Causes  of  Action  Must^  Exist  at   Time  of  Commencement  on 

Suit,  209. 

21.  Must  Affect  all  Parties,  2og. 

a.  Generally,  209. 

b.  Husbattd  and  Wife,  210. 

c.  Represetitative  Capacity,  210. 

As  to  Various  Forms  and  Kinds  of  Actions,  see  the  respective  titles,  as 

ASSUMPSIT,  A  TTACHMENT,  etc. 
Parties  to  Actions,  see  PAR  TIES. 

Abatement  of  Actions,  see  cross-references  under  ABA  TEMENT. 
Consolidation  of  Actions,  see  CONSOLIDA  TION. 
Election  of  Remedies,  see  ELECTION. 
Veftue  of  Actions,  see  VENUE. 
Appearances,  see  that  title. 

I.  What  is  an  Action.— 1.  Generally;  Definition.— The  term 
"action"  is  a  comprehensive  one  and  is  applicable  to  almost  any 
proceeding  in  a  court  of  justice  by  which  an  individual  pursues 
that  remedy  which  the  law  affords  him.' 

Legislative  Meaning.— Like  its  counterpart,  "cause  of  action,"  the 
term  **  action  "  is  often  used  in  statutes  with  no  very  precise  defini- 

1.  Weston  V.  Charleston,  2   Pet.  (U.  actions  at  law,  suits  in  chancery,  pro- 

S.)449.  ceedings   in    admiralty,  and  all    other 

"Action"     Defined. — In     Cohens    v.  judicial  controversies  in  which   rights 

Virginia,   6  Wheat.   (U.  S.)  264,  Mar-  of  property  are  involved,  whether  be- 

shall,  C.  J.,  said  :     "  In  law  language  tween  private  parties  or  such  parties 

a  suit  is  the  prosecution   of  some  de-  and  the  government.     It  is  used  here 

mand    in    a    court    of   justice.     .     .     .  in  contradistinction  to  prosecutions  for 

To  commence  a  suit    is    to    demand  crime  ;"  and   see  the   following  cases 

something  by  the  institution  of  process  citing  this  with   approval:     Green   v. 

in  a  court  of  justice  ;  and  to  prosecute  U.  S.,  9  Wall.   (U.   S.)  ,655;    Rison  v. 

a  suit  is  to  continue  that  demand."  Crebbs,    i    Dill.  (U.  S.)  184;    Fenster- 

In    McBride's    Appeal,    72    Pa.    St.  macher  v.  State,  19  Oregon  504. 

480,  a  suit  or  action  is  thus  defined  :  "Suit,"  "  Cause,"  and  "Action." — In 

"  A  suit  or  action,  according  to  its  legal  Cornish  v.  Milwaukee,  etc.,  R.  Co.,  60 

definition,    is    the    lawful    demand    of  Wis.   476,    Orton,  J.,  at  p.    476,    says  : 

one's  right  in  a  court  of  justice."  And  "  The  legal  signification  of  the    word 

this    is    substantially    the     definition  '  suit '  comprehends  the  prosecution  of 

given  by  Blackstone.     3  Black.  Com.  any  claim,  demand,  or  request,  and  is 

116.  much  broader  than  the  term  '  action,' 

In  Hunter's  Will,  6  Ohio  499,  501,  this  and  may  embrace  it,  but  does  not  de- 
definition  is  given  :  "  I  should  define  fine  it."  But  other  cases  have  held  that, 
an  action  to  be  an  abstract  legal  right  in  any  legal  sense,  action,  suit,  and 
in  one  person  to  prosecute  another  in  cause  are  convertible  terms.  £x  p. 
a  court  of  justice  ;  and  a  suit,  the  Milligan,  4  Wall.  (U.  S.)  2  ;  Hunter's 
actual  prosecution  of  such  right  in  a  Will,  6  Ohio  499. 
court  of  justice."     Per  Wright,  J.  Suit  in  Equity. — The  term  action  in- 

Mr.  Justice  Miller,  in  U.  S.  v.  10,000  eludes  suits  in  equity  as  well  as  pro- 
Cigars,  I  Woolw.  (U.  S.)  125,  said  :  ceedings  at  law.  Central  Pac.  R.  Co. 
"  The  phrase  '  civil  actions'  includes  v.  Dyer,  i  Sawy.  (U.  S.)  641. 


What  is  an  Action. 


ACTIONS. 


Oenerally,  Definition. 


tion,  and  the  duty  then  devolves  on  the  courts,  in  the  construc- 
tion thereof,  of  finding  the  legislative  meaning.^ 

As  Used  in  Private  Contracts.— The  term  is  often  used  in  contracts 
between  private  persons  ;  in  which  case,  unless  restrained  by  the 
context,  it  receives  the  same  construction  as  the  courts  give  to 
"  action  "  generally.*-* 


1.  Actions  by  the  Crown. — In  Brad- 
laugh  V.  Clarke,  L.  R.  8  App.  Cas.  354, 
the  meaning  of  the  term  "action  "is 
most  elaborately  considered.  The  case 
involved  the  construction  of  a  penal 
statute,  allowing  a  penalty  of  ;f^500, 
"to  be  recovered  hy  action  in  one  of 
her  Majesty's  Superior  Courts  at 
Westminster,"  upon  any  member  of 
the  House  of  Commons  voting  as  such 
in  the  House  or  sitting  during  any  de- 
bate after  the  Speaker  has  been  chosen 
without  having  made  and  subscribed 
the  oath  thereby  appointed.  The 
question  was  whether  this  statute 
could  be  sued  on  by  a  common  in- 
former, or  whether  the  Crown  alone 
could  sue.  The  argument  was  wholly 
over  the  construction  of  the  word  "  ac- 
tion "  as  used  in  the  statute.  It  was 
held  that  the  Crown  alone  could  sue, 
and  that  an  action  did  not  lie  by  a 
common  informer.  As  Lord  Selborne, 
L.  C,  went  into  the  subject  very  mi- 
nutely, we  quote  at  length  from  his 
opinion  :  "  I  am  also  satisfied  after  full 
consideration  that  the  word  '  action  '  is 
(as  Lord  Justice  Lush  said)  a  generic 
term,  inclusive,  in  its  proper  legal 
sense,  of  suits  by  the  Crown,  and, 
therefore,  not  furnishing  any  sufficient 
ground  for  implying  a  right  of  action 
in  a  common  informer.  That  it  is 
used  as  a  '  nomen  generalissimuni  '  in 
this  particular  statute  seems  probable, 
from  the  fact  that  it  stands  there  alone, 
without  having  superadded  to  it  a  num- 
ber of  other  technical  terms  wliich  are 
usually  found  associated  with  it  in 
earlier  statutes.  Lord  Coke  (Coke 
Litt.  284b,  285a)  adopts  Bracton's  defi- 
nition of  an  '  action  ' :  '  Actio  nihil  a  Hud 
est  quam  jus  proseqtcendi  in  judicio  quod 
alicui  debeter.'  In  the  third  Institute 
he  says  :  '  The  king  may  have  an  ac- 
tion for  such  wrong  as  is  done  to  him- 
self, and  whereof  none  other  can  have 
any  action  but  the  king,  without  be- 
ing apprised  by  indictment,  present- 
ment, or  other  matter  of  record,  as  a 
quare  impedit,  quare  incumbravit ,  a  writ 
of  attaint,  of  debt,  detinue  of  ward, 
escheat,  scire  facias  pur  repealer  patent.' 


So  also  Fitzherbert:  '  The  king  shall 
have  an  action  of  trespass.'  InComyn's 
Digest,  '  Action  '  (B),  '  the  term  is  ap- 
plied to  various  rights  of  suit  by  the 
Crown,  writ  of  right,  writ  of  escheat, 
and  other  civil  remedies, including  debt 
and  trespass;  and  in  '  Action  (D)'  it  is 
extended  even  to  placita  coronea,  or 
criminal  proceedings;  as  it  is  also  in 
Bacon's  Abridgment  ('actions  in  gen- 
eral ').  In  the  same  abridgment  it  is 
said:  '  The  king,  though  the  head  and 
chief  of  his  kingdom,  may  redress  any 
injuries  he  may  receive  from  his  sub- 
jects by  such  usual  common-law  ac- 
tions as  are  consistent  with  the  royal 
prerogative  and  dignity.'  And  in  Chit 
ty,  'Prerogative,'  245:  'The  general 
rule  is  that  the  king  may  waive  his 
prerogative  remedies,  and  adopt  such 
as  are  assigned  to  his  subjects;  he  may 
maintain  the  usual  common-law  ac- 
tions, as  trespass,  quare  clausam  /regit, 
or  for  taking  his  goods.'  These  state- 
ments of  the  law  are  in  accordance 
with  the  language  of  the  statute  31 
Eliz.  c.  5,  '  Concerning  Informers,' 
which  speaks  of  '  Actions,  suits,  bills, 
indictments,  and  informations '  with 
express  reference  to  '  any  forfeiture 
upon  any  statute  penal,  made  or  to 
be  made,  whereby  the  forfeiture  is  or 
shall  be  limited  to  the  queen,  her  heirs 
or  successors  only.'  Considering  the 
nature  of  the  subject  with  which  that 
statute  deals,  I  am  not  surprised  at 
the  reference  which  the  appellant 
made  to  it  in  his  argument  at  your 
Lordships'  bar.  The  conclusion  to 
which  I  have  been  brought  is  that 
there  is  no  difficulty  in  applying  any 
part  of  the  language  of  the  clause  in  the 
Act  of  1866,  which  creates  the  penalty 
sued  for  in  the  present  action,  to  a  suit 
by  the  Crown;  and,  therefore,  that  no 
part  of  that  language  affords  any  suf- 
ficient ground  for  implying  an  inten- 
tion on  the  part  of  the  legislature  to 
give  a  common  informer,  as  well  as  the 
Crown,  a  i^ight  of  action  for  that  pen- 
alty." 

2.   Harris   v.    Phoenix   Ins.  Co.,   35 
Conn.  312.     In   this  case  a  policy  of 

1 1 


What  is  an  Action. 


ACTIONS. 


Special  Proceedings:. 


2.  Special  Proceedings. — a.  Generally. — The  term  "  special  pro- 
ceedings" is  used  in  the  codes  of  practice  of  many  of  the  states, 
in  contradistinction  to  "action."  It  may  be  said  generally  that 
any  proceeding  in  a  court  which  was  not,  under  the  common 
law  and  equity  practice,  either  an  action  at  law  or  a  suit  in  chan- 
chancery,  is  a  special  proceeding.* 

b.  Particular  Proceedings. — Probate  Proceedings. — A  proceed- 
ing in  a  court  of  probate,  or  any  probate  proceeding  in  a  court  of 
general  jurisdiction,  is  a  special  proceeding.* 


insurance  contained  a  provision  that  no 
suit  or  action  for  the  recovery  of  any 
claim  on  the  policy  should  be  sus- 
tainable in  any  court  of  law  or  chancery 
unless  commenced  within  twelve 
months  after  the  loss  occurred. 
Where  the  amount  due  for  a  loss  was 
attached  by  a  creditor  of  the  insured 
within  twelve  months,  on  a  process  of 
foreign  attachment,  and  a  suit  of  scire 
facias  was  brought  against  the  com- 
pany by  the  creditor  after  the  expira- 
tion of  twelve  months,  it  was  held  that 
the  original  attachment  saved  the 
claim  from  the  limitations  of  the 
policy,  and  that  the  suit  of  scire  facias 
was  sustainable.  "But  by  a  'suit' 
within  the  meaning  of  this  provision 
of  the  policy  is  most  clearly  meant  any 
proceeding  in  a  court  for  the  purpose 
of  obtaining  such  remedy  as  the  law 
allows  a  party  under  the  circum- 
stances," per  Hinman,  J. 

Federal  Eemoval  Acts. — As  to  what 
constitutes  a  civil  suit  or  action  which 
may  be  removed  from  the  state  to 
the  United  States  courts,  see  Removal 
OF  Causes. 

1.  Any  proceeding  which,  under  the 
old  practice,  might  be  commenced  by 
petition  or  motion  upon  notice  is  a 
special  proceeding.  Tate  v.  Powe, 
64  N.  Car.  644. 

The  codes  define  a  special  proceed- 
ing as  being  any  proceeding  which  is 
not  an  action.  Their  definition  of  an 
action  is  meant  to  include  all  such 
proceedings  as  have  heretofore  been 
denominated  either  an  action  at  law 
or  a  suit  in  equity.  See  Harrison 
V.  King,  9  Ohio  St.  388,  and  the  codes 
of  the  several  states. 

2.  Hunt  V.  Sneed,  64  N.  Car.  176; 
Springl  e  v.  Hutchinson,  66  N.  Car. 
450;  Bell  V.  King,  70  N.  Car.  330;  Her- 
ring V.  Outlaw,  70  N.  Car.  334; 
McCausland's  Estate,  52  Cal.  568;  Ex 
p.  Smith,  53  Cal.  204. 

Probating  of  a  Will. — A  proceeding 
for  the  probate  of  a  will   is   a   special 


proceeding.  Sisters  v.  Glass,  45  Iowa 
154.  In  Hunter's  Will,  6  Ohio,  499  (a 
case  anterior  to  the  code)  it  was  held 
that  an  application  to  make  probate  of 
a  will  is  neither  an  action  nor  a  suit. 

Granting  Letters  of  Administration. — 
The  granting  letters  of  administration 
by  a  county  court  is  not  an  action. 
Waples  V.  Marsh,  19  Iowa  381. 

Proceedings  against  Executors  and 
Administrators. — A  petition  to  compel 
an  administrator  to  sell  land  to  pay 
debts  is  a  special  proceeding.  Pel- 
letier  v.  Saunders,  67  N.  Car.  261; 
Jerkins  v.  Carter,  70  N.  Car.  500. 

A  proceeding  by  citation  or  attach- 
ment against  an  administrator  or 
executor  for  neglect  to  file  his  settle- 
ment accounts  as  required  by  law  is 
not  an  action.  Philips  v.  State,  5 
Ohio  St.  122;  64  Am.  Dec.  635. 

A  proceeding  to  remove  an  execu- 
tor is  a  special  proceeding.  Barnes  v. 
Brown,  79  N.  Car.  401;  Murrill  v. 
Sandlin,  86  N.  Car.  54;  Simpson  v. 
Jones,  82  N.  Car.  323. 

A  creditor's  bill  against  an  admin- 
istrator or  executor  is  a  special  pro- 
ceeding. Jerkins  v.  Carter,  70  N. 
Car.  500;  Patterson  v.  Miller,  72 
N.  Car.  516;  Haywood  v.  Haywood, 
79  N.  Car.  42;  Shields  v.  Payne,  80 
N.  Car.  291. 

Petition  by  an  Executor  or  Adminis- 
trator to  Sell  Land. — A  petition  by  an 
executor  or  administrator  to  sell  lands 
to  pay  debts  is  a  special  proceeding. 
Hyman  v.  Jarnigan,  65  N.  Car.  96; 
Badger  v.  Jones,  66  N.  Car.  305;  Sin- 
clair V.  McBryde,  88  N.  Car.  438.  And 
any  proceeding  instituted  by  any  one 
to  sell  the  real  estate  of  a  decedent  to 
pay  debts  is  not  a  civil  action.  Seward 
V.  Clark,  67  Ind.  289. 

Claim  Pending  in  Court. — A  claim 
pending  in  court  for  trial  against  the 
estate  of  a  decedent  is  a  civil  action. 
Lester  v.  Lester,  70  Ind.  201. 

Attorney  Filing  Note  in  Probate  Pro- 
ceedings.— Where  a  note  provided  for 


What  is  an  Action. 


ACTIONS. 


Special  Proceedings 


Mandamus. — Mandamus  is  a  special  proceeding.* 
Attachment. — Proceedings  in  attachment  are  not  actions.'-* 
Attorneys. — Proceedings  by  a  person  for  admission  to  the  bar, 
or  proceedings  taken  against  an  attorney  for  his  disbarment,  are 
special  proceedings.^ 

Certiorari,  Prohibition,  and  Quo  Warranto- — The  extraordinary  reme- 
dies of  Certiorari  and  Prohibition  are  special  proceedings  ;  but 
Quo  Warranto  is  a  civil  action.** 

Partition. — A  proceeding  for  partition  is  a  special  proceeding.* 
Street  and  Highway  Proceedings — Proceedings  taken  to  open  or  widen 
or  to  change  the  grade  of  streets,  and  all  proceedings  in  reference 
thereto,  including  appeals  in  such  proceedings,  are  special  pro- 
ceedings and  not  actions.® 


an  attorney's  fee,  in  case  an  action 
was  brought  thereon,  it  was  held  that 
the  filing  the  note  in  the  probate  pro- 
ceedings as  a  claim  against  the  estate 
was  such  an  action  as  to  entitle  the 
attorney  to  the  fee.  Davidson  v. 
Vorse,  52  Iowa  384. 

1.  People  V.  Richmond  County,  28 
N.  Y.  112  ;  People  v.  Schoonmaker, 
19  Barb.  (N.Y.) 657;  People  v.  Albright, 
23  How.  Pr.  (N.  Y.  Supreme  Ct.)  306  ; 
People  V.  Croton  Aqueduct  Board,  5 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  372. 
Contra,  it  is  a  civil  action.  Howerton 
V.  Tate,  66  N.  Car.  231.  See  also  Ken- 
dall z/.  U.S.,  12  Pet.  (U.S.)  615  ;  People 
V.  Ransom,  2  N.  Y.  490  ;  Commercial 
Bank  v.  Canal  Com'rs,  10  Wend.  (N. 
Y.)  26;  Tyler  v.  Houghton,  25  Cal.  26; 
Humiston  v.  Smith,  21  Cal.  129. 

2.  Harrison  v.  King,  9  Ohio  St.  388. 

3.  A  proceeding  upon  charges  pre- 
ferred by  a  private  prosecutor  to  dis- 
bar an  attorney  is  a  special  proceed- 
ing where  in  a  change  of  venue  on  ac- 
count of  prejudice  on  the  part  of  the 
judge  may  be  granted  upon  the  same 
conditions  and  upon  compliance  with 
the  same  rules  as  in  ordinary  actions. 
State  V.  Clark,  46  Iowa  155. 

An  application  for  admission  as  an 
attorney  is  a  special  proceeding.  Mat- 
ter of  Cooper,  22  N.  Y.  67. 

4.  Certiorari. — Thompson  r^.  Reed,  29 
Iowa  117.  Certiorari  is  a  special  pro- 
ceeding when  issued  to  review  pro- 
ceedings on  habeas  corpus.  People  v. 
Jacobs,  5  Hun  (N.  Y.)  428. 

Prohibition. — The  writ  of  Prohi- 
bition is  a  special  proceeding.  People 
V.  Court  of  Common  Pleas,  43  Barb. 
(N.  Y.)  278. 

Quo  Warranto. — An  information  in 
the  nature  of  a  quo  warranto  is  a  civil 


action.     Reynolds    z.    State,   61    Ind. 
392- 

5.  Capps  V.  Capps,  85  N.  Car.  408  ; 
Bragg  V.  Lyon,  93  N.  Car.  151. 

Correction  of  Error  in  Partition. — But 
an  action  to  cerrect  an  error  in  the 
partition  of  land  is  a  civil  action. 
Cheatham  v.  Crews,  81  N.  Car.  343. 
See  Wahab  v.  Smith,  82  N.  Car.  229. 

Amending  Petition  for  Statutory  Par- 
tition — The  amending  a  petition  for 
statutory  partition,  asking  equitable 
relief,  makes  it  a  civil  action.  Stable- 
ton  V.  Ellison,  21  Ohio  St.  527. 

6.  Proceedings  to  Assess  Damages. — 
Proceedings  to  assess  damages  on  lay- 
ing out  plank  roads  are  special  proceed- 
ings. Matter  of  Fort  Plain,  etc..  Plank 
Road  Co.,  3  Code  Rep.  (N.  Y.)  148; 
Matter  of  New  York  (Supreme  Ct.), 
27  St.  Rep.  188. 

Application  for  Reference. — An  appli- 
cation by  the  commissioners  of  esti- 
mate to  extend  a  street  in  the  city  of 
New  York,  for  a  reference  to  ascer- 
tain their  charges  and  expenses,  is  a 
special  proceeding.  Matter  of  New 
York  (Supreme  Ct.),  27  N.  Y.  St.  Rep. 
188. 

Appellate  Proceedings. — Proceedings 
on  a  reference  in  cases  of  appeal  from 
an  order  of  commissioner  of  highways 
are  special  proceedings.  People  v. 
Flake  14  How.  Pr.  (N.  Y.  Supreme  Ct.) 
527  ;  People  v.  Albright,  23  How.  Pr. 
(N.  Y.  Supreme  Ct.)3o6. 

Change  of  Toll  gate. — A  proceeding 
to  change  the  location  of  a  toll-gate  is 
a  .special  proceeding.  McAllister  v. 
Albion  Plank  Road  Co.,  11  Barb.  (N. 
Y.)6ii. 

Massachusetts. — A  claim  against  a 
city  for  damages  occasioned  to  land  by 
changing  the  grade  of  a  street  canr.ot 


A  Encyc.  PI.  &  Pr.— 8. 


"3 


WhaX  is  an  Action. 


ACTIONS. 


Special  Proceedings. 


Drainage  Proeeedings. — Likewise  all  statutory  proceedings  taken  to 
drain  wet  lands  are  special  proceedings.^ 

Habeas  Corpus. — Application  for  a  writ  of  habeas  corpus  is  not  a 
civil  action.'-* 

Divorce  and  Alimony  Proceedings. — Divorce  and  alimony  proceedings 
are  special  proceedings  and  not  actions.^ 

Condemnation  of  Land. — Proceedings  to  condemn  land  are  not  actions 
but  special  statutory  proceedings.* 

Bastardy  Proceedings. — A  bastardy  proceeding  is  a  civil  action.® 

Proceedings  to  Kecover  Dower. — A  petition  for  dower  is  a  special 
proceeding.'* 

Lunatics,  Trustees,  and  Guardians. — An  application  for  leave  to  com- 
mence an  action  against  the  estate,  of  a  lunatic,  and  removals  of 
guardians  and  trustees,  are  ..11  special  proceedings.'' 

Vacating,  Setting  Aside,  and  Impeaching  Judgments. — Any  proceeding  tO 
set  aside  a  judgment  or  to  vacate  it  is  a  special  proceeding.** 


be  submitted  to  arbitration  under  Pub. 
Sts.  c.  i88,  because  such  claim  is  not 
a  "  controversy  which  may  be  the  sub- 
ject of  a  personal  action  at  law  or  of 
a  suit  in  equity."  Osborn  v.  Fall  Riv- 
er, 140  Mass.  508.  And  damages  for 
flowing  land  can  be  recovered  only  in 
the  mode  provided  by  statute.  Such 
damage  is  not  the  subject  of  a  suit  at 
law  or  in  equity,  but  of  a  particular 
statutory  mode  of  redress.  Hender- 
son V.  Adams,  5  Cush.  (Mass.)  610. 

1.  Durden  v.  Simmons,  84  N.  Car. 
555;  Matter  of  Swan,  33  Hun  (N.  Y.) 
200. 

Indiana. — Proceedings  for  the  con- 
struction of  drains  and  ditches  are 
not  civil  actions  within  the  mean- 
ing of  the  provisions  of  the  con- 
stitution regarding  trials  by  jury. 
Anderson  v.  Caldwell,  91  Ind.  451;  46 
Am.  Rep.  613.  But  they  are  so  far  a 
civil  action  that  the  provisions  of  §^ 
412  to  417,  R.  S.  1881,  in  relation  to  a 
change  of  judge,  must  be  held  appli- 
cable.    Bass  V.  Elliott,  105  Ind.  517. 

2.  McGlennan  v.  Margowski,  90 
Ind.  150.  Contra,  Ex  p.  Milligan,  4 
Wall  (U.  S.)  2.  Holmes  v.  Jennison, 
14  Pet.  (U.  S.)  340.  But  perhaps 
these  two  last  cases  only  hold  a  habeas 
corpus  case  to  be  an  action  in  the 
broadest  sense  of  the  word. 

3.  Evans  v.  Evans  (Ind.,  1886),  3 
West  Rep.  330;  Reeves  v.  Reeves,  82 
N.  Car.  348. 

4.  Cornish  v.  Milwaukee,  etc.,  R. 
Co.,  60  Wis.  476;  Farney  v.  Ralls,  30 
Iowa  559;  Whitney  v.  Atlantic  R.  Co., 
53  Iowa  651;  Matter  of  Waverley 
Water  Works  Co.,  16  Hun  (N.  Y.)  57, 


See  Albany,  etc.,  R.  Co.  v.  Dayton, 
10  Abb.  Pr.  N.  S.  (N.  Y.  Supreme  Ct.) 
182;  Rochester,  etc.,  R.  Co.  v.  Beck- 
with,  10  How.  Pr.  (N.  Y.  Supreme  Ct.) 
168;  New  York  Cent.  R.  Co.  v.  Mar- 
vin, II  N.  Y.  276;  Matter  of  New  York, 
etc.,  R.  Co.,  35  Hun(N.  Y.)  231;  Mat- 
ter of  New  York,  etc.,  R.  Co.,  33  Hun 
(N.  Y.)  231 ;  Matter  of  New  York,  etc., 
R.  Co.,  35  Hun(N.  Y.)  275. 

5.  Ingram  v.  State,  24  Neb.  33. 
Contra,  it  is  a  special  proceeding. 
State  V.  Mcintosh,  64  N.  Car.  607. 

6.  Felton  v.  Elliott,  66  N.  Car.  195. 
Contra,  it  is  a  civil  action  and  appeal- 
able.    Corry  v.  Lamb,  43  Ohio  St.  390. 

7.  Williams  v.  Cameron,  26  Barb. 
(N.  Y.)  172;  Matter  of  Livingston,  34 
N.  Y.  555;  Matter  of  King,  42  Hun 
(N.  Y.  )  607. 

Order  Removing  Committee  of  Lunatic 
and  Appointing  Another. — An  order  re- 
moving the  committee  of  a  lunatic  and 
appointing  another  person  in  his  stead 
is  not  a  special  proceeding.  Matter  of 
Griffin,  5  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  96. 

8.  Motion  to  Set  Aside  Judgment. — A 
motion  by  a  creditor  to  set  aside  a 
judgment  entered  upon  confession  is  a 
special  proceeding.  Belknap  v.  Wa- 
ters, II  N.  Y.  477. 

Ohio. — A  proceeding  under  §  536  of 
the  Ohio  Code,  by  petition  in  the 
court  of  common  pleas,  to  vacate  a 
judgment  rendered  by  that  court  at  a 
former  term  and  to  reinstate  the  case 
on  the  docket  for  trial,  is  not  appeal- 
able to  the  district  court.  Such  a  pro- 
ceeding is  not,  of  itself,  a  civil  action, 
but  is  a  special  proceeding  in  an  ac- 


114 


YThat  is  an  Action. 


ACTIONS. 


Special  Froceedings. 


But  where  a  petition  impeaching  a  decree  for  fraud  seeks  reHef 
which  could  not  be  obtained  by  a  retrial  of  the  cause  in  which  the 
judgment  was  rendered,  it  will  be  regarded  as  a  civil  action  and 
not  a  special  proceeding.* 

Proceedings  to  Make  New  Parties  to  Judgments.  —  Some  of  the  states  have 
a  provision  allowing  a  joint  contractor  to  be  made  a  party  to  a 
judgment.     This  proceeding  is  a  civil  action.- 

Miscellaneous  Cases. — There  will  be  found  in  the  note  hereto  a 
number  of  miscellaneous  cases  in  which  it  was  held  that  the 
proceedings  were  either  an  action  or  a  special  proceeding.' 


tion  after  judgment.     Taylor  v.  Fitch, 
12  Ohio  St.  169. 

1.  Coates  V.  Chillicothe  Branch 
State  Bank,  23  Ohio  St.  415,  where  it 
was  held  that  an  appeal  may  be  taken 
in  such  action  as  in  other  cases. 

2.  Yoho  V.  McGovern,  42  Ohio  St. 
II. 

3.  Refunding  Tax. — An  application 
for  the  refunding  of  a  tax  illegally  as- 
sessed is  a  special  proceeding.  Harris 
V.  Niagara  County,  33  Hun  (N.  Y.) 
279. 

Proceedings  to  Charge  Stockholders. — 
Proceedings  to  charge  stockholders  of 
a  bank  are  special.  Empire  City  Bank 
Case,  8  Abb.  Pr.  (N.  Y.  Ct.  App.)i92. 
See  Matter  of  Buffalo  (Buffalo  Super. 
Ct.),  17  N.  Y.  St.  Rep.  371  ;  Wagener 
V.  Reiley,  4  How.  Pr.  (N.  Y.  Ct.  App.) 
195  ;  Talbot  v.  Talbot,  23  N.  Y.  17  ; 
Matter  of  Delaware,  etc..  Canal  Co., 
69  N.  Y.  209. 

Supplementary  Proceedings. — Supple- 
mentary proceedings  are  not  special 
proceedings.  Dresser  v.  Van  Pelt,  15 
How.  Pr.  (N.  Y.  Super.  Ct.)  19;  Mal- 
lory  V.  Gulick,  15  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  307,  note. 

Compelling  Heirs  to  Perform  Ancestor's 
Contract. — Application  to  court  to  com- 
pel infant  heirs  to  specifically  perform 
contract  of  ancestor  is  a  special  pro- 
ceeding. Hyatt  V.  Seeley,  11  N.  Y. 
52. 

Proceedings  to  Punish  Referee. — A  pro- 
ceeding to  punish  a  referee  for  con- 
tempt in  refusing  to  carry  out  judg- 
ment of  foreclosure  is  not  a  special 
proceeding.  People  i'.  Bergen,  9  Hun 
(N.  Y.)  202. 

Prosecuting  Error. — A  right  to  insti- 
tute a  proceeding  in  error  is  rather  a 
right  of  appeal  than  a  right  of  action. 
Schooner  Marinda  v.  Dowlin,  4  Ohio 
St.  500. 

Proceedings  for  Contempt. — Proceed- 
ings for  contempt  are  special  proceed- 


ings. Erie  R.  Co.  v.  Ramsey,  45  N. 
Y.  637  ;  Holstein  v.  Rice,  15  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  307,  note  ;  Gray 
V.  Cook,  15  Abb.  Pr.  (N.  Y.  Super. 
Ct.)  308,  note  ;  Hart  v.  Johnson  (Su- 
preme Ct.),  7  N.  Y.  St.  Rep.  133. 

Order  Declaring  Banking  Association 
Insolvent. — An  order  declaring  a  bank- 
ing association  insolvent  is  a  special 
proceeding.  U.  S.  Trust  Co.  v.  U.  S. 
Fire  Ins.  Co.,  18  N.  Y.  199. 

Proceedings  on  Transcrip  tof  a  Justice's 
Judgment. — A  transcript  of  a  justice's 
court  judgment  was  filed  in  the  county 
clerk's  office.  After  the  expiration  of 
five  years  a  motion  was  made  by  plain- 
tiff in  the  county  court  for  leave  to 
issue  executiou.  On  the  hearing  of 
the  motion  defendant  did  not  appear, 
but  another  person  appeared  to  oppose 
and  presented  affidavits  to  the  effect 
that  he  was  the  owner  of  the  judg- 
ment, under  an  assignment  executed 
by  plaintiff's  general  agent.  The  mat- 
ter was  referred  to  a  referee,  who  re- 
ported that  plaintiff  made  an  agree- 
ment in  writing  to  sell  the  judgment, 
and  that  there  was  no  fraud  inducing 
it.  The  court,  on  hearing  counsel  for 
plaintiff  and  the  contestant,  the  de- 
fendant not  appearing,  confirmed  the 
report  and  denied  plaintiff's  motion. 
Held,  a  special  proceeding.  Ithaca 
Agricultural  Works  v.  Eggleston,  107 
N.  Y.  272. 

Auditing  Commissioner's  Accounts. — 
An  order  auditing  commissioner's 
accounts  is  a  special  proceeding.  Mat- 
ter of  Ryers,  72  N.  Y.  i. 

Summary  Proceedings  to  Recover 
Land. — Summary  proceedings  to  re- 
cover the  possession  of  land  are  special 
proceedings.  People  v.  Boardman,  4 
Keyes  (N.  Y.)  59.  See  Freeman  v. 
Ogden,  40  N.  Y.  105  ;  Carpenter  v. 
Green,  4  Hun  (N.  Y.)  416. 

Arbitration  and  Judgment. — Arbitra- 
tion and  judgment  on   the   award  is  a 


"5 


What  is  a  Cause  of  Action. 


ACTIONS. 


What  is  a  Cause  of  Action. 


11.  What  is  a  Cause  of  Action — Definition.— A  cause  of  action  is 
generally  held  to  be  a  union  of  the  right  of  the  plaintiff  and  its 
infringement  by  the  defendant.* 


special  proceeding  and  not  an  action. 
Moore  v.  Boyer,  42  Ohio  St.  312. 

Interpleader. — Where  the  defendant 
is  allowed  to  bring  into  court  the  sub- 
ject of  the  suit  and  compel  an  inter- 
pleader, after  the  defendant  is  dis- 
charged and  the  new  party  pleads, 
this  action  is  a  civil  action,  and  must 
be  proceeded  in  as  a  civil  action. 
Maginnis  v.  Schwab,  24  Ohio  St.  336. 

Vacating  Assessment. — A  petition  to 
vacate  an  assessment  is  not  a  special 
proceeding.  Matter  of  Jetter,  78  N. 
Y.  601. 

Damages  for  the  Erection  of  Mill.— A 
proceeding  to  get  damages  for  the 
erection  of  a  mill  is  a  special  proceed- 
ing. Summer  v.  Miller,  64  N.  Car. 
683. 

Forcible  Entry  and  Detainer. — Forcible 
entry  and  detainer  is  a  civil  action. 
Bowers  v.  Cherokee,  45  Cal.  495. 

Penalties. — An  action  to  recover  a 
penalty  is  a  civil  action.  Mitchell  v. 
State,  12  Neb.  538. 

1.  Veeder  v.  Baker,  83  N.  Y.  156;  At- 
chison,  etc.,   R.  Co.  V.  Rice,  36  Kan. 

593- 

Combination  of  Bight  and  Delict. — 
"  The  N.Y.  Code  (§  275)  provides  that  if 
the  defendant  has  answered,  the  court 
may  grant  the  plaintiffs  any  relief  con- 
sistent with  the  case  made  by  the  com- 
plaint and  embraced  within  the  issue. 
In  case  no  answer  has  been  put  in,  the 
relief  granted  cannot  exceed  that  de- 
manded in  the  complaint.  In  the  for- 
mer case  the  demand  of  relief  in  the 
complaint  becomes  immaterial.  The 
case  made  by  the  complaint  and  the 
limits  of  the  issue  alone  determine 
the  extent  of  the  power  of  the  court. 
These  expressions  of  the  statute  in- 
clude the  statement  of  the  right  of  the 
plaintiffs  and  its  infringement  by  the  de- 
fendants. These  constitute  the  case." 
Per  Johnson,  J.,  in  Marquat  v.  Mar- 
quat,  12  N.  Y.  341. 

In  Hayes  z/.  Clinkscales,9  S.  Car.  441, 
Mclver,  ]..  at  p.  453,  after  quoting  the 
following  from  Pomeroy  on  Remedies: 
"  The  cause  of  action,  therefore,  must 
always  consist  of  two  factors — (i)  the 
plaintiff's  primary  right  and  the  de- 
fendant's corresponding  primary  duty, 
whatever  be  the  subject  to  which  they 
relate,  person,  character,  property,  or 


contract;  and  (2)  the  delict  or  wrong- 
ful act  or  omission  of  the  defendant, 
by  which  the  primary  right  and  duty 
have  been  violated  " — uses  this  lan- 
guage: "And  the  words  'right  of  ac- 
tion' in  the  statute  should  be  held  to 
mean  the  primary  right,  which  consti- 
tutes one  of  the  foundations  of  the 
cause  of  action,  and  not  the  remedial 
right  which  flows  from  such  primary 
right  held  by  the  plaintiff  and  the 
breach  of  the  primary  duty  resting 
upon  the  defendant." 

In  Rodgers  v.  Mutual  Endowment 
Assoc,  17  S.  Car.  406,  McGowan,  J.,  at 
pp.  410,  411,  says:  "  What  is  the  cause 
of  action  ?  We  must  keep  in  view  the 
difference  between  the  subject  of  ac- 
tion and  the  cause  of  action.  The 
subject  of  action  is  what  was  formerly 
understood  as  the  subject  matter  of 
the  action,  and,  as  Mr.  Pomeroy  says, 
'  finds  its  primary  and  far  more  impor- 
tant application  in  equitable  rather 
than  legal  proceedings.  The  cause  of 
action  is  the  right  claimed  or  wrong 
suffered  by  the  plaintiff,  on  the  one 
hand,  and  the  duty  or  delict  of  the  de- 
fendant, on  the  other;  and  these  ap- 
pear by  the  facts  of  each  separate 
case.'  " 

Cooley,  J.,  in  the  case  of  Post  v. 
Campan,  42  Mich.  96,  says:  "  The  ele- 
ments of  a  cause  of  action  are,  first,  a 
breach  of  duty  owing  by  one  person 
to  another;  and  second,  a  damage  re- 
sulting to  the  other  from  the  breach. 
Damage  where  no  duty  is  violated  is 
damnum  absque  injuria  ;  a  neglect  of 
duty,  where  no  loss  occurs,  is  equally 
incapable  of  giving  a  right  of  action." 

"The  expression  'cause  of  action' 
means  the  whole  cause  of  action;  that 
is,  all  the  facts  which  together  consti- 
tute  the 
the  action. 

husen  v.  Malgarejo,  L.  R.  3  Q.  B.  343. 
"The  words  'cause  of  action'  in  s. 
18  are  a  comprehensive  term  which 
includes  every  circumstance  which 
goes  to  make  up  a  contract  and  breach."  / 

Per  Lush,  J.,  in  Allhusen  v.  Malga-  \y 
rejo,  L.  R.  3  Q.  B.  344.  And  in  Sichel 
V.  Borch,  2  H.  &  C.  954,  this  language 
is  used  by  the  Barons:  "  It  has  been 
laid  down  in  an  analogous  matter  that 
the  term  '  cause  of  action '  means  the 

16 


:  facts  which  together  consti-         , 
plaintiff's   right  to   maintain     / 
[1."    Per  Blackburn,  J.,  in  All-  / 


What  is  a  Canse  of  Action. 


ACTIONS. 


What  is  a  Cause  of  Action. 


Delict  alone  as  Cause  of  Action.— Some  authorities  hold  that  the  cause 
of  action  is  the  act  or  dehct  on  the  part  of  the  defendant  which 
gives  the  plaintiff  his  cause  of  complaint ;  they  reject,  as  unneces- 
sary to  the  definition,  the  right  of  the  plaintiff.^ 


/ 


/ 


whole  cause  of  action.  Here  the  cause 
of  action  is  the  contract  and  the  breach 
of  it.  It  does  not  follow  that  because 
the  breach  of  contract  took  place  in 
this  country  the  cause  of  action  arose 
within  the  jurisdiction  of  the  Superior 
Courts.  We  must  take  into  considera- 
tion the  contract  of  which  there  has 
been  a  breach.  The  contract,  strictly 
speaking,  was  neither  in  Norway  nor 
in  England.  No  doubt,  so  far  as  one 
of  the  parties  is  concerned  it  was  in 
England,  but  so  far  as  the  other  party 
is  concerned  it  was  in  Norway;  there- 
fore it  was  in  neither  one  country  nor 
the  other.  For  these  reasons  it  ap- 
pears to  me  that  the  statute  does  not 
apply  to  this  case."  Per  Pollock,  C.  B., 
at  pp.  957-8.  "  The  '  cause  of  action  ' 
means  the  whole  cause  of  action;  and 
includes  the  drawing  and  indorsement 
of  the  name  of  the  drawer  on  the  bill, 
both  of  which  took  place  in  Norway. 
Therefore  the  whole  cause  of  action 
did  not  arise  within  the  jurisdiction." 
Per  Martin,  B.,  958.  And  see  Fife  v. 
Round,  6  W.  R.  283  ;  Slade  v.  Noel,  4 
F.  &  F.  424;  and  Nettleford  v.  Funcke, 
Day's  C.  L.  P.  Acts  (3d  ed.)  18. 

1.  Delict  alone  as  the  Cause  of  Action. — 
"  It  [the  cause  of  action]  is  that  which 
in  popular  meaning — for  many  pur- 
poses, in  legal  meaning — is  the  cause 
of  action,  viz.,  the  act  on  the  part  of 
the  defendant  which  gives  the  plaintiff 
his  cause  of  complaint."  Per  Brett,  J. , 
in  Jackson  v.  Spittall,  L.  R.  5  C.  P. 
552.  "A  cause  of  action  is  a  wrong 
committed  or  threatened.  It  may  con- 
sist of  the  wrongful  conversion  of  prop- 
erty or  of  the  non-performance  of  an 
agreement.  In  one  case  the  cause  of 
action  would  sound  in  tort,  the  other 
in  contract  ;  and,  while  the  relief 
sought  might  relate  to  the  same  sub- 
ject-matter, yet  proof  of  facts  sufficient 
to  sustain  an  action  for  the  tort  would 
be  insufficient  to  sustain  an  action  for 
the  non-performance  of  the  agreement, 
for  the  reason  that  the  probata  would 
not  correspond  with  the  allegata."  Per 
Curiam  in  Miller  v.  Hallock,  9  Colo. 
551.  "  It  being  well  settled  that,  in  a 
case  of  this  kind,  the  suit  must  be 
brought  where  the  cause  of  action 
arose,  it  becomes  essential,  in  order  to 


determine  whether  this  suit  has  been 
brought  before  the  proper  court,  to  de- 
termine what  is  the  cause  of  action. 
An  action  is  'the  lawful  demand  of 
one's  right.'  The  cause  of  this  lawful 
demand,  or  the  reason  why  the  plain- 
tiff can  make  such  demand,  is  some 
wrong  act  committed  by  the  defendant, 
and  some  damage  sustained  by  the 
plaintiff  in  consequence  thereof.  The 
commission  or  omission  of  an  act  by 
the  defendant,  and  damage  to  the  plain- 
tiff in  consequence  thereof,  must  unite 
to  give  him  a  good  cause  of  action.  No 
one  of  these  facts  by  itself  is  a  cause  of 
action  against  the  defendant.  The 
wrongful  diversion,  then,  of  the  water 
of  the  stream  in  Connecticut  by  the  de- 
fendant, and  the  consequeAt  damage 
which  the  plaintiffs'  mill  in  Massachu- 
setts has  sustained,  constitute  the  cause 
of  action.  A  part  of  that  which  is  es- 
sential to  the  plaintiffs'  right  to  recover 
took  place  in  Connecticut.  Without  the 
commission  of  the  act  of  diversion  in 
Connecticut  there  would  have  been  no 
good  cause  of  action.  With  it  there  is 
a  sufficient  cause  of  action.  The  act 
of  diversion,  which  arose  in  Connec- 
ticut, and  the  other  facts  existing  give 
to  the  plaintiffs  a  cause  of  action. 
That  which  is  essential,  therefore,  to 
the  plaintiffs'  right  of  recovery  against 
any  one,  or  their  cause  of  action,  arose 
where  the  suit  has  been  brought."  Per 
Ingersoll,  J.,  in  Foot  v.  Edwards,  3 
Blatchf.  (U.  S.)  310.  See  following 
cases  allowing  the  venue  to  be  laid  in 
either  place,  where  the  material  facts 
of  a  cause  of  action  take  place  in  differ- 
ent places  :  Scott  v.  Brest,  2  T.  R.  238  ; 
Bulwer's  Case,  7  Coke  i;  Thompson  v. 
Crocker,  9  Pick.  (Mass.)  59;  Barden  v. 
Crocker,  10  Pick.  (Mass.)  3S3;  Stillman 
V.  White  Rock  Mfg.  Co.,  3  Woodb.  & 
M.  (U.  S.)  538;  Comyn's  Digest,  Action, 
N.  11;  Watts  V.  Kinney,  23  Wend.  (N. 
Y.)  485;  Livingston  v.  Jefferson,  i 
Brock.  (U.S.)  203. 

"It  is  a  fundamental  principle  of 
law,  applicable  alike  to  breaches  of 
contract  of  this  description  and  to  torts, 
that  in  order  to  found  a  right  of  action 
there  must  be  a  wrongful  act  done  and 
a  loss  resulting  from  that  wrongful  act. 
The  wrongful  act  must  be  the  act  of  the 


117 


What  is  a  Cause  of  Action. 


ACTIONS. 


What  is  a  Cause  of  Action. 


Remedy  Alone. — The  mere  giving  of  a  legal  remedy  does  not  of 
itself  create  a  cause  of  action  out  of  the  matter  upon  which  the 
remedy  is  accorded.* 

In  the  Construction  of  Statutes  in  which  the  term  is  used  the  question 
becomes  of  practical  importance  in  the  administration  of  justice.* 

defendant,  and  the  injury  suffered  by 
the  plaintiff  must  be  the  natural  and 
not  merely  a  remote  consequence  of 
the  defendant's  act.  The  wrong  done 
and  the  injury  sustained  must  bear  to 
each  other  the  relation  of  cause  and 
effect,  and  the  damages,  whether  they 
arise  from  withholding  a  legal  right  or 
the  breach  of  a  legal  duty,  to  be  recov- 
erable, must  be  the  natural  and  prox- 
imate consequence  of  the  act  com- 
plained of."  Per  Depue,  J.,  in  War- 
wick V.  Hutchinson,  45  N.  J.  L.  65. 

For  a  further  discussion  of  what 
is  a  cause  of  action,  especially  in  its 
relation  to  cause  and  effect,  consult  the 
following  cases  :  Stevenson  v.  Newn- 
ham,  13  C.  B.  285  ;  Burton  v.  Pinker- 
ton,  L.  R.  2  Exch.  340;  Glover  v.  Lon- 
don, etc.,  R.  Co.,  L.  R.  3  Q.  B.  25;  By- 
ard  V.  Holmes,  34  N.  J.  L.  296;  Cuff  v. 
Newark,  etc.,  R.  Co.,  35  N.  J.  L.  17;  10 
Am.  Rep.  265,  aff'd  35  N.  J.  L.  574; 
Kuhn  V.  Jewett,  32  N.  J.  Eq.  647. 

1.  In  Wurlitzer  v.  Suppe,  38  Kan. 
31,  it  was  held  that,  if  an  attachment  is 
allowed  before  an  account  falls  due, 
this  does  not  make  it  a  cause  of  ac- 
tion, and  therefore  such  account  can- 
not be  joined  and  sued  on  in  the  same 
action  with  notes  due,  under  a  provis- 
ion of  the  Code  allowing  all  causes  of 
action  on  contract  to  be  joined.  Simp- 
son, C,  said,  34,  35:  "The  law  does 
not  create  causes  of  action — these  are 
created  by  the  acts  and  contracts  of 
persons  ;  it  only  gives  a  right  of  ac- 
tion under  certain  conditions  and  lim- 
itations on  the  cause.  .  .  .  To  con- 
stitute a  cause  of  action  in  cases  of  this 
character  there  must  be  a  duty  to  be 
performed,  a  right  to  be  enforced,  and 
a  failure,  omission,  or  refusal  to  per- 
form, or  an  infringement  of  the  right. 
On  an  account  not  due  these  elements 
are  wanting.  There  is  no  failure,  omis- 
sion, or  refusal  to  pay.  The  right  to 
enforce  payment  is  not  infringed,  be- 
cause that  right  does  not  accrue  until 
the  time  for  payment  has  expired.  It 
seems  to  follow  that  the  statute  allow- 
ing an  attachment  to  issue  under  cer- 
tain circumstances  on  a  claim  before  it 
is  due  does  not  make  it  a  cause  of  ac- 
tion as  designated  in  the  article  of  the 


Code  upon  the  subject  of  the  joinder 
of  actions." 

2.  Statutes  Conferring  Jurisdiction. — 
The  English  Common  Law  Procedure  ' 
Act  (1852)  allowed  a  foreign  defendant 
to  be  sued  on  a  "cause  of  action" 
which  arose  within  the  jurisdiction. 
In  Jackson  v.  Spittall,  L.  R.  5  C.  P. 
542,  it  was  held  that  the  term  "cause 
of  action"  as  used  in  the  act  did  not 
mean  the  whole  cause  of  action,  i.e., 
the  contract  and  breach,  but  the  act  on 
the  part  of  the  defendant  which  gives 
the  plaintiff  his  cause  of  complaint.  In 
that  case  the  plaintiff  sued  the  defend- 
ant, a  British  subject  resident  in  the 
Isle  of  Man,  upon  an  alleged  breach  of 
a  contract  not  to  indorse  a  bill  of  ex- 
change delivered  to  him  as  security. 
The  contract  was  made  in  the  Isle  of 
Man.  The  breach  by  indorsing  over 
took  place  in  Manchester,  Eng.  The 
question  involved  was  whether  the 
defendant  could  be  sued  in  England, 
summons  being  served  on  him  in  the 
Isle  of  Man,  under  the  Procedure  Act. 
It  was  held  he  could  be.  But  in  Sichel 
V.  Borch,  2  H.  &  C.  954,  the  reverse  of 
the  above  ruling  obtained.  It  was  the 
case  of  a  merchant,  residing  in  Nor- 
way and  not  being  a  British  subject, 
who  drew,  indorsed,  and  sent  in  a  let- 
ter by  post  to  a  merchant  in  London  a 
bill  of  exchange  payable  in  London, 
which  was  indorsed  to  the  plaintiff  and 
dishonored.  It  was  held  that  no  cause 
of  action  had  arisen  within  the  juris- 
diction of  the  superior  courts,  and  that 
the  plaintiff  could  not  proceed  against 
the  defendant  under  the  19th  section 
of  the  Common  Law  Procedure  Act. 
In  Allhusen  v.  Malgarejo,  L.  R.  3  Q. 
B.  340,  the  defendant,  a  foreigner  re- 
siding abroad,  entered  into  a  contract 
with  the  plaintiffs  abroad  to  sell  them 
a  quantity  of  manganese,  to  be  deliv- 
ered at  Newcastle-upon-Tyne.  The  de- 
fendant delivered  part,  but  failed  to  de- 
liver the  rest.  It  was  held  that  as  the 
whole  cause  of  action  did  not  arise  in 
England,  the  defendant  could  not  be 
sued  therein  under  the  Procedure  Acts. 
To  the  same  effect  see  Fife  v.  Round, 
6  W.  R.  283  ;  Slade  v.  Noel,  4  F.  &  F. 
424;  Nettleford  v.  Funcke,  Day's  C.  L. 

18 


When  is  an  Action  Commenced  !      ACTIONS. 


In  tlie  Various  States. 


III.  When  is  an  Action  Commenced?—!.  Generally. — It  often 
becomes  material  in  practice  to  know  when  an  action  is  com- 
menced. Points  of  precedeure,  the  application  of  the  statute  of 
limitations,  and  various  other  legal  principles  may  all  depend  in 
their  application  upon  the  question,  when  was  the  action  com- 
menced ?  For  certain  purposes  an  action  may  be  held  to  be  com- 
menced, while  for  other  purposes  the  -courts  may  deny  to  the 
action  the  attribute  of  a  "commenced"  suit.  But  generally 
speaking,  not  noting  the  exceptions  to  and  the  quahfications  of 
the  doctrines,  the  legislation  of  the  states  and  the  adjudications 
follow  three  main  classifications,  to  wit:  the  action  is  commenced 
when  the  complaint  is  filed,  when  the  process  is  issued,  or  when 
the  process  is  served  on  the  defendant. 

2.  In  the  Various  States — Alabama.— In  Alabama  all  civil  actions 
in  courts  of  record,  except  such  cases  as  are  otherwise  provided 
for  by  the  Code,  are  commenced  by  the  service  of  a  summons.^ 


P.  Acts  (3d  ed.)  18.  In  Veeder  v. 
Baker,  83  N.  Y.  156,  it  was  held  that 
an  action,  under  an  act  making  an  offi- 
cer personally  liable  who  signed  a  false 
report  of  a  corporation's  condition, 
should  be  brought  where  the  cause  had 
arisen,  which  was  the  place  where  the 
false  report  had  been  signed.  So  in 
Rodgers  v.  Mutual  Endowment  Asso- 
ciation, 17  S.  Car.  406,  an  agreement 
was  made  in  the  state  between  a  citi- 
zen thereof  and  a  foreign  Mutual  Co., 
whereby  application  was  made  for 
membership,  and  the  amount  there  paid 
was  to  be  refunded  if  the  application 
was  rejected.  The  rules  of  the  com- 
pany required  proof  of  death-claims  to 
be  made  at  the  home  office,  when  an 
assessment  was  to  be  made  and  the 
claims  were  to  be  paid  there.  Held, 
that  the  claim  of  the  beneficiaries  under 
such  citizen's  certificate  was  not  a  cause 
of  action  arising  within  the  state,  with- 
in the  meaning  of  the  statute. 

Habeas  Corpus. — In  Ex  p.  Milligan,  4 
Wall.  (U.  S.)  2,  the  question  involved 
in  the  case  was  whether  a  certificate  of 
division  of  opinion,  required  by  the 
Act  of  1802,  making  it  the  duty  of  the 
U.  S.  circuit  court  to  certify  to  the 
U.  S.  supreme  court  the  point  in  a  cause 
upon  which  the  judges  were  divided, 
could  be  granted  in  a  habeas  corpus 
case  after  the  petition  had  been  filed, 
but  before  the  writ  had  been  issued 
and  a  return  made.  It  was  held  that 
when  the  petition  has  been  filed  and 
the  writ  prayed  for,  it  is  a  suit,  or  cause, 
within  the  meaning  of  the  act.  "  But 
it  is  argued  that  the  proceeding  does 


not  ripen  into  a  cause  until  there  are 
two  parties  to  it.  This  we  deny.  It 
was  the  cause  of  Milligan  when  the 
petition  was  presented  to  the  circuit 
court.  It  would  have  been  the  cause 
of  both  parties  if  the  court  had  issued 
the  writ  and  brought  those  who  held 
Milligan  in  custody  before  it."  Per 
Davis,  J. 

But  see  Fruitt  v.  Anderson,  12  III. 
App.  430,  where  Baker,  P.  J.,  says: 
"The  term  'cause  of  action'  involves 
not  only  a  right  of  action,  but  also  that 
there  is  some  person  in  existence  who 
is  qualified  to  institute  process.  The 
right  must  also  be  capable  of  being  le- 
gally enforced,  and  so  there  must  be 
also  a  person  to  be  sued."  Therefore 
it  was  held  that  the  plaintiff,  who  was 
the  guardian  of  a  lunatic  and  furnished 
him  necessaries,  could  not  sue  until  a 
proper  person  existed  to  be  sued  there- 
for, and  that  until  then  he  had  no  cause 
of  action. 

1.  Civil  Code  Ala,  §  2651  ;  Cruise  w. 
Riddle,  21  Ala.  791  ;  East  Tennessee, 
etc.,  R.  Co.  V.  Bayliss,  74  Ala.  151  ; 
Ex  p.  Locke,  46  Ala.  77  ;  Huss  v.  Cen- 
tral R.,  etc.,  Co.,  66  Ala.  475  ;  Ala- 
bama G.  S.  R.  Co.  V.  Hawk,  72  Ala.  117; 
Louisville,  etc.,  R.  Co.  v.  Hall,  91  Ala. 
112  ;  24  Am.  St.  Rep.  863  ;  Alabama  G. 
S.  R.  Co.  V.  Smith,  81  Ala.  229  ;  Ware 
V.  Swann,  79  Ala.  330 ;  Sublett  v. 
Hodges,  88  Ala.  491  ;  Alabama  G.  S.  R. 
Co.  V.  Thomas,  89  Ala.  294  ;  Louis- 
ville, etc.,  R.  Co.  V.  Watson,  90  Ala.  68  ; 
American  Union  Co.  v.  Daughtrey, 
89  Ala.  191  ;  South,  etc.,  R.  Co.  v. 
Bees,  82  Ala.  340;  Anniston,   etc.,   R. 


119 


When  is  an  Action  Commenced  1       ACTIONS. 


In  the  Various  States. 


Arizona.— By  a  provision  in  the  Code  of  Civil  Procedure  Arizona 
has  enacted  that  all  civil  suits  in  courts  of  record  shall  be  com- 
menced by  complaint  filed  in  the  ofifice  of  the  clerk  of  such 
court.* 

Arkansas.— In  Arkansas  a  civil  action  is  commenced  by  filing  in 
the  office  of  the  clerk  of  the  proper  court  a  complaint,  and  caus- 
ing a  summons  to  be  issu'ed  thereon.* 


Co.  V.  Ledbetter,  92  Ala.  326  ;  Winston 
V.  Mitchell,  93  Ala.  554  ;  Alabama  G.  S. 
R.  Co.  V.  Arnold,  80  Ala.  600  ;  Tomp- 
kins V.  Holt  (Ala.,  1891),  8  So.  Rep. 
794  ;  Barker  v.  Anniston,  etc.,  R.  Co., 
92  Ala.  314. 

Issuing  of  the  Writ. — The  suing  out 
of  the  writ  is  the  commencement  of 
the  action.  Cox  v.  Cooper,  3  Ala. 
256.  But  a  summons  is  not  "sued 
out,"  within  Code,  §  2631,  providing 
that  "the  suing  out  of  the  summons 
is  the  commencement  of  a  suit, 
whether  it  be  executed  or  not,  if  the 
suit  be  continued  by  an  alias,  or  re- 
commenced at  the  next  term,"  till  it 
passes  from  the  clerk  to  a  proper 
officer,  with  a  bo7ia-fide  intention  to 
have  it  served.  West  v.  Engle  (Ala., 
1893),  14  So.  Rep.  333. 

Notice  in  Summary  Proceedings. — The 
issuance  of  a  notice  in  summary  pro- 
ceedings at  the  suit  of  the  State  Bank 
and  branches  is  the  commencement  of 
a  suit,  if  followed  up  by  service  on  the 
defendant  ahd  motion  for  judgment. 
Griffin  v.  State  Bank,  6  Ala.  908  ;  Stan- 
ley V.  Bank  of  Mobile,  23  Ala.  652. 

Statutory  Claim. — The  commence- 
ment of  a  statutory  claim  suit  is  not 
the  issue  of  the  execution,  nor  its  levy, 
but  the  making  of  the  affidavit  and  the 
giving  of  the  bond  by  the  claimant. 
McAdams  v.  Beard,  34  Ala.  478. 

Ejectment. — Where  a  person  against 
whose  tenantsejectment  has  been  com- 
menced is  made  a  defendant  on  her 
own  applicatron,  the  action  must  be 
considered  as  having  been  commenced 
against  her  at  the  time  it  was  brought 
against  the  other  defendants,  in  com- 
puting the  time  necessary  to  bar  the 
action.     Turner  v.  White,  97  Ala.  545 

Summary  Proceeding  against  Stock- 
holder.— A  summary  proceeding  by  a 
corporation  against  a  delinquent  stock- 
holder is  a  suit  commencing  when  the 
notice  is  placed  in  the  hands  of  the 
sheriff  to  be  served.  Alabama,  etc.,  R. 
Co.  V.  Harris,  25  Ala.  232. 

Contest  before  Probate  Court. — In  a 
contest   before   the  probate  court  re- 


specting the  validity  -of  a  will,  the 
proponent  is  the  party  plaintiff,  and 
the  contestants  are  the  defendants  ; 
and  the  other  heirs-at-law,  or  distrib- 
utees, though  notified  of  the  proceed- 
ing, are  not  parties  to  it  unless  they 
come  forward  and  make  themselves 
parties.  Blakey  v.  Blakey,  33  Ala.  611. 
See  Allen  z/.  Prater,  35  Ala.  169  ;  Clem- 
ens V.  Patterson,  38  Ala.  721. 

1.  Code  Civil  Proc.  §  i. 

2.  Digest  of  the  Statutes  (1884),  § 
4967  ;  State  Bank  v.  Bates,  10  Ark. 
120  ;  Ruddell  v.  Walker,  7  Ark.  458  ; 
Bailey  v.  Palmer,  5  Ark.  208 ;  Mc- 
Clellan  v.  State  Bank,  12  Ark.  141  ; 
St.  Louis,  etc.,  R.  Co.  v.  Shelton,  57 
Ark.  459. 

Necessity  of  Process. — The  filing  of  a 
complaint  is  not  alone  the  commence- 
ment of  an  action.  Process  on  it  must 
also  be  issued,  and  until  then  the  run- 
ning of  the  statute  of  limitations  is 
not  arrested.  Hallum  v.  Dickinson, 
47  Ark.  120  ;  State  Bank  v.  Cason,  10 
Ark.  479  ;  State  Bank  v.  Brown,  12 
Ark.  94  ;  McClarren  v.  Thurman,  8 
Ark.  313. 

Proving  Date  of  Writ — Secondary  Evi- 
dence.— Upon  proof  of  the  loss  or  de- 
struction of  a  writ,  the  date  of  its  issue 
and  its  contents  may  be  proved  by  sec- 
ondary evidence.  Hallum  v.  Dickin- 
son, 47  Ark.  120. 

Filing  an  Open  Account. — Under  §  i, 
ch.  133,  Gould's  Digest,  which  pro- 
vides that  suits  at  law  may  be  com- 
menced by  filing  in  the  clerk's  office 
"  a  note  or  writing  obligatory  or  due 
bill  or  other  evidence  of  debt,"  on 
which  a  summons  or  capias  may  issue, 
a  plaintiff  cannot  commence  an  action 
by  filing  an  open  account.  Nor  can 
the  plaintiff  commence  an  action  by 
filing  a  sealed  agreement  which  on  its 
face  shows  no  cause  of  action,  and 
upon  which  a  right  of  action  could  only 
be  shown  by  auxiliary  evidence. 
Gaines  v.  Craig,  24  Ark.  477. 

Assigning  Chose  after  Filing  Com- 
plaint.— As  the  issuance  of  the  writ  of 
summons,    and   not   the  filing  of  the 


When  is  an  Action  Commenced  1      ACTIONS. 


In  the  Various  States. 


California.— Civil  actions  are  commenced  in  California  by  filing 
a  complaint.* 


cause  of  action  with  the  justice,  con- 
stitutes the  institution  of  the  suit, 
therefore  the  suit  may  be  in  the  name 
of  the  assignee  if  the  note  be  assigned 
after  filing  and  before  issuance  of  the 
writ.     Ruddell  v.  Walker,  7  Ark.  457. 

1.  Code  Civil  Proc.  §  405;  Dupuy 
V.  Shear,  29  Cal.  238;  Reynolds  v. 
Page,  35  Cal.  296;  Adams  v.  Patter- 
son, 35  Cal;  122;  Brown  v.  Mann,  71 
Cal.  192. 

Limited  to  Limitation  Act. — A  suit  is 
commenced  within  the  Limitation  Act 
of  1850  by  simply  filing  the  complaint. 
To  prevent  the  bar  of  the  statute,  no 
other  proceeding  is  necessary.  But 
for  all  other  purposes  an  action  can 
be  commenced  only  by  filing  the  com- 
plaint and  issuing  a  summons,  unless 
a  defendant  voluntarily  appear  and 
plead  without  summons.  Sharp  v. 
Maguire,  19  Cal.  577;  Pimental  v. 
San  Francisco,  21  Cal.  351;  Allen  v. 
Marshall,  34  Cal.  165. 

Mechanics'  Lien. — The  provision  in 
the  general  Limitation  Act  of  1850, 
that  the  filing  of  the  complaint  shall 
be  deemed  a  commencement  of  a  suit, 
applies  to  that  act  only,  and  not  to  the 
Mechanics'  Lien  Act.  Under  this  lat- 
ter act,  to  commence  a  suit  within  six 
months  from  the  expiration  of  a  credit 
given,  a  complaint  must  be  filed  and  a 
summons  issued.  Flandreau  v.  White, 
18  Cal.  640.  See  GMen  v.  Jackson 
Water  Co.,  10  Cal.  375,  where  an 
amended  complaint  was  filed  and  sum- 
mons issued  thereon.    Held,  barred. 

Plea  of  Action  Pending.— Where  a  de- 
fendant pleaded  another  suit  pending 
between  the  same  parties  and  for  the 
same  cause  of  action,  and  it  appeared 
that  no  summons  had  ever  been  issued 
upon  the  complaint,  and  that  there  had 
been  no  appearance  on  the  part  of  the 
defendant,  held,  that  there  was  no 
suit  pending,  and  consequently  no  mis- 
joinder of  causes  of  action.  Weaver 
V.  Conger,  10  Cal.  234;  Primm  v.  Gray, 
10  Cal.  522. 

Qnestion  of  Fact. — It  seems  that  the 
commencement  of  an  action  is  a  ques- 
tion of  fact  and  not  of  law.  Adams  v. 
Patterson,  35  Cal.  122.  Compare  Caul- 
field  V.  Sanders,  17  Cal.  571. 

Amendment  of  Complaint. — The  filing 
of  a  new  complaint  after  a  demurrer 
has   been  sustained   is    not   the  com- 


mencement of  a  new  action.  Jones  v. 
Frost,  28  Cal.  246;  Barber  v.  Rey- 
nolds, 33  Cal.  497;  Allen  v.  Marshall, 
34  Cal.  165;  Farris  v.  Merritt,  63  Cal. 
118;  Easton  v.  O'Reilly,  63  Cal.  305; 
Link  V.  Jarvis  (Cal.,  1892),  33  Pac. 
Rep.  206;  Barber  v.  Reynolds,  33  Cal. 
497;  Lorenzana  v.  Camarillo,  45  Cal. 
125.  Most  of  the  above  cases  support 
the  doctrine  that  an  amended  com- 
plaint relates  back  to  the  commence- 
ment of  the  action,  if  a  new  cause  of 
action  is  not  pleaded  and  new  parties 
are  not  brought  in;  and  in  such  case 
the  statute  ceases  to  run  when  the 
original  complaint  is  filed. 

Introducing  New  Cause  of  Action. — 
But  when  a  complaint  is  amended  so 
as  to  state  a  new  cause  of  action,  the 
action  is  not  commenced  as  to  said 
naw  cause  until  the  amended  com- 
plaint is  filed.  Anderson  v.  Mayers, 
50  Cal.  525.  See  Atkinson  v.  Ama- 
dor Canal  Co.,  53  Cal.  102,  where  the 
action  was  trespass,  and  an  amended 
complaint  was  filed  for  the  purpose  of 
including  a  parcel  of  land  inadvert- 
ently omitted  from  the  original  com- 
plaint. Held,  that  the  filing  of  the 
original  complaint  did  not  stop  the 
statute  of  limitations  from  running 
against  the  trespass  upon  the  omitted 
parcel.  See  also  Jeffers  v.  Cook,  58 
Cal.  147;  Meeks  v.  Southern  Pac.  R. 
Co.,  61  Cal.  149. 

Illustrations  of  no  New  Cause  of  Ac- 
tion.— Where  the  words  in  the  petition 
were,  "  He  is  a  thief,"  held  that  an 
amendment,    "that    thieving    son    of 

a  ,  he  stole  from  me  and    I    can 

prove  it,"  did  not  state  a  new  cause  of 
action.  Smullen  v.  Phillips,  92  Cal. 
408.  Where  a  complaint  praying  for 
the  return  of  articles  pledged  was 
amended  by  striking  out  the  prayer 
for  their  return,  held,  to  be  no  change 
in  the  cause  of  action.  Vanderslice  v. 
Matthews,  79  Cal.  273. 

Original  Defendant  cannot  take  Advan- 
tage because  New  Party  made. — While 
an  amendment  introducing  a  new 
cause  of  action  is  a  commencement  of 
the  action  at  the  time  the  amendment 
is  filed,  still  it  does  not  change  the 
nature  of  the  action  against  the  origi- 
nal defendant  (the  amendment  having 
made  new  defendants),  nor  extend  the 
statute   in  his  favor  till  the  filing  cf 


When  is  an  Action  Commenced  !       ACTIONS. 


In  the  Various  States. 


Colorsi6.o.— Colorado  has  a  statutory  provision  to  the  effect  that 
civil  actions  in  the  district  courts  and  county  courts  shall  be  com- 
menced by  the  filing  of  a  complaint  with  the  clerk  of  the  court  in 
which  the  action  is  brought,  and  the  issuing  of  a  summons  there- 
in.» 

Connecticut.— In  Co7inecticut  the  service  of  the  writ,  not  the 
date  of  its  issue,  is  the  commencement  of  the  suit.* 

Hel&vidLre.— Delaware  has  a  statutory  provision  to  the  effect  that 
every  writ  used  for  the  commencement  of  an  action  shall  bear 
date  on  the  day  it  was  issued,  and  shall  be  returnable  on  the  first 
day  of  the  term  next  thereafter.^ 

District  of  Columbia.— By  federal  legislation  it  is  enacted  that  in  the 
District  of  Cohimbia  civil  actions  shall  be  commenced  by  the 
filing  of  a  complaint  and  the  issuing  of  a  summons.  The  action 
is  deemed  to  be  commenced  from  the  time  of  the  issuing  of  the 
summons.* 

Florida.— In  Florida  an  action  is  deemed  to  be  commenced  when 
the  summons  or  other  original  process  is  delivered  to  the  proper 
officer  to  be  served.* 

Georgia.— The  Code  of  Georgia  provides  that  when  the  petition  is 


such  amendment.  Lewis  v.  Adams, 
70  Cal.  403;  59  Am.  Rep.  423. 

Divorce. — Where  a  new  cause  of  ac- 
tion is  inserted  in  the  complaint  for 
divorce,  the  action  is  commenced  as 
to  this  new  cause  of  action  when  the 
amendment  is  filed.  Valensin  v.  Va- 
lensin,  73 Cal.  106. 

Merger. — When  an  order  is  made  for 
the  service  of  summons  by  publica- 
tion, and  a  summons  is  issued,  and  a 
supplemental  complaint  is  afterwards 
filed,  and  a  summons  issued  thereon, 
the  original  action  becomes  merged  in 
the  action  as  supplemental.  McMinn 
V.  Whelan,  27  Cal.  300. 

1.  Civil  Code,  §  29. 

2.  Holderidge  v.  Wells,  4  Conn.  151, 
note;  Spalding  v.  Butts,  6  Conn.  30; 
Clark  V.  Helms,  i  Root  (Conn.)  487; 
Jencks  v.  Phelps,  4  Conn.  152;  Per- 
kins V.  Perkins,  7  Conn.  563;  18  Am. 
Dec.   120;  Gates  v.  Bushnell,  9  Conn. 

535- 

The  Practice  Act  of  Connecticut  seems 
to  contain  no  provision  as  to  when  an 
action  is  commenced,  and  hence  the 
above  cases  are  probably  law  now. 

Foreign  Attachment. — An  action  of 
foreign  attachment  is  not  begun,  as 
regards  the  defendant,  until  the  pro- 
cess is  served  upon  him.  After  ser- 
vice on  the  garnishee  only,  the  defend- 
ant may  pay  the  debt  and  escape  the 
penalty  of  costs.     Ashburn  v.  Poulter, 

X 


35  Conn.  553.     See  Studwell  v.  Cooke, 
38  Conn.  551. 

Real  estate  was  attached  on  Feb. 
28,  and  personal  service  of  the  writ 
was  made  on  the  defendant  on  March 
4.  Held,  that  the  action  was  not 
brought  within  the  meaning  of  the 
statute  of  limitations  until  March  4. 
Sanford  v.  Dick,  17  Conn.  215. 

3.  Laws  of  Delaware  (Rev.  Code 
1893),  tit.  16,  g  I.  The  action  is  prob- 
ably commenced  when  writ  is  issued. 

4.  Rev.  Code  (Dist.  of  Columbia) 
1857,  ch.  81,  g  I. 

Filing  of  Declaration. — For  the  pur- 
poses of  the  statutes  of  limitations  at 
least,  an  action  is  commenced  when 
the  declaration  is  filed.  "  Where  the 
original  declaration  states  a  cause  of 
action,  but  does  it  imperfectly,  and 
thereafter  an  amendment  is  filed, 
a  plea  of  the  statute  of  limita- 
tions will  relate  to  the  time  of  the 
filing  of  the '  original  declaration." 
Lewis  V.  Washington  R.  Co.,  6  Mackey 
(D.  C.)  556.  See  Moses  v.  Taylor,  6 
Mackey  (D.  C.)  255. 

New  Cause  of  Action. — The  amend- 
ment of  a  declaration  so  as  to  state  for 
the  first  time  a  cause  of  action  is 
equivalent  to  bringing  a  new  suit  as 
of  the  date  of  the  amendment.  John- 
ston V.  District  of  Columbia,  i  Mackey 
(D.  C.)  427- 

6.  Rev.  Sts.   ch.  26,  art.  i,  §  1282. 

22 


When  is  an  Action  Commenced  1      ACTIONS. 


In  the  Varioas  States. 


filed  in  the  office  of  the  clerk  of  the  court  the  action  is  com- 
menced ;  also,  that  upon  such  petition  the  clerk  shall  indorse 
the  date  of  its  filing  in  his  office,  which  shall  be  considered  the 
time  of  the  commencement  of  the  suit.* 


1.  Code  (1882),  §  3333.  See  §  3333, 
Code  (1873);  Bagley  v.  Stephens,  80 
Ga.  736;  Weslow  v.  Peavy,  51  Ga. 
210;  Dobbins  v.  Jenkins,  51  Ga.  203; 
George  v.  Gardner,  49  Ga.  449;  Branch 
V.  Mechanics'  Bank,  50  Ga.  416;  Lit- 
tleton V.  Spell,  77  Ga.  227. 

Service  Perfected. — The  filing  of  a 
declaration  in  the  clerk's  office,  when 
service  has  been  perfected  as  required 
by  law,  will  be  considered  as  the  com- 
mencement of  the  suit;  aliter,  where 
there  has  been  no  service.  Ferguson 
V.  New  Manchester  Mfg.  Co.,  51  Ga. 
609;  Coleman  v.  Warrill,  57  Ga.  124. 
"  It  would  scarcely  be  contended  that 
a  plaintiff,  whose  right  of  action  lacks 
but  a  few  days  of  beiftg  barred  by  the 
statute  of  limitations,  could,  by  simply 
filing  his  petition  in  the  clerk's  oflSce, 
with  the  clerk's  entry  thereon,  and 
then  dismissing  it  without  service, 
gain  six  months'  longer  time  to  recom- 
mence an  action  for  the  same  cause." 
Per  Trippe,  J.,  in  Branch  v.  Mechan- 
ics' Bank,  50  Ga.  416. 

Attachment. — Where  a  declaration 
claiming  damages  for  seduction  of 
plaintiff's  daughter  had  been  filed  in 
the  clerk's  ofl5ce,  but  had  not  been 
served  on  defendant,  the  filing  of  the 
declaration  was  such  a  commencement 
of  the  suit  under  the  Code  as  to  au- 
thorize an  attachment  to  issue /i?M</i?«^^ 
lite.     Graves   v.  Strozier,  37  Ga.  32. 

Ejectment. — When  in  an  action  of 
ejectment  a  third  person  goes  into 
possession  after  the  commencement 
of  the  suit,  and  such  third  person  is 
made  a  party  defendant,  the  date  of 
the  commencement  of  the  original  suit 
is  to  be  taken  as  the  date  of  the  com- 
mencement of  the  suit  against  such 
new  party.     Roe  v.  Doe,  47  Ga.  540. 

Changing  Snit  from  Individnal  Capac- 
ity to  Representative. — The  first  suit 
was  instituted  by  the  plaintiff  in  her 
individual  capacity,  and  pending  the 
action  the  declaration  was  amended  so 
as  to  show  that  she  sued  in  fact  as  the 
executor  of  her  husband.  Held,  that 
after  the  amendment,  as  before,  the 
suit  was  the  same  suit  and  not  an- 
other; and  that  the  time  when  the 
declaration  had  been  filed  was  the 
time  the  suit  was  commenced.  Tift  v. 
Towns,  63  Ga.  237. 


Removal  to  XJ.  S.  Courts. — When  the 
petition  is  filed,  application  may  be 
made  for  a  removal  to  the  0'.  S.  court, 
at  a  term  of  the  court  prior  to  that  in 
which  said  suit  is  returnable.  Floyd 
County  V.  Hurd,  49  Ga.  466. 

Certiorari. — A  writ  of  certiorari  is 
not  "brought"  within  the  meaning  of 
§  2920  of  the  Code  until  filed  in  the 
clerk's  office.  Barrett  v.  Devine,  60 
Ga.  632. 

Court  with  no  Jurisdiction. — A  suit  in 
a  court  having  no  jurisdiction  is  no 
suit  at  all;  it  is  simply  a  nullity.  Per 
McCay,  J.,  in  Gray  v.  Hodge,  50  Ga. 
263. 

Amendments  of  Pleadings. — Where  the 
cause  of  action  is  one  single  contract 
and  one  single  breach  thereof,  all 
amendments  to  the  declaration  relate- 
back  to  the  commencement  of  the  suit. 
Verdery  v.  Barrett,  89  Ga.  349.  But 
where  an  action  of  ejectment  is 
brought  in  the  "John  Doe"  form,  a 
demise  may  be  introduced,  by  amend- 
ment, at  any  time;  and  every  demise 
of  this  character  is  a  separate  and  dis- 
tinct cause  of  action.  The  cause  of 
action  thus  introduced  does  not  relate 
back  to  the  filing  of  the  declaration, 
but  dates  from  the  time  the  amend- 
ment is  filed  and  allowed.  Jones  v. 
Johnson,  81  Ga.  293. 

Some  Illustrations.  —  A  declaration 
was  filed.  The  clerk  failed  to  annex  a 
process  to  it.  The  suit  nevertheless 
went  on  for  several  years.  Finally,  it 
was  dismissed  by  the  court  on  the  mo- 
tion of  the  defendant,  the  ground  of 
the  motion  being  the  want  of  process. 
Pending  the  suit  the  limitation  period 
for  the  suit  ran  out.  Within  six  months 
from  the  dismissal  of  the  suit  the  suit 
was  renewed.  Held,  that  the  time  of  the 
termination  of  the  first  suit  was  when 
it  was  dismissed,  and  not  when  the 
clerk's  right  to  annex  a  process  to  the 
petition  expired ;  and  that  the  new  suit 
was  commenced  in  season.  Wynn  v. 
Booker,  22  Ga.  359.  Where  an  action 
was  brought  by  A  for  the  use  of  B, 
against  C,  and  it  appeared  on  the  face 
of  the  declaration  that  the  suit  was 
brought  for  the  use  of  B,  and  C  ac- 
knowledged service  and  waived  a 
copy  of  the  declaration  before  the 
writ    was    filed:    held,    that    the    ac- 


123 


When  is  an  Action  Commenced  1       ACTION'S. 


In  the  Various  States. 


Idaho. — The  Idaho  Code  prescribes  that  a  civil  action  is  com- 
menced by  fihng  a  complaint.* 

Illinois.— In  Illinois  the  issuing  of  the  summons  is  the  commence- 
ment of  a  suit.®  And  if  any  cause  exists  in  a  given  case  why 
that  date  should  not  apply,  the  party  relying  upon  the  statute  of 
limitations  as  a  bar  should  make  such  cause  apparent.^ 


knowledgment  of  service  and  waiver 
of  copy  so  charged  C  with  notice 
of  the  equitable  rights  of  B  that 
he  could  not  afterwards,  before  the 
writ  was  actually  filed,  buy  up  a  debt 
against  A,  and  plead  it  as  an  offset, 
unless  he  could  make  it  appear  that 
when  he  did  so  acknowledge  service 
he  did  not  know  that  the  suit  was  for 
the  use  of  B.  "We  are  not  prepared 
to  say  that  the  acknowledgment  of 
service  and  waiving  copy  was  the 
commencement  of  suit.  It  may  be 
that  plaintiff  would  never  file  it." 
McCay,  J.,  in  Whitaker  v.  Pope,  48 
Ga.  15. 

1.  Code  Civil  Proc.  §  4068. 

2.  Feazle  v.  Simpson,  2  111.  30  ;  Col- 
lins V.  Montemy,  3  111.  App.  182. 

3.  Chicago,  etc.,  R.  Co.  v.  Wilcox, 
12  111.  App.  42.  See  Chicago,  etc.,  R. 
Co.  V.  Henneberry,  42  111.  App.  126  ; 
People  V.  Stewart,  29  111.  App.  441  ; 
Pennsylvania  Co.  v.  Sloan,  125  111.  72; 
8  Am.  St.  Rep.  337;  Blanchard  v.  Lake 
Shore,  etc.,  R.  Co.,  126  111.  416;  g  Am. 
St.  Rep.  630 ;  Haines  v.  Chandler,  26 
111.  App.  400;  Fairbanks  z/.  Farwell,  141 
111.  354- 

Suit  in  Chancery. — The  filing  of  the 
bill  is  the  commencement  of  a  suit  in 
chancery,  and  service  had  therein  on 
process  issued  or  by  publication  of  no- 
tice made  prior  thereto  is  a  nullity. 
Hodgen  v.  Guttery,  58  111.  431. 

What  is  Suing  Out  of  a  Summons. — The 
suing  out  of  a  summons  is  the  com- 
mencement of  a  suit,  but  a  writ  is  not 
considered  as  legally  sued  out  until  it 
is  delivered  to  the  sheriff  with  author- 
ity to  make  service,  or  is  transmitted  to 
him  for  the  purpose  of  being  served. 
The  mere  making  out,  signing,  and 
sealing  of  a  summons  by  the  clerk,  and 
delivery  to  the  plaintiff  or  his  attorney, 
is  not  the  commencement  of  a  suit  so 
as  to  save  the  bar  of  a  limitation. 
Hekla  Ins.  Co.  v.  Schroeder,  9  111.  App. 
472,  where  the  process  was  issued  the 
day  before  the  limitation  expired  ;  but 
as  the  record  was  silent  as  to  when  the 
sheriff  received  it,  it  was  held  that  the 
action     was     barred.      Compare     Ben 


Franklin  Ins.  Co.  v.  Schroeder,  g  III. 
App.  477.  And  see  the  case  of  Schroe- 
der V.  Merchants'  Ins.  Co.,  104  111.  71, 
where  the  plaintiff  filed  his  praecipe  for 
a  summons  against  the  defendant,  and 
it  was  issued  by  the  clerk  and  placed 
in  the  hands  of  the  plaintiff's  attorney, 
who  retained  the  same  until  its  return 
day,  when  he  handed  it  back  to  the 
clerk,  ordering  a  new  writ,  which  was 
issued  and  served  returnable  to  the 
next  term  of  the  court.  This  last  pro- 
cess was  issued  after  the  expiration  of 
the  year,  the  contract  limitation.  Held, 
that  the  suit  was  commenced  when  the 
praecipe  was  filed  and  the  first  sum- 
mons was  issued  by  the  clerk. 

Amendment  as  to  Parties. — Amending 
the  process  and  making  a  new  party, 
with  new  process  against  him,  is  a 
commencement  as  to  such  defendant 
from  the  time  he  is  made  a  party.  U. 
S.  Ins.  Co.  V.  Ludwig,  108  111.  514.  But 
substituting  the  party  having  the  legal 
right  to  sue,  instead  of  one  improperly 
named  as  plaintiff,  is  in  no  sense  the 
commencing  of  a  new  suit;  but  so  far 
as  the  defendant  is  concerned  the  suit 
will  be  regarded  as  commenced  at  the 
time  of  the  original  issuing  and  service 
of  the  summons.  U.  S.  Ins.  Co.  v. 
"Ludwig,  108  111.  514,  where  on  a  life 
policy  of  insurance  containing  a  con- 
tract clause  of  limitations  an  action 
was  improperly  brought  in  the  name 
of  an  assignee  within  the  time  limited, 
instead  of  in  the  name  of  an  adminis- 
trator, and  judgment  of  recovery  was 
had,  which  was  reversed  for  want  of  a 
proper  party  plaintiff.  Thereupon,  by 
leave  of  court,  an  amendment  was 
made  substituting  the  administrator  in 
place  of  his  assignee,  and  a  new  count 
was  filed  upon  the  same  cause  of  ac- 
tion, but  this  was  after  the  expiration 
of  the  contract  period  of  limitation. 
Held,  that  the  amendment  related  back 
to  the  commencement  of  the  suit,  and 
that  the  limitation  could  not  be  invoked 
to  defeat  the  action.  Compare  Teu- 
tonia  L.  Ins.  Co.  v.  Mueller,  77  111.  22; 
Chicago,  etc.,  R.  Co.  v.  Jenkins,  lOj 
111.  588. 


124 


When  is  &n  Action  Commenced  ?      ACTIONS. 


In  the  Various  States. 


Indiana. — An  action  in  Indiana  is  commenced  from  the  time  of 
issuing  the  summons.^ 

Indian  Territory. — A  suit  in  the  United  States  court  for  the  hidian 
Territory  is  commenced  by  fihng  a  written  complaint.* 

Iowa.— In  lozva  the  deHvery  of  the  original  notice  to  the  sheriff 
of  the  proper  county  with  intent  that  it  shall  be  served  immedi- 


Filing  Affidavit  for  Attachment. — The 
filing  of  an  affidavit  for  an  attachment 
is  the  commencement  of  the  suit.  Pul- 
lian  V.  Nelson,  28  111.  112. 

Writ  of  Error. — Where  a  writ  of  error 
is  sued  out  within  five  years,  the  fail- 
ure to  have  the  process  served  before 
the  expiration  of  the  five  years  does 
not  bring  the  case  within  the  operation 
of  the  statute.  Burnap  v.  Wight,  14 
111.  303. 

Alias  Summons. — Where  a  summons 
from  the  circuit  court  is  made  return- 
able to  the  fourth  day  of  the  term,  it 
is  not  merely  voidable,  but  absolutely 
void,  and  should  be  quashed ;  but  where 
the  court,  upon  quashing  the  writ,  con- 
tinued the  cause  with  an  order  for  an 
alias  summons,  and  such  summons 
was  issued,  held,  that  the  alias  sum- 
mons might  be  considered  as  the  com- 
mencement of  a  new  suit  ;  that  the 
words  "as  you  have  been  before  com- 
manded," in  the  writ,  might  be  re- 
garded as  surplusage;  and  that  the 
writ  might  be  amended  in  the  circuit 
court  by  striking  out  those  words. 
Rattan  v.  Stone,  4  111.  540. 

Bedocketing  Cause. — Where  a  party 
failed  to  take  the  proper  steps  to  have 
a  cause  redocketed,  and  for  that  reason 
the  motion  to  redocket  was  overruled, 
and  afterwards,  upon  proper  notice, 
the  cause  was  redocketed,  a  notice  to 
take  depositions,  served  in  the  interim 
and  before  the  cause  was  properly  on 
the  docket,  was  held  of  no  avail  ;  and 
it  is  not  error  to  suppress  depositions 
taken  in  pursuance  of  such  notice. 
Joy  V.  Aultman,  etc.,  Mfg.  Co.,  11  111. 
App.  413. 

1.  Rev.  Sts.  (1888)  §  314  ;  Chicago, 
etc.,  R.  Co.  V.  Bills,  118  Ind.  221  ;  Pen- 
rose V.  McKenzie,  116  Ind.  35  ;  Ross 
V.  State,  131  Ind.  548. 

Issue  of  Process. — The  commence- 
ment of  a  suit  or  the  institution  of 
proceedings  on  motion  includes  the  is- 
suing of  process  or  notice  to  bring  the 
defendant  into  court.  Temple  v.  Ir- 
vin,  34  Ind.  412.  The  general  rule  is 
that  an  action  is  not  commenced  until 
the    impetration    of    the    writ.     And 


where  the  record  does  not  show  the 
issuing  of  any  writ,  nor  an  objection 
in  the  court  below  to  the  time  of  bring- 
ing the  action,  the  supreme  (jpurt  will 
presume  that  the  action  was  com- 
menced when  appearance  was  made 
and  answer  filed.  Charlestown  School 
Tp.  V.  Hay,  74  Ind.  127. 

When  is  Summons  Issued. — The  issu- 
ing of  summons  is  the  commencement 
of  an  action,  but  a  summons  is  not 
issued  until  it  comes  to  the  hands  of 
the  sheriff.  Fordice  v.  Hardesty,  36 
Ind.  23.  Compare  Wood  v.  Bissell,  108 
Ind.  229. 

Summons  Issued  before  Complaint  Filed. 
— Under  the  Code,  a  summons  issued 
upon  a  praecipe,  before  the  filing  of  the 
complaint  in  the  cause,  will  be  set 
aside  on  appearance  and  motion.  Hust 
V.  Conn,  12  Ind.  257.  But  where  the 
complaint  does  not  show  that  the  sum- 
mons was  prematurely  issued,  a  de- 
murrer based  upon  that  defect  is  bad. 
Hust  V.  Conn,  12  Ind.  257. 

An  Illustration. — A  proceeding  was 
commenced  by  process  of  foreign  at- 
tachment issued  under  the  statute  of 
1843.  The  affidavit  was  filed  and  the 
writ  issued  in  April,  1853  ;  but  it  did 
not  appear  that  the  writ  was  ever 
served  or  returned,  nor  that  it  was 
ever  placed  in  the  sheriff's  hands.  The 
record  stated  that  the  writ  issued,  and 
contained  a  copy  of  it.  Nothing 
further  was  done  until  December, 
1853,  when  the  defendant  appeared 
and  answered.  Held,  that  the  state- 
ment that  the  writ  issued  did  not  im- 
ply that  it  was  placed  in  the  hands  of 
the  sheriff  for  service  ;  that  the  infer- 
ence was  that  it  remained  in  the 
clerk's  office,  as  he  copied  it  into  the 
record  ;  also  that  the  action  was  not 
commenced  before  the  delivery  of  the 
writ  to  the  sheriff  for  service  ;  that 
the  mere  making  out  of  a  writ  without 
actual  or  constructive  delivery  to  the 
officer  for  service  was  the  same  as  if 
no  writ  had  issued.  Hancock  v.  Rit- 
chie, II  Ind.  48. 

2,  Rev.  Sts.  U.  S.,  chapter  on  Indian 
Territory. 


'25 


"When  is  an  Action  Commenced  1       ACTIONS. 


In  the  Varions  States. 


ately,  which  intent  shall  be  presumed  unless  the  contrary  appears, 
or  the  actual  service  of  that  notice  by  another  person,  is  a  com- 
mencement of  the  action.* 


1.  Rev.  Code  (1888),  §  2532;  Bracken 
V.  McAlvey,  83  Iowa  421;  Fernekes 
V.  Case,  75  Iowa  152  ;  Hampe  v.  Shaf- 
fer, 76  Iowa  563;  Case  v.  Blood,  71 
Iowa  632;  McDonald  v.  Jackson,  55 
Iowa  37;  District  Tp.  v.  District  Tp., 
62  Iowa  30;  Archer  v.  Chicago,  etc., 
R.  Co.,  65  Iowa  611;  Clark  v.  Stevens, 
55  Iowa  361;  Ewell  v.  Chicago,  etc.,  R. 
Co.,  29  Fed.  Rep.  57;  Collins z^.  Bane,  34 
Iowa  385;  Reed  v.  Chubb,  g  Iowa  178; 
Hagan  v.  Burch,  8  Iowa  309;  Elliott  v. 
Stevens,  10  Iowa  418;  Snyder  v.  Ives, 
42  Iowa  157;  Phinney  v.  Donahue,  67 
Iowa  192;  Wolfenden  v.  Barry,  65 
Iowa  653;  Parkyn  t'.  Travis,  50  Iowa 
436.  In  this  last  case  it  was  held  that 
an  action  is  commenced  when  the  no- 
tice is  served  on  the  defendant,  and 
not  when  it  is  placed  in  the  hands  of 
the  officer  for  service.  Proska  v.  Mc- 
Cormick,  56  Iowa  318,  holds  that  it  is 
only  for  the  purpose  of  the  statute  of 
limitations  that  the  delivery  of  an 
original  notice  to  the  sheriff  for  ser- 
vice constitutes  the  commencement  of 
an  action;  for  all  other  purposes  the 
commencement  of  the  action  dates 
from  the  actual  service  of  the  notice. 

Necessity  of  Delivery  to  the  Sheriff. — 
An  action  is  to  be  deemed  commenced 
from  the  delivery  of  the  original 
notice  to  the  sheriff,  and  not  from  the 
filing  of  the  petition.  Collins  v. 
Bane,  34  Iowa  385;  Hampe  v.  Shaffer, 
76  Iowa  563;  Bracken  v.  McAlvey,  83 
Iowa  421. 

Presumption  of  Delivery. — Where  the 
original  notice  is  not  served  until  a 
month  after  the  petition  is  filed,  the 
court  will  presume  that  the  notice  was 
delivered  to  the  sheriff  at  the  time  of 
filing  the  petition,  with  the  intent  that 
it  be  served  immediately,  and  after 
that  time  the  operation  of  the  statute 
of  limitations  will  be  suspended. 
Snyder  v.  Ives,  42  Iowa  157. 

Eiling  Claim  with  Administrator. — 
Where  the  claim  is  against  an  estate, 
the  filing  of  the  claim  and  such  action 
by  the  administrator  as  to  indicate 
approval  thereof  are  a  sufficient  com- 
mencement of  an  action  to  prevent 
the  claim  being  barred.  Wilson  v, 
McElroy,  83  Iowa  593. 

Defective  Notice. — A  notice  of  an  ac- 
tion,   with    the   appearance   day    left 


blank,  is  not  an  original  notice  within 
the  meaning  of  §  2532  of  the  Code; 
and  the  delivery  of  such  a  notice  by  a 
justice  of  the  peace  to  a  constable  for 
service,  with  the  understanding  that 
the  latter  should  insert  the  appear- 
ance day  at  or  before  the  time  of  ser- 
vice, was  held  not  to  be  the  com- 
.mencement  of  an  action  within  the 
meaning  of  said  section;  and  where 
the  action  was  not  otherwise  begun 
on  the  cause  of  action  until  more  than 
ten  years  after  it  accrued,  the  action 
was  barred.  Phinney  v.  Donahue,  67 
Iowa  192.  And  where  the  original 
notice  named  as  the  appearance  day  a 
day  already  past,  the  suit  was  held 
not  begun;  nor  was  the  case  aided  by 
the  service,  after  the  limitation  period 
had  elapsed,  of  a  second  notice,  cor- 
rectly reciting  the  appearance  day; 
and  the  appearance  of  the  defendant 
on  the  day  named  in  the  last  notice 
was  not  a  waiver  of  his  right  to  insist 
upon  the  statute  of  limitations. 
Jones  Lumber  Co.-  v.  Boggs,  63  Iowa 
589.  The  first  notice  stated  that  the 
term  of  court  at  which  the  defendants 
were  required  to  appear  would  com- 
mence on  30  August,  when  it  began 
on  31  August.  This  notice  was  held 
fatally  defective,  and  its  delivery  to 
the  sheriff  did  not  arrest  the  opera- 
tion of  the  statute  of  limitations. 
Fernekes  v.  Case,  75  Iowa  152. 

Injunction. — Where  ^  an  injunction 
was  issued  to  restrain  the  removal  of 
the  records  and  office  to  a  new.  county 
seat,  it  was  held  that  the  action  was 
commenced  by  the  service  of  the  writ 
of  injunction,  although  the  notice  was 
not  served  until  more  than  the  period 
of  limitations  had  elapsed.  Svveatt  v. 
Faville,  23  Iowa  321. 

Intent  must  be  Continuous. — Although 
the  delivery  of  an  original  notice  to 
the  sheriff,  with  intent  that  it  shall  be 
served  immediately,  is  a  commence- 
ment of  the  action  for  the  purposes  of 
the  statutes  of  limitations,  yet  such 
intent  must  be  continuous  until  the 
service  is  effected.  Where  a  notice 
was  placed  in  the  sheriff's  hands,  and 
he  neglected  to  serve  the  same,  but 
afterwards  returned  it  to  the  plain- 
tiff's attorney,  who  lost  it,  and  nearly 
two  years    later  another   notice   was 

26 


Wlien  is  an  Action  Commenced  1       ACTIONS. 


In  the  Various  States. 


Kansas. — The  Code  of  Kansas  provides  that  an  action  shall  be 
deemed  commenced,  within  the  meaning  of  the  statute  of  limita- 
tions, as  to  each  defendant,  at  the  date  of  the  summons  which  is 
served  on  him  or  on  a  codefendant  who  is  a  joint  contractor  or 
otherwise  united  in  interest  with  him.* 


drawn  and  served,  it  was  held  that 
the  action  was  not  begun  with  the  de- 
livery of  the  first  notice  to  the  sheriff. 
Wolfenden  v.  Barry,  65  Iowa  653. 

Amendments  of  Pleadings. — An  amend- 
ment of  a  petition,  which  sets  up  no 
new  cause  of  action,  but  simply  states 
the  original  in  another  form,  may  be 
filed  after  the  lapse  of  the  statutory 
period  of  limitation.  Cobb  v.  Illinois 
Cent.  R.  Co.,  38  Iowa  601;  Case  v. 
Blood,  71  Iowa  632;  Barke  v.  Early, 
72  Iowa  273.  And  an  amendment 
may  be  filed  after  the  statutory  limi- 
tation, setting  up  additional  dam- 
ages arising  out  of  the  original  cause 
of  action.  Cooper  v.  Mills  County, 
69  Iowa  350.  And  see  Myers  v.  Kirt, 
68  Iowa  124,  an  action  to  recover 
damages  on  account  of  unlawful  sales 
of  liquor  to  a  woman's  husband,  and 
for  a  lien  against  the  saloon  property. 
The  petition  did  not  state  facts  suffi- 
cient to  warrant  a  lien,  but  was  al- 
lowed to  be  amended  after  the  statu- 
tory period  had  barred  the  cause  of 
action. 

Amendment  as  to  Parties. — Where 
one  co-executor  withdrew  from  the 
case,  and  the  other  filed  an  amended 
petition,  claiming  in  her  own  right, 
filed  and  allowed  without  objection, 
this  was  held  not  to  commence  a  new 
action,  for  the  purposes  of  the  statute 
of  limitations.  Wade  v.  Clark,  52 
Iowa  158,  35  Am.  Rep.  262. 

Attachment. — The  petition,  affidavit 
for  the  writ,  and  attachment  bond 
were  filed  29  November,  1857,  and  the 
writ  was  issued  on  the  same  day. 
The  original  notice  was  dated  30  No- 
vember, and  was  received  by  the 
sheriff  on  the  same  day.  The  defend- 
ant moved  to  quash  the  writ  of  at- 
tachment because  it  was  issued  before 
the  commencement  of  the  action. 
Held,  that  when  a  petition  is  filed  an 
action  is  so  far  commenced  that  a  writ 
of  attachment  may  issue  before  the 
original  notice  is  placed  in  the  hands 
of  the  sheriff  for  service.  Hagan  v. 
Burch,  8  Iowa  309.  See  also  Reed  v. 
Chubb,  9  Iowa  178;  Elliott  v.  Stevens, 
10  Iowa  418. 


An  Illustration. — Where  the  notice 
was  placed  in  the  sheriff's  hands  for 
service  April  i,  but  was  not  served 
until  April  3,  and  the  cause  of  action 
accrued  April  2,  it  was  held  that  the 
cause  of  action  had  accrued  before 
suit  commenced.  Parkyn  v.  Travis, 
50  Iowa  436. 

1.  Code  Civil  Proc.  §  20.  g  57  pro- 
vides that  an  action  may  be  com- 
menced in  a  court  of  record  by  filing 
in  the  office  of  the  clerk  of  the  proper 
court  a  petition,  and  causing  a  sum- 
mons to  be  issued  thereon.  See  Culp 
V.  Steere,  47  Kan.  746  ;  Wilkinson  v. 
Elliott,  43  Kan.  590  ;  Smith  v.  Bour- 
bon County,  43  Kan.  619  ;  Pracht  v. 
McNee,  40  Kan.  i  ;  German  F.  Ins.  Co. 
V.  Bullene,  51  Kan.  764 ;  Parsons 
Water  Co.  v.  Hill,  46  Kan.  145  ;  Ord- 
way  V.  Cowles,  45  Kan.  447  ;  Smith  v. 
Payton,  13  Kan.  362  ;  Carney  v.  Tay- 
lor, 4  Kan.  178  ;  Searle  v.  Adams,  3 
Kan.  515,  89  Am.  Dec.  598  ;  Thomp- 
son V.  Wheeler,  29  Kan.  481. 

Issue  of  Process. — The  action  is  com- 
menced when  the  petition  and  praecipe 
are  filed  and  when  summons  is  issued. 
Per  Valentine,  J.,  in  Dunlap  v.  McFar- 
land,  25  Kan.  490. 

Attachment.  —  Where  an  action  is 
commenced  by  the  filing  of  a  petition, 
a  praecipe,  and  an  affidavit  for  an  order 
of  attachment,  and  a  summons  and 
order  of  attachment  are  issued  on  the 
same  day,  and  the  order  of  attach- 
ment is  served  by  levying  upon  certain 
real  estate,  and  the  defendant  is  not 
found,  and  afterward  the  summons 
and  order  of  attachment  are  returned, 
and  the  plaintiff  then  proceeds  to  ob- 
tain service  of  the  summons  by  publi- 
cation, and  the  first  publication  of  the 
summons  is  made  three  days  after  the 
action  is  commenced, — it  was  held  that 
for  the  purposes  of  the  attachment 
the  action  was  deemed  to  have  been 
commenced  at  the  time  of  the  filing  of 
the  petition,  the  praecipe,  and  the  affi- 
davit for  the  order  of  attachment,  and 
that  the  order  of  attachment  was  not 
invalid  because  issued  before  the 
action  was  commenced.  Dunlap  v. 
McFarland,  25  Kan.  490. 


12: 


When  is  an  Action  Commenced  "i      ACTIONS, 


In  the  Various  States. 


Kentucky. — 111  Kentucky  an  action  is  deemed  commenced  at  the 
date  of  the  first  summons  or  process  issued  in  good  faith  from  the 
court  or  tribunal  having  jurisdiction  of  the  cause  of  action.^ 

Louisiana.— Under  the  practice  code  of  Louisiana  an  action  is 
begun  by  petition  addressed  to  a  competent  judge.* 

Maine. — In  Maine  all  civil  actions,  except  scire  facias  and  other 
special  writs,  are  commenced  by  original  writ.^ 


United  in  Interest. — In  an  action  to 
enforce  a  mechanic's  lien,  the  owner 
of  the  lot  had  conveyed  the  same  away 
before  suit  ;  summons  was  served  on 
him  thereafter.  Held,  that  he  was  not 
so  united  in  interest  with  the  pur- 
chaser that  the  action  could  be  deemed 
commenced  as  to  such  purchaser  at 
the  date  of  the  summons  served  on 
the  original  owner.  Rice  v.  Simpson, 
30  Kan.  28. 

Silence  of  the  Record. — Where  the  rec- 
ord as  brought  to  the  appellate  court 
fails  to  show  when  the  action  was 
commenced  below,  it  is  impossible  to 
hold  that  a  plea  of  the  statute  of  limi- 
tations was  improperly  overruled. 
Marbourg  v.  McCormick,  23  Kan.   38. 

1.  General  Statutes  (1888),  ch.  71, 
art.  4,  i^  I  ;  Heckman  v.  Louisville, 
etc.,  R.  Co.,  85  Ky.  631  ;  Louisville  v. 
Smith,  87  Ky.  501  ;  Newton  v.  Carson 
(Ky.,  1887),  5  S.  W.  Rep.  475. 

Issuing  Process. — Issuing  the  writ, 
not  the  filing  the  declaration,  is  the 
commencement  of  the  action.  Thomp- 
son V.  Bell,  6  T.  B.  Mon.  (Ky.)  558  ; 
Butts  V.  Turner,  5  Bush  (Ky.)  435  ; 
Kellar  v.  Stanley,  86  Ky.  240. 

Date  of  First  Process. — The  date  of 
the  first  summons  or  process  issued  in 
good  faith  is  the  date  of  commence- 
ment. Trabue  v.  Sayre,  i  Bush  (Ky.) 
129. 

Amendment  as  to  Parties. — In  case  of 
an  amendment  substituting  new  parties 
in  place  of  the  defendant,  wrongfully 
made  such,  the  action  is  only  com- 
menced when  the  new  parties  are 
brought  in.  Leatherman  v.  Times 
Co.,  88  Ky.  291  ;  21  Am.  St.  Rep.  342. 

2.  Art.  170,  La.  Code  Prac;  Lalane 
V.  Payne,  42  La.  Ann.  152;  Boyd  v. 
Heine,  41  La.  Ann.  393. 

The  Statute  of  Limitations. — A  cita- 
tion served  on  a  married  woman  under 
a  petition  in  which  she  is  sued  as  a 
single  woman,  cannot  subsequently, 
after  the  defendant  is  sued  as  a  mar- 
ried woman  and  duly  cited,  be  invoked 
as    a   citation    sufficient   to    interrupt 

12 


prescription.  Bertrand  v.  Knox,  39 
La.  Ann.  431.  Where  a  co-owner  of 
indivision  of  immovable  property 
brings  an  action  in  his  own  name  for 
the  entire  damage  done  to  the  estate  by 
a  trespasser,  the  citation  in  such  suit 
will  avail  to  interrupt  prescription  as 
to  the  other  co-owner  who  afterwards 
intervenes  and  joins  in  the  action. 
Becnel  v.  Wagnespack,  40  La.  Ann. 
109. 

3.  Rev.  Sts.  (1883),  ch.  81,  §  i;  John- 
son V.  Farwell,  7  Me.  372. 

Writ  Brought  in  Wrong  County.— 
Donnell  v.  Gatchell,  38  Me.  217,  hold- 
ing that  the  limitation  was  not  sus- 
pended for  six  months  from  attaching 
to  a  cause  of  action,  where  the  writ 
was  abated  by  reason  of  being  brought 
in  the  wrong  county. 

Plea  in  Abatement. — Biddeford  Sav. 
Bank  v.  Mosher,  79  Me.  242,  holding 
that  a  plea  in  abatement  to  a  trustee 
writ,  founded  upon  the  fact  that  the 
alleged  trustee  was  not  a  resident  of 
the  county,  is  bad  if  it  does  not  allege 
the  non-residence  at  the  time  of  the 
commencement  of  the  action. 

Unavoidable  Accident ;  Statute  Con- 
strued.— Marble  v.  Hinds,  67  Me.  203, 
a  case  construing  §  87,  c.  81,  Rev.  Sts., 
as  to  failure  of  service,  the  result  of 
unavoidable  accident. 

Inevitable  Accident  Causing  Failure  of 
Service. — If  the  plaintiff  would  avoid 
the  bar  of  the  statute  of  limitations  by 
having  seasonably  sued  out  process, 
which  failed  of  service  through  inevi- 
table accident  in  the  transportation  by 
mail,  it  is  incumbent  on  him  to  show 
that  he  previously  ascertained  the 
course  of  the  mail,  and  that  a  letter 
enclosing  the  precept,  and  properly 
directed,  was  put  into  the  post-office 
sufficiently  early  to  have  reached  the 
officer,  by  the  ordinary  route,  in  sea- 
son for  legal  service.  A  suit  against 
the  sheriff  for  default  of  his  deputy, 
which  is  limited  to  four  years,  is 
barred  thereafter,  though  the  writ  fail 
of    service     by    inevitable     accident. 


When  is  an  Action  Commenced  ?       ACTIONS. 


In  the  Yarioos  States. 


Maryland.— In  Maryland  the  practice  of  bringing  actions  is  a 
simplified  common-law*  practice.  The  plaintiff  delivers  a  written 
memorandum  to  the  clerk  of  the  court,  who  then  issues  sum- 
mons. The  plaintiff  only  files  his  declaration  after  the  summons 
is  returned  served.  The  action  is  probably  commenced  when 
summons  is  issued.* 

Massachusetts.— An  action  is  deemed  to  have  been  commenced  ii 
Massachusetts  on  the  day  of  the  date  of  the  writ.* 

Michigan.— In  Michigan  it  is  probable  that  an  action  is  com- 
menced when  the  declaration  is  filed.* 


Jevvett  V.   Greene,   8  Me.  447;  Brown 
V.  Houdleth,  10  Me.  399. 

1.  See  Tyler's  Maryland  Pleading, 
passim. 

Amendment  of  Pleading. — The  dec- 
laration may  be  amended,  and  the 
amendment  relates  back  to  the  com- 
mencement of  the  action.  Wolf  v. 
Bauereis,  72  Md.  481. 

2.  Where  a  writ  was  filled  up  and 
dated  before  the  expiration  of  the 
time  limited  by  the  statute  for  bring- 
ing the  action,  it  was  held  that  the 
action  was  not  barred  by  the  statute, 
although  the  writ  was  not  served  until 
such  time  had  expired.  Gardner  v. 
Webber,  17  Pick.  (Mass.)  407;  Bunker 
V.  Shed,  8  Met.  (Mass.)  150.  See 
Ford  V.  Phillips-,  i  Pick.  (Mass.)  202; 
Emery  z/.  Seavey,  148  Mass.  566;  Cram 
V.  Holt,  I135  Mass.  46;  Federhen  v. 
Smith,  3  Allen  (Mass.)  119;  Swift  v. 
Crocker,  21  Pick.  (Mass.)  241;  Butler 
V.  Kimball,  5  Met.  (Mass.)  94;  Graves 
V.  Cushman,  131  Mass.  359;  Thorndike 
V.  Wells,  146  Mass.  619;  Phoenix  Ins. 
Co.  V.  Frissell,  142  Mass.  513;  Lowe  z/. 
Harwood,  139  Mass.  133. 

Parol  Evidence. — The  teste  of  a  writ  is 
prima  facie  evidence  of  the  time  when 
it  was  sued  out,  but  it  is  not  conclu- 
sive; and  the  actual  time  when  it  was 
^ued  out  and  delivered  to  the  ofl5cer 
may  be  proved  by  parol  evidence. 
Parkman  v.  Crosby,  16  Pick.  (Mass) 
297. 

Replevin. — The  date  of  a  writ  of  re- 
plevin is  not  conclusive  evidence  of  the 
time  when  the  action  was  commenced; 
and  if  the  cause  of  action  had  not  ac- 
crued on  the  day  of  the  date,  but  did 
accrue  before  the  day  of  the  service 
thereof,  and  there  is  no  evidence  of 
the  time  when  the  writ  was  given  to 
the  officer,  the  action  may  properly 
be  considered  as  having  been  com- 
menced after  the  cause  of  action  ac- 
crued.    Federhen  v.   Smith,    3    Allen 


(Mass.)  119.  See  Field  v.  Jacobs,  12 
Met.  (Mass.)  118,  where  it  was  held 
that  the  action  of  replevin  was  com- 
menced when  the  writ  was  filled  up, 
although  not  served  nor  given  to  an 
officer  for  service,  nor  a  replevin  bond 
filed,  until  after  the  expiration  of 
twenty-four  hours,  the  time  limited 
by  the  statute  to  replevy  impounded 
cattle. 

Provisional  Writ. — Where  a  writ  is 
filled  up  provisionally,  and  delivered 
to  an  officer  with  instructions  not  to 
serve  it  until  after  a  certain  time  or 
the  happening  of  a  certain  event,  the 
action  will  not  be  commenced  until 
service  of  the  writ.  Seaver  v.  Lincoln, 
21  Pick.  (Mass.)  267.  See  Grimes  v. 
Briggs,  no  Mass.  446.  Where  a  writ 
of  replevin  was  delivered  to  an  officer, 
and  he  was  directed  before  serving  it 
to  demand  the  goods  from  the  party, 
and  the  same  not  being  delivered  he 
proceeded  to  replevy  them,  the  writ 
and  service  were  held  good.  Badger 
V.  Phinney,  15  Mass.  359,  8  Am.  Dec. 

195. 

3.  Johnson  v.  Mead,  73  Mich.  326  ; 
Sheridan  v.  Cameron,  65  Mich.  680 ; 
Jlandall  v.  Gartner,  96  Mich.  284 ; 
People  V.  Clement,  72  Mich.  116  ;  Bres- 
nahan  v.  Nugent,  92  Mich.  76  ;  Detroit 
Free  Press  v.  Bagg,  78  Mich.  650 ; 
Bogue  V.  Prentis,  47  Mich.  124  ;  John- 
son V.  Mead,  58  Mich.  67  ;  Spier  v.  Mc- 
Gueen,  i  Mich.  252  ;  Pattridge  z/.  Lott, 
15  Mich.  251  ;  Foote  v.  Pfeiffer,  70- 
Mich.  581  ;  McOmlier  v.  Chapman,  42 
Mich.  117. 

Filing  Declaration. — Where  the  dec- 
laration was  sent  to  the  county  clerk 
without  an  entry  fee,  and  he  declined 
to  file  it,  it  was  held  that  serving  a  copy 
on  the  defendant  before  the  fee  was 
paid  and  declaration  filed  was  void, 
although  the  plaintiff  immediately  paid 
the  entry  fee  and  had  the  declaration 
filed  as  soon  as  the  omission  came  to 


I  Encyc.  PI.  &  Pr.— 9. 


129 


When  is  an  Action  Commenced  1      ACTIONS. 


In  the  Various  States. 


Minnesota. — The  Statutes  of  Minnesota  provide  that  an  action 
is  commenced  as  to  each  defendant  when  the  summons  is  served 
on  him.* 

Mississippi. — In  Mississippi  din  action  is  commenced  from  the  time 
of  the  filing  of  the  declaration,  if  a  summons  be  issued  thereon 
for  the  defendant.* 

Missouri. — The  Missouri  Code  provides  that  the  filing  a  petition 
in  a  court  of  record,  or  a  statement  or  account  before  a  court  not 
of  record,  and  the  suing  out  of  process  therein,  shall  be  taken 
and  deemed  the  commencement  of  a  suit.* 


his  attention,  which  was  just  after  he 
had  served  a  copy.  Ellis  v.  Fletch- 
er, 40  Mich.  321.  See  also  Wetherbee 
V.  Kusterer,  41  Mich.  359. 

Issue  of  Summons. — A  suit  is  not  be- 
gun, for  the  purposes  of  the  statutes 
of  limitations,  by  merely  filling  out  a 
summons  and  leaving  it  in  a  justice's 
ofhce  until  the  return  day,  or  by  re- 
taining it  in  the  plaintiff's  custody  ;  it 
must  be  issued  with  the  intent  that, 
if  practicable,  it  shall  be  served.  How- 
ell V.  Shepard,  48  Mich.  472.  And  a 
justice's  summons  is  not  issued  if 
merely  delivered  to  the  plaintiff  and 
kept  in  his  hands.  Howell  v.  Shep- 
ard, 48  Mich.  472.  The  date  of  a  writ 
is  prima  facie  evidence  of  the  time  of 
its  actual  issue,  and  defendant  has  the 
burden  of  proving  that  it  was  not  then 
issued.  Howell  v.  Shepard,  48  Mich. 
472. 

Attachment. — An  attachment  pro- 
ceeding is  begun  when  the  writ  issues, 
not  when  the  declaration  is  filed.  Gal- 
loway V.  Holmes,  i  Dougl.  (Mich.) 
330. 

Presumption. — Plaintiff  commenced 
two  suits  against  defendant  on  the 
same  day,  for  the  same  cause  of 
action — one  by  declaration,  the  other 
by  attachment.  The  court  presumed, 
nothing  appearing  on  the  record  to  the 
contrary,  that  the  suit  by  declaration 
was  filed  first,  and  held  that  a  plea  of 
that  suit  in  abatement  of  the  attach- 
ment suit  was  bad,  because  the  plea 
did  not  state  that  it  was  still  pending. 
Wales  V.  Jones,  i  Mich.  254.  See  also 
Pew  V.  Yoare,  12  Mich.  16. 

Amendment. — An  amendment  to  a 
declaration  counting  on  the  conversion 
of  "953  bushels  of  wheat  of  the  value 
of  $1040,"  which  strikes  out  that  item, 
and  inserts  in  its  place,  "31  acres  of 
growing  wheat  of  the  value  of  $800," 
introduces  a  new  cause  of  action,  and 
cannot  be  allowed  at  a  time  when  such 


new  cause   of   action  is  barred.     Nu- 
gent V.  Adsit,  93  Mich.  462. 

1.  Rev.  Sts.  i^  4698  ;  Bruns  z/.  Schrei- 
ber,  48  Minn.  366  ;  Hooper  v.  Farwell, 
3  Minn.  106  ;  Auerbach  v.  Maynard, 
26  Minn.  421  ;  Lough  v.  Pitman,  25 
Minn.  120. 

2.  Rev.  Code  (1880),  §  1522  ;  Brown  v. 
Goolsby,  34  Miss.  437  ;  Benson  v.  Stew- 
art, 30  Miss.  49. 

Issuing  of  Process. — The  commence- 
ment of  the  action,  within  the  mean- 
ing of  the  statute,  is  the  suing  out  of 
a  writ  and  placing  it  in  the  hands  of 
the  officer  for  service,  and  not  the  filing 
of  the  declaration.  Lamkin  v.  Mye,  43 
Miss.  241. 

Chancery  Suits. — The  filing  of  the  bill, 
and  not  the  issuance  of  the  process,  is 
so  far  a  commencement  of  a  suit  in  the 
chancery  court  as  to  stop  the  run- 
ning of  the  statute  of  limitations. 
Bacon  v.  Gardner,  23  Miss.  60. 

Distinction  between  Commencement  of 
an  Action  and  Lis  Pendens. —  There  is  a 
substantial  difference  between  the  com- 
mencement of  an  action  and  its  being 
a  suit  pending  between  the  parties  ;  the 
first  having  reference  only  to  the  act 
of  the  plaintiff,  but  the  second  having 
reference  also  to  the  position  of  the 
defendant.  Allen  v.  Mandaville,  26 
Miss.  397. 

3.  Wagner's  Rev.  Sts.  Mo.  §  2013  ; 
Baker  v.  Missouri  Pac.  R.  Co.,  34  Mo. 
App.  98  ;  Sutton  v.  Dameron,  100  Mo. 
141  ;  Smith  v.  Boese,  39  Mo.  App.  15  ; 
Smith  V.  Barrett,  41  Mo.  App.  460 ; 
Lilly  V.  Toblein,  103  Mo.  477  ;  23  Am. 
St.  Rep.  887  ;  South  Missouri  Lumber 
Co.  V.  Wright,  114  Mo.  326. 

Filing  of  the  Declaration. — "  In  this 
country,  the  filing  of  the  declaration, 
and  not  the  return  of  the  writ,  must 
be  considered  the  commencement  of 
the  suit."  Per  Wash,  J.,  in  Dougherty 
V.  Downey,  i  Mo.  674.  But  see  Fen- 
wick  V.  Gill,  38  Mo.  510,  where,  at  p. 


130 


When  is  an  Action  Commenced  1       ACTIONS. 


In  the  Various  States. 


Montana.— When  the  state  of  Montana  was  a  territory,  its  Code 
provided  that  an  action  is  commenced  by  fihng  a  complaint.  This 
is  probably  the  law  now,  since  the  state's  admission  into  the 
Union. ^ 

-S6\iXB,&k&.— Nebraska  provides  by  statute  that  an  action  shall  be 
deemed  commenced,  within  the  meaning  of  the  statute  of  limita- 
tions, as  to  the  defendant,  at  the  date  of  the  summons  which  is 
served  on  him.* 

Nevada.— Civil  actions  in  the  district  courts  of  Nevada  are  com- 
menced by  the  filing  of  a  complaint  with  the  clerk  of  the  court, 
and  the  issuance  of  a  summons  thereon.' 

New  Hampshire.- The  supreme  court  of  New  Hampshire  holds  that 
the  time  when  an  action  is  commenced  is  the  time  when  the  writ 
is  in  fact  filled  up  with  the  declaration  in  order  to  have  it  served 
upon  the  opposite  party.* 


525,  Holmes,  J.,  says:  "The  sum- 
mons was  served  on  the  defendant  on 
the  31st  day  of  October,  1858.  Strictly 
speaking  this  was  the  commencement 
of  the  suit." 

Attachment. — Where  suit  is  com- 
menced by  attaching  the  defendant's 
property,  the  plaintiff  may  take  depo- 
sitions before  summons  served  or 
publication  completed,  because  it  is 
a  pending  suit.  Lewin  v.  Dille,  17 
Mo.  64. 

Mechanic's  Lien. — Where,  in  a  suit 
on  a  mechanic's  lien,  the  petition  is 
filed  ninety  days  after  the  filing  of  the 
lien,  the  action  is  commenced  within 
the  meaning  of  the  statute  (Wagn. 
Sts.  911,  §  16),  and  the  lienor  is  not 
barred  although  the  writ  is  issued 
subsequent  to  that  period.  Gosline  v. 
Thompson,  61  Mo.  471.  And  see 
Spurlock  V.  Sproule,  72  Mo.  503,  507, 
which  applies  the  doctrine  generally, 
that  an  action  is  commenced  when  the 
petition  is  filed. 

Amendment. — An  amended  petition 
correcting  the  original  description  in 
a  suit  on  a  mechanic's  lien  is  merely  a 
continuance  of  the  original  action; 
and  where  that  was  brought  within 
ninety  days  after  filing  the  lien,  the 
plaintiff  is  not  barred  by  the  lien 
limitation  law.  Mann  v.  Schroer,  50 
Mo.  306.  And  where  an  amendment 
sets  up  no  new  matter  or  claim,  it  re- 
lates to  the  commencement  of  the  suit; 
but  where  it  introduces  a  new  claim, 
the  running  of  the  statute  continues 
to  the  time  of  filing  the  amendment. 
Buel  V.  St.  Louis  Transfer  Co.,  45  Mo. 
562.  See  also  Smith  v.  Missouri  Pac. 
R.  Co.,  50  Fed.  Rep.  760. 

Understanding  of  Counsel. — Where  a 


bill  was  filed  in  time,  but  a  summons 
did  not  issue  until  afterward,  owing 
to  an  understanding  that  the  defendant 
would  appear  without  a  summons,  the 
suit  was  held  not  barred.  Wright  v. 
Pratt,  17  Mo.  43. 

Depositing  a  Special  Tax  Bill. — The 
depositing  a  special  tax  bill  with  the 
justice  before  the  five  years'  limitation 
had  run  out,  but  not  delivering  pro- 
cess to  the  constable  until  it  had 
expired,  is  not  such  commencement  of 
suit  as  to  save  the  action  from  the  bar 
of  the  statute.  Turner  v.  Burns,  42 
Mo.  App.  94. 

What  is  the  Issuing  of  an  Execution. — 
The  mere  writ,  lying  in  the  clerk's 
office,  in  no  officer's  hands  who  could 
enforce  it,  ought  not  to  be  held  the 
"  issuing  "  of  an  execution,  within  the 
meaning  of  the  statute.  An  order  or 
writ  not  sent  out  is  not  "  issued." 
Burton  v.  Deleplain,  25  Mo.  App.  376. 

1.  Code  Civ.  Proc.  Montana  Ter. 
§66. 

2.  Code  Civ.  Proc.  §  ig ;  Johnson 
V.  Jones,  2  Neb.  126;  Burlingim  v. 
Cooper,  36  Neb.  73. 

Amendment  as  to  Parties. — In  an  ac- 
tion to  foreclose  a  mechanic's  lien,  an 
amendment  making  the  owner  of  the 
legal  title  party  commences  the  suit  as 
to  him  only  from  the  time  he  was  made 
a  party.     Green  v.  Sanford,   34  Neb. 

363- 

3.  Code  Civ.  Proc.  §  22.  See  also 
§  23,  providing  that  at  any  time  with- 
in one  year  after  the  filing  of  a  c  om- 
plaint  the  plaintiff  may  cause  to  be 
issued  a  summons  thereon.  Rose  v. 
Richmond  Min.  Co.,  17  Nev.  25. 

4.  Society,  etc.,  v.  Whitcomb,  2  N. 
H.  227.     See  Gagnon  v.  Connor,  64  N. 


131 


When  is  an  Action  Commenced  1       ACTIONS, 


In  the  Varioos  States. 


Naw  Jersey.— In  New  Jersey  a  suit  is  commenced  as  soon  as  the 
writ  is  sealed  and  issued  out  of  the  office,  in  good  faith,  for  the 
purpose  of  being  served  or  proceeded  on,  and  that  purpose  is  not 
afterward  abandoned.^ 

New  Mexico.— The  Compiled  Laws  of  New  Mexico  prescribe  that 
all  suits  at  law  in  the  district  courts  shall  be  commenced  by  filing 
a  declaration  in  the  office  of  the  clerk  of  the  court.* 

New  York.— The  New  York  Code  of  Civil  Procedure  provides 
that  a  civil  action  is  commenced  by  the  service  of  a  summons; 
also  that  an  action  is  commenced  against  a  defendant,  within  the 


H.  276  ;  Buswell  v.  Babbitt,  65  N.  H. 
168. 

Parol  Evidence. — The  date  and  not 
the  service  of  the  writ  is  prima  facie 
evidence  of  the  true  time  when  it  was 
sued  out.  But  this  prima  facie  evi- 
dence may  be  rebutted  and  the  true 
time  shown  by  parol  testimony.  Soci- 
ety, etc.  V.  Whitcomb,  2  N.  H.  227. 

Limitations  ;  Suits  in  Equity,  etc. — 
"An  action  at  law  is  in  general  re- 
garded as  commenced,  so  as  to  avoid 
the  statute  of  limitations,  when  the 
writ  is  completed  with  the  purpose  of 
making  immediate  service.  But  when 
there  is  no  intention  to  have  it  served, 
or  where  it  cannot  be  served  until 
some  further  act  is  done,  the  action  is 
not  deemed  to  be  commenced  until 
such  act  is  performed.  The  same  rule 
is  applicable  to  suits  in  equity.  A  bill 
in  equity  must  be  filed  in  the  clerk's  of- 
fice and  an  order  of  notice  obtained  be- 
fore it  can  be  served  upon  the  defend- 
ant. The  date  of  the  filing  is  therefore 
the  earliest  time  which  can  be  taken  as 
the  commencement  of  the  suit."  Per 
Carpenter,  J.,  in  Clark  v.  Slayton,  63 
N.  H.  402. 

Provisional  Writ. — When  the  writ  is 
placed  in  the  hands  of  the  officer,  but 
not  to  be  served  until  after  demand, 
the  suit  is  not  commenced  till  demand. 
Robinson  v.  Burleigh,  5  N.  H.  225  ; 
Leach  v.  Noyes,  45  N.  H.  364;  Graves 
V.  Ticknor,  6  N.  H.  537;  Hardy  v.  Cor- 
liss, 21  N.  H.  356  ;  Mason  v.  Cheney, 
47  N.  H.  24;  Brewster  v.  Brewster,  52 
N.  H.  60. 

Set-off. — In  general,  an  action  is  com- 
menced, so  as  to  exclude  a  subsequent 
set-ofif,  when  the  writ  is  made  out  and 
placed  in  the  hands  of  the  officer  for 
service.    Hardy  z/.  Corliss, 21  N.H.  356. 

Writ  under  Control  of  Party. — A  writ, 
until  served,  is  under  the  control  of 
the  party,  and  may  be  changed  by  him. 
Plumer  v.  Fogg,  18  N.  H.  559. 


1.  White  V.  Hunt,  6  N.  J.  L.  415; 
Bank  of  Elizabeth  v.  Barber,  8  N.  J. 
L.  309;  Kirkpatrick  v.  McElroy,  41  N. 
J.  Eq.  539.  Thus,  where  an  attorney 
sued  out  a  summons  and  showed  it  to- 
a  defendant  requesting  him  to  sign  his 
appearance  to  it,  and  the  defendant 
promised  to  do  so  in  case  he  could  not 
arrange  with  plaintiff,  and  defendant 
afterward  appeared  to  that  summons, 
the  suit  was  considered  as  having  been 
actually  commenced  at  the  time  the 
summons  was  first  shown  to  the  de- 
fendant, so  that  a  note  acquired  by  the 
defendant  subsequent  to  that  time 
could  not  be  set  off.  Whitaker  v. 
Turnbull,  18  N.  J.  L.  172.  And  like- 
wise when  a  summons  was  prepared 
and  sealed  by  an  attorney,  in  the 
usual  manner,  as  agent  of  the  clerk  of 
the  court,  and  suffered  to  remain  upon 
his  table  without  being  given  to  the 
sheriff,  while  awaiting  an  answer  to  a 
proposal  for  an  arbitration,  and  was 
afterwards  served  prior  to  the  term  to 
which  it  was  returnable,  it  was  held 
that  the  making  and  sealing  the  writ 
by  the  attorney,  in  good  faith,  and  for 
the  purpose  of  having  it  served,  was 
the  commencement  of  the  suit,  al- 
though the  statute  of  limitations 
barred  the  claim  before  the  summons 
had  been  placed  in  the  sheriff's  hands 
for  service.  Updike  v.  Ten  Broeck, 
32  N.  J.  L.  105. 

Scire  Facias. — The  writ  of  scire  facias, 
referred  to  in  section  fifty-one  of  the 
Attachment  Act,  must  necessarily  be 
regarded  in  the  nature  of  a  summons, 
and  as  the  commencement  of  an  ac- 
tion. Delaware,  etc.,  R.  Co.  v.  Dit- 
ton,  36  N.  J.  L.  361. 

2.  Compiled  Laws  (1884),  §  1907. 
And  see  same  section,  establishing^ 
pleadings  and  practice  according  to 
the  forms  and  rules  of  the  common 
law,  and  differentiating  law  pleading 
and  practice  from  equity. 


132 


When  is  an  Action  Commenced  f       ACTIONS, 


In  the  Various  States. 


meaning  of  any  provision  of  the  act  which  limits  the  time  for 
commencing  an  action,  when  the  summons  is  served  on  him,  or  on 
a  codefendant  who  is  a  joint  contractor  or  otherwise  united  in  in- 
terest with  him.i 


1.  Code  Civ.  Proc.  §  416  and  §  398. 
See  also  Evans  v.  Cleveland,  72  N.  Y. 
486;  Palmer  v.  Ensign,  19  Alb.  L.  J. 
399;  Clare  v.  Lockhard,  122  N.Y.  263; 
Shaw  V.  Cock,  78  N.  Y.  194;  Jack- 
son V,  Haviland,  13  Johns.  (N.  Y.) 
229;  Akin  V.  Albany  Northern  R. 
Co.,  14  How.  Pr.  (N.  Y.  Supreme  Ct.) 
337;  Treadwell  v.  Lawlor,  15  How. 
Pr.  (N.  Y.  Supreme  Ct.)  8;  Burkhardt 
V.  Sanford,  7  How.  Pr.  (N.  Y.  Supreme 
Ct.)  329;  Matter  of  Griswold,  13  Barb. 
(N.  Y.)  412;  More  v.  Thayer,  10  Barb. 
<N.  Y.)  258;  Hill  V.  Thacter,  3  How. 
Pr.  (N.  Y.  Supreme  Ct.)407;  Riley  v. 
Riley,  64  Hun  (N.  Y.)  496;  Matter  of 
Bonnett's  Will,  i  Conn.  (N.  Y.)  294; 
Matter  of  Bradley's  Will,  70  Hun  (N. 
Y.)  104;  Matter  of  Duffy,  133  N.  Y.  512; 
Reilly  v.  Hart,  55  Hun  (N.  Y.)  465; 
Knapp  V.  New  York  El.  Co.  (Super. 
Ct.),  24  N.  Y.  Supp.  324;  Quick  v. 
Leigh,  12  N.  Y.  Supp.  616,  59  Hun  (N. 
Y.)  616;  Bruen  v.  Bokee,  4  Den.  (N. 
Y.)  56,  47  Am.  Dec.  239;  Long  v. 
Stafford,  103  N.  Y.  274;  Merritt  v. 
Scott,  3  Hun  (N.  Y.)  657;  Vanden- 
burgh  V.  Biggs,  3  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  316;  White  V.  Ward,  35 
Barb.  (N.  Y.)  637;  Berlin  v.  Hall,  48 
Barb.  (N.  Y.)  442;  Gibson  v.  Van  Der- 
zee,  47  How.  Pr.  (N.  Y.  Supreme  Ct.) 
231;  Maples  V.  Mackey,  22  Hun  (N. 
Y.)  228;  Davison  v.  Budlong,  40  Hun 
<N.  Y.)  245;  Sanford  v.  Sanford,  2 
Hun  (N.  Y.)  94;  Schermerhorn  v. 
Schermerhorn,  5  Wend.  (N.  Y.)  513; 
Burdick  v.  Green,  18  Johns.  (N.  Y.)  14. 

Under  the  Code  of  New  York — Service 
of  Summons. — As  a  general  rule,  an 
action  under  the  Code  is  not  com- 
menced until  the  actual  service  01  the 
summons.  The  only  exceptions  are 
those  created  by  §§99  and  135  of  the 
Code.  The  first  exception  is  confined 
to  cases  in  which  the  statute  of  limita- 
tions is  set  up  as  a  defense  ;  the  second 
to  actions  against  non-resident  or  ab- 
sconding debtors  and  foreign  corpora- 
tions. Wiggin  V.  Orser,  5  Duer  (N. 
Y.)  118.  The  action  is  commenced  as 
to  a  defendant  when  the  summons  and 
complaint  are  originally  served  on  his 
codefendant.  Broadway  Bank  v.  Luff, 
51  How.  Pr.  (N.  Y.  Supreme  Ct.)  479. 

Not-imprisonment  Act. — An  action  is 


sufficiently  commenced  under  the  non- 
imprisonment  act,  for  the  purpose  of 
issuing  a  warrant,  by  lodging  a  sum- 
mons with  the  sheriff  with  intent  that 
it  should  be  served.  Gregory  z/.  Weiner, 
I  Code  Rep.  N.  S.  (N.  Y.)  210. 

Attachment. — A  summons  issued  or 
served  is  not  necessary  to  commence 
an  action  wherein  an  attachment  is 
asked.  Wallace  v.  Castle,  68  N.  Y. 
370. 

Action  by  Stockholder. — An  action  by 
one  stockholder  suing  for  all  saves 
the  rights  of  any  others  made  parties 
thereafter.  Brinckerhoff  t'.  Bostwick, 
99  N.  Y.  185. 

deferring  to  an  Arbitrator. — The  en- 
try of  an  order  to  refer  to  arbitra- 
tion a  claim  presented  to  an  executor 
is  the  commencement  of  the  action  for 
the  purpose  of  determining  whether 
the  action  has  been  brought  within 
the  time  limited  by  the  statute.  Hults- 
lander  v.  Thompson,  5  Hun  (N.  Y.) 
348  ;  Bucklin  v.  Chapin,  i  Lans.  (N. 
Y.)  443  ;  Reynolds  v.  Collins,  3  Hill 
(N.  Y.)  37  ;  Comstock  v.  Olmstead,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  77. 

Presentation  to  a  Comptroller. — The 
presentation  to  the  comptroller  of  a 
city  of  a  claim  to  recover  assessments, 
although  a  necessary  preliminary  to 
the  bringing  of  a  suit  against  the  city, 
is  not  the  commencement  of  an  action 
to  collect  the  claim  within  the  mean- 
ing of  the  statute  of  limitations. 
Brehm  v.  New  York,  104  N.  Y.  186. 

Amending  Complaint. — Amending  the 
complaint  and  introducing  a  new  cause 
of  action  is  a  new  commencement. 
Sands  v.  Burt,  i  Alb.  L.  J.  124  ;  New- 
man V.  Marvin,  12  Hun  (N.  Y.)  236  ; 
Jackson  v.  Griffin,  Col.  &  C.  (N.  Y.) 
227  ;  Campbell  v.  Bowne,  5  Paige  (N. 
Y.)  34.  Contra,  Ward  v.  Kalbfleisch, 
21  How.  Pr.  (N.  Y.  Supreme  Ct.)  283  ; 
Wilson  V.  Smith  (Super.  Ct.),  39  N.  Y. 
St.   Rep.  156. 

Parol  Evidence. — The  true  time  of 
filling  up  a  process  and  of  placing  it 
in  an  officer's  hands  for  service,  and 
of  its  service,  may  be  shown  by  extrin- 
sic proof,  irrespective  of  the  indorse- 
ments thereon.  The  return,  though, 
of  a  justice  to  the  county  court,  show- 
ing the  time  of  the  issue  and  return  of 


133 


"When  is  an  Action  Commenced  1       ACTIONS. 


In  the  Various  States. 


North  Carolina.— In  North  Carolina  an  action  is  commenced  as  to 
each  defendant  when  the  summons  is  issued  against  him.* 


the  service  of  summons,  \s  prima  facie 
evidence  of  the  time  of  the  commence- 
ment of  the  action,  in  the  trial  upon 
appeal  in  that  court.  Porter  v.  Kim- 
ball, 3  Lans.  (N.  Y.)  330. 

Before  the  Code — Issuing  the  Writ. — 
The  issuing  of  the  writ  was  the  com- 
mencement of  the  suit,  in  all  cases 
where  the  time  was  material,  so  as  to 
save  the  statute  of  limitations  ;  and  it 
was  not  necessary  to  show  that  the 
writ  had  been  returned,  nor  that  it 
was  actually  delivered  to  the  sheriff. 
If  the  writ  was  made  out  and  sent  to 
the  sheriff,  by  mail  or  otherwise,  with 
a  bona-fide  intention  of  having  it  served, 
it  was  sufficient.  Burdick  v.  Green, 
18  Johns.  (N.  Y.)  13.  The  issuing  of  a 
capias  to  any  county  was  a  commence- 
ment of  an  action  within  the  meaning 
of  the  statute  of  limitations.  Jackson 
z/.  Brooks,  14  Wend.  (N.  Y.) 649  ;  Beek- 
man  v.  Satterlee,  5  Cow.  (N.  Y.)  519; 
Baskins  v.  Wilson,  6  Cow.  (N.  Y.) 
471;  Davis  w.  West,  5  Wend.  (N.  Y.)  63. 
In  Ross  V.  Luther,  4  Cow.  158,  15  Am. 
Dec.  341,  it  was  held  that  the  issuing 
of  the  writ  was  the  commencement  of 
the  action  ;  that  the  mere  filling  it  up 
is  not  sufficient ;  it  must  be  either  de- 
livered to  the  sheriff,  or  sent  to  him 
by  mail  or  otherwise,  with  a  bona-fide, 
absolute,  unequivocal  intention  to 
have  it  served  <  that,  if  delivered  to 
an  agent  or  messenger  who  has  power 
to  determine  when  or  whether  it  shall 
be  given  to  the  sheriff,  the  writ  is  not 
deemed  issued,  nor  the  suit  com- 
menced, until  its  actual  delivery  to  the 
sheriff.  A  capias  sued  out  and  re- 
turned no7i  est  inventus,  continued  down 
by  regular  continuances  on  a  continu- 
ance roll  to  the  term  when  the  process 
issued  upon  which  the  defendant  was 
arrested,  saves  the  attaching  of  the 
statute  of  limitations  ;  and  it  seems 
that  no  length  of  time  between  the 
first  and  last  process  destroys  the 
effect  of  such  a  proceeding  ;  in  this 
case  17  years  elapsed  between  the  is- 
suing of  the  two  writs.  Ontario  Bank 
V.  Rathbun,  19  Wend.  (N.  Y.)  291. 

But  the  plaintiff  must  show  that  the 
process  on  which  the  arrest  was  made 
is  a  continuation  of  the  process  origi- 
nally issued ,  as  that  it  is  an  alias  or 
pluries.  The  continuation  of  the  suit 
must  be  proved  and  will  not  be  pre- 


sumed. Soulden  v.  Van  Rensselaer,  3 
Wend.  (N.  Y.)  471.  See  also  Davis  v. 
West,  5  Wend.  (N.  Y.)  63. 

Proceeding  by  Declaration. — Where  a 
defendant  is  proceeded  against  by 
declaration  under  the  statute,  instead 
of  capias,  the  suit  is  not  considered 
as  commenced  until  the  defendant  is 
personally  served  with  the  declaration; 
the  filing  of  it,  entry  of  the  rule  to 
plead,  and  efforts  to  serve  it  will  not 
suffice  to  save  the  statute.  Edmon- 
stone   V.  Thomson,   15  Wend.   (N.  Y.) 

554- 

Defendant  Kept  in  Ignorance  of 
Capias. — Where  the  defendant  is  kept 
in  ignorance  of  the  capias  by  order  of 
the  plaintiff  until  the  limitation  period 
has  elapsed,  this  is  not  sufficient  to 
take  the  case  out  of  the  statute  of 
limitations.  Madison  County  Bank  v. 
Keller,  2  Hill  (N.  Y.)  117. 

Summons  Issued  by  Justice. — Where  a 
summons  in  a  justice's  court  is  re- 
turned as  having  been  served  by  copy, 
and  the  justice  issues  another  sum- 
mons, the  suit  is  legally  continued, 
and  in  respect  to  the  defence  of  the 
statute  of  limitations  is  deemed  to 
have  been  commenced  when  the  first 
summons  was  delivered  to  the  con- 
stable to  be  served.  Cornell  v.  Moul- 
ton,  3  Den.  (N.  Y.)  12. 

1.  Code  N.  C.  §  161;  Hester  v.  Mul- 
len, 107  N.  Car.  724,  a  slander  case ;  W^y- 
rick  V.  Wyrick,  106  N.  Car.  84:  Whet- 
stine  V.  Wilson,  104  N.  Car.  385;  Ful- 
bright  V.  Tritt,  2  Dev.  &  B.  (N.  Car.) 
491;  Governor  v.  Welch,  3  Ired.  (N. 
Car.)  249;  Hanna  v.  Ingram,  8  Jones 
(N.  Car.)  55;  State  v.  Wood,  3  Ired.  (N. 
Car.)  23;  Badham  v.  Jones,  64  N.  Car. 
655;  Wheeler  v.  Cobb,  75  N.  Car.  21; 
Etheridge  v.  Woodley,  S3  N.  Car.  11. 

Ejectment. — The  commencement  of 
an  action  of  ejectment  is  the  service  of 
the  declaration.  Thompson  v.  Red,  2 
Jones  (N.  Car.)  412. 

Pending  Suit. — "It  seems  to  be  set- 
tled that  a  suit  is  not  pending  until  the 
return  term,  or  at  least  until  service 
of  process."  Per  Reade  in  Simmons 
V.  Simmons,  Phil.  Eq.  (N.  Car.)  65. 

Alias  Summons  to  be  Issued. — Where  an 
original  summons  issued  in  August, 
1871,  which  was  not  served,  and  was 
not  in  three  years  followed  by  appro- 
priate successive  processes  in  order  to 


134 


When  is  an  Action  Commenced  t      ACTIONS. 


In  tlie  Various  States. 


North  Dakota.— Z^^>^^/^  Territory  provided  by  statute  that  a  civil 
action  should  be  commenced  by  the  service  of  a  summons.  This 
is  probably  the  law  of  North  Dakota  now.* 

Ohio.— 6^/^/^  has  a  code  provision  almost  identical  with  that  oiNezo 
York  in  reference  to  the  commencement  of  an  action.  An  action 
is  commenced  by  filing  in  the  ofifice  of  the  clerk  of  the  proper 
court  a  petition,  and  causing  a  summons  to  be  issued  thereon  ; 
and  an  action  is  deemed  commenced,  within  the  meaning  of  the 
statute  of  limitations,  as  to  each  defendant,  at  the  date  of  the 
summons  which  is  served  on  him  or  on  a  codefendant  who  is  a 
joint  contractor  or  otherwise  united  in  interest  with  him.* 


constitute  a  continuous  single  action, 
the  suit  could  not  be  made  to  relate  to 
the  issuance  of  the  original  process 
(and  so  avoid  the  bar  of  the  statute  of 
limitations)  by  taking  out  a  second 
summons  neither  in  form  an  alias  nor 
purporting  to  be  such.  Etheridge  v. 
Woodley,  83  N.  Car.  11. 

Amendment  of  Pleading. — The  amend- 
ment of  a  pleading  by  a  change  of 
name  is  not  affected  by  the  statute  of 
limitations.  Bray  v.  Creekmore,  109 
N.  Car.  49. 

1.  Compiled  Laws  of  Dakota  (1887), 
§  4892. 

2.  Rev.  St.  §  5035  and  §  4987;  Bar- 
rick  V.  Gifford,  47  Ohio  St.  180;  21  Am. 
St.  Rep.  79S;  Dewitt  v.  Greenfield,  5 
Ohio  225 ;  Seibert  v.  Switzer,  35  Ohio  St. 
661;  Moore  v.  Chittenden,  39  Ohio  St. 
563;  Pollock  V.  Pollock,  2  OhioCir.  Ct. 
140;  Markley  v.  Michael,  6  Cine.  L. 
Bull.  (Ohio)  832;  Schock  z/.  Frazer,  10 
Am.  L.  Rec.  (Ohio)  305. 

Date  of  Summons. — An  action  is 
deemed  commenced  at  the  date  of  the 
summons  which  is  served  on  the  de- 
fendant, and,  although  a  demurrer  to 
the  petition  is  sustained,  and  leave  is 
given  to  amend,  the  action  remains 
commenced;  and  the  averment  as  to 
the  discovery  of  the  fraud  within  four 
years  before  the  action  was  brought 
may  be  supplied  in  a  subsequent 
amendment  to  the  petition.  Zieverink 
V.  Kemper  (Ohio,  1893),  34  N.  E.  Rep. 
250.  When  a  writ  is  issued  and  re- 
turned not  served,  and  an  alias  is  is- 
sued and  served,  the  suit  is  com- 
menced at  the  date  of  the  first  writ. 
Swisher  v.  Swisher,  Wright  (Ohio)  755. 

Setting  Aside  Service. — The  service  of 
a  summons  on  the  return  day  is  not 
void  but  voidable;  and  if  such  service 
is  set  aside,  the  plaintiff  may  under 
section  23  of  the  Code,  within  the  time 
(Iierein  limited,  bring  a  new   action, 


notwithstanding  the  time  allowed  for 
commencing  the  action  may  have  ex- 
pired between  the  time  of  instituting 
proceedings  and  the  time  of  setting 
aside  the  service.  Meisse  v.  McCoy, 
17  Ohio  St.  225. 

Contesting  a  Will. — Where  a  proceed- 
ing for  the  contest  of  a  will  is  com- 
menced within  the  statutory  period  of 
limitation,  although  only  part  of  the 
'persons  interested  in  the  contest  are 
made  parties  thereto,  the  right  of  ac- 
tion is  saved  as  to  all  who  are  ultimate- 
ly made  parties,  notwithstanding  some 
of  them  are  not  brought  into  the  case 
until  after  the  period  of  limitation  has 
expired.  Bradford  v.  Andrews,  20 
Ohio  St.  208;  5  Am.  Rep.  645. 

Petitions  in  Error. — The  provision  of 
section  20  of  the  Code  of  Civil  Proced- 
ure, that  an  action  shall  be  deemed 
commenced  as  to  each  defendant  at 
the  date  of  the  summons  which  is 
served  on  him  or  on  a  codefendant 
who  is  a  joint  contractor,  is  applicable, 
by  analogy,  to  petitions  in  error. 
Buckingham  v.  Commercial  Bank,  21 
Ohio  St.  131  ;  Robinson  v.  Orr,  16 
Ohio  St.  285  ;  Bowen  v.  Bowen,  36 
Ohio  St.  312. 

Enforcing  Lien  of  Assessment. — Where 
an  action  was  commenced  for  the  pur- 
pose of  enforcing  the  lien  of  an  assess- 
ment, given  by  the  Act  of  March  29, 
1869,  and  by  mistake  the  owner  of  the 
premises  was  not  made  a  party  or 
served  with  process,  nor  was  there  any 
endeavor  to  make  him  a  party  until 
after  the  expiration  of  the  two  years, 
there  was  no  commencement  of  a  prop- 
er action  within  the  meaning  of  the 
exception  contained  in  the  Act.  Bonte 
V.  Taylor,  24  Ohio  St.  628. 

Attempt  to  Commence. — A  petition 
was  filed  July  4,  and  a  summons  was 
issued  but  not  served  because  the  de- 
fendant could  not  be  found.     On  Sep- 


135 


When  is  an  Action  Commenced  1       AC  TIONS. 


In  the  Various  States. 


Oklahoma.— The  Territory  of  Oklahoma  has  by  its  Code  of  Civil 
Procedure  provided  that  an  action  is  commenced,  within  the 
meaning  of  the  statute  of  limitations,  at  the  date  of  the  summons 
which  is  served  on  the  defendant.* 

Oregon.— In  Oregon  an  action  is  deemed  commenced,  within  the 

meaning  of  the  statute  of  limitations,  when  the  complaint  is  filed 

and    the  summons  is  served  on  the  defendant ;  but  for  all  pur- 

)oses  other  than  that  of   the  statute   of   limitations   actions   are 

commenced  by  filing  a  complaint  with  the  clerk  of  the  court. ^ 

Pennsylvania.— A  suit  is  commenced  in  Pennsylvania  by  issuing 
the  writ,  although  it  is  not  served.^ 

obliged,  after  the  year  had  expired,  to 
issue  an  alias  and  then  a  pluries  writ. 
Held,  that  the  action  was  begun  in 
time  by  the  issuing  of  the  writ,  al- 
though it  was  not  served.  "  An  action 
was  commenced  within  twelve  months 
next  after  the  loss  occurred,  and  al- 
though the  writ  was  not  served,  an 
alias  and  pluries  writ  were  issued,  so 
that  a  proper  service  was  finally  ob- 
'  tained.  We  have  always  held  that 
alias  and  pluries  writs  are  a  continua- 
tion of  the  original  process  and  not 
the  inception  of  a  fresh  suit."  Per 
Curiam  in  American  Cent.  Ins.  Co.  v. 
Haws,  20  W.  N.  C.  (Pa.)  370.  See 
also  Lynn  v.  McMillin,  3  P.  &  W.  (Pa.) 
170,  holding  that  if  special  bail  be 
entered  in  time  in  the  original  suit,  in 
which  the  writ  was  returned  7ion  est 
inventus,  it  will  be  a  compliance  with 
the  conditions  of  the  bail  bond  given 
upon  an  alias  or  pluries  capias.  See 
also  McClurg  v.  Fryer,  15  Pa.  St  293, 
where  a  summons  in  case  on  a  guar- 
anty in' writing,  issued  above  four 
years  after  the  right  of  action  on  the 
guaranty  arose,  was  returned  nihil, 
and  an  alias  summons  issued  above 
five  years  from  the  issuing  of  the  first, 
and  it  was  held  that  the  original  and 
the  alias  were  so  connected  as  to  pre- 
vent the  running  of  the  statute  of 
limitations  from  the  time  of  the  issu- 
ing of  the  original  summons. 

But  that  the  doctrine  laid  down 
above  is  somewhat  qualified,  see  Jones 
V.  Orum,  5  Rawle  (Pa.)  253,  where 
Sergeant,  J.,  says:  "After  this  order 
of  the  court  below,  the  plaintiffs  en- 
tered a  rule  of  reference  under  the  ar- 
bitration act,  and  caused  notices  to  be 
served  on  the  defendants,  and  it  is  in- 
sisted now,  on  the  authority  of  Flane- 
gan  V.  Negley  3  S.  &  R.  (Pa.)  498 
and  similar  cases,  that,  a  suit  having 
been  once  entered  on  the  docket,  the 


tember  7  summons  was  again  issued, 
and  was  served  on  the  same  day. 
Held,  that  the  first  attempt  to  com- 
mence the  action  was  not  equivalent  to 
a  commencement  thereof  under  R.  S. 
i;  4988.  Pollock  V.  Pollock,  2  Ohio  Cir. 
Ct.  140. 

Third  Parties  Cannot  Acquire  Interest. 
— Jurisdiction  of  a  cause  attaches  upon 
the  filing  a  petition  and  the  issuing  of 
the  summons.  The  78th  section  of  the 
Code,  to  wit,  "When  the  summons 
has  been  served,  or  publication  made, 
the  action  is  pending  so  as  to  charge 
third  persons  with  notice  of  its  pen- 
dency, and  while  pending  no  interest 
can  be  acquired  by  third  persons  in  the 
subject-matter  thereof,"  refers  solely 
to  questions  of  title  in  the  specific 
property  in  controversy.  Spinning  v. 
Ohio  L.  Ins.  Co.,  2  Disney  (Ohio)  336. 

1.  Code  Civil  Proced.  §  20.  See  §  57, 
which  provides  that  a  civil  action  may 
be  commenced  in  a  court  of  record  by 
filing  in  the  office  of  the  proper  court 
a  petition  and  causing  a  summons  to 
be  issued  thereon. 

2.  Hill's  Ann.  Laws,  §  14  and  §  51. 
Foreclosure     of     Mechanic's     Lien. — 

Material  men  must  •  commence  pro- 
ceedings to  foreclose  their  liens  within 
a  year  from  the  date  of  filing  their 
lien  notices.  They  must  commence 
by  filing  a  complaint.  Coggan  v. 
Reeves,  3  Oregon  275. 

3.  Dexterz'.  Billings,  no  Pa.  St.  135; 
Bell's  Appeal,  115  Pa.  St.  88;  2  Am. 
St.  Rep.  532;  Everett  v.  London  Ins. 
Co.,  142  Pa.  St.  332;  24  Am.  St.   Rep. 

Miskey  v.  Miskey  (Pa.,  1888),  11 
Rep.  881;  Fuller  v.  Dempster 
1887),  II  Atl.  Rep.  670. 
Issuing  the  Writ. — A  policy  of  in- 
surance required  that  suit  should  be 
brought  within  twelve  months  of  loss. 
Plaintiff  issued  summons  within  a 
year,  but,  failing  to  obtain  service,  was 


499; 
Atl. 
(Pa. 


136 


Wlien  is  an  Action  Commenced  1,      ACTIONS. 


In  the  Various  States. 


Ehode  Island.— Issuing  a  writ  is  the  commencement  of  a  suit  at 
law  in  Rhode  Island,  if  such  issuing  be  with  absolute  and  honest 
intention  of  having  service  made.^ 

South  Carolina.— In  South  Carolina  an  action  is  commenced  as  to 
each  defendant  when  the  summons  is  served  on  him.* 


rule  of  reference  was  regular,  though 
upwards  of  ten  years  had  elapsed 
after  the  writ  was  taken  out,  and  re- 
turned without  being  duly  served,  and 
not  a  single  step  had  been  taken  by  the 
plaintiffs  during  that  period  to  con- 
tinue the  action.  If  this  were  so,  it 
would  certainly  present  an  extraordi- 
nary state  of  things  in  the  management 
of  suits.  A  writ  might  be  taken  out, 
and  never  served,  and  the  plaintiff  lie 
by  nearly  double  the  period  imposed 
by  the  statute  of  limitations,  and  then 
the  plaintiff  treat  the  action  as  pend- 
ing, and  date  its  existence  from  the 
first  writ.  This  would  introduce  all 
the  mischiefs  the  statute  of  limitations 
was  intended  to  guard  against,  and 
expose  a  party  to  the  necessity  of  con- 
testing the  validity  of  a  claim  after 
more  than  six  years  had  elapsed,  and 
when  his  vouchers  were  lost  and  wit- 
nesses dead.  Even  where  the  replica- 
tion of  a  writ  taken  out,  and  continu- 
ances since,  is  allowed  to  avoid  the 
plea  of  the  statute  of  limitations,  no 
case  has  gone  to  the  extent  of  time, 
which  had  passed  in  this  case."  Com- 
pare Schlosser  v.  Lesher,  i  Dall.  (Pa.) 
415,  where  two  and  a  half  years  held 
not  too  long;  Hertzog  v.  Ellis,  3  Binn. 
(Pa.)  209;  Mouston  v.  Rees,  6  Binn. 
(Pa.)  32;  Brown  v.  Sheaffer,  6  Binn. 
(Pa.)  177;  Paule  v.  Purcell,  2  Browne 
(Pa.)  20;  Thomas  v.  Hopkins,  2  Browne 
(Pa.)  145;  Clemson  v.  Beaumont,  2 
Browne  (Pa.)  215;  Maus  z/.  Sitesinger, 

2  S.  &  R.  (Pa.)  421;  Phillips  v.  Oliver, 
5  S.  &  R.  (Pa.)  419;  Sharpe  I/.  Kilgore, 

3  S.  &  R.  (Pa.)  387;  Flanegan  v.  Neg- 
ley,  3  S.  &  R.  (Pa.)  498;  Vitry  v. 
Danci,  3  Rawle  (Pa.)  i;  Brown  v. 
Kelso,  2  P.  &  W.  (Pa.)  427;  Salmon  v. 
Davis,  4  Binn.  (Pa.j  375;  5  Am.  Dec. 
410. 

Writ  against  Two. — If  a  writ  issue 
against  two,  and  be  served  upon  one 
only,  and  an  alias  writ  subsequently 
issue,  which  is  served  upon  both,  this 
is  for  all  purposes  a  new  action  and 
not  a  continuance  of  the  first,  so  as  to 
avoid  the  operation  of  the  statute  of 
limitations.  Magaw  z/.  Clark,  6  Watts 
(Pa.)  528. 


Scire  Facias. — If  a  scire  faciasht.  sued 
out  within  the  five  years,  which  is  re- 
turned tarde  venit,  and  an  alias  scire 
facias  issue  after  the  expiration  of  that 
period  and  after  a  term  has  inter- 
vened, the  process  may  be  connected, 
and  the  commencement  of  the  pro- 
ceeding must  be  referred  to  the  issuing 
of  the  original  scire  facias.  Pennock 
V.  Hart,  8  S.  &  R.  (Pa.)  369;  Lewis  v. 
Smith,  2  S.  &  R.  (Pa.)  142. 

1.  Cross  z/.  Barber,  16  R.  I.  266;  Hail 
V.  Spencer,  i  R.  I.  17. 

Issuing  the  Writ. — "  Is  it  the  re- 
ceipt of  the  writ  by  the  sheriff  that  is 
required  in  order  to  constitute  the 
commencement  of  an  action?  If  so, 
its  commencement  may  still  depend 
on  contingencies  wholly  independent 
of  the  plaintiff,  as  the  sheriff's  oc- 
casional absence,  his  sickness,  or  his 
want  of  official  qualifications.  But,  at 
any  rate,  why  should  the  receipt  of  it 
by  the  sheriff  be  required  ?  As  long  as 
the  defendant  is  untouched  by  the  pre- 
cept, of  what  consequence  is  it  to  him 
whether  it  be  in  the  hands  of  the  plain- 
tiff or  the  sheriff  ?  How  can  his  liabil- 
ity be  affected  by  this  or  that  event  ? 
The  truth  is  that  in  contemplation  of 
law  the  writ  is  issued  on  the  applica- 
tion of  the  creditor,  by  the  sovereign 
power  of  the  state,  through  the  instru- 
mentality of  its  officers.  It  is  the 
state's  precept  or  command,  and  is  is- 
sued and  the  action  commenced  when- 
ever it  is  in  the  hands  of  the  plaintiff, 
or  his  attorney,  ready  to  fulfil  its  pur- 
pose. ...  It  should,  however,  be  fol- 
lowed up  by  such  acts  as  show  that 
it  is  a  real  and  not  a  pretended  com- 
mencement of  a  suit."  Per  Curiam  in 
Hail  V.  Spencer,  i  R.  I.  19. 

Contingent  Writ. — When  a  writ  is 
issued  to  be  served  on  a  contingency, 
the  suit  is  not  commenced  until  such 
contingency  has  become  fact.  Cross 
V.  Barber,  16  R.  I.  266. 

2.  Code  Civil  Proced.  §  122;  Sligh 
V.  Sligh,  I  Brev.(S.  Car.)  176;  Bryce  v. 
Massey,  35  S.  Car.  127;  Suber  v.  Chan- 
dler, 36  S.  Car.  344;  Ariail  v.  Ariail, 
29  S.  Car.  84;  Montague  v.  Stelts,  37 
S.  Car.  200. 


When  is  an  Action  Commenced  1       ACTIONS. 


In  the  Various  States. 


South  Dakota.— While  South  Dakota  was  a  territory  there  was  a 
code  provision  that  a  civil  action  should  be  commenced  by  the 
service  of  a  summons.     This  is  probably  law  now.* 

Tennessee.— In  Tennessee  the  suing  out  of  a  summons  is  the  com- 
mencement of  an  action,  within  the  meaning  of  the  statute  of  lim- 
itations, whether  it  be  executed  or  not,  if  the  action  is  duly  pros- 
ecuted and  continued  by  the  issuance  of  alias  process  from  term 
to  term,  or  recommended  within  one  year  after  the  failure  to  exe- 
cute.* 

Tti%3.s.— Texas  provides  by  statute  that  all  civil  suits  in  the  dis- 
trict and  county  courts  shall  be  commenced  by  petition  filed  in 
the  office  of  the  clerk  of  such  court.^ 

V.  Colcock,  I  Nott  &  M.  (S.  Car.)  592; 
9  Am.  Dec.  729. 

Warrant  Issued  by  Justice. — A  war- 
rant issued  under  the  hand  of  a  justice 
of  the  peace,  on  which  the  defendant 
was  taken,  was  held  an  effectual  com- 
mencement of  a  prosecution,  though 
the  warrant  was  not  sealed.  State  v. 
Vaugh.,  Harp.  (S.  Car.)  313. 

Malicious  Prosecution. — An  informa- 
tion before  a  magistrate  does  not  con- 
stitute such  a  commencement  of  a 
prosecution  as  to  enable  the  person  in- 
formed against  to  maintain  an  action 
for  malicious  prosecution.  Heywood 
V.  Cuthbert,  4   McCord  (S.  Car.)  354. 

1.  Compiled  Laws  of  Dakota  (1887), 
§  4892. 

2.  Milliken  &  Vertrees'  Code,  §  3448. 
And  see  Code  (1884),  §  3448.  See 
also  Milliken  &  Vertrees'  Code,  §  3518, 
which  provides  that  all  civil  actions 
at  law  in  courts  of  record,  or  before 
justices  of  the  peace,  except  other- 
wise provided,  shall  be  commenced 
by  summons.  Hughes  v.  Brown,  88 
Tenn.  578. 

§  3448  not  Applicable  to  Suits  before 
Justices. — Section  3448,  supra,  does  not 
apply  to  suits  brought  before  justices 
of  the  peace.  Maynard  v.  May,  2 
Coldw.  (Tenn.)  44. 

Suits  in  Equity. — A  suit  in  equity  is 
commenced  at  date  of  filing  bill  and 
giving  cost  bond  in  the  sense  that  the 
running  of  the  statute  of  limitations  is 
thereby  arrested.  Collins  v.  Ins.  Co., 
91  Tenn.  432. 

Day  Indorsed  on  Writ. — See  Peck's 
Reports,  275,  where  it  was  held  that 
the  real  commencement  of  an  action, 
for  the  purpose  of  computing  time 
under  act  of  limitations,  is  the  day  in- 
dorsed on  the  writ. 

3.  Sayles'  Texas  Civil  Statutes, 
Art.  1181  ;  Davidson  v.  Southern  Pac- 


Service  of  Summons. — "  An  action  can- 
not be  commenced  except  by  the  ser- 
vice of  a  summons,  or  by  delivering  it 
to  the  sheriff  or  other  officers  of  the 
county  with  the  intent  that  it  shall  be 
actually  served;  and  the  only  evidence 
of  service  is  either  by  certificate  of  the 
sheriff,  if  served  by  him  or  by  another 
person,  the  affidavit  of  such  person,  or 
the  written  admission  of  the  defend- 
ant." Per  Mclver,  A.J.,  in  State  v. 
Cohen,  13  S.  Car.  201. 

Attachment. — Summons  was  dated 
same  day  attachment  was  granted  and 
levied,  but  the  indorsement  of  the 
sheriff's  entry  on  the  summons  was 
dated  the  day  after,  on  which  day  it 
was  served.  Held,  that  in  the  absence 
of  other  testimony  it  was  error  to  dis- 
solve the  attachment,  as  irregularity 
by  the  clerk  who  granted  the  order 
cannot  be  presumed,  and  the  summons 
may  have  been  issued  on  the  day  of  its 
date  by  delivery  to  some  other  person 
than  the  sheriff  for  service.  Mclver, 
A.  J.,  dissenting,  that,  under  §  122  of  the 
Code,  actions  can  be  commenced  only 
by  service  of  summons,  or  by  delivery 
to  the  sheriff  or  other  officer  for  ser- 
vice. Cureton  v.  Dargan,  12  S.  Car. 
122.  If  the  declaration  in  attachment 
is  filed  within  a  year  and  a  day  after 
the  return  of  the  writ,  the  lien  of  the 
attachment  is  preserved,  provided  sat- 
isfactory cause  can  be  shown  for  not 
filing  within  two  months  of  the  return, 
as  required  by  the  act;  and  it  seems 
that  cause  may  be  shown  as  well  after 
as  before  the  filing  of  the  declaration. 
McBride  v.  Floyd,  2  Bailey  (S.  Car.) 
209. 

Indorsement  by  Sheriff. — The  original 
indorsement  on  the  writ  by  the  sher- 
iff, and  not  the  entry  in  the  sheriff's 
book,  is  the  best  evidence  to  prove 
when  an  action  was  commenced.   Reid 


'38 


When  is  an  Action  Commenced  1      ACTIONS. 


In  the  Various  States. 


Utah.— In   Utah  a  civil  action  is  commenced  by  filing  a  com- 
plaint.^ 
Vermont.— In  Vermont  the  time  of  the  commencement  of  a  suit. 


R.  Co.,  44  Fed.  Rep.  476;  Foster  v. 
Smith,  66  Tex.  680  ;  Texas,  etc.,  R.  Co. 
V.  Davidson,  68  Tex.  370  ;  Texas,  etc., 
R.  Co.  V.  Huffman,  83  Tex.  286  ;  Dil- 
lingham V.  Bryant  (Tex.  App.,  1889), 
14  S.  W.  Rep.  1017  ;  Browning  v. 
Pumphrey,  81  Tex.  163  ;  Cotton  v. 
Lyter,  81  Tex.  10  ;  Bates  v.  Smith,  80 
Tex.  242  ;  Ricker  v.  Shoemaker,  81 
Tex.  22  ;  Cotter  v.  Parks,  80  Tex.  539  ; 
Gulf,  etc.,  R.  Co.  V.  Thompson  (Tex. 
App.,  1S90),  16  S.  W.  Rep.  174  ;  Becker 
V.  Gulf,  etc.,  R.  Co.,  80  Tex.  475; 
American  Salt  Co.  v.  Heidenheimer, 
80  Tex.  344  ;  Telfener  v.  Dillard,  70 
Tex.  139  ;  Texas  Elevator  Co.  v.  Mitch- 
ell, 78  Tex.  64  ;  Kauffman  v.  Wooters, 
79  Tex.  205  ;  Tribby  v.  Wokee,  74 
Tex.  142  ;  Rowland  v.  Murphy,  66 
Tex.  534  ;  Rucker  v.  Dailey,  66  Tex. 
284  ;  Life  Assoc,  v.  Goode,  71  Tex.  90  ; 
Mayer  v.  Walker,  82  Tex.  222  ;  Mis- 
souri Pac.  R.  Co.  V.  Watson,  72  Tex. 
631  ;  East  Line,  etc.,  R.  Co.  v.  Cul- 
berson, 72  Tex.  375  ;  13  Am.  St.  Rep. 
805. 

When  a  Paper  is  Filed. — A  paper  is  to 
be  deemed  to  have  been  filed  only 
when  delivered  into  the  custody  of  the 
clerk,  to  be  kept  by  him  among  the 
papers  of  the  cause.  Causing  a  clerk 
to  indorse  a  paper  as  filed,  and  immedi- 
ately withdrawing  it  from  his  custody, 
is  not  filing  the  paper.  Beal  v.  Alex- 
ander, 6  Tex.  531  ;  Holman  v.  Chevail- 
lier,  14  Tex.  339  ;  Snider  z/.  Methvin,6o 
Tex.  487. 

A  petition  was  marked  "  filed  on 
the  23d  day  of  May,  1876,"  on  a  cause 
of  action  barred  by  limitation  on  18 
May,  1876.  On  15  May,  1876,  the 
plaintiff  deposited  his  petition  with 
the  late  clerk  of  the  court,  there  being 
no  clerk,  though  the  late  clerk  re- 
mained in  charge  of  the  office.  On 
the  evening  of  the  same  day  the 
plaintiff  deposited  his  petition  with  the 
clerk  elect,  who  did  not  qualify  as 
clerk  until  May  23,  on  which  day  he 
indorsed  the  petition  as  filed.  Held, 
that  there  was  such  a  commencement 
of  suit  as  to  prevent  the  bar  of  the 
statute.     McManus  v.  Wallis,  52  Tex. 

534- 

Suppression  of  Process. — The  mere  in- 
stitution of  the  suit,   w^ith  a  suppres- 


sion of  process,  does  not  fix  the  liabil- 
ity of  an  indorser.  Hoffman  v.  Cage, 
31  Tex.  595.  Where  the  plaintiff  filed 
r.  petition  with  the  clerk  and  indorsed 
it,  "  The  clerk  will  not  issue  upon  this 
until  further  instructions  from  me," 
the  suit  was  not  properly  commenced 
until  the  order  was  given  for  the  cita- 
tion ;  and  such  a  deposit  or  filing  with 
the  clerk  did  not  arrest  the  statute  of 
limitations.  Maddox  v.  Humphries, 
30  Tex.  494. 

Filing  Note  with  Justice. — Filing  a 
note  with  a  justice  of  the  peace  for 
collection  is  not  the  commencement  of 
a  suit,  and  will  not  stop  the  running  of 
the  statute  of  limitations.  The  sum- 
mons being  the  leading  process,  the 
suit  is  not  commenced  until  it  is  is- 
sued.    Keeble  v.  Bailey,  3  Tex.  492. 

Proof  of  Debt  in  Bankruptcy. — Proof  of 
a  debt  in  bankruptcy  is  analogous  to 
the  institution  of  a  suit.  The  statute 
of  limitations  ceases  to  run  against  a 
claim  provable  in  bankruptcy  when  it 
is  offered  for  proof,  if  not  when  the 
adjudication  in  bankruptcy  was  had  ; 
and  so  long  as  the  right  to  prove  con- 
tinues, the  right  to  amend  exists. 
Wofford  V.  Unger,  53  Tex.  634.  Com- 
pare ConnolyT/.  Hammond,  58  Tex.  11  ; 
Grimes  v.  Watkins,  59  Tex.  133. 

Posting  Notices  of  Trust  Sale. — The 
mere  fact  of  posting  notices  of  trust 
sale  by  a  trustee  before  the  debt  se- 
cured by  the  trust  deed  is  barred,  but 
not  in  time  to  make  the  sale  before  the 
bar  of  limitation  would  be  complete, 
cannot  be  held  equivalent  to  the  insti- 
tution of  "an  action  or  suit'  which 
would  suspend  the  bar  of  the  statute 
of  limitations.  Blackwell  v.  Barnett, 
52  Tex.  326. 

1.  Code  Civil  Proced.  §  262. 

Filing  a  Complaint. — Where  a  com- 
plaint was  filed  November  13,  1888, 
and  amended  complaint  Jan.  16,  1889, 
and  no  summons  was  ever  issued,  but 
defendant  voluntarily  answered,  with- 
out objection  that  the  summons  had 
not  been  issued  within  one  year,  the 
answer  having  been  filed  in  1889, — held, 
that  the  commencement  of  the  suit 
must  be  taken  to  be  the  filing  of  the 
complaint.  Needham  v.  Salt  Lake 
City,  7  Utah  319. 


139 


"Wlien  is  an  Action  Commenced  T      ACTIONS. 


In  the  Various  States. 


to  avoid  the  statute  of  limitations,  is  the  day  when  the  writ  is 
issued,  but  such  writ  must  be  served  and  returned.* 

Virginia.— The  Virginia  practice  is  the  same  as  the  common-law 
practice  unless  altered  by  statute.  The  suit  is  probably  com- 
menced when  the  writ  issues.*"* 

Washington.— In  the  state  of  Washington  an  action  is  commenced 
•by  filing  a  complaint.^ 


1.  Day  V.  Lamb,  7  Vl.  426;  Allen  v. 
Mann,  i  D.  Chip.  (Vt.)  94. 

Suing  Out  of  Writ. — "  The  only  ques- 
tion arising  on  this  point  is  whether 
such  demand  [the  demand  by  a  prin- 
cipal on  his  agent  for  an  account]  is 
necessary  before  suing  out  the  writ. 
We  think  not,  for  although  the  suing 
out  the  writ  is,  to  some  purposes,  the 
commencement  of  the  action, — as  with 
reference  to  the  statute  of  limitations, 
— yet  the  defendant  is  not  subjected  to 
costs  until  the  writ  is  served;"  and  it 
was  held  that  the  demand  made,  after 
the  date,  but  before  the  service  of  a 
writ  against  the  agent,  when  no  cost 
for  such  writ  was  demanded,  was 
sufficient.       Hall     v.     Peck,     10    Vt. 

474- 

Date  of  Writ  Prima  Facie  Evidence. — 
The  plaintiff's  writ  was  dated  Jan.  28, 
1879,  and  was  served  April  21,  1879, 
and  the  account  sued  for  was  dated 
April  12,  1873.  Held,  that  the  date  of 
the  writ  was  prima  _/««>  evidence  that 
it  issued  at  that  date.  Chapman  v. 
Goodrich,  55  Vt.  354.  See  Randall  v. 
Bacon,  49  Vt.  20;  24  Am.  Rep.  100; 
Hicks  V.  Blanchard,  60  Vt.  673;  Day 
V.  Lamb,  7  Vt.  426;  Allen  v.  Mann, 
I  D.  Chip.  (Vt.)  94. 

Presentation  of  Claim  against  Estate. — 
The  presentation  of  a  claim  against  a 
deceased  person's  estate  to  the  com- 
missioners for  adjudication  is  the 
commencement  of  a  suit  or  action, 
and  all  future  proceedings  on  regular 
appeal,  or  on  appeal  allowed  on  peti- 
tion to  the  supreme  court,  are  only  a 
continuation  of  the  original  proceed- 
ing, and  the  suit  is  the  same.  Calder- 
wood  V.  Calderwood,  38  Vt.  171;  Kim- 
ball V.  Baxter,  27  Vt.  628;  Pierce  v. 
Paine,  32  Vt.  229;  Graham  v.  Chand- 
ler, 38  Vt.  559. 

Scire  Facias. — Where  a  writ  of  scire 
facias  against  bail  was  made  and 
signed  within  a  year  [the  time  allowed 
by  the  statute],  but  was  made  return- 
able at  such  a  time  that  it  could  not 
legally  be  served  within  the  year,  it  was 
held  no  compliance  with  the  statute. 
But  it  was  doubted  whether  such  writ 


must  not  only  be  made  and  signed, 
but  served  upon  the  surety,  within  the 
year.     Strong  v.  Edgerton,  22  Vt.  249. 

Ejectment. — The  defendant  in  an  ac- 
tion of  ejectment  is  liable  if  he  were 
in  the  possession  of  the  demanded 
premises  at  the  time  of  the  commence- 
ment of  the  plaintiff's  action,  and  for 
this  purpose  the  time  of  the  service  of 
the  writ  is  to  be  treated  as  the  com- 
mencement of  the  action.  McDaniels 
V.  Reed,  17  Vt.  674. 

Levy  of  an  Execution. — If  the  peti- 
tioner claims  title  to  the  premises  de- 
scribed in  his  petition,  by  virtue  of 
the  levy  of  an  execution  in  his  favor, 
it  is  no  objection  to  his  petition  that  it 
bears  date  prior  to  the  time  when  his 
right  of  possession  accrued,  as  against 
his  judgment  debtor,  if  that  right  be- 
came perfect  before  the  process  was 
served.     Hawley  v.  Soper,  18  Vt.  320 

2.  See  Code  of  Va.  (1873)  §  1083. 
Attachment. — In  a  case  of  attachment 

in  equity  instituted  in  July,  1861,  upon 
service  of  process  on  resident  gar- 
nishee and  execution  of  order  of  pub- 
lication against  non-resident  debtor  in 
New  York,  the  proceedings  subse- 
quent to  the  attachment  having  been 
set  aside  and  an  amended  bill  filed,  and 
the  non-resident  debtor  brought  for 
the  first  time  before  the  court,  the  run- 
ning of  the  statute  of  limitations  was 
not  suspended  by  those  proceedings, 
and  the  plaintiff's  claim,  being  an  ac- 
count for  work  and  labor  done,  was 
barred  before  the  filing  of  said  amended 
bill.  Dorr  v.  Rohr,  82  Va.  359,  3  Am. 
St.  Rep.  106. 

Issuance  of  Summons. — Service  of 
summons  on  defendant's  agent  having 
been  made  within  ten  days  of  return 
day,  and  suit  having  been  remanded 
to  rules  to  be  properly  matured,  and 
an  alias  summons  having  been  issued 
and  duly  served,  held,  commencement 
of  suit  was  the  issuance  of  the  original 
summons,  and  saved  the  suit  from  be- 
ing barred  by  the  limitation  clause  in 
the  policy.  Virginia  F.  &  M.  Ins.  Co. 
V.  Vaughan,  88  Va.  832. 

3.  Code  Civil  Proced.  §  171. 


140 


When  is  an  Action  Commenced  I       A  CTIONS. 


In  the  Various  States^ 


West  Virginia.— In    West    Virginia  an    action    is    probably    com- 
menced when  the  writ  is  issued.* 

Wisconsin.— In  Wisconsiyi  the  Code  provides  that  an  action  is  com- 
menced by  service  of  a  summons.* 

Wyoming.— In  the  state  of  Wyoming  an  action  is  deemed  com- 
menced at  the  date  of  the  summons  which  is  served  on  the 
defendant.^ 

Federal  Courts.— The  federal  courts  follow  as  near  as  may  be  the 
practice  of  the  state  where  the  court  is  held."* 

IV.  Abolition  of  Fokms  of  Action— 1 .  Statutory  Provisions.— The 


I 


1.  West  Virginia  has  the  common- 
law  practice. 

Amendment  of  Declaration. — When  an 
amendment  to  a  declaration  is  properly 
allowed,  so  far  as  regards  the  statute 
of  limitations,  it  will  have  the  same  ef- 
fect as  if  it  had  been  originally  filed  in 
the  amended  form  at  the  commence- 
ment of  the  suit,  and  a  cause  not  then 
barred  will  not  be  treated  as  barred  at 
the  time  of  the  amendment  by  reason 
of  such  amendment;  but  the  amend- 
ment must  preserve  the  identity  of  the 
cause  of  action.  Kuhn  v.  Brownfield, 
34  W.  Va.  252;  Lamb  v.  Cecil,  28  W. 
Va.  653;  Hull  V.  Hull,  35  W.  Va. 
155. 

2.  Rev.  St.  §  4239;  Blair  v.  Cary, 
9  Wis.  543;  Clarke  v.  Lincoln  County, 
54  Wis.  578;  Prentice  v.  Ashland 
County,  56  Wis.  345;  Large  v.  Large, 
29  Wis.  60;  Mariner  v.  Waterloo,  75 
Wis.  438. 

Service  of  Summons. — To  constitute  a 
commencement  of  a  suit,  or  an  attempt 
to  commence  one,  under  §§  4239,  4240 
R.  S.  1878,  there  must  be  either  actual 
service  of  the  summons,  or  it  must  be 
put  into  the  hands  of  a  proper  officer 
with  intent  that  it  shall  be  actually 
served.  It  is  not  sufficient  to  file  the 
summons  and  complaint,  and  obtain 
an  order  of  publication,  or  even  to  mail 
the  summons  to  the  defendant,  though 
he  actually  receives  it.  Sherry  v.  Gil- 
more,  58  Wis.  324. 

In  Wisconsin  an  action  is  not  com- 
menced for  the  purpose  of  stopping 
the  running  of  the  statute  of  limita- 
tions until  service  of  process  has  been 
effected,  or  until  service  has  been  at- 
tempted and  followed  up  by  actual  ser- 
vice within  60  days.  Knowlton  z/.  Wa- 
tertown,  130  U.  S.  327. 

Presentation  of  Claim  to  Commissioners. 
— The  presentation  of  a  claim  to  the 
commissioners  appointed  to  adjust 
claims  against  an  estate,  is  the  prose- 


cution of  a  new  remedy,  and  does  not 
operate  as  a  continuance  or  revivor  of 
a  suit  to  enforce  such  claim  pending 
against  the  decedent  at  the  time  of  his 
death.     Jones  v.   Keep,  23  Wis.  45. 

Presentation  to  Board  of  Supervisors. — 
The  presentation  to  the  proper  board 
of  county  supervisors,  of  a  claim  for 
moneys  paid  upon  void  tax  certificates, 
is  the  commencement  of  an  action 
within  the  meaning  of  ch.  112  of  Laws 
1867.  Marsh  v.  St.  Croix  County,  42 
Wis.  355. 

Filing  Claim  against  Town. — The 
filing  of  a  claim  against  a  town  with 
the  town  clerk,  to  be  presented  to  the 
board  of  audit,  at  a  time  when  that 
board  is  not  in  session,  is  a  "  present- 
ment of  a  claim  to  the  board,"  within 
the  meaning  of  §  4242  R.  S.,  making 
that  the  commencement  of  an  action. 
Parish  v.  Eden,  62  Wis.  272. 

Presentation  to  County  Court. — The 
presentation  to  a  county  court  of  a  note 
made  by  a  decedent,  for  allowance 
against  his  estate,  is  the  commence- 
ment of  an  action  within  the  meaning 
of  the  statute  of  limitations.  Boyce  v. 
Foote,  19  Wis.  199. 

Parol  Evidence  of  Alteration. — No 
record  evidence  of  the  time  when  a 
summons  issued  by  a  justice  of  the 
peace  was  delivered  to  the  sheriff  for 
service  being  required  by  statute,  such 
time  may  be  proved  by  parol.  If  after 
a  summons  issued  by  a  justice  of  the 
peace  is  delivered  to  the  sheriff  for  ser- 
vice the  return  day  fixed  therein  is 
changed,  such  alteration  makes  an- 
other and  entirely  different  process  of 
it,  which  in  contemplation  of  law  the 
sheriff  did  not  and  could  not  receive 
until  the  alteration  was  made;  and  the 
fact  and  time  of  such  alteration  may 
be  proved  by  parole.  Woodville  v 
Harrison,  73  Wis.  360. 

3.  Rev.  St.  §  2376. 

4.  U.  S.  Rev.  St.  §  914- 


141 


Abolition  of  Forms  of  Action. 


ACTIONS. 


Common-Law  Distinction. 


cornerstone  of  the  American  Reformed  Procedure  is  the  aboUtion 
of  all  forms  of  action.  The  Codes,  with  slight  verbal  changes,  have 
enacted  that  the  distinction  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits  heretofore  exist- 
ing, are  abolished,  and  that  in  their  place  there  shall  be  one  form 
of  action,  which  shall  be  called  a  civil  action.* 

2.  Common-Law  Distinction  Preserved  at  First. — When  the  Code 
was  first  adopted  in  New  York,  the  courts  seemed  for  a  time  un- 
willing to  give  full  force  and  efficacy  to  the  provision  abolishing 
the  distinction  between  actions  at  law  and  suits  in  equity,  and 
they  held  that  the  distinction  might  be  recognized  in  practice, 
notwithstanding  the  Code.* 


1.  The  following  are  some  of  the  va- 
rious forms  in  which  the  statutory 
abolition  is  expressed: 

New  York. — "  There  is  only  one 
form  of  civil  action.  The  distinction 
between  actions  at  law  and  suits  in  eq- 
uity, and  the  forms  of  those  actions  and 
suits,  have  been  abolished."  ^  3339 
New  York  Code  Civil  Procedure. 

Ohio. — There  shall  be  but  one  form 
of  action,  which  shall  be  known  as  a 
civil  action.  §4971  Rev.  St.  Ohio  (1892 
Ed.). 

California  and  Nevada. — There  is  in 
this  state  but  one  form  of  civil  actions 
for  the  enforcement  or  protection  of 
private  rights  and  the  redress  or  pre- 
vention of  private  wrongs.  §  307  Cali- 
fornia Code  Civil  Pro.;  §  3023  Genl. 
St.  Nevada. 

Nebraska. — The  distinction  between 
actions  at  law  and  suits  in  equity,  and 
the  form  of  all  such  actions  and  suits 
heretofore  existing,  are  abolished ;  and 
in  their  place  there  shall  be  hereafter 
but  one  form  of  action,  which  shall  be 
called  a  civil  action.  §  2  Nebraska 
Code  Civil  Pro. 

Indiana,  North  Carolina,  and  Wiscon- 
sin.— There  shall  be  no  distinction  in 
pleading  and  practice  between  actions 
at  law  and  suits  in  equity,  and  there 
shall  be  but  one  form  of  action  for  the 
enforcement  or  protection  of  private 
rights  and  the  redress  of  private 
wrongs,  which  shall  be  denominate4  a 
civil  action.  §  249  Rev.  St.  Indiana 
(1894)  §  igSg  Alissouri  Rev.  St.  (Wag.); 
§  133  Code  North  Carolina  ;  §  2600 
Ann.  St.   Wisconsin. 

Kansas. — This  distinction  between 
actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits, 
heretofore  existing,  are  abolished; 
and  in  their  place  there  shall  be  here- 
after  but  one  form  of  action,  which 


shall  be  called  a  civil  action.  §  4087 
Genl.  St.  Kansas  (1889). 

Connecticut. — "  There  shall  be  but 
one  form  of  civil  action,"  etc.  §  872 
Genl.  St.  Connecticut  >^\%%%). 

Georgia. — "  No  suitor,  however,  is 
compelled  to  appear  on  the  equity  side 
of  the  court;  but  he  may  institute  his 
proceeding  for  an  equitable  cause  of 
action  upon  the  common-law  side  of 
the  court  at  his  option;  and  the  court 
may  allow  the  jury  to  find  a  verdict, 
and  a  judgment  be  rendered  thereon, 
so  moulded  and  framed  to  give  equita- 
ble relief  in  the  case,  as  verdicts  and 
decrees  are  rendered  and  framed  in 
equity  proceedings."  §  3082  Code 
Georgia  (1882). 

"All  distinctions  of'actions  into  real, 
personal,  and  mixed  are  abolished, 
etc."     §  3252  Code  Georgia  (1882). 

Kentucky. — There  shall  be  but  one 
form  of  action.  Actions  are  ordinary 
or  equitable.  §§  4  and  5  Kentucky  Code 
(1888). 

Iowa. — All  forms  of  action  are  abol- 
ished in  this  state;  but  the  proceeding 
in  a  civil  action  may  be  of  two  kinds, 
ordinary  or  equitable.  §  2507  Rev. 
Code  Iowa  (1888). 

All  the  Code  States  have  a  statutory 
provision  similar  to  some  one  or  other 
of  the  above  Code  provisions;  they  all 
mean  the  same  thing,  although  they 
may  differ  somewhat  in  verbal  detail. 

2.  "  My  conclusion  therefore  is  that 
the  statement  of  facts  in  a  complaint 
should  be  in  conformity  with  the 
nature  of  the  action.  If  the  case  and 
the  relief  sought  be  of  an  equitable 
nature,  then  the  rules  of  the  chancery 
pleading  are  to  be  applied  ;  otherwise 
those  of  the  common  law."  Selden, 
J.,  in  Rochester  City  Bank  z/.  Suydam, 
5   How.  Pr.  (N.  Y.  Supreme  Ct.)  223. 

"  What  are  the  distinctions  between 


142 


Abolition  of  Forms  of  Action. 


ACTIONS. 


The  True  Bole  Followed. 


3.  The  True  Rule  Followed. — But  the  courts  have  now  fully  come 
to  construe  the  Code  in  the  light  of  its  real  spirit,  that  is,  that  it 
does  aboHsh  all  distinction,  and  that  questions  of  form  have 
nothing  whatever  to  do  with  the  construction  of  either  pleading 
or  practice  under  the  code;  that  the  courts  must  give  rehef,  at 


actions  at  law  and  suits  in  equity? 
The  most  marked  distinction  obviously 
consists  in  the-,r  different  modes  of  re- 
lief. In  the  one,  with  a  few  isolated 
exceptions,  relief  is  invariably  admin- 
istered, and  can  only  be  administered 
in  the  form  of  a  pecuniary  compensa- 
tion in  damages  for  the  injury  re- 
ceived ;  in  the  other,  the  court  has  a 
discretionary  power  to  adapt  the  re- 
lief to  the  circumstances  of  the  case. 
By  what  process  can  these  two 
modes  of  relief  be  made  identical? 
It  is  possible  to  abolish  one  or  the 
other  or  both,  but  it  certainly  is  not 
possible  to  abolish  the  distinction 
between  them.  The  legislature  may, 
unless  prohibited  by  the  constitution, 
enact  that  no  court  shall  hereafter 
have  power  to  grant  any  relief,  except 
in  the  form  of  damages,  and  thereby 
abolish  all  suits  in  equity  ;  or  that  all 
courts  shall  have  power  to  mould  the 
relief  to  suit  the  particular  case,  and 
thereby  virtually  abolish  actions  at 
law  as  a  distinct  class.  To  illustrate 
by  a  single  case  :  they  may  provide 
that  where  a  vendor  of  land,  who 
has  contracted  to  sell  and  received  the 
purchase-money,  refuses  to  convey, 
the  vendee  shall  have  no  remedy  but 
an  action  for  damages,  or,  on  the 
other  hand,  that  he  shall  be  confined 
to  a  suit  for  a  specific  performance. 
But  it  is  clearly  beyond  the  reach  of 
the  powers  to  make  these  two  remedies 
the  same.  Another  leading  distinc- 
tion between  common-law  actions  and 
suits  in  equity  consists  in  their  differ- 
ent modes  of  trial.  The  former  are 
to  be  tried  by  a  jury,  the  latter  by  the 
court.  Can  the  legislature  abolish 
this  distinction  ?  They  might,  but  for 
the  restraints  of  the  constitution,  abol- 
ish either  kind  of  trial,  or  reclassify 
the  classes  to  which  they  apply  ;  but 
they  cannot  make  trial  by  jury  and 
trial  by  the  court  the  same  thing.  It 
is  plain  that  the  only  way  in  which 
the  declaration  contained  in  §  69,  that 
'there  shall  be  in  this  state  hereafter 
but  one  form  of  action  for  the  en- 
forcement or  protection  of  private 
rights  and  the  redress  of  private 
wrongs,'  can   be    made    good,    is    by 

I 


abolishing  both  the  form  of  trial  and 
the  mode  of  relief  in  one  or  the  other 
of  the  two  classes  of  action.  When 
this  is  done,  and  not  till  then,  shall 
we  have  one  homogeneous  form  of  ac- 
tion for  all  cases."  Per  Selden,  J.,  in 
Reubens  v.  Joel,  13  N.  Y.  488. 

"  It  is  supposed  by  some  that  it  was 
intended  to  abolish  by  the  code  all  dis- 
tinction, not  only  in  form  but  sub- 
stance, between  legal  and  equitable  ac- 
tions ;  and  it  must  be  conceded  that 
many  of  its  provisions,  taken  by 
themselves,  might  seem  to  indicate 
such  an  intent  ;  and  yet  nothing  can 
be  clearer  than  that  the  legislature 
has  wholly  failed  to  carry  into  effect 
such  an  intention,  if  it  existed.  On  the 
contrary,  the  Code  expressly  retains 
the  principal  differences  which  dis- 
tinguished the  two  classes  of  actions. 
Actions  at  law  were  to  be  tried  by  a 
jury  ;  suits  in  equity  by  the  court. 
This  distinction  remains  undisturbed." 
Per  Selden,  J.,  in  Voorhis  v.  Childs, 
17  N.  Y.  357. 

The  following  cases  hold  that  the 
rule  of  pleading  in  an  action  for  a 
legal  remedy  is  the  same  as  formerly, 
that  fact  sand  not  evidence  are  to  be 
pleaded,  and  that  what  was  a  good 
declaration  at  law  is  now  good  under 
the  Code  ;  they  also  include  cases 
where  common-law  rules  of  pleading 
were  applied.  Allen  v.  Patterson,  7 
N.  Y.  476,  where  an  indebitatus  count 
in  debt  was  sustained  to  recover  for 
goods  sold  and  delivered.  People  v. 
Ryder.  12  N.  Y.  433.  Under  the  Prac- 
tice Act  the  rules  of  the  old  system  of 
pleading  and  practice,  whether  legal 
or  equitable,  should  be  applied,  irre- 
spective of  former  technical  distinc- 
tions, to  all  actions  under  the  new 
system  when  they  may  be  properly 
applied  and  are  not  inconsistent  with 
statutory  provisions.  Rowe  v.  Chand- 
ler, I  Cal.  168. 

The  subject  of  pleading  is  not  treated 
of  herein,  but  the  three  last  cases  cited 
above  are  given  as  illustrations  to  sup- 
port the  text,  that  the  courts  did  not 
at  once  give  full  force  to  the  abolition 
of  the  distinction  between  law  and 
equity  procedure. 

43 


Abolition  of  Forms  of  Action.  ACTIONS.  Substantive  Distinction  Preserved.' 


any  stage  of  the  action,  on  the  facts  presented,  no  matter  in  what 
form  they  may  be  presented.* 

4.  Substantive  Distinction  Preserved. — The  adoption  of  the  Code 
only  made  a  change  in  adjective  law.  Equity  and  law  are  as 
sharply  differentiated,  considered  as  substantive  bodies  of  law,  as 
they  ever  were.  The  Code  of  procedure  is  in  no  sense  a  civil  sub- 
stantive code.* 


1.  Indiana. — Scott  v.  Crawford,  12 
Ind.  410;  Woodford  v.  Leavenworth, 
14  Ind.  311;  Matlock  v.  Todd,  25  Ind. 
12S;  Bonnell  v.  Allen,  53  Ind.  130; 
Emmons  v.  Kiger,  23  Ind.  4S3. 

Minnesota. — First  Div.  St.  Paul, 
etc..  R.  Co.  V.  Rice,  25  Minn.  292; 
Holmes  v.  Campbell,  12  Minn.  221  ; 
Berkey  v.  Judd,  14  Minn.  394;  Folsom 
V.  Carli,  6  Minn.  420,  80  Am.  Dec. 
456;  Ford  V.  Wright,  13  Minn.  518. 

Iowa. — Taylor  v.  Adair,  22  Iowa 
281;  Sargent  v.  Pittman,  16  Iowa  473; 
Wadsworth  v.  Wadsworth,  40  Iowa 
449;  Baltzell  V.  Nosier,  i  Iowa  588,  63 
Am.  Dec.  466;  Dyson  v.  Ream,  9  Iowa 
51;  McGinn  v.  Butler,  31  Iowa  163. 

Kansas. — McGonigle  v.  Atchison,  33 
Kan.  736;  Huffman  v.  Parsons,  21 
Kan.  473;  Independence  Town  Co.  v. 
DeLong,  11  Kan.  152;  State  v.  Mars- 
ton,  6  Kan.  524;  State  v.  Jefferson 
County,  II  Kan.  70;  Deering  z/.  Boyle, 
8  Kan.  527;  Going  v.  Orns,  8  Kan.  89; 
Fitzpatrick  v.  Gebhart,  7  Kan.  43; 
Adams  v.  Secor,  6  Kan.  542;  Chick  v. 
Willetts,  2  Kan.  385;  Backus  v.  Clark, 
I  Kan.  303,  83  Am.  Dec.  437. 

Kentucky. — Hill  v.  Barrett,  14  B. 
Mon.  (Ky.)  83;  Richmond,  etc..  Turn- 
pike Road  Co.  V.  Rogers,  7  Bush  (Ky.) 
532;  Louisville,  etc..  Canal  Co.  v. 
Murphy,  9  Bush  (Ky.)  522.  See  Mur- 
phy V.  Estes,  6  Bush  (Ky.)  532.  Mar- 
tin V.  Mobile,  etc.,  R.  Co  ,  7  Bush 
(Ky.)  116;  Garret  v.  Gault,  13  B.  Mon. 
(Ky.)  378. 

North  Carolina. — Parsley  v.  Nichol- 
son, 65  N.  Car. 207;  Gates  v.  Gray,  66  N. 
Car.  442;  Vass  v.  People's  Bldg.,  etc., 
Assoc,  91  N.  Car.  55;  Moore  v.  Ed- 
miston,  70  N.  Car.  510;  Belmont  v. 
Reilly,  71  N.  Car.  260;  Haymore  v. 
Yadin,  85  N.  Car.  268;  Bitting  v. 
Thaxton,  72  N.  Car.  541;  Matthews  v. 
McPherson,  65  N.  Car.  189;  Katzen- 
stein  V.  Raleigh,  etc.,  R.  Co.,  84  N. 
Car.  688;  Pendleton  v.  Dalton,  92  N. 
Car.  185;  John  L.  Loper  Lumber  Co. 
V.  Wallace,  93  N.  Car.  22. 

Wisconsin. — Bonesteel  v.  Bonesteel, 
28   Wis.    245;    Anderson    v.  Case,    28 


Wis.  505;  Orient  Ins.  Co.  v.  Sloan,  70 
Wis.  611;  North  Hudson  B'ld'g,  etc., 
Assoc.  V.  Childs,  82  Wis.  460;  Dickson 
V.  Cole,  34  Wis.  621;  Peterson  v. 
Stoughton  State  Bank,  78  Wis.  113. 

Other  States. — Cropsey  v.  Sweeney, 
27  Barb.  (N.  Y.)  316;  Kloune  v.  Brad- 
street,  7  Ohio  St.  322;  Lamson  v. 
Pfaff,  I  Handy  (Ohio)  449;  Gress  v. 
Evans,  i  Dakota  387;  Crosier  v.  Mc- 
Laughlin, I  Nev.  348;  Hamill  v. 
Thompson,  3  Colo.  518;  Schilling  v. 
Rominger,  4  Colo.  100;  Vail  v.  Ham- 
mond, 60  Conn.  374;  Mulvey  v.  Staab, 
4  N.  Mex.  50;  Leeper  z/.  Taylor,  iii  Mo. 
312;  Bailey  v.  Chicago,  etc.,  R.  Co. 
(S.  Dak.,  1893),  54  N.  W.  Rep.  596; 
Surber  v.  Kittinger,  6  Wash.  240; 
Sykes  v.  First  Nat.  Bank  (S.  Dak., 
1891),  49  N.  W.  Rep.  1058;  Uhe  v. 
Chicago,  etc.,  R.  Co.  (S.  Dak.,  1893), 
54  N.  W.  Rep.  596;  Hurlbutt  v. 
Spaulding,  93  Cal.  55;  Grain  v.  Al- 
drich,  38  Cal.  514,  99  Am.  Dec.  423; 
DeWitt  V.  Hays,  2  Cal.  463,  61  Am. 
Dec.  352;  Meyers  v.  Field,  37  Mo.  434; 
McLaughlin  v.  Dunn,  45  Mo.  App. 
645;  Richardson  v.  Means,  22  Mo.  495;. 
Maguire  v.  Vice,  20  Mo.  429. 

2.  "  To  allow  a  mode  of  pleading  in 
suits  of  equitable  cognizance,  different 
from  that  required  in  suits  at  law, 
would  frustrate  the  obvious  design  of 
this  legislation.  It  would  be  in  con- 
flict with  its  plain  provisions,  and 
perpetuate,  at  least  in  part,  the  very 
mischief  at  which  it  was  specially 
aimed.  The  intention  of  the  legisla- 
ture manifestly  was  to  permit  a  party 
to  state  the  facts  of  his  case  in  his 
complaint,  as  they  may  exist,  with- 
out imposing  upon  him  the  respon- 
sibility of  determining  in  advance 
whether  relief  should  be  administered 
to  him  according  to  the  rules  of  legal 
or  equitable  jurisprudence.  The  court 
pronounce  such  judgment  as  the  facts 
which  are  stated  and  proved  require, 
whether  it  be  legal  or  equitable.  If 
the  different  modes  of  pleading  re- 
main, as  is  contended,  it  is  now  as  im- 
portant as  ever  to  determine  before 


144 


Abolition  of  Forms  of  Action. 


ACTIONS. 


The  Civil  Action  a  Substitute. 


6.  No  New  Causes  of  Action  Created. — The  Codes  create  no  new 
causes  of  action.  Rights  are  entirely  independent  of  remedies. 
Whatever  was  a  cause  of  action  at  law,  or  a  ground  for  relief  in 
equity,  before  the  Codes,  is  now  remediable  in  a  civil  action ;  and 
whatever  was  remediless  before  is  now  remediless  under  the 
Codes.* 

6.  The  Civil  Action  a  Substitute. — The  effect  of  the  abolition  of 
the  distinction  between  actions  at  law  and  suits  in  equity  may  be 
said  to  be  that  the  civil  action  is  now  a  substitute  for  all  such 
proceedings  as  were  previously  known  either  as  actions  at  law  or 
suits  in  equity;  that  the  plaintiff  may  set  forth  in  his  complaint 
both  legal  and  equitable  grounds  for  relief ;  and  that  if  the  facts 
appear,  legal  or  equitable  relief  must  be  given,  irrespective  of  any 
question  of  pleading  or  practice.* 


hand  to  which  class  the  action  belongs, 
and  a  mistake  on  this  point  must  pro- 
duce the  same  mischief  which  the 
framers  of  the  constitution,  and  the 
legislature,  have  tried  to  prevent." 
Per  Sill,  J.,  in  Millikin  v.  Gary,  5 
How.  Pr.  (N.  Y.  Supreme  Ct.)  272 
where  it  was  held  that  pleading  evi- 
dence is  improper  under  the  Code. 
Butler  V.  Lee,  33  How.  Pr.  (N.  Y.  Ct. 
App.)25i;  Crary  v.  Goodman,  12  N.  Y. 
266,  64  Am.  Dec.  506;  Dobson  v. 
Pearce,  12  N.  Y.  156,  62  Am.  Dec.  152; 
Harral  v.  Leverty,  50  Conn.  46,  47 
Am.  Rep.  60S;  Fowler  v.  Fowler,  50 
Conn.  256;  McVane  v.  Williams,  50 
Conn.  548;  State  v.  Wright,  50  Conn. 
580;  Bennett  v.  Collins,  52  Conn,  i; 
Wall  V.  Toomey,  52  Conn.  35;  Baker  v. 
Lee,  52  Conn.  145;  DeWitt  v.  Hays,  2 
Cal.  463,  61  Am.  Dec.  352;  Sampson  v. 
Shaeffer,  3  Cal.  196  ;  Lubert  v.  Chau- 
viteau,  3  Cal.  458,  58  Am.  Dec.  415; 
Smith  V.  Rowe,  4  Cal.  6;  Parsons  v. 
Tuolumne  County,  5  Cal.  43;  Cordier 
V.  Schloss,  12  Cal.  143;  Scott's  Estate, 
15  Cal.  220;  Payne  v.  Treadwell,  16 
Cal.  220;  Jones  v.  Steamship  Cortes, 
17  Cal.  487,  79  Am.  Dec.  142. 

1.  "  By  the  Code,  the  distinction  be- 
tween actions  at  law  and  suits  in  equity 
is  abolished.  The  course  of  proceed- 
ing in  both  classes  of  cases  is  now  the 
same.  Whether  the  action  depends 
upon  legal  principles  or  equitable,  it  is 
still  a  civil  action,  to  be  commenced 
and  prosecuted  without  reference  to 
this  distinction.  But  while  this  is  so 
in  reference  to  the  form  and  course  of 
proceeding  in  the  action,  the  principles 
by  which  the  rights  of  the  parties  are  to 
be  determined  remain  unchanged.  The 
Code  has  given  no  new  cause  of  action. 

1  Encyc.  PI.  &  Pr  — 10.  145 


In  some  cases  parties  are  allowed  to 
maintain  an  action  who  could  not  have 
maintained  it  before,  but  in  no  case 
can  such  an  action  be  maintained 
where  no  action  at  all  could  have  been 
maintained  before  upon  the  same  state 
of  facts.  If  under  the  former  system 
a  given  state  of  facts  would  have  en- 
titled a  party  to  a  decree  in  equity  in  his 
favor,  the  same  state  of  facts  now,  in 
an  action  prosecuted  in  the  manner  pre- 
scribed by  the  Code,  will  entitle  him 
to  a  judgment  to  the  same  effect.  If 
the  facts  are  such  as  that,  at  the  com- 
mon law,  the  party  would  have  been 
entitled  to  judgment,  he  will,  by  pro- 
ceeding as  the  Code  requires,  obtain 
the  same  judgment.  The  question  is 
therefore  whether,  in  the  case  now 
under  consideration,  the  facts,  as  they 
are  assumed  to  be,  would,  before  the 
adoption  of  the  Code,  have  sustained 
an  action  at  law  or  a  suit  in  equity." 
Per  Harris,  J.,  in  Cole  v.  Reynolds, 
18  N.  Y.  76  ;  Wilcox  v.  Saunders,  4 
Neb.  585. 

2.  Ohio. — Chinn  v.  Trustees,  etc.,  32 
Ohio  St.  236  ;  Barger  v.  Cochran,  15 
Ohio  St.  460  ;  Clayton  v.  Freet,  10  Ohio 
St.  544  ;  Goble  v.  Howard,  12  Ohio  St. 
165  ;  Ward  v.  Howard,  12  Ohio  St. 
158  ;  Mack  v.  Bonner,  3  Ohio  St.  366  ; 
Dixon  V.  Caldwell,  15  Ohio  St.  412, 
76  Am.  Dec.  487  ;  Neilson  v.  Fry,  16 
Ohio  St.  552,  91  Am.  Dec,  no  ;  Jones 
V.  Timmons,  21  Ohio  St.  596  :  Hager 
V.  Reed,  11  Ohio  St.  626  ;  Culver  v. 
Rodgers,  33  Ohio  St.  537  ;  Penn  v. 
Hayward,  14  Ohio  St.  302  ;  Kloune  v. 
Bradstreet,  7  Ohio  St.  323  ;  Morgan  v. 
Spangler,  20  Ohio  St.  38  ;  Kennedy  v. 
Thompson,  3  Ohio  Cir.  Ct.  446. 

California. — Wiggins  v.   McDonald, 


Character  of  Action; 


ACTIONS.         How  Determined  under  Codes. 


V .  Chaeacter  of  Action  ;  How  Determined  under  Codes — 
1.  A  Question  of  Construction. — At  common  law  the  form  of  the  ac- 
tion always  determined  its  character;  but  under  the  codes  ques- 
tions of  difficulty  present  themselves  when  it  is  necessary  to  de- 
termine the  character  of  the  action.  As  a  general  rule  the  allega- 
tions of  the  complaint,  without  reference  to  the  prayer  for  relief, 
determine  the  character  of  the  action.  It  is  now,  under  the  codes, 
wholly  a  question  of  construction  of  the  complaint  as  to  whether 
the  action  is  a  legal  or  an  equitable  one  ;  and,  as  a  rule  which  admits 
of  exceptions,  the  prayer  for  relief  is  not  invoked  in  aid  of  this 
construction.* 


i8  Cal.  126  ;  Smith  v.  Richmond,  19 
Cal.  477  ;  Humiston  v.  Smith,  21  Cal. 
129  ;  Miller  v.  Van  Tassel,  24  Cal.  458  ; 
O'Connor  v.  Dingley,  26  Cal.  11  ;  Kim- 
ball V.  Lohmas,  31  Cal.  154;  Grain  v. 
Aldrich,  38  Cal.  514,  99  Am.  Dec.  423. 

Connecticut. — Trowbridge  v.  True,  52 
Conn.  190,  52  Am.  Dec.  579  ;  Mervvin 
V.  Richardson,  52  Conn.  223  ;  Don- 
aghue  V.  Gaffy,  53  Conn.  43  ;  Kelly  v. 
Wiard,  49  Conn.  443  ;  Cake  v.  Peet,  49 
Conn.  501. 

Nebraska. — Turner  v.  Althaus,  6 
Neb.  54. 

New  York.  —  Farmer's,  etc.,  Nat. 
Bank  v.  Rogers  (Buffalo  Super.  Ct.),  i 
N.  Y.  Supp.  757  ;  Vinton  v.  Cattarau- 
gus County,  2  N.  Y.  Supp.  367,  50 
Hun  (N.  Y.)  600  ;  Lattin  v.  McCarthy, 
41  N.  Y.  107  ;  New  York  Ice  Co. 
V.  Northwestern  Ins.  Co.,  23  N.  Y. 
357  ;  Cropsey  v.  Sweeney,  27  Barb. 
(N.  Y.)  210;  Getty  v.  Hudson  River 
R.  Co.,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)  269  ;  Williams  v.  Slote,  70  N.  Y. 
601  ;  Stevens  v.  New  York,  84  N.  Y. 
296  ;  Anderson  v.  Hunn,  5  Hun  (N.  Y.) 
79 ;  Ireland  v.  Nichols,  i  Sweeney 
(N.  Y.)  208  ;  Wright  v.  Wright,  54  N. 
Y.  443  ;  Marquat  z/.  Marquat,  12  N.  Y. 
336  ;  Emery  v.  Pease,  20  N.  Y.  64  ; 
Corning  v.  Troy  Iron  Nail  Factory, 
40  N.  Y.  207  ;  Corn  Exchange  Ins.  Co. 
V.  Babcock,  42  N.  Y.  613,  i  Am.  Rep. 
601  ;  Barlow  v.  Scott,  24  N.  Y.  40  ; 
Davis  V.  Morris,  36  N.  Y.  569  ;  Parker 
V.  Laney,  58  N.  Y.  469  ;  Peck  v.  New- 
ton, 46  Barb.  (N.  Y.)  173  ;  Wooden  v. 
Waffle,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)  145  ;  Farmer's,  etc.,  Nat.  Bank 
V.  Rogers  (Buffalo  Super.  Ct.),  i  N.  Y. 
Supp.  757  ;  Vinton  v.  Cattaraugus 
County,  2  N.  Y.  Supp.  367,  50  Hun 
(N.  Y.)  600. 

Where  in  a  civil  suit  under  the 
Practice  Act  a  plaintiff  seeks  equitable 
relief,  it  is  no  ground  of  objection  that 


he  ought  to  have  availed  himself  of 
his  legal  remedy,  since  the  court' 
under  the  act  can  render  in  the  same 
suit  either  a  legal  or  an  equitable 
judgment,  as  the  case  may  require. 
Kelly  V.  Wiard,  49  Conn.  443;  Cake  v. 
Peet,  49  Conn.  501. 

"  Relief  is  to  be  given  consistent 
with  the  facts  stated,  although  it  be 
not  the  relief  specifically  demanded. 
And  in  determining  whether  an  action 
will  lie,  the  courts  are  to  have  no  re- 
gard to  the  old  distinction  between 
legal  and  equitable  remedies."  Per 
Comstock,  J.,  in  Emery  v.  Pease,  20 
N.  Y.  62. 

In  an  action  to  recover  the  posses- 
sion of  land,  the  plaintiffs  may  attach 
a  deed  under  which  the  plaintiffs 
claim  title,  both  upon  legal  grounds 
and  upon  such  as  before  the  Code 
were  of  purely  equitable  cognizance. 
Phillips  V.  Gorham,  17  N.  Y.  270; 
Laub  V.  Buckmiller,  17  N.  Y.  620. 

1.  New  York. — Johnson  v.  Golder, 
132  N.  Y.  116;  Tuers  v.  Tuers,  100  N.  Y. 
196;  Whatling  v.  Nash,  41  Hun  (N. 
Y.)  579;  Gilbert  v.  Pritchard,  41  Hun 
(N.  Y.)  46;  Welch  V.  Piatt,  32  Hun 
(N.  Y.)  194;  Lehnen  v.  Purvis,  55  Hun 
(N.  Y.)  535;  U.  S.  Life  Ins.  Co.  v. 
Jordan,  21  Abb.  N.  Cas.  (N.  Y.  Supreme 
Ct.)  330;  Whitner  z/.  Perhacs,  25  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  130;  New- 
combe  V.  Chicago  (Supreme  Ct.),  8  N. 
Y.  Supp.  366;  Leary  v.  Melcher,  i^ 
N.  Y.  Supp.  689;  Cahoon  v.  Bank  of 
Utica,  7  N.  Y.  486;  Bidwell  v.  Astor 
Mut.  Ins.  Co.,  16  N.  Y.  263;  Gooding 
V.  McAHster,  9  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  123;  Chautauqua  County 
Bank  v.  White,  6  N.  Y.  236,  57  Am. 
Dec.  442;  Phillips  v.  Gorham,  17  N. 
Y.  270;  Laub  V.  Buckmiller,  17  N.  Y. 
620;  Lattin  v.  McCarthy,  41  N.  Y.  107; 
Hall  V.  Hall,  38  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  97;  Simonson  v.  Blake,  20 

46 


Character  of  Action; 


ACTIONS 


How  Determined  under  Codes. 


2.  When  the  Prayer  may  be  Consulted. — Where  it  is  doubtful  as 
to  whetiier  an  action  is  in  tort  or  contract,  the  prayer  for  rehef 
may  sometimes  determine  the  question.* 

3.  Actions  Ex  Contractu  and  Actions  Ex  Delicto. — Although  the 
form  of  all  actions  at  law  and  suits  in  equity,  and  all  the  forms  of 
pleading  existing  before  the. Codes,  were  thereby  abolished, 
and  it  is  sufficient  to  state  in  a  plain  and  concise  manner  the 
facts  constituting  the  cause  of  action,  yet  the  substantive  dis- 
tinctions between  actions  on  contract  and  those  founded  in  tort 
still  exist.* 

But  whether  the  pleader  sues  for  the  tort,  or  waives  the  tort  and 
sues  in  contract,  is  often  a  very  difficult  question  of  construction, 


\ 


How.  Pr.  (N.  Y.  Supreme  Ct.)  484; 
Hammond  v.  Cockle,  2  Hun  (N.  Y.) 
495;  Onderdonk  v.  Mott,  34  Barb.  (N. 
Y.)  106;  Warwick  v.  New  York,  28 
Barb.  (N.  Y.)  210;  Linden  z/.  Hepburn, 
3  Sandf.  (N.  Y.)  668;  Le  Roy  v.  Mar- 
shall, 8  How.  Pr.  (N.  Y.  Supreme  Ct.) 
373;  Young  V.  Edwards,  11  How.  Pr. 
(N.  Y.  Supreme  Ct.)  201;  Eldridge  v. 
Adams,  54  Barb.  (N.  Y.)  417;  Emery 
V.  Pease,  20  N.  Y.  62;  Hale  v.  Omaha 
Nat.  Bank,  39  N.  Y.  Super.  Ct.  207; 
Howard  v.  Tiffany,  3  Sandf.  (N.  Y.) 
695;  Graves  v.  Spier,  58  Barb.  (N.  Y.) 
349;  Sternberger  v.  McGovern,  56  N. 
Y.  12;  Short  V.  Barry,  3  Lans.  (N.  Y.) 
143;  Johnson  v.  Hathorn,  42  N.  Y. 
476;  Armitage  v.  Pulver,  37  N.  Y. 
494. 

Wisconsin.  —  Douglas  County  v. 
Walbridge,  38  Wis.  179;  Liedersdorf 
V.  Flint,  50  Wis.  401;  Collins  z*.  Cowan, 
52  Wis.  634;  Butler  v.  Kirby,  53  Wis. 
188;  Sayles  v.  Bemis,  57  Wis.  315; 
Moon  V.  McKnight,  54  Wis.  551; 
Damon  v.  Damon,  23  Wis.  510;  Harri- 
son V.  Juneau  Bank,  17  Wis.  340; 
Bassett  v.  Warner,  23  Wis.  673;  Blake 
V.  Van  Tilborg,  21  Wis.  672;  Winslow 
V.  Dousman,  18  Wis.  456;  Gates  v. 
Boomer,  17  Wis.  455;  Connecticut  Mut. 
L.  Ins.  Co.  V.  Cross,  18  Wis.  109;  Whet- 
stone V.  Beloit  Straw  Board  Co.,  76 
Wis.  613;  Sauer  z/.  Steinbauer,  14  Wis. 
70;  Faesi  v.  Goetz,  15  Wis.  231 ;  Cary  v. 
Wheeler,  14  Wis.  281;  Jesup  v.  City 
Bank,  14  Wis.  331;  Stilwell  v.  Kel- 
logg, 14  Wis.  461. 

Nebraska.  —  Stewart  v.  Carter,  4 
Neb.  564. 

South  Carolina. — Barrett  v.  Watts, 
13  S.  Car.  441;  Westlake  v.  Farrow, 
34  S.  Car.  270. 

Connecticut. — Trowbridge  v.  True, 
52  Conn.  190,  52  Am.  Rep.  579. 

California. — Lovdal    v.   Gridley,    70 


Cal.  507:  Grandona  v.  Goodal,  70  Cal. 
161;  Eastman  v.  Turman,  24  Cal.  379; 
Rollins  V.  Forbes,  10 Cal.  299;  Farwell 
V.  Jackson,  28  Cal.  105;  Loveland  v. 
Garner,  71  Cal.  541;  Wickersham  zi. 
Crittenden,  93  Cal.  17;  Reedy  v. 
Smith,  42  Cal.  245. 

Indiana. — Smiley  v.  Deweese,  i  Ind. 
App.  211;  Rigsbee  v.  Trees,  21  Ind. 
227;  Hunter  v.  McCoy,  14  Ind.  528. 

Kentucky. — Louisville,  etc.,  R.  Co. 
V.  Neafus  (Ky.,  1892),  18  S.  W.  Rep. 
1030. 

Nevada. — Weil  v.   Howard,  4   Nev. 

384. 

Iowa. — Greither  v.  Alexander,  15 
Iowa  470;  Bowers  v.  Keesecher,  9 
Iowa  422. 

Minnesota. — Connor  v.  Board  of 
Education,  10  Minn.  439;  Gurnsey  v. 
American  Ins.  Co.,  17  Minn.  104;  North 
V.  Bradway,  9  Minn.  183. 

N'orth  Carolina. — Thames  v.  Jones, 
97  N.  Car.  121;  McCown  v.  Sims,  69 
N.  Car.  159. 

Missouri. — McClurg  v.  Phillips,  49 
Mo.  315;  Henderson  z/.  Dickey,  50  Mo. 
161;  Duvall  V.  Tinsley,  54  Mo.  93. 

Form  of  Summons. — The  character  of 
the  action  is  determined  by  the  com- 
plaint and  not  by  the  form  of  the  sum- 
mons. Gopen  V.  Crawford,  53  How. 
Pr.  (N.  Y.  Supreme  Ct.)  278. 

1.  Chambers  ».  Lewis,  2  Hilt.  (N.  Y.) 
595.  See  Edick  v.  Crim,  10  Barb.  (N. 
Y.)  445;  Thompson  v.  Strauss,  29  Hun 
(N.  Y.)  256. 

The  nature  of  the  action  is  deter- 
mined by  the  complaint,  and  particu- 
larly by  the  relief  demanded.  Sey- 
mour V.  Van  Curen,  18  How.  Pr.  (N. 
Y.  Supreme  Ct.)  94.  See  Prudden  v. 
Lockport,  43  How.  Pr.  (N.  Y.  Supreme 
Ct.)  286. 

2.  Per  Lott,  Ch.  C,  in  Austin  v. 
Rawdon,  44  N.  Y.  71. 


147 


Splitting  Causes  of^ction. 


ACTIONS. 


Generally, 


especially  where  the  facts  of  the  transaction  are  alone  set  forth, 
not  aided  by  any  allegations  of  legal  conclusions.* 

VI.  Splitting  Causes  of  Action— i.  Generally.— it  is  a  well-estab- 
lished rule  of  of  law  that  a  single  cause  of  action  cannot  be  split  in 
order  that  separate  suits  may  be  brought  for  the  various  parts  of 
what  really  constitutes  but  one  demand.* 


1.  A  complaint  which  alleges  a  joint 
agreement  by  the  defendants  to  deliver 
up  specified  securities,  demand  there- 
for, and  that  the  defendants  wrong- 
fully refused  to  deliver  them  and  have 
wrongfully  disposed  of  and  converted 
them  to  their  own  use,  to  the  great 
damage  of  the  plaintiff,  and  praying 
judgment  for  the  value  of  the  securi- 
ties, with  interest,  states  a  cause  of  ac- 
tion on  contract,  and  not  ex  delicto. 
Austin  V.  Rawdon,  44  N.  Y.  63.  See 
Sager  v.  Blain,  44  N.  Y.  445;  Andrews 
V.  Bond,  16  Barb.  (N.  Y.)  633  ;  Bern- 
hard  V.  Seligman,  54  N.  Y.  661  ;  De- 
graw  V.  Elmore,  50  N.  Y.  i. 

Waving  Tort. — Where  property  has 
been  wrongfully  taken  or  detained,  the 
owner  may  waive  the  tort  and  sue  upon 
an  implied  promise  to  pay.  Formerly 
the  tort  was  waived  by  bringing  an  ac- 
tion in  assumpsit,  but  under  the  pres- 
ent system  of  pleading  the  character 
of  the  action,  and  whether  or  not  the 
tort  is  waived,  is  determined  by  the 
facts  stated  in  the  complaint.  Cham- 
bers V.  Lewis,  2  Hilt.  (N.  Y.)  591. 

Insertion  in  Complaint  that  Defendant 
Undertook  and  Promised. — Where  tort 
and  assumpsit  are  concurrent  reme- 
dies, the  nature  of  the  action  is  deter- 
mined by  the  insertion  or  omission  of 
an  averment  that  the  defendant  under- 
took and  promised.  Booth  v.  Farm- 
ers', etc.,  Nat.  Bank,  65  Barb.  (N.  Y.) 
457;  Ledwich  v.  McKim,  53  N.  Y.  307; 
People    V.    Halberstro,    16    Alb.    L.  J. 

151. 

Incorrect  Legal  Conclusion. — Where  a 
complaint  sets  forth  facts  constituting 
a  cause  of  action  ex  contractu,  an  alle- 
gation therein  of  an  incorrect  legal 
conclusion,  having  the  aspect  of  a  tort, 
does  not  change  the  nature  of  the  ac- 
tion. Greentree  v.  Rosenstock,  61  N. 
Y.  583  ;  Sheahan  v.  Shanahan,  5  Hun 
(N.  Y.)46r. 

Sale  of  Property. — In  all  cases  where 
the  pleader  avers  the  sale  and  delivery 
of  property  to  the  defendant  at  a  fixed 
and  agreed  price,  which  remains  un- 
paid, and  also  alleges  that  he  perpe- 
trated a  fraud  in  making  the  purchase 


by  means  of  false  representations  as  to 
his  solvency,  and  a  question  of  doubt 
is  presented  as  to  whether  it  was  the 
intention  of  the  pleader  to  set  forth  a 
cause  of  action  ex  contractu  or  ex  de- 
licto, the  omission  to  allege  that  dam- 
ages have  accrued  to  the  plaintiff  by 
reason  of  the  fraud  is  accepted  by  the 
court  as  a  circumstance  indicating  the 
purpose  of  the  pleader  to  rely  upon  the 
contract  as  constituting  the  cause  of 
action.  McDonoughz'.  Dillingham,  43 
Hun  (N.  Y.)  493;  Hinton  v.  Wilson,  22 
N.  Y.  Wkly.  Dig.  90. 

Converting  Action  Ex  Delicto  into  one 
Ex  Contractu.  —  Where  a  complaint 
states  a  cause  of  action  ex  delicto,  it  is 
not  competent  at  the  trial  to  convert  it 
into  one  ex  contractu.  Neudecker  v, 
Kohlberg,  81  N.  Y.  296. 

Judgment  Must  Follow  Pleadings. — 
Notwithstanding  the  liberal  rule  of 
construction  applied  to  pleadings 
under  the  Code,  the  principle  still  re- 
mains that  the  judgment  to  be  ren- 
dered by  any  court  must  be  secundum 
allegata  et probata.  Neudecker  z/.  Kohl- 
berg, 81  N.  Y.  296. 

2.  New  York. — Secor  v.  Sturgis,  16 
N.  Y.548;  Farringtonz/.  Payne,i5johns. 
(N.  Y.)432;  Smith  v.  Jones,  15  Johns. 
(N.  Y.)  229;  Phillips  V.  Berick,  16 
Johns.  (N.  Y.)  137;  Miller  v.  Covert, 
I  Wend. (N.Y.)487;  Guernsey  t/.  Carver, 
8  Wend.  (N.  Y.)  492;  Stevens  v.  Lock- 
wood,  13  Wend.  (N.  Y.)  644;  Colvin  v. 
Corwin,  15  Wend.  (N.  Y.)557;  Bender- 
nagle  v.  Cocks,  19  Wend.  (N.  Y.)  207; 
Willard  v.  Sperry,  16  Johns.  (N.  Y.) 
121;  Brockway  v.  Kinney,  2  Johns.  (N. 
Y.)  210;  Hillman  v.  Hillman,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)  456;  Van 
Zandt  V.  Mayor,  8  Bosw.  (N.  Y.)  375; 
Bancroft  v.  Winspear,  44  Barb.  (N. 
Y.)  209;  Mills  V.  Garrison,  42  N.  Y.  40; 
Smith  V.  Moonelis  (C.  PI.),  44  N.  Y. 
St.  Rep.  638;  Haskin  v.  New  York,  11 
Hun  (N.  Y.)  436;  Hayes  v.  Reese,  34 
Barb.  (N.  Y.)  151;  Stowell  v.  Chamber- 
lain, 60  N.  Y.  272;  Dobson  v.  Pearce, 
12  N.  Y.  156;  Van  Alen  v.  Rogers 
ijohns  Cas.(N.  Y.)  281;  Clark  z/.  Jones, 
I  Den.  (N.  Y.)  519;  Tuska   v.  O'Brien, 

48 


Splitting  Causes  of  Action. 


ACTIONS. 


Generally. 


Foundationof  Eule.— The  reason  for  this  rule  is  one  of  substantive 
law,  and  has  its  foundation  in  the  two  maxims,  Interest  rei  pub- 


68  N.  Y.  446;  Benson  v.  Matsdorf,  2 
Johns.  (N.  Y.)  369;  Pray  v.  Hegeman, 
q8  N.  Y.  352;  Jackson  v.  Randall,  11 
Johns.  (N.  Y.)405;  Staples  v.  Good- 
rich, 21  Barb.  (N.  Y,)  317;  Thompson 
V.  Wood,  I  Hilt.  (N.  Y.)  93;  Coggins  v. 
Bulwinkle,  i  E.  D.  Smith  (N.  Y.)  434; 
Reformed,  etc..  Church  v.  Brown,  54 
Barb.  (N.  Y.)i9i;  Fish  z/.  Folley,  6Hill 
(N.  Y.)  54;  O'Beirne  v.  Lloyd,  43  N.  Y. 
24S. 

Virginia. — Bates  v.  Quattlebom,  2 
Nott  &  M.  (S.  Car.)  205;  Hite  v.  Long, 
6  Rand.  (Va.)  457;  Tilson  z/.  Davis,  32 
Gratt.  (Va.)92. 

Pennsylvania. — Ingraham  v.  Hall,  11 
S.  &  R.  (Pa.)  78;  Simes  v.  Zane,  24  Pa. 
St.  242;  Kilheffer  v.  Herr,  17  S.  &  R. 
(Pa.)  319;  Smith  z/. Elliott,  9  Pa.  St.  345; 
Sykes  v.  Gerber,  98  Pa.  St.  179;  Alcott 
V.  Hugus,  105  Pa.  St.  350;  Kille  v.  Ege, 
82  Pa.  St.  102;  Logans  v.  Caffrey,  30 
Pa.  St.  196;  Smedley  v.  Tucker,  3 
Phila,  (Pa.)  259;  Carvill  v.  Garrigues, 
5  Pa.  St.  152;  Buck  V.  Wilson,  113  Pa. 
St.  423;  Marsh  v.  Pier,  4  Rawle  (Pa.) 
273;  Corbet  v.  Evans,  25  Pa.  St.  310; 
Lyon  V.  Miller,  24  Pa.  St.  392;  Com.  v. 
Trimmer,  84  Pa.  St.  65;  Kane  v.  Fisher, 
2  Watts  (Pa.)  246. 

Missouri. — Ruddle  v.  Horine,  34 Mo. 
App.  616;  Kavanaugh  v.  Shaughnessy, 
41  Mo.  App.  657;  Funk  v.  Funk,  35  Mo. 
App.  246;  Wickersham  v.  Whedon,  33 
Mo.  561;  Carroll  v.  Woodlock,  13  Mo. 
App.  574;  Piel  V.  Finck,  19  Mo.  App. 
338;  Laine  v.  Francis,  15  Mo.  App.  107; 
Kitchen  v.  Clark,  i  Mo.  App.  430; 
Union,  etc.,  R.  Co.  v.  Traube,  59  Mo. 
355;  Wagner  v.  Jacoby,  26  Mo.  532; 
Kerr  v.  Simmons,  9  Mo.  App.  376;  Tay- 
lor V.  Heitz,  87  Mo.  660. 

Massachusetts. — Stearns  v.  Quincy 
Mut.  F.  Ins.  Co.,  124  Mass.  61;  Gibson 
V.  Cooke,  20  Pick.  (Mass.)  15;  Stevens 
V.  Tuite,  104  Mass.  328;  Goodrich  v. 
Yale,  8  Allen  (Mass.)  454;  White  v. 
Moseley,  8  Pick.  (Mass.)  356;  Trask  v. 
Hartford,  etc.,  R.  Co.,  2  Allen  (Mass.) 
331;  Clark  V.  Baker,  5  Met.  (Mass.) 
452;  Minor  v.  Walter,  17  Mass.  237; 
Denny  v.  Williams,  5  Allen  (Mass.)  4; 
Brigham  v.  Fayervvealher,  140  Mass. 
411;  Emerson  v.  Thompson,  2  Pick. 
(Mass.)  473;  Warren  v.  Comings,  6 
Cush.  (Mass.)  103;  Jones  v.  Richard- 
son, 5  Met.  (Mass.)  247;  Osborne  v. 
Atkins,  6  Gray  (Mass.)  423. 

Alabama. — Liddell   v.   Chidester,  84 


Ala.  508;  Wetumpka  v.  Wetumpka 
Wharf  Co.,  63  Ala.  611;  Strang  v. 
Moog,  72  Ala.  460;  Broda  v.  Green- 
wald,66Ala.  538;  Alabama  Warehouse 
Co.  V.  Jones,  62  Ala.  550;  Wilkins  v. 
Judge,  14  Ala.  135;  Yarborough  v.  Av- 
ant,  66  Ala.  526;  Jenkins  v.  Harrison, 
66  Ala.  345;  Brady  v.  Huff,  75  Ala.  81; 
Norwood  V.  Kirby,  70  Ala.  397;  Haral- 
son V.  George,  56  Ala.  295;  O'Neal  v. 
Brown  21  Ala.  482;  Moorer  v.  Moorer, 
84  Ala.  353. 

North  Carolina. — Young  v.  Young, 
81  N.  Car.  91;  Pendleton  v.  Dalton,  92 
N.  Car.  185. 

Ohio. — Stein  v.  Steamboat  Prairie 
Rose,  17  Ohio  St.  471;  Erwin  v.  Lynn. 
16  Ohio  St.  539. 

Illinois. — Brewer  v.  Christine,  9  111. 
App.  57. 

Georgia. — Evans  v.  Collier,  79  Ga. 
319;  Baldwin  v.  McCrea,  38  Ga.  650. 

California. — Nightingale  v.  Scannell, 
6  Cal.  506;  Herriter  v.  Porter,  23  Cal. 
385;  Shinn  z/.  Young,  57  Cal.  525;  Tay- 
lor V.  Castle,  42  Cal.  367. 

Kansas. — Tootle  v.  Wells,  39  Kan. 
452;  Bond  V.  Weed  Sewing  Mach.  Co., 
23  Kan.  119;  Wichita,  etc.,  R.  Co. 
V.  Beebe,  39  Kan.  465;  Whitaker  v. 
Hawley,  30  Kan.  317;  Barton  County 
V.  Plumb,  20  Kan.  147. 

Connecticut. — Marlborough  v.  Sisson, 
31  Conn.  332;  Pinney  v.  Barnes,  17 
Conn.  420;  Lane  v.  Cook, 3  Day  (Conn.) 
255;  Bunnel  v.  Pinto,  2  Conn.  431; 
Avery  v.  Fitch,  4  Conn.  362;  Pearce  v. 
Olney,  20  Conn.  544. 

Iowa. — Watson  v.  Van  Meter,  43 
Iowa  76. 

Wisconsin. — Williams  v.  Williams, 
63  Wis.  58. 

Maine. — Ware    v.    Percival,  61   Me. 

391- 

Vermont. — Hayward  v.  Clark,  50  Vt. 
612;  Perkins  v.  Walker,  19  Vt.  144; 
Hunt  V.  Payne,  29  Vt.  172. 

Michigan. — Clark  v.  Wiles,  54  Mich. 

323- 

New  Jersey. — School  Dist.  No.  28  v. 
Stocker,  42  N.  J.  L.  115;  Hendrickson 
V.  Norcross,  17  N.  J.  L.  417. 

Indiana.  —  Faught  v.  Faught,  98  Ind. 
470. 

Minnesota. — Wisconsin  v.  Torinus, 
28  Minn.  175;  Hardin  v.  Palmerlee,  28 
Minn.  450. 

Nebraska. — Beck  z*.  Deveraux,9  Neb. 
109. 


149 


Splitting  Causes  of  Action. 


ACTIONS.        What  Constitutes  Entire  Cause. 


lic(By  lit  sil  finis  litiiuni,  and  Nemo  debet  bis  vexari  pro  una  et  eadam 
cause.  * 

2.  What  Constitutes  an  Entire  Cause  of  Action. — There  is  no  precise 
rule  for  determining  what  constitutes  an  entire  cause  of  action  with- 
in the  meaning  of  the  above  rule.  It  depends  upon  the  facts  of 
each  particular  case,  and  is  often  a  difficult  question.  Certain 
general  rules,  however,  may  be  formulated.* 


United  States. — Marine  Ins.  Co.  v. 
Hodgson,  7  Cranch  (U.  S.)  332;  Hen- 
drickson  v.  Hinckley,  17  How.  (U.  S.) 
444;  Parker  v.  Judges,  12  Wheat.  (U. 
S.)  561;  Davenport  v.  Lord,  9  Wall. 
(U.  S.)409;  Embry  v.  Palmer,  107  U. 
S.  3;  Bartels  v.  Schell,  16  Fed.  Rep. 
341;  Hughes  V.  Dundee  Trust  Invest. 
Co.,  26  Fed.  Rep.  831;  Stockton  v. 
Ford,  18  How.  (U.  S.)  418;  Stark  v. 
Starr,  94  U.  S.  492;  Baird  v.  U.  S.,  96 
U.  S.  430. 

England. — Fetter  v.  Beale,  i  Salk. 
II  ;  Barwell  v.  Kensey,  3  Lev.  179; 
Gibbs  V.  Cruskshanks,  L.  R.  8  C. 
P.  454;  Bagot  V.  Williams,  3  B.  &.  C. 
235,  10  E.  C.  L.  62;  Hodsoll  V.  Stalle- 
brass,  11  Ad.  &  El.  301,  39  E.  C.  L.  94; 
Burn  V.  Carvalho,  4  Myl.  &  C.  690; 
Phosphate  Sewage  Co.  v.  Molleson,  4 
App.  Cas.  801;  Beere  v.  Fleming,  13 
Ir.  C.  L.  506;  Dundas  v.  Waddell,  5 
App.  Cas.  249:  Woods  v.  Russell,  5  B. 
&  A.  942;  Seddon  v.  Tutop,  6  T.  R. 
607;  Harris  v.  Mulkern,  i  Exch.  Div. 
31;  Aslin  V.  Parkin,  2  Burr.  665;  Man 
V.  Drexel,  2  Pa.  St.  202;  Newington  v. 
Levy,  L.  R.  6  C.  P.  180;  Routledge  v. 
Hislop,  2  El.  &  El.  549;  Finney  v.  Fin- 
ney, L.  R.  I  P.  &  M.483;  Buckland  v. 
Joiinson,  15  C.  B.  145,  80  E.  C.  L.  145; 
Hitchin  v.  Campbell,  3  Wils.  240; 
Slade's  Case,  4  Coke  92  b. ;  Eastmure  v. 
Laws,  5  Bing.  N.  Cas.  444;  35  E.  C. 
L.  170. 

Mistake. — Taking  judgment  by  mis- 
take for  a  less  sum  than  due  will  not 
justify  the  plaintiff  in  recovering  the 
residue  in  a  new  action.  Ewing  v. 
McNairy,  20  Ohio  St.  315;  Keokuk 
County  V.  Alexander,  21  Iowa  379; 
Wickersham  v.  Whedon,  33  Mo.  561; 
Saddler  v.  Apple,  9  Humph.  (Tenn.) 
342.    But  see  Byrket  z'.State,3  Ind.248. 

1.  See  remarks  of  Miller,  ]., passim, 
in  U.  S.  V.  Throckmorton,  98  U.  S.  65  ; 
Brunsden  v.  Humphry,  14  Q.  B.  Div. 
141. 

Not  a  Technicality. — The  principle 
which  prevents  the  splitting  up  of 
causes  of  action,  and  forbids  double 
vexation  for  the  same  thing,  is  a  rule 
of  justice,  and  not  to  be  classed  among 


technicalities.  It  was  intended  to  sup- 
press serious  grievances.  Dutton  v, 
Shaw,  35  Mich.  431. 

Exhausting  Possibilities  of  Suit. — 
Where  a  pending  suit  is  one  in  which 
it  is  legally  possible  for  a  judgment 
to  be  rendered  upon  the  cause  of 
action  alleged  in  the  second,  and 
was  brought  for  the  purpose  of  ob- 
taining such  a  judgment,  the  plain- 
tiff is  bound  to  exhaust  the  possibili- 
ties of  that  suit  before  subjecting  the 
defendant  to  the  cost  of  a  second  suit. 
Damon  v.  Denny,  54  Conn.  253.  See 
also  Hitchin  v.  Campbell,  2  W.  Bl. 
827  ;  Martin  v.  Kennedy,  2  B.  «&  P.  71  ; 
Seddon  v.  Tutop,  6  T.  R.  607  ;  Thorpe 
V.  Cooper,  5  Bing.  116,   15  E  C.  L.  387. 

Justice  of  Kule  Questioned. — The  rule 
against  splitting  a  cause  of  action  has 
not  in  all  cases  gone  unchallenged  ; 
the  fact  that  it  may  be  used  as  a  sword 
instead  of  as  a  shield  has  been  pointed 
out  by  an  eminent  judge  :  "  For  the 
defendant  reliance  has  in  effect  been 
placed  upon  the  maxim  Interest  rei pub- 
lico ut  sit  finis  lituum  ;  and  it  has 
been  contended  that  it  enunciates  an 
admirable  rule  of  law.  When  that 
rule  is  applied  to  damages  which  are 
patent,  it  is  a  good  rule  ;  but  where 
damages  are  afterwards  developed  it 
is  not  a  rule  to  be  commended.  It  is 
a  rule  which  sometimes  produces  a 
harsh  result,  and  if  it  were  now  for  the 
first  time  put  forward  I  could  not  as- 
sent to  its  being  pushed  to  the  length 
to  which  it  has  sometimes  been 
carried  ;  in  fact  it  is  never  wanted  ex- 
cept when  injury,  undeveloped  at  the 
time  of  action  brought,  is  afterwards 
developed."  Per  Brett,  J.,  in  Bruns- 
den V.  Humphrey,  14  Q.  B.  Div.  145. 

Application  in  Equity. — While  the  rule 
is  rigidly  enforced  in  common-law  ac- 
tions, there  are  many  cases  in  equity 
where  the  courts  having  ample  power 
so  to  mould  the  relief  granted  as  to 
prevent  injustice,  will  not  enforce  it 
unless  equity  in  the  particular  case  re- 
quires it.  O'Dougherty  z/.  Remington 
Paper  Co.,  81  N.  Y.  499. 

B.   Hill  V.  Joy,  149  Pa.  St.  243. 


150 


Splitting  Causes  of  Action. 


ACTIONS, 


Contracts  Generally, 


3.  Contracts    Generally. — In    respect    to    contracts   express    or 
implied,  each  contract  affords  one  and  only  one  cause  of  action.^ 


While  the  law  does  not  favor  the 
unnecessary  splitting  of  causes  of  ac- 
tion, it  does  not  require  that  two  dis- 
tinct causes  of  action  shall  be  brought 
into  one  litigation.  The  nearer  the 
controversy  is  to  being  single,  the 
more  likely  the  jury  is  to  dispose  of  it 
with  full  intelligence  and  justice. 
Morehouse  v.  Baker,  4S  Mich.  335. 

In  Stickel  v.  Steel,  41  Mich.  350,  the 
principle  is  advanced  that  claims 
originally  one  and  indivisible  may 
become  single  and  separated,  and  in 
turn  may  again  return  to  their  indi- 
visible state.  Cooley,  J.,  uses  this  lan- 
guage :  "In  short  if  the  two  bills  con- 
stituted one  demand  in  their  origin, 
they  must  have  become  two  for  all  le- 
gal purposes  when  the  one  fell  due  be- 
fore the  other  ;  and  if  united  again  by 
the  other  falling  due,  they  would  be 
again  separated  when  the  remedy  on 
one  was  barred,  or  whenever  anything 
occured  which  should  render  one  the 
subject  of  a  suit  when  the  other  was 
not." 

1.  New  York. — Secor  v.  Sturgis,  16 
N.Y.  548;  Miller  z'.  Covert,  iWend.  (N. 
Y.)  487;  Farrington  v.  Payne,  15  Johns. 
(N.  Y.)  432  ;  Phillips  v.  Berick,  16 
Johns.  (N.  Y.)  136  ;  Millard  v.  Mis- 
souri, etc. ,  R.  Co. ,  86  N.  Y.  441 ;  Stone- 
man  V.  Erie  R.  Co.,  52  N.  Y.  429;  Slo- 
man  v.  Great  Western  R.  Co.,  267  N. 
Y.  208;  Gardner  z/.  Patten  (C.  PI.),  15 
N.  Y.  Supp.  324;  Millard  v.  Missouri, 
etc.,  R.  Co.,  20  Hun  (N.  Y.)  191  ;  Mills 
V.  Garrison,  42  N.  Y.  40  ;  O'Beirne  v. 
Lloyd,  43  N.  Y.  248. 

Aiissouri. — Brooks  v.  Ancell,  51  Mo. 
178;  Comstock  V.  Davis,  51  Mo.  569; 
Ruddle  V.  Horine,  34  Mo.  App.  616. 

Mississippi. — McLendon  v.  Pass,  66 
Miss,  no;  Grayson  v.  Williams,  Walk- 
er Miss.  298  ;  Ash  v.  Lee,  51  Miss. 
loi  ;  Pittman  v.  Chrisman,  59  Miss. 
124;  Scofield  V.  Pensons,  26  Miss.  402; 
Mobile,  etc.,  R.  Co.  v.  State,  51   Miss. 

137- 

Wisconsin. — Roehring  v.  Huebsch- 
mann,  34  Wis.  185. 

Kansas. — Madden  v.  Smith,  28  Kan. 
798. 

Indiana. — Smiley  v.  Deweese,  i  Ind. 
App.  zii. 

Massachusetts. — Harding  v.  Hale,  2 
Gray  (Mass.)  399;  Badger  v.  Titcomb, 
15  Pick.  (Mass.)  409. 

Michigan. — Beecher    v.    Pettee,    40 


Mich.  181;  Morehouse  v.  Baker,  48 
Mich.  335. 

California. — Wetmore  v.  San  Fran- 
cisco, 44  Cal.  295. 

Iowa. — Clark  v.  Sammons,  12  Iowa 
368;  Taylor  v.  Chambers,  i  Iowa  124; 
Aultman  v.  Mount,  62  Iowa  674;  Drake 
V.  Vorse,  42  Iowa  653;  Street  v.  Beck- 
man,  43  Iowa  496. 

Nebraska. — Gapen  v.  Bretternitz,  31 
Neb.  302. 

Alabama. — South  &  North  Alabama 
R.  Co.  V.  Henlein,  56  Ala.  368;  Rake  v. 
Pope,  7  Ala.  161  ;  Oliver  v.  Holt,  11 
Ala.  574  ;  O'Neal  v.  Brown,  21  Ala. 
482;  McLane  v.  Miller,  12  Ala.  643. 

Contiecticut. — Bunnell  v.  Pinto,  2 
Conn.  431. 

New  Hampshire. — Britton  v.  Turner, 
6N.  H.  481. 

England. — Rex  v.   Herefordshire,   I 

B.  &  Ad.  572. 

Attachment  Bond. — An  attachment 
bond  is  indivisible.  Davis  v.  Milburn, 
4  Iowa  246. 

Indemnity  Bond. — An  indemnity  bond 
may  give  rise  to  several  causes  of  ac- 
tion. Orendorff  v.  Utz,  48  Md.  298; 
Ahl  V.  Ahl,  60  Md.  207.  See  Bristowe 
V.  Fairclough,  i  M.  &  G.  143  ;  Flor- 
ence V.  Dfayson,  i  C.  B.  N.  S.  584,  87  E. 

C.  L.  584;  Butler  v.  Wright,  2  Wend. 
(N.  Y.)  369. 

Accounting. — Several  causes  of  ac- 
tion may  grow  out  of  an  accounting. 
Kane  v.  Morehouse,  46  Conn.  300. 

Taxes. — Each  year's  taxes  constitute 
a  separate  and  distinct  cause  of  action. 
Davenport  v.  Chicago,  etc.,  R.  Co.,  38 
Iowa  633.  See  also  Arnold  v.  Arnold, 17 
Pick.  (Mass.)  4;  Ferrer's  Case,  6  Coke 
7;  Beere  v.  Fleming,  13  Ir.  C.  L.  506; 
Cleaton  v.  Chambliss,  6  Rand,  (Va.)  86; 
Clark  V.  Young,  i  Cranch  (U.  S.)  181; 
Washington,  etc..  Steam  Packet  Co.  v. 
Sickels,  5  Wall.  (U.  S.)  580;  Norton  v. 
Huxley,  13  Gray  (Mass.)  285;  Harding 
V.  Hale,  2  Gray  (Mass.)  399;  Marsh  v. 
Pier,  4  Rawle  (Pa.)  273;  Myers  v. 
Johnson,  14  Iowa  47;  Clark  v.  Sam- 
mons, 12  Iowa  368;  Ricker  v.  Hooper, 
35  Vt.  457. 

Board. — A  single  claim  for  board 
cannot  be  split.  Bowers  7/.  Smith 
(Supreme  Ct.),  8  N.  Y.  Supp.  226.  See 
O'Beirne  v.  Lloyd,  43  N.  Y.  248;  Hopf 
V.  Myers,  42  Barb.  (N.  Y.)  270. 

Honey  Lost  at  Gaming. — Money  lost  at 
gaming  on  different  days  constitutes 


IS  I 


Splitting  Causes  of  Action. 


ACTIONS. 


Contracts  Generally. 


But  just  what  makes  a  single  contract,  giving  only  the  one  right 
of  action  which  cannot  be  split,  is  often  a  difficult  question,  and 
the  cases  are  not  altogether  harmonious. * 

Independent  Stipulations.— The  bare  fact  that  two  causes  of  action 
spring  out  of  the  same  contract  does  not  ipso  facto  render  a  judg- 
ment on  one  a  bar  to  a  suit  on  the  other.*  The  same  contract 
may  contain  independent  stipulations,  and  an  action  may  be 
maintained  on  each  stipulation  as  it  is  broken.* 


different  causes  of  action.  Caldwell 
V.  Caldwell,  2  Bush  (Ky.)  446;  Betts  v. 
Hillman,  15  Abb.  Pr.  (N.  Y.  C.  P.  L.) 
184. 

1.  Parsons'  Sules. — The  following  are 
Parsons'  rules  for  the  determination  of 
the  question  whether  a  contract  is  sep- 
erable  or  entire: 

If  the  part  to  be  performed  by  one 
party  consists  of  several  distinct  and 
separate  items,  and  the  price  to  be 
paid  by  the  other  is  apportioned  to 
each  item  to  be  performed,  or  is  left  to 
be  implied  by  law,  such  a  contract  will 
generally  be  held  to  be  severable. 
2  Parsons  on  Contracts  517,  citing 
Johnson  v.  Johnson,  3  B.  &  P.  162; 
Withers  v.  Reynolds,  2  B.  &  Ad.  882; 
Mayfield  v.  Wadsley,  3  B.  &  C.  357; 
Mavor  v.  Pyne,  3  Bing.  285,  11  E.  C. 
L.  104;  Robinson  v.  Green,  3  Met. 
(Mass.)  159;  Perkins  v.  Hart,  11 
Wheat.  (U.  S.)  237;  Sickels  v.  Patti- 
son,  14  Wend.  (N.  Y.)  257;  McKnight 
V.  Dunlop,  4  Barb.  (N.  Y.)  36;  Snook 
V.  Fries,  19  Barb.  (N.  Y.)  313;  Carleton 
V.  Woods,  28  N.  H.  290;  Robinson  v. 
Snyder,  25  Pa.  St.  203;  Lucesco  Oil  Co. 
V.  Brewer,  66  Pa.  St.  351;  Quigley  v. 
DeHaas,  82  Pa.  St.  267;  Scott  v.  Kit- 
tanning  Co.,  89  Pa.  St.  231. 

The  contract  is  severable  where  the 
price  to  be  paid  is  clearly  and  distinct- 
ly apportioned  to  different  parts  of 
what  is  to  be  performed,  although  the 
latter  is  in  its  nature  single  and  entire. 
2  Parsons  on  Cont.  517,  citing  Woods 
V.  Russell,  5  B.  &  Ad.  942;  Clarke  v. 
Spence,  4  Ad.  &  El.  448,  31  E.C.  L.  107; 
Laidler  v.  Burlinson,  2  M.  &  W.  602; 
Wood  V.  Bell,  5  El.  &  Bl.  772,  85  E.  C. 
L.  771;  Cunningham  v.  Morrell,  10 
Johns.  (N.  Y.)  203;  Andrews  v.  Du- 
rant,  11  N.  Y.  35;  Moody  v.  Brown,  37 
Me.  107. 

But  the  mere  fact  that  the  subject  of 
the  contract  is  sold  by  weight  or 
measure,  and  the  value  is  ascertained 
by  the  price  affixed  to  each  pound,  or 
yard,  or  bushel  of  the  quantity  con- 


tracted for,  will  not  be  sufficient  to 
render  the  contract  severable.  2  Par- 
sons on  Contracts,  citing  Clark  v. 
Baker,  5  Met.  (Mass.)  452;  Davis  v. 
Maxwell,  12  Met.  (Mass.)  286;  Baker  v. 
Higgins,  21  N.  Y.  397;  Mansfield  v. 
Trigg,  113  Mass.  350;  Young  v.  Wake- 
field, 121  Mass.  91. 

If  the  consideration  is  entire,  this 
makes  the  contract  one  and  indivisible. 
2  Parsons  on  Contracts,  citing  Miner 
V.  Bradley,  22  Pick.  (Mass.)  457;  John- 
son V.  Johnson,  3  B.  &  P.  162;  Bigg  v. 
Whisking,  14  C.  B.  195,  78  E.  C.  L. 
193;  Jones  V.  Dunn,  3  W.  &  S.  (Pa.)  109; 
White  V.  Brown,  2  Jones  (N.  Car.)  403; 
Dula  V.  Cowles,  2  Jones  (N.  Car.)  454; 

Common  Agent. — The  fact  that  sev. 
eral  corporations  employ  a  common 
agent  does  not  make  a  contract  by  him 
in  that  capacity  a  single  one;  it  is  sev- 
erable. Clegg  V.  Aikens,  5  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  95. 

Separate  Pieces  of  Property. — Where 
the  owner  of  several  and  distinct  pieces 
of  property  places  the  same  in  the 
hands  of  an  agent,  who  disposes  of 
and  receives  the  money  for  the  same, 
the  owner  has  as  many  causes  of  ac- 
tion against  the  agent  as  there  are 
segregated  pieces  of  property  disposed 
of.   Sweeny  v.  Daugherty,  23  Iowa  291. 

Defendant  Liable  in  Severable  Capaci- 
ties.— The  cause  of  action  may  be  one 
and  the  same,  although  the  defendant 
is  liable  thereon  in  several  capacities. 
Lord  V.  Vreeland,  15  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  122,  where  the  defendant 
was  liable  as  executor  and  as  grantee 
from  a  devisee.  See  also  Richtmyer 
V.  Richtmyer,  50  Barb.  N.  Y.  55;  Aus- 
tin V.  Munro,  47  N.  Y.  360. 

2.  Perry  v.  Dickerson,  85  N.  Y.  345. 

3.  Coe  V.  Goetschins,  7  Alb.  L.  J. 
413;  Mcintosh  V.  Lown,  49  Barb.  (N. 
Y.)  550;  Phillips  V.  Berick,  16  Johns. 
(N.  Y.)  140;  Perry  v.  Harrington,  2 
Met.  (Mass.)  368;  Andrews  v.  Durant, 
II  N.  Y.  35;  Beach  v.  Crain,  2  N.  Y. 
86;    Guernsey    v.    Carver,    8    Wend. 


152 


Splitting  Causes  of  Action. 


ACTIONS. 


Specific  Contracts. 


All  Breaches  to  be  Sued  for.— But  where  there  are  breaches  of  several 
and  distinct  covenants  contained  in  the  same  instrument,  all  these 
breaches  must  be  sued  for  together ;  while  independent  stipula- 
tions may  be  sued  for  as  the  breaches  occur,  all  the  breaches 
existing  at  the  time  the  action  is  brought  are  only  one  cause  of 
action.^ 

4.  Specific  Contracts — a.  SALES. — There  is  but  one  cause  of 
action  for  chattels  sold  at  one  time.* 

b.  Accounts. — A  debt  due  upon  a  continuous  account  of  book 
entries,  made  in  the  ordinary  course  of  dealing,  is  entire;  it  can- 
not, without  agreement  to  that  effect,  be  split  up  into  separate 
and  distinct  demands,  so  as  to  form  the  basis  of  several  suits.^ 


(N.  Y.)  492;  Stevens  v.  Lockwood,  13 
Wend.  (N.  Y.)  644;  Staples  v.  Good- 
rich, 21  Barb.  (N.  Y.)  317;  Colvin  v. 
Corwin,  15  Wend.  (N.  Y.)557;  Dennyz/. 
Williams,  5  Allen  (Mass.)  i;  Knight  z/. 
New  England  Worsted  Co.,  2  Cush. 
(Mass.)  271;  Merchants'  Ins.  Co.  v. 
Algeo,  31  Pa.  St.  446;  Andrew  v. 
Schmitt,  64  Wis.  664;  Breckenridge  v. 
Lee,  3  A.  K.  Marsh  (Ky.)  449;  Griffin  v. 
Wallace,  66  Ind.  410;  Boyce  v.  Christy, 
47  Mo.  70;  Johnson  v.  Pirtle,  i  Swan 
(Tenn.)  262;  Florence  v.  Jenings,  2  C.B. 
N.  S.  454,  89  E.  C.  L.  454;  Doe  v. 
Woodbridge,  9  B.  &  C.  376,  17  E.  C.  L. 
399;  Gambrell  v.  Falmouth,  4  Ad.  & 
El.  73,  31  E.  C.  L.  30;  Steel  v.  Spight, 
2  Roll.  178;  Palmer  v.  Stanage,  i  Lev. 
43;  Doe  V.  Peck,  i  B.  &  A.  428;  20 
E.  C.  L.  417;  Welbie  v.  Phillips,  2 
Vent.  129;  Dulaney  v.  Payne,  loi  111. 
325;  Wehrly  v.  Morfoot,  103  111.  183. 

1.  Bendernagle  v.  Cocks,  19  Wend. 
(N.  Y.)  207;  Coggins  v.  Bulwinkle,  i 
E.  D.  Smith  (N.  Y.)  434;  Guernsey  v. 
Carver,  8  Wend.  (N.  Y.)  492;  Colvin 
V.  Corwin,  15  Wend.  (N.  Y.)  557;  Ste- 
vens V.  Lockwood,  13  Wend.  (N.  Y.) 
644;  Winslow  V.  Stokes,  3  Jones  (N. 
Car,)  285;  Hill  v.  Joy,  149  Pa.  St.  243; 
McLaughlin  v.  Hill,6Vt.  20;  Avery  r/. 
Fitch,  4  Conn.  362;  Bunnel  v.  Pinto,  2 
Conn.  431;  Lane  v.  Cook,  3  Day 
(Conn.)  255;  Girling  v.  Aldas,  2  Keb. 
617;  Bagot  V.  Williams,  3  B.  &  C.  235, 
10  E.  C.  L.  62;  Rex  V.  Herefordshire, 
I  B.  &  Ad.  672;  Young  v.  Munby,  4 
M.  &  S.  183,  White  v.  Moseley,  8  Pick. 
(Mass.)  356;  Whitaker  v.  Hawley,  30 
Kan.  317;  Whitaker  v.  Hawley,  25  Kan. 
674;  Barton  County  v.  Plumb,  20  Kan. 
147;  Houston  V.  Delahay,  14  Kan.  125; 
Bond  V.  Weed  Sewing  Mach.  Co.,  23 
Kan.  121;  Madden  v.  Smith,  28  Kan. 
802;  Gripton  v.  Thompson,  32  Kan. 
370;  Andrews  v.  Alcorn,  13  Kan.  351; 


Ambrose  v.  Parrott,  28  Kan.  693; 
Muzzy  V.  Knight,  8  Kan.  456;  Ken- 
nion  V.  Kelsey,  10  Iowa  443;  Stein  v. 
Steamboat  Prairie  Rose,  17  Ohio  St. 
472;  Hibbard  v.  McKindley,  28  111.  240; 
Joyce  V.  Moore,  10  Mo.  272;  State  v. 
Davis,  35  Mo.  406;  Kansas  City 
Hotel  Co.  V.  Sigement,  53  Mo.  176; 
Fisk  V.  Tank,  12  Wis.  276;  Roehing 
V.  Huebschman,  35  Wis.  185;  Smith  v. 
Boston,  etc.,  R.  Co.,  36  N.  H.  458; 
Leggett  V.  Lippincott,  50  N.  J.  L.  462. 

2.  Smith  V.  Jones,  15  Johns.  (N.  Y.) 
229;  Millers'.  Covert,  i  Wend.  (N.  Y.) 
487;  Madden  v.  Smith,  28  Kan.  799; 
Magruder  v.  Randolph,  77  N.  Car. 
79;  Dutton  V.  Shaw,  35  Mich.  433. 

Two  distinct  sales  of  lottery  tickets 
by  different  agents  of  the  plaintiff,  at 
different  places,  were  held  an  entire 
demand.  Colvin  v.  Corwin,  15  Wend. 
(N.  Y.)  557- 

Separate  Sales. — Separate  and  inde- 
pendent sales  constitute  separate 
causes  of  action.  Cashman  v.  Bean, 
2  Hilt.  (N.  Y.)340. 

Where  the  contract  is  that  goods 
sold  by  weight  shall  be  paid  for  in 
cash  on  delivery,  and  some  goods  are 
delivered  daily,  the  weight  being 
taken  on  each  delivery,  that  payment 
was  not  exacted  on  each  delivery  does 
not  compel  the  seller  to  treat  the  an- 
nual deliveries  as  part  of  one  transac- 
tion. Stifel  V.  Lynch,  7  Mo.  App. 
326. 

Credit. — Giving  credit  on  the  items 
of  the  sale  will  change  the  rule;  a 
cause  of  action  on  each  item  arises  as 
its  credit  expires.  Zimmerman  v.  Er- 
hard,  83  N.  Y.  74;  Campbell  Printing, 
etc.,  Co.  I'.  Walker  (Supreme  Ct.K  9  N. 
Y.St.  Rep.  725;  Staples  z/.  Goodrich, 
21  Barb.  (N.  Y.)  317. 

3.  Buck  V.  Wilson,  113  Pa.  St.  430; 
Lucas  V.  Le  Comte,  42  III.  303;  Born- 


153 


Splitting  Causes  of  Action. 


ACTIONS. 


Specific  Contracts. 


c.  Instalments. — When  several  claims,  payable  at  different 
times,  arise  out  of  the  same  contract  or  transaction,  separate  ac- 
gesser  v.  Harrison,  12  Wis.  544;  Mem 


mer  v.  Carey,  30  Minn.  458;  American 
Buttonhole,  etc.,  Co.  v.  Thornton,  28 
Minn.  418;  Stevens  v.  Damon  29  Vt. 
521;  Tootle  V.  Wells,  39  Kan.  452; 
Waffle  z/.  Short,  25  Kan.  503;  Bond  v. 
Weed  Sewing  Mach.  Co.,  23  Kan.  119; 
Stevens  v.  Lockwood,  13  Wend.  (N. 
Y.)  644;  Guernsey  v.  Carver,  8  Wend. 
(N.  Y.)  492;  Mcintosh  v.  Lown,  49 
Barb.  (N.  Y.)  550;  Erie,  etc.  R.  Co.  v. 
Patrick,  41  N.  Y.  256;  Thompson  v. 
McDonald,  84  Ga.  5;  Macon,  etc.,  R. 
Co.  V.  Garrard,  54  Ga.  327;  Evans  v. 
Collier,  79  Ga.  319. 

"  The  demand  [of  the  plaintiff]  was 
composed  of  various  items  for  profes- 
sional services,  every  one  of  which, 
according  to  his  view,  was  a  separate 
demand,  and  therefore  he  might  bring 
as  many  separate  actions  as  there  were 
items  in  his  account.  This  cannot  be 
tolerated.  A  party  is  trading  at  a 
store,  where  he  has  a  running  account, 
which  in  the  aggregate  exceeds  $100. 
Can  it  be,  the  merchant  has  a  right  to 
divide  this  demand,  so  as  to  give  a 
court  jurisdiction,  which,  of  the  entire 
demand,  has  it  not?  It  cannot  be." 
Per  Breese,  J.,  in  Lucas  v.  Le  Compte, 
42  111.  303. 

What  Constitutes  an  Account. — It  seems 
that  the  term  account  has  no  very 
clearly  defined  legal  meaning.  The 
primary  idea  conveyed  by  it  is  some 
matter  of  debt,  or  a  demand  in  the  na- 
ture of  a  debt,  arising  out  of  contract. 
Thus  rent  after  it  is  due  is  the  subject 
of  an  account.  Watson  v.  Penn,  108 
Ind.  25  ;  Nelson  v.  Posey  County,  105 
Ind.  287. 

An  itemized  claim  by  a  county  clerk 
for  extra  services  is  an  account.  Nel- 
son V.  Posey  County,  105  Ind.  287. 
But  it  must  be  continuous.  An  inter- 
ruption of  two  years  between  items 
was  held  to  deprive  the  items  of  the 
quality  of  an  account.  Tucker  v. 
Quimby,  37  Iowa  18. 

It  has  been  held  that  a  "  running 
account  "  must  consist  of  items  on  both 
sides.  Leonard  v.  U.  S.,  18  Ct.  of  CI. 
385.  See  Oliver  v.  Holt,  11  Ala.  574; 
Bartels  v.  Schell,  16  Fed.  Rep.  341  ; 
Hennequin  v.  Barney,  24  Fed.  Rep. 
580;  Baird  v.  U.  S.,  96  U.  S.  430  ;  Pin- 
ney  v,  Barnes,  17  Conn.  420;  Bunnel  v. 
Pinto,  2  Conn.  433;  Kansas  City  Hotel 
Co,  V.  Sigement,  53  Mo.  176;  Butler  v. 


Kirby,  53  Wis.  188  ;  Rex  v.  Hereford- 
shire, I  B.  &  Ad.  672. 

But  there  must  be  either  an  express 
contract,  or  the  circumstances  must  be 
such  as  to  raise  an  implied  contract, 
embracing  all  the  items,  to  make  them, 
where  they  arise  at  different  times,  a 
single  or  entire  demand  or  account. 
Secor  V.  Sturgis,  16  N.  Y.  548. 

Probably  the  best  test  of  an  account 
is,  were  the  dealings  continuous  ?  Ma- 
gruder  v.  Randolph,  77  N.  Car.  79; 
Waldo  V.  Jolly,  4  Jones  (N.  Car.)  173  ; 
Caldwell  v.  Beatty,  69  N.  Car.  365. 
See  Lucas  v.  Le  Compte,  42  111.  303  ; 
Shaw  V.  Beers,  25  Ala.  449  ;  Oliver  v. 
Holt,  II  Ala.  524;  Pittman  v.  Chrisman, 
59  Miss.  124 ;  Grayson  v.  Williams, 
Walker  (Mis's.)  298;  Ammons  v.  White- 
head, 31  Miss.  99;  Ash  V.  Lee,  51  Miss. 
101  ;  Scofield  v.  Pensons,  26  Miss.  402; 
Mobile,  etc.,  R.  Co.  z/.  State,  51  Miss. 
137- 

Credit. — Where  credit  is  given  on 
some  of  the  items  of  a  running  account, 
such  items  need  not  be  included  in  a 
suit  for  other  items  due.  McLaughlin 
V.  Hill,  6  Vt.  20;  Zimmerman  v.  Er- 
hard,  83  N.  Y.  74. 

Separate  Accounts. — There  may  be 
two  or  more  running  accounts  in  favor 
of  one  party  against  another  which 
might  be  the  subject  of  separate 
suits.  Secor  v.  Sturgis,  16  N.  Y.  548. 
This  case  is  a  leading  one  on  the 
subject  of  splitting  the  causes  of 
action.  The  facts  were  that  the 
business  of  ship-carpenters  was  car- 
ried on  in  one  part  of  a  building,  under 
the  direction  of  two  of  the  partners  of 
a  firm,  and  the  business  of  ship-chan- 
dlers in  another  part  of  the  same  build- 
ing, under  the  direction  of  a  third 
partner.  Separate  books  of  account 
were  kept.  Work  was  done  from  the 
carpentry  branch  in  repairing  a  brig, 
and  goods  of  ship-chandlery  were  fur- 
nished to  the  same  brig.  It  was  held 
that  the  two  accounts  formed  two 
causes  of  action.  Corby  v.  Taylor,  35 
Mo.  447;  Beck  V.  Devereaux,  9  Neb. 
109. 

But  the  presumption  is  that  the  ac- 
counts are  all  one.  Barngesser  z/.  Har- 
rison, 12  Wis.  544.  See  Ranney  v. 
Higby,  12  Wis.  62. 

May  Sue  for  Less. — But  an  account  is 
not  so  far  treated  as  an  entire  demand 
that  a  creditor  is  compelled  to  sue  for 


154 


Splitting  Caases  of  Action. 


ACTIONS. 


Specific  Contracts. 


tions  can  be  brought  as  each  Hability  accrues.^  Yet,  if  no  action 
is  brought  until  more  than  one  is  due,  all  that  are  due  must  be  in- 
cluded in  one  action  ;  and  if  an  action  is  brought  when  more 
than  one  is  due,  a  recovery  in  that  suit  will  be  an  effectual  bar  to 
a  second  action,  brought  to  recover  the  other  claims  that  were 
due  when  the  first  was  brought.* 

d.  Rent. — Instalments  of  rent  are  subject  to  the  same  rule  as 
are  other  instalments  of  money  due.  An  action  may  be  brought 
as  each  instalment  falls  due,  but  all  instalments  due  are  but  one 
cause  of  action.^ 


the  whole  of  it  against  his  wishes.  He 
may  sue  for  a  part,  but  of  course  this 
bars  a  recovery  on  the  residue.  Corey 
V.  Miller,  12  R.  I.  337;  Guernsey  v. 
Carver,  8  Wend.  (N.  Y.)  492  ;  Bender- 
nagle  v.  Cocks,  19  Wend.  (N.  Y.)  207  ; 
Barngesser  v.  Harrison,  12  Wis.  544. 

Massachusetts. — In  Massachusetts  it  is 
held  that  a  running  account  for  goods 
sold,  money  lent,  or  money  paid  at  dif- 
ferent times  is  not  an  entire  demand 
incapable  of  being  divided  for  the  pur- 
pose of  bringing  separate  suits,  unless 
there  be  an  agreement  to  that  effect. 
Badger  z/.Titcomb,  15  Pick. (Mass.) 409. 
But  see  this  case  severely  criticised 
in  Barngesser  v.  Harrison,  12  Wis.  611. 

North  Carolina.  —  In  North  Carolina 
an  account  may  be  split  for  the  pur- 
pose of  giving  jurisdiction  to  a  justice 
of  the  peace.  Caldwell  v.  Beatty,  69 
N.  Car.  365.  See  also  Waldo  v.  Jolly, 
4  Jones  (N.  Car.)  173;  McCasten  v. 
Quinn,  4  Ired.  (N.  Car.)  43  ;  Green  v. 
Caldcleugh,  i  Dev.  &  B.  (N.  Car.)  320; 
Person  v.  State  Bank,  4  Hawks  (N. Car.) 
295  ;  Buie  v.  Kelly,  7  Jones  (N.  Car.) 
266;  Boyle  V.  Robbins,  71  N.  Car.  130; 
Kearns  v.  Heitman,  104  N.  Car.  332. 

1.  Reformed,  etc..  Church  v.  Brown, 
54  Barb.  (N.  Y.)  191;  Sterner  ».  Gower, 
3  W.  &  S.  (Pa.)  136  ;  Miller  y.  Union 
Switch,  etc.,  Co.  (Supreme  Ct.),  13  N. 
Y.  Supp.  711;  Stowell  z/.  Chamberlain. 
60  N.  Y.  272;  Gardner  v.  Patten  (C. 
PL),  15  N.  Y.  Supp.  324:  Union  R., 
etc.,  Co.  V.  Traube,  59  Mo.  355;  Ryall 
V.  Prince,  82  Ala.  264;  Wilkinson  v. 
Black,  80  Ala.  329;  Strauss  v.  Meertief, 
64  Ala.  299;  Davis  v.  Preston,  6  Ala. 
83;  Robbins  v.  Harrison,  31  Ala.  160; 
Herrin  v.  Buckelew,  37  Ala.  585; 
Oliver  v.  Holt,  11  Ala.  574. 

With  respect  to  instalments  of 
money  due  at  successive  days  under 
the  same  contract,  a  difference  was 
taken  at  early  common  law,  that  if  the 
action  w^ere  debt,  it  must  be  brought 


for  the  whole.  Rudder  v.  Price,  i  H. 
Bl.  556;  Badger  v.  Titcomb,  15  Pick. 
(Mass.)4i5,  But  if  it  were  covenant  or 
assumpsit,  the  action  might  be  for 
each  instalment  as  it  fell  due.  Cooke 
V.  Whorwood,  2  Saund.  337;  Ashford 
V.  Hand,  Andr.  370;  Badger  v.  Tit- 
comb,  15  Pick.  (Mass.)  419. 

Assignment.  —  An  assignee,  under 
separate  and  distinct  assignments  of 
different  instalments  of  royalties,  for 
distinct  periods  of  time,  under  a  con- 
tract, may  maintain  separate  actions 
for  such  separate  instalments.  Miller 
V.  Union  Switch,  etc.,  Co.  (Supreme 
Ct.),  13  N.  Y.  Supp.  711. 

2.  Reformed,  etc.,  Church i/.  Brown, 
54  Barb.  (N.  Y.)  191;  Union  R.,  etc., 
Co.  V.  Traube,  59  Mo.  355;  Nickerson 
V.  Rockwell,  90  111.  460. 

Contra. — Sterner  v.  Gower,  3  W.  & 
S.  (Pa.)  136. 

Divisible  Contract. — The  rule  that  all 
instalments  of  money  due  upon  a  con- 
tract must  be  embraced  in  one  suit  is 
not  applicable  where  there  has  been 
an  adjudication  in  a  prior  action  be- 
tween the  same  parties  on  the  same 
contract,  to  the  effect  that  the  contract 
is  divisible  in  respect  to  the  several 
instalments.  Lorillard  v.  Clyde,  122 
N.  Y.  41.  See  Beach  v.  Grain,  2  N. 
Y.  86. 

3.  Love  V.  Waltz,  7  Cal.  250;  Under- 
bill V.  Collins  (Supreme  Ct.),  39  N. 
Y.  St.  Rep.  795;  Smith  z/.  Dittenhoefer, 
I  Rob.  C.  C.  (N.  Y.)  143;  Hopf  v. 
Myers,  42  Barb.  (N.  Y.)  270;  Jex  v. 
Jacob,  19  Hun  (N.  Y.)  105  ;  Reformed, 
etc.,  Church  v.  Brown,  54  Barb.  (N.  Y.) 
191  ;  Warren  v.  Comings,  6  Cush. 
(Mass.)  103;  Jarrett  v.  Self,  90  N.  Car. 
478;  Caldwell  v.  Beatty,  69  N.  Car.  365; 
Boyle  z/.  Robbins,  71  N.  Car.  130;  Cooke 
V.  Whorwood,  2  Saund.  337  ;  Ashford 
v:  Hand,  Andr.  370:  Burritt  v.  Belfy, 
47  Conn.  323  ;  Moore  v.  Nowell,  94  N. 
Car.  265;  Magruder  v.   Randolph,  77 


15s 


Splitting  Causes  of  Action. 


ACTIONS. 


Specific  Contracts. 


e.  Notes. — Each  separate  promissory  note  constitutes  a  cause 
of  action.  Where  several  notes  are  given  at  one  time  and  as  part 
of  the  same  transaction,  they  may  be  sued  on  separately.  There 
is  no  obligation  on  the  holder  to  include  in  one  suit  all  the  notes 
due.* 

f.  Judgments. — A  judgment  is  a  contract,  within  the  meaning 
of  the  rule  against  splitting  a  cause  of  action.  If  suit  is  brought 
upon  it,  it  must  include  all  that  is  due  thereon,  including  costs.* 


N.  Car.  79;  Shepherd  v.  Willis,  19 
Ohio  147;  Thayer  v.  Brooks,  17  Ohio 
489  ;  Lucas  v.  Le  Compte,  42  111.  303; 
Rosenmueller  v.  Lampe,  89  111.  212; 
Nickerson  v.  Rockwell,  90  111.  460;  Cas- 
selberry  v.  Farquer,  27  111.  170. 

A  recovery  of  double  rent,  under 
the  terms  of  the  lease,  for  holding 
over  one  month  is  a  bar  to  a  recovery, 
under  the  same  covenant,  for  a  second 
month.  Kerr  v.  Simmons,  9  Mo. 
App.  376. 

But  where  four  suits  were  instituted 
simultaneously  for  instalments  of 
rent,  and  were  practically  tried  as  one, 
and  the  defendant  made  no  objection 
to  their  severance,  he  was  held  to 
have  waived  the  objection.  Fox  v. 
Althorp,  40  Ohio  St.  322.  See  Schu- 
richt  V.  Broad  well,  4  Mo.  App.  160. 

Separate  Leases. — But  where  the  rent- 
ing takes  place  under  separate  leases, 
as  where  a  lease  expires  and  a  new 
one  is  made,  the  rents  due  under 
the  two  leases  are  separate  causes  of 
action.  McLendon  v.  Pass,  66  Miss, 
no.  See  Grayson  «/.  Williams,  Walker 
(Miss.)  298;  Ash  V.  Lee,  51  Miss.  loi; 
Pittman  v.  Chrisman,  59  Miss.  124; 
Mobile,  etc.,  R.  Co.  v.  State,  51  Miss. 
137. 

Illinois. — In  Illinois  it  is  held  that 
where  a  lease  provides  for  the  pay- 
ment of  a  given  sum  annually,  sepa- 
rate actions  may  be  brought  upon  the 
lease  for  each  year's  rent;  and  if,  when 
suit  is  brought  for  one  year's  rent,  the 
rent  on  the  following  year  is  then  due, 
a  judgment  for  the  first  is  no  bar  to  a 
second  action  for  the  rent  of  the  sub- 
sequent year.  McDole  v.  McDole, 
106  111.  452.  Compare  Dulaney  v. 
Payne,  loi  111.  325;  Wehrly  v.  Mar- 
foot,  103  111.  185. 

1.  Williams  v.  Kitchen,  40  Mo.  App. 
604  ;  Nathans  v.  Hope,  77  N.  Y.  420  ; 
Eastman  v.  Cooper,  15  Pick.  (Mass.) 
276  ;  Perry  v.  Harrington,  2  Met. 
(Mass.)  368  ;  Crousez'.  Holman,  19  Ind. 
30  ;  Bliss  V.  Weil,  14  Wis.  38. 

The  holder  of  a  note  cannot  split  it 


to  give  jurisdiction  to  a  justice.     Wil- 
lard  V.  Sperry,  16  Johns.  (N.  Y.)  121. 

But  see  Conklin  v.  Field,  37  How. 
Pr.  (N.  Y.)  455,  where  it  was  held  that 
the  fact  that  a  party  has  sued  for  a  part 
of  a  promissory  note  and  recovered, 
supposing  at  the  time  that  the  remain- 
der had  been  paid,  does  not  preclude 
him  afterwards,  on  discovering  that 
the  remainder  has  not  been  paid,  from 
maintaining  an  action  to  recover  it. 

2.  Camp  V.  Morgan,  21  111.  255  ; 
Ross  V.  Weber,  26  111.  221  ;  Clayes  v. 
White,  83  111.  540. 

A  judgment  which  charges  an  an- 
nuity on  land  is  severable,  and  an 
action  may  be  brought  on  each  instal- 
ment. Priest  V.  Deaver,  22  Mo.  App. 
276. 

Creditor's  Bill. — A  creditor's  bill  only 
states  one  cause  of  action,  although 
seeking  relief  on  two  judgments.  Ja- 
cot  V.  Boyle,  18  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  106. 

Error  in  Entry — A  judgment  is  so  far 
entire  that  an  error  in  entering  up  the 
proper  amount  due,  and  the  omission 
of  items  in  it,  bars  a  suit  on  such 
items.     Town  v.  Smith,  14  Mich.  347. 

Assignment. — A  judgment  is  inca- 
pable of  being  divided  by  assignment. 
Hopkins  v.  Stockdale,  117  Pa.  St.  365. 

And  when  a  judgment  has  been  as- 
signed to  several  persons,  each  owner 
of  a  part  thereof  cannot  have  his  sep- 
arate sci.  fa.  to  revive.  Dietrich's  Ap- 
peal, 107  Pa.  St.  175.  Hopkins  v. 
Stockdale,  117  Pa.  St.  365  ;  Arrison  v. 
Com.,  I  Watts  Pa.  374.  Compare  Pe- 
terson V.  Lothrop,  34  Pa.  St.  223,  where 
the  judgment  was  conditioned  for  the 
payment  of  different  sums  to  different 
persons  at  different  times. 

But  see  Eldred  v.  Hazelett,  38  Pa. 
St.  16,  where  it  is  held  that  the  revival 
of  a  judgment  by  scire  facias  is  but  a 
continuation  of  it,  and  is  a  distinct 
action  in  form  only.  Under  this  rul- 
ing there  would  appear  to  be  no  ob- 
jection to  allowing  a  part  owner  to 
revive. 


Splitting  Causes  of  Action. 


ACTIONS. 


Specific  Coutracts. 


g.  Services. — There  can  be  no  recovery  in  two  suits  for  ser- 
vices of  the  same  character,  rendered  within  the  same  period  of 
time*. 

Servant  Wrongfully  Discharged. — A  judgment  in  an  action  of  dam- 
ages for  wrongful  discliarge  from  employment  before  the  ex- 
piration of  the  term  of  servioe  is  not  a  bar  to  a  subsequent  action 
for  wages  earned  and  due  before  the  discharge.* 

h.  Insurance  Policies. — There  can  be  no  sphtting  of  causes 
of  action  on  a  single  insurance  policy.  Whoever  sues  must  be 
able  to  enforce  the  whole  of  it.* 

i.  Interest. — The  promise  to  pay  interest  is  a  distinct  cause 


1.  Green  v.  Von  der  Ahe,    36    Mo. 

App.  394- 

Where  a  party  was  employed  by  the 
trustees  of  a  church  to  perform  certain 
services  for  one  year  for  a  fixed  com- 
pensation, and  afterwards  performed 
similar  services  in  the  next  year  at  the 
request  of  the  priest,  on  the  promise 
of  the  same  compensation,  it  was  held 
that  there  was  only  one  cause  of  action 
for  all  the  services  so  rendered.  Ro- 
senmueller  v.  Lampe,  89  111.  212. 

Distinct  Contracts. — But  services  per- 
formed at  different  times  under  dis- 
tinct contracts  are  separate  causes  of 
action.  Phillips  v.  Berick,  16  Johns. 
(N.  Y.)  136. 

2.  Perry  z-.  Dickerson,  85  N.  Y.  345  ; 
Butler  V.  Rice,  17  Hun  (N.  Y.)  406  ; 
Hartley  v.  Harman,  11  Ad.  &  El.  798, 
39  E.  C.  L.  231. 

Compare  Goodman  v.  Pocock,  15  Q. 
B.  576,  69  E.  C.  L.  574 ;  Brodar  v. 
Lord,  46  N.  Y.  Super.  Ct.  205  ;  Col- 
burn  V.  Woodworth,  31  Barb.  (N.  Y.) 
381  ;  Howard  v.  Daly,  61  N.  Y.  362  ; 
Booze  V.  Pacific  R.  Co.,  33  Mo.  212  ; 
Soursin  v.  Salorgne,  14  Mo.  App.  486. 

Wages  Paid. — But  where  an  employ^ 
engaged  under  a  contract  for  a  speci- 
fied time,  the  wages  being  payable  in 
instalments,  is  wrongfully  discharged 
before  the  expiration  of  the  period  of 
hire,  and  all  wages  actually  earned  at 
the  time  of  the  discharge  have  been 
paid,  an  action  will  not  lie  to  recover 
the  future  instalments,  the  remedy  is 
an  action  for  the  wrongful  discharge. 
James  v.  Allen  County,  44  Ohio  St. 
226;  Moody  z/.  Leverick,  14  Abb.  Pr. 
N.  S.  (N.  Y.  C.  PI.)  145  ;  Moody  v. 
Leverick,  4  Daly  (N.  Y.)  401  ;  Howard 
V.  Daly,  61  N.  Y.  362  ;  Archard  v. 
Hornor,  3  C.  &  P.  349,  14  E.  C.  L. 
342  ;  Smith  v.  Hayward,  7  Ad.  &  El. 
544,  34  E.  C.  L.  154  ;  Goodman  v.  Po- 
cock, 15  Q.  B.   576  ;  69  E.   C.   L.   574  ; 


Beckham  v.  Drake,  2  H.  L.  Cas.  606  ; 
Emmens  v.  Elderton,  4  H.  L.  Cas.  624  ; 
Clossman  v.  Lacoste,  28  Eng.  L.  &  Eq. 
140  ;  Chamberlin  v.  Morgan,  68  Pa.  St. 
168  ;  Willoughby  v.  Thomas,  24  Gratt. 
(Va.)  522;  Whitaker  v.  Sandifer,  i  Duv. 
(Ky.)  261  ;  Chamberlin  v.  McCalis- 
ter,  6  Dana  (Ky.)  352  ;  Miller  v.  God- 
dard,  34  Me.  102. 

Contra. — The  servant,  under  the  doc- 
rine  of  "constructive  service,"  may 
hold  himself  in  readiness  to  perform, 
and  recover  his  instalments  of  wages 
as  they  fall  due.  Gandell  z/.  Pontigny, 
4  Camp.  375  ;  Hartley  v.  Harman,  11 
Ad.  &  El.  498,  39  E.  C.  L.  231  ;  Cut- 
ter V.  Powell,  2  Smith's  Leading  Cas. 
part  I  ;  Huntington  v.  Ogdensburgh, 
etc.,  R.  Co.,  7  Amer.  Law  Reg.  N.  S. 
143  ;  Thompson  v.  Wood,  i  Hilt.  (N. 
Y.)  96  ;  Heim  v.  Wolf,  i  E.  D.  Smith 
(N.  Y.)  70;  Strauss  v.  Meertief,  64 
Ala.  299  ;  Davis  v.  Ayres,  9  Ala.  292  ; 
Ramey  v.  Holcombe,  21  Ala.  567  ; 
Fowler  v.  Armour,  24  Ala.  194  ;  Davis 
V.  Preston,  6  Ala.  83  ;  Hamlin  z/.Race, 
78  111.  422  ;  Armfield  v.  Nash,  31  Miss. 
361. 

3.  Hartford  F.  Ins.  Co.  v.  Daven- 
port, 37  Mich.  609. 

In  Equity. — But  where  each  of  sev- 
eral persons  assured  by  the  same 
policy  have  distinct  insurable  inter- 
ests, they  can  enforce  their  rights 
under  the  policy  in  equity  if  they  can- 
not at  law.  Mercantile  Ins.  Co.  v.  Hol- 
thaus,  43  Mich.  423;  Watertown  F.  Ins. 
Co.  V.  Grover,  etc..  Sewing  Mach.  Co. 
41  Mich.  131;  Fire  Ins.  Co.  v.  Felrath, 
77  Ala.  194  ;  North  Western  Mut.  L. 
Ins.  Co.  V.  Germania  F.  Ins.  Co.  40 
Wis.  446;  Hammil  v.  Queen  Ins.  Co., 
50  Wis.  240.;  State  Ins.  Co.  v.  Maack- 
ens,  38  N.  J.  L.  564;  Stearns  v.  Quincy 
Mut.  F.  Ins.  Co.,  124  Mass.  64;  Thatch 
V.  Metropole  Ins.  Co.,  11  Fed.  Rep. 
29. 


157 


Splitting  Causes  of  Action. 


ACTIONS. 


Specific  Contracts. 


of  action  from  the  promise  to  pay  the  principal.  Each  promise 
constitutes  a  distinct  cause  of  action.* 

j.  Assignments. — A  cause  of  action  arising  upon  a  contract 
which  is  an  entirety  cannot  be  severed  by  means  of  partial  assign- 
ments.'-* 

k.  Collateral  Securities. — Where  a  suit  is  brought  on  col- 
lateral securities,  this  does  not  preclude  one  on  the  obligation 
itself.  The  collateral  security  constitutes  a  different  contract 
from  the  debt  itself.* 

I.  Fraud. — Where  there  is  fraud  practiced  in  obtaining  a  contract, 
there  are  two  causes  of  action,  one  for  the  fraud  and  one  on  the 
contract.^ 


1.  Dulaney  v.  Payne,  loi  111.  325; 
Walker  v.  Kimball,  22  111.  537;  Good- 
win V.  Goodwin,  65  111.  497;  Wehrly 
V.  Morfoot,  103  111.  183;  Andover 
Bank  v.  Adams,  i  Allen  (Mass.)  28; 
Sparhawk  v.  Wills,  6  Gray  (Mass.) 
163. 

Instalments  Due. — But  after  the  prin- 
cipal becomes  due,  the  unpaid  instal- 
ments of  interest  become  merged  in 
the  principal,  and  must  be  sued  for  if 
the  principal  is.  Parsons  on  Con., 
vol.  2,  636.  Howe  V.  Bradley,  19  Me. 
31;  Matthias  v.  Cook,  31  111.  83. 

2.  Chicago  R.  Co.  v.  Nichols,  57  111. 
464;  Potter  V.  Groubeck,  117  111.  404; 
German  F.  Ins.  Co.  v.  Bullene,  51 
Kan.  764;  Dolbeer  v.  Stout  (Super. 
Ct.),  19  N.  Y.  Supp.  820;  Gardner 
V.  Patten  (C.  PL),  15  N,  Y.  Supp. 
324;  Mills  V.  Garrison,  42  N.  Y. 
40.  Compare  Mandeville  v.  Welch,  5 
Wheat.  (U.  S.)  277;  Thatch  v.  Metro- 
pole  Ins.  Co.,  II  Fed.  Rep.  29;  Stearns 
V.  Quincy  Mut.  F.  Ins.  Co.,  124  Mass. 
64;  Fire  Ins.  Co.  v.  Felrath,  77  Ala. 
194;  Hartford  F.  Ins.  Co.  v.  Daven- 
port, 37  Mich.  609. 

Subrogation. — Where  an  insurance 
company,  on  payment  of  a  portion  of 
the  loss  sustained  by  reason  of  the 
destruction  of  the  insured  property, 
caused,  as  claimed  by  the  insured,  by 
the  negligence  of  a  third  person,  is 
subrogated  to  a  proportionate  amount 
of  the  claim  of  the  insured  against 
said  third  person,  the  company  cannot 
maintain  an  action  to  recover  the  por- 
tion of  the  claim  covered  by  the  sub- 
rogation. Continental  Ins.  Co.  v. 
Loud  &  Sons'    Lumber  Co.,  93  Mich. 

139- 

Parties. — A  complaint  on  an  assign- 
ment of  part  of  an  entire  demand 
should  make  the  other  holders  parties, 
and  if  not  it  is  demurrable  for  want  of 


parties.  Grain  v.  Aldrich,  38  Cal.  514. 
See  Hassie  v.  G.  I.  W.  U.  Congrega- 
tion, 35  Cal.  378;  Thomas  v.  Rock 
Island,  etc.,  Co.,  54  Cal.  578. 

Who  Can  Object. — While  the  creditor 
has  not  a  right  to  assign  the  debt  in 
parcels,  still  no  person  but  the  debtor 
can  object.     Marzion  v.  Pioche,  8  Cal. 

536- 

3.  Drake  v.  Mitchell,  3  East  251; 
Sykes  v.  Gerber,  98  Pa.  St.  179; 
White  V.  Smith,  33  Pa.  186;  McCul- 
lough  V.  Hellman,  8  Oregon,  192; 
Fisher  v.  Fisher,  98  Mass.  303;  Howell 
V.  McCracken,  87  N.  Car.  399;  Fair- 
child  V.  Holly,  10  Conn.  474. 

The  agreement  to  procure  an  in- 
dorser  is  a  different  contract  from  the 
note  itself.  Vanuxem  v.  Burr,  151 
Mass.  386. 

Where  the  creditor  consumes  the 
goods  given  as  collateral  security,  this 
constitutes  a  defense  to  an  action  on 
the  debt;  but  if  the  debtor  sets  this  up 
in  an  action  on  the  debt,  he  is  pre- 
cluded from  suing  the  creditor  for  the 
goods  so  consumed.  Simes  v.  Zane, 
24  Pa.  St.  242. 

Liens. — But  the  lien  for  a  debt  is  a 
part  of  it.  Kittridge  v.  Stevens,  16 
Cal.  381.  See  Gray  v.  Dougherty,  25 
Cal.  266;  Bacon  v.  Raybauld,  4  Utah 
357- 

The  right  to  foreclose  a  mortgage 
and  the  causes  of  action  for  instal- 
ments of  interest  are  separate.  Pope 
V.  Durant,  26  Iowa  233. 

Guaranty. — Where  a  guarantor  is 
liable,  under  his  contract,  for  attor- 
ney's fees,  they  must  be  included  in 
the  action  on  the  guaranty.  Abbott 
V.  Brown,  131  111.  108. 

4.  Morgan  v.  Skidmore,  3  Abb.  N.Cas. 
(N.  Y.  Ct.  App.)  92;  Goldberg  v.  Dough- 
erty, 39  N.  Y.  Super.  Ct.  189;  Calkins 
V.  Smith,  48  N.  Y.  614  ;  Bruce  v.  Kelly, 


158 


Splitting  Causes  of  Action. 


ACTIONS. 


Torts. 


6.  Torts — A  single  wrong  gives  only  one  cause  of  action,  no  matter 
how  numerous  the  items  of  damage  may  be.  Damages  resulting 
from  one  and  the  same  cause  of  action  must  be  assessed  and  re- 
covered once  for  all.* 

While  the  principle  is  well  settled,  the  great  difficulty  consists 
in  its  application,  for  the  same  wrongful  act  may  give  rise  to  two 
or  more  causes  of  action.* 


5  Hun  (N.  Y.)  229;  Lattin  v.  McCarty, 
41  N.  Y.  107  ;  Morgan  v.  Powers,  66 
Barb.  (N.  Y.)  35;  Gutchess  v.  Whiting, 
46  Barb.  (N.  Y.)  139  ;  Wanzer  v.  De 
Baun,  I  E.  D.  Smith  (N.  Y.)  291;  Paige 
V.  Wilson,  8  Bosw.  (N.  Y.)  294. 

1.  Brunsden  v.  Humphrey,  14  Q.  B. 
Div.  141;  Secor  v.  Sturgis,  16  N.  Y.  548; 
Filer  v.  New  York  Cent.  R.  Co.,  49  N. 
Y.  42  ;  Porter  v.  Cobb,  22  Hun  (N.  Y.) 
278;  Law  V.  McDonald,  62  How.  Pr.  (N. 
Y.  Supreme  Ct.)  340  ;  Wichita,  etc.,  R. 
Co.  V.  Beebe,  39  Kan.  465;  Whitaker  v. 
Hawley,  30  Kan.  317;  Saline  County  v. 
Bondi,  23  Kan.  119;  Madden  v.  Smith, 
28  Kan.  798  ;  Brannenburg  v.  Indian- 
apolis, etc.,  R.  Co.,  13  Ind.  103;  Lafay- 
ette V.  Nagle,  113  Ind.  425  ;  Folsom  v. 
Clemence,  119  Mass.  473  ;  Warren  v. 
Comings,  6  Cush.  (Mass.)  103;  Marble 
V.  Keyes,  9  Gray  (Mass.)  221;  Bennett 
V.  Hood,  I  Allen  (Mass.)  47  ;  Trask  v. 
Hartford,  etc.,  R.  Co.,  2  Allen  (Mass.) 
33;  Knowlton  v.  New  York,  etc.,  R.  Co., 
147  Mass.  606;  Hempstead  v.  Des 
Moines,  63  Iowa  36;  Herriter  v.  Porter, 
23  Cal.  385  ;  Morey  v.  King,  51  Vt.  383; 
Whitney  v.  Clarendon,  18  Vt.  253;  Mil- 
roy  V.  Spurr  Mt.  Iron  Min.  Co.,  43 
Mich.  231;  Thompson  v.  Ellsworth,  39 
Mich.  719;  South  &  North  Ala.  R.  Co. 
V.  Henlein,  56  Ala.  368  ;  Pierro  v.  St. 
Paul,  etc.,  R.  Co.,  39Minn.  451;  Hite  v. 
Long,  6  Rand.  (Va.)  457;  Pucket  v.  St. 
Louis,  etc.,  R.  Co.,  25  Mo.  App.  650; 
Steiglider  v.  Missouri  Pac.  R.  Co.,  38 
Mo.  App.  511;  Baird  v.  U.  S.,  96  U.  S. 
430.  Compare  Burrell  v.  New  York, 
etc..  Salt  Co.,  14  Mich.  34;  Sheahan  v. 
Barry,  27  Mich.  217;  Allison  v.  Chan- 
dler, II  Mich.  542;  Scripps  v.  Reilly,  38 
Mich.  10;  Tefft  z/.  Windsor,  17  Mich.  486; 
Ferrer's  Case,  6  Coke  9;  Sparry's  Case, 
5  Coke  61  ;  Higgins'  Case,  6  Coke  45  ; 
Hudson  z/.  Lee,  4  Coke  43;  Bird  z/.  Ran- 
dall,3  Burr.  1345;  Phillips  v.  Berryman, 
3  Dougl.  287;  Hitchin  v.  Campbell,  2  W. 
Bl.  827;  Martin  v.  Kennedy,  2  B.  &  P. 
71  ;  Seddon  v.  Tutop,  6  T.  R.  607  ; 
Thorpe  v.  Cooper,  5  Bing.  116,  15  E. 
C.  L.  387;  Fetter  v.  Beale,  i  Ld.  Raym. 
339  ;  Embrey  v.  Owen,  6  Exch.   353  ; 


Williams  v.  Morland,  2  B.  &  C.  910,  9 
E.  C.  L.  269  ;  Fay  v.  Prentice,  i  C.  B. 
835,  50  E.  C.  L.  834;  Nelson  v.  Couch, 
15  C.  B.  (N.  S.)  99,  109  E.  C.  L.  99; 
Hodsoll  V.  Stallebrass,  11  Ad.  &  El. 
301,  39  E.  C.  L.  94 ;  Lamb  v.  Walker,  3 
Q.  B.  Div.  389. 

A  single  act  can  only  give  a  single 
cause  of  action,  even  when  it  is  of 
such  a  nature  that  it  may  be  treated 
either  as  a  breach  of  contract  or  a  duty 
imposed  by  law.  Fern  v.  Vanderbilt, 
13  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  72. 
See  Smith  v.  Way,  9  Allen  (Mass.)  472; 
Bennett  v.  Hood,  i  Allen  (Mass.)  47  ; 
Eastman  v.  Cooper,  15  Pick.  (Mass.) 
285;  Norton  v.  Doherty,  3  Gray  (Mass.) 
372  ;  Burnett  v.  Smith,  4  Gray  (Mass.) 
50;  Warren  v.  Comings,  6  Cush.  (Mass.) 
103. 

But  the  same  tort  may  give  causes 
of  action  to  different  persons.  Tay- 
lor V.  Manhattan  R.  Co.  (Supreme 
Ct.),  6  N.  Y.  Supp.  488  ;  Wilton  v.  Mid- 
dlesex R.  Co.,  125  Mass.  130  ;  Karr  v. 
Parks.  44  Cal.  46;  Bradley  v.  Andrews, 
51  Vt.  525.  Compare  McReynolds  v. 
Kansas  City,  etc.,  R.  Co.,  34  Mo.  App. 
5S1. 

2.  The  Test  to  be  Applied  to  determine 
whether  there  is  more  than  one  cause 
of  action,  where  damages  have  been  in- 
flicted by  one  wrongful  act,  is,  is  the 
injury  occasioned  an  infringement  of 
different  rights?  If  it  is,  there  areas 
many  rights  of  action  as  separate 
rights  infringed.  Brunsden  v.  Hum- 
phrey, 14  Q.  B.  Div.  141. 

The  above  case  is  a  leading  one. 
The  plaintiff  brought  an  action  in  a 
county  court  for  damage  to  his  cab 
occasioned  by  the  negligence  of  the  de- 
fendant's servant,  and,  having  recov- 
ered the  amount  claimed,  afterwards 
brought  an  action  in  the  High  Court  of 
justice  against  the  defendant,  claiming 
damages  for  personal  injury  sustained 
by  the  plaintiff  through  the  same  neg- 
ligence. Held,  by  Brett,  M.R.,  and 
Bowen,  L.J.,  that  the  action  in  the 
High  Court  was  maintainable,  and  was 
not  barred  by  the  previous  proceeding 


^59 


Splitting  Causes  of  Action. 


ACTIONS. 


Torts. 


But,  as  a  general  rule,  it  may  be  said  that  if  separate  rights  are 
not  infringed,  a  single  tortious  act,  or  a  series  of  them  all  done  at 
one  time,  constitute  only  one  cause  of  action.* 

Fraud.— A  fraud  cannot  be  separated  into  two  causes  of  action  ; 
it  is  an  entirety.* 


in  the  county  court.  Lord  Coleridge 
dissented.  In  his  dissenting  opinion 
he  used  this  language  :  "  But  it  seems 
to  me  a  subtlety  not  warranted  by  law 
to  hold  that  a  man  cannot  bring  two 
actions  if  he  is  injured  in  his  arm  and 
in  his  leg,  but  can  bring  two  if  besides 
his  arm  and  leg  being  injured  his 
trousers,  which  contain  his  leg,  and 
his  coat-sleeve,  which  contains  his  arm, 
have  been  torn.  The  consequences  of 
holding  this  are  so  serious  and  may  be 
very  properly  so  oppressive  that  I  at 
last  must  respectfully  dissent  f  rom  a 
judgment  which  establishes  it." 

See  the  case  of  Howe  v.  Peckham, 
lo  Barb.  (N.  Y.)  656,  which  recognizes 
the  distinction  between  the  infringe- 
ment of  separate  rights  by  one  wrong- 
ful act.  It  holds  that  where  an  injury 
has  resulted  both  to  the  person  and  the 
property  of  another,  from  an  act  of 
negligence  on  the  part  of  the  defend- 
ant, both  causes  of  action  may  be 
joined  in  the  same  complaint. 

1.  Where  two  detached  lots  of 
woodland  were  destroyed  by  fire  from 
a  locomotive,  there  was  held  only  one 
cause  of  action.  Knowlton  v.  New 
York,  etc.,  R.  Co.,  147  Mass.  606. 

And  all  buildings  burnt  by  one  negli- 
gent fire  must  be  included  in  one  ac- 
tion. Trask  v.  Hartford,  etc.,  R.  Co., 
2  Allen  (Mass.)  331. 

Where  two  horses  are  killed  by  the 
same  negligent  act,  the  recovery  for 
one  bars  recovery  for  other.  Brannen- 
burg  V.  Indianapolis,  etc.,  R.  Co.,  13 
Ind.  103. 

But  where  two  horses  go  upon  a 
railroad  track,  and  one  is  killed  at  a 
distance  of  30  rods  from  where  the 
other  was,  as  the  railroad  might  not 
have  been  guilty  of  negligence  in  kill- 
ing one,  and  yet  might  have  been  with 
reference  to  the  other,  the  suit  for 
the  value  of  one  horse  does  not  bar 
that  for  the  value  of  the  other.  Mis- 
souri Pac.  R.  Co.  V.  Scammon,4i  Kan. 
521.  See  Folsom  v.  Clemence,  119 
Mass.  473  ;  Goodrich  v.  Yale,  8  Allen 
(Mass.)  454;  Perley  v.  Eastern  R.  Co., 
98  Mass.  414;  Warner  z/.  Bacon,  8  Gray 
(Mass.)  397. 


Illegal  Discrimination  by  Common  Car- 
rier.— A  series  of  illegal  discrimina- 
tions by  a  common  carrier  at  different 
times  against  a  shipper  of  goods  con- 
stitutes but  one  cause  of  action.  Lang- 
don  V.  New  York,  etc.,  R.  Co.,  27  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  166. 

Same  Transaction. — But  the  mere 
fact  that  only  one  transaction  took 
place  does  not  necessarily  give  only 
one  cause  of  action.  Thus  the  recov- 
ery by  the  passenger  of  the  statutory 
penalty  for  an  illegal  overcharge  of 
fare  is  no  bar  to  a  suit  for  damages 
for  an  unlawful  ejection  from  the 
train.  St.  Louis  R.  Co.  v.  Trimble,  54 
Ark.  354. 

And  a  recovery  in  an  action  for  the 
hire  of  a  horse,  buggy,  and  harness 
is  not  a  bar  to  another  action  to  re- 
cover damages  for  injuries  done  to  the 
buggy  and  harness  while  in  the  pos- 
session of  the  bailee.  Shaw  v.  Beers, 
25  Ala.  449.  See  also  Oliver  v.  Holt, 
II  Ala.  574;  O'Neal  v.  Brown,  21  Ala. 
482;  Lenoir  v.  Wilson,  36  Ala.  600; 
Hyde  v.  Noble,  13  N.  H.  494;  Green- 
field V.  Wilson,  13  Gray  (Mass.)  384; 
Jones  V.  Oswald,  2  Bailey  (S.  Car.) 
214 

2.  Allison  V.  Connor,  36  Mich.  283. 
A  misrepresentation  by  the  purchaser 
of  a  horse,  as  to  the  balance  due  on  a 
promissory  note  transferred  by  him  to 
the  seller  in  part  payment  of  the  price, 
is  a  single  and  entire  cause  of  action. 
Berringer  v.  Payne,  68  Ala.  154. 

Creditor's  Bill. — A  creditor's  bill  can 
be  filed  against  several  persons  rela- 
tive to  matters  of  the  same  nature, 
forming  a  connected  series  of  acts,  all 
intended  to  defraud  and  injure  the 
plaintiff,  in  which  all  the  defendants 
were  more  or  less  concerned,  though 
not  jointly  in  each  act;  in  such  a  case 
there  is  only  a  single  cause  of  action. 
Graves  v.  Corbin,  132  U.  S.  571;  Ayers 
V.  Chicago,  loi  U.  S.  184;  Fidelity 
Ins.  Co.  V.  Huntington,  117  U.  S.  280; 
Louisville  R.  Co.  v.  Ide,  114  U.  S. 
52;  Putnam  v.  Ingraham,  114  U.  S. 
57;  Pirie  z/.  Tvedt,  115  U.  S.  41;  Starin 
V.  New  York  City,  115  U.  S.  248; 
Sloane   v.   Anderson,    117    U.    S.   275; 

60 


Splitting  Causes  of  Action. 


ACTIONS. 


Torts. 


\ 


Seizing  and  Converting  Chattels.— Where  a  tort  is  committed  by  the 
taking  at  one  time  of  several  chattels,  it  gives  but  one  cause  of 
action,  and  the  plaintiff  cannot  be  allowed  to  split  it  and  bring 
separate  suits  for  separate  articles.* 

Trespass. — All  acts  done  by  the  same  trespass  are  indivisible. 
They  must  all  be  included  in  one  action.* 

Assault  and  Battery- — Each  assault  and  battery  constitutes  a  distinct 
cause  of  action.-"* 

Plymouth  Min.  Co.  v.  Canador  Canal 
Co.,  ii8  U.  S.  264;  Little  v.  Giles,  118 
U.  S.  596;  East  Tennessee,  etc.,  R. 
Co.  V.  Grayson,  119  U.  S.  240;  Brooks 
V.  Clark,  119  U.  S.  502;  Laidly  v.  Hunt- 
ington, 121  U.  S.  179;  Peninsula  Iron 
Co.  V.  Stone,  121  U.  S.  631;  Thorn 
Wire  Hedge  Co.  v.  Fuller,  122  U.  S. 
535;  Young  V.  Parker,  132  U.  S.  267; 
Brinkerhoff  v.  Brown,  6  Johns.  Ch. 
(N.  Y.)  139;  Fellows  v.  Fellows,  4 
Cow.  (N.  Y.)  682;  New  York,  etc.,  R. 
Co.  V.  Schuyler,  17  N.  Y.  592. 

Distinct  Frauds. — But  separate  and 
distinct  frauds  give  separate  actions. 
Thus  where  separate  and  distinct  pur- 
chases are  fraudulently  made  on  differ- 
ent days,  a  separate  cause  of  action 
accrues  to  the  seller  for  the  damages, 
as  each  purchase  is  an  independent  act 
of  fraud.     Lee  v.  Kendall,  56  Hun  610. 

And  the  embezzling  of  separate 
sums  by  a  bank  cashier  constitutes 
separate  causes  of  action.  Phillips  v. 
Bossard,  35  Fed.  Rep  99;  Shook  v. 
Lyon  (C.  PI.),  34  N.  Y.  St.  Rep.  19. 
Compare  Gordon  v.  Hostetter,  37  N. 
Y.  gg;  Storm  v.  Livingston,  6  Johns. 
(N.  Y.)  44;  Eddy  v.  Smith,  13  Wend. 
(N.  Y.)  488;  Garr  v.  Martin,  20  N.  Y. 
306;  Byrnes  v.  Byrnes,  102  N.  Y.  4. 

1.  Farrington  v.  Payne,  15  Johns. 
(N.  Y.)  432;  Draper  v.  Stowneval,  38 
N.  Y.  219;  Herriter  v.  Porter,  23  Cal. 
385;  Cunningham  v.  Harris,  5  Cal. 
Si;  The  Kalamazoo,  9  Eng.  L.  &  Eq. 
558;  Marble  v.  Keyes,  9  Gray  (Mass.) 
221;  Folsom  V.  Clemence,  119  Mass. 
473;  Bennett  v.  Hood,  i  Allen  (Mass.) 
47;  Trask  v.  Hartford,  etc.,  R.  Co.,  2 
Allen  (Mass.)  331. 

Trespass. — Where  the  taking  of  chat- 
tels is  part  of  a  trespass  on  land,  both 
the  taking  and  trespass  are  only  one 
cause  of  action.  Johnson  v.  Smith,  8 
Johns.  (N.  Y.)  383. 

But  see  Savage  v.  French,  13  111. 
App.  17,  where  it  is  held  that  break- 
ing into  a  house  and  taking  goods 
may  at  the  election  of  the  owner  con- 
stitute two  causes  of  action. 

Possessed     in    Different    Capacities. — 


The  rule  against  bringing  separate 
actions  for  separate  articles  obtains 
although  the  plaintiff  was  possessed 
of  some  in  his  own  right  and  some  in 
his  right  as  trustee.  Bringing  suit  as 
trustee  for  some  of  the  chattels  bars 
an  individual  suit  for  others.  O'Neal 
V.  Brown,  21  Ala.  482. 

Fraud  by  Defendant. — Although  the 
plaintiff  was  prevented  from  including 
some  of  the  chattels  by  the  fraudu- 
lent acts  of  the  defendant,  still  he  can- 
not recover  their  value.  McCaffrey  v. 
Carter,  125  Mass.  330.  Contra,  Moran 
V.  Plankinton,  64  Mo.  337. 

Beplevin  and  Trover. — Where  several 
articles  are  wrongfully  taken  in  one 
act,  the  plaintiff  cannot  split  the  cause 
of  action  so  as  to  sue  for  a  part  of 
them  in  replevin,  and  retain  his  right 
of  action  in  trover  for  the  residue. 
Funk  V.  Funk,  35  Mo.  App.  246.  See 
Moran  v.  Plankinton,  64  Mo.  337; 
Stevens  v.  Tuite,  104  Mass.  328;  Ben- 
nett V.  Hood,  I  Allen  (Mass.)  47. 

But  an  action  of  replevin  against 
one  for  chattels  does  not  bar  replevin 
against  another  for  the  same  chattels. 
Turner  v.  Brock,  6  Heisk.  (Tenn.)50. 

2.  Goodrich  v.  Yale,  8  Allen  (Mass.) 
454;  Dick  V.  Webster,  6  Wis.  481; 
Hempstead  z/.  Des  Moines,  63  Iowa  36. 

Trespassing  of  Cattle. — Where  a  tres- 
pass is  continuous,  as  in  the  trespass  of 
cattle  upon  land  day  after  day,  there  is 
only  one  cause  of  action,  either  with 
respect  to  the  means  by  which  the 
trespass  was  committed,  or  as  regards 
the  time  of  its  commission.  De  La 
Guerra  v.  Newhall,  53  Cal.  141.  But  a 
judgment  in  action  for  the  trespassing 
of  cattle  is  not  a  bar  to  a  subsequent 
action  for  similar  trespasses  occurring 
prior  to  those  alleged  in  the  former 
action.  De  La  Guerra  v.  Newhall,  55 
Cal.  21. 

Distinct  Trespasses. — But  where  the 
trespasses  are  distinct  there  are  sepa- 
rate causes  of  action.  White  v.  Mose- 
ley,  8  Pick.  (Mass.)  356;  Bendernagle 
V.  Cocks,  igWend.  (N.  Y.)  207. 

3.  Adams    v.    Haffards,    20    Pick, 


I  Encvc.  PI.  &  ['r. — 11, 


161 


Splitting  Causes  of  Action. 


ACTIONS. 


Frauds  and  Concealment. 


Slander,  Malicious  Prosecution,  and  False  Imprisonment. — Every  publication 
of  slander  is  a  new  and  distinct  injury.* 

A  slander  may  be  perpetrated  by  means  of  a  malicious  suit.  In 
such  case  the  party  injured  may  at  his  option  prosecute  for  either 
slander  or  malicious  prosecution,  but  they  are  only  one  cause  of 
action,  and  a  recovery  in  one  form  bars  the  other.* 

Every  continuation  of  an  illegal  imprisonment  is  a  new  trespass.^ 

6.  Claims  with  Reference  to  Real  Property. — Claims  for  the  recov- 
ery of  land  and  rents  are  separate  causes  of  action. "* 

Ejectment. — The  law  encourages  the  owner  to  recover  all  the  par- 
cels of  his  land  in  one  ejectment  suit.^ 

Specific  Performance. — One  cause  of  action  for  specific  performance 
cannot  be  split  into  several  actions  against  grantees  of  the  vendor.** 

Waste. — Different  acts  of  waste  constitute  different  causes  of 
action.'' 

7.  Fraud  and  Concealment  by  Defendant. — A  fraudulent  conceal- 
ment of  a  cause  of  action  by  the  defendant  will  justify  the  plaintiff 
in  splitting  it.* 

period  of  occupation.  Pierro  v.  St. 
Paul,  etc.,  R.  Co.,  37  Minn.  314. 

Georgia. — A  recovery  in  ejectment 
bars  an  action  for  rents  and  profits. 
Cunningham  v.  Morris,  19  Ga.  583. 

5.  Bryan  v.  Spivey,  106  N.  Car.  95. 
See  Thames  v.  Jones,  97  N.  Car.  121; 
Love  V.  Wilbourn,  5  Ired.  (N.  Car.)  344; 
Doe  t*.  South,  10  Ired.  (N.  Car.)  237. 

Where  several  tracts  of  land  are 
prayed  for  in  the  same  ejectment  suit, 
recovery  of  one  bars  claims  for  the 
others.  Woodin  v.  Clemons,  32  Iowa 
280;  Thompson  v.  McKay,  41  Cal.  221. 

Forcible  Entry  and  Detainer. — The  is- 
sue embraced  in  a  suit  for  the  forcible 
entry  and  detainer  of  certain  premises 
cannot  be  retried  after  judgment,  be- 
cause the  subsequent  suit  may  em- 
brace premises  not  included  in  the 
first.      Harvie  v.  Turner,  46  Mo.  444. 

6.  Agard  v.  Valencia,  39  Cal.  292. 
And    an   entire    contract    to  convey 

land  cannot  be  so  divided  that  a  party 
can  be  compelled 'by  specific  perform- 
ance to  convey  different  parcels  to  dif- 
erent  persons  or  at  different  times. 
Stone  V.  Pratt,  25  111.  16. 

A  judgment  in  an  action  at  law  upon 
a  covenant  will  not  bar  a  suit  for  spe- 
cific performance,  although  the  same 
covenant  was  assigned  in  the  action  at 
law.  Givens  v.  Peake,  i  Dana  (Ky.) 
225. 

7.  Rutherford  v.  Aiken,  2  Thomp.  & 
C.  (N.  Y.)28i. 

8.  Johnson  v.  Provincial  Ins.  Co.,  12 
Mich.  216. 


(Mass.)  127.  The  same  quarrel  may 
give  a  cause  of  action  to  each  combat- 
ant.    Cade  V.  McFarland,  48  Vt.  48. 

1.  Woods  V.  Pangburn,  75  N.  Y.  495; 
Thomas  v.  Rumsey,  6  Johns.  (N.Y.)3i; 
Rockwell  V.  Brown,  36  N.  Y.  207. 

Partners. — A  joint  judgment  pro- 
cured by  partners  in  business  in  a 
slander  suit  is  no  bar  to  a  separate  suit 
by  one  of  the  partners  on  the  same 
cause  of  action.  Duffy  v.  Gray,  52 
Mo.  528. 

2.  Sheldon  v.  Carpenter,  4  N.  Y. 
578;  Jarnigan  v.  Flemming,  43  Miss. 
710;  Tidwell  z*.  Witherspoon,2i  Fla.359. 

But  a  judgment  in  an  action  for  ma- 
licious prosecution  is  not  a  bar  to  an 
action  for  slander  for  words  uttered  on 
a  subsequent  occasion,  although  al- 
luding to  the  same  general  accusation. 
Rockwell  V.  Brown,  36  N.  Y.  207; 
Woods  V.  Pangburn,  75  N.  Y.  495. 

3.  Leland  v.  Marsh,  16  Mass.  389. 

Malicious  prosecution  and  false  im- 
prisonment are  only  one  cause  of  ac- 
tion when  they  both  relate  to  the  issu- 
ance of  the  same  warrant.  Boeger  v. 
Langenberg,  97  Mo.  390. 

4.  Walker  v.  Mitchell,  18  B.  Mon. 
(Ky.)  541;  Burr  v.  Woodrow,  i  Bush 
(Ky.)  602. 

But  a  judgment  for  damages  in  an 
action  of  ejectment  is  a  bar  to  a  suit  for 
rents  received  prior  to  such  judgment. 
Stewart  v.  Dent,  24  Mo.  in. 

And  a  recovery  for  use  and  occupa- 
tion in  ejectment  bars  an  action  for 
injury   to  the  real  estate  during  the 


162 


Joinder  at  Common  Law. 


ACTIONS. 


Common  Law  States. 


VII.    Joinder  of  Actions   at    Common    Law— 1.  Common-Law 

States. — Seventeen  States,  the  District  of  Columbia,  and  one  Ter- 
ritory have  not  adopted  what  is  technically  termed  the  Reformed 
American  Procedure.  But  most  of  these  States  have  more  or 
less  legislated  on  pleading  and  practice,  while  some  have  practice 
acts,  based  more  or  less  on  the  common  law.^ 


Where  it  is  not  known  at  the  time 
the  first  action  is  commenced  that  the 
defendants  have  possession  of  other 
property  of  the  plaintiff  than  that 
sought  to  be  recovered  in  that  action, 
a  second  action  may  be  brought  for 
such  additional  property.  Risley  v. 
Squire,  53  Barb.  (N.  Y.)  280;  Moran  v. 
Plankinton,  64  Mo.  337;  Bennett  v. 
Hood,  I  Allen  (Mass.)  47. 

The  rule  prohibiting  a  multiplicity 
of  suits  has  no  reference  to  a  case 
where  the  party  has  no  knowledge  of 
his  means  of  redress.  Moran  v.  Plank- 
inton, 64  Mo.  337. 

In  the  case  of  U.  S.  v.  Throck- 
morton, 98  U.  S.  66,  Mr.  Justice  Mil- 
ler uses  this  language:  "  But  there  is 
an  admitted  exception  to  this  general 
rule  in  cases  where,  by  reason  of 
something  done  by  the  successful  par- 
ty to  a  suit,  there  was  in  fact  no  ad- 
versary trial  or  decision  of  the  issue 
in  the  case.  Where  the  unsuccessful 
party  has  been  prevented  from  ex- 
hibiting fully  his  case,  by  fraud  or  de- 
ception practised  on  him  by  his  op- 
ponent, .  .  .  these  are  reasons  for 
which  a  new  trial  suit  may  be  sus- 
tained to  set  aside  and  annul  the  for- 
mer judgment  or  decree,  and  open  the 
case  for  a  new  and  fair  hearing." 

Compare  Pearce  v.  Olney,  20  Conn. 
544;  Wierich  v.  De  Zoya,  7  111.  385; 
Kent  V.  Ricards,  3  Md.  Ch.  392;  Smith 
V.  Lowry,  i  Johns.  Ch.  (N.  Y.)  320; 
De  Louis  v.  Meek,  2  Greene  (Iowa)  55, 

1.  The  following  States  adhere  to  the 
common-law  practice  more  or  less 
closely  :  Delaware,  District  of  Colum- 
bia, Florida,  Illinois,  Maine,  Maryland, 
Massachusetts,  Michigan,  Mississippi, 
New  Hampshire,  New  Jersey,  New 
Mexico,  Pennsylvania,  Rhode  Island, 
Tennessee,  Vermont,  Virginia,  West 
Virginia. 

Alabama  has  a  scheme  of  procedure 
very  similar  to  Tennessee,  and  also  has 
separate  chancery  courts  ;  but  as  its 
Code,  at  least  in  its  provisions  as  to 
joinder  of  actions,  closely  assimilates 
to  the  Reformed  Procedure,  it  has 
been  classified  as  a  Code  State. 


Louisiana. — While  Louisiana  has  a 
complete  Code,  both  adjective  and 
substantive,  yet  its  Code  of  Procedure 
is  as  technical,  at  least  in  its  nomen- 
clature, as  is  the  common-law  proced- 
ure, and  therefore  it  will  be  treated 
in  this  article  together  with  the  com- 
mon-law States. 

Maryland. — "  Causes  of  action  of 
whatever  kind,  provided  they  be  by 
and  against  the  same  parties,  and  in 
the  same  rights,  may  be  joined  in  the 
same  suit  ;  but  this  shall  not  extend 
to  replevin  or  ejectment  ;  but  the 
Court  shall  have  power  to  prevent  the 
trial  of  different  causes  of  action  to- 
gether if,  in  the  opinion  of  the  Court, 
such  trial  would  be  inexpedient  ;  and 
in  such  case  the  Court  may,  when  the 
case  comes  on  for  trial,  or  before, 
direct  separate  cases  to  be  docketed, 
and  separate  trials  to  be  had  in  their 
order  of  priority,  either  immediately 
or  at  such  time  or  times  as  the  Court 
shall  deem  most  equitable  and  just." 
§  33  Act  of  Simplification  of  Mary- 
land. A  count  in  debt  cannot  be 
joined  with  a  count  in  assumpsit,  and 
such  misjoinder  may  be  taken  advan- 
tage of  by  motion  in  arrest  of  judg- 
ment. "The  Act  of  1856,  ch.  112, 
§  33,  authorized  causes  of  action  of 
whatever  kind,  except  replevin  and 
ejectment,  to  be  joined  in  the  same 
suit,  provided  they  were  by  and 
against  the  same  parties,  and  in  the 
same  right.  But  the  code  does  not 
authorize  such  joinder  of  causes  of 
action  or  counts,  and  if  they  are  so 
joined,  the  misjoinder  may  be  taken 
advantage  of  by  the  motion  in  arrest 
of  judgment."  Per  Grason,  J.,  in 
Canton  Nat.  B'l'dg  Assoc,  v.  Weber, 
34  Md.  66g.  See  Swen;  v.  Sharretts, 
48  Md.  408. 

New  Mexico  has,  paradoxically  it 
would  seem,  since  her  first  settlers 
were  of  the  Spanish  race,  adopted  the 
common-law  method  of  procedure. 
"  All  suits  at  law  in  the  district  courts 
shall  be  commenced  by  filing  a  decla- 
ration in  the  office  of  the  clerk  of  the 
court,  and  the  pleadings  and  practice 


163 


Joinder  at  Common  Law. 


ACTIONS. 


Dependent  on  Form.. 


2.  Joinder  of  Actions  Dependent  on  Form.  — At  common  law  the 
joinder  of  actions  was  dependent  on  form.  If  two  causes  of  action 
could  be  enforced  by  means  of  the  same  kind  of  original  writ,  they 
might  be  joined  ;  otherwise  not.^  The  rule  was  laid  down  that, 
"wherever  the  same  plea  could  be  pleaded  and  the  same  judg- 
ment be  given  on  several  counts,  they  could  be  joined  in  the  same 
declaration."  '-* 


shall  be  according  to  the  forms  and 
rules  of  the  common  law  ;  and  all 
suits  in  equity  shall  be  commenced  by 
filing  a  bill  in  the  office  of  the  clerk  of 
the  court."  §  1907  Compiled  Laws  New 
Mexico  (1S84). 

Tennessee  has  what  is  termed  a 
"  Code,"  but  as  this  State  differen- 
tiates law  and  equity,  and  has  chan- 
cery courts,  and  as  its  Code  is  not  a 
sweeping  one,  it  is  classified  here  as  a 
common-law  State.  "The  declaration 
shall  state  the  plaintiff's  cause  of 
action.  It  may  contain  several  state- 
ments or  counts.  But  where  several 
distinct  causes  of  action  against  the 
same  party  are  joined,  the  court  may 
direct  separate  trials  of  the  issues." 
§  3606  Code  Tennessee  (18S4).  "  When- 
ever the  facts  of  the  case  entitle  the 
plaintiff  to  sue  for  breach  of  contract, 
or,  at  his  election,  for  the  wrong  and 
injury,  he  may  join  statements  of  his 
cause  of  action  in  both  forms,  or 
either."  §  3442  Code  Tennessee  (1884) 
(Millikin  and  Vertrees). 

1.  "Where  a  plaintiff  has  several 
distinct  causes  of  action,  he  is  allowed 
to  pursue  them  cumulatively  in  the 
same  suit,  subject  to  certain  rules 
which  the  law  prescribes  as  to  joining 
such  demands  only  as  are  of  similar 
quality  or  character.  Thus,  he  may 
join  a  claim  of  debt  on  bond  with 
a  claim  of  debt  on  simple  contract,  and 
pursue  his  remedy  for  both  by  the 
same  action  of  debt.  So,  if  several 
distinct  trespasses  have  been  commit- 
ted, these  may  all  form  the  subject  of 
one  declaration  in  trespass;  but,  on 
the  other  hand,  a  plaintiff  cannot  join 
in  the  same  suit  a  claim  of  debt  on 
bond  and  a  complaint  of  trespass,  these 
being  dissimilar  in  kind.  Such  differ- 
ent claims  or  complaints,  when  capable 
of  being  joined,  constitute  different 
parts  or  sections  of  the  declarations, 
and  are  known  in  pleading  by  the  de- 
scription of  several  counts."  Stephen 
on  Pleading,  267. 

"Forms  of  action  .  .  .  created  artifi- 
cial distinctions  which  prevented  causes 
of  action  from  being  joined,  which 
in  themselves  might  be  conveniently 


tried  together.  We  have  seen  that  if 
a  log  of  wood  be  thrown  upon  a  man 
and  breaks  his  arm,  he  must  under  the 
old  law  bring  an  action  of  trespass; 
but  if  he  falls  over  the  log  after  it  has 
fallen,  and  breaks  his  arm,  he  must 
bring  an  action  on  the  case;  the  differ- 
ence in  the  forms  of  action  consisting 
in  the  insertion  or  omission  of  the 
words  vi  et  armis.  Now  if  it  so  hap- 
pened that  a  person  had  received  inju- 
ries both  ways,  from  the  same  person,, 
he  could  not  have  joined  the  two 
causes  of  action  in  one  suit,  because 
trespass  and  case  could  not  be  joined. 
Forms  of  action  created  difficulties, 
in  two  ways:  first,  in  the  application 
of  the  wrong  form  of  action  to  a  par- 
ticular case;  and  secondly,  in  the  mis- 
joinder of  forms  of  action.  If  a  wrong 
form  was  applied,  it  was  fatal  to  the 
action;  and  if  causes  of  action  were 
joined  which  the  forms  of  action  for- 
bid, it  was  fatal  too.  The  supposal  of 
forms  of  action  was  that  they  were 
founded  upon  substantial  distinctions 
which  prevented  incongruous  and  dis- 
similar causes  of  action  from  being  in- 
conveniently mixed  together  in  the. 
same  suit.  But  this  is  not  so.  For 
causes  the  most  dissimilar  in  their  in- 
trinsic nature  might  be  joined  under 
the  doctrine  of  forms  of  action,  while 
those  most  identically  alike  could  not 
be  joined.  '  The  plaintiff  might  join  in 
one  action  a  claim  on  a  promissory 
note,  on  a  breach  of  promise  of  mar- 
riage, and  a  complaint  of  negligence 
against  an  attorney;  in  a  second  he 
might  join  a  claim  for  criminal  conver- 
sation with  trespass  to  his  person,  his 
lands,  or  his  goods;  in  a  third  he  might 
sue  for  the  seduction  of  his  daughter, 
infringing  his  patent,  and  for  neg- 
ligently driving  over,  and  for  slan- 
dering him;  because  in  all  these  cases 
the  form  of  action  was  the  same.'  The 
joinder,  therefore,  of  the  most  incon- 
gruous causes  of  action  might  occur 
under  the  old  procedure  with  its  forms 
of  actions  supposed  to  guard  against 
it."  Per  Tyler  in  his  "Treatise  on 
the  Maryland  Procedure,"  41,  42. 
2.  Thus  the    first  count   was  trover 


164 


Joinder  at  Common  Law. 


ACTIONS. 


Single  Cause  of  Action. 


3.  Single  Cause  of  Action. — In  common-law  joinder,  as  well  as  in 
joinder  under  the  Code,  the  question  as  to  whether  the  matter 
constitutes  a  single  cause  of  action,  or  more  than  one,  is  material 
and  relevant.  Of  course,  if  the  matter  only  makes  one  cause  of 
action,  no  question  of  misjoinder  can  arise.  But  as  to  what  con- 
stitutes a  single  cause  of  action,  the  common-law  States  are,  like 
the  Code  States,  somewhat  divided,  especially  in  reference  to  its 
bearing  on  joinder.^ 


for  a  dog.  The  second  and  third 
counts  were  on  the  custom  of  the 
realm  against  the  carrier  for  not  safely 
delivering  the  dog.  It  was  held  a 
proper  joinder.  "  Perhaps  the  rule  of 
judging  whether  two  counts  can  be 
joined,  by  considering  whether  the 
same  judgment  can  be  given  on  both, 
is  not  true  in  its  extent;  but  by  adding 
another  requisite  it  is  universally  true. 
For  wherever  the  same  plea  may  be 
pleaded  and  the  same  judgment  given 
on  two  counts,  they  may  be  joined  in 
the  same  declaration.  Assumpsit  and 
tort  cannot  be  joined  together,  be- 
cause the  pleas  to  both  are  not  the 
same.  But  the  whole  of  this  is  case; 
the  same  plea  of  not  guilty  goes  to  the 
whole  declaration;  and  the  court  may 
give  the  same  judgment  on  the  whole. 
The  common  way  of  declaring  against 
a  carrier  now  is  in  assumpsit,  to  which 
trover  cannot  be  joined;  but  if  the 
plaintiff  declare  on  the  custom  of  the 
realm,  a  count  in  trover  may  be  joined; 
it  only  depends  on  the  form  of  the  ac- 
tion." Per  Buller,  J.,  in  Brown  v. 
Dixon,  I  T.  R.  276. 

1.  Injury  to  Person  and  Property  by 
Same  Act. — Where  a  person  is  injured 
in  his  person  and  property  by  the  same 
negligent  act,  he  may  declare  for  dam- 
ages, both  to  his  person  and  property, 
in  one  count,  or  he  may  declare  for 
each  separately,  in  different  counts. 
Chicago  West  Div.  R.  Co.  v.  Ingra- 
ham,  131  111.  659.  See  Baltimore,  etc., 
R.  Co.  V.  Ritchie,  31  Md.  191,  where  it 
was  held  that  the  injuries  could  be 
united  and  counted  on  in  the  same 
count.  See  also  Brunsden  v.  Hum- 
phrey, 14  Q.  B.  Div.  141. 

Action  for  Suborning  Witnesses. — A 
declaration  in  an  action  for  suborning 
witnesses  to  defame  the  character  of 
the  plaintiff,  each  count  of  which  al- 
leges a  series  of  connected  acts  as 
parts  of  a  scheme  designed  to  defame 
the  plaintiff,  sets  out  but  one  cause  of 
action.  Rice  v.  Coolidge,  121  Mass. 
393,  23  Am.  Dec.  279. 


Bond  not  Merged  by  Parol  Promise. — 

Where  a  party,  being  liable  upon  a  re- 
plevin bond,  promised  in  writing  to 
pay  the  amount  of  his  liability  by  the 
next  term  of  court  if  no  suit  was 
brought  on  the  bond,  but  the  bond  was 
not  released,  it  was  held  that  no  action 
would  lie  upon  the  subsequent  prom- 
ise, as  it  could  not  merge  or  destroy 
the  higher  security.  Leland  v.  Barry, 
69  111.  348. 

Injuring  Plaintiff  and  his  Child. — It  is 
improper  to  join  a  count  for  injuring 
the  plaintiff  by  a  train  and  for  killing 
his  child  at  the  same  time.  Specht  v. 
Railroad    Co.,    7    Pa.    Co.    Ct.    Rep. 

54- 

Contract  and  Note. — The  plaintiff  can- 
not be  required  to  elect  between  a  con- 
tract and  a  promissory  note  where 
both  are  parts  of  the  same  transaction 
and  the  action  is  based  on  both. 
Piano  Mfg.  Co.  v.  Parmenter,  30  111. 
App.  569. 

Consolidation  of  Suits  in  Equity. — 
Upon  a  motion  to  consolidate  suits  in 
equity,  the  only  inquiry  is  in  respect  to 
the  identity  of  the  subject-matter  in- 
volved. Such  a  motion  is  addressed 
to  the  discretion  of  the  court,  and 
courts  of  error  will  not  interfere  unless 
it  is  clear  that  such  discretion  has 
been  greatly  abused.  Woodburn  v. 
Woodburn,  23  111.  App.  289. 

Separate  Breaches. — A  declaration 
upon  the  covenants  in  a  deed  averred 
the  making  of  covenants  of  seizin,  of 
power  to  sell,  and  of  warranty,  only; 
the  breach  included  not  only  these,  but 
also  covenants  against  incumbrances 
and  for  quiet  enjoyment.  The  de- 
fendant assigned  as  a  ground  for  de- 
murrer that  this  one  count  set  forth 
more  than  one  cause  of  action.  Held, 
that  as  all  these  causes  of  action  were 
of  the  same  nature,  and  could  be  an- 
swered by  one  plea,  they  might  be 
joined  in  one  count;  that  the  sepa- 
rate breaches  were  to  be  regarded  as 
so  many  distinct  counts.  Brady  v. 
Spurck,  27  111.  478. 


^65 


Joinder  at  Common  Law. 


ACTIONS. 


Inconsistent  Counts. 


4.  Inconsistent  Counts. — The  common-law  states  somewhat  as- 
similate their  rulings  on  the  subject  of  inconsistent  counts  to  the 
Code  states.  As  under  the  Codes,  where  two  causes  of  action  are 
on  their  face  inconsistent,  they  cannot  be  joined.* 


Libel  Published  on  Different  Days. — 
Where  libellous  articles  are  published 
upon  different  days,  each  article  con- 
stitutes a  separate  cause  of  action,  but 
all  may  be  joined  in  the  same  declara- 
tien.    Randall  v.  Gartner,  96  Mich.  284. 

Wrongful  Acts  Aimed  at  a  Single  Re- 
sult.— A  series  of  wrongful  acts,  all 
aiming  at  a  single  result  and  contrib- 
uting to  the  injury  complained  of,  to 
wit,  the  destruction  of  one's  business, 
credit,  and  reputation,  may  be  counted 
upon  collectively,  as  producing  that 
result,  in  an  action  on  the  case.  Oli- 
ver V.  Perkins,  92  Mich.  304. 

Flooding  Land. — In  a  suit  to  recover 
damages  caused  by  the  alleged  wrong- 
ful flooding  of  plaintiff's  land  by  the 
use  of  flash-boards  on  defendant's 
dam,  the  declaration  may  cover  sev- 
eral years  if  it  alleges  that  the  flooding 
was  caused  each  year  by  the  use  of 
said  flash-boards.  Hamilton  v.  Plain- 
well  Water  Power  Co.,  81  Mich.  21. 

Reserved  as  One  Cause  on  Appeal. — 
Several  original  bills  in  chancery  and 
cross-bills  filed  by  creditors  and  lien- 
holders  of  a  defendant  company,  in- 
volving a  settlement  of  various  and 
conflicting  claims  and  liens  upon  sub- 
stantially the  same  property,  were 
heard  together,  by  consent,  and  under 
an  agreement  of  all  parties  that  all 
the  evidence  in  any  one  or  more  of 
the  causes  should  apply  to  every  other 
of  the  suits,  so  far  as  applicable,  and 
the  evidence  was  preserved  by  one 
common  certificate.  Held,  that  as  the 
causes  were  heard  and  determined  as 
one  cause  in  the  trial  court,  the  same 
might  well  be  reviewed,  on  appeal  or 
error,  in  the  same  manner,  as  one 
cause.  Chicago,  etc.  R.  Co.  v.  Peck, 
112  111.  408. 

Separate  Cars  Destroyed  by  Fire. — In 
an  action  by  a  rolling-stock  company 
against  a  railroad  company  engaged 
in  the  general  business  of  switching 
cars  to  recover  the  value  of  several 
leased  cars  which  were  destroyed  in 
the  same  conflagration,  said  cars  hav- 
ing been  switched  at  different  dates, 
it  was  held  that  if  the  plaintiff  has  a 
cause  of  action,  it  has  a  separate  one 
for  each  car;  that  the  fact  that  the 
declaration    was    amended   after    the 


cause  of  action  was  barred  as  to  one 
of  the  cars,  so  as  to  include  such  car 
and  to  make  appellees  the  parties 
plaintiff,  did  not  have  the  effect  of  re- 
viving the  claim  as  to  said  car;  that 
the  owner  of  the  car  was  the  proper 
party  to  bring  the  suit;  and  that  such 
owner  was  in  no  way  bound  by  con- 
tracts existing  between  the  defendant 
audits  lessee.  Peoria,  etc.,  R.  Co.  v. 
U.  S.  Rolling  Stock  Co.  ,28  111.  App.  79. 

Plaintiffs  Different. — Where  the  plain- 
tiffs in  two  suits  are  different,  the 
couri  has  no  authority  to  consolidate 
on  a  motion  of  the  defendants  alleg- 
ing that  the  suits  make  only  one  cause 
of  action.  Miles  v.  Danforth,  37  111. 
156. 

Louisiana. — Two  or  more  demands, 
not  exclusive  of  each  other,  may  be 
properly  cumulated  in  one  suit.  Ter- 
tron  V.  Durand,  29  La.  Ann.  506. 

Michigan. — The  right  of  action 
given  by  How.  Sts.  ^  8314,  to  the 
personal  representatives  of  a  deceased 
person  for  the  pecuniary  injury  result- 
ing from  his  negligent  killing,  and 
that  which  survives  under  Act  No. 
113,  Laws  of  1S85  (3  How.  Sts.  §  7397), 
for  negligent  injuries  to  the  person, 
are  separate  and  distinct  causes  of 
action,  and  the  latter  cannot  be  intro- 
duced into  a  cause  based  upon  the 
right  given  under  the  first  statute 
cited,  by  way  of  amendment  to  the 
declaration.  Hurst  z/.  Detroit  City  R. 
Co.,  84  Mich.  539. 

1.  Consolidation  Coal  Co.  v.  Shan- 
non, 34  Md.  144  ;  McLennan  v.  Mc- 
Dermid,  50  Mich.  381  ;  Barton  v. 
Gray,  57  Mich.  623  ;  Gott  v.  Superior 
Court,  42  Mich.  625.  But  it  is  not 
necessary  that  special  counts  in  as- 
sumpsit should  be  harmonious,  even 
when  the  same  instrument  is  set  out 
in  each  as  the  foundation  of  the 
action.  Barton  v.  Gray,  48  Mich. 
164.  See  Hall  v.  Woodin,  35  Mich. 
67  ;  Wyman  v.  Crowly,  33  Mich.  84  ; 
Wetmore  v.  McDougall,  32  Mich.  276  ; 
Berringer  v.  Cobb,  58  Mich.  557  ; 
Portage  Lake  Miners,  etc.,  Ben.  Soc. 
V.  Phillips,  36  Mich.  22  ;  Watson  v.. 
Watson,  49  Mich.   540. 

Breach  of  Contract  and  Rescission. — 
Counts  for  breaches  of  a  contract  and 

66 


Joinder  at  Common  Law. 


ACTIONS. 


Debt. 


5.  Debt. — Any  cause  of  action  which  can  be  brought  by  means 
of  the  action  of  debt  may  be  joined  with  any  other  cause  of  ac- 
tion which  can  be  so  brought.  It  is  immaterial  whether  one 
cause  of  action  is  on  a  sealed  instrument  and  the  other  on  a  parol 
contract.* 


counts  for  rescinding  a  contract  can- 
not be  joined.  Toledo,  etc.,  R.  Co.  v. 
Jacksonville  Depot  Bldg.  Co.,  63  111. 
308.  But  counts  in  the  declaration  for  a 
rescission  provided  for  by  contract, 
and  for  a  rescission  because  of  fraud, 
are  not  repugnant.  Pearsoll  v.  Cha- 
pin,  44  Pa.  St.  9  ;  but  a  count  for  dam- 
ages for  the  fraud  and  one  for  a  re- 
scission would  be.     Ibidem. 

Where  a  contract  provides  that  a 
chattel  sold  is  good,  and  if  not,  wrill  be 
made  good,  the  right  to  return  it  in 
case  of  failure  is  in  pursuance  and  not 
in  avoidance  of  the  contract,  and  a 
count  for  breach  of  warranty  is  not  in- 
consistent with  one  averring  return, 
or  with  the  common  count  for  money 
had  and  received.  Kimball,  etc.,  Mfg. 
Co.  V.  Vroman,  35  Mich.  310,  24  Am. 
Rep.  558. 

Breach  of  Warranty  and  Fraud. — 
Counts  for  breach  of  warranty  in  the 
sale  of  a  chattel  and  for  fraud  prac- 
tised in  the  sale  are  not  inconsistent. 
Counts  for  fraudulent  representations 
of  soundness  in  the  sale  of  a  horse, 
and  for  a  breach  of  warranty  of 
soundness  in  the  sale  of  the  same 
horse,  may  be  united.  Patterson  v. 
Kirkland,  34  Miss.  423. 

A  special  count  in  assumpsit  for  a 
breach  of  warranty  on  the  sale  of  a 
horse,  and  a  second  count  for  the  re- 
covery of  money  paid  without  consid- 
eration, setting  up  the  circumstances 
under  which  it  was  obtained,  and  that 
the  horse  purchased  was  absolutely 
without  value,  are  not  inconsistent, 
and  plaintiff  cannot  be  compelled  to 
elect  upon  which  he  will  proceed. 
Murphy  v.  McGraw,  74  Mich.  318. 

Note  and  its  Consideration. — A  count 
upon  a  promissory  note  and  one  upon 
the  precedent  demand  upon  which  the 
note  was  founded  may  be  joined  in 
the  same  declaration.  Kennel  v. 
Mungey,  Peck  (Tenn.)  273. 

Expulsion  from  Premises,  and  Assault 
and  Battery. — A  count  for  assault  and 
battery  is  not  inconsistent  with  one  for 
wrongful  expulsion  from  premises. 

A  declaration  in  case  contained  two 
counts,  one  of  which  alleged  the 
wrongful  expulsion  of  plaintiff  from 


premises  occupied,  and  the  other  .an 
assault  and  battery.  Held,  that  as  no 
inconsistency  between  these  counts 
was  pointed  out,  there  was  no  error  in 
refusing  to  require  an  election  between 
them.   Taylor  v.  Adams,  58  Mich.  187. 

Trespass  for  Injuries  and  Contract  in 
Settlement. — A  contract  which  liqui- 
dates a  tort  merges  it,  and  a  cause  of 
action  for  the  tort  is  inconsistent  with 
one  on  the  contract.  A  declaration 
containing  a  count  in  trespass  for  per- 
sonal injuries,  and  a  count  upon  a 
contract  made  in  settlement  of  plain- 
tiff's claim  for  damages  for  such  in- 
juries, is  bad  for  repugnancy  on 
demurrer.  Henderson  v.  Boyd,  85 
Tenn.  21. 

Principal  and  Agent. — In  suits  by  a 
principal  against  his  agent,  a  count 
based  upon  the  duty  of  the  agent,  as 
such,  is  inconsistent  with  a  count 
which  shows  that  the  agent  was  not 
such,  but  a  party  to  a  contract  with 
the  principal.  A  declaration  in  a  suit 
by  a  principal  against  an  agent  aver- 
ring the  duty  of  the  agent  to  pay  to 
the  principal  certain  moneys  and 
property  received  by  him  upon  a 
mortgage  belonging  to  the  principal, 
and  sufficient  in  amount  to  pay  the 
same  in  full,  and  also  counting  upon 
the  promise  of  the  agent  that,  if  the 
principal  would  make  a  sale  of  the 
mortgaged  premises  under  a  decree 
before  then  taken  on  a  foreclosure  of 
the  mortgage,  he  would  pay  him  any 
deficiency  arising  on  such  sale,  sets 
forth  two  inconsistent  causes  of 
action.  Perkins  v.  Hershey,  77  Mich. 
504. 

Kecovery  on  One  Count. — Joinder  of 
repugnant  counts  in  the  same  decla- 
ration does  not  preclude  recovery  on 
one  of  them.  Berringer  v.  Cobb,  58 
Mich.  557.  See  also  Ives  v.  Williams. 
53  Mich.   636. 

1.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  222;  Bacon  Abr.,  Actions,  C. ; 
Com.  Dig.,  Actions,  G. ;  2  Vin.  Ab., 
pi.  42;  Tidd  Pr.  10,  11;  Barclay  v. 
Moore,  17  Ala.  634;  Union  Cotton  Mfg. 
Co.  V.  Lobdell,  13  Johns.  (N.  Y.)  462; 
De  Proux  v.  Sargent,  70  Me.  266;  Smith 
V.  First  Congregational  Meetinghouse, 

67 


Joinder  at  Common  Law. 


ACTIONS. 


Trover  and  Case. 


6.  Trover  and  Case. — Trover  and  case  may  be  joined.* 


8  Pick.  (Mass.)  178;  Van  Deusen  v. 
Blum,  18  Pick.  (Mass.)  229,  29  Am. 
Dec.  582;  Mardis  v.  Terrell,  Walk. 
(Miss.)  327;  Bogardus  v.  Trial,  2  111. 
63;  Beardsley  v.  Southmayd,  14  N.   J. 

L.  534- 

Debt  and  Assumpsit  cannot  be  joined. 
Chitty  on  Pleadings  (i6th  Am.  ed.), 
222;  Adams  v.  Hardin,  19  111.  273; 
Rutan  V.  Hopper,  29  N.  J.  L.  112; 
American  Linen  Co.  v.  Sheldon,  31 
N.  J.  L.  420;  Graines  v.  Craig,  24  Ark. 

477- 

Debt  and  Detinue. — Counts  in  debt 
and  detinue  may  be  joined.  Chitty  on 
Pleadings  (i6th  Am.  ed.),  222;  2  Saun- 
ders 117;  Bedford  v.  Alcock,  i  Wils. 
252;  Dalston  v.  Janson,  5  Mod.  92; 
Calvert  v.  Marlow,  18  Ala.  67.  An 
action  of  debt  in  the  debet  and  de- 
tinet  cannot  be  maintained  against  a 
person  in  his  own  right  and  as  execu- 
tor. Watson  V.  Dickey,  Tapp.  (Ohio) 
235- 

Debt  and  Covenant  cannot  be  joined. 
Chitty  on  Pleadings  (i6th  Am.  ed.), 
222;  Brumbaugh  v.  Keith,  32  Pa.  St. 
327. 

The  Action  of  Debt  Very  Technical. — 
The  action  of  debt  was  very  technical 
at  common  law,  and  the  courts  often 
used  very  slight  distinctions  to  dif- 
ferentiate it  from  assumpsit;  and 
statutes  often  gave  rise  to  the  ques- 
tion as  to  whether  the  action  could  be 
maintained.  See  Chitty  on  Pleadings, 
action  "  Debt,"/«jj^/w. 

Where  the  declaration  contained 
counts  on  the  record  of  a  judgment 
and  a  common  count  for  interest,  and 
contained  the  words  "in  considera- 
tion of  the  indebtedness  the  defend- 
ant undertook  and  then  and  there 
faithfully  promised  to  pay  the  same 
when  thereunto  afterwards  re- 
quested," held,  that  this  made  the 
latter  a  count  in  assumpsit,  and  that 
it  is  error  to  join  counts  in  debt  and 
assumpsit  in  the  same  declaration. 
Had  the  word  "agreed"  been  used  in 
the  common  count,  instead  of  "  prom- 
ised," it  would  have  been  a  count  in 
debt.     Guinnip  v.  Carter,  58   111.  296. 

Virginia  Statute  Respecting  the  Requi- 
sition of  Bail. — Debt  on  a  specialty 
and  on  a  inutuatus  or  other  simple 
parol  contract  may  be  joined  in  the 
same  action,  the  rule  of  common-law 
practice  not  being  at  all  varied,  in 
this  respect,  by  the  statute  of  Virginia 


respecting  the  requisition  of  bail  upon 
the  process,  and  the  right  of  appear- 
ance bail  to  defend  the  action.  Eib  v. 
Pindall,  5  Leigh  (Va.)  141. 

1.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  222;  Brown  v.  Dixon,  i  T.  R.  274; 
Mast  V.  Goodson,  3  Wils.  348;  Smith 
V.  Goodwin,  4  B.  &  Ad.  413,  24  E.  C. 
L.  89;  Horsely  v.  Branch,  i  Humph. 
(Tenn.)  199;  Googins  v.  Gilmore,  47 
Me.  9,  74  Am.  Dec.  472;  Wait  v.  Kel- 
logg, 63  Mich,  138;  Ayer  v.  Bartlett, 
9  Pick.  (Mass.)  160;  McConnell  v. 
Leighton,  74  Me.  415;  Blackstone 
Bank  v.  Lane,  80  Me.  165. 

Count  in  Assumpsit. — In  a  declaration 
on  the  case,  one  count  stated  that  the 
plaintiff  at  the  request  of  the  defend- 
ant had  caused  to  be  delivered  to  him 
certain  pigs,  to  be  taken  care  of  by 
the  defendant  for  plaintiff,  and  in  con- 
sideration thereof  defendant  under- 
took and  then  and  there  agreed  with 
the  plaintiff  to  take  care  of  the  pigs 
and  to  redeliver  them  on  request. 
Held,  on  motion  in  arrest  of  judgment, 
that  this  was  a  count  in  assumpsit, 
and  could  not  be  joined  with  counts  in 
case.  Corbett  v.  Packington,  6  B.  & 
C.  268,  13  E.  C.  L.  170. 

A  count  stating  "  that  defendant 
had  and  received  for  plaintiff  a  sum  of 
money,  to  wit,  los.,  to  be  paid  by  de- 
fendant to  plaintiff  upon  request;  yet 
defendant,  not  regarding  his  duty,  had 
converted  and  disposed  thereof  to  his 
own  use,"  is  laid  in  assumpsit,  though 
colorably  in  trover,  and  cannot  be 
joined  with  counts  in  case;  and  it  is 
demurrable  generally,  though  the  de- 
murrer goes  only  to  that  particular 
count.  Orton  v.  Butler,  2  Chit.  Rep. 
343,  18  E.  C.  L.  361. 

Count  in  Case. — A  count  stating  that 
the  plaintiff  had  delivered  a  note  to 
the  defendant  to  get  it  discounted,  and 
account  with  the  plaintiff  for  the  money 
raised  on  it,  and  that  the  defendant 
received  the  note  for  that  purpose, 
but,  intending  to  defraud  the  plaintiff, 
had  not,  though  requested,  accounted 
with  him,  etc.,  is  laid  in.  tort  (whether 
formal  or  not  in  its  frame)  and  not  in 
assumpsit;  and  no  objection  can  be 
taken  upon  a  general  demurrer  to  the 
whole  declaration  because  such  count 
was  joined  with  a  count  in  trover, 
Samuel  v.  Judin,  6  East  335.  See 
Remarks  of  Ellenborough,  C.J.,  on 
joinder. 

68 


Joinder  at  Common  Law. 


ACTIONS. 


Assumpsit — Trespass. 


7.  Assumpsit, — The  action  of  assumpsit  is  one  brought  to  re- 
cover damages  for  the  breach  of  a  contract  not  under  seal.  All 
causes  of  actions  enforceable  in  assumpsit  may  be  joined.*  Some- 
times other  matters  have  been  held  either  joinable  or  not  joinable 
■with  assumpsit.* 

8.  Trespass.  —  Several  distinct  trespasses  may  be  joined  in  the  same 
declaration  in  trespass.* 


Trover  and  Fraud. — It  is  doubtful 
whether  a  count  for  trover  and  a  count 
for  fraud  in  the  sale  of  a  horse  can  be 
joined  in  the  same  declaration,  with- 
out an  allegation  that  the  contract  has 
been  rescinded.  Kennet  v.  Robinson, 
2  J.  J.  Marsh.  (Ky.)  96. 

1.  Chitty  on  Pleadings  (i6th  Am.  ed.), 
222  ;  Appleman  v.  Michael,  43  Md.  269  ; 
Bruen  v.  Ogden,  18  N.  J.  L.  125  ;  Mc- 
Dowell V.  Oyer,  21  Pa.  St.  417  ;  Hal- 
lock  z/.  Powell,  2Cai.  (N.Y.)2i6;  Boyls- 
ton  V.  Sherman,  31  Ala.  538  ;  Livings- 
ton V.  Pippin,  31  Ala.  542. 

2.  Covenant  and  Assumpsit. — Counts 
in  covenant  and  the  common  counts 
in  assumpsit  cannot  be  joined.  Ma- 
guire  V.  Rabenau,  16  W.  N.  C.  (Pa.) 
479;  Smaltz  V.  Hancock,  118  Pa.  St. 
550. 

Tort  and  Assumpsit  cannot  be  joined. 
Wickliff  V.  Davis,  2  J.  J.  Marsh.  (Ky.) 
69. 

Assumpsit  and  Trover  cannot  be 
joined.  Little  v.  Gibbs,  4  N.  J.  L.  212; 
Howe  V.  Cook,  21  Wend.  (N.  Y.)  29. 

Warranty  and  Fraud. — A  count  on  a 
warranty  and  another  for  fraud  in  the 
sale  of  a  slave  cannot  be  joined.  Car- 
starphen  v.   Graves,  i    A.    K.   Marsh. 

<Ky.)435. 

Tort  and  Contract  Connected. — A  plain- 
tiff may  join  in  the  same  petition  a 
cause  of  action  on  a  contract  and  a 
cause  of  action  for  fraud  or  negligence 
directly  connected  with  the  contract. 
Jones  V.  Johnson,  10  Bush  (Ky.)  649. 

Award,  Assumpsit,  and  Covenant. — 
Counts  on  an  award,  simple  contract, 
and  specialty  may  be  joined.  Brown 
V.  Warnock,  5  Dana  (Ky.)  494. 

Gravamen  being  either  Tort  or  Con- 
tract.— Where  a  declaration  contained 
several  counts,  in  each  of  which  the 
gravamen  stated  was  a  tortious  breach 
of  the  defendant's  duty  as  an  attor- 
ney, as  well  as  of  the  implied  prom- 
ise arising  from  an  employment  for 
him,  held,  that  as  each  count  contained 
allegations  sufficient  to  support  it, 
either  in  tort  or  assumpsit,  they  were 
not  incompatible,  and  might  be  joined 


in  the  same  declaration.  Church  v. 
Mumford,  11  Johns.  (N.  Y.)  479. 

Count  Held  one  in  Tort. — A  count 
charging  that  the  defendant,  in  con- 
sideration that  the  plaintiff  would  sell 
him  a  horse  worth  $60,  agreed  to  pay 
$60  in  notes  on  the  Bank  of  the  United 
States  of  the  value  of  $60,  but  that  he 
fraudently  paid  in  spurious  notes  on 
that  bank,  may  be  joined  with  a  count 
charging  deceit  and  a  fraudulent  rep- 
resentation that  the  notes  were  genu- 
ine. Lane  v.  Hogan,  5  Yerg.  (Tenn.) 
290. 

Cause  of  Action  Cannot  be  Divided. — A 
cause  of  action  under  a  special  con- 
tract cannot  be  so  divided  that  recov- 
ery can  be  had  partly  on  a  general 
count  and  partly  on  a  special.  Beech- 
er  z/.  Pettee,  40  Mich.  181. 

3.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  222;  Ferguson  v.  Terry,  i  B.  Mon. 
(Ky.)  96;  Smith  z/.  Brazelton,  i  Heisk. 
(Tenn.)  44,  2  Am.  Rep.  678;  ftarton 
Coal  Co.  V.  Cox,  39  Md.  17,  17  Am. 
Rep.  525. 

Obstructing  Way. — Counts  for  ob- 
structing a  private  way  may  be  joined 
with  others  for  obstructing  a  high- 
way. Lansing  v.  Wiswall,  5  Den.  (N. 
Y.)  213. 

Trespass  and  Rescous. — D.  sued  B.  be- 
fore a  justice  by  a  summons  in  tres- 
pass on  the  case,  and  declared  for  a 
trespass,  for  breaking  his  close  by  the 
hogs  of  the  defendant,  and  also  for  a 
pound  breach  or  rescous.  The  two 
causes  of  action  were  allowed  to  be 
joined.  Baker  v.  Dumbolton,  10 
Johns.  (N.  Y.)  249. 

Trespass  and  Trover. — Trespass  vi  et 
armis  and  trover  cannot  be  joined. 
Cooper  V.  Bissell,  16  Johns.  (N.  Y.) 
146;  not  a  Code  case. 

Trespass  and  Case  cannot  be  joined. 
Sheppard  v.  Furniss,  19  Ala.  760;  Bell 
V.  Troy,  35  Ala.  184;  Bordentown  Co. 
V.  Camden  R.  Co.,  17  N.  J.  L.  317; 
Dale  Mfg.  Co.  v.  Grant,  34  N.  J.  L. 
142;  Sollenberger  z/.  Schnader  (Pa.),  4 
L.  Bar,  Dec.  14,  1872;  Brant  v.  Lorenz, 
34  Leg.  Int.  (Pa.)  115;  Dalson  v.  Brad- 
69 


Joinder  at  Common  Law. 


ACTIONS. 


£z  Contractu  and  ez  Delicto. 


9.  Actions  ex  Contractu  and  Actions  ex  Delicto. — The  common-law 
procedure  inhibits  the  joinder  of  causes  of  actions  ex coniracfu  and 
those  ex  delicto?-  In  the  note  will  be  found  a  collection  of  cases 
involving  questions  of  construction,  as  to  whether  they  sounded 
in  tort  or  contract.* 


berry,  50  111.  82;  Harwood  v.  Tomp- 
kins, 24  N.  J.  L.  425  ;  Waggoner  v. 
White,  II  Heisk.  (Tenn.)  741. 

Distinction  Between  Case  and  Trespass 
Abolished. — Some  states  have  abolished 
the  distinction  between  trespass  and 
case,  and  causes  of  action  heretofore 
classified  under  either  action  may  now 
be  joined.  Goodloe  v.  Potts,  Cooke 
(Tenn.)  399;  Moore  v.  Thompson,  92 
Mich.  49S  ;  Haskins  v.  Ralston,  69 
Mich.  63,  13  Am.  St.  Rep.  376;  Shep- 
herd V.  Staten,  5  Heisk.  (Tenn.)  79; 
Moulton  V.  Smith,  32  Me.  406;  Barker 
V.  Koozier,  80  111.  205;  Krug  v.  W^ard, 
77  111.  603;  Nybladh  v.  Herterius,  41 
Fed.  Rep.  120;  Williams  v.  Bramble, 
2  Md.  313;  Barr  v.  White,  22  Md.  259; 
Gent  V.  Cole,  38  Md.  no. 

Statutes  Liberally  Construed. — How. 
Mich.  Sts.  §  7759  removes  all  objec- 
tion to  the  joinder  of  a  count  in  tres- 
pass with  one  in  case,  in  the  same  dec- 
laration, and  should  be  liberally  con- 
strued by  the  courts.  Therefore  a 
count  for  obstructing  a  navigable  river 
with  saw-logs  so  that  plaintiff  could 
not  use  it  in  floating  his  logs  and  tim- 
ber; a  count  for  a  like  obstruction  at 
another  time,  by  which  he  lost  the  sale 
of  his  logs;  a  count  for  breaking  booms 
and  chains,  and  setting  his  logs  adrift; 
and  a  count  for  breaking  said  booms 
and  chains  at  another  time  by  reason 
of  which  plaintiff  was  put  to  expense 
in  recovering  his  logs — may  all  be 
joined.     Bellant    v.   Brown,   78  Mich. 

294- 

Doctrine  Limited. — It  is  only  in  the 
form  of  declaring,  and  not  in  any  mat- 
ter of  substance,  that  the  Rev.  Sts.  Me. 
c.  115,  §  13,  has  abolished  the  distinc- 
tion between  trespass  and  case.  An 
allegation  of  breaking  and  entering 
into  land  is  of  substance  and  not  of 
form  merely.  To  a  declaration  in 
trespass  ^?<ar^  clausum,  alleging  imme- 
diate acts  of  injury  to  land,  an  amend- 
ment, introducing  a  count,  framed  as 
in  case,  alleging  damages  to  have  been 
consequential,  is  not  allowable.  Saw- 
yer V.  Goodwin,  34  Me.  419. 

1.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  222;  Beasley  z'.  Bradley,  2  Swan 
(Tenn.)    180;   Holland   v.    Pack,   Peck 


(Tenn.)  151;  Norfolk,  etc.,  R.  Co.  v. 
Wysor,  82  Va.  250;  Soper  v.  Jones,  56 
Md.  503;  Penniraan  v.  Winner,  54  Md. 
127;  Township  v.  Railroad  Co.,  2  Del. 
Co.  Ct.  Rep.  (Pa.)  9;  Noble  v.  Laley, 
50  Pa.  St.  2S1;  Ryle  v.  Howlet,  3  Bibb 
(Ky.)  348;  Louisville,  etc.,  Canal  Co. 
V.  Rowan,  4  Dana  (Ky.)  607;  Trundle 
V.  Arnold,  7  J.J.  Marsh.  (Ky.)407;  Wil- 
son V.  Marsh,  i  Johns.  (N.  Y.)  503. 

2.  A  Count  on  Contract  Changed  to 
Tort. — Where  the  defendant,  "for 
value  received,  promised  to  pay  the 
plaintiff  a  sum  of  money  if  and  when 
the  defendant  should  recover  his  de- 
mands against  A.,"  it  was  held  compe- 
tent for  the  plaintiff  to  prove  that  the 
defendant  had  no  demands  against  A. 
(and  so  the  promise  was  absolute),  or 
that  he  had  not  used  due  diligence  to 
collect  them.  A  count  upon  such  con- 
tract, alleging  that  the  promisor,  in- 
tending to  wrong  the  plaintiff,  had 
never  attempted  to  recover  his  de- 
mands against  A.,  cannot  be  joined 
with  a  count  in  assumpsit.  Tort  and 
contract  cannot  be  joined.  White  v. 
Snell,  5  Pick.  (Mass.)  425. 

Count  for  not  Building  a  Wagon-way. 
— A  count  in  tort  against  a  railroad 
company  for  not  building  a  wagon-way 
over  their  road  where  it  crosses  a  farm, 
as  required  by  their  charter,  cannot  be 
joined  with  a  count  to  recover  the  cost 
of  a  w^agon-way  which  the  plaintiff 
had  erected  over  the  road,  after  twenty 
days'  notice,  which  by  their  charter 
the  company  in  such  case  were  liable 
to  pay.  One  count  is  founded  on  tort, 
the  other  on  contract.  Green  v.  Mor- 
ris, etc.,  R.  Co.,  24  N.  J.  L.  4S6. 

Damages  for  Sale  of  Liquor  and  for 
Money  Paid. — A  count  for  damages  for 
the  unlawful  sale  of  liquor  cannot  in- 
clude a  claim  for  the  recovery  of  the 
money  paid.  Friend  v.  Dunks,  37 
Mich.  25. 

Adding  a  Damnum  Clause. — Misjoin- 
der in  a  single  count  of  two  incompati- 
ble causes  of  action,  such  as  tort  and 
assumpsit,  is  cured  by  judgment  if 
no  demurrer  or  other  objection  is 
interposed.  Adding  a  single  ad 
damnum  clause  "  for  the  damages  as 
aforesaid  suffered "  will  not  cure  the 


170 


Joinder  at  Common  Law. 


ACTIONS, 


Penalties. 


10,  Penalties. — Actions  on  statutes  giving  penalties  often  give 
rise  to  the  question,  in  what  form  should  the  action  be  brought. 

with  the  former.  Iowa  Economic 
Heater  Co.  v.  American  Economic 
Heater  Co.,  32  Fed.  Rep.  735. 

Joinder  by  Consent. — A  count  for 
money  had  and  received  may  be  joined 
by  consent  with  counts  for  deceit  for 
falsely  representing  that  one  was  a 
creditor  of  the  government,  and  there- 
by obtaining  a  certificate  of  stock  in 
the  public  funds.  Fenemore  v.  U.  S., 
3  Ball.  (U.  S.)  357. 

Mere  Negligence. — Counts  requiring 
different  pleas  and  judgments  cannot 
be  joined.  A  count  ascribing  to  the 
defendant's  mere  negligence  the  loss  of 
a  negro  whom  he,  as  hirer,  was  bound 
to  redeliver  is  a  count  in  tort,  and  may 
be  joined  with  another  in  trover.  An- 
gus V.  Dickerson,  Meigs  (Tenn.)  458  ; 
Baxter  v.  Pope,  Meigs  (Tenn.)  467. 

Deceit  and  Assumpsit. — Counts  in  de- 
ceit and  assumpsit  cannot  be  joined. 
Crooker  v.  Willard,  28  N.  H.  134. 

Against  Bailee. — A  count  against  a 
bailee  for  neglect  of  duty  may  be  joined 
with  others  ex  delicto.  Pettit  v.  Sanger, 
2  Pearson  (Pa.)  84. 

Partly  Breach  of  Contract. — A  com- 
plaint consisting  partly  of  breach  of 
contract  and  partly  of  misfeasance,  in 
which  the  plea  is  not  guilty,  may  be 
joined  with  trover.  Smith  v.  Ruther- 
ford, 2  S.  &  R.  (Pa.) 358. 

Against  Sheriff. — Where,  in  an  action 
against  the  sheriff,  the  plaintiff's  dec- 
laration contained  one  count  in  case 
against  him  as  sheriff  for  so  negli- 
gently executing  the  writ  as  to  cause 
plaintiff  to  lose  his  debt,  and  another 
in  trover  and  conversion  against  him 
individually  for  the  value  of  the  goods, 
such  joinder  is  not  error,  for  they  are 
both  actions  on  the  case,  the  plea  and 
judgment  being  the  same  in  each.  Pat- 
terson V.  Anderson,  40  Pa.  St.  359,  80 
Am.  Dec.  579. 

Trover  and  Negligence. — Trover  may 
be  joined  with  case  for  negligence. 
McCahan    v.     Hirst,     7     Watts    (Pa.) 

175- 

Action  for  Fraudulently  Getting  Pos- 
session of  a  Policy  of  Insurance. — Where 
an  insurance  company  had  obtained 
possession,  from  the  guardian  of  the 
beneficiaries,  of  the  policy  of  insurance 
by  means  of  a  fraudulent  settlement 
with  him,  held,  that  the  beneficiaries 
could  sue  the  company  for  fraud  and 
for  conversion;  that  is,  case  and  trover 


misjoinder  of  causes  of  action  in  as- 
sumpsit and  case.  Schafer  v.  Boyce, 
41  Mich.  256;  Friend  v.  Dunks,  39 
Mich.  733. 

Count  Setting  Forth  a  Cause  of  Action 
on  Contract. — When  a  count  in  a  decla- 
ration sets  forth  a  cause  of  action 
arising  out  of  a  contract,  and  maintain- 
able only  by  referring  to  the  contract 
as  creating  the  right  for  violation  of 
which  the  plaintiff  complains,  a  recov- 
ery can  be  had  only  in  an  action  on 
contract,  and  not  in  an  action  for  tort. 
Such  a  count  cannot  be  joined  with 
counts  in  tort.  McDermott  v.  Morris 
Canal,  etc.,  Co.,  38  N.  J.  L.  53. 

Count  Added  after  Arbitration.  —  A 
count  in  assumpsit  cannot  be  joined 
with  acount  for  a  deceit;  and,  where 
added  after  an  award  of  arbitrators, 
and  an  appeal  therefrom  by  the  defen- 
dant, under  a  declaration  containing 
a  count  for  deceit  only,  it  was  properly 
stricken  off  by  the  court  on  the  trial. 
Pennsylvania  R.  Co.  v.  Zug,  47  Pa.  St. 
480. 

Withdrawal  of  Count. — While  it  is 
true  that  counts  declaring  for  damages 
'ex  contractu  may  not  be  joined  with 
counts  for  damages  ex  delicto,  yet  if  on 
the  trial  under  the  plea  of  not  guilty 
the  court  withdraw  the  counts  ex  con- 
tractu from  the  consideration  of  the 
jury,  the  defendant  suffers  no  harm. 
Erie  City  Iron  Works  v.  Barber,  118 
Pa.  St.  6. 

Judgment  Arrested. — Where  there 
were  two  counts  in  a  declaration — one 
in  assumpsit,  founded  on  the  alleged 
promise  of  the  defendant;  the  other 
for  negligence  or  want  of  care  of  the 
defendant,  and  sounding  in  tort — and 
issue  was  joined  upon  the  plea  of  non- 
assumpsit,  and  a  general  verdict  was 
rendered  for  the  plaintiff,  upon  mo- 
tion judgment  was  arrested.  Peabody 
V.  Kingsley,  40  N.  H.  416.  See  Boody 
V.  Watson,  64  N.  H.  162. 

Allegation  Sounding  in  Contract. — A 
suit  being  brought  for  fraudulent  rep- 
resentations in  the  sale  of  the  right  to 
sell  a  certain  invention,  the  plaintiff 
also  alleged  that  defendant  failed  to 
deliver  to  plaintiff  a  certain  number  of 
the  patented  articles  as  agreed.  Held, 
that  this  latter  allegation  was  not  a 
cause  of  action  sounding  in  contract, 
but  was  an  allegation  of  defendant's 
fraudulent  scheme,  and  was  joinable 


171 


Joinder  at  Common  Law. 


ACTIONS. 


Penalties. 


Generally,  it  is  a  question  of  the  construction  of  the  statute.* 
After  it  is  determined  in  what  form  the  action  is  to  be  brought, 
other  causes  of  action,  remediable  by  the  same  form,  may  be 
joined.* 


could  be  joined.     Hayes  v.  Massachu- 
setts Mut.  L.  Ins.  Co.,  125  111.  626. 

Count  Held  to  be  One  in  Assumpsit. — 
A  count  the  gist  of  which  is  that  the 
parties  agreed  to  make  a  joint  pur- 
chase of  certain  land,  each  to  pay  one 
half  the  price,  and  that  defendant  made 
the  purchase  for  fifteen  hundred  dol- 
lars, but  represented  to  plaintiff  that 
the  price  paid  was  two  thousand  dol- 
lars, and  thereby  induced  him  to  pay 
one  thousand  dollars  instead  of  seven 
hundred  and  fifty  dollars  as  his  share, 
and  which  seeks  to  recover  back  the 
amount  thus  procured  from  the  plain- 
tiff in  excess  of  his  share  of  the  actual 
purchase-price,  with  interest  thereon, 
embodies  the  subject  of  a  good  count 
in  assumpsit,  and  may  be  joined  with 
the  common  counts.  Young  v.  Taylor, 
36  Mich.  25. 

Option  to  Sae  in  Special  or  General 
Counts. — One  who  had  contracted  to  de- 
liver all  his  lumber  sold  part  of  it  to 
third  persons.  Held,  that  recovery 
might  be  sought  against  him  under 
common  and  special  counts  in  the  same 
declaration.  The  special  count  would 
lie  for  breach  of  contract  or  wrongful 
conversion  or  both,  and  the  common 
counts  for  the  conversion.  Hart  v. 
Summers,  38  Mich.  399. 

Count  Held  to  be  One  in  Case. — A  dec- 
laration in  a  plea  of  trespass  on  the 
case,  which  was  evidently  intended  to 
■claim  damages  for  defendant's  wrong- 
ful act  in  permitting  plaintiff's  horse 
to  be  turned  into  a  pasture,  knowing 
of  the  existence  of  disease  among  the 
•other  horses  therein,  was  held  a  dec- 
laration in  case  and  not  in  assumpsit. 
Costello  V.  Ten  Eyck,  86  Mich.  348,  24 
Am.  St.  Rep.  128. 

Tennessee.  —  Counts  in  assumpsit, 
tort,  and  upon  the  facts  of  the  case 
may  be  united  in  a  declaration.  Lou- 
isville, etc.,  R.  Co.  V.  Guthrie,  10  Lea 
(Tenn.)  432. 

Pennsylvania. — A  count  in  the  nature 
of  deceit  may  be  joined  with  the  com- 
mon counts  in  assumpsit.  Jones  v. 
Conoway,  4  Yeates  (Pa.)  log. 

Michigan.  —  Ruling  in  Bellant  v. 
Brown  Limited. — A  count  in  trover 
cannot  be  joined  with  one  in  trespass 
nor  with  one  in  assumpsit.     A  count 

17 


in  a  declaration  which  recites  that  the 
plaintiff  was  a  lessee  of  the  defend- 
ants, and  in  the  possession  of  a  cer- 
tain room,  and  that  it  was  defendants' 
duty  to  permit  the  plaintiff  to  occupy 
the  room  as  their  tenant,  and  that,  in 
disregard  of  this  duty,  the  defendants 
fastened  up  the  door  of  the  room  and 
prevented  plaintiff  from  entering,  sets 
up  a  trespass.  What  was  said  in  Bel- 
lant V.  Brown,  78  Mich.  297,  relative 
to  the  joinder  of  trespass  and  case 
must  be  construed  as  limited  to  cases 
in  which  either  form  of  action  is  per- 
missible. Therefore  trespass  to  real 
property  and  conversion  of  personal 
property  cannot  be  joined.  Haines  v. 
Beach,  go  Mich.  563. 

1.  Actions  for  Different  Penalties  may 
be  joined.  Holland  v.  Bothmar,  4  T. 
R.  229;  Young  V.  Rex,  3  T.  R.  103;  2 
Vin.  Ab.  44,  pi.  49. 

2.  Trespass  and  Penalty. — A  count  on 
debt  for  the  statutory  penalty  for  cut- 
ting trees,  and  a  count  on  trespass  for 
damages,  cannot  be  joined.  Elder  v. 
Hilzheim,  35  Miss.  231. 

Enticing  Away  Servants. — Counts  for 
a  penalty  founded  on  statute,  for  en- 
ticing away  servants,  may  be  joined 
with  counts  for  common-law  damages 
for  enticing  away  servants.  Hays  v. 
Borders,  6  111.  46. 

All  for  Same  Cause  of  Action. — Where 
there  are  three  counts  in  a  declaration 
in  trespass  to  recover  damages  for 
personal  injuries  received  by  the 
plaintiff  from  the  dogs  of  defendants, 
two  of  which  counts  are  founded  on 
the  common-law  liability  for  such  in- 
jury, and  the  other  based  upon  a 
special  statute,  it  cannot  be  said  as  a 
legal  proposition,  that  they  are  all  for 
the  same  cause  of  action.  Swift  v. 
Applebone,  23  Mich.  252. 

Taking  Illegal  Fees. — A  count  for 
taking  illegal  fees  cannot  be  joined 
with  other  counts  in  case,  for  a  tort. 
Denoon  v.  Binns,  2  Clark  (Pa.)  397. 

Trover  and  Penalty. — Trover  cannot 
be  joined  with  an  action  to  recover  the 
penalty  of  double  damages,  for  dis- 
tress and  sale,  where  no  rent  is  in  ar- 
rears and  due.  Smith  v.  Meanor,  16 
S.  &  R.  (Pa.)  375. 

Injury  from  Defect  in  Bridge. — A  count 


Joinder  at  Common  Law. 


ACTIONS. 


Touching  Real  Estate. 


11.  Touching  Real  Estate. — Where  real  estate  forms  the  subject- 
matter  of  the  suit,  certain  matters  have  been  held  either  prop- 
erly or  improperly  joined.     The  cases  will  be  found  in  the  note.^ 


at  common  law  claiming  damages  for 
an  injury  sustained  in  consequence  of 
a  defect  in  a  bridge  may  be  joined 
with  a  count  on  St.  1786,  c.  81,  §  7, 
claiming  double  damages  for  the  same 
injury,  the  form  of  the  action  being 
the  same  in  both  counts.  Worster  v. 
Canal  Bridge,  16  Pick.  (Mass.)  541  ; 
Heridia  v.  Ayres,  12  Pick.  (Mass.)  334. 

Form  of  Action  Same. — A  count  on  a 
statute,  for  double  damages,  may  be 
joined  with  a  count  at  common  law  for 
damage  of  like  kind,  where  the  form 
of  action  given  by  the  statute  is  the 
same  as  that  at  common  law.  Fair- 
field V.  Burt,  II  Pick.  (Mass.)  244. 

Count  Held  One  for  Penalty. — A  count 
in  trespass  for  cutting  down  and 
carrying  away  a  tree  from  the  plain- 
tiff's land,  which  commences  like  a 
count  in  trespass  q.  cl.  fr.,  but  con- 
cludes with  an  allegation  that  the 
trespass  is  "  contrary  to  the  statute  in 
such  case  made  and  provided,  where- 
by the  plaintiff  is  entitled  to  recover  of 
the  defendant  treble  the  aforesaid 
value  of  said  tree,  etc.,"  will  be  con- 
strued to  be  a  count  for  the  penalty 
prescribed  by  the  statute,  and  not  a 
count  in  trespass  at  common  law. 
Keyes  v.  Prescott,,  32  Vt.  86. 

Debt  the  Bemedy  to  Recover  Penalty 
for  Cutting  Trees. — Trespass,  to  recover 
the  statutory  penalty  for  wilful  cut- 
ting of  trees,  cannot  be  joined  with 
trespass  for  breaking  and  entering 
the  plaintiff's  close,  nor  with  trespass 
for  taking  and  carrying  away  goods. 
Debt,  and  not  trespass,  is  the  proper 
remedy  to  recover  such  a  penalty. 
Morrison  v.  Bedell,  22  N.  H.  234. 

Treble  Damages. — The  treble  dam- 
ages given  by  the  provincial  act  of  I 
Geo.  II,  c.  4,  are  to  be  sued  for  in  an 
action  of  trespass.  Prescott  v.  Tufts, 
4  Mass.  146. 

Against  Witness  for  Non- Attendance. — 
In  an  action  against  a  witness  for  non- 
attendance,  a  count  in  case,  and  one 
in  debt  for  the  penalty,  may  be 
joined.  Smith  v.  Merwin,  15  Wend. 
(N.  Y.)  184. 

Penalty  for  Extortion. — Counts  in 
debt  for  the  statute  penalties  for  ex- 
tortion may  be  joined  with  one  for 
money  had  and  received,  where  the 
entire  recovery  goes  to  the  party  ag- 


grieved.      Spence    v.    Thompson,     11 
Ala.  746. 

1.  Forcible  Entry  and  Unlawful  De- 
tainer.— A  proceeding  to  recover 
against  a  "forcible  entry"  and  one 
to  recover  against  an  "unlawful  de- 
tainer" cannot  be  joined  in  one  com- 
plaint under  the  forcible  entry  and  de- 
tainer statute.  Liddon  v.  Hodnett,  22- 
Fla.  271;  Walls  v.  Endel,  17  Fla.  478. 

Land  and  Mesne  Profits. — The  act  of 
December  20,  1859,  authorizing  a  re- 
covery in  an  action  of  ejectment  "  of 
the  land  in  controversy,  together  with 
mesne  profits,"  combined  the  action  of 
ejectment  with  the  common-law  action 
of  trespass  vi  et  armis  for  mesne  prof- 
its. In  this  action  damages  for  the  de- 
tention of  the  land  may  be  recovered 
from  the  initial  date  of  the  detention 
to  the  trial  of  the  cause.  Ashmead  v. 
Wilson,  22  Fla.  255. 

Suit  in  Equity  to  Recover  Land. — A 
suit  in  equity  to  recover  the  possession 
of  lands  under  a  legal  title,  and  for 
mesne  profits,  cannot  be  maintained. 
All  the  issues  of  law  and  fact  in  regard 
to  the  title  and  the  rents  and  profits 
may  be  tried  in  a  court  of  law.  Ca- 
vedo  V.  Billings,  16  Fla.  261. 

Bill  to  Set  Aside  Deed  and  for  Rents  and. 
Profits. — A  bill  in  equity  to  set  aside  a 
deed  or  mortgage  cannot  be  sustained 
without  the  presence  of  the  grantee  or 
mortgagee  ;  and  with  such  matters 
cannot  be  joined  a  demand  for  rents 
and  profits.  Mattair  v.  Payne,  15  Fla, 
682. 

Ejectment  and  Specific  Performance. — 
It  is  improper  to  unite  an  action  for 
specific  performance  against  one  party, 
and  an  action  of  ejectment  against  an- 
other, in  the  same  suit.  Where  making 
a  person  a  party  defendant  to  a  com- 
plaint seeking  a  specific  performance 
would  have  this  effect,  a  motion  to  be 
made  a  party  defendant  should  be  de- 
nied.    Fagan  v.  Barnes,  14  Fla.  53. 

Onfr  Count. — A  declaration  which 
contained  but  one  count,  in  which  the 
plaintiff  declared  on  all  the  covenants 
in  the  deed,  being  the  covenant  of 
seizin,  of  freedom  from  incumbrances, 
and  to  warrant  and  defend,  held,  bad. 
Hacker  v.  Storer,  8  Me.  228. 

Land  Twice  Demanded  in  a  Writ  of 
Right. — If  the  same  land  is  twice  de- 


Joinder  at  Common  Law. 


ACTIONS. 


Statement  of  Same  Cause. 


12.  Certiorari  and  Mandamus. — Certiorari  and  mandamus  cannot 
be  joined  in  one  writ.' 

13.  Replevin. — Joining  two  counts  in  a  writ  of  replevin  is  bad.* 

14.  Slander  and  Malicious  Prosecution. — Slander  and  malicious 
prosecution  may  be  joined.^ 

15.  Statement  of  Same  Cause  in  Different  Forms. — Closely  allied 
with  the  subject  of  joinder  is  that  of  the  statement  of  the  same 
cause  of  action  in  different  counts.  At  common  law  the  pleader 
could  insert  as  many  counts  as  he  chose,  provided  they  were  all 
in  the  same  form  of  action.  The  object  of  this  was  to  guard 
against  the  danger  of  an  insufficient  statement,  and  the  contin- 
gency that  the  evidence  might  not  support  the  case.*  Some  of 
the  common-law  states  allow  a  plaintiff  to  state  his  cause  of  ac- 
tion in  several  ways,  so  as  to  meet  the  evidence,  and  under  these 
statutes  there  is  no  objection  if  case  and  trespass,  or  tort  and  con- 
tract, are  joined  in  one  action,  provided  they  all  purport  to  be 
different  statements  of  the  same  cause  of  action.* 


manded  in  a  writ  of  right,  the  writ  is  3.  Miles  v.  Oldfield,  4  Yeates  (Pa.) 

abatable.      Overseers  v.  Otis,  20  Pick.  423,  2  Am.  Dec.  412.     In  Kentucky  an 

(Mass.)  38.  action  for  malicious  arrest  cannot  be 

Damages  for  Unlawful  Foreclosure  of  joined  with  one   for  slander.     Dragoo 

Mortgage  and  for  Trover. — A  declara-  v.  Levi,  2  Duv.  (Ky.)  520. 

tion  in  trespass  on  the  case  for  dam-  4.  "  One  object  proposed  in  inserting 


ages  from  the  unlawful  foreclosure  of 
a  mortgage  may  include  a  count  in 
trover  for  the  excess  of  the  proceeds 
of  sale  retained  by  the  mortgagee  be- 
yond his  debt.  Bearss  v.  Preston,  66 
Mich.  II. 

Common  Counts  and  for  Use  and  Occupa- 
tion.— The  common  counts  may  be 
joined  with  a  count  for  use  and  occu- 
pation of  a  house  and  lot,  a  count 
upon  a  special  contract  to  pay  rent,  a 
count  on  a  special  contract  for  the 
purchase  of  a  house  and  lot  upon 
which  a  balance  was  claimed,  and 
counts    on    judgments — under    How. 


two  or  more  counts  in  one  declaration, 
when  there  is  in  fact  but  one  cause  of 
action,  is  in  some  cases  to  guard 
against  the  danger  of  an  insufficient 
statement  of  the  cause,  where  a  doubt 
exists  as  to  the  legal  sufficiency  of  one 
or  another  of  twoor  more  different 
modes  of  declaring.  But  the  more 
usual  end  proposed  in  inserting  more 
than  one  count  in  such  a  case  is  to  ac- 
commodate the  statement  of  the  cause, 
as  far  as  may  be,  to  the  possible  state 
of  the  proof  to  be  exhibited  on  the 
trial;  or  to  guard,  if  possible,  against 
the  hazard  of  the  proofs  varying  ma- 


Sts.,  §  7778,  allowing  assumpsit  to  be     terially  from  the  cause  of  action.     So 


brought  on  judgments.  Hogsett  v. 
Ellis,  17  Mich.  361. 

Eecovery  of  Land  and  Damages. — A 
cause  of  action  for  damages  for  with- 
holding the  possession  of  real  prop- 
erty may  be  joined  with  one  for  the 
possession  of  such  property.  Pengra 
V.  Munz,  29  Fed.  Rep.  830. 

Kent  and  Use  and  Occupation. — A 
count  to  recover  rent  due  on  a  lease 
and  a  count  for  use  and  occupation 
may  be  joined.  Wagle  v.  Bartley 
(Pa.,  1887),  II  Atl.  Rep.  223. 

1.  Fairbanks  v.  Amoskeag  Nat. 
Bank,  30  Fed.  Rep.  602. 

2.  Hart  v.  Fitzgerald,  2  Mass.  509,  3 
Am.  Dec.  75. 


that  if  one  or  more  of  the  several 
counts  should  not  be  adapted  to  the 
evidence,  some  other  of  them  may  be 
so."  Gould  on  Pleading,  chap,  iv,  §4. 
5.  Teague  v.  Irwin,  134  Mass.  303; 
New  Haven,  etc.,  Co.  v.  Campbell, 
128  Mass.  104,  35  Am.  Rep.  360;  Clapp 
V.  Campbell,  124  Mass.  50;  Morse  v. 
Hutchins,  102  Mass.  439;  Hulett  v. 
Pixley,  97  Mass.  29;  Clay  v.  Barlow, 
123  Mass.  378;  Jenkins  v.  Bacon,  iii 
Mass.  373;  May  v.  Western  Union  Tel. 
Co.,  112  Mass.  90;  Cunningham  v. 
Hall,  7  Gray  (Mass.)  559;  Black  v. 
Howard,  50  Vt.  27;  Hagar  e-.  Brainerd, 
44  Vt.  294;  Skinner  v.  Wilder,  38  Vt. 
115,  88  Am.  Dec.  645;  Templeton   v. 


174 


Joinder  at  Common  Law. 


ACTIONS. 


Suits  in  Equity. 


16.  A'^tions  at  Law  and  Suits  in  Eqnity. — Actions  at  law  and 


Clogston,  59  Vt.  628;  Rutherford  v. 
Whitcher,  60  N.  H.  no;  Little  v. 
Blunt,  13  Pick.  (Mass.)  473;  Bishop  z/. 
Baker,  19  Pick.  (Mass.)  517;  Kennedy 
V.  Saunders,  142  Mass.  9;  Allen  v. 
Codman,  139  Mass.  136;  Kellogg  v. 
Kimball,  142  Mass.  124;  Cole  v.  Sprowl, 
35  Me.  161,  56  Am.  Dec.  696;  National 
Exchange  Bank  v.  Abell,  63  Me.  346; 
Hartsock  v.  Mort,  76  Md.  28;  Kellogg 
V.  Kimball,  122  Mass.  163;  Ames  v. 
Stevens,  120  Mass.  218;  Mason  v. 
Field,  119  Mass.  585;  Mahon  z/.  Blake, 
125  Mass.  477;  Owen  v.  Weston,  63  N. 
H.  599,  56  Am.  Rep.  547;  Walker  v. 
Walker,  63  N.  H.  321,  56  Am.  Rep. 
514;  Metcalf  V.  Gilmore,  59  N.  H.  417, 
47  Am.  Rep.  217. 

Mast  Appear  in  Declaration  that  it  is 
Same  Cause  of  Action. — A  count  in  tres- 
pass joined  with  a  count  in  trover  is 
bad  on  dumurrer,  unless  it  appears 
from  the  declaration  that  they  are  for 
the  same  cause  of  action.  Thus,  where 
the  count  in  trespass  alleged  that  the 
defendant  broke  and  entered  the  plain- 
tiff's close,  and  cut  down  and  carried 
away  3000  spruce  trees,  1000  hem- 
lock trees,  and  1000  other  trees,  and 
the  count  in  trover  alleged  that  the  de- 
fendant converted  to  his  own  use  250,- 
000  feet  of  spruce  lumber  and  10,000 
feet  of  hemlock  lumber,  etc. ,  possessed 
by  the  plaintiff,  held,  a  misjoinder. 
Templeton  v.  Clogston,  59  Vt.  628. 

Scope  of  License  to  Insert  Counts  Limited. 
— A.  and  B.,  owners  of  adjacent  lands 
and  buildings,  made  a  contract  where- 
by B.  agreed  to  make  certain  altera- 
tions in  the  roof  of  A.'s  building  where 
it  abutted  upon  B.  In  an  action  by  A. 
for  a  breach  of  this  contract,  he  joined 
counts  in  tort,  averring  that  they  were 
for  the  same  cause  of  action.  Held, 
that  under  these  counts  A.  could  not 
show  acts  of  B.  done  in  regard  to  por- 
tions of  A.'s  roof  not  abutting  on  B. 
Mason  v.  Field,  119  Mass.  585. 

Discharge  of  Sureties  by  Amendment. — 
If  the  declaration  in  an  action  con- 
tains a  count  in  contract  and  one  in 
tort,  not  alleged  to  be  for  the  same 
cause  of  action,  and  a  demurrer  to  the 
declaration  is  sustained  for  misjoinder 
of  counts,  and  the  count  in  tort  is 
stricken  out,  and,  by  amendment,  a 
count  in  tort  is  added  for  the  same 
cause  of  action,  and  this  is  properly 
averred,  such  amendment  does  not 
discharge  the  sureties  on  a  bond  given 


to  dissolve  an  attachment  in  the  action, 
although  the.amendment  is  made  with- 
out notice  to  the  sureties.  Kellogg  v. 
Kimball,  142  Mass.  124. 

Same  Cause  of  Action  Presumed. — 
The  first  count  alleged  that  on  divers 
days  defendant  with  force  and  arms 
broke  and  entered  plaintiff's  close  and 
tore  down  and  destroyed  the  division 
fence  between  said  close  and  land  of 
defendant,  and  with  his  cattle,  etc., 
trod  down  and  destroyed  the  herbage 
there  growing.  The  third  count  al- 
leged that  it  was  defendant's  duty  to 
maintain  part  of  the  division  fence, 
but  that  he  had  not  done  so,  by  rea- 
son of  which  the  cattle  of  defendant 
trespassed  on  plaintiff's  close.  Held, 
that  the  two  counts  were  meant  to  em- 
brace the  same  cause  of  action,  and 
were  joinable  under  j^  14,  c.  33,  of  Gen. 
Sts.     Black  V.  Howard,  50  Vt.  27. 

Action  Entitled  in  Writ  one  of  Con- 
tract.— Under  Gen.  Sts.  c.  129,  §  2,  cl. 
5,  a  count  in  contract  may  be  joined  in 
the  same  declaration  with  a  count  in 
tort  when  it  is  deemed  doubtful  to 
which  class  the  cause  of  action  be- 
longs, although  the  action  is  entitled 
in  the  writ  an  action  of  contract.  Hu- 
lett  V.  Pixley,  97  Mass.  29.  See  Clay 
V.  Barlow,  123  Mass.  378. 

Inconsistent  Counts. — In  an  action  of 
tort  by  a  mortgagee  for  the  conversion 
of  personal  property  against  an  officer 
who  attached  it  as  the  property  of  the 
mortgagor,  and  sold  it  under  the  Gen. 
Sts.  c.  123,  §  72,  there  was  a  count  for 
money  had  and  received,  both  counts 
being  alleged  to  be  for  the  same  cause 
of  action.  Held,  that  the  two  counts 
were  inconsistent,  and  that  the  defend- 
ant had  the  right  to  require  the  plain- 
tiff to  elect  upon  which  count  he  would 
proceed.  Clappz/.  Campbell,  124  Mass. 
50. 

Practice. — A  declaration  contained 
three  counts,  two  in  tort  and  the  third 
in  contract,  for  money  had  and  re- 
ceived, not  alleged  to  be  for  one  and 
the  same  cause  of  action.  A  demur- 
rer to  the  declaration  was  sustained 
because  of  a  misjoinder  of  a  count  in 
tort  with  a  count  in  contract.  An 
amended  declaration  was  filed,  as  a 
substitute  for  the  first  and  second 
counts  of  the  original  declaration,  con- 
taining two  counts,  one  in  contract  and 
one  in  tort,  and  alleging  that  the  count 
in  tort  was  for  the  same  cause  of  action 


175 


Joinder  at  Common  Law. 


ACTIONS. 


Looisiana. 


suits  in  equity  cannot  be  joined.* 

17.  Louisiana. — The  joinder  of  actions  in  Louisiana  is  techni- 
cally termed  "  cumulation  of  actions."  The  Code  is  very  broad 
and  liberal,  allowing  almost  all  demands  to  be  cumulated  which  are 
not  inconsistent  with  each  other.*  The  inconsistency  which  will 
preclude  the  joinder  of  the  causes  of  action  must  be  a  real  incon- 
sistency. Mere  technical  inconsistency,  such  as  that  arising  from 
demanding  inconsistent  relief,  or  different  kinds  of  relief,  will  not 
make  the  joinder  an  improper  one.^ 


as  set  out  in  the  three  counts  of  the 
original  declaration.  A  demurrer, 
filed  to  the  amended  declaration  be- 
cause neither  count  stated  a  legal  cause 
of  action  and  for  misjoinder,  was  sus- 
tained as  to  the  first  amended  count 
and  overruled  as  to  the  others.  Held, 
that  the  count  for  money  had  and  re- 
ceived in  the  original  declaration  re- 
mained in  the  record  as  one  of  the 
counts  upon  which  the  plaintiff  relied. 
Kellogg  V.  Kimball,  122  Mass.  163. 

1.  Cherokee  Nation  v.  Southern  Kan. 
R.  Co.,  135  U.  S.  641;  Hurt  v.  Holling- 
worth,  100  U.  S.  100;  Buzard  v.  Hous- 
ton, 119  U.  S.  342. 

Massachusetts. — A  count  praying  for 
relief  in  equity  under  Sts.  1853,  c.  371, 
cannot  be  joined  with  a  count  at  law 
without  the  affidavit  required  by  Sts. 
1840,  c.  87,  §  I,  to  give  jurisdiction  to 
the  supreme  judicial  court.  Harvey  v. 
De  Witt,  13  Gray  (Mass.)  536. 

New  Hampshire. — Justice  may  re- 
quire the  prosecution  of  an  action  at 
law  and  a  bill  in  equity  on  the  same 
cause  of  action  at  the  same  time. 
Brooks  !».  Howison,  63  N.  H.  382. 

2.  "  Separate  actions  may  be  cumu- 
lated in  the  same  demand,  except  in 
the  cases  hereafter  expressed.  This 
is  termed  cumulation  of  actions.  The 
plaintiff  is  not  allowed  to  cumulate 
several  demands  in  the  same  action 
when  one  of  them  is  contrary  to  or 
precludes  another.  As,  when  one  has 
bought  a  thing  in  the  name  of  another, 
and  with  his  funds,  without  his  au- 
thorization, the  person  for  whom  the 
purchase  has  been  made  cannot  de- 
mand by  the  same  action  both  the 
thing  bought  in  his  name  and  the 
money  employed  for  paying  the  price. 
Nor  can  a  vendor  demand  at  the  same 
time  the  rescission  of  the  sale  he  had 
made  and  thq  price  for  which  it  was 
made  ;  he  must  decide  for  one  or  the 
other  of  the  two  causes  of  action,  as 
the   one  precludes  the  other.     If  the 


plaintiff^has  several  causes  of  action 
tending  to  the  same  conclusion,  not 
contrary  to  nor  exclusive  of  each  other, 
though  they  arise  from  different  con- 
tracts, he  may  cumulate  and  bring 
them  in  the  same  suit;  as,  for  example, 
if  one  claim  from  another  one  hun- 
dred dollars  in  virtue  of  a  sale  and  one 
thousand  dollars  in  virtue  of  a  loan; 
or  if  he  claim  a  movable  from  another 
both  by  inheritance  and  by  purchase." 
Rev.  Code  1875  (Voorhies),  arts.  148, 
149,  151,  p.  66  ;  Petitpain  v.  Frey,  15 
La.  195;  De  L'Homme  v.  De  Kerle- 
gand,  4  La.  353;  Copley  v.  Flint,  16 
La.  380;  Bank  of  Louisiana  v.  Delery, 
2  La.  Ann.  648;  Ouliber  v.  His  Credit- 
ors, 16  La.  Ann.  2S7  ;  Theuver  v. 
Knorr,  24  La.  Ann.  597  ;  Kenney  v. 
Dow,  10  Martin  (La.)  577,  13  Am.  Dec. 
342  ;  Williams  v.  Close,  12  La.  Ann. 
873;  Cross  V.  Richardson,  2  Martin  N. 
S.  (La.)  323  ;  Montross  v.  Hillman,  II 
Rob.  (La.)  87  ;  Buquet  v.  Watkins,  i 
La.  131;  Wrincle  v.  Wrincle,  8  Martin 
N.  S.  (La.)  333;  Atkinson  v.  Atkinson, 
15  La.  Ann.  491  ;  Medart  v.  Fasnatch, 
15  La.  Ann.  621;  Nouvet  v.  Bollinger, 
15  La.  Ann.  293  ;  Tertrou  v.  Durand. 
29  La.  Ann.  506  ;  Mills  v.  Fellows,  30 
La.  Ann.  824  ;  McNair  v.  Gourrier,  40 
La.  Ann.  353;  Millandon  v.  Sylvestre, 
8  La.  262  ;  Miller  v.  Rougieux,  20  La. 
Ann.  577;  Judice  v.  Provost,  18  La. 
Ann.  601;  Succession  of  Serret,  4  La. 
Ann.  100;  Hollingshead  v.  Sturges,  16 
La.  Ann.  334. 

3.  Simulated  and  Fraudulent  Sale. — It 
is  not  an  inconsistency,  in  pleading  in  a 
direct  action  to  annul,  to  allege  that  a 
sale  is  simulated,  and  if  not  simulated 
that  it  is  fraudulent.  Johnson  v. 
Mayer,  30  La.  Ann.  1203;  Chaffe  v. 
Schicen,  34  La.  Ann.  684.  See  Smith 
V.  Donnelly,  27  La.  Ann.  98. 

Judgment  and  Note. — Where,  in  an 
action  on  a  foreign  judgment,  the  pe- 
tition alleges  that  a  note  which  war  the 
original  evidence  of  the  debt  is  merged 


176 


Joinder  at  Common  Law. 


ACTIONS. 


Bepresentative  Capacity. 


18.     Actions  Brought  in  a   Representative    Capacity — Executors  and 
Administrators. — Where  an  action  is  brought  by  the  personal  repre- 


in  the  judgment,  and  the  action  cannot 
under  the  evidence  be  maintained 
upon  the  judgment,  the  petition  must 
be  dismissed.  The  action  under  the 
pleadings  cannot  be  sustained  on  the 
note.  Bordelais  v.  Mangars,  3  La. 
Ann.  G75- 

Partition  and  Petitory  Action. — A  suit 
should  not  be  dismissed  for  inconsist- 
ency and  improper  cumulation  of 
causes  of  action  in  having  cumulated 
an  action  of  partition  with  a  petitory 
action.  Demands  not  inconsistent 
may  be  brought  in  one  petition  when 
between  the  same  persons  in  the  same 
capacity,  and  when  they  are  not  con- 
trary to  each  other,  either  as  to  the 
cause  of  action  prayed  for  or  the 
relief.  Thus  an  action  to  recover  pos- 
session of  land  and  for  partition  may 
be  cumulated.  Durbridge  v.  Crawley, 
43  La.  Ann.  504  ;  Morris  v.  Lalaurie, 
34  La.  Ann.  204. 

Definite  Sam  and  Indefinite  Sum. — In  a 
suit  in  which  the  plaintiff  makes  claim 
for  a  definite  sum  invested  as  her  share 
of  the  capital  stock  of  a  partnership, 
and  also  for  another  and  indefinite  sum 
as  her  share  of  the  net  profits  thereof 
on  final  liquidation  and  settlement,  a 
motion  to  compel  her  to  elect  will  not 
prevail.  McNair  v.  Gourrier,  40  La. 
Ann.  353. 

Prayer  Does  Not  Authorize  Inconsistent 
Relief. — A  prayer  for  "  general  relief" 
does  not  authorize  a  judgment  recog- 
nizing the  plaintiffs  as  owners  of  cot- 
ton, when  in  their  petition  they  aver 
the  sale  of  the  cotton,  non-payment  of 
the  price  of  sale,  and  claim  a  lien  and 
privilege  on  it.  The  two  reliefs  are 
inconsistent.  Adler  v.  Wolff,  36  La. 
Ann.  169. 

Slander  and  False  Imprisonment. — A 
demand  for  compensation  in  conse- 
quence of  slander  is  not  contrary  to, 
and  does  not  exclude,  a  demand  for 
damages  sustained  by  false  imprison- 
ment.    Buquet  v.  Watkins,  i  La.  131. 

Rescission  of  a  Sale  for  Lesion  Beyond 
Ifoiety  and  on  Account  of  the  Nonpayment 
of  the  Price. — A  suit  for  the  rescission 
of  a  sale  for  lesion  beyond  moiety,  and 
on  account  of  the  nonpayment  of  the 
price,  cannot  be  maintained  for  both 
demands,  as  they  should  not  be  cumu- 
lated in  the  same  action.  Copley  v. 
Flint,  16  La.  380. 


Warranty  and  Fraud. — One  suit  may 
be  brought  on  two  different  causes  of 
action  if  they  be  not  inconsistent. 
Thus,  a  cause  of  action  on  a  contract 
of  warranty,  by  which  the  warrantor 
bound  himself  to  the  plaintiff  for  the 
good  conduct  of  a  clerk;  and  a  cause 
of  action  for  fraudulent  and  deceitful 
rep'resentations  in  regard  to  the  clerk, 
by  reason  of  which  the  plaintiff  took 
him  into  his  service,  and  suffered  in- 
jury from  his  malfeasance,  may  be 
joined.  Cross  v.  Richardson,  2  Mar- 
tin N.  S.  (La.)  323. 

Different  Grounds. — A  plaintiff  may 
set  forth  in  his  petition  different 
grounds  upon  which  he  expects  to 
recover,  provided  he  does  not  .make 
demands  one  of  which  necessarily 
excludes  the  other.  Montross  v.  Hill- 
man,  II  Rob.  (La.)  87. 

Opposition  to  the  Homologation  of  a 
Tableau.  —  Oppositions  having  been 
filed  to  the  homologation  of  a  tableau 
of  distribution  presented  by  the  syn- 
dic of  an  insolvent,  praying  for  the 
cancelling  of  the  sales  made  by  the 
syndic,  that  the  property  be  disposed 
of  again  for  the  benefit  of  all  the 
creditors,  and  the  tableau  set  aside, 
the  opponents  subsequently  filed  other 
oppositions  by  way  of  amendment,  in 
which,  abandoning  the  objects  of  the 
first  oppositions,  and  waiving  their 
purpose  of  disturbing  the  sales  and 
resisting  the  homologation  of  the  tab- 
leau, they  pray  that  the  syndic  may 
be  condemned,  personally,  to  pay 
them  the  amounts  for  which  they 
were  placed  in  the  tableau  as  credit- 
ors of  the  insolvent,  on  the  ground 
of  his  having  acted  without  any  regu- 
lar appointment,  having  sold  the  prop- 
erty illegally,  and  for  his  neglect  and 
waste  of  the  property.  Held,  that  the 
demands  in  the  original  and  amended 
oppositions  are  inconsistent,  the  one 
precluding  the  other,  and  cannot  be 
cumulated  in  the  same  action.  Blake 
V.  His  Creditors,  6  Rob.  (La.)  520. 

Petitory  Action  for  One  Tract  of  Land 
and  Slander  of  Title  of  Another. — A 
party  may  institute  a  petitory  action 
for  one  tract  of  land,  and  in  the  same 
petition  may  sue  the  same  defendant 
for  slander  of  title  of  another  and  dis- 
tinct tract,  but  cannot  in  the  same  suit 
sue  for  a  tract  of  land  and  for  damages 


I  Encyc.  PI.  &  Pr.— 12. 


177 


Joinder  at  Common  Law. 


ACTIONS. 


Bepresentative  Capacity. 


sentative  of  a  decedent,  the  right  to  johi  causes  of  action  is  deter- 
mined by  the  question  whether  the  sum,  when  recovered,  would 
be  assets.*  An  executor  or  administrator  may  declare,  as  such, 
for  goods  sold  or  money  paid  by  him  in  that  character,  and  may 
join  such  counts  with  counts  on  promises  to  the  testator  or  in- 
testate.* But  an  executor  cannot  include  counts  on  causes  of 
action  accruing  to  him  in  his  private  right  and  individual  charac- 
ter, with  counts  on  causes  of  action  which  are  laid  to  have  been 
vested  in  him  in  his  representative  capacity.*  In  an  action  against 
an  executor  a  count  cannot  be  introduced  which  would  charge  him 


for  slander  of  title  to  such  tract.  Will- 
iams V.  Close,  12  La.  Ann.  873. 

Dissolution  of  a  Lease  and  for  Bent. — 
There  is  nothing  inconsistent  in  a  de- 
mand for  the  dissolution  of  a  lease 
being  coupled  with  a  demand  for  the 
rent  up  to  the  time  that  possession  is 
delivered  to  the  lessor.  Dubois  v. 
Xiques,  14  La.  Ann.  430. 

Demand  in  Separation  of  Property  by 
Wife,  and  to  Enjoin  the  Seiaure  of  Prop- 
erty Claimed  by  Her. — There  is  no  ob- 
jection to  the  cumulation  of  a  demand 
in  separation  of  property  by  the  wife, 
with  an  action  to  enjoin  the  seizure 
of  certain  property,  claimed  by  her  as 
her  separate  property,  and  seized  un- 
der execution  by  the  creditors  of  her 
husband.  Atkinson  v.  Atkinson,  15 
La.  Ann.  491. 

Possessory  Action. — Damages  may  be 
allowed  in  a  possessory  action  for  a 
tortious  possession.  Chinn  v.  Blanch- 
ard,  6  La.  Ann.  66. 

1.  "  It  is  now  a  well-settled  rule,  in 
actions  by  a  plaintiff  who  is  an  execu- 
tor or  administrator,  that  where  the 
money,  when  recovered,  would  be  as- 
sets, the  executor  may  declare  for  it 
in  his  representative  character  ;  and 
that  the  best  line  to  adopt  in  deter- 
mining whether  counts  maybe  joined 
is  to  consider  whether  the  sum,  when 
recovered,  would  be  assets."  Chitty 
on  Pleadings  (i6th  Am.  ed.),  222. 

2.  Howard  z'.  Powers,  6  Ohio  92;  Mc- 
Kinley  v.  Call,  i  T.  B.  Mon.  (Ky.)  54  ; 
Wilson  V.  Hunt,  6  B.  Mon.  (Ky.)  383  ; 
Sullivan  v.  Holker,  15  Mass.  374  ; 
Haskell  v.  Bowen,  44  Vt.  580  ;  Cowel 
■V.  Watts,  6  East  405  ;  Thompson  v. 
Stent,  I  Taunt.  332  ;  Powley  v.  New- 
ton, 2  Marsh.  147  ;  Dowbiggan  v. 
Harrison,  9  B.  &  C.  666,  17  E.  C.  L. 
470 ;  Ord  V.  Fenwick,  3  East  104 ; 
Edwards  v.  Grace,  2  M.  &  N.  190; 
Chitty  on  Pleadings  (i6th  Am.  ed.), 
222. 


Count  Construed. — A  count  upon  a 
promise  made  to  the  plaintiff's  intes- 
tate cannot  be  joined  with  a  count  al- 
leging that  the  defendant,  "  being  in- 
debted to  the  plaintiff  as  aforesaid  " 
(the  plaintiff  having  been  previously 
described  as  administrator)  in  a  cer- 
tain sum  "  for  goods  sold  and  deliv- 
ered by  the  plaintiff  to  the  defendant, 
in  consideration  thereof  promised  to 
pay  the  same  to  the  plaintiff  ;"  and  a 
declaration  in  which  such  counts  are 
joined  is  bad  even  after  verdict. 
Brown  v.  Webber,  6  Cash.  (Mass.) 
560. 

Vermont. — The  mere  fact  that  two 
causes  of  action  do  not  accrue  to  a 
plaintiff  in  the  same  right  is  no  reason 
why  they  may  not  be  joined  in  the 
same  suit,  for  the  court  can  instruct 
the  jury  to  assess  separate  damages 
on  the  several  counts.  So  an  admin- 
istrator may  join  a  count  for  damages 
done  his  intestate  in  life  by  the  neglect 
of  the  defendant  with  a  count  for 
damages  accruing  to  the  widow  and 
next  of  kin  by  the  death  of  the  intes- 
tate, also  resulting  from  the  negli- 
gence of  the  defendant.  Ranney  v. 
St.  Johnsbury,  etc.,  R.  Co.,  64  Vt. 
277,  a  case  where  the  plaintiff  was  in- 
jured by  a  train  and,  after  having  had 
medical  care  for  twenty-four  hours, 
died.  One  count  was  for  her  pain  and 
expense  until  she  died,  the  other  was 
for  the  benefit  of  the  next  of  kin  for 
whom  it  was  brought.  The  court 
treated  the  matter  as  two  distinct 
causes  of  action,  and  allowed  their 
joinder.  See  also  Preston  v.  St.  Johns- 
bury,  etc.,  R.  Co.,  64  Vt.  2S0. 

3.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  226  ;  Petrie  v.  Hannay,  3  T.  R. 
659  ;  Richardson  v.  Griffin,  5  M.  &  S. 
294;  Henshall  v.  Roberts,  5  East  150; 
Kingw.  Thom,  i  T.  R.  489;  Nicholas  v. 
Killegrew,  i  Ld.  Ray,  457;  Webster  v, 
Spencer,  3  B.  &  Aid.  360. 

78 


Joinder  at  Common  Law. 


ACTIONS. 


Eepresentative  Capacity. 


personally,  for  the  judgment  in  the  one  case  would  be  de  bonis 
testatoris,  and  in  the  other  de  bonis  propriis.'^ 

4.  Chitty  on  Pleadings  (i6th  Am. 
ed.),  227  ;  Vaughn  v.  Gardner,  7  B. 
Mon.  (Ky.)326;  Moody  v.  Ewing,  8  B. 
Mon.  (Ky.)  521;  Godbold  v.  Roberts,  20 
Ala.  354;  Jefford  v.  Ringgold,  6  Ala. 
544;  Terhune  v.  Bray,  16  N.  J.  L.  54. 
See  Partridge  v.  Court,  5  Price  412  ; 
Catherwood  v.  Chaband,  i  B.  &  C.  150, 
8  E.  C.  L.  67  ;  Brassington  v.  Ault,  2 
Bing.  177,  9  E.  C.  L.  369  ;  Hosier  v. 
Arundel,  3  B.&  P.  7;  Sarell  z/.  Wine,  3 
East  409  ;  Hickman  v.  Walker,  Willes 
27  ;  Pittan  v.  Foster,  2  D.  &  R.  363  ; 
Hurst  V.  Parker,  i  B.  &  Aid.  93  ; 
Short  V.  McCarthy,  3  B.  &  Aid.  626  ; 
Whitehead  v.  Howard,  5  Moore  105  ; 
Ward  V.  Hunter,  6  Taunt.  210. 

Fund  out  of  which  Damages  are  to  be 
Paid  being  Same. — A  count  against  an 
executor,  as  such,  for  money  paid  by 
plaintiff  since  the  testator's  death,  on  a 
bond  in  which  he  was  testator's  surety, 
and  charging  the  executor  with  such 
payment  to  his  use  as  executor,  and 
with  his  promise  to  repay,  is  a  count 
on  which  a  judgment  de  bonis  testatoris 
may  be  rendered,  and  which  may  be 
joined  with  counts  for  promises  made 
by  testator  in  his  lifetime.  Counts 
may  be  joined  where  the  fund  out  of 
which  the  damages  are  to  be  applied  is 
the  same.  Cawleyw.  Reeve,  17  N.  J.  L. 

415. 

On  Promise  of  Testator  and  for  Funeral 
Expenses. — In  assumpsit  against  an 
executor,  a  count  on  a  promise  by  the 
testator  may  be  joined  with  a  count 
for  the  funeral  expenses,  alleging  that 
they  were  incurred  at  the  request  of 
the  executor,  and  that  he,  as  executor, 
promised  to  pay  therefor.  But  it 
seems  that  a  count  on  a  promissory 
note  of  the  executor,  given  in  payment 
of  the  funeral  expenses,  cannot  be 
joined  with  a  count  upon  a  promise  of 
the  testator.  Hapgood  v.  Houghton, 
10  Pick.  (Mass.)  154. 

Proceeding  on  Bond  for  Support. — The 
administrator  of  the  obligor  on  a  bond 
for  support  being  ordered  to  retain  a 
sum  in  his  hands  for  such  support 
unless  a  bond  was  given  to  expend  it 
for  that  purpose,  the  guardian  of  the 
obligor's  heir  gave  bond,  and  the  same 
was  so  expended,  but  proved  insuflS- 
cient.  The  administrator  and  various 
creditors  of  the  obligee  thereupon 
brought  a  bill  in  equity  against  the 
heir  and  the  guardian   to  reach  and 


apply  the  obligor's  real  estate  in  pay- 
ment of  their  claims.  Held,  that  the 
administrator's  remedy  was  by  an 
action  at  law  on  the  bond,  and  that  of 
the  creditors,  if  any,  was  by  charging 
the  heir  as  trustee  in  a  proceeding 
against  the  administrator.  Held,  also, 
that  the  misjoinder  was  a  formal  de- 
fect that  could  be  cured  by  amend- 
ment. Clark  V.  Holbrook,  146  Mass. 
366. 

Amending  Pleading. — The  plaintiff, 
having  declared  "  that  the  defendant, 
administrator,  etc.,  being  indebted  for 
money  had  and  received  by  the  intes- 
tate, promised,"  etc.,  amended  by  de- 
claring that  "the  intestate,  being 
indebted  for  money  had  and  received 
by  him,  promised,"  etc.  Held,  that 
the  amendment  was  for  the  same  cause 
of  action  as  the  original  count.  Eaton 
V.  Whitaker,  6  Pick.  (Mass.)  465  ; 
Clark  V.  Lamb,  6  Pick.  (Mass.)  512. 

Action  against  Bondsmen  of  Adminis- 
trator and  for  Fraudulent  Acts  of  Dece- 
dent.— A  cause  of  action  against  the 
sureties  upon  the  bond  of  an  adminis- 
trator, arising  from  the  breach  of  the 
condition  of  the  bond,  cannot  be 
united  in  the  same  complaint  with  a 
cause  of  action  against  the  administra- 
tor, arising  from  acts  of  the  deceased 
intestate  in  fraudulently  disposing  of 
his  property.  Howse  v.  Moody,  14 
Fla.   59. 

Unconnected  Demands. — Unconnected 
demands  against  different  estates  can- 
not be  united  in  the  same  bill,  though 
the  defendant  is  executor  of  both. 
Daniel  v.  tMorrison,  6  Dana  (Ky.) 
186. 

Individual  Promise  and  upon  Promise 
of  Testator. — Counts  charging  the  de- 
fendants, as  executors,  upon  the 
promise  of  their  testator,  and  upon 
their  own  promise  as  executors  in  con- 
sideration of  assets,  may  be  joined  in 
the  same  declaration,  and  the  judg- 
ment upon  each  count  will  be  de  bonis 
testatoris.  Dixon  v.  Ramsay,  i  Cranch 
(C.  C.)  472. 

Kentucky. — Promises  by  the  testator 
or  intestate  and  a  third  person,  and 
promises  by  the  testator  alone,  may  be 
joined  in  a  suit  against  the  executor  or 
administrator  since  the  statute  of 
1796.  Haggins  v.  Oilman,  10  B.  Mon. 
(Ky.)  217  ;  Hamlet  v.  Bates,  10  B. 
Mon.  (Ky.)  437. 


179 


Joinder  under  the  Codes. 


ACTIONS. 


Code  States. 


19.  Joinder  in  Equity. — The  joinder  of  two  or  more  distinct  sub- 
jects in  an  equity  bill  is  multifarious.  The  cause  of  action  in 
equity  is  broader  than  at  law,  and  embraces  more  matters ;  but  it 
is  a  cardinal  rule  in  equity  practice  that  only  one  separate  and 
distinct  matter  can  be  prosecuted  in  one  suit.  There  is  no  such 
thing  recognized  in  equity  practice  as  the  joinder  of  different  ac- 
tions or  suits.' 

VIII.  Joinder  of  Causes  of  Action  under  the  Codes— 1.  Code  States. 
— Twenty-seven  states  and  three  territories  have  adopted  a  Code 
of  Civil  Procedure.*  These  Codes  all  reduce  to  the  form  of  a 
statute  the  law  on  the  subject  of  the  joinder  of  causes  of  action. 

statutory  Provisions. — While  the  statutes  differ  in  some  minor 
details,  they  all  are  more  or  less  similar  to  the  New  York  Code. 
They  are  in  the  main  founded  on  the  chancery  principle  that  all 
controversies  should,  as  far  as  practicable,  be  settled  in  one 
action.* 


1.  See  article  "  Multifariousness." 
In  endeavoring  to  avoid  the  error 
of  making  a  bill  not  sufficiently  ex- 
tensive to  answer  the  purpose  of 
complete  justice,  care  must  be  taken 
not  to  run  into  the  opposite  defect, 
viz.,  that  of  attempting  to  embrace 
in  it  too  many  objects  ;  for  it  is  a 
rule  in  equity,  that  two  or  more  dis- 
tinct subjects  cannot  be  embraced  in 
the  same  suit.  The  offence  against 
this  rule  is  termed  multifariousness, 
and  will  render  a  bill  liable  to  a  de- 
murrer. Daniell  on  Chancery  Pleading 
and  Practice  (4th  ed.),  vol.  i.  334.  "  By 
multifariousness  in  a  bill  is  meant  the 
improperly  joining,  in  one  bill,  distinct 
and  independent  matters,  and  thereby 
confounding  them;  as,  for  example, 
by  uniting  in  one  bill  several  matters, 
perfectly  distinct  and  unconnected, 
against  one  defendant,  or  the  demand 
of  several  matters  of  a  distinct  and  in- 
dependent nature  against  several  de- 
fendants in  the  same  bill."  Story  Eq. 
PI.  §  271.  The  general  rule  in  equity 
is  that  several  grievances  must  be  re- 
dressed by  several  proceedings,  the 
only  recognized  exceptions  being 
where  a  single  right  is  asserted  on  one 
side  which  affects  all  the  parties  on  the 
other  side  in  the  same  way,  or  where 
a  single  wrong  is  complained  of  which 
falls  on  them  all  simultaneously  and 
together.  Familiar  instances  are  rights 
in  common  which  are  resisted  by  the 
owner  of  the  estate  on  which  they  are 
charged,  tax-rolls  assessing  all  parties 
on  an  equal  ratio,  and  frauds  by  trus- 
tees   affecting    the    beneficiaries.     If 


there  is  any  distinction  in  the  propor- 
tion or  character  of  the  several  griev- 
ances, there  can  be  no  joinder.  Win- 
slow  V.  Jenness,  64  Mich.  84;  Jenness 
V.  Smith,  64  Mich.  91 . 

2.  Alabama,  Arkansas,  California, 
Colorado,  Connecticut ,  Georgia,  Idaho, 
Indiana,  Iowa,  Kansas,  Kentucky,  Min- 
nesota, Missouri,  Montana,  Nebraska, 
Nevada,  New  York,  North  Carolina, 
Aortk  Dakota,  Ohio,  Oregon,  South  Car- 
olina, South  Dakota,  Texas,  Washing- 
ton, Wisconsin,  Wyoming,  Arizona  Ter- 
ritory, Oklahoma  Territory,  and  Utah 
Territory.     New  Mexico  has  by  statute 

established  the  common-law  prac- 
tice. 

3.  DiflFerent  Code  Provisions.—"  The 
plaintiff  may  unite  in  the  same  com- 
plaint two  or  more  causes  of  action, 
whether  they  are  such  as  were  for- 
merly denominated  legal  or  equitable, 
or  both,  where  they  are  brought  to  re- 
cover as  follows  : 

"  I.  Upon  contract,  express  or  im- 
plied. 

"2.  For  personal  injuries,  except 
libel,  slander,  criminal  conversation, 
or  seduction. 

"  3.   For  libel  or  slander. 

"4.   For  injuries  to  real  property. 

"  5.  Real  property,  in  ejectment,  with 
or  without  damage  for  the  withholding 
thereof. 

"6.  For  injuries  to  personal  prop- 
erty. 

"7.  Chattels,  with  or  without  dam- 
ages for  the  taking  or  detention  there- 
of. 

"8.  Upon  claims  against  a  trustee 
80 


Joinder  under  the  Codes. 


ACTIONS. 


Same  Transaction. 


2.  Causes  of  Action  Arising  Out  of  "  Same  Transaction  " — a.  Gen- 
erally.— There  is  a  uniformity  of  judicial  decisions  in  the  con- 


by  virtue  of  a  contract  or  by  operation 
of  law. 

"9.  Upon  claims  arising  out  of  the 
same  transaction  or  transactions  con- 
nected with  the  same  subject  of  action, 
and  not  included  within  one  of  the  fore- 
going subdivisions  of  this  section. 

"  But  it  must  appear  upon  the  face 
of  the  complaint  that  all  the  causes  of 
action  so  united  belong  to  one  of  the 
foregoing  subdivisions  of  this  section; 
that  they  are  consistent  with  each 
other,  and,  except  as  otherwise  pre- 
scribed by  law,  that  they  affect  all  the 
parties  to  the  action  ;  and  it  must  ap- 
pear upon  the  face  of  the  complaint 
that  they  do  not  require  different  places 
of  trial."  §  484  New  York  Code  Civ. 
Proc. 

"  L  Upon  contract,  express  or  im- 
plied. 

"  n.  For  injuries,  with  or  without 
force,  to  person  and  property, or  either, 
including  a  conversion  of  property  to 
the  defendant's  use. 

"  in.   For  injuries  to  character. 

"  IV.  Upon  claims  to  recover  real 
property,  with  or  without  damages  for 
the  withholding  thereof,  and  the  rents 
and  profits  of  the  same. 

"  V.  Upon  claims  to  recover  per- 
sonal property  specifically,  with  or 
without  damages  for  the  withholding 
thereof. 

"VI.  Claims  arising  by  virtue  of  a 
contract  or  by  operation  of  law  in  favor 
of  or  against  a  party  in  some  represen- 
tative or  fiduciary  capacity. 

"VII.  Upon  claims,  whether  in  con- 
tract or  tort,  or  both,  arising  out  of  the 
same  transaction  or  transactions  con- 
nected with  the  same  subject  of  action." 
Connecticut  Practice  Act,  j5  875;  Kan- 
sas, §83  Code  Civ.  Proc;  Minnesota, 
§  4739  St.  i8gi  ;  Missouri,  §  2040  Rev. 
Sts.  (1889);  Nebraska,  §  87  Code  Civ. 
Proc.  ;  North  Carolina,  ij  267  Code  Civ. 
Proc;  North  Dakota,  %  136  Code  Civ. 
Proc;  South  Dakota,  §  136  Code  Civ. 
Proc;  C>-^«<7,  §  5019  Rev.  Sts.,  except, 
in  addition,  that  claims  for  the  parti- 
tion of  real  property  may  be  united  ; 
Oklahoma,  §  83  Code  Civ.  Proc;  South 
Carolina,  §  188  Code  Civ.  Proc;  Wis- 
consin, §  2647  An.  Sts.;  Wyoming, 
§  2408  Rev.  Sts. 

"  I.  Contracts,  express  or  implied. 

"II.  Claims  to  recover  specific  real 


property,  with  or  without  damages  for 
the  withholding  thereof,  or  for  waste 
committed  thereon,  and  the  rents  and 
profits  of  the  same. 

"  III.  Claims  to  recover  specific 
personal  property,  with  or  without 
damages  for  the  withholding  thereof. 

"  IV.  Claims  against  a  trustee  by 
virtue  of  a  contract  or  by  operation  of 
law. 

"  V.   Injuries  to  character. 

"  VI.   Injuries  to  person. 

"VII.  Injuries  to  property."  Cali- 
fornia,  QoA&  C,\\- .  Proc.  §427;  Idaho, 
§  4169  Rev.  Sts.  1887;  Montana,  g  84 
Code  Civ.  Proc. ;  Oregon,  §  91  Code 
Civ.  Proc;  Washington,  §  214  Code 
Civ.  Proc. 

"  I.  Claims  arising  out  of  contract, 
express  or  implied. 

"II.  Claims  for  the  recovery  of  spe- 
cific real  property  and  the  rents,  prof- 
its, and  damages  for  withholding  the 
same. 

"  III.  Claims  for  the  recovery  of 
specific  personal  property  and  dam- 
ages for  the  taking  or  withholding  the 
same. 

"  IV.  Claims  for  partition  of  real  or 
personal  property,  or  both. 

"  V.  Claims  arising  from  injuries  to 
character. 

"  VI.  Claims  arising  from  injuries  to 
person  and  property. 

"VII.  Claims  against  a  trustee  by 
virtue  of  a  contract  or  by  operation  of 
law."  Digest  of  Statutes  Arkansas 
(1884),  §  5014.  Kentucky  has  same,  ex- 
cept VII,  J^  83  Code. 

"  All  claims  arising  ex  contractu  be- 
tween the  same  parties  may  be  joined 
in  the  same  action,  and  all  claims 
arising  ex  delicto  may  in  like  manner 
be  joined.  The  defendant  may  also 
set  up,  as  a  defence,  all  claims  against 
the  plaintiff  of  a  similar  nature  with 
the  plaintiff's  demand."  §3261  Code  of 
Georgia  (1882). 

"  Only  such  causes  of  action  may  be 
joined  as  are  capable  of  the  same  char- 
acter of  relief.  But  actions  ex  con- 
tractu shall  not  be  joined  with  actions 
ex  delicto.  In  actions  ex  delicto  there 
shall  not  be  joined  actions  to  recover 
for  injuries  to  the  person,  to  property, 
or  to  character;  but  they  shall  be  sued 
for  separately."  Rev.  Sts.  Arizona 
(1887),  t^  670. 


Joinder  under  the  Codes. 


ACTIONS. 


Same  Transaction. 


struction  of  all  the  various  Code  provisions  relative  to  the  joinder 
of  causes  of  action,  and  very  little  contrariety  of  opinion  exists 
in  their  application,  except  in  the  single  case  of  causes  of  action 
arising  out  of  the  "  same  transaction."  In  the  construction  of 
this  provision  great  doubt  and  division  have  arisen,  and  courts 
have  frequently  reached  diametrically  opposite  conclusions  in 
regard  to  the  meaning  of  the  word  "transaction,"  and  also  with 
reference  to  its  application  to  various  states  of  facts.  But  before 
there  is  any  need  to  apply  this  Code  provision  the  courts  are  fre- 
quently called  upon  to  determine  whether  only  one  or  more  than 
one  cause  of  action  has  arisen  out  of  the  same  transaction.  Of 
course   if  only  one  cause  of  action  has  arisen,  there  can  be  no 


"  All  actions  on  contracts,  express 
or  implied,  for  the  payment  of  money, 
whether  under  seal  or  not,  may  be 
united  in  the  same  action."  §  2672 
Civil  Code  Alabama  (1886). 

"  Counts  in  trespass  and  in  trespass 
on  the  case  may  be  joined  when  they 
relate  to  the  same  subject-matter."  ^5 
2673  Civil  Code  Alabama  (1886). 

"  Causes  of  action  of  whatever  kind, 
where  each  may  be  prosecuted  by  the 
same  kind  of  proceedings,  provided 
that  they  be  by  the  same  party,  and 
against  the  same  party  in  the  same 
rights,  and  if  suit  on  all  may  be  brought 
and  tried  in  that  county,  may  be  joined 
in  the  same  petition;  but  the  court,  to 
prevent  confusion  therein,  may  direct 
all  or  any  portion  of  the  issues  joined 
therein  to  be  tried  separately,  and  may 
determine  the  order  thereof."  Rev. 
Code  Iowa  (1888),  §  2630. 

"  I.   Money  demands  on  contract. 
"  II.   Injuries  to  property. 

"III.  Injuries  to  person  or  charac- 
ter. 

"  IV.  Claims  to  recover  the  posses- 
sion of  personal  property,  with  or 
without  damages  for  the  withholding 
thereof,  and  for  injuries  to  the  prop- 
erty withheld. 

' '  V.  Claims  to  recover  the  possession 
of  real  property,  with  or  without  dam- 
ages, rents,  and  profits  for  the  withhold- 
ing thereof,  and  for  waste  or  damage 
done  to  the  land;  to  make  partition  of 
and  to  determine  and  quiet  the  title  to 
real  property. 

"  VI.  Claims  to  enforce  the  specific 
performance  of  contracts,  and  to  avoid 
contracts  for  fraud  or  mistakes. 

"VII.  Claims  to  foreclose  mortgages; 
to  enforce  or  discharge  specific  liens; 
to  recover  personal  judgments  upon 
the  debt  secured  by  such  mortgage  or 


lien;  to  subject  to  sale  real  property 
upon  demands  against  decedents' 
estates,  when  such  property  has  passed 
to  heirs,  devisees,  or  their  assigns;  to 
marshal  assets;  and  to  substitute  one 
person  to  the  rights  of  another;  and 
all  other  causes  of  action  arising  out 
of  a  contract  or  a  duty,  and  not  falling 
within  either  of  the  foregoing  classes. 

"VIII.  When  the  plaintiff  desires  to 
recover  the  possession  of  title  papers 
or  other  instruments  of  writing,  or  cor- 
rect any  mistakes  therein,  a  separate 
action  may  be  brought  therefor;  or  the 
possession  of  such  title  papers  or  other 
instruments  of  writing  may  be  recov- 
ered, or  mistakes  corrected,  in  any 
other  action,  when  such  recovery  or 
correction  would  be  essential  to  a  com- 
plete remedy. 

"  IX.  When  the  action  arises  out  of 
contract,  the  plaintiff  may  join  such 
other  matters  in  his  complaint  as  may 
be  necessary  for  a  complete  remedy 
and  a  speedy  satisfaction  of  his  judg- 
ment, although  such  other  matters  fall 
within  some  other  one  or  more  of  the 
foregoing  classes.  When  several 
causes  of  action  are  united,  belonging 
to  any  of  the  foregoing  classes,  the 
court  may  order  separate  trials,  for 
the  furtherance  of  justice."  Indiana 
Statutes,  Revision  1894,  art.  3,  Civ. 
Proc. 

In  Colorado  the  following  causes 
of  action  may  be  united:  (i)  Ac- 
tions for  the  recovery  of  real  property, 
with  damages,  rents,  profits,  etc.;  (2) 
Actions  for  the  recovery  of  personal 
property,  with  damages,  etc.;  (3)  Ac- 
tions for  damages,  whether  upon  con- 
tract or  for  injuries  to  property,  per- 
son, or  character.  Colorado  Code  Civ. 
Proc,  §  71  (1883,  §  73);  Bliss  Code  PI. 
(2d  ed.)  §  112. 


Joinder  under  the  Codes. 


ACTIONS. 


"  Same  Transaction. 


question  of  joinder  or  misjoinder,  and  there  is  no  necessity  for  the 
apph'cation  or  construction  of  the  Code  provision.* 

b.  Single  Cause  of  Action — inconsistent  causes  of  Action.— 
Inconsistent  causes  of  action  cannot  grow  out  of  the  same  trans- 
action.* 

Two  Kinds  of  Relief. — A  transaction,  though,  may  give  rise  to 
two  kinds  of  rehef,  it  being  at  the  option  of  the  plaintiff  to 
pursue  either,  but  not  both.^ 


1.  Single  Contract. — In  suing  upon  a 
single  contract,  although  for  different 
items,  and  for  consequential  damages, 
no  question  can  arise  as  to  the  appli- 
cation of  the  Code  provision.  Such 
causes  of  action  are  single.  Roehring 
V.  Huebschmann,  34  Wis.  185  ;  Fisk 
V.  Tank,  12  Wis.  276. 

Balance  Dae  on  Settlement  and  on  Item- 
ized Account. — A  petition  which  alleges 
that  defendant  is  indebted  to  plaintiff 
"to  balance  due  as  per  settlement," 
and  also  on  an  open  itemized  account, 
states  two  separate  causes  of  action. 
Eisenhouer  v.  Estein,  37  Kan.  281. 

Closely  Connected  Facts. — Generally, 
it  may  be  said  that  where  facts  are 
closely  connected,  so  that  if  under 
equity  practice  a  bill  setting  them  up 
would  not  be  multifarious,  then  the 
transaction  gives  rise  to  one  cause  of 
action  only  ;  and  if  certain  facts  of  the 
transaction,  which  are  demurrable, 
are  set  up  as  a  separate  cause  of  action, 
this  does  not  constitute  a  misjoinder, 
as  the  court  may  proceed  to  give  judg- 
ment on  the  facts  of  the  transaction 
which  make  the  cause  of  action. 

Recovery  of  Damages  and  Cancellation 
of  Receipt. — A  complaint  praying  for 
the  recovery  of  damages  for  personal 
injuries,  and  also  for  the  cancellation 
of  a  receipt  fraudulently  obtained  from 
the  plaintiff,  releasing  the  defendant 
from  liability  for  such  injuries,  states 
only  one  cause  of  action.  Whetstone 
V.  Beloit  Straw  Board  Co.,  76  Wis. 
613. 

Promise  to  Marry  and  Give  Sum  of 
Money. — Where  the  defendant  prom- 
ised plaintiff  that  if  she  would  marry 
him  he  would  give  her  a  sum  of 
money,  his  refusal  to  carry  out  his 
promise  to  marry  and  pay  the  money 
is  only  one  cause  of  action.  Dalton  v. 
Barchand,  2  Clev.  Rep.  (Ohio)  57. 

Demurrable  Amendment. — Where  to  a 
petition  against  several  defendants  an 
amendment  is  filed  setting  out  new 
matter  intended  as  another  and  differ- 


ent cause  of  action  against  one  only 
of  the  defendants,  and  such  new 
matter  is  not  sufficient  to  constitute  a 
cause  of  action,  there  is  no  misjoinder 
of  causes  of  action,  but  such  amend- 
ment should  be  disregarded.  Haw- 
kins V.  Furnace  Co.,  40  Ohio  St.  507. 

2.  Smith  V.  Hallock,  8  How.  Pr.  (N. 
Y.  Supreme  Ct.)  73;  Lewis  v.  Acker. 
II  How.  Pr.  (N.  Y.  Supreme  Ct.)  163! 

Inconsistent  Counts. — It  is  a  misjoin- 
der of  causes  of  action  to  sue  in  one 
count  to  compel  a  corporation  to  trans- 
fer stock  and  permit  the  holder  to 
have  the  rights  of  a  stockholder,  and 
in  another  count  to  allege  that  the 
stock  is  spurious  and  an  overissue,  and 
claiming  damages  for  its  issue.  Cin- 
cinnati, etc.,  R.  Co.  V.  Third  Nat. 
Bank,  i  Ohio  Cir.  Ct.  199.  See  Citi- 
zens' Nat.  Bank  v.  New  Orleans,  etc., 
R.  Co.,  9  Cine.  L.  Bull.  (Ohio)  355,  16 
Cine.  L.  Bull.  (Ohio)  399. 

Recovery  of  Money  Bet  and  for  Fraud. 
— The  first  count  alleged  that  the 
plaintiff  bet  money  with  the  defend- 
ant upon  the  event  of  a  horse-race, 
and  lost  it.  The  second  alleged  that 
he  was  induced  to  make  the  bet  by 
false  representations  respecting  the 
horse  that  won  the  race,  made  by  the 
defendant  and  others  with  whom  the 
defendant  conspired  to  defraud  the 
plaintiff.  Held,  that  as  the  first  cause 
of  action  was  on  contract  and  the  sec- 
ond in  tort,  although  arising  out  of 
the  same  transaction,  they  could  not 
be  united.  Raynor  v.  Brennan,  40 
Hun  (N.  Y.)  60. 

3.  "  The  law  may  give  more  than  one 
kind  of  relief  for  a  single  wrong — that 
is,  for  one  cause  of  action.  A  doubt 
as  to  whether  in  such  case  there  is 
not  more  than  one  cause  of  action  has 
arisen  where  there  is  really  but  one 
wrong — as,  the  non-payment  of  a  debt 
— but  where  the  plaintiff's  remedj'  is 
twofold — that  is,  he  may  bring  one  or 
another  kind  of  action — and  the  facts 
constituting  a  cause  of  action  in  adopt- 


'83 


Joinder  under  the  Codes. 


ACTIONS. 


Same  Transaction." 


Person  and  Property  Injured  by  Same  Negligent  Act. — A  negligent  act 
which  causes  damage  to  both  the  person  and  the  property  of  the 
plaintiff  gives  rise  to  but  one  cause  of  action.* 

Adjacent  Landowners  Claiming  Damages  in  Solido. — Where  a  dam  causes 
a  diversion  of  water,  and  thereby  causes  damage  to  several  ad- 
jacent landowners,  this  is  such  a  transaction  that*  the  landowners 
may  join  in  one  action  for  injuries  to  their  land,  and  claim 
damages  in  solido^ 


mg  one  remedy  differ  from  those 
which  entitle  him  to  relief  in  the 
other.  As,  in  enforcing  a  contract  se- 
cured by  mortgage,  or  suing  upon  a 
promissory  note  given  for  the  pur- 
chase-money of  land,  in  pursuing  one 
remedy,  it  is  sufficient  to  aver  and 
prove  the  contract;  while,  in  seeking 
the  other,  the  mortgage  or  the  con- 
sideration of  the  note  must  be  also 
averred  and  proved.  And  yet  there 
is  but  one  right — the  right  to  the 
money;  and  one  wrong — the  refusal  to 
pay  it."     Bliss  Code  PI.  (2d  ed.)  §114. 

One  Count  "Waiver  of  Other  Count. — 
Causes  of  action  are  improperly  joined 
where  the  first  constitutes  a  waiver  of 
an  element  on  which  the  second  de- 
pends; to  wit,  the  first,  being  for 
money  had  and  received,  necessarily 
waiving  the  wrongful  conversion 
which  the  second  must  allege,  being 
an  action  of  trover.  Dodge  v.  Glen- 
denning  (Supreme  Ct.),  10  N.  Y.  St. 
Rep.  8. 

1.  Injury  to  Property  and  Person  by 
Same  Negligent  Act. — Where  an  injury 
has  resulted  both  to  the  person  and  the 
property  of  another  from  an  act  of 
negligence  on  the  part  of  the  defend- 
ant, both  causes  of  action  may  be 
joined  in  the  same  complaint.  Howe 
V.  Peckham,  10  Barb.  (N.Y.)  656.  The 
above  is  the  head-note  of  the  case,  but 
it  is  misleading.  The  court  distinctly 
decided  that  there  was  only  one  cause 
of  action,  and  the  fact  that  the  plain- 
tiff purported  to  set  out  two  did  not 
vitiate.  The  facts  of  the  case  were, 
that  a  person  in  a  wagon  was  negli- 
gently run  into  by  another  vehicle, 
resulting  in  damage  to  both  his  person 
and  his  wagon. 

Where  a  person  is  driving  a  horse 
and  wagon,  and  is  negligently  run 
into  by  the  railroad  cars,  both  the 
driver  and  the  horse  being  injured, 
there  are  two  causes  of  action  grow- 
ing out  of  the  same  transaction,  which 
may  be  united.     Rosenberg  v.  Staten 


Island  R.  Co.  (C.  PI.),  14  N.  Y.  Supp. 
476.  But  a  doubt  is  raised  as  to 
whether  there  are  two  causes  of  ac- 
tion. See  remarks  of  Pryor,  ].,  pas- 
sim. And  see  Brunsden  v.  Hum- 
phrey, 14  Q.  B.  Div.  141,  where  it 
was  held  that  where  a  cab-driver  was 
negligently  run  into  by  another,  and 
his  person  and  cab  both  injured,  he 
had  two  causes  of  action,  one  for  the 
injury  to  his  cab  and  one  for  the  in- 
jury to  his  person. 

Illinois. — In  Illinois,  a  common-law 
state,  it  has  been  held  that  one  who 
has  received  an  "injury  to  his  person 
and  his  property  by  the  same  negli- 
gent act  may  declare  for  damages  as 
to  both  injuries  in  one  count,  or  he 
may  declare  for  each  separately  in 
different  counts.  Chicago  West  Div. 
R.  Co.  V.  Ingraham.  131  111.  659,  where 
a  man  in  a  buggy  was  run  over  by  a 
street  car. 

Maryland. — In  Maryland,  also  a  com- 
mon-law state,  it  is  held  that  where 
different  and  separate  injuries  have 
resulted  from  the  same  act  or  cause, 
the  injuries  or  damages  may  be  united 
and  counted  upon  in  the  same  count. 
Baltimore,  etc.,  R.  Co.  v.  Ritchie,  31 
Md.  igi. 

2.  Hellam  v.  Switzer,  24  S.  Car.  39, 
where  it  was  held  the  cause  of  action 
is  single. 

Action  by  Several  Owners  to  Restrain 
Diversion  of  Water  and  for  Damages. — 
The  plaintiffs  were  owners  in  severalty 
of  certain  distinct  parcels  of  land,  and 
the  action  was  brought  to  restrain  the 
defendant  from  depriving  them  of 
water  carried  by  various  ditches  to 
their  respective  lands,  and  to  recover 
damages  sustained  by  reason  of  past 
diversion  of  water.  Held,  that  the 
cause  of  action  for  damages  was  sev- 
eral as  to  each  of  the  plaintiffs,  and 
that  it  could  not  be  joined  with  the 
cause  of  action  for  an  injunction, 
which  was  common  to  all.  Barham 
V.  Hostetter,  67  Cal.  272. 

84 


Joinder  under  the  Codes. 


ACTIONS. 


Same  Transaction." 


c.  Meaning  05  the  Term  "  Transaction." — No  satisfactory 
definition  has  been  given  of  the  term  "  transaction,"  as  used  in  the 
Codes.  In  fact,  it  seems  to  have  been  chosen  on  account  of  the 
very  wide  scope  of  its  meaning,  enabHng  courts  to  interpret  it 
in  a  manner  which  shall  be  found  most  convenient  and  best  cal- 
culated to  promote  the  ends  of  justice.  By  the  use  of  this 
term  it  was  not  intended  to  overturn  all  distinctions  in  actions 
and  rules  of  pleading,  but  it  is  probable  that  the  first  subdivision 
of  section  167  of  the  New  York  Code  was  intended  to  apply  to 
equitable  actions,  which  frequently  embrace  many  complicated 
acts  and  transactions,  relating  to  the  subject-matter  of  the  action, 
which  it  would  be  desirable  to  settle  in  a  single  controversy.* 


1.  "  If  these  actions  may  be  united  it 
must  be  by  virtue  of  the  first  subdi- 
vision of  section  167  of  the  Code.  From 
the  nature  of  the  two  actions  they  do 
not  come  under  either  of  the  other 
subdivisions.  The  first  subdivision 
reads  as  follows  :  '  The  plaintiff  may 
unite  in  the  same  complaint  several 
causes  of  action,  whether  they  be 
such  as  have  been  heretofore  de- 
nominated legal  or  equitable,  or  both, 
when  they  shall  arise  out  of  :  ist. 
The  same  transaction  or  transactions 
connected  with  the  same  subject  of 
action.'  This  language  is  very  gen- 
eral and  very  indefinite.  I  have  ex- 
amined the  various  authorities  upon 
this  clause,  and  I  am  satisfied  that  it 
is  impracticable  to  lay  down  a  general 
rule  which  will  serve  as  an  accurate 
guide  for  future  cases.  It  is  safer  for 
courts  to  pass  upon  the  question  as 
each  case  is  presented.  To  invent  a 
rule  for  determining  what  the  '  same 
transaction'  means,  and  when  a  cause 
of  action  shall  be  deemed  to  '  arise  out ' 
of  it,  and  what  the  '  same  subject  of 
action'  means,  and  when  transactions 
are  to  be  deemed  connected  with  it,  has 
taxed  the  ingenuity  of  many  learned 
judges,  and  I  do  not  deem  it  necessary 
to  make  the  effort  to  find  a  solution  to 
these  questions.  .  .  .  There  is  cer- 
tainly ample  scope  for  construction, 
but  it  is  sometimes  difficult  to  deter- 
mine what  interpretation  will  best  pro- 
mote the  ends  of  justice.  It  is  prob- 
able that  the  primary  purpose  of  this 
provision  was  intended  to  apply  to 
equitable  actions,  which  frequently 
embrace  many  complicated  acts  and 
transactions  relating  to  the  subject- 
matter  of  the  action,  which  it  would  be 
desirable  to  settle  in  a  single  contro- 
versv.     The  clause  was  not  intended 


to  overturn  all  distinctions  in  actions 
and  rules  of  pleadings,  and  this  court 
has  held  that  an  action  of  trespass,  in 
breaking  into  a  house  and  opening  a 
trunk,  could  not  be  joined  with  an 
action  on  a  covenant  in  a  lease  for  quiet 
enjoyment,  although  the  act  which 
rendered  the  defendant  liable  in  both 
actions  was  the  same.  Keep  v.  Kauf- 
man, 56  N.  Y.  332.  In  this  case  it  is 
attempted  to  unite  an  action  on  a  stat- 
ute for  a  penalty  with  an  action  on  con- 
tract. The  natures  of  the  two  actions 
are  essentially  diflferent,  although  the 
object  to  be  attained  is  the  same.  The 
facts  to  establish  the  liability  are  en- 
tirely unlike.  The  measure  of  liabil- 
ity is  different  ;  the  defenses  are  dif- 
ferent. The  rights  of  the  defendant 
may  be  seriously  prejudiced.  Suppose 
a  general  verdict  is  obtained,  from' 
whom  would  the  defendant  seek  con- 
tribution, from  his  co-trustees  or  from 
his  co-stockholders?  Can  it  be  said 
that  these  causes  of  action  arose  out  of 
the  same  transaction?  If  so,  what  was 
the  transaction  ?  Was  it  the  formation 
of  the  company  ?  That  created  no  lia- 
bility nor  cause  of  action.  Was  it  the 
debt  of  the  plaintiff  ?  That  created  no 
liability  against  the  trustees,  nor  does 
such  liability  arise  out  of  it.  Was  it 
the  failure  to  file  a  certificate  that  the 
stock  was  not  paid  in?  If  so,  there  is 
no  connection  between  that  and  the 
transaction  which  created  the  liability 
against  the  defendant  as  trustee.  An 
omission  to  record  a  certificate  that 
the  stock  was  paid  is  not,  in  any  sense, 
the  same  transaction  as  the  neglect  of 
trustees  to  file  a  report  of  the  financial 
condition  of  the  comparfy.  Without 
attempting  to  define  the  terms  of  the 
last  clause,  I  do  not  think  that  there  is 
any  such  connection  between  the  trans- 

85. 


Joinder  under  the  Codes. 


ACTIONS. 


"  Same  Transaction.' 


d.  Damage  to  Land  and  Personal  Injury. — Where  the 
same  act  or  transaction  has  occasioned  damage  to  land  and  also  a 
personal  injury,  these  two  causes  of  action  may  be  united.* 

e.  Injuries  to  Real  Property  and  Other  Causes  of 
Action. — Causes  of  action  for  injuries  to  real  property  and  other 
causes  of  action  have  been  held  joinable  as  arising  out  of  the 
same  transaction.* 


actions,  out  of  which  the  causes  of 
action  arose  in  this  case,  and  the  '  sub- 
ject of  action  '  as  to  justify  uniting  the 
two  causes  of  action. 

"  The  causes  of  action  are  independ- 
ent of  each  other  ;  the  '  transactions  ' 
are  different,  and  there  is  no  legal  af- 
finity between  them.  The  language  of 
the  last  clause  is  more  applicable  to 
equitable  actions  where  the  contro- 
versy is  in  respect  to  specific  property, 
real  or  personal.  It  is  difficult  to  de- 
fine in  this  case  the  subject  of  action.' 
The  object  of  the  action  is  to  recover 
the  debt  ;  but  is  the  debt  the  sub- 
ject of  action  ?  In  some  sense  it  per- 
haps may  be  so  regarded,  while  in 
another  the  subject  of  action  may  be 
regarded  the  penalty  or  forfeiture.  If 
the  former,  there  is  no  natural  con- 
nection between  it  and  the  transaction 
creating  the  liability.  If  the  latter,  it 
has  no  connection  with  the  transaction 
against  defendant  as  a  stockholder. 
The  language  of  the  last  clause,  it 
seems  to  me,  has  no  application  to  this 
case,  and  I  am  confident  it  was  never 
intended  by  it  to  force  a  connection  be- 
tween such  distinct  and  independent 
things.  It  may  be  convenient  for  the 
plaintiff  to  combine  the  two  causes  of 
action,  but  looking  at  the  rights  of 
both  parties  and  the  rules  of  law,  we 
cannot  think  that  the  Code  was  de- 
signed to  authorize  their  union  in  one 
complaint."  Per  Church,  Ch.  J.,  in 
Wiles  V.  Suydam,  64  N.  Y.  177-179. 
See  also  the  language  of  Comstock,  J., 
in  New  York,  etc.,  R.  Co.  v.  Schuyler, 
17  N.  Y.  604  ;  Ashe,  J.,  in  Young  v. 
Young,  81  N.  Car.  95  ;  Sutherland, 
J.,  in  Adams z/.  Bissell,  28  Barb.  (N.  Y.) 
386  ;  Johnson,  J.,  in  Anderson  v.  Hill, 
53  Barb.  (N.  Y.)  245. 

1.  A  plaintiff  having  a  cause  of  ac- 
tion which  entitles  him  to  an  injunction 
restraining  the  unlawful  maintenance 
and  operation  of  a  railroad  in  a  street 
in  front  of  his  premises,  by  reason  of 
its  continuous  interference  with  his 
rights  of  property,  may  unite  with  a 
demand  for  such  equitable  relief  and 

,  I 


for  damages,  because  of  such  inter- 
ference, a  claim  for  a  personal  injury 
suffered  on  a  particular  occasion  from 
the  same  wrongful  appropriation  and 
use  of  the  highway.  Lamming  v. 
Galusha,  135  N.  Y.  239.  But  see 
Taylor  v.  Metropolitan  El.  R.  Co.,  52 
N.  Y.  Super.  Ct.  299. 

2.  Trespass  on  Land  and  Conversion  of 
Personal  Property. — Where  defendants 
entered  upon  land  occupied  by  plain- 
tiff, deprived  him  of  possession,  and 
destroyed  and  converted  certain  per- 
sonal property  thereon,  these  causes 
of  action  arose  out  of  the  samd  trans- 
action. Policy  V.  Wilkisson,  5  Civ. 
Pro.  Rep.  (B'klyn  City  Cl.)  135. 

Damage  to  Land  and  for  Construction 
of  Bridge. — An  action  to  recover  dam- 
ages for  the  construction  of  a  railroad 
across  a  bay  between  plaintiff's  farm 
and  the  Hudson  River,  and  one  to 
compel  the  construction  of  such  a 
bridge  as  is  required  by  law  over  such 
bay,  were  held  properly  joined.  Getty 
V.  Hudson  River  R.  Co.,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  269. 

Damage  to  Land. — Where  a  person 
builds  a  dam  and  thereby  causes  a 
stream  of  water  to  rise  so  as  to  over- 
flow another's  land  to  his  damage,  such 
other  person  has  at  least  two  causes 
of  action:  first,  one  for  the  injuries 
already  caused  ;  second,  an  equitable 
cause  of  action  to  restrain  by  injunc- 
tion the  further  maintenance  of  the 
dam.  And  these  two  causes  of  action 
may  be  united  in  the  same  petition, 
for  both  arise  out  of  "the  same  trans- 
action or  transactions  connected  with 
the  same  subject  of  action."  Akin  v. 
Davis,  II  Kan.  580. 

To  Bestrain  Construction  of  Telephone 
Line  and  for  Removal  from  Street. — An 
action  to  restrain  the  completion  of  a 
telephone  line  may  be  joined  with  one 
to  remove  the  incomplete  line,  as  a 
nuisance,  and  to  restore  the  street  to  a 
condition  in  statu  quo,  as  both  arise  out 
of  the  same  transaction.  People  v. 
Metropolitan  R.  Co.,  31  Hun  (N.  Y.) 
598. 
86 


Joinder  under  the  Codes. 


ACTIONS. 


"  Same  Transaction." 


/.  Equitable  Remedies  Asked  Touching  Land.— Where 
a  transaction  has  given  rise  to  a  cause  of  action  for  the  setting  aside 
of  a  deed  of  land,  or  for  the  conveyance  of  land,  or  for  the  cancella- 
tion of  an  instrument,  or  for  all  the  relief  which  a  bill  in  equity- 
might  pray  for  under  the  chancery  practice,  all  these  matters 
may  be  joined.  All  remedies  which  a  bill  in  equity  might  for- 
merly have  prayed  for  touching  land  may  now  be  sought  in  the 
same  action.* 


t 


Damage   to    Land    and    on   Bond. — A 

complaint  alleging  a  cause  of  action 
against  an  elevated  railroad  company 
for  damages  for  the  construction  and 
operation  of  its  road  in  the  street  ad- 
joining plaintiff's  premises,  and  also  a 
cause  of  action  on  a  bond  given  by  the 
company  with  sureties  to  pay  all  dam- 
ages assessed,  is  bad  for  misjoinder  ; 
as  it  attempts  to  unite  a  cause  of  ac- 
tion for  a  tort  with  one  on  contract. 
Hart  V.  Metropolitan  El.  R.  Co.,  15 
Daly  (N.  Y.)  391. 

1.  For  Ezecntion  of  New  Deed  and  Pos- 
session of  Land. — A  sheriff  executed  and 
delivered  to  the  plaintiff  a  deed  for 
certain  lands  sold  under  execution,  of 
which  the  plaintiff  had  become  the 
purchaser.  This  deed  from  the  sheriff 
was  lost  before  registration,  where- 
upon the  plaintiff  brought  an  action 
against  the  sheriff  and  the  party  in 
possession,  seeking  to  compel  the  exe- 
cution of  another  deed  and  to  recover 
possession  of  the  land,  //eici,  that 
as  the  two  causes  of  action  grew  out 
of  the  same  transaction,  they  could  be 
joined.  McMillan  v.  Edwards,  75 
N.  Car.  80  ;  Jennings  v.  Reeves,  loi 
N.  Car.  447. 

To  Recover  Debt  and  to  Set  Aside  a 
Conveyance  in  Fraud  of  Creditor. — An 
action  upon  a  debt,  and  another  to 
declare  void  certain  conveyances  al- 
leged to  have  been  made  by  the  debtor 
in  fraud  of  the  complaining  creditor, 
are  joinable  as  arising  out  of  the  same 
transaction.  Dawson  Bank  v.  Harris, 
84  N.  Car.  206. 

To  Set  Aside  Decree ;  to  Annul  Deeds 
Executed  in  Pursuance  Thereof ;  to  Re- 
cover Possession  of  the  Land  ;  and  for 
Injunction  Against  Waste. — The  follow- 
ing causes  of  action  may  be  joined  : 
I.  To  impeach  and  set  aside  a  decree 
for  fraud  and  imposition  ;  2.  To  annul 
deeds  executed  by  a  commissioner  to 
purchasers  of  land  sold  under  the 
decree  ;  3.  To  recover  possession  of 
the  land  and  to  have  an  account  of  the 
rents  and   profits  ;  4.   And  for  an  in- 


junction against  waste.  England  v. 
Garner,  86  N.  Car.  366. 

Moneys  Wrongfully  Invested  in  Land 
and  for  a  Reconveyance  of  the  Land  from 
Purchasers. — A  complaintwhich  alleges 
that  plaintiff  entrusted  defendant  with 
moneys  and  property  for  which  he  has 
refused  to  account,  and  that  defend- 
ant has  fraudulently  conveyed  without 
consideration  lands  bought  with  such 
moneys,  some  to  B.  and  some  to  C, 
and  which  seeks  a  reconveyance  of 
such  lands  from  B.  and  C,  and  judg- 
ment against  A.  for  the  amount  found 
due  from  him  on  an  accounting  :  Held, 
not  multifarious.  Blake  v.  Van  Til- 
borg,  21  Wis.  672. 

Action  by  Receiver  for  Restitution  of 
the  Property,  of  the  Judgment  Debtor, 
and  to  Set  Aside  Conveyances  Void  for 
Usury. — In  an  action  brought  by  the 
receiver  of  a  judgment  debtor,  the 
subject  of  such  action  being  the  resti- 
tution of  the  property  of  the  judgment 
debtor,  the  plaintiff  may  unite  in  his 
complaint  all  the  different  claimswhich 
he  has  against  the  defendant  upon 
that  subject  of  action,  and  set  forth 
therein  different  transactions  out  of 
which  his  right  to  restitution  flows  ; 
although  to  reach  that  result,  in  some 
instances,  it  will  be  necessary  to  set 
aside  transfers  void  for  usury.  Palen 
V.  Bushnell,  46  Barb.  (N.  Y.)  24. 

Action  to  Quiet  Title  and  for  Money. — 
An  action  was  begun,  by  one  holding  a 
tax  title  to  land,  to  quiet  the  title  to 
the  same  against  the  original  owner, 
and,  on  service  by  publication  only,  he 
obtained  a  judgment.  Within  three 
years  the  judgment  was  properly 
vacated  on  the  application  of  the  de- 
fendant under  the  provisions  of  §  77 
of  the  Code.  When  the  defendant  was 
let  in  to  defend  he  filed  an  answer 
setting  up,  first,  a  general  denial  ; 
second,  facts  showing  the  plaintiff's 
title  in  the  land  to  be  invalid  ;  and 
third,  an  allegation  that  after  the 
judgment  was  first  rendered  and  be- 
fore it  was  vacated,  the  plaintiff  sold 


[87 


Joinder  under  the  Codes. 


ACTIONS. 


"  Same  Transaction." 


^.  Courts  Inclined  to  Segregate  Real  Property  Cases. 
— The  courts  seem  to  show  a  disposition  to  segregate  all  cases 
involving  land,  and  deeds  and  leases  of  land,  from  other  matters  ; 
they  give  the  term  "  transaction  "  a  limited  and  narrow  meaning 
when  these  matters  are  in  issue.* 

/i.  Assault  and  B.vttery  and  Slander. — If  slanderous  words 
are  spoken  at  the  time  of  an  assault  and  battery,  then  the  two 
causes  of  action  may  be  united.* 


the  land  and  appropriated  the  pro- 
ceeds; and  he  prayed  for  a  recovery  of 
the  value  of  the  land.  Held,  that  the 
right  to  the  relief  prayed  for  in  the 
third  count  of  the  answer  was  properly 
joined  with  the  other  defenses.  Flint 
V.  Dulany,  37  Kan.  332. 

Payment  of  Purchase  Money  and  Can- 
cellation of  Mortgage. — The  following 
was  held  to  be  one  transaction  :  The 
plaintiff  agreed  to  convey  to  defend- 
ant a  certain  piece  of  land.  The  de- 
fendant paid  part  of  the  purchase 
money  and  gave  his  note  for  the  bal- 
ance. When  the  plaintiff  gave  the 
conveyance  there  was  a  mortgage 
against  the  property,  which  the  plain- 
tiff agreed  to  pay  within  a  reasonable 
time  after  the  defendant  had  paid  the 
purchase  money.  When  the  purchase 
note  fell  due  it  was  not  paid,  but  the 
defendant  offered  to  pay  and  did  pay 
part,  but  required  security  for  the 
same  against  the  mortgage,  and  an 
extension  of  time  on  the  note.  The 
plaintiff  thereupon,  to  secure  the  de- 
fendant against  the  mortgage,  gave 
him  his  note  secured  by  mortgage  on 
other  real  estate.  Held,  that  the  plain- 
tiff, upon  discharging  his  mortgage, 
might  in  one  action  ask  for  the  bal- 
ance due  on  the  purchase  money,  the 
delivery  to  him  of  his  note,  and  the 
discharge  of  the  mortgage  given  to 
secure  the  same.  Montgomery  v.  Mc- 
Ewen,  7  Minn.  351. 

To  Declare  a  Trust  in  Land  and  for  Bal- 
ance of  Money  Due. — Plaintiff  alleged 
that  he  gave  to  defendant  one  hundred 
dollars  for  the  purpose  of  entering  a 
tract  of  land,  to  contain  eighty  acres 
at  $1.25  per  acre  ;  that  the  land  was 
to  be  entered  in  the  name  of  the 
plaintiff  ;  that,  in  pursuance  of  said 
arrangement,  said  defendant  did  enter 
with  plaintiff's  money  a  tract  of  eighty 
acres,  but  that  the  entry  was  made  in 
the  name  of  the  defendant  contrary  to 
the  agreement,  and  was  made  for  ten 
dollars,  leaving  a  balance  of  ninety 
dollars  due  plaintiff.  Plaintiff  was 
allowed  to  join  a  claim  for  the  money 


with  a  claim  to  declare  a  trust  in  his 
favor  in  the  land.  Callaghan  v.  Mc- 
Mahan,  33  Mo.  iii. 

Action  to  Declare  a  Trust,  to  Becover 
Purchase  Money,  and  for  Possession. — 
An  action  to  declare  one  defendant 
a  trustee  of  land,  and  an  action  to  re- 
cover judgment  of  other  defendants 
for  purchase  money  of  same,  and  an 
action  to  recover  possession  of  the 
land  Avith  damages  for  withholding 
it,  may  be  united.  Young  v.  Young, 
81  N.  Car.  91.  See  also  King  v.  Far- 
mer, 88  N.  Car.  22  ;  Bedsole  v.  Mon- 
roe, 5  Ired.  Eq.  (N.  Car.)  313  ;  Heggie 
V.  Hill,  95  N.  Car.  303  ;  Parish  v. 
Sloan,  3  Ired.  Eq.  (N.  Car.),  607  ;  Wat- 
son V.  Cox,  I  Ired.  Eq.  (N.  Car.)  389  ; 
Hancock  v.  Wooten,  107  N.  Car.  9. 

Foreclosing  Mortgage  on  one  Tract  of 
Land  and  for  Possession  of  Another  Tract. 
— An  action  to  foreclose  a  mortgage 
upon  one  tract  of  land  cannot  be 
united  with  an  action  to  recover  the 
possession  of  another  tract  ;  they  do 
not  arise  out  of  the  same  transaction. 
Edgerton  v.  Powell,  72  N.  Car.  64. 

1.  Keep  V.  Kaufman,  56  N.  Y.  332, 
where  it  was  held  that  a  cause  of  ac- 
tion for  the  breach  by  the  landlord  of 
a  covenant  of  quiet  enjoyment  con- 
tained in  the  lease  could  not  be  joined 
with  a  cause  of  action  for  the  land- 
lord's unlawfully  entering  the  apart- 
ments leased  and  injuring  the  lessee's 
property  therein.  See  opinion  of  Ra- 
pallo,  J.,  passim. 

Tor  Becovery  of  Possession  of  Land  and 
Damages  for  Forcible  Evicton. — A  claim 
for  damages  for  a  personal  tort  cannot 
be  united  with  a  demand  properly  cog- 
nizable in  a  court  of  equity,  in  the 
same  action,  as,  for  instance,  a  com- 
plaint praying  for  the  recovery  of  the 
possession  of  land,  and  damages  for 
the  detention  of  the  land  and  for  forci- 
ble eviction  and  expulsion  from  it,  and 
for  the  value  of  improvements  erected 
upon  it  by  plaintiff.  Mayo  v.  Madden, 
4  Cal.  27. 

2.  Brewer  v.  Temple,  15  How. 
Pr.  (N.  Y.  Supreme  Ct.)  286.     But  see 


188 


Joinder  under  the  Codes. 


ACTIONS. 


"  Same  Transaction.' 


t.  False  Imprisonment  and  Slander. — A  cause  of  action 
for  false  imprisonment  may  be  joined  with  a  cause  of  action  for 
slander,  where  both  arise  out  of  the  same  transaction.* 

J.  False  Imprisonment  and  Malicious  Prosecution. — 
Causes  of  action  which  may  be  joined  may  grow  out  of  false  im- 
prisonment and  malicious  prosecution. ** 

^.  Warranty  and  Fraud. — A  fraud  practised  and  a  warranty 
made  may  be  so  related  in  time  that  they  constitute  the  same 
transaction,  and  the  cause  of  action  for  breach  of  the  warranty 
may  be  joined  with  that  for  the  fraud.* 

/.  Person  and  Property  Injured  by  same  Negligent 
Act. — Where  the  same  negligent  act  injures  both  another's  per- 
son and  property  the  causes  of  action  may  be  joined.* 

m.  Multifariousness. — Sometimes  the  doctrine  of  multifari- 
ousness in  equity  practice  is  invoked  to  determine  whether  causes 
of  action  grow  out  of  the  "same  transaction."     If  all  the  causes 


the  opinion  of  Harris,  J.,  at  p.  287, 
where  he  says  that  slander  spoken  at 
the  time  of  an  assault  and  battery 
really  constitutes  a  part  of  the  res 
gest{B,  and  that  there  is  only  one  cause 
of  action,  not  two.  He  holds  that, 
however  numerous  the  blows  or  va- 
rious the  injuries,  the  whole  matter 
constitutes  but  a  single  cause  of  action. 
Contra,  Perroteau  v.  Johnson,  4  N.  Y. 
Month.  L.  Bull.  25;  Anderson  v.  Hill, 
53  Barb.  (N.  Y.)  238.  At  common  law 
they  could  not  be  united,  because  the 
remedy  for  one  was  case,  and  for  the 
other,  trespass.  Dragoo  v.  Levi,  2 
Duv.  (Ky.)  520. 

1.  Harris  v.  Avery,  5  Kan.  146. 
The  facts  of  this  case  were  that  de- 
fendant met  plaintiff,  and,  in  the  pres- 
ence of  several  other  persons,  called 
him  a  thief  ;  said  he  had  a  stolen 
horse — took  the  horse  from  him  and 
kept  it  four  or  five  days;  arrested 
plaintiff  and  confined  him  in  the  coun- 
ty jail  four  or  five  days.  See  also 
Watts  V.  Hilton,  3  Hun  (N.  Y.)  606, 
where  libel  and  false  imprisonment 
were  joined. 

2.  Barr  v.  Shaw,  10  Hun  (N.  Y.) 
580;  HaightT'.  Webster,  18  N.  Y.  Wkly. 
Dig.  108.  See  Watson  v.  Hazzard,  3 
Code  Rep.  (N.  Y.)  218,  where  slander 
and  malicious  prosecution  were  joined. 
Contra,  Nebenzahl  v.  Townsend,  61 
How.  Pr.  (N.  Y.  C.  pi.)  353. 

3.  Humphrey  v.  Merriam,  37  Minn. 
502. 

An  action  for  deceit  in  the  sale  of 
a  horse  may  be  joined  with  one  for 
breach  of  warranty  in  the  sale  of  the 


same  horse.  Ashe  v.  Gray,  90  N.  Car. 
137;  Ashe  V.  Gray,  88  N.  Car.  190. 
See  also  Scott  v.  Brown,  3  Jones  (N. 
Car.)  541,  67  Am.  Dec.  256;  BuUinger 
V.  Marshall,  70  N.  Car.  526  ;  Froelich 
V.  Southern  Express  Co.,  67  N.  Car.  i. 
In  Sweet  v.  Ingerson,  12  How.  Pr.  (N. 
Y.  Supreme  Ct.)  331,  it  was  held  that 
a  count  in  assumpsit  on  an  alleged 
warranty  of  a  horse,  and  a  count  for 
fraud  in  concealing  the  defects  of  the 
same  horse,  were  inconsistent  and 
could  not  be  joined.  See  also  Sey- 
mour V.  Lorillard,  8  Civ.  Pro.  Rep.  (N. 
Y.  Supreme  Ct.)  90. 

Fraud  and  Money  Had  and  Beceived. — 
To  a  count  in  deceit,  the  plaintiff  may 
join  one  for  money  had  and  received 
arising  out  of  the  same  transaction. 
Woodbury  v.  Deloss,  65  Barb.  (N.  Y.) 
501.  A  cause  of  action  for  fraud  and 
deceit  in  inducing  the  plaintiff,  a 
bank,  to  purchase  the  notes  of  an  in- 
solvent firm  upon  false  representations 
that  it  was  prosperous  cannot  be  uni- 
ted with  a  cause  of  action  for  money 
had  and  received,  where  the  allega- 
tions are  that  such  insolvent  firm  had 
given  to  the  defendant  money  with- 
which  to  pay  the  firm  notes  which 
were  held  by  the  plaintiff,  and  that  the 
defendant  had  not  done  so,  but  had 
converted  the  money  to  his  own  use. 
They  do  not  arise  out  of  the  same 
transaction.  American  Nat.  Bank  v. 
Grace,  64  Hun  (N.  Y.)  22. 

4.  Howe  V.  Peckham,  10  Barb.  (N. 
Y.)  656;  Rosenberg  v.  Staten  Island  R. 
Co.  (C.  PL),  14  N.  Y.  Supp.  476.  See 
b.  Single  Cause  of  Action,  supra. 


[89 


Joinder  under  tlie  Codes. 


ACTIONS. 


"  Same  Transaction." 


of  action  could  have  been  embraced  in  an  equity  bill  without 
making  it  multifarious,  then  the  matters  may  be  joined  under  the 
Codes,  as  having  arisen  out  of  the  same  transaction.^ 

n.  Transaction  Must  Give  Causes  of  Action  in  Same 
Right. — Two  causes  of  action  arising  out  of  the  same  transaction 
cannot  be  joined  unless  the  plaintiff  sues  in  the  same  right,  either 
in  a  representative  or  in  an  individual  capacity.*-* 

o.  California. — California  has  no  provision  in  her  Code  al 
lowing  a  joinder  of  causes  of  action  growing  out  of  the  "same 
transaction,"  but  this  omission  is  supplied  by  judicial  construc- 
tion, which  allows  such  joinder.* 

/.  Miscellaneous. — In  the  note  will  be  found  a  collection  of 
miscellaneous  cases  where  it  was  held  that  the  causes  of  action 
either  did  or  did  not  arise  out  of  the  same  transaction,  and  were 
either  properly  or  improperly  joined.  ^ 


1.  Lamming  v.  Galusha,  135  N.  Y. 
239,  244;  Douglas  County  z>.  Wal- 
bridge,  38  Wis.  179;  Clark  z/.  Covenant 
Mut.  L.  Ins.  Co.,  52  Mo.  272;  May- 
berry  V.  McClurg,  51  Mo.  256;  Gray  z/. 
Dougherty,  25  Cal.  266;  Wilson  v. 
Castro,  31  Cal.  420.  See  also  Flynn 
V.  Bailey,  50  Barb.  (N.  Y.)  73,  where 
it  was  held  that  it  must  appear  by 
proper  statement  that  the  causes  of 
action  arose  out  of  the  same  trans- 
action; a  mere  general  allegation  that 
they  so  arose  is  not  sufficient. 

2.  A  claim  in  favor  of  the  plaintiff 
individually  cannot  be  joined  with  one 
held  by  him  in  his  representative  char- 
acter as  executor  of  a  third  person, 
though  arising  out  of  the  same  trans- 
action. Hall  V.  Fisher,  20  Barb.  (N. 
Y.)  441;  Lucas  V.  New  York  Cent. 
R.  Co.,  21  Barb.  (N.  Y.)  245. 

Action  as  Execatriz  and  as  Devisee. — 
A  plaintiff  may  unite  a  cause  of  action 
as  executrix  with  one  as  devisee, 
where  both  accrued  under  a  contract 
made  by  the  testator  with  the  defend- 
ant, growing  out  of  the  same  matter. 
The  plaintiff  was  allowed  to  sustain 
her  action  as  devisee  against  the  de- 
fendant for  the  rent  of  a  farm  leased 
to  the  defendant  by  the  testator,  which 
had  accrued  subsequent  to  the  testa- 
tor's death;  and  also  to  sustain  her 
action  as  executrix  against  the  de- 
fendant for  breaches  of  covenants  in 
the  lease,  to  repair  the  buildings. 
Armstrong  v.  Hall,  17  How.  Pr.  (N. 
Y.  Supreme  Ct.)  76. 

3.  Jones  v.  Steamship  Cortes,  17 
Cal.  487,  79  Am.  Dec.  142.  The  fol- 
lowing is  the  head-note  of  the  case: 

I 


"  All  matters  arising  from  and  con- 
stituting part  of  the  same  transaction 
may  be  litigated  in  the  same  action. 
Every  action,  under  our  system,  may 
be  termed  an  action  on  the  case,  and 
any  ground  of  relief  which  can  be  re- 
garded as  part  of  the  case  may  be  in- 
cluded in  the  action.  Under  our  sys- 
tem, a  cause  of  action  in  tort  may  be 
united  with  a  cause  of  action  on  con- 
tract, if  the  two  causes  of  action  arise 
out  of  the  same  transaction.  Thus,  in 
an  action  for  breach  of  a  contract  to 
convey  plaintiff  from  San  Francisco 
to  San  Juan  del  Sur,  in  Nicaragua, 
plaintiff  may  recover  not  only  the 
direct  pecuniary  loss  resulting  from 
the  breach  of  the  contract,  but  also 
damages  for  any  fraudulent  or  op- 
pressive conduct  on  the  part  of  de- 
fendants producing  great  bodily  or 
mental  suffering." 

4.  Harboring  Wife,  Conversion,  etc. — 
The  plaintiff  may  unite  in  the  same 
complaint,  as  causes  of  action  arising 
out  of  the  same  transaction  :  (i)  The 
harboring  and  maintaining  his  wife  ; 
(2)  The  conversion  of  certain  personal 
property  to  which  the  plaintiff  is  en- 
titled jure  mariti ;  (3)  Inducing  the 
wife,  while  harbored  and  maintained, 
to  execute  to  defendant  a  deed  for 
land,  under  which  he  had  received  the 
rents  ;  and  (4)  Converting  to  defend- 
ant's own  use  certain  mules  and  farm- 
ing utensils  set  out  in  a  marriage  set- 
tlement executed  by  plaintiff  and  his 
wife.  Hamlin  v.  Tucker,  72  N.  Car. 
502. 

Unlawful  Acts  by  County  Treasurer  and 
his  Deputy. — A  county   treasurer   un- 
90 


Joinder  under  the  Codes. 


ACTIONS. 


Penalties. 


3.  Penalties. — Under  the  Codes  of  practice  actions  to  recover 


lawfully  seized  and  sold  the  property 
of  the  plaintiff,  by  virtue  of  his  office 
of  county  treasurer,  on  a  warrant  for 
the  collection  of  taxes  ;  and  the  deputy 
of  the  treasurer  also  unlawfully  seized 
and  sold  the  property  of  the  plaintiff 
on  a  warrant  for  the  collection  of 
taxes.  The  two  causes  of  action  were 
allowed  to  be  joined.  Freeman  v. 
Webb,  21  Neb.  i6o. 

Breach  of  Contract  and  Injuries  to 
Property. — Separate  causes  of  action 
arising  out  of  breach  of  contract  and 
injuries  to  property,  the  subject  of  the 
contract,  entrusted  to  another  to  en- 
able him  to  perform  it,  may  be  joined. 
Badger  z/.  Benedict,  i  Hilt.  (N.  Y.)4i4. 

Proceedings  by  the  Committee  of  the 
Property  of  an  Incompetent. — A  com- 
plaint by  the  committee  of  the  property 
of  an  incompetent,  for  the  purpose  of 
ascertaining  the  extent  of  the  latter's 
interest  in  the  property,  and  the  valid- 
ity and  extent  of  the  liens  thereon 
held  by  various  creditors,  is  not  de- 
murrable as  improperly  joining  causes 
of  action.  Holmes  v.  Abbott  (Su- 
preme Ct.),  6  N.  Y.  Supp.  943. 

Moneys  Due  on  Settlement  and  for 
Money  Paid. — A  settlement  between 
plaintiff  and  defendant,  and  a  promise 
by  the  latter  to  pay  the  amount  thus 
found  to  be  due  to  the  former  ;  and 
a  cause  of  action  based  upon  the  pay- 
ment by  the  plaintiff,  after  the  said 
settlement,  of  moneys  for  the  use  of 
the  defendant,  held,  a  proper  joinder. 
Brown  v.  Chadwick,  32  Mo.  App.  615. 

Action  to  Quiet  Title  to  Bonds,  for  their 
Registration,  etc. — A  complaint  alleged 
that  the  plaintiffs  were  pledgees  of  cer- 
tain bonds,  for  full  value  and  before 
maturity  ;  that  the  executors  of  an 
estate  served  notice  on  the  makers 
that  the  bonds  belonged  to  their  tes- 
tator's estate,  from  which  they  had 
been  wrongfully  abstracted  by  the 
pledgor  ;  and  that  by  reason  of  the 
notice  the  maker  refused  to  recognize 
the  pledgees'  interest  ;  and  prayed 
that  the  pledgees'  title  be  quieted, 
that  the  maker  be  required  to  register 
the  bonds  in  the  name  of  the  pledgees, 
and  that  the  executors  be  declared  to 
have  no  title.  The  complaint  was 
held  good,  as  all  the  causes  of  action 
grew  out  of  one  transaction.  New- 
combe  V.  Chicago,  etc.,  R.  Co.  (Su- 
preme Ct.),  8  N.  Y.  Supp.  366. 

Action  against  Stockholder. — A  com- 


plaint setting  forth  facts  sufficient, 
and  seeking  to  charge  defendant, 
as  a  stockholder  of  a  manufacturing 
corporation  organized  under  the  gen- 
eral laws  (chap.  40,  Laws  of  1848), 
with  a  debt  of  the  corporatipn,  because 
of  a  failure  to  make  and  record  the 
certificate  required  by  said  act,  and 
also  alleging  the  requisite  facts,  and 
seeking  to  charge  him,  as  trustee, 
with  the  debt,  because  of  failure  to  file 
an  annual  report,  contains  two  causes 
of  action,  one  upon  contract,  and  one 
upon  a  statute  for  a  penalty,  which 
cannot  be  joined.  Wiles  v.  Suydam, 
64  N.  Y.  173- 

Action  by  Consignees  against  Carrier. 
— Consignees  of  goods  and  holders  of 
the  bill  of  lading,  who  have  made  ad- 
vances upon  it,  have  an  interest  or 
property  in  the  goods,  which  will  en- 
title them  to  bring  an  action  against 
the  carrier  for  the  loss,  waste,  or 
wrongful  conversion  thereof.  Such  a 
cause  of  action  may  be  joined  with  a 
claim  to  recover  back  a  sum  overpaid 
by  the  plaintiffs  to  the  defendants  on 
account  of  the  freight  of  the  goods. 
Adams  v.  Bissell,  28  Barb.  (N.  Y.) 
382. 

To  Set  Aside  Award  and  for  Money  Due. 
— A  complaint  demanded  (i)  A  certain 
sum  alleged  to  be  the  balance  due  to 
the  plaintiffs  upon  a  building  contract; 
(2)  Payment  for  extra  work  and  ma- 
terials ;  (3)  Damages  sustained  by  rea- 
son of  having  been  hindered  and  de- 
layed by  the  defendants  in  the  com- 
pletion of  the  work  ;  (4)  That  a  certain 
award,  njade  by  the  arbiter  mutually 
chosen,  in  relation  to  certain  disputes 
growing  out  of  the  contract  should  be 
set  aside  as  obtained  by  fraud.  All 
these  were  allowed  to  be  joined  as 
arising  out  of  the  same  transaction. 
See  V.  Partridge',  2  Duer  (N.  Y.)  463. 

For  Reformation  of  Insurance  Policy 
and  for  its  Enforcement. — An  action  in 
equity  to  reform  a  policy  of  insurance 
can  be  joined  with  one  at  law  for  re- 
covery upon  the  reformed  policy. 
They  arise  out  of  the  same  transac- 
tion. McHovey  v.  German  Ins.  Co., 
44  Mo.  App.  426. 

To  Set  Aside  Release  and  for  Recovery 
of  Damages. — Under  the  Code  a  count 
in  equity  to  set  aside  a  release  of  dam- 
ages for  personal  injuries  can  be 
joined  with  one  at  law  for  the  recovery 
of  the  damages.      They  arise  out  of 


191 


Joinder  under  the  Codes. 


ACTIONS. 


Penalties. 


penalties  given  by  statute  and  by  express  contract  are  causes  of 


the  same  transaction.  Blair  v.  Chi- 
cago, etc.,  R.  Co.,  89  Mo.  3S3. 

Cancellation  of  Spurious  Certificates  of 
Stock. — Causes  of  action  for  the  can- 
cellation of  spurious  certificates  of 
stock  in  a  corporation  may  be  joined 
in  one  action.  New  York,  etc.,  R.  Co. 
V.  Schuyler,  17  N.  Y.  592. 

Action  to  Recover  for  Duress  of  Ancestor 
in  Making  Will  and  for  False  Represen- 
tations in  Securing  Waiver  to  Probate  of 
Will. — A  joinder  in  one  complaint  of 
a  cause  of  action  arising  from  duress 
and  restraint  exercised  over  plaintiff's 
ancestor  in  inducing  him  to  execute  a 
will,  and  a  cause  of  action  arising 
from  false  representations  made  to 
plaintiff,  by  reason  of  which  plaintiff 
waived  all  objections  to  the  probate  of 
such  will,  is  proper.  Hay  v.  Hay,  13 
Hun  (N.  Y.)  315. 

Action  to  Recover  as  Surviving  Partner, 
as  Assignee  of  a  Claim,  and  for  the  Breach 
of  an  Arbitration  Agreement. — Plaintiff 
sued  as  surviving  partner  for  work  and 
labor  done,  and  also  as  assignee  of  a 
third  party  ;  there  was  also  a  count  to 
the  effect  that  the  defendant  had  con- 
sented to  submit  the  above  claims  to 
arbitration,  but  that  after  divers  hear- 
ings he  had  revoked  the  submission, 
for  which  damages  were  claimed. 
Held,  that  all  these  causes  of  action 
arose  out  of  the  same  transaction. 
Kent  V.  Crouse  (Supreme  Ct.),  5  N.  Y. 
St.  Rep.  141. 

Action  for  Money  Paid  on  Repudiated 
Contract. — An  action  to  recover  moneys 
paid  upon  a  contract  repudiated  by 
plaintiff  on  the  ground  of  fraud  may 
be  united  with  one  to  recovei»  moneys 
paid  on  the  ground  that  defendant  has 
refused  to  perform  and  has  repudiated 
the  contract  on  his  part.  Freer  v. 
Denton,  61  N.  Y.  492. 

Two  Street  Assessments. — Two  causes 
of  action  for  enforcing  liens  for  two 
street  assessments,  made  in  San  Fran- 
cisco, on  the  same  lot  at  different 
times  and  on  different  contracts,  and 
for  improving  the  same  street,  cannot 
be  joined  in  the  same  suit.  Dyer  v. 
Barstow,  50  Cal.  652. 

Action  Against  Trustee  for  Unauthorized 
Acts  and  One  on  Bond. — A  cause  of  ac- 
tion against  the  trustee  of  an  insol- 
vent savings  bank  to  recover  the  dam- 
ages occasioned  by  unauthorized  and 
illegal  investments  made  by  him  can- 
not be  joined  with  a  cause  of  action 


upon  a  bond  given  by  him  to  assist  in 
making  up  a  deficiency  in  the  assets 
of  the  bank.  French  v.  Salter,  17 
Hun  (N.  Y.)  546. 

Attacking  a  Judgment  and  Asking 
Declaration  of  Trust. — A  petition  con- 
tained two  counts,  one  alleging  that 
certain  shares  of  stock  owned  by  the 
plaintiff  were  purchased  at  judicial 
sale  by  the  defendant  under  a  parol 
agreement  that  defendant  should  hold 
the  shares  in  trust  and  reconvey  the 
same  upon  payment  of  a  debt  due  him 
from  plaintiff  ;  and  the  other  alleging 
want  of  jurisdiction  in  the  court  mak- 
ing such  sale,  but  that  defendant, 
under  color-  thereof,  procured  the 
transfer  of  the  shares  on  the  books  of 
the  company,  and  received  dividends 
thereon  in  trust  for  plaintiff.  Held, 
not  bad  for  misjoinder.  Williams  v. 
Lowe,  4  Neb.  382. 

Two  Wrongs  Causing  One  Injury. — The 
petition  asked  damages  for  horses 
killed  by  defendant's  train,  and 
counted  upon  two  distinct  wrongful 
acts  as  causes  of  the  killing  :  (i)  neg- 
lect to  repair  a  fence  ;  (2)  negligence 
in  running  its  train.  Held,  that  the 
addition  of  a  tort  to  a  separate  and 
distinct  act  in  violation  of  contract 
does  not  deprive  the  injured  party  of 
the  right  to  complain  at  the  same  time 
of  both  wrongs.  Pittsburg,  C.  &  St. 
L.  R.  Co.  V.  Hedges,  41  Ohio  St.  233. 

Bond  Given  Not  to  Make  Illegal  Acts 
Public. — Illegal  acts  were  done  during 
the  continuance  of  a  partnership,  and 
a  bond  was  given  by  the  executors  of 
a  deceased  partner,  with  one  of  the 
defendants,  as  security  to  the  surviv- 
ing partners  not  to  make  the  wrong 
public  ;  also,  a  sum  of  money  was  paid 
to  that  defendant  by  this  plaintiff  out 
of  the  estate  of  the  decedent  as  his 
security  that  the  executors  would 
keep  the  bond  a  good  cause  of  action 
against  all  the  defendants.  Held,  that 
the  defendant  to  whom  the  money  had 
been  paid  xould  not  be  compelled  to 
return  it  unless  the  bond  was  can- 
celled, and  that  in  an  action  for  that 
purpose  the  surviving  partners  must 
be  brought  in.  Zimmerman  v.  Kun- 
kel  (Supreme  Ct.),  6  N.  Y.  St.  Rep.  768. 

For  Conversion  of  Property  and  Pro- 
ceeds of  Sale. — A  cause  of  action  for 
the  wrongful  seizure  and  conversion 
of  personal  property,  and  a  cause  of 
action  to  recover  the  proceeds  of  the 


192 


Joinder  under  the  Codes. 


A  CTIONS.  Judgments— Injuries  to  Character.. 


action  arising  on  contract,  and  may  be  joined.     They  may  also 
be  joined  with  other  actions  on  contract.* 

4.  Judgments. — Causes  of  action  on  judgments  are  causes  of 
action  on  contract  within  the  meaning  of  the  Codes,  and  all  such 
causes  of  action  may  be  joined  with  each  other  or  with  any  other 
cause  of  action  on  contract.* 

5.  Injuries  to  Character. — All  the  Codes  allow  causes  of  action 
for  injuries  to  character  to  be  joined.' 


sale  in  the  hands  of  the  defendants, 
cannot  be  joined.  Teall  v.  Syracuse, 
32  Hun  (N.  Y.)  332. 

Kansas. — Where  an  action  was 
brought  before  a  justice  of  the  peace 
under  art.  13,  ch.  81,  Comp.  Laws  of 
1885,  and  there  was  joined  therewith 
a  claim  for  damages  growing  out  of 
the  same  transaction,  held,  that  the 
proceeding  under  the  Forcible  Entry 
and  Detainer  Act  is  a  summary  one, 
and  cannot  be  joined  with  other  causes 
of  action,  although  such  other  causes 
of  action  may  arise  out  of  the  same 
transaction.  Ow  v.  Wickham,  38 
Kan.  225. 

North  Carolina. — The  plaintiff  may, 
but  is  not  compelled  to,  join  separate 
causes  of  action  arising  out  of  the 
same  transaction.  Gregory  v.  Hobbs, 
93  N.  Car.  I. 

1.  Cincinnati,  etc.,  R.  Co.  v.  Cook, 
37  Ohio  St.  265  ;  State  v.  Roberts, 
loi  N.  Car.  774  ;  Doughty  v.  Atlantic, 
etc.,  R.  Co.,  78  N.  Car.  22. 

Action  Against  Attorney. — Actions 
brought  to  recover  notes  placed  in  the 
hands  of  an  attorney  for  collection, 
and  the  statutory  penalty  of  10  per 
cent,  are  joinable.  Bougher  v.  Sco- 
bey,  16  Ind.  151. 

Against  Trustee  for  Failure  to  Release 
After  Payment. — In  an  action  by  the 
grantor  in  a  deed  of  trust  against  the 
trustee  and  holder  of  the  notes,  for 
failure  to  make  a  release  after  the  debt 
had  been  paid,  claims  for  damages 
may  be  united  with  claims  for  a  pen- 
alty.    Scott  V.  Robards,  67  Mo.  289. 

Against  Sheriff. — A  suit  to  recover 
damages,  and  also  the  penalty  against 
a  sheriff  for  a  failure  to  execute  and 
return  process,  may  be  joined. 
Pearkes  v.  Freer,  9  Cal.  642. 

Tort  and  Penalty. — An  action  to  re- 
cover damages  caused  by  the  roadbed 
erected  by  defendant  ponding  back 
water  onto  plaintiff's  land  cannot  be 
joined  with  one  to  recover  damages 
for  an  alleged   breach   of  duty  on  the 


part  of  defendant  in  not  putting  up 
sufficient  cattle-guards  as  required  by 
the  Code,  §  1975,  whereby  cattle  tres- 
passed on  plaintiff's  lands.  The  first 
is  an  action  for  tort;  the  other  for 
breach  of  a  statutory  duty.  Hodges 
V.  Wilmington,  etc.,  R.  Co.,  105  N. 
Car.  170. 

California. — The  plaintiff  cannot 
unite  two  or  more  causes  of  action  for 
penalties  incurred  by  a  toll-gatherer 
for  demanding  and  receiving  too 
much  toll,  even  if  they  are  separately 
stated.  Brown  v.  Rice,  51  Cal.  489. 
Under  §  2743  of  the  Political  Code,  as 
amended  in  1883,  a  cause  of  action  to 
abate  a  nuisance  caused  by  the  ob- 
struction of  a  public  highway,  and  a 
cause  of  action  to  recover  the  penalty 
of  ten  dollars  a  day  for  every  day  the 
nuisance  remained  after  notice  to  re- 
move it,  may  be  united  in  the  same 
action.     Bailey  v.  Dale,  71  Cal.  34. 

2.  Moore  v.  Nowell,  94  N.  Car.  265  ; 
Childs  V.  Harris  Mfg.  Co.,  68  Wis, 
231. 

Action  to  Kevive  a  Decree  and  One  for 
a  Personal  Judgment. — An  action  to  re- 
vive a  decree,  and  an  action  for  a 
personal  judgment  on  the  original  de- 
cree, may  be  joined.  Moore  v.  Ogden, 
35  Ohio  St.  434. 

Judgments  Against  Partnership  in 
Different  Names. — A  firm  in  Wyoming 
did  business  by  the  name  of  J.  W.  D. 
&  Associates,  and  also  as  D.  S.  &  Co. 
Held,  in  an  action  against  a  member 
of  the  firm  upon  a  judgment  against 
J.  W.  D.  &  Associates,  and  one  against 
D.  S.  &  Co.,  that  the  judgments  could 
be  joined  in  one  action.  Ruth  v. 
Lowrey,  10  Neb.  260. 

3.  Libel,  Slander,  and  Malicious  Prose- 
cution.— Causes  of  action  for  libel, 
slander,  and  malicious  prosecution 
may  be  joined.  They  are  all  injuries 
to  character.  Martin  v.  Mattison,  8 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  3.  See 
also  Shore  v.  Smith,  15  Ohio  St.  173, 
where  a  cause  of   action  for  slander 


I  Encyc.  PI.  &  Pr.— 13. 


193 


Joinder  tinder  the  Codes. 


ACTIONS. 


£z  Delicto  and  £x  Contractu. 


6.  Causes  of  Action  Ex  Delicto  and  Ex  Contractu. — a.  Generally. 
— Causes  of  action  arising  ex  delicto  cannot  be  joined,  under  the 
Codes,  with  those  arising  ex  contractu,  unless  they  arise  out  of  the 
same  transaction.* 

b.  Complaint  to  be  Drawn  upon  Definite  Theory. — It 


and  one  for  malicious  prosecution  were 
allowed  to  be  joined  ;  they  were  held 
injuries  to  character. 

Slander  at  DifFerent  Times. — Slander- 
ous words  spoken  at  different  times 
constitute  separate  causes  of  action, 
and  should  be  separately  stated. 
Swinney  v.  Nave,  22  Ind.  178.  See 
also  Alpin  v.  Morton,  21  Ohio  St.  536. 
But  the  entire  conversation  in  which 
slanderous  words  are  published  con- 
stitutes but  one  cause  of  action.  Cra- 
craft  V.  Cockran,  16  Iowa  302. 

Different  Articles. — See  Fleischmann 
•V.  Bennett,  87  N.  Y.  231,  where  the 
complaint  set  forth  six  different  alleged 
libelous  articles  published  at  different 
times.  Held,  that  each  constituted  a 
separate  cause  of  action. 

Libel  and  Slander. — A  count  in  libel 
may  be  joined  with  one  in  slander. 
Noonan  v.  Orton,  32  Wis.  106. 

Slander  and  False  Charge  before  Grand 
Jury. — Slander  of  the  plaintiff,  and  a 
false  and  malicious  charge  against  him 
made  before  a  grand  jury,  are  injuries 
to  character,  and  may  be  joined.  Hull 
V.  Vreeland,  18  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  182. 

1.  Sturges  V.  Burton,  8  Ohio  St.  215, 
72  Am.  Dec.  582  ;  Tompkins  v.  White, 
8  How.  Pr.  (N.  Y.  Supreme  Ct.)  520  ; 
Keep  V.  Kauffman,  36  N.  Y.  Super. 
Ct.  141  ;  Butt  V.  Cameron,  53  Barb. 
(N.  Y.)642  ;  Colwell  v.  New  York,  etc., 
R.  Co.,  9  How.  Pr.  (N.  Y.  Supreme  Ct.) 
311;  Booth  7/.  Farmers,  etc.,  Nat.  Bank, 
65  Barb.  (N.  Y.)  457;  Hall  v.  Fisher, 
20  Barb.  (N.  Y.)  441  ;  Ehle  v.  Haller, 
6  Bosw.  (N.  Y.)66i  ;  Alger  z/.  Scoville, 
6  How.  Pr.  (N.  Y.  Supreme  Ct.)  131  ; 
Landau  v.  Levy,  i  Abb.  Pr.  (N.  Y. 
Super.  Ct.)  376;  Sumner  v.  Tuck,  10 
Mo.  App.  269  ;  Bishop  v.  Chicago,  etc., 
R.  Co.,  67  Wis.  610  ;  Lane  v.  Cameron, 
38  Wis.  603  ;  Kewaunee  County  v. 
Decker,  30  Wis.  624.  See  Siebern  v. 
Meyer  (Ohio  C.  PI.),  26  Wkly.  L.  Bull. 
147  ;  Nimocks  v.  Inks,  17  Ohio  596. 

Implied  Contract. — A  cause  of  action 
in  tort  cannot  be  united  with  one  on 
implied  contract,  even  though  arising 
out  of  same  transaction.  Hunter  v. 
Powell,  15  How.  Pr.  (N.  Y.  Supreme 
Ct.)  223. 


Contract  and  Fraud. — A  cause  of  action 
in  contract  against  one  defendant  can- 
not be  united  with  a  cause  of  action  in 
fraud  against  both.  North  Carolina 
Land  Co.  v.  Beatty,  69  N.  Car.  329. 

Iowa. — In  Iowa  causes  of  action  ex 
delicto  may  be  joined  with  those  ex 
contractu.  Rev.  Sts.  §  2844  ;  Turner  v. 
First  Nat.  Bank,  26  Iowa  562  ;  Jack  v. 
Des  Moines,  etc.,  R.  C,  49  Iowa  627. 
But  they  must  have  same  venue  ;  see 
cases  supra. 

Texas.— In  the  system  of  practice 
which  obtains  in  Texas  the  parties  are 
required  to  settle  all  their  controver- 
sies in  a  single  suit  if  practicable. 
Causes  of  action  ex  contractu  and  ex 
delicto  are  joinable.  International, 
etc.,  R.  Co.  V.  Donalson,  2  Tex.  App. 
Cas.  238  ;  Chevallier  v.  Rusk,  Dall. 
(Tex.)  611  ;  Pitts  v.  Ennis,  i  Tex.  604; 
Francis  v.  Northcote,  6  Tex.  185  ; 
Haggerty  v.  Scott,  10  Tex.  525  ;  Hen- 
derson V.  Morrill,  12  Tex.  3  ;  Ponton 
V.  Bellows,  22  Tex.  681  ;  W.  &  W.  Con. 
Rep.  §  1246  ;  Craddock  v.  Goodwin, 
54  Tex.  578. 

For  Possession  of  Property,  etc. — The 
plaintiff  may  join  claims  for  possession 
of  personal  property,  for  exemplary 
damages,  and  for  reasonable  compen- 
sation for  trouble  and  expense  in  seek- 
ing the  property.  Cox  v.  Lloyd,  i 
Tex.  App.  Cas.  §  123. 

Conversion  and  Overcharge  in  Freight. 
— The  following  claims  may  by  joined: 
(i)  For  the  conversion  of  a  bale  of 
cotton  ;  (2  Overcharge  of  freight  on 
nine  bales  of  cotton  ;  (3)  Damage 
done  to  three  buggies  in  transporting 
same  ;  (4)  Discrimination  in  freight 
on  one  hundred  and  fifty  bales  of  cot- 
ton delivered  for  transportion.  Hous- 
ton, etc.,  R.  Co.  V.  Stewart,  i  Tex. 
App.  Cas.  §  1246. 

Alabama. — The  joinder  of  counts  ex 
contractu  with  counts  ex  delicto  is  un- 
affected by  statutory  provisions,  and  is 
good  ground  for  demurrer  to  the  entire 
complaint.  Whilden  v.  M.  &  P.  Bank, 
64  Ala.  And  see  Munter  v.  Rogers, 
50  Ala.  283. 

Georgia. — A  claim  arising  ex  delicto 
cannot  be  set  off  against  a  suit  on  a 
draft.     Smith  v.  Printup,  59  Ga.  610. 


194 


Joinder  under  the  Codes. 


ACTIONS. 


£z  Delicto  and  £z  Contractu. 


is  often  difficult  to  determine  from  the  allegations  of  a  complaint 
whether  an  action  ex  contractu  is  joined  with  one  ex  delicto. 
Where  a  tort  is  committed,  it  is  often  optional  with  the  plaintiff 
to  waive  the  tort  and  sue  on  the  implied  contract,  and  join  with 
this  any  other  cause  of  action  on  contract.*  A  complaint  must 
proceed  upon  a  definite  theory,  the  cause  must  be  tried  upon  the 
theory  constructed  by  the  pleadings,  and  such  a  judgment  as  the 
theory  selected  warrants  must  be  rendered,  and  no  other  or  differ- 
ent one.* 

c.  Cases  Involving  Conversion  of  Property. — The  courts 
apply  a  rather  strict  rule  in  cases  of  the  conversion  of  property, 
holding  that  this  is  a  cause  of  action  ex  delicto  which  cannot  be 
joined  with  one  ex  contractu.  The  complaint  is  usually  construed 
as  proceeding  for  the  tort,  and  not  on  the  implied  contract.* 


t 


1.  Logan  V.  Wallis,  71  N.  Car.  416; 
Shirley  v.  Waco  Tap  R.  Co.,  78   Tex. 

131- 

2.  A  complaint  seeking  a  recovery 
against  some  of  the  defendants  upon  a 
money  demand  for  goods  sold  and  de- 
livered, and  auxiliary  equitable  relief 
against  other  defendants  as  fraudulent 
judgment  plaintiffs  and  vendees,  does 
not  entitle  the  plaintiff  to  a  judgment 
for  damages  against  all  the  defen- 
dants.    Feder  v.  Field,  117  Ind.  386. 

Evidence  only  Adduced  to  One  Para- 
graph.— If  the  evidence  is  only  adduced 
to  one  of  two  paragraphs  of  the  com- 
plaint, and  the  case  is  tried  upon  the 
theory  set  forth  in  such  paragraph,  it 
is  immaterial  that  other  paragraphs 
are  improperly  joined  with  such  para- 
graph.    Carter  v.   Lacy,   3  Ind.  App. 

54- 

Suing  on  One  Cause  and  Becovering  on 
Another. — Under  the  Code  one  cannot 
sue  on  one  cause  of  action  and  recover 
on  another.  He  cannot  sue  for  an  in- 
jury and  recover  on  a  contract,  express 
or  implied,  or  vice  versa.  Sumner  v. 
Rogers,  90  Mo.  324.  • 

3.  Action  for  Accounting  and  Settlement 
of  Accounts,  with  Action  against  Sureties 
for  Converting  Property. — A  cause  of  ac- 
tion against  the  board  of  county  com- 
missioners of  a  county  in  favor  of  one 
who  had  been  treasurer  thereof,  for 
an  accounting  and  settlement  of  his 
accounts  as  such  treasurer,  cannot  be 
joined  with  a  cause  of  action  in  his 
favor,  against  the  sureties  on  his  of- 
ficial bond,  for  wrongfully  converting 
property  deeded  by  him  in  trust  for 
the  protection  of  said  sureties  from 
loss  as  sureties  on  said  official  bond. 
Rizer  v.  Davis  County,  48  Kan.  389. 


Becovery  from  Bondsmen  of  Constable 
for  Illegal  Levy  and  against  Constable 
for  Conversion.— Where  a  deputy  con- 
stable levies  an  execution  upon  prop- 
erty belonging  to  a  person  other  than 
the  execution  debtor,  and  such  per- 
son then  commences  an  action  for 
damages  for  the  wrong  against  the 
constable  and  his  sureties  and  the 
said  deputy,  and  in  his  petition  in  one 
count  sets  forth  a  cause  of  action 
against  the  constable  and  his  sureties 
on  the  constable's  bond,  and  also  a 
cause  of  action  against  the  constable 
and  his  deputy  for  the  tort  committed 
by  the  deputy,  held,  that  the  two 
causes  of  action  were  improperly 
joined.  Hoye  v.  Raymond,  25  Kan. 
665. 

Tort  and  Honey  Had  and  Beceived. — A 
claim  arising  out  of  an  alleged  tort 
cannot  be  joined  in  the  same  action 
with  a  claim  for  money  had  and  re- 
ceived, the  rule  of  the  Code  being  that 
plaintiff  may  join  all  causes  of  action 
of  like  nature;  causes  ex  delicto  csLTino\. 
be  joined  with  causes  ex.  contractu. 
Teem  v.  Ellijay,  89  Ga.  154;  Croghan 
V.  New  York  Underwriters'  Agency, 
53  Ga.  112. 

Conversion  by  Carrier  and  Breach  of 
Contract  to  Carry. — A  cause  of  action 
for  damages  for  negligence  in  not 
taking  proper  care  of  a  sum  of  money 
delivered  to  him  to  be  kept,  which  he 
agreed  to  take  care  of,  but  which  he 
lost  through  gross  carelessness,  and 
failed  to  redeliver  upon  demand,  is  a 
cause  of  action  for  breach  of  contract., 
and  cannot  be  joined  with  a  cause  of 
action  for  the  conversion  of  the  money 
to  the  use  of  the  defendant.  Stark  v. 
Wellman,  96  Cal.  400. 


19s 


Joinder  under  the  Codes. 


ACTIONS. 


£z  Delicto  and  Ex  Contractu. 


d.  Miscellaneous. — In  the  note  will  be  found  a  collection  of 
cases  which,  while  affirming  the  general  principle  that  tort  and 
■contract  cannot  be  joined,  involve  questions  of  construction, 
whether  the  cause  of  action  sounds  in  tort  or  on  contract,  and 
whether  there  has  been  a  proper  or  an  improper  joinder.* 

version. — A  petition  in  an  action  upon 
a  promissory  note,  reciting  the  consid- 
eration of  the  note  and  the  disposition 
of  property  for  which  it  was  given, 
but  not  alleging  that  there  was  a 
"wrongful  conversion  "  of  the  prop- 
erty, is  not  subject  to  objection  by  de- 
murrer on  the  ground  that  "  an  action 
on  a  promissory  note  and  an  action  of 
trover  are  improperly  joined."  Lash 
V.  Christie,  4  Neb.  262. 

1.  For  Value  of  Stock  Received  and  for 
Breach  of  Trust. — Causes  of  action  in 
tort  and  in  contract  cannot  be  joined  ; 
as,  an  action  for  specific  performance 
of  a  contract,  one  for  the  value  of 
stock  received  under  a  resolution  of 
a  board  of  directors,  and  one  for 
breach  of  trust  in  no  wise  connected 
with  the  other  causes  of  action,  can- 
not be  joined.  Hannahs  v.  Hammond 
(Supreme  Ct.),  19  N.  Y.  Supp.  883. 

Contract  and  Injury  to  Property. — A 
cause  of  action  founded  upon  a  con- 
tract cannot  be  united  in  the  same 
count  with  a  cause  of  action  founded 
upon  an  injury  to  property.  Ederlin 
V.  Judge,  36  Mo.  350  ;  Jamison  v. 
Copher,  35  Mo.  483;  Hoagland  v.  Han- 
nibal, etc.,  R.  Co.,  39  Mo.  451. 

Trespass  and  Injunction. — A  cause  of 
action  for  damages  for  a  trespass,  and 
a  cause  of  action  for  an  injunction  to 
restrain  further  or  additional  trespass 
threatened  to  be  committed  upon  the 
same  property,  may  be  joined.  Jacob 
V.  Lorenz,  98  Cal.  332. 

Fraud  and  Breach  of  Covenant. — A 
cause  of  action  for  costs  incurred  in 
having  to  bring  suit  against  the  de- 
fendant for  specific  performance  of  an 
agreement  to  reconvey  certain  prem- 
ises, a  cause  of  action  based  upon  al- 
leged fraud,  malic^,  and  oppression  of 
the  defendant,  and  a  cause  of  action 
arising  from  the  breach  of  the  defend- 
ant's written  covenant  of  warranty  of 
property  conveyed  to  the  plaintiff,  can- 
not be  united.  Cosgrove  v.  Fisk,  90 
Cal.  75. 

To  Set  Aside  Conveyance  for  Fraud  and 
for  Accounting  under  Assignment. — A  suit 
to  set  aside,  on  the  ground  of  fraud, 
a  conveyance  by  a  debtor  of  land  not 
included   in   his    assignment   for   t«he- 

96 


Claim  against  Trustee  for  Surplus  on 
Foreclosure  and  for  Conversion. — A  claim 
against  a  trustee  for  surplus  on  fore- 
closure cannot  be  united  with  one  for 
conversion  of  the  property  sold.  Pettit 
V.  King,  Seld.  Notes  (N.  Y.)  222. 

Breach  of  Contract  to  Sell  Groods  and 
Trover.— A  cause  of  action  for  a  breach 
of  contract  to  sell  and  deliver  a  quan- 
tity of  goods  cannot  be  joined  with  one 
in  trover.  Bennett  v.  Taintor,  8  Law 
Rep.  553- 

Claim  against  Trustee  cannot  be  Joined 
with  one  for  Conversion  of  Note. — A 
claim  against  the  defendant  as  trustee 
cannot  be  joined  with  one  for  taking 
possession  of,  collecting,  and  convert- 
ing the  proceeds  of  a  note  belonging 
to  plaintiff.  Jasper  v.  Hazen,  2  N. 
Dak.  401. 

Conversion  and  Accounting. — A  cause 
of  action  for  the  conversion  of  personal 
property  cannot  be  joined  with  a  claim 
for  an  accounting  between  principal 
and  agent.  Thompson  v.  St.  Nicholas 
Bank,  61  How.  Pr.  (N.  Y.  Supreme 
Ct.)  163. 

Sale  of  Real  Estate  and  Conversion. — A 
cause  of  action  arising  out  of  a  breach 
of  contract  on  a  sale  of  real  estate  can- 
not be  joined  with  one  arising  out  of  a 
wrongful  conversion  of  personal  prop- 
erty. McDonald  v.  Kountze,  58  How. 
Pr.  (N.  Y.  Supreme  Ct.)  152. 

Recovery  of  Personal  Property  and  Con- 
version.— A  plaintiff  cannot  so  frame 
his  complaint  as  that,  if  he  fails  to  re- 
cover the  possession  of  his  personal 
property,  he  can  recover  damages  for 
the  conversion.  Maxwell  v.  Farnam, 
7  How.  Pr.  (N.  Y.  Supreme  Ct.)  236. 

Fraudulent  Taking  of  Money  and  for 
Lien' on  Land  in  which  it  was  Invested. 
— It  seems  that  a  cause  of  action  for 
the  fraudulent  taking  of  plaintiff's 
money  and  appropriating  the  same  to 
the  purchase  of  real  estate,  and  taking 
the  title  to  the  same  in  the  name  of 
the  defendant's  wife,  and  praying  for 
a  judgment  and  that  a  lien  be  declared 
on  the  real  estate,  may  be  joined  with 
a  cause  of  action  for  a  judgment  for 
the  money  so  appropriated.  File  v. 
Springel,  132  Ind.  312. 

Petition  Omitting  Allegations  of  Con- 


Joinder  under  the  Codes. 


ACTIONS.         Canses  Arising  Ex  Contractu. 


7.  Causes  of  Action  Arising  Ex  Contractu. — All  causes  of  action 


benefit  of  creditors,  should  not  be 
joined  with  a  suit  for  an  accounting 
under  the  assignment.  Hatcher  v. 
Winters,  71  Mo.  30. 

To  Set  Aside  Bond  Wrongfully  Ex- 
torted, and  to  Recover  Trust  Money. — 
Actions  to  set  aside  a  bond  wrongfully 
extorted,  and  to  recover  trust  money 
deposited  with  the  surety  thereon  with- 
out authority,  may  be  joined.  Zim- 
merman V.  Kinkle,  108  N.  Y.  282. 

Exemption  from  Imprisonment. — Where 
the  plaintiff  unites  in  his  suit  causes  of 
action  upon  contract  and  in  tort,  and 
a  general  verdict  and  judgment  are 
rendered  in  his  favor,  it  seems  that 
the  defendant  is  exempted  by  the  Non- 
imprisonment  Act  from  imprisonment 
upon  the  execution.  Miller  v.  Scher- 
der,  2  N.  Y.  262. 

For  Keconveyance  and  for  Damages  in 
Fraudulent  Sale. — The  vendor  of  land 
cannot  unite  in  the  same  action  a  claim 
against  the  broker  for  damages  for 
having  fraudulently  sold  the  land,  with 
a  claim  against  the  purchaser  for  a  re- 
conveyance or  accounting.  Gardner 
V.  Ogden,  22  N.Y.  327,  78  Am.  Dec.  192. 

Against  Partner  for  an  Account  and 
Appropriation  to  Firm  Debts. — In  a  suit 
against  a  partner  for  an  account,  the 
plaintiff  may  join  a  demand  for  the 
appropriation  of  the  firm  assets  to  the 
partnership  debts.  Davis  v.  Grove,  2 
Robt.  (N.  Y.)  136;  Wade  v.  Rusher,  4 
Bosw.  (N.  Y.)  537- 

Negligence  in  the  Performance  of  a 
Contract  may  Constitute  an  Action  Ex 
Delicto. — A  count  in  a  complaint,  set- 
ting out  a  contract  for  the  carriage  of 
horses  and  payment  of  the  freight 
thereon,  and  alleging  that  the  defend- 
ant so  negligently  and  carelessly  car- 
ried said  horses  that  one  of  them  was 
killed,  states  a  cause  of  action  ex  de- 
licto, although  the  amount  paid  for 
freight  is  included  in  the  sum  for  which 
judgment  is  asked,  and  such  cause  of 
action  maybe  joined  with  one  for  neg- 
lecting to  fence  a  railroad,  by  reason 
whereof  an  ox  of  plaintiff  was  killed. 
Rideout  v.  Milwaukee,  etc.,  R.  Co.,  81 
Wis.  237. 

Statute  Making  Directors  Personally 
Liable  for  Debts. — There  is  no  misjoin- 
der of  causes  of  action  where  a  single 
action  is  brought  upon  a  note  and  upon 
an  account,  against  a  debtor  corpora- 
tion, and  also  against  its  directors, 
who  are  made  by  the  act  of  incorpora- 


tion jointly  and  severally  liable  for  the 
debts  of  the  corporation.  Sullivan  v. 
Sullivan,  14  S.  Car.  494.  See  also  a 
very  learned  and  elaborate  opinion  on 
the  subject  of  multifariousness  by  the 
Hon.  John  A.  Inglis,  printed  as  afoot- 
note  to  the  case  of  Suber  v.  Allen,  13 
S.  Car.  317. 

Damages  for  not  Delivering  Cattle  and 
for  Injury  while  being  Carried. — A  pe- 
tition for  not  safely  delivering  cattle, 
and  also  for  damages  in  having  put  the 
cattle  in  a  yard  infected  with  a  cattle 
disease, whereby  they  became  infected, 
states  but  one  cause  of  action.  Bald- 
win V.  Railway  Co.,  i  Clev.  Rep. 
(Ohio)  178. 

Breach  of  Covenant  in  a  Lease  and 
Trespass. — An  action  for  a  breach  of  a 
covenant  in  a  lease  cannot  be  joined 
with  one  for  trespass  on  the  demised 
premises.  Week  v.  Keteltas,  10  Civ. 
Pro.  Rep.  (N.  Y.  C.   PI.)  43. 

Negligence  and  Bent. — A  cause  of  ac- 
tion for  negligence  cannot  be  joined 
with  one  upon  contract  for  rent.  Comp- 
ton  V.  Hughes,  38  Hun  (N.  Y.)  377. 

Rescission  of  Contract  and  Accounting. — 
A  claim  for  the  rescission  of  a  contract 
on  the  ground  of  fraud  cannot  be 
joined  with  one  for  an  account  under 
it.     Van  Liew  v.  Johnson,  4  Hun  (N. 

Y.)4i5. 

Against  Trustee  for  Conversion  and  as 
Trustee  of  the  Proceeds  of  Property. — A 

claim  against  the  defendant  as  trustee 
of  the  proceeds  of  property  cannot  be 
joined  with  one  for  the  wrongful  con- 
version of  it.  Pettit  V.  King,  Seld. 
Notes  (N.  Y.)  222. 

Against  Sheriff  and  Bondsmen. — If  the 
complaint  in  an  action  against  a  sheriff 
and  his  official  bondsmen  alleges  only 
a  cause  of  action  against  him  as  a  tres- 
passer, and  against  his  sureties  as  sign- 
ers of  the  bond,  and  not  otherwise, 
there  is  a  misjoinder  of  causes  of  ac- 
tion. Ghiradelli  v.  Bourland,  32  Cal. 
585. 

Contract  and  Neglect  of  Duty. — Dam- 
ages for  breaches  of  contracts  and  for 
neglect  of  duty  cannot  be  united  in  the 
same  complaint.  Loup  v.  California, 
etc.,  R.  Co.,  63  Cal.  gg.  See  also  Shel- 
don V.  Steamship  Uncle  Sam,  18  Cal. 
526,  7g  Am.  Dec.  ig3. 

Indiana. — Under  section  280  Rev.  Sts. 
1881  a  paragraph  of  complaint  declar- 
ing upon  a  guardian's  bond  and  asking 
judgment  may  be  joined  with  other 


197 


Joinder  nnder  the  Codes. 


ACTIONS.  Causes  Arising  Ex  Contractu, 


arising  ex  contractu,  whether  on  sealed  instruments  or  on  simple 
contracts,  or  on  both,  may,  under  the  Codes,  be  joined.^ 


paragraphs  also  declaring  on  the  bond 
and  attacking  conveyances  made  by 
the  surety  as  fraudulent,  with  a  prayer 
that  they  be  set  aside.  Bowen  v.  State, 
121  Ind.  235. 

Missouri. — A  count  for  a  breach  of 
warranty  in  a  sale  is  not  inconsistent 
with  one  for  damages  caused  by  a  frau- 
dulent misrepresentation  in  the  same 
sale ;  nor  is  the  joinder  thereof  contrary 
to  section  6137  of  the  Rev.  Sts.  of  1889, 
which  prohibits  the  joinder,  in  justices' 
courts,  of  a  cause  of  action  founded 
upon  a  contract  with  one  founded  upon 
trespass  to  the  person  or  to  real  or  per- 
sonal property.  Spangler  v.  Kite,  47 
Mo.  App.  230. 

1.  Sutton  V.  McMillan,  72  N.  Car. 
102;  Keller  v.  Hicks,  22  Cal.  457,  83 
Am.  Dec.  78;  Waterman  v.  Waterman, 
81  Wis.  17;  Remy  v.  Olds,  88  Cal.  537; 
Cowan  V.  Abbott,  92  Cal.  100;  Clark 
V.  Ryan,  95  Ala.  406;  Buford  v.  Funk, 
4  Greene  (^lowa)  493;  Bowman  v.  Hol- 
laday,  3  Oregon  182;  Dabams  v. 
Sears,  13  Oregon  47;  Cohen  v.  Otten- 
heimer,  13  Oregon  220;  Powell  v. 
Dayton,  etc.,  R.  Co.,  13  Oregon  446; 
Stevens  v.  Able,  15  Kan.  584;  Schil- 
ling V.  Black,  49  Kan.  552;  Hoye  v. 
Raymond,  25  Kan.  665;  Parmerter  v. 
Baker(Supreme  Ct.),  8  N.  Y.  Supp.  69; 
State  V.  Schneider,  35  Mo.  533;  Wright 
V.  Baldwin,  51  Mo.  269;  Aycock  v. 
Austin,  87  Ga.  566;  Gabel  v.  Hammer- 
well,  44  Ala.  336;  Danforth  v.  Tennes- 
see, etc.,  R.  Co.,  93  Ala.  614. 

Two  Claims,  One  Held  under  Assign- 
ment.— A  cause  of  action  for  work  and 
labor  performed  by  the  plaintiff  for  the 
defendant,  and  a  cause  of  action  for 
work  and  labor  performed  for  the  de- 
fendant by  an  assignor  of  the  plaintiff, 
may  be  united  in  the  same  complaint. 
Fraser  v.  Oakdale  Lumber,  etc.,  Co., 
73  Cal.  187. 

On  Note  to  Plaintiff  and  on  Assigned 
Note,  the  Assignor  Being  a  Necessary 
Party  to  the  Latter  Claim. — A  count  on 
a  note  made  by  defendant  to  plaintiff 
may  be  united  with  a  count  on  a  non- 
negotiable  note  made  by  defendant  to 
a  third  person,  and  by  him  assigned 
to  plaintiff,  although  the  assignor  is  a 
necessary  defendant  and  is  not  af- 
fected by  the  first  count.  Myers  v. 
Miller,  2  West  L.  Month.  (Ohio) 
420. 


Account      Divided    by     Agreement. — 

Where,  by  agreement,  an  account  for 
goods  sold  on  the  same  day  was 
divided  into  four  distinct  parts,  due 
on  different  days,  the  creditor  had  a 
right  of  action  on  each  as  it  fell  due, 
and  if  he  waited  until  all  had  fallen 
due,  he  might  sue  on  them  separately 
or  unite  them,  and  he  was  not  com- 
pelled to  unite  them  so  as  to  prevent 
the  jurisdiction  of  a  justice's  court. 
Parris  v.  Hightower,  76  Ga.  631. 

Against  Bailroad  as  Carrier  and  Ware- 
houseman.— A  cause  of  action  against 
a  railroad  company  as  carrier  for  loss 
of  goods,  and  against  same  company 
as  warehouseman  for  other  goods  de- 
stroyed by  fire,  need  not  be  joined. 
Kronshage  v.  Chicago,  etc.,  R.  Co., 
45  Wis.  500. 

As  Surviving  Partner  and  Individually. 
— The  surviving  partner  in  a  law  firm 
can  sue  for  the  amount  due  for  ser- 
vices rendered  by  the  firm  before  the 
dissolution  of  the  firm  by  the  death  of 
one  of  its  members,  and  can  join  in  the 
same  action  a  claim  for  what  is  due 
him  individually  for  services  rendered 
under  the  same  contract  after  the 
death  of  his  partner.  O'Brien  v.  Gil- 
leland,  79  Tex.  602;  Stachely  z/.  Peirce, 
28  Tex.  328. 

Upon  Two  Official  Bonds. — A  complaint 
in  an  action  upon  two  official  bonds 
given  for  separate  terms  of  office, 
against  a  clerk  and  a  single  surety  to 
both  bonds,  alleging  misapplication  of 
funds  paid  into  the  clerk's  office  dur- 
ing the  two  terms,  is  not  demurrable 
for  misjoinder  of  causes  of  action. 
Syme  w.^ Bunting,  86  N.  Car.  175. 

Bonds  *of  Officer  with  Different  Sureties. 
— One  S.  was  elected  treasurer  of  a 
school  district,  and  executed  a  bond  to 
the  district  with  two  sureties  condi- 
tioned as  required  by  law.  After- 
ward, and  during  the  same  term  of 
office,  he  executed  and  delivered  to  the 
district  an  additional  bond  with  new 
sureties.  In  an  action  against  the 
principal  and  sureties  on  both  bonds 
for  a  default  of  the  treasurer,  occur- 
ring after  the  execution  of  the  second 
bond,  held,  that  they  were  properly 
joined.  Holeran  v.  School  District 
No.  17,  10  Neb.  406. 

Account  and  Note  Indorsed  as  Collateral 
Security. — A    cause   of  action   upon  a 

[98 


Joinder  under  the  Codes. 


ACTIONS. 


Injuries  to  Property. 


8.  Divorce  Proceedings. — Divorce  proceedings  are  in  the  nature 
of  special  proceedings,  and  it  seems  to  be  the  poh'cy  of  the  courts 
to  confine  all  matters  arising  therein  within  a  limited  range,  and 
the  joining  of  other  matters  is  discouraged.* 

9.  Injuries  to  Property. — Actions  for  injuries  to  property  may  be 
united.  But  the  Codes  generally  segregate  the  two  kinds  of  prop- 
erty, and  only  allow  a  joinder  of  causes  of  action  arising  from 
either  injuries  to  personal  property  or  injuries  to  real  property, 
but  not  from  both.  A  cause  of  action  for  an  injury  to  personal 
property  cannot  be  joined  with  one  for  an  injury  to  real  prop- 
erty.* 


note  may  be  joined  with  one  upon  an 
account.  Thorpe  v.  Dickey,  51  Iowa 
676.  But  such  causes  of  action  cannot 
be  joined  where  the  parties  to  the  note 
are  not  all  parties  to  the  account,  even 
though  the  note  was  indorsed  as  col- 
lateral security  for  the  account. 
Thorpe  v.  Dickey,  51  Iowa  676. 

Assessments. — If  several  tracts  of 
swamp  land,  of  the  same  owner,  be 
separately  assessed  under  one  assess- 
ment, the  assessments  on  the  several 
tracts  may  be  recovered  in  one  action. 
People  V.  Hagar,  52  Cal.  171.  And 
two  assessments  for  reclamation  pur- 
poses in  a  swamp-land  district,  made 
on  the  same  land  at  different  times, 
may  be  recovered  in  the  same  action. 
Swamp  Land  Co.  v.  Feck,  60  Cal.  403. 

Against  Partners. — A  cause  of  action 
against  a  partnership  cannot  be  united 
with  a  cause  of  action  against  the 
same  partnership,  where  a  new  mem- 
ber is  taken  in  who  is  only  liable  on 
one  cause  of  action.  Benton  v.  Win- 
ner, 69  Hun  (N.  Y.)  494. 

Account  not  Due. — When  the  plain- 
tiff's petition  states  three  separate 
demands,  the  first  two  on  promissory 
notes  past  due,  and  the  third  on  an 
account  not  due,  there  is  a  misjoinder 
of  causes  of  action.  Wurlitzer  v. 
Suppe,  38  K'an.  31. 

Two  Bonds. — A  complaint  in  which 
are  joined  two  causes  of  action,  the 
one  upon  a  clerk's  bond,  and  the  other 
upon  a  bond  of  an  administrator,  is  a 
misjoinder.  Street  v.  Tuck,  84  N.  Car. 
605. 

Against  Two  Insurance  0«mpanies,  One 
on  Reinsurance  Policy. — A  cause  ef 
action  against  an  insurance  company 
on  an  original  policy  cannot  be  joined 
with  a  suit  against  another  company 
on  a  reinsurance  policy.  Lee  v.  Fra- 
ternal Mut.  Ins.  Co.,  r  Handy  (Ohio) 
233. 


1.  Equitable  Belief. — Equitable  relief 
cannot  be  prayed  for  in  a  divorce  case. 
Dunbar  v.  Dunbar,  i  Clev.  Rep.  (Ohio) 
148. 

For  Absolute  Divorce  and  for  Annul- 
ment of  Separation  Deed. — A  cause  of 
action  for  an  absolute  divorce  cannot 
be  united  with  one  for  the  annulment 
of  the  deed  of  separation.  Galusha 
V.  Galusha,  138  N.  Y.  281. 

To  Annul  Marriage  and  to  Quiet 
Title. — The  plaintiff  cannot  unite  a 
cause  of  action  to  annul  a  marriage 
by  reason  of  a  former  marriage  of  the 
plaintiff  to  one  who  is  still  alive,  with 
a  cause  of  action  to  quiet  her  title  to 
her  separate  property,  in  which  the 
defendant  falsely  claims  an  interest. 
Uhl  V.  Uhl,  52  Cal.  250. 

For  Divorce  and  to  Set  Aside  Convey- 
ances.— In  an  action  for  divorce  and 
alimony  it  is  not  an  improper  joinder  of 
causes  of  action  to  seek  at  the  same 
time  to  set  aside  certain  fraudulent 
conveyances  on  which  an  award  of 
alimony  is  dependent.  Prouty  v. 
Prouty,  4  Wash.  174. 

2.  See  Code  provisions,  supra,  §  1, 
Code  States. 

What  is  an  Injury  to  Personal  Prop- 
erty.— A  cause  of  action  for  the  con- 
version of  personal  property  may  be 
united  with  one  for  false  and  fraudu- 
lent representations,  inducing  plain- 
tiff to  execute  a  bond  and  a  mortgage 
on  his  real  estate,  to  secure  its  pay- 
ment in  favor  of  a  third  person,  for 
whom  defendant  delivered  them  for  a 
consideration — this  under  the  Code  al- 
lowing causes  of  action  for  injuries  to 
personal  property  to  be  joined.  De 
Silver  v.  Holden,  50  N.  Y.  Super.  Ct. 
236.  Causes  of  action  for  dece;it  in 
the  sale  of  a  canal-boat  and  horses  by 
the  defendant  to  the  plaintiff,  and  for 
taking  certain  personal  property  of 
the    plaintiff's    from  such   canal-boat. 


199 


Joinder  under  the  Codes. 


ACTIONS. 


To  Becover  Eeal  Property. 


10.  Actions  to   Recover   Eeal  Property. — The  plaintiff  may  unite 
in  the  same  complaint  two  or  more  causes  of  action  where  they 


and  converting  the  same,  may  be 
united,  as  they  are  both  for  injuries  to 
property.  Cleveland  v.  Barrows,  59 
Barb.  (N.  Y.)  364. 

Gutting  Wood. — A  cause  of  action 
for  cutting  and  removing  timber,  and 
one  for  removing  firewood  already  cut, 
and  converting  it,  followed  by  aver- 
ments of  injury  to  the  inheritance  and 
reversionary  interest  of  the  plaintiff, 
may  be  united,  as  the  causes  of  action 
arise  out  of  "  injuries  with  or  without 
force  to  property."  Rodgers  v.  Rod- 
gers,  II  Barb.  (N.  Y.)  595. 

Action  for  Deceit  and  for  Waste. — De- 
ceit in  the  sale  of  a  horse  is  an  injury 
to  property  without  force,  within  the 
meaning  of  subd.  3,  sec.  2647,  Rev. 
Sts. ,  and  a  cause  of  action  therefor  may 
be  united  with  a  cause  of  action  for  an 
injury  to  realty  by  waste.  Gilbert  v. 
Loberg,  83  Wis.  189. 

Injuries  to  Real  Estate. — The  com- 
plaint set  forth  two  causes  of  action, 
one  for  a  wrongful  entry  upon  plain- 
tiff's lands  under  water  and  wrongfully 
carrying  away  fish  therefrom,  the 
other  for  a  like  entry  on  plaintiff's 
land  and  catching  and  killing  musk- 
rats  thereon.  Held,  that  as  both 
causes  of  action  were  for  injuries  to 
real  estate,  they  were  properly  united. 
Whatling  v.  Nash,  41  Hun  (N.  Y.)  579. 

Breach  of  Duty  in  Neglecting  to  Build 
Crossing. — An  action  to  recover  dam- 
ages caused  by  an  embankment  erected 
by  defendant  upon  its  land,  which 
turned  the  waters  of  a  stream  and 
caused  them  to  flow  over  plaintiff's 
premises,  cannot  be  joined  with  one 
to  recover  damages  for  a  breach  of 
duty  in  neglecting  to  erect  and  main- 
tain a  farm  crossing.  The  first  cause 
of  action  is  for  injuries  to  real  prop- 
erty, while  the  second  is  "upon  con- 
tract." Thomas  v.  Utica,  etc.,  R.  Co., 
97  N.  Y.  245 

Injury  to  Property  and  Person.  —  A 
cause  of  action  for  injury  to  the  prop- 
erty of  two  persons  in  partnership  can- 
not be  joined  with  one  for  injuries 
from  the  same  wrong  to  the  person  of 
one  partner.  Taylor  v.  Manhattan  R. 
Co.,  53  Hun  (N.  Y.)  305.  A  claim  for 
injuries  to  the  person  cannot  be 
united  with  one  for  injuries  to  prop- 
erty.   McCartyz'.  Fremont,  23Cal.  196. 

Damage  to  Building  and  Trespass. — A 
claim  for   damages  done   to   a   brick 


building  by  the  construction  of  a  rail- 
road track  within  three  feet  of  its  front 
wall,  and  a  claim  for  damages  for 
trespass  by  defendant  upon  plaintiff's 
land,  cannot  be  joined  in  the  same 
count.  Dougherty  z/.  Wabash,  etc.,  R. 
Co.,  19  Mo.  App.  419. 

Condemnation  of  Land  and  Damages  for 
Trespass.  —  An  action  against  a  railroad 
company  for  a  trespass  to  land  in 
building  its  road  thereon,  without 
license  or  condemnation  of  the  land, 
cannot  be  joined  with  a  proceeding 
by  the  company  to  condemn  land  under 
ch.  119  of  1872.  Blesch  v.  Chicago, 
etc.,  R.  Co.,  44  Wis.  593. 

Separate  Dams  Erected. — Where  two 
persons  each  severally  built  dams 
across  a  river,  one  across  the  north 
channel,  and  the  other  across  the 
south  channel,  which  caused  an  over- 
flow, .//f/^/,  that  there  was  a  separate 
cause  of  action  against  each  de- 
fendant, and  that  the  two  causes  of 
action  could  not  be  joined  in  the  same 
complaint.  Lull  v.  Fox,  etc..  Imp. 
Co.,  19  Wis.  III.  See  also  Arimond 
V.  Green  Bay,  etc..  Canal  Co.,  31  Wis. 
316- 

Injury  to  Real  Property  and  Slander  of 
Title. — An  action  for  slander  of  title 
cannot  be  united  with  one  for  an  in- 
jury to  real  property.  Dodgery.  Colby, 
loS  N.  Y.  445. 

Riparian  Owners  Restraining  Diversion 
of  Water. — In  an  action  by  riparian 
owners  to  restrain  the  diversion  of 
water  from  their  lands,  an  allegation 
that  the  defendant  entered  upon  the 
land  of  one  of  the  plaintiffs  and  dug 
up  and  removed  rocks  and  soil  there- 
from does  not  state  a  cause  of  action, 
so  as  to  create  an  improper  joinder, 
where  such  allegation  is  made  merely 
to  show  the  means  employed  in  di- 
verting the  water,  and  no  damages 
are  claimed  on  account  of  such  entry. 
Grand  Rapids  Water  Co.  v.  Bensley, 
75  Wis.  399. 

Damages  for  Diverting  Water  and  In- 
junction.— If  the  several  owners  of  a 
stream  join  as  plaintiffs  in  an  action 
for  damages  for  diverting  the  waters 
of  the  stream,  and  for  an  injunction 
to  restrain  the  defendants  from  the 
further  diversion  thereof,  the  owners 
having  no  joint  or  common  interest, 
neither  one  having  any  interest  in  the 
land,  water,  or  ditch  of  the  other,  the 


Joinder  under  the  Codes. 


ACTIONS. 


To  Kecover  Eeal  Property. 


are   brought  to  recover  real  property,  with  or  without  damage 
for  the  withholding  thereof.* 

complaint  is  demurrable,  both  for  a 
misjoinder  of  parties  plaintiff  and  for 
a  misjoinder  of  causes  of  action. 
Foreman  v.  Boyle,  88  Cal.  290. 

Lowering  Waters  of  Lake. — An  action 
to  recover  damages  for  the  lowering 
of  the  waters  of  a  lake  may  be  joined 
with  one  for  an  injunction  to  prevent 
the  continuance  of  the  acts  causing 
them.  Cedar  Lake  Hotel  Co.  v.  Cedar 
Creek  Hydraulic  Co.,  79  Wis.  297. 

Laying  Railroad  Track. — An  action 
to  restrain  the  laying  of  a  railroad 
track  in  a  street  in  front  of  plaintiff's 
premises  cannot  be  joined  with  one 
asking  damages  for  a  track  already 
laid  there  and  an  injunction  to  pre- 
vent further  use  of  the  street  by  de- 
fendant till  such  damages  are  paid, 
under  §  2630  of  the  Code,  which  al- 
lows two  causes  to  be  joined  "where 
each  may  be  prosecuted  by  the  same 

kind  of  proceedings."  Bowman  v. 
Chicago  R.  Co.  (Iowa,  1892),  53  N.  W. 

Rep.  327. 

Temporary  and  Permanent  Damages. — 

If  a  railroad  company  in  building  its 

roadbed  extends  a  permanent  approach 

thereto  in  front  of  plaintiff's  lot,  de- 
stroying egress  and  ingress  therefrom 

to  the  street,  and    at  the  same    time 

floods  plaintiff's    lot  by  means  of   an 

improper  culvert  under  its  embank- 
ment on  the  south  of  said  lot,  plaintiff 

can  recover  for  both  the  temporary  and 

the  permanent   damages  in  the  same 

action.  Wallaces.  Kansas  City  R.  Co. , 

47  Mo.  App.  491. 

Damages  for  Trespass  and  Waste,  and 

Injunction. — A     claim     for     damages 

against    a    county   for    trespass    and 

waste  cannot  be  joined  with  one  for  an 

injunction  to  restrain  further  acts  of 

waste.     McCann  v.  Sierra  County,   7 

Cal.  123. 
Qnare  Clausum  Fregit  and  Negligence. 

— Where    there  was    a   joinder  of   an 

action  to  recover  for  injuries  to  per- 
sonal  property,  and  an    action    quare 

clausum  fregit,  An6.  one  for  negligence, 

the  court  refused  to  arrest  the  judg- 
ment.    Henshaw  v.  Noble,  7  Ohio  St. 

226. 

Trespass  and  Profits. — To  a  count  in 

trespass  for  entering  upon  the  plain- 
tiff's   land  and    taking   and    carrying 

away  his  wheat,  cotton,  etc.,  a  count 

may  be  added  by  way  of  amendment, 

for  taking  and  carrying  away  the  pro- 


ceeds and  profits  of  the  same  land  for 
the  same  time.  Oglesby  v.  Stodghill, 
23  Ga.  590. 

Indiana. — For  Injury  and  Possession, 
— Under  the  fourth  clause  of  section 
278  Rev.  Sts.  1881,  a  paragraph  of  com- 
plaint to  recover  damages  for  conver- 
sion may  be  joined  with  a  paragraph 
to  recover  possession  of  the  same 
property.  Baals  v.  Stewart,  109  Ind. 
37I-. 

Missouri. — Several  causes  of  action 
for  injury  to  person  or  property, 
whether  real  or  personal,  direct  or 
consequential,  and  whether  the  dam- 
ages are  given  by  statute  or  by  com- 
mon law,  single  or  double,  may  be 
included  in  the  same  petition.  Clark 
V.  Hannibal,  etc.,  R.  Co.,  36  Mo.  202. 
In  an  action  to  recover  damages  to 
plaintiff's  crops  by  the  overflow  of  his 
lands  caused  by  the  diversion  of  the 
channel  of  a  watercourse,  each  annual 
overflow  is  a  separate  cause  of  action, 
but  all  may  be  joined  in  the  same 
action.  Mooney  v.  Kennett,  19  Mo. 
551,  61  Am.  Dec.  576;  Otis  v.  Me- 
chanics Bank,  35  Mo.  128  ;  Offield  v. 
Wabash,  etc.,  R.  Co.,  22  Mo.  App. 
607. 

1.  Hubbell  V.  Lerch,  58  N.  Y.  237  ; 
Vandevoort  v.  Gould,  36  N.  Y.  639 ; 
Langsdale  v.  Woollen,  120  Ind.  16  ; 
Sullivan  v.  Davis,  4  Cal.  291  ;  Brown 
V.  Quartz  Min.  Co.,  15  Cal.  152;  Arm- 
strong V.  Hinds,  8  Minn.  254  ;  Merrill 
V.  Dearing,  22  Minn.  376  ;  Fletcher  v. 
Brown,  35  Neb.  660  ;  Harrall  v.  Gray, 
12  Neb.  543;  McKinney  v.  McKinney, 
8  Ohio  St.  429. 

Rent  and  Damages. — Plaintiff  may 
join  in  the  same  action  a  claim  to  re- 
cover rent  of  real  estate  under  an  im- 
plied contract  and  one  for  the  recovery 
of  damages  for  the  wrongful  occupa- 
tion of  the  same  real  estate.  Foster  v. 
Hinson,  76  Iowa  714. 

Trespass  and  Ejectment.  —  Trespass 
and  ejectment,  and  trespass  quare 
clausum  fregit  in  respect  of  the  same 
premises,  cannot  be  joined.  Budd  v. 
Bingham,  18  Barb.  (N.  Y.)  494. 

Recovery  of  Land  and  for  Change  of 
Road. — A  claim  for  the  possession  of 
real  property,  with  damages  for  its  de- 
tention, cannot  be  joined  in  the  same 
complaint  with  a  claim  for  consequen- 
tial damages  arising  from  the  chasge 
of  a   road,  by  which  a  tavern-keeper 

201 


Joinder  under  the  Codes. 


ACTIONS. 


Partition, 


11.  Partition. — Some  of  the  Codes  allow  partition  to  be  joined 
with  other  matters.  Thus  an  action  to  correct  a  deed  may  be 
joined  with  one  for  partition.*  So  an  action  to  declare  a  result- 
ing trust  in  land,  and  for  partition   of  the  same,  may  be  joined.* 

may  have  been  injured  in  his  business. 
Bowles  V.  Sacramento  Turnpike,  etc., 
Co.,  5  Cal.  224. 

Ejectment  and  Chancery  Relief. — A 
complaint  which  joins  an  action  of 
trespass  quare  clausum  /regit,  eject- 
ment, and  prayer  for  relief  in  chancery 
is  bad.  Bigelow  v.  Gove,  7  Cal.  133. 
But  see  Weaver  t/.  Conger,  10  Cal.  233, 
where  a  claim  to  recover  damages  for 
the  diversion  of  water  from  a  flume, 
and  one  for  an  injunction,  were  allowed 
to  be  joined. 

Cancellation  of  Deeds,  Ejectment,  and 
to  Quiet  Title. — Causes  of  action  for 
cancellation  of  deeds,  ejectment,  and 
to  quiet  title  are  not  joinable.  Tomp- 
kins V.  Sprout,  55  Cal.  31. 

Conveyance  of  Land,  and  Bents. — A  pe- 
tition for  the  conveyance  of  land  and 
possession  thereof,  and  for  the  rents 
and  profits,  is  not  multifarious.  Duvall 
V.  Tinsley,  54  Mo.  93;  Kelly  v.  Hurt, 
61  Mo.  463. 

Separate  Parcels. — A  claim  for  dam- 
ages for  withholding  one  parcel  of 
land  is  improperly  united  with  a  claim 
to  recover  the  possession  of  another 
parcel,  with  damages  for  the  with- 
holding thereof.  Holmes  v.  Williams, 
16  Minn.  164. 

Recovery  of  One  Parcel  and  Trespass  on 
Another  Parcel. — Claims  for  the  recov- 
ery of  real  property  and  for  trespass 
on  other  lands  cannot  be  joined.  Hulce 
V.  Thompson,  9  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  113;  Furlong  z/.  Cooney,  72 
Cal.  322.  And  see  Loveland  v.  Garner, 
71  Cal.  541. 

Counterclaim.  —  Causes  of  action 
which  cannot  be  joined  in  the  com- 
plaint cannot  be  joined  in  a  counter- 
claim, and  as  a  demand  for  waste  is 
not  incident  to  the  recovery  of  the  pos- 
session of  the  real  estate,  it  was  not 
properly  joined  in  the  counterclaim. 
Woodruff  V.  Garner,  27  Ind.  4. 

Forcible  Entry  and  Detainer,  and  Dam- 
ages for  Holding  Over. — Forcible  entry 
and  detainer  cannot  be  joined  with  a 
claim  for  damages  for  holding  over  as 
a  tenant,  contrary  to  the  terms  of  the 
lease.     Polack  v.  Shafer,  46  Cal.  270. 

Forcible  Entry  and  Detainer,  and  Waste. 
— Damages  for  waste  cannot  be  joined 
with  forcible  entry  and  detainer.  War- 
burton  V.  Doble,  38  Cal.  622. 


Land  in  Different  Counties. — Where 
one  cause  of  action  relates  to  land  in 
one  county,  and  another  cause  of  ac- 
tion to  land  in  another  county,  there 
is  a  misjoinder.  Hackett  v.  Carter, 
38  Wis.  394.  And  see  Heath  v.  Silver- 
thorn  Lead  Min.,  etc.,  Co.,  39  Wis. 
146. 

Forfeiture  of  Lease  and  for  Rent  Due. — 
An  action  for  forfeiture  of  lease  and 
one  for  rent  due  cannot  be  joined. 
Owens  V.  Hickman,  2  Disney  (Ohio), 
471  ;  Countee  v.  Armstrong,  10  Cin. 
L.  Bull.  (Ohio)  339. 

Real  Action  and  Injunction. — A  real 
action  is  joinable  with  an  injunction 
to  restrain  waste  or  trespass.  Merced 
Min.  Co.  V.  Fremont,  7  Cal.  317,  68 
Am.  Dec.  262  ;  Hicks  v.  Davis,  4  Cal. 
67;  Natoma  Water,  etc.,  Co.  v.  Clarkin, 
14  Cal.  544;  Curtis  v.  Sutter,   15  Cal. 

259- 

Proceedings  to  Acquire  Right  of  Way. 
— Under  section  1244  of  the  Code  of 
Civil  Procedure,  a  proceeding  by  a 
railroad  corporation  to  acquire  a  right 
of  way  across  the  right  of  way  of  an- 
other railroad  company,  and  a  pro- 
ceeding to  acquire  a  right  of  way  over 
lands  which  the  defendant  owns  in 
fee,  may  be  united.  California  South- 
ern R.  Co.  V.  Southern  Pac.  R.  Co., 
67  Cal.  59. 

Cancellation  and  Possession.  —  Under 
the  Code  a  cause  of  action  for  the  can- 
cellation of  a  deed  to  real  property 
may  be  united  with  an  action  for  pos- 
session of  the  same  property  when 
both  causes  of  action  affect  all  the 
parties  in  the  same  character  and  ca- 
pacity, and  are  directly  connected  with 
the  subject-matter  of  litigation.  Stock 
Growers'  Bank  v.  Newton,  13  Colo. 
245- 

Kentucky. — It  is  optional  for  the 
plaintiff  to  join  claims  for  the  recovery 
of  specific  real  property,  and  for  the 
rents,  profits,  and  damages  for  with- 
holding the  same.  §  iii  of  the  Civil 
Code  is  permissive,  not  mandatory. 
Burr  V.  Woodrow,  i  Bush  (Ky.) 
602. 

1.  Dameron  v.  Jamison,  4  Mo.  App. 
299. 

2.  Buchannan  v.  Buchannan  (S. 
Car.,  1893),  17 S.  E.  Rep.  218.  And  see 
Field  V.  Hurst,  9  S.  Car.  277. 


Joinder  under  the  Codes. 


ACTIONS. 


Foreclosure. 


Likewise  an  action  to  enforce  partition  is  joinable  with  one  to 
enforce  a  trust.^  And  partition  may  be  joined  with  an  action  to 
quiet  title.*  Partition  and  claims  for  rents  and  profits  may  be 
joined.^  An  action  for  the  recovery  of  real  property  may  be 
joined  with  one  seeking  partition.* 

12.  Foreclosure. — Where  a  mortgage  or  instrument  is  foreclosed, 
the  courts  show  a  disposition  to  give  full  relief  in  the  same  action, 
and  other  matters  may  be  joined  therein.* 


\ 


1.  Pixley  V.  Bent,  59  Cal.  522. 

2.  Schissel  v.  Dickson,  129  Ind.  139. 

3.  Perry  v.  Richardson,  27  Ohio  St. 
no;  Finch  v.  Baskerville,  85  N.  Car. 
205. 

4.  Galton  v.  Tolly,  22  Kan.  678  ; 
Seibert  v.  Baxter,  36  Kan.  189;  Scar- 
borough V.  Smith,  18  Kan.  399;  Scant- 
lin  V.  Allison,  32  Kan.  379;  Durein  v. 
Pontious,  34  Kan.  353;  Black  v.  Drake, 
28  Kan.  482;  Hall  v.  Sanders,  25  Kan. 
548. 

Partition  and  Distribution. — An  action 
for  partition  of  land  among  the  remain- 
dermen in  fee,  after  the  death  of  the 
life-tenant,  and  for  an  account  and 
distribution  of  the  estate  of  such  life- 
tenant,  is  a  misjoinder  of  causes  of  ac- 
tion. Shanks  v.  Mills,  25  S.  Car.  358. 
See  also  Lowry  v.  Jackson,  27  S.  Car. 
318. 

Partition  and  Creditor's  Bill. — A  cred- 
itor's bill  and  one  for  partition  cannot 
be  united.  Dewey  v.  Ward,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  419. 

Separate  Conveyances  by  Tenant  in 
Common  Preclude  one  Action  of  Parti- 
tion.— Where  one  tenant  in  common 
has  made  separate  conveyances  of  the 
entire  right,  in  various  parcels  of  the 
land  held  in  common,  so  that  each  pur- 
chaser's title  and  possession  is  sepa- 
rate and  distinct,  the  other  tenant  in 
common  cannot  sustain  a  joint  suit 
for  partition  against  such  purchasers, 
but  must  bring  a  separate  suit  against 
each.     Prentiss'  Case,  7  Ohio  131. 

Partition  and  Correcting  Distribution 
Decree. — A  count  to  correct  a  mistake 
by  which  one  distributee  had  obtained 
more  than  his  share  of  the  decedent's 
estate,  also  one  to  have  deeds  of  par- 
tition made  according  to  the  agree- 
ment which  had  been  made  by  the 
heirs,  is  a  proper  joinder.  Whitney  v. 
Whitney,  5  Dana  (Ky.)  329. 

6.  Mortgage  on  Several  Tracts. — A  bill 
to  obtain  payment  of  a  debt  secured 
bj'  mortgage  is  not  multifarious  be- 
cause it  covers  several  tracts  sold  to 
various  purchasers  and    makes  them 


all  parties.     Muskingum  Bank  v.  Car- 
penter, Wright  (Ohio)  729. 

Tax  Deeds. — Under  statutory  provi- 
sions for  tlie  foreclosure  of  tax  deeds, 
several  distinct  parcels  of  land,  con- 
veyed under  a  tax  sale  by  different 
deeds,  when  they  are  the  property  of 
one  or  of  several  joint  owners,  may 
be  joined  in  one  action  to  foreclose 
the  tax  title.  Byington  v.  Woods,  13 
Iowa  17. 

Land  Contract. — An  action  to  recover 
the  balance  due  on  a  land  contract, 
and  to  subject  the  land  to  sale  for  the 
payment  thereof,  may  be  joined.  Lins- 
ley  V.  Logan,  33  Ohio  St.  396.  And 
see  Karr  v.  Neach,  5  Am.  L.  Bull. 
(Ohio)  648. 

Foreclosure  and  Debt. — Foreclosure  of 
mortgage  may  be  united  with  a  de- 
mand for  the  amount  of  the  debt  and 
for  possession  of  property  conveyed 
by  the  deed.  Martin  v.  McNeely,  loi 
N.  Car.  634. 

Deed  Declared  Mortgage  and  Foreclo- 
sure, and  Cancellation  of  Other  Deed. — 
An  action  to  have  deed  declared  to  be 
a  mortgage,  and  to  have  the  same  fore- 
closed, may  be  joined  with  an  action 
to  cancel  another  deed  to  same  land. 
Moon  V.  McKnight,  54  Wis.  551. 

Foreclosing  Land  Contract  and  Setting 
Aside  Attachment.  —  In  an  action  to 
foreclose  a  land  contract  given  by  the 
plaintiffs  to  one  of  the  defendants,  the 
complaint  alleged  that  the  other  de- 
fendant had  by  a  false  affidavit  ob- 
tained an  attachment  of  the  land,  and 
that  the  defendants  were  colluding 
together  by  means  of  such  attachment 
to  retain  possession  of  the  land  with- 
out performing  said  land  contract. 
The  prayer  was  that  the  attachment 
be  set  aside  and  the  contract  fore- 
closed. Held,  that  there  was  no  im- 
proper joinder  of-  causes  of  action. 
Ramash  v.  Scheuer,  81  Wis.  269. 

Foreclosure  and  Personal  Judgment. — 
The  foreclosure  of  a  mortgage  and  a 
personal  judgment  may  be  asked  in 
the  same  action.    Campbell  v.  Nichol- 


203 


Joinder  under  the  Codes. 


ACTIONS. 


Torts. 


13.  Torts. — All  the  Codes,  with  more  or  less  detail,  classify  the 
torts  that  are  joinable,  as,  for  instance,  injuries  to  person,  to 
character,  to  personal  property,  and  to  real  property,  and  this 
classification  seems  to  have  in  agreat  measure  reduced  the  number 
of  cases  which  otherwise  might  have  arisen.  But  there  are  cases 
which  hardly  seem  to  come  under  any  of  the  above  classifications, 
in  which  it  has  been  held  that  matters  were  either  joinable  or  not 
joinable.* 


son  (Tex.  App.,  1892),  18  S.  W.  Rep. 
135.  See  also  McCormick  v.  Blum,  4 
Tex.  Civ.  App.  9. 

Note  and  Mortgage. — An  action  on  a 
note  may  be  joined  with  one  to  fore- 
close a  mortgage  securing  it.  Turner 
V.  Frost,  3  West.  L.  Month.  (Ohio)  213; 
Burdell  v.  Reeder,  2  Cin.  Super.  C. 
(Ohio)  94;  King  v.  SafTord,  19  Ohio  St. 

587. 

Avoiding  Contract  of  Purchase  and 
Foreclosure. — An  action  to  avoid  a  con- 
tract of  purchase  with  foreclosure  of 
mortgage  for  purchase  money  is  a 
misjoinder.  Camden  v.  Vail,  34  Cal. 
382. 

Foreclosure  and  Setting  Aside  Trust 
Deed. — An  action  of  foreclosure  can- 
not be  joined  with  an  action  to  set 
aside  a  trust  deed  under  which  the 
mortgagor  claims.  Helck  v.  Rein- 
heimer,  23  N.  Y.  Wkly.  Dig.  473. 

1.  Tort  and  Injunction. — A  cause  of 
action  in  tort  and  one  for  an  injunc- 
tion to  protect  the  subject-matter  in 
litigation  are  joinable.  Gates  v.  Kieflf, 
7  Cal.  124  ;  Marius  v.  Bicknell,  10  Cal. 
217  ;  Weaver  v.  Conger,  10  Cal.  233  ; 
Jungerman  v.  Bovee,  19  Cal.  354  ;  More 
V.  Massini,  32  Cal.  590  ;  Yolo  County 
V.  Sacramento,  36  Cal.  193. 

Mining  Claim  and  Damages. — In  an 
action  for  injuries  to  a  mining  claim, 
a  claim  for  damages  by  reason  of  the 
breaking-away  of  the  defendant's  dam, 
and  the  consequent  washing  away  of 
the  pay-dirt  of  the  plaintiff,  may  prop- 
erly be  joined  with  a  claim  for  dam- 
ages for  preventing  plaintiff  from 
working  his  claim.  Fraler  v.  Sears 
Union  Water  Co.,  12  Cal.  555,  73  Am. 
Dec.  562. 

Value  of  Property  Destroyed. — A  cause 
of  action  for  the  value  of  property 
destroyed  may  be  united  with  claims 
for  damages.  Tendesen  v.  Marshall, 
3  Cal.  440. 

Trover  for  Horse  and  Case  for  Fraud 
Inducing  its  Sale. — A  count  in  trover  for 
the  conversion  of  a  horse  and  buggy 
may  be  joined  with  a  count  in  case  for 


fraud  and  deceit,  whereby  defendant 
induced  plaintiff  to  sell  him  the  horse 
and  buggy  for  a  worthless  note  of  a 
third  person.  Henry  v.  Allen,  93  Ala. 
197.  And  see  Wilkinson  v.  Moseley, 
30  Ala.  562  ;  Dixon  v.  Barclay,  22  Ala. 
370. 

Action  for  Libel  not  Amendable  to 
Trespass. — An  action  for  libel  is  not 
amendable  by  adding  a  count  for  tres- 
pass to  the  person.  Ransone  v.  Chris- 
tian, 56  Ga.  351. 

Joint  Tort. — An  averment  by  the 
plaintiff  of  a  joint  tort  by  the  defend- 
ants does  not  show  a  misjoinder  of 
causes  of  action.  Barnes  v.  Ennenga, 
53  Iowa  497. 

Slander  Spoken  of  Several. — A  joint 
action  for  slander  cannot  be  main- 
tained. If  the  same  slanderous  words 
be  at  the  same  time  spoken  of  several 
parties,  each  must  seek  a  separate 
remedy.  Hinkle  v.  Davenport,  38 
Iowa  355. 

Negligence  of  Fellow-Servant  and  Vice- 
Principal. — An  action  for  the  negli- 
gence of  a  fellow-servant  may  be 
united  with  one  for  the  negligence  of 
a  vice-principal,  provided  they  are  not 
blended  in  the  same  count.  McDer- 
mott  V.  Hannibal,  etc.,  R.  Co.,  87  Mo. 
302. 

Several  Trespasses. — In  an  action  in 
tort  several  distinct  trespasses  may  be 
joined  in  the  same  action.  Wilson  v. 
Johnson,  i  Greene  (Iowa)  147. 

Separate  Tort  Feasors. — Two  causes 
of  action  against  separate  tort  feasors 
may  be  joined.  Trowbridge  v.  Fore- 
paugh,  14  Minn.  133. 

Common-Law  and  Statutory  Negli- 
gence.— A  common-law  action  for  neg- 
ligence cannot  be  joined  in  the  same 
count  with  one-  for  statutory  negli- 
gence. Kendrick  v.  Chicago,  etc.,  R. 
Co.,  81  Mo.  521. 

Stolen  Stock  and  its  Deposit. — An  action 
against  parties  who  had  loaned  money 
on  stock  stolen  from  the  plaintiff  can- 
not be  joined  with  an  action  against  a 
bank  with  whom  the  thief  had  depos- 


204 


Joinder  under  the  Codes. 


ACTIONS. 


Mechanic's  Lien — Beplevin.. 


14.  Mechanic's  Lien. — There  have  been  some  cases  in  construc- 
tion of  the  Codes  in  reference  to  the  joinder  of  actions  for  fore- 
closing mechanic's  Hens  and  on  other  claims.  They  generally 
allow  a  joinder  of  the  foreclosure  with  one  for  personal  judg- 
ment.* 

15.  Replevin. — Replevin  sounds  in  tort,  and  cannot  be  joined 
with  an  action  upon  contract.'-* 


ited  the  borrowed  money.  Sanford  v. 
Fourth  Nat.  Bank,  60  Hun  (N.  Y.)  484. 

Erection  of  Nuisance  by  One,  Continu- 
ance of  it  by  Another. — An  action  for 
the  erection  of  a  nuisance  by  one  de- 
fendant and  an  action  for  its  continu- 
ance by  another  cannot  be  joined. 
Hess  V.  Buffalo  R.  Co.,  29  Barb. 
(N.  Y.)  391. 

Slander  by  Husband  and  Wife. — Slan- 
der by  both  husband  and  wife  cannot 
be  sued  for  in  the  same  action.  Ma- 
lone  V.  Stilwell,  15  Abb.  Pr.  (N.  Y.  C. 
PI.)  421. 

Two  Torts,  One  Assigned. — An  action 
by  an  assignee  of  the  claim,  in  his  own 
name,  for  damages  to  premises  by 
overflow  may  be  joined  with  one  for 
damages  to  the  same  premises  accru- 
ing subsequently  to  his  ownership. 
Hall  V.  Cincinnati,  etc.,  R.  Co.,  i  Dis- 
ney (Ohio)  58. 

Malfeasance  in  Office  and  Devastavit. — 
A  cause  of  action  against  a  clerk  of 
the  superior  court  for  damages  result- 
ing from  malfeasance  in  accepting  an 
insufficient  bond  from  an  administra- 
tor cannot  be  joined  with  a  cause  of 
action  against  such  administor  and  his 
sureties  for  a  devastavit.  Mitchell  v. 
Mitchell,  96  N.  Car.  14. 

1.  Clippenger  v.  Ross,  3  West.  L. 
Month.  (Ohio)  648. 

Material  Furnished  to  Owner  and  Con- 
tractor.— A  mechanic,  in  an  action  to 
enforce  a  lien  for  work  and  material 
on  a  building,  may  unite  a  cause  of  ac- 
tion for  work  and  material  furnished 
to  a  contractor  with  a  cause  of  action 
for  work  and  material  furnished  at  the 
request  of  the  owner.  Quale  v.  Moon, 
48  Cal.  478. 

Failure  to  Establish  Lien. — A  plaintiff 
proceeding  in  rem  for  the  enforcement 
of  a  mechanic's  lien  may  also  count 
upon  the  personal  liability  of  the  de- 
fendant, and  recover  in  personam, 
though  he  may  fail  to  establish  the  al- 
leged lien.  Bingman  v.  McGuire,  32 
Ark.  733.  See  also  Arkansas  R.  Co.  v. 
McKay,  30  Ark.  682. 


Owner  and  Agent. — A  cause  of  action 
to  foreclose  a  mechanic's  lien  against 
the  owner  cannot  be  joined  with  one 
on  contract  against  a  person  who 
stands  in  relation  to  the  owner  as 
agent  and  not  as  contractor.  Gothard 
V.  Lavelle,  4  N.  Y.  Month.  L.  Bull.  30. 

Lien  and  Money  Due  after  Filing  of  Lien. 
— In  an  action  to  foreclose  a  mechan- 
ic's lien  it  is  improper  to  join  a  claim 
for  labor  and  material  for  which  pay- 
ment became  due  after  the  filing  of  the 
lien.  Schillinger  Fire  Proof  Cement, 
etc.,  Co.  V.  Arnott  (Supreme  Ct.),  14 
N.  Y.  Supp.  326. 

Lien  Against  One  and  Personal  Demand 
Against  Another. — A  complaint  sought 
a  judgment  for  damages  against  A.,  B., 
and  C.the  enforcement  of  a  mechanic's 
lien  for  the  amount  of  such  damages 
against  property  of  which  the  legal 
title  was  in  C.,  and  a  judgment  that  C. 
convey  said  property  to  A.  Qucere, 
whether  there  was  not  a  misjoinder  of 
causes  of  action.  Charboneau  v. 
Henni,  24  Wis.  250. 

Herder's  Liens. — In  an  action  of  claim 
and  delivery,  defendants  having  sepa- 
rate and  distinct  liens  on  the  cattle 
sought  to  be  recovered,  arising  out  of 
separate  contracts,  cannot  join  setting 
up  such  liens  to  defeat  the  plaintiff's 
right  to  the  possession.  Underwood 
v.  Birdsell,  6  Mont.  142. 

New  York. — The  provision  of  the 
Code  authorizing  the  joinder  of  causes 
of  action,  legal  and  equitable,  by  im- 
plication prohibits  the  union  of  a  cause 
of  action  for  the  enforcement  of  a  lien 
with  one  for  the  collection  of  a  debt, 
except  in  the  case  of  a  mortgage  se- 
cured by  bond  or  other  obligation  of 
the  mortgagor  or  a  third  person.  Bur- 
roughs V.  Tostevan,  75  N.  Y.  567. 

2.  Furniss  v.  Brown,  8  How.  Pr.  (N. 
Y.  Supreme  Ct.)  59;  Corbin  v.  Bouve,  i 
Cinn.  Super.  Ct.  (Ohio)  259.  But  an 
action  upon  an  undertaking  in  the 
nature  of  replevin  bail  is  an  action  for 
a  money  demand  on  contract.  Roberts 
V.  Nodevift,  8  Ind.  339. 


^05 


Joinder  under  the  Codes. 


ACTIONS. 


Full  Belief. 


16.  Forcible  Entry  and  Detainer. — Two  actions  in  forcible  entry 
and  detainer  cannot  be  joined.* 

17.  Certiorari. — Certiorari  proceedings  cannot  be  joined.* 

18.  Mandamus. — Mandamus  may  be  joined  to  another  proceed- 
ing as  an  auxiliary  remedy.^ 

19.  Full  Relief— <^.  Generally. — The  equitable  principle  of 
complete  relief  is  often  referred  to  in  the  Code  States  to  justify 
the  joinder  of  various  matters.  This  is  in  accordance  with  the 
equity  principle  that  when  a  court  of  chancery  has  acquired  juris- 
diction it  will  proceed  and  give  full  relief.*     In  the  note  will  be 


1.  McGuire  v.  Cook,  13  Ark.  448. 

2.  Galveston,  etc.,  R.  Co.  v.  Ware, 
2  Tex.  App.  Cas.  357. 

3.  Action  Against  County. — In  an  ac- 
tion against  a  county  a  cause  of  action 
for  a  debt  may  be  joined  with  a  writ 
of  mandamus  to  enforce  it.  Custer 
County  V.  Yellowstone  County,  6 
Mont.  46. 

Separate  Proceedings. — Where  aboard 
of  county  commissioners  refuse  to  con- 
sider and  canvass  the  petition  of  the 
resident  taxpayers  of  a  township  for 
elections  to  submit  propositions  to 
subscribe  to  capital  stock  of  a  railroad 
to  the  voters,  each  township  must 
bring  its  own  writ  of  mandamus 
against  the  board,  and  two  or  more 
townships  cannot  be  joined  in  the  same 
proceedings.  State  v.  Reno  County, 
38  Kan.  317. 

4.  Mitmesota. — Ham  v.  Johnson,  51 
Minn.  105;  Nichols  v.  Randall,  5  Minn. 
304;  Kraemer  v.  Duestermann,  37 
Minn.  469;  Fish  v.  Berkey,  10  Minn. 
199;  Palmer  v.  Tyler,  15  Minn.  106. 

Iowa. — Sweetzer  z/.  Harwick,  67  Iowa 
488;  Reedz/.  Howe,  28  Iowa  250;  Sands 
V.  Wood,  I  Iowa  263;  Kramer  v.  Reb- 
man,  9  Iowa  114;  Breckinridge  v. 
Brown,  9  Iowa  396;  Stapleton  v.  King, 
40  Iowa  278;  Cogswell  v.  Murphy,  46 
Iowa  44;  Des  Moines  v.  Stephenson, 
19  Iowa  507;  Dorothy  v.  Hicks,  63 
Iowa  240. 

Indiana. — Smith  v.  Kyler,  74  Ind. 
575;  Lindley  v.  Cross,  31  Ind.  106,  99 
Am.  Dec.  610;  Hunter  v.  McCoy,  14 
Ind.  528;  Miller  v.  Kolb,  47  Ind.  220; 
Rigsbee  v.  Trees,  21  Ind.  227;  Monroe 
I'.  Skelton,  36  Ind.  302;  Jaseph  v. 
Peoples'  Sav.  Bank  (Ind.  1889),  22  N. 
E.  Rep.  980;  Cnnger  v.  Parker,  29  Ind. 
380;  Love  V.  Mikals,  11  Ind.  227;  Fritz 
V.  Fritz,  23  Ind.  388. 

Connecticut.  —  Butler  v.  Barnes,  60 
Conn.  170. 

Colorado. — First  Nat.  Bank  v.  Hun- 
nel,  14  Colo.  260. 


California. — Burt  v.  Wilson,  28  Cal. 
632,  87  Am.  Dec.  142;  Wilson  v.  Castro, 
31  Cal.  420;  Pfister  v.  Dascey,  65  Cal. 
403;  Weaver  v.  Conger,  10  Cal.  233; 
Carpenter  v.  Oakland,  30  Cal.  439; 
Morenhout  v.  Hignera,  32  Cal.  289; 
More  V.  Massini,  32  Cal.  590;  Garr  v. 
Redman,  6  Cal.  574;  Stone  v.  Fouse, 
3  Cal.  292;  Grandona  v.  Lovdal,  70 
Cal.  161;  Reynolds  v.  Lincoln,  71  Cal. 
183;  Hutchinson  v.  Ainsworth,  63  Cal. 
286;  Farwell  v.  Jackson,  28  Cal.  105; 
Eastman  v.  Turman,  24  Cal.  379. 

Missouri. — Linden  v.  Rowe,  51  Mo. 
571;  Ware  v.  Johnson,  55  Mo.  500; 
Holloway  v.  Holloway,  99  Mo.  305. 

Nebraska. — Stewart  v.  Carter,  4  Neb. 
564;  Wilcox  V.  Saunders,  11  Neb.  569. 

Ohio. — Warner  v.  Callender,  20 
Ohio  St.  190;  Roberts  v.  Glenn,  i  Clev. 
Rep.  (Ohio)  46;  Stone  v.  Becker,  2 
Clev.  Rep.  (Ohio)  346;  Columbus,  etc., 
Co.  V.  Steinfeld,  42  Ohio  St.  449;  Globe 
Ins.  Co.  V.  Boyle,  21  Ohio  St.  120; 
Hath  way  v.  Springfield,  etc.,  R.  Co.,  2 
West.  L.  Month.  (Ohio)  481. 

Wisconsin. — Stroebe  v.  Fehl,  22  Wis. 
337;  Horn  V.  Ludington,  32  Wis.  73. 

Texas. — Finch  v.  State,  71  Tex.  52. 

Neiv  York.  —  Stanton  v.  Missouri 
Pac.  R.  Co.  (Supreme  Ct.),  2  N.  Y. 
Supp.  298;  Marx  v.  Tailer,  12  Civ.  Pro, 
Rep.  (N.  Y.  Supreme  Ct.)  226;  Woodard 
V.  Holland  Med.  Co.  (Super.  Ct.),  39 
N.  Y.  St.  Rep.  44;  Hinds  v.  Tweddle,  7 
How.  Pr.  (N.  Y.  Supreme  Ct.)  278; 
Jeroliman  v.  Cohen,  i  Duer  (N.  Y.)629; 
De  Witt  V.  McDonald,  58  How.  Pr. 
(N.  Y.  Supreme  Ct.)  411;  Freer  v.  Den- 
ton, 61  N.  Y.  492;  Smith  v.  Rathburn, 
22  Hun  (N.  Y.)  150;  Krawer  v.  Rey- 
nolds, 99  N.  Y.  245;  Morrissey  v. 
Leddy,  11  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)438;  Genesee  County  Bank 
V.  Bank  of  Batavia,  43  Hun  (N.  Y.)  295; 
Farmers',  etc.,  Nat.  Bank  v.  Rogers,  15 
Civ.  Pro.  Rep.  (N.  Y.  Super.  Ct.)  250; 
Bateman  v.  Forty-second  St.,  etc.,  R. 
Co.  (C.  PI.),  5  N.  Y.  Supp.  13;  Parmer- 


206 


Joinder  onder  the  Codes. 


ACTIONS. 


Pull  Belief. 


found  a  collection  of  cases  where  the  plaintiff  was  either  allowed 
full  relief,  or  where  it  was  held  that  the  matters  were  not  properly 
joined.^ 


ter  V.  Baker,  24  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.),  104;  Pilwisky  v.  Cat- 
taberry  (C.  PI.),  30  N.  Y.  St.  Rep. 
857;  Palen  v.  Lent,  5  Bosw.  (N.  Y.) 
713;  Warth  V.  Radde,  28  How.  Pr. 
(N.  Y.  Supreme  Ct.)  230;  Smith  v. 
Gcertner,  40  How.  Pr.  (N.  Y.  Supreme 
Ct.)  185;  Rodgers  v.  Rodgers,  11  Barb. 
(N.  Y.)  595;  Barnes  v.  Smith,  i  Robt. 
(N.  Y.)  699;  Coster  v.  New  York,  etc., 
R.  Co.,  6  Duer  (N.  Y.)  143;  Schnitzer 
V.  Tyrell,  23  N.  Y.  Wkly.  Dig.  476; 
Barnard  v.  Brown,  17  N.  Y.  Supp. 
313,  63  Hun  (N.  Y.)  625;  Selye  v. 
Zimmer  (Supreme  Ct.),  15  N.  Y.  Supp. 
881;  Good  V.  Daland,  121  N.  Y.  i; 
Lehnen  v.  Purvis  (Supreme  Ct.)  9  N. 
Y.  910;  U.  S.  Life  Ins.  Co.  v.  Jordan, 
21  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.) 
330;  Gray  v.  Rothschild,  112  N.  Y. 
668;  Krower  v.  Reynolds,  99  N.  Y.  245; 
Tuers  v.  Tuers,  100  N.  Y.  196;  Cahoon 
V.  Bank  of  Utica,  7  N.  Y.  486. 

Kentucky. — Randall  v.  Shropshire,  4 
Mete.  (Ky.)  327;  McKee  v.  Pope,  18 
B.  Mon.  (Ky.)  436;  Hobbs  v.  Middle- 
ton,  I  J.  J.  Marsh.  (Ky.)  178;  Sale  v. 
Crutc'hfield.  8  Bush  (Ky.)  636;  Harris 
V.  Campbell,  4  Dana  (Ky.)  587;  Wilde 
V.  Haycraft,  2  Duv.  (Ky.)3ii;  Talbot 
V.  Brockman,  i  A.  K.  Marsh.  (Ky.) 
555;  Jackson z/.  Bourbon,  2  Bibb  (Ky.) 
292;  Walker  v.  Mitchell,  18  B.  Mon. 
(Ky.)  541;  Shean  v.  Cunningham,  6 
Bush  (Ky.)  123;  Sheppard  v.  Stephens 
(Ky.,  1887),  2  S.  W.  Rep.  548. 

Kansas. — Bradley  v.  Parkhurst,  20 
Kan.  462;  Nooner  v.  Short,  20  Kan. 
624;  Bainter  v.  Fults,  15  Kan.  323; 
Harsh  v.  Morgan,  I  Kan.  293. 

1.  To  Enjoin  City. — An  action  may  be 
maintained  to  enjoin  a  city  from 
making  a  street  railroad  grant  to 
either  of  two  applicants.  Mathers  v. 
Cincinnati,  3  Cin.  L.  Bull.   (Ohio)  551. 

Action  by  Assignee. — An  action  by  an 
assignee  to  recover  the  possession  of 
personal  property  cannot  be  united  in 
an  action  to  settle  and  distribute  the 
estate  of  his  assignor.  Atchison  v. 
Jones  (Ky.,  1886),  i  S.  W.  Rep.  406. 

Creditor's  Bill  and  Personal  Judg- 
ment.— An  action  to  recover  a  money 
judgment  and  an  action  in  the  nature 
of  a  creditor's  bill  to  obtain  satisfac- 
tion of  the  judgment  cannot  be  joined. 
Marion  Deposit  Bank  v.  McWilllams, 
I  West.  L.  Month.  (Ohio)  571. 


Multifariousness.  —  A  judgment 
creditor  brought  his  action  against 
the  several  parties,  their  sureties  and 
representatives,  who  had  administered 
upon  the  estate  of  his  judgment  debtor, 
deceased,  for  account,  settlement,  etc., 
alleging  also  that  the  lands  of  the  de- 
ceased were  bound  by  his  judgment, 
and  that  "  plaintiff  is  informed  and  be- 
lieves that  one  S.  claims  to  be  the 
owner  in  fee  of  the  land  herein  de- 
scribed, but  the  plaintiff  denies  the 
validity  of  said  title,  if  any  he  have, 
and  alleges  the  same  is  illegal  and 
void."  Held,  that  complaint  was  multi- 
farious for  misjoinder  of  the  cause  of 
action  against  S.  Suber  v.  Allen,  13 
S.  Car.  317. 

Against  Administrator. — A  cause  of 
action  against  an  administrator  and 
others  growing  out  of  a  fraudulent 
sale  of  land  by  the  administrator,  and 
a  cause  of  action  against  the  adminis- 
trator alone  for  waste  committed  prior 
to  the  sale,  cannot  be  joined.  Hoff- 
man V.  Wheelock,  62  Wis.  434. 

Against  Owner  and  Tenant. — An  action 
against  the  owner  of  a  distillery  for 
the  nuisance  occasioned  thereby  can- 
not be  joined  with  a  cause  of  action 
against  other  persons  who  severally 
held  and  ran  the  distillery  as  tenants 
at  different  periods,  under  leases. 
Greene  v.  Nunnemacher,   36  Wis.  50. 

Bail  Bond  and  Trust. — A  suit  on  a 
bail  recognizance  cannot  be  joined 
with  a  bill  to  enforce  a  trust  deed, 
given  as  indemnity  to  the  sureties. 
People  V.  Skidmore,  17  Cal.  260. 

To  Impress  a  Lien,  and  Contract. — A 
cause  of  action  against  the  representa- 
tives of  a  decedent  to  impress  a  lien 
upon  the  decedent's  real  estate  can- 
not be  joined  with  a  cause  of  action 
under  the  statute,  against  the  heirs 
and  their  grantees  upon  a  contract  of 
the  decedent.  Hayward  v.  McDonald, 
I  How,  Pr.  N,  S.  (N.  Y.  Supreme  Ct.) 
229. 

Illegal  Tax. — In  an  action  against  a 
city  to  recover  a  tax  erroheonsly  as- 
sessed on  a  lot,  it  is  not  permissible 
to  join  a  cause  of  action  against  the 
owner  of  the  lot,  who  is  made  a  party 
defendant,  to  recover  his  proper  pro- 
portion of  the  amount  paid  by  the 
plaintiff  on  said  lot.  Langevin  v.  St. 
Paul,  49  Minn.  189. 


207 


Joinder  under  the  Codes. 


ACTIONS. 


Fuir  belief: 


b.  Legal  and  Equitable  Relief  Asked. — The  complaint 
may  embrace  both  legal  and  equitable  causes  of  action,  and  legal 
and  equitable  relief  may  be  asked  in  the  same  complaint. ' 


For  Rent  and  Enforcement  of  Lien  on 
Crops. — A  landlord  cannot  maintain  a 
joint  action  for  rent  against  his  ten- 
ant, and  for  conversion  against  an- 
other person,  who,  with  knowledge  of 
his  lien  rights,  has  bought  the  crop 
and  disposed  of  it.  Phillips  v.  Flynn, 
71  Mo.  424. 

Prior  Vendee. — The  making  a  prior 
vendee  of  the  land  a  party  to  an  action 
to  foreclose  a  mortgage,  for  the  pur- 
pose of  avoiding  his  title  as  fraudulent, 
is  a  misjoinder  of  causes  of  action. 
Adams  v.  Edgerton,  48  Ark.  419. 

In  Personam  and  In  £em. — A  cause 
of  action  in  personatn  at  law  may  be 
united  with  a  cause  of  action  in  rem  in 
equity,  if  both  arise  out  of  the  same 
transaction,  as  for  the  foreclosure  of  a 
mortgage  and  against  the  mortgagor 
on  the  bond.  Thorne  v.  Newly,  59 
How.  Pr.  (N.  Y.  Supreme  Ct.)  120. 

Breaches  of  Covenants  in  Deeds  of 
Different  Lands. — Breaches  of  the 
covenants  in  two  deeds  of  different 
lands  from  defendant  to  plaintiff  may 
be  joined.  Nichol  v.  Alexander,  28 
Wis.  118.  See  also  Welsh  v.  Chicago, 
etc.,  R.  Co.,  34  Wis.  494. 

Money  Demand  and  to  Set  Aside  Fraudu- 
lent Conveyance. — In  an  action  by  a 
creditor  a  money  demand  arising  upon 
a  contract  cannot  be  joined  with  a 
prayer  to  set  aside  a  conveyance  of 
real  estate  on  the  ground  of  fraud, 
and  subject  it  to  plaintiff's  claim 
against  the  grantor.  Stevens  v. 
Chance,  47  Iowa  602. 

On  Account,  to  Have  One  Adjudged  In- 
sane, and  to  Set  Aside  Conveyance. — An 
action  at  law  upon  an  account,  a  pro- 
ceeding to  have  one  adjudged  insane, 
and  an  action  in  equity  to  set  aside  a 
conveyance  of  real  estate  as  void  as 
against  creditors,  cannot  be  joined  in 
the  same  petition,  under  ^  2630  of  the 
Code,  permitting  the  joinder  of 
"causes  of  action,  of  whatever  kind, 
where  each  may  be  prosecuted  by  the 
same  kind  of  proceedings."  Faivrez/. 
Gillman,  84  Iowa  573. 

Rescinding  Sale  on  Ground  of  Fraud, 
and  on  Covenant  of  Seisin. — An  action 
to  rescind  a  sale  of  land  on  the  ground 
of  fraud  cannot  be  joined  with  an  ac- 
tion on  the  covenants  of  seisin  and 
right  to  convey  contained  in  the  deed, 


because  the  former  is  a  disaffirmance,, 
while  the  latter  is  an  affirmance,  of  the 
contract.  McLennan  v.  Prentice,  85 
Wis.  440. 

Correction  of  Deed  and  Quieting  Title. — 
An  action  to  correct  a  deed  and  to 
quiet  title  may  be  joined.  Hender- 
son V.  Dickey,  50  Mo.  161. 

Joinder  not  Required. — There  is  no 
rule  that  requires  a  party  to  join  in 
one  suit  several  and  distinct  causes  of 
action,  although  he  may  under  certain 
circumstances  be  required  to  consoli- 
date them.  Beck  v.  Deveraux,  9  Neb. 
109. 

Facts  Constituting  each  Cause  of  Action. 
— A  petition  is  bad  which  classifies 
and  groups  together  the  principal 
facts  constituting  61^0  separate  and 
distinct  causes  of  action,  and  alleges 
such  facts  in  general  terms  (670  sepa- 
rate and  distinct  facts  being  stated  in 
one  general  allegation)  in  one  general 
heading  to  said  petition,  and  does  not 
state  the  facts  constituting  each  cause 
of  action  in  a  separate  count,  but 
simply  refers  in  each  count  to  the 
facts  as  stated  in  said  general  head- 
ing. Such  a  petition  does  not  nor 
does  any  count  thereof  state  facts  suf- 
ficient, well  pleaded,  to  constitute  a 
cause  of  action.  Stewart  v.  Balder- 
ston,  ID  Kan.  131. 

1.  Allen  V.  Taylor,  96  N.  Car.  37; 
Phillips  V.  Gorham,  17  N.  Y.  270;  New 
York  Ice  Co.  v.  North  Western  Ins. 
Co.,  23  N.  Y.  357  ;  Lattin  v.  McCarty, 
41  N.  Y.  107;  Sheehan  v.  Hamilton,  42 
N.  Y.  304  ;  Davis  v.  Morris.  36  N.  Y. 

569. 

Attacking  Deed  on  Both  Legal  and 
Equitable  Grounds. — In  an  action  to  re- 
cover the  possession  of  land  the  plain- 
tiffs may  attack  a  deed  under  which  the 
defendant  claims  title,  both  upon  legal 
grounds  and  upon  such  as  before  the 
Code  were  of  purely  equitable  cogni- 
zance. Phillips  V.  Gorham,  17  N.  Y. 
270.  See  also  New  York  Ice  Co.  v. 
North  Western  Ins.  Co.,  23  N.  Y.  357; 
Lattin  v.  McCarty,  41  N.  Y.  107;  Cum- 
mings  V.  Morris,  25  N.  Y.  625;  Stern- 
be  rger  z/.  McGowern,  56  N.  Y.  12;  Beck 
V.  Allison,  56  N.  Y.  366,  15  Am.  Rep. 
430. 

Restraining  Use  of  Trade-mark  and 
Profits. — An  action  to  restrain  the  use 

08 


Joinder  tinder  the  Codes. 


ACTIONS. 


Host  Affect  All  Parties. 


20.  Causes  of  Action  Must  Exist  at  Time  of  Commencement  of  Suit.— 
The  Codes  only  have  reference  to  joinder  of  causes  of  action 
existing  at  the  commencement  of  the  suit.  A  cause  of  action 
arising  subsequently  cannot  be  joined.* 

21.  Must  Affect  All  Parties—^.  Generally. — All  the  Codes  pro- 
vide that  the  causes  of  action  joined  must  affect  all  the  parties 
alike.2 


of  a  trade-mark  may  be  joined  with  one 
for  an  account  as  to  profits  and  dam- 
ages. Leidersdorf  v.  Flint,  50  Wis.  401. 
See  also  Leidersdorf  v.  Second  Ward 
Bank,  50  Wis.  406. 

1.  Taylor  v.  Moran,  4  Mete.  (Ky.) 
127. 

2.  Separate  and  Joint  Torts. — It  is  not 
permissible  to  join  a  cause  of  action 
for  a  separate  tort  with  one  for  a  joint 
tort.  White  v.  Preston  (Tex.  App. 
1891),  15  S.  W.  Rep.  712. 

For  Conspiracy  and  the  Usufruct  Held 
by  One. — A  cause  of  action  for  a  fraud- 
ulent conspiracy  cannot  be  joined  with 
one  to  obtain  a  cancellation  of  a  certifi- 
cate of  deposit  owned  and  held  by  one 
of  the  defendants,  even  though  such 
certificate  was  obtained  as  the  fruits 
of  the  conspiracy.  Haskell  County 
Bank  v.  Santa  Fe  Bank,  51  Kan.  39. 

Maker  and  Guarantor. — The  plaintiff 
may  join  as  defendants  the  maker  and 
guarantor  of  a  note.  Hendrix  v.  Ful- 
ler, 7  Kan.  331. 

Neither  Defendant  Interested  in  Cause 
Against  Other. — A  cause  of  action  in 
favor  of  the  plaintiff  and  against  one 
defendant  cannot  be  united  with  an- 
other cause  of  action  in  favor  of  the 
the  same  plaintiff  against  another  de- 
fendant, where  neither  defendant  is 
interested  in  the  cause  of  action  al- 
leged against  the  other.  Atchison, 
etc.,  R.  Co.  V.  Sumner  County,  51  Kan. 
617. 

Against  Corporation  and  Bond  of  Offi- 
cers.—An  action  against  a  mutual  life- 
insurance  association  and  a  person 
holding  an  insurance  certificate  in 
such  association,  to  enforce  an  at- 
torney's lien  for  services  for  the  holder 
of  such  certificate,  cannot  be  joined 
with  an  action  on  an  official  bond  given 
by  the  officers  of  the  associationjunder 
chapter  131  of  the  Laws  of  1885.  Hentig 
V.  Southwestern  Mut.  Ben.  Assoc,  45 
Kan.  462. 

Cause  of  Action  Against  One  and  Cause 
of  Action  Against  Both  Defendants. — A 
cause  of  action  against  one  defendant 
and  a  cause  of  action  against  both  de- 


fendants cannot  be  joined.     Addicken 
V.  Schrubbe,  45  Iowa  315. 

Required  to  Elect. — Where  the  peti- 
tion sets  forth  distinct  causes  of  action 
against  as  many  different  defendants, 
no  one  being  interested  in  the  actions 
against  the  others,  on  defendants' 
motion  the  plaintiff  should  be  required 
to  elect  which  he  will  prosecute.  St. 
Joseph's  Orphan  Soc.  v.  Wolpert,  80 
Ky.  86. 

Contest  of  Elections  of  Judge  and  School 
Conunissioner. — The  contest  of  an  elec- 
tion for  county  judge  and  school  com- 
missioner is  distinct  and  separate, 
between  different  parties,  forming 
separate  and  distinct  causes  of  action, 
and  cannot  be  united  in  one  notice, 
and  made  a  joint  action  upon  which 
one  trial  and  judgment  can  be  ren- 
dered.    Vance  v.  Gaylor,  25  Ark.  32. 

Against  Obligor  and  Guarantor. — A 
joint  action  cannot  be  maintained 
against  the  obligor  and  a  person  who 
signs  a  guaranty  on  the  back  of  the 
obligation  ;  the  undertakings  are  dis- 
tinct.     Preston  z'.  Davis,  8  Ark.  167. 

Joint  and  Separate  Promises  Distin- 
guished.— In  an  action  against  two  or 
more  persons,  founded  on  a  joint 
promise,  a  recovery  cannot  be  had  on 
proof  of  a  separate  and  distinct  promise 
by  each.  Jackson  v.  Bush,  82  Ala. 
396. 

Due  in  Different  Rights. — Distinct  de- 
mands due  i»  different  rights  cannot 
be  joined.  Kennedy  v.  Stallworth,  18 
Ala.  263. 

For  Transfer  of  Shares. — The  plaintiff 
sued  to  obtain  a  transfer  to  him  of 
certain  shares  of  the  stock  of  a  cor- 
poration which  one  of  the  defendants 
had  acquired  from  him  through  fraud. 
In  the  same  action  he  sought  to  re- 
cover other  shares  of  the  stock,  which 
had  been  sold  to  another  defendant 
under  an  assessment  fraudulently 
levied  by  the  corporation.  Held,  that 
there  was  a  misjoinder  of  causes  of 
action.  Johnson  v.  Kirby,  65  Cal.  482. 
Negligence  in  Delivery  of  Telegraph 
Message. — Telegraph    messages    were 


I  Encyc.  PI.  &  Pr  — 14. 


209 


Joinder  under  the  Codes. 


ACTIO. VS. 


Must  Affect  All  Parties. 


d.  Husband  and  Wife. — As  to  the  joinder  of  husband  and 
wife  in  an  action,  that  topic  belongs  to  the  subject  of  "  parties," 
which  is  not  treated  of  herein  ;  but  a  few  cases  will  be  found  col- 
lected in  the  note,  where  the  joinder  of  causes  of  action,  with 
reference  to  husband  and  wife,  was  held  either  proper  or 
improper.^ 

c  Representative  Capacity. — Likewise,  the  subject  of  the 
bringing  of  suits  by  the  personal  representatives  of  a  decedent 
is  more  properly  classified  under  the  subject  of  "parties";  but 
sometimes,  where  personal  representatives  are  parties,  a  case  is 
decided  with  reference  to  the  joinder  of  the  causes  of  action 
rather  than  to  the  joinder  of  the  parties.* 


sent  by  the  son  to  the  father,  but  ow- 
ing to  negligence  in  the  delivery  the 
father  was  delayed  in  reaching  Dallas 
before  the  burial  of  another  son  of 
whose  illness  and  death  he  was  not 
advised  otherwise.  The  father  and 
son  were  joined  as  plaintiffs  against 
the  telegraph  company  for  damages. 
Held,  a  misjoinder  of  causes  of  action. 
Anderson  v.  Western  Union  Tel.  Co., 
84  Tex.  17. 

Construction  of  Public  Improvements. — 
In  an  action  against  the  city  of  Hen- 
derson for  an  injury  to  private  prop- 
erty resulting  from  the  carrying  out 
of  the  laws  and  ordinances  of  the  city 
in  relation  to  the  construction  of  public 
improvements,  an  amended  petition 
was  offered,  setting  up  a  cause  of  ac- 
tion against  the  municipal  officers  of 
the  city,  in  their  individual  capacity, 
for  the  same  injury  occasioned  from 
their  gross  negligence  and  abuse  of 
power,  to  the  filing  of  which  amend- 
ment objection  was  made.  Held,  that 
as  each  of  the  causes  of  action  did  not 
affect  all  the  parties  to  the  action,  the 
amendment  could  not  be  filed.  Han- 
cock V.  Johnson,  i  Mete.  (Ky.)  242. 

Indiana. — Under  the  Code  creditors 
may  unite  in  a  suit  to  enjoin  a  debtor 
from  fraudulently  disposing  of  liis 
property,  although  their  claims  are 
several  and  not  in  judgment.  Field  v. 
Holzman,  93  Ind.  205. 

1.  Action  to  Avoid  Usurious  Securities. 
— In  an  action  by  a  husband  and  wife 
to  avoid  usurious  securities  given  by 
them  upon  a  loan  made  to  the  wife,  it 
is  improper  to  join  a  cause  of  action 
by  the  wife  alone  to  recover  back  money 
paid  by  her  upon  the  usurious  con- 
tract. Anderson  v.  Scandia  Bank,  53 
Minn.  191. 

Personal  Injuries  to  Wife. — An  action 
for  personal  injuries  to  the  wife  must 


be  brought  in  the  name  of  the  hus- 
band and  wife;  but  an  action  for  con- 
sequential injury  to  the  husband, such 
as  the  loss  of  his  wife's  services,  must 
be  brought  in  the  name  of  the  hus- 
band alone;  and  a  complaint  by  the 
husband  and  wife,  in  which  such 
causes  of  action  are  joined,  is  demur- 
rable. Tell  V.  Gibson,  66  Cal.  247;  Shel- 
don V.  Steamship  Uncle  Sam,  18  Cal. 
534,  79  Am.  Dec.  193. 

Foreclosure. — A  suit  on  note  of  hus- 
band may  be  joined  with  foreclosure 
against  husband  and  wife.  Rollins  v. 
Forbes,  10  Cal.  299. 

A  Cause  of  Action  against  Husband. — A 
cause  of  action  against  the  husband 
only  cannot  be  joined  with  an  action 
prosecuted  against  the  husband  and 
wife  jointly,  for  the  purpose  of  enforc- 
ing a  liability  against  her  separate 
estate  for  articles  of  comfort  and  sup- 
port of  the  family.  May  z/.  Smith,  48 
Ala.  483. 

To  Set  Aside  Conveyance. — A  claim  to 
set  aside  a  conveyance  of  real  estate 
from  husband  to  wife  for  fraud  against 
creditors  may  be  joined  with  a  claim 
against  the  husband  arising  out  of 
contract.     Frank  v.  Kessler,  30  Ind.  8. 

Wife  Individually  and  as  an  Adminis- 
tratrix.— Frink  v.  Taylor,  4  Greene 
(Iowa)  196. 

2.  Against  Administrator  Personally 
and  Against  Estate. — An  action  against 
administrator  personally  cannot  be 
joined  with  a  claim  ag?,inst  the  estate. 
Mesmerz'.  Jenkins, 61  Cal,  152;  Fleisch- 
man  v.  Shoemaker,  2  Ohio  Cir.  Ct. 
152.  See  also  Mertens  v.  Lowenberg, 
69  Mo.  208. 

Administrator  of  Two  Estates. — Dana- 
her  V.  Brooklyn,  4  Civ.  Pro.  Rep.  (N. 
Y.  Supreme  Ct.)  286. 

Against  Different  Estates. — Viall  v. 
Mott,  37  Barb.  (N.  Y.)  208. 

lo 


ADDITIONAL   ALLOWANCES    OF    COSTS. 

UNDER  THE  NEW  YORK  CODE  OF  CIVIL  PROCEDURE.* 
By  Wm.  Seton  Gordon. 

I.  General  Principles,  211. 
II.  Provision  of  the  Code,  212. 

III.  The  Application,  216. 

1.  When  Made,  216. 

2.  To  What  Court  Made,  ^i"]. 

3.  Costs  of  the  Motion,  218. 

4.  Appeal  from  the  Order,  218. 

IV.  Where  Allowance  may  be  Granted  or  Refused,  220. 

1.  In  General,  220, 

2.  Subject-matter  must  Possess  Pecuniary  Value,  221. 

3.  Where  Court  may  Exercise  Discretion,  222. 

4.  Special  Proceedings,  225. 

5.  Where  DefendaJtt  is  Entitled,  226. 

6.  What  are  Difficult  and  Entraordinary  Cases,  226. 

7.  On  Discontinuance,  228. 

8.  Only  One  Allowance,  229. 

V.  How  Allowance  Computed,  230. 

1.  Basis  of  Allowance,  230. 

2,  Subject-matter  of  Action,  233. 

I.  General  Principles. — Costs  are  the  creation  of  statute.  By 
the  common  law  they  were  not  awardable.  The  jurisdiction  of 
the  English  Court  of  Chancery  over  costs  originated  in  the  stat- 

1.   It  seems  that  the   State  of  New  this  being  determined,  it  is  within  the 

York   is  the  only  jurisdiction  in  which  discretion  of  the  court  to  make  the  fur- 

the  practice  of  making  additional   al-  ther  allowance.     The  amount  allowed 

lowances  of   costs  prevails,   with  the  should  not  exceed  a  sum  necessary  to 

exception  of  Florida.     Section  254  of  indemnify  the  prevailing  party  for  his 

the  Code  of   that    state    authorizes    a  expenses,    and      cannot     exceed    five 

further  allowance  of  costs  in  "  difficult  per  cent  upon   the   amount   involved, 

arid  extraordinary  "  cases.     There  ap-  An  order  making  a  further  allowance 

pers  to  be  but  one  decision  construing  may  be  reviewed  upon  appeal  for  the 

this  section.     In  Hart  v.  Bostwick,  14  purpose  of  ascertaining  whether  the 

Fla.  162,  it  was  held  that  to  authorize  a  case  is  one  in  which  such  allowance 

further  allowance  under  this  provision  may  lawfully  be    made,  and  whether 

there  must  be  a  case  beset  by  more  than  the  sum  allowed  is  within  that  author- 

the   ordinary   difficulties    and    requir-  ized  by  law;  but    the  supreme    court 

ing  more  than  ordinary  expenditures,  will   not   interfere   with    the  exercise 

Before   making  the   order    the   court  of   the   court's   discretion   unless   the 

should   determine    that    the    case    is  allowance    exceeds     the   amount   au- 

*' difficult     and     extraordinary,"   and  thorized. 

211 


General  Principles.  ADDITIONAL   ALIO  IVAJVC£S.  -pioyiBions  of  Code. 


ute  17  Rich.  II.  chap.  6,  and  except  by  virtue  of  this  statute  no 
power  to  award  costs  existed  in  the  chancery.  Up  to  the  adop- 
tion of  the  Code  of  Procedure,*  a  discretionary  power  to  award  or 
withhold  costs  remained  in  the  supreme  and  superior  city  courts 
of  the  state  of  New  York  in  regard  to  all  actions  theretofore  re- 
garded as  equitable,  limited  as  to  amount  by  the  fee  bill  then  in 
force.  The  discretionary  power  was  not  disturbed  by  the  Code 
of  Procedure,  although  the  limitation  of  amount  was  regulated  by 
the  new  provisions.* 

II.  Provisions  of  the  Code. — Under  the  Code  of  Civil  Pro- 
cedure of  the  State  of  New  York,  provision  is  made  for  addi- 
tional allowances  of  costs  beyond  the  amounts  fixed  and  taxable 


1.  Historical  Summary. — The  Code  of 
Procedure  effected  a  complete  change 
in  the  method  of  allowing  and  com- 
puting costs.  It  abrogated  all  former 
rules  and  provisions  of  law  upon  the 
subject,  and  provided  for  certain  sums 
specified  and  fixed. 

Under  the  Code  as  originally  stated 
in  1848,  provision  was  made  (sections 
263  and  264)  for  extra  allowances  to 
be  granted  in  the  discretion  of  the 
court.  By anamendment(Lawsof  1857, 
chap.  723,  sec.  14)  passed  nine  years 
afterwards,  a  plaintiff  was  permitted, 
upon  the  recovery  of  final  judgments 
by  him,  to  tax  an  additional  allow- 
ance in  certain  cases  as  of  right.  By 
a  further  amendment  (Laws  of  1862, 
chapter  428)  the  recovery  of  final 
judgment  was  declared  no  longer  nec- 
essary, and  the  allowance  could  be 
taxed  where  the  action  was  settled 
before  judgment.  These  successive 
amendments  brought  the  require- 
ments of  the  statute  substantially  to 
what  they  are  at  present.  Upon  the 
adoption  of  the  Code  of  Civil  Proced- 
ure in  1880  (Laws  of  1880,  chap.  245), 
the  former  provisions  were  repealed. 
See  Laws  of  1858,  chap.  306  ;  Laws  of 
1859,  chap.  428  ;  Laws  of  1862,  chap. 
460,  sec.  19;  Laws  of  1865,  chap.  615, 
sec.  8;  Laws  of  1870,  chap.  741,  sec.  12. 

2.  Intendment  of  the  Statute.  —  The 
purpose  of  these  provisions  of  the  stat- 
ute is  to  secure  indemnity  to  the  suc- 
cessful party  for  the  expenses  which, 
in  the  cases  to  which  it  applies,  he  may 
incur  beyond  such  expenses  as  are 
usually  necessary.  Burk  v.  Candee, 
63  Barb.  (N.  Y.)  552;  People  v.  New 
York  Cent.,  etc.,  R.  Co.,  29  N.  Y.  426. 
The  indemnity  is  for  the  expenses  of 
the  action  as  a  whole,  not  for  the  ex- 
pense of  any  particular  stage  of  the 
action.    Magnin  v.  Dinsmore,  47  How. 


Pr.  (N.  Y.  Supreme  Ct.),  11;  New  York 
F.  &  M.  Ins.  Co.  V.  Burrell,  g  How. 
Pr.  (N.  Y.  Supreme  Ct.)  398;  Rens- 
selaer V.  Davis,  55  N.  Y.  145;  Mc- 
Quade  v.  New  York,  etc.,  R.  Co.,  5 
Duer  (N.  Y)  613. 

Construction. — The  practice  prevail- 
ing for  many  years  in  the  First  Depart- 
ment has  been  to  construe  the  pro- 
visions as  to  extra  allowances  liber- 
ally; and  a  fair  allowance  in  an  im- 
portant and  substantial  litigation  has 
been  treated  as  almost  a  matter  of 
course.  Morrison  v.  Agate,  20  Hun 
(N.  Y.)  24.  The  rule  in  the  Second 
District  declares  that  an  allowance 
will  be  made  whenever  there  has  been 
a  trial,  and  the  parties  have  appeared 
and  litigated  the  matters  in  contro- 
versy. 

In  Surrogates'  Courts. — General  power 
to  award  costs  was  conferred  upon 
surrogates'  courts  by  2  Rev.  Stat.  223, 
sec.  10.  Subsequently,  by  sec.  g,  chap- 
ter 359,  Laws  of  1870,  the  surrogate  of 
New  York  county  was  empowered  to 
make  allowances  in  cases  before  him 
in  the  manner  laid  down  by  sections 
308  and  309  of  the  former  Code  of 
Procedure.  This  statute  was  repealed 
in  1880.  The  general  provisions  of 
the  present  Code  in  respect  to  the 
award  of  costs  and  allowances  have 
no  application  to  surrogates'  courts. 
In  these  particulars  the  special  sec- 
tions of  the  Code  of  Civil  Procedure 
relating  to  these  tribunals  contain  all 
that  affect  them.  Code  Civ.  Pr.  sec. 
2559-2563.  The  cases  of  Noyes  v. 
Children's  Aid  Soc,  70  N.  Y.  481; 
Dupuy  V.  Wurtz,  53  How  Pr.  (N.  Y.), 
48,  I  Hun  (N.  Y.)  119;  Sequine  v.  Se- 
quine,  3  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  442,  were  decided  under 
the  former  Code  of  Procedure,  re- 
pealed by  chapter  245,  Laws  of  1880. 


212 


Frovisions  of 


ADDITIONAL  ALLOWANCES. 


the  Code. 


under  other  sections  of  the  Code.  These  additional  allowances 
are  in  some  cases  a  matter  of  right  to  the  litigant,  and  in  others 
a  matter  of  discretion  with  the  court.* 

Allowances  as  a  Matter  of  Eight. — Section  3252  of  the  Code  of  Civil 
Procedure  provides  that  where  an  action  is  brought  to  foreclose  a 
mortgage  upon  real  property  ;'^  or  for  the  partition  of  real  property ; 
or  to  procure  an  adjudication  upon  a  will  or  other  instrument^  in 
writing;  or  to  compel  the  determination  of  a  claim  to  real  prop- 
erty;* or  where,  in  any  action,  a  warrant  of  attachment  against 
property  has  been  issued  ;*  the  plaintiff,^  if  a  final  judgment  is 
rendered  in  his  favor,'' 


1.  But  no  discretion  is  given  the 
court  to  make  any  allowances  other 
than  those  authorized  by  these  sec- 
tions. Hotaling  v.  Marsh,  14  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  161. 

2.  Foreclosure  of  Mechanic's  Lien. — A  n 
action  to  foreclose  a  mechanic's  lien 
is  not  such  an  action.  Hagan  v. 
American  Baptist,  etc.,  Soc.  (C.  PL), 
6  N.  Y.  St.  Rep.  212  ;  Randolph  v. 
Foster,  4  Abb.  Pr.  (N.  Y.  C.  PI.)  262  ; 
Wright  V.  Reusens  (Supreme  Ct.),  39 
N.  Y.  St.  Rep.  802  ;  McCulloch  v.  Dob- 
son  (Supreme  Ct.),  39  N.  Y.  St.  Rep. 
go8  ;  People  v.  Adams,  128  N.  Y.  129. 

3.  Adjudication  upon  Written  Instru- 
ment.— These  words  refer  to  a  class  of 
cases  well  known  in  the  former  court 
of  chancery,  such  as  suits  by  a  trustee 
for  the  judicial  construction  of  the  in- 
strument creating  the  trust  ;  they  do 
not  apply  to  every  action  upon  a  writ- 
ten instrument.  Gray  v.  Robjohn,  i 
Bosw.  (N.  Y.)  618  ;  Smith  v.  St. 
Philip's  Church,  107  N.  Y.  610. 

4.  Bridges  v.  Miller,  2  Duer  (N.  Y.) 
683  ;  Powers  v.  Barr,  24  Barb.  (N.  Y.) 
142.  The  corresponding  provisions  of 
the  former  Code  were  held  to  refer  to 
special  proceedings  authorized  by  2 
R.  S.  312.  Bridges  v.  Miller,  2  Duer 
(N.  Y.)  683.  Those  provisions  were 
repealed  by  laws  of  1880,  chap.  245, 
and  sections  1638-1650  were  substi- 
tuted. It  would  appear  that  these 
words  refer  to  an  action  under  the  last- 
mentioned  sections. 

5.  Attachment  Cases. — But  inasmuch 
as  the  allowance  is  measured  by  the 
value  of  the  property,  an  actual  levy 
must  have  been  made  under  the  at- 
tachment. Fisher  v.  English,  4  N.  Y. 
L.  Bull.  37.  This  value  may  be  shown 
by  the  sheriff's  return  to  the  writ,  with 
his  customary  appraisal  of  value  ;  but 
unless  this  appears,  affidavits  of  value 
should    be    furnished.       Fetchman   v. 


Davenport,  8  Civ.  Pro.  Rep.  (N.  Y. 
City  Ct.)  220.  No  allowance  will  be 
made  if  the  attachment  has  been  va- 
cated during  the  pendency  of  the  ac- 
tion. Iselin  V.  Graydon,  26  How.  Pr. 
(N.  Y.  Super.  Ct.)  95  ;  Parsons  v. 
Sprague,  19  N.  Y.  Wkly.  Dig.  467. 
But  see  Woodward  v.  Grier,  2  Edm. 
Sel.  Cas.  (N.  Y.)  51.  See  also  Jack- 
son V.  Figaniere,  15  How.  Pr.  (N.  Y. 
Supreme  Ct.)  224. 

6.  The  allowances  by  statute  are  to 
the  plaintiff  only  ;  the  allowances  by 
the  court  may  be  made  to  any  party. 

7.  Eecovery  of  Judgment  Necessary. — 
There  must  be  a  recovery  of  judg- 
ment unless  the  action  is  settled. 
Bostwick  V.  Tioga  R.  Co.,  17  How. 
Pr.  (N.  Y.  Supreme  Ct.)  456  ;  Murray 
V.  Robinson,  9  Hun  (N.  Y.)  137  ; 
Bryon  v.  Durrie,  6  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.)  135  ;  Brace  v.  Beattie,  7 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  445. 
But  see  Darling  v.  Brewster,  55  N.  Y. 
670.  An  interlocutory  judgment  on 
demurrer  is  not  sufficient  to  warrant 
an  allowance.  De  Stuckle  v.  Tehuan- 
tepec  R.  Co.,  3  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  410.  Nor  is  an  interloc- 
utory judgment  to  account.  Rudd  z/. 
Robinson,  54  Hun  (N.  Y.)  339.  To 
entitle  defendant  to  a  commission  on 
the  plaintiff's  claim,  he  must  recover 
judgment  upon  the  issue  tried,  and  not 
recover  costs  only  by  reason  of  a  too 
small  recovery  of  plaintiff.  Pinder  v. 
Stoothoff,  7  Abb.  Pr.  N.  6.  (N.  Y.  Su- 
preme Ct. )  433  ;  Wilkinson  v.  Tiffany,  4 
Abb.  Pr.(N.Y.  Supreme  Ct.)98.  Are- 
sultof  the  litigation  which  entitles  the 
defendant  to  costs  has  been  held  a  re- 
covery of  judgment  for  such  costs, 
and  may,  under  proper  circumstances, 
be  made  the  basis  of  an  additional 
allowance.  Board  of  Comrs.  of  Pilots 
V.  Spofford,  3  Hun  (N.  Y.)59;  Brady 
V.  Durbrow,  2  E.  D.  Smith  (N.  Y.)  78. 


213 


Provisions  of  ADDITIONAL   ALLOWANCES.  the  Code. 

and  he  recovers  costs,*  is  entitled  to  recover,  in  addition  to  the 
costs  prescribed  in  the  last  section,  the  following  percentages,  to 
be  estimated  upon  the  amount  found  to  be  due  upon  the  mort- 
gage ;  or  the  value  of  property  partitioned,  affected  by  the  ad- 
judication upon  the  will  or  other  instrument,  or  the  claim  to 
which  is  determined  ;  or  the  value  of  the  property  attached,  not 
exceeding  the  sum  recovered,  or  claimed,  as  the  case  may  be  : 

Upon  a  sum  not  exceeding  two  hundred  dollars,  ten  per 
centum. 

Upon  an  additional  sum  not  exceeding  four  hundred  dollars, 
five  per  centum. 

Upon  an  additional  sum  not  exceeding  one  thousand  dollars, 
two  per  centum. 

Where  such  an  action  is  settled  before  judgment,*  the  plaintiff 
is  entitled  to  a  percentage  upon  the  amount  paid  or  secured  upon 
the  settlement  at  one  half  of  those  rates. 

In  an  action  to  foreclose  a  mortgage  upon  real  property  where 
a  part  of  the  mortgage  debt  is  not  due,  if  the  final  judgment  di- 
rects the  sale  of  the  whole  property,  as  prescribed  in  section  1637 
of  this  act,  the  percentages  specified  in  this  section  must  be  com- 
puted upon  the  whole  sum  unpaid  upon  the  mortgage.  But  if  it 
directs  the  sale  of  a  part  only,  as  prescribed  in  section  1636  of 
this  act,  they  must  be  computed  upon  the  sum  actually  due;  and 
if  the  court  thereafter  grants  an  order  directing  the  sale  of  the 
remainder  or  a  part  thereof,  the  percentages  must  be  computed 
upon  the  amount  then  due  ;  but  the  aggregate  of  the  percentages 
shall  not  exceed  the  sum  which  would  have  been  allowed  if  the 
entire  sum  secured  by  the  mortgage  had  been  due  when  the  final 
judgment  was  rendered. 

It  is  not  necessary  that  a  trial  should  v.  Dickson   Mfg.  Co.,  61   Hun  (N.  Y.; 

have  been  had  ;  it  is  enough  if  a  de-  335. 

fence  has  been  interposed.     Carter  v.  No    Order    Necessary. — Where   addi- 

Clark,  2  Sweeney  (N.  Y.)  189;  Mills  tional  allowances  are  a  matter  of  right 

V.  Watson,  45  N.   Y.   Super.  Ct.  Rep.  no  motion  is  necessary  to  secure  them. 

591.  The  clerk,  upon  the  application   of  a 

1.  The  Allowance  is  Additional  only. —  party  entitled  to  costs,  taxes  the  ad- 
Devlin  V.  New  York,  15  Abb.  Pr.  ditional  allowances  as  of  course. 
N.  S.  (N.  Y.  C.  PI.)  31  ;  Savage  v.  Hunt  v.  Middlebrook,  14  How.  Pr. 
Allen,  2  Thomp.  &  C.  (N.  Y.)  474.  (N.  Y.   Supreme   Ct.)  300  ;   Code    Civ. 

In  Case  of  New  Trial. — The  order  Proc.  §  3262.  The  clerk  cannot,  how- 
granting  an  allowance  is  ipso  facto  ever,  take  proof  by  affidavit  of  the 
rendered  ineffectual  by  an  order  grant-  value  of  the  property,  unless  fixed  by 
ing  a  new  trial  or  setting  aside  the  the  decision  or  report,  or  by  the  ver- 
verdict.  Hicks  v.  Waltermire,  7  How.  diet  of  the  jury,  this  value  must  be 
Pr.  (N.  Y.  Supreme  Ct.)  370  ;  Sleight  ascertained  by  the  court.  Newton  v. 
V.  Hancox,  4  Abb.  Pr.  (N.  Y.  Supreme  Reid,  24  N.  Y.  Wkly.  Dig.  472.  In 
Ct.)245.  Where  a  new  trial  is  granted  cases  of  actual  partition,  however,  it 
on  payment  of  cost,  ^^-/i/,  that  an  extra  may  be  ascertained  by  the  commis- 
allowance  is  not  part  of  these  costs,  sioners.  Code  Civ.  Proc.  §  3262 ; 
McQuade  v.  Lake  Erie,  etc.,  R.  Co.,  Newton  z/.  Reid, 24  N.Y. Wkly. Dig.  472. 
II  How.  Pr.  (N.  Y.  Super.  Ct.)  434.  2.  See  post,  notes  on  Discontinu- 
But  see  Safety  Steam   Generator  Co.  ance.  Offer  of  Judgment,  and  Tender. 

214 


Provisions  of 


ADDITIONAL   ALLOWANCES. 


the  Code. 


Discretionary  Allowances. — Section  3253  of  the  Code  of  Civil  Proced- 
ure is  as  follows:  In  an  action  brought  to  foreclose  a  mortgage 
upon  real  property,*  or  for  the  partition  *  of  real  property,  6r  in  a 
dif^cult  and  extraordinary  case,^  where  a  defence*  has  been  inter- 
posed in  any  action,*  the  court  may  also,  in  its  discretion,  award  to 
any  party®  a  further  sum  as  follows : 

1.  In  an  action  to  foreclose  a  mortgage,  a  sum  not  exceeding 
two  and  one  half  per  centum  upon  the  sum  due  or  claimed  to  be 
due  upon  the  mortgage,  nor  the  aggregate  sum  of  two  hundred 
dollars.'' 

2.  In  any  other  case  specified  in  this  section,  a  sum  not  exceed- 
ing five  per  centum  upon  the  amount  recovered  or  claimed,  or 
the  value  of  the  subject-matter  involved.  Sec.  3254.  But  all  the 
sums  awarded  to  the  plaintiff,  as  prescribed  in  section  3252  of  this 
act,  or  to  a  party,  or  two  or  more  parties  on  the  same  side,  as 
prescribed  in  the  last  sentence  of  section  3251  of  this  act,  and  in 
subdivision  second  of  the  last  section,  cannot  exceed,  in  the 
aggregate,  two  thousand  dollars. 


1.  Foreclosure  Cases.  —  The  former 
Code  of  Procedure,  section  309,  was 
amended  by  the  laws  of  1876,  chapter 
431.  Under  this  amendment  it  was 
decided  in  Bockes  v.  Hathorn,  17  Hun 
(N.  Y.)  87,  that  5  per  cent  could  be^al- 
lowed  in  an  action  upon  a  bond  and  to 
foreclose  a  mortgage  where  the  case 
was  difficult  or  extraordinary  or  a  de- 
fence had  been  interposed.  This  hold- 
ing was  overruled  in  Rosa  v.  Jenkins, 
31  Hun  (N.  Y.)  384,  in  which  the  con- 
struction adopted  by  the  court  of  ap- 
peals in  the  case  of  Hunt  v.  Chapman, 
62  N.  Y.  333,  was  restored.  The  al- 
lowance of  a  greater  percentage  is, 
therefore,  improper  ;  but  the  addi- 
tional allowance  may  be  given  al- 
though no  defence  has  been  put  in, 
and  the  case  is  not  difficult  and  ex- 
extraordinary.  O'Neill  V.  Grav,  39 
Hun  (N.  Y.)  566. 

An  action  to  foreclose  a  mortgage 
on  a  leasehold  estate  is  not  within  the 
restriction  as  to  extra  allowances  cre- 
ated by  subdivision  i  of  section  3253 
of  the  code.  Huntingdon  v.  Moore,  59 
Hun(N.  Y.)35i. 

2.  Weed  v.  Paine,  31  Hun  (N.  Y.) 
10 ;  Betts  V.  Betts,  4  Abb.  N.  Cas. 
(N,  Y.  Supreme  Ct.)433.  Where  each 
party  is  entitled  to  costs  it  may  be 
made  to  both.  Weed  v.  Paine,  31  Hun 
(N.  Y.)  ID.  If  neither  succeeds  against 
the  other,  no  extra  allowance  can  be 
made.  Hall  v.  U.  S.  Reflector  Co.,  5 
N.  Y.  Month.  Bull.  i. 

3.  See  post,  IV,  6,  What  is  a  Difficult 
and  Extraordinary  Case. 


4.  What  Amounts  to  a  Defence. — A  de- . 

murrer  is  a  defence.  New  York  R.  Co. 
V.  Harold,  30  Hun  (N.  Y.)  466  ;  Victor 
V.  Halstead  (Supreme  Ct.),  38  N.  Y.  St. 
Rep.  407.  An  allowance  is  proper  al- 
though the  action  is  discontinued  be- 
fore trial  or  dismissed  at  the  circuit. 
Coffin  V.  Coke,  4  Hun  (N.  Y.)  616; 
Mills  V.  Watson,  45  N.  Y.  Super  Ct. 
591  ;  Moulton  v.  Beecher,  11  Hun  (N. 
Y.)  192  ;  First  Nat.  Bank  v.  Bush,  47 
How.  Pr.  (N.  Y.  Supreme  Ct.)  78; 
Krum  V.  Steele,  7  N.  Y.  Wkly.  Dig. 
472. 

5.  The  Action  may  be  Legal  or  Equi- 
table, or  partly  legal  and  partly  equi- 
table. Davis  V.  Glear,  14  How.  Pr. 
(N.  Y.  Supreme  Ct.)  310. 

6.  Party  must  be  Successful. — These 
words  must  be  construed  in  accord- 
ance with  the  general  principles  upon 
which  costs  are  allowed.  The  allow- 
ance cannot  be  made  to  an  unsuccess- 
ful party.  Murray  z/.  Robinson,  9  Hun 
(N.  Y.)  137;  Brady  t/.  Durbrow,  2  E. 
D.  Smith  (N.  Y.)  78;  Noyes  z-.  Chil- 
dren's Aid  Soc,  70  N.  Y.  481.  See 
Provost  V.  Provost,  7  Hun  (N.  Y.)  81, 
affirmed  70  N.  Y.  140 ;  Betts  v.  Betts, 
4  Abb.  N.  Cas.  (N. Y.  Supreme  Ct.)  317. 

7.  This  allowance  cannot  be  ex- 
ceeded. An  allowance  of  five  per 
cent  is  unauthorized  notwithstand- 
ing the  case  is  difficult  and  extraordi- 
nary. Rosa  z/.  Jenkins,  31  Hun  (N.Y.) 
384;  Hunt  V.  Chapman,  62  N.  Y.  336; 
O'Neill  V.  Gray,  39  Hun  (N.  Y.)  566; 
Ferris  v.  Hurd,  15  Civ.  Pro.  Rep. 
(Buffalo  Super.  Ct.)  171. 


215 


The  Application.      ADDITIONAL   ALLOWANCES. 


When  Hade. 


III.  The  Application. — 1.  When  Made.— The  application  for  an 
additional  allowance  may  be  made  at  the  trial,*  or  at  Special 
Term  or  Chambers.'-* 


1.  At  the  Trial. — When  the  trial  is 
by  jury,  the  application  should  be 
made  when  the  verdict  is  returned; 
and  in  any  case  during  the  term  at 
which  the  trial  is  had.  Flint  v.  Rich- 
ardson, 2  Code  Rep.  (N.  Y.)  80;  Van 
Rensselaer  v.  Kidd,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)  242.  Where  the  applica- 
tion is  made  at  the  trial  or  at  the  same 
term,  no  notice  is  necessary,  nor  need 
the  party  against  whom  it  is  made  be 
present  in  court.  Mitchell  v.  Hall,  7 
How.  Pr.  (N.  Y.  Supreme  Ct.)  491. 

In  an  Action  against  Ezecntors  the 
motion  cannot  be  heard  until  the  court 
has  determined  plaintiff's  right  to  re- 
cover ordinary  costs;  but  the  applica- 
tions for  costs  and  for  an  additional 
allowance  may  be  united  in  one  motion. 
Mersereau  v.  Ryerss,  12  How.  Pr.  (N. 
Y.  Supreme  Ct.)  301. 

2.  After  Trial. — The  motion  may  be 
made  at  any  time  before  final  judg- 
ment is  entered  and  before  the  adjust- 
ment of  final  costs.  Trimm  v.  Marsh, 
2  Hun  (N.  Y.)  383;  Martin  v.  McCor- 
mick,  3  Sandf.  (N.  Y.)  755;  Clarke  v. 
Rochester,  29  How.iPr.  (N.Y.  Supreme 
Ct.)  97;  People  V.  New  York  Central 
R.  Co.,  30  How.  Pr.  (N.  Y.  Supreme 
Ct.)  148;  Powers  v.  Wolcott,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  565;  Saratoga, 
etc.,  R.  Co.  V.  McCoy,  9  How.  Pr.  (N. 
Y.  Supreme  Ct.)  341.  In  foreclosure 
actions  the  motion  may  be  made  upon 
the  hearing  of  the  motion  for  final 
judgment.  Walsh  v.  Weidenfeld,  3 
Daly  (N.  Y.)  334.  In  such  a  case  it  is 
not  necessary  that  a  separate  motion 
on  affidavits  should  be  made,  as  the 
parties  are,  or  might  be,  before  the 
court  on  the  motion  for  judgment; 
and  the  pleadings  and  proceedings  in 
the  action  are  all  the  evidence  required 
to  enable  the  court  to  determine  the 
question.  The  court  cannot  grant  an 
extra  allowance  after  an  order  has  been 
made  directing  that  the  action  be  dis- 
continued without  costs  to  either 
party.  Harlem  Bridge,  etc.,  R.  Co.  v. 
Westchester,  76  Hun  (N.  Y.)  286. 

After  Judgment. — But  if  judgment  be 
entered  without  taxing  or  inserting 
costs,  the  right  to  apply  for  an  addi- 
tional allowance  is  not  waived.  Wil- 
liams V.  Western  Union  Tel.  Co.,  61 
How.     Pr.    (N.  Y.    Super.    Ct.)    305. 


The  clerk  cannot  insert  the  amount  of 
costs  in  the  judgment  until  there  is  a 
judgment;  and  there  can  be  no  judg- 
ment until  the  paper  signed  by  the 
judge  shall  have  been  entered  in  the 
office  of  the  clerk.  The  adjustment  of 
costs  is,  therefore, in  strictness, a  pro- 
ceeding subsequent  to  the  entry  of 
judgment.  3  Wait's  Pract.  370.  An 
additional  allowance  cannot  be  granted 
after  the  taxation  and  entry  of  final 
costs  in  a  judgment,  Williams  z/.  West- 
ern Union  Tel.  Co.,  61  How.  Pr.  (N. 
Y.  Super.  Ct.)  308.  The  applica- 
tion should  not  be  made  until  the  liti- 
gation is  ended.  Powers  v.  Wolcott, 
12  How.  Pr.  (N.  Y.  Supreme  Ct.)  565. 
And  the  taxation,  if  already  had,  may 
be  set  aside  to  allow  an  application  to 
be  made.  Dietz  v.  Parish,  43  N.  Y. 
Super.  Ct.  87;  Thompson  v.  St.  Nicho- 
las, 54  Hun  (N.  Y.)  393. 

But  after  the  entry  of  judgment  an 
application  has  been  held  too  late. 
Rule  44.  Jones  v.  Wakefield,  21 
N.  Y.  Wkly.  Dig.  287.  In  this  case 
it  was  held  that  the  fact  that  other 
costs  awarded  on  an  application  to 
open  a  default  might  be  recovered  by 
the  applicant  did  not,  in  any  manner, 
change  the  effect  of  an  existing  ad- 
justment of  the  costs.  Martin  v.  Mc- 
Cormick,  3  Sandf.  (N.  Y.)  755;  Wolfe 
V.  Van  Nostrand,  2  N.  Y.  570;  Os- 
borne V.  Betts,  8  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  31;  Jordan  v.  Shoe,  etc., 
Bank,  45  N.  Y.  Super.  Ct.  423;  Van 
Rensselaer  v.  Kidd,  5  How.  Pr.  (N.Y. 
Supreme  Ct.)  242;  Clarke  v.  Roches- 
ter, 29  How.  Pr.  (N.  Y.  Supreme  Ct.) 
97.  See,  however,  Beals  v.  Benjamin, 
29  How.  Pr.  (N.  Y.  Supreme  Ct.)  loi, 
where  three  years  had  elapsed  after 
the  taxation  and  a  settlement  had  been 
made  upon  the  basis  arrived  at  by  the 
parties,  a  motion  for  additional  allow- 
ance was  held  too  late.  Board  of 
Com'rs  of  Pilots  v.  Spofford,  3  Hun 
(N.  Y.)  58.  The  above  cases  were  de- 
cided under  sec.  308  of  the  Code  of 
Procedure,  the  language  of  which  per- 
mitted an  allowance  to  the  plaintiff 
"upon  the  recovery  of  judgment  by 
him.  "  The  words  of  sec.  3  are:  "  If  a 
final  judgment  is  rendered  in  his  favor 
and  he  recovers  costs." 

After  Tender. — It  is  too  late  to  move 


216 


The  AppUcation.      ADDITIONAL   ALLOWANCES.       To  what  Court. 


Notice. — In  the  former  case  no  formal  notice  is  necessary.* 
2.  To  What  Court  Made. — The  appHcation  must  always  be  made 
to  the  court  before  which  the  trial  was  had  or  the  judgment  ren- 
dered;* and  this  rule  applies  as  well  to  equity  cases,  in  all  which 
the  judge  who  tried  the  case  is  alone  authorized  to  grant  the  al- 
lowance.^ Where  the  case  is  tried  in  the  First  District,  the  ap- 
plication must  be  made  in  that  district,  although  the  judge  be- 
fore whom  the  case  was  tried  resides  in  another  district.* 


after  tender  of  debt,  interest  and  costs, 
and  an  unconditional  acceptance  of 
the  same.  Lockman  v.  Ellis,  58  How. 
Pr.  (N.  Y.  Supreme  Ct.)ioo.  This  was 
an  action  of  foreclosure.  Before  trial 
defendant's  tender  was  accepted  and 
a  satisfaction-piece  was  delivered.  No 
way  was  or,  under  the  circumstances, 
could  be  obtained  by  plaintiff.  But  a 
mere  tender,  declined  by  plaintiff, 
will  not  preclude  an  allowance.  New 
York  F.  &  M.  Ins.  Co.  v.  Burrell,  9 
How.  Pr.  (N.  Y.  Supreme  Ct.)  398. 

1.  Necessity  for  Formal  Notice. — Mitch- 
ell V.  Hall,  7  How.  Pr.  (N.Y.  Supreme 
Ct.)  490;  Saratoga,  etc.,  R.  Co.  v. 
McCoy,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  339.  But  where  the  application  is 
not  made  at  the  trial  it  should  be  made 
upon  notice.  Woodruff  v.  New  York, 
etc.,  R'.  Co.  (Buffalo  Super.Ct.),  31 
N.  Y.  St.  Rep.  7;  Mitchell  v.  Hall, 
7  How.  Pr.  (N.  Y.  Supreme  Ct.)49i; 
Niver  v.  Rossman,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)  153;  Van  Rensselaer  v. 
Kidd,  5  How.  Pr.  (N.  Y.  Supreme  Ct.) 
242;  Saratoga,  etc.,  R.  Co.  v.  Mc- 
Coy, 9  How.  Pr.  (N.  Y.  Supreme  Ct.) 
341.  It  has  been  held,  however,  that 
notice  is  not  essential  if  the  order  is 
made  by  the  judge  who  tried  the  case, 
at  the  same  term.  Mitchell  v.  Hall,  7 
How.  Pr.  (N.  Y.  Supreme  Ct.)  491; 
Saratoga,  etc.,  R.  Co.  v.  McCoy,  9 
How.  Pr.  (N.  Y.  Supreme  Ct.)  341. 
When  made  upon  notice,  affidavits 
showing  the  grounds  upon  which  the 
application  is  based  should  be  served. 

2.  Application  to  Trial  Court. — Rule 
44;  Hun  V.  Salter,  24  Hun  (N.  Y.) 
640 ;  Sackett  v.  Ball,  4  How.  Pr. 
(N.  Y.  Supreme  Ct.)  71.  The  motion 
can  only  be  made  in  the  court  of 
original  jurisdiction.  Wolfe  v.  Van 
Nostrand,  2  N.  Y.  570;  People  v.  New 
York  Cent.  R.  Co.,  29  N.  Y.  418.  In 
trials  before  a  referee,  the  motion  is 
subject  to  the  same  rules  in  reference 
to  the  place  at  which  it  should  be 
made  as  any  other  motion.  Sprong  v. 
Snyder,  6  How.    Pr.  (N.  Y.  Supreme 


Ct.)  II.  Where  the  case  is  tried  at 
circuit,  the  application  should  be  made 
to  the  circuit  at  which  the  case  is  tried, 
or  to  the  justice  who  held  the  same, 
and  to  none  other.  Saratoga,  etc.,  R. 
Co.  V.  McCoy,  9  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  339;  Osborne  v.  Betts,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)  31.  In 
the  First  District,  the  application  may 
be  made  to  a  justice  in  chambers;  but 
elsewhere  it  must  be  made  to  the 
court.  Mann  v.  Tyler,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)  235;  Main  v.  Pope, 
16  How.  Pr.  (N.  Y.  Supreme  Ct.)  271. 
Where  the  place  of  trial  was  the  city 
and  county  of  New  York,  an  order 
for  additional  allowance  made  at  a 
court  held  in  the  city  of  Rochester 
was  reversed.  Bear  v.  American 
Rapid  Tel.  Co.,  36  Hun  (N.  Y.) 
400. 

The  Obvious  Purpose  of  the  Eule  is 
to  require  that  the  question  of  ad- 
ditional allowance  should  be  deter- 
mined by  the  judge  who  tried  the 
cause,  and  who  from  his  knowledge  of 
its  character  must  necessarily  be  most 
competent  to  decide  upon  the  pro- 
priety and  amount  of  the  allowance. 
Osborne  v.  Betts,  8  How.  Pr.  (N.  Y. 
Supreme  Ct.)  31;  Saratoga,  etc.,  R. 
Co.  V.  McCoy,  9  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  340. 

In  an  Equity  Case,  if  an  order  for  an 
allowance  has  been  made  by  a  judge 
other  than  the  one  who  tried  the  case, 
it  is  proper  for  the  former  to  vacate 
his  order,  and  direct  the  motion  to  be 
heard  before  the  latter  judge.  Loth- 
imer  v.  Livermore,  6  Daly  (N.  Y.)  501. 
But  see  Gori  v.  Smith,  3  Abb.  Pr. 
N.  S.  (N.  Y.)  51. 

Where  Judgment  is  Taken  by  Default, 
the  motion  may  be  made  at  Special 
Term.  Mills  v.  Watson,  45  N.  Y.  Su- 
per. Ct.  591. 

3.  Lothimer  v.  Livermore,  6  Daly 
(N.  Y.)  501. 

4.  Hun  V.  Salter,  92  N.  Y.  651;  Bear 
V.  American  Rapid  Tel.  Co.,  36  Hun 
(N.    Y.)   400,   reversing    66    How.    Pr. 


217 


The  Application.      ADDITIONAL    ALLOWANCES.       Costs  of  Motion. 


Review  by  another  Judge. — Nor  can  another  judge  review  an  order 
allowing  additional  costs. ^ 

Where  the  trial  is  before  a  referee,  the  application  should  be  made  to 
the  Special  Term  upon  notice,  as  discretionary  power  to  grant 
an  additional  allowance  cannot  be  delegated  to  a  referee.* 

3.  Costs  of  the  Motion. — Costs  of  the  motion  for  additional 
allowance  are  not  usually  given.^  " 

4.  Appeal  from  Order  Granting  or  Refusing  Additional  Allow- 
ance.— General  Term. — An  order  directing  an  additional  allowance  is 
a  proper  subject  of  appeal  to  the  General  Term,  because  it  subjects 
a  party  to  the  payment  of  a  sum  of  money,  and  for  that  reason 
affects  a  substantial  right.* 


(N.    Y.)   274;    Niver   v.    Rossman,    5 
How.  Pr.  (N.  Y.  Supreme  Ct.)  153. 

1.  Dresser  v.  Jennings,  3  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  240. 

2.  Trial  before  Referee — Main  v. 
Pope,  16  How.  Pr.  (N.  Y.  Supreme 
Ct.)  271.  It  is  the  general  practice 
for  a  referee  to  make  an  additional 
allowance  by  a  provision  in  the  con- 
clusions of  law  in  an  equity  case. 
Gurney  v.  Union  Transfer,  etc.,  Co. 
(Super.  Ct.),  29  N.  Y.  St.  Rep.  278. 

Referee's  Certificate. — The  referee's 
certificate  should  be  produced  upon 
the  application.  Main  v.  Pope,  i6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  271. 
The  fact  that  the  affidavits  of  the  con- 
tending parties  frequently  contain  con- 
flicting statements  renders  the  cer- 
tificate a  great  assistance  to  the  court. 
Fox  V.  Gold,  5  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  280.  But  this  certificate  is 
not  jurisdictional,  and  the  court  may 
pass  upon  the  motion  without  it. 
Dode  V.  Manhattan  R.  Co.,  70  Hun 
(N.  Y.)  374.  This  was  also  held  under 
the  former  Code  of  Procedure,  but 
held,  also,  that  the  certificate,  if  not 
essential,  is  yet  proper;  and  it  is  the 
better  practice  not  to  omit  it.  Mer- 
sereau  v.  Ryerss,  12  How.  Pr.  (N.  Y. 
Supreme  Ct.)  300. 

Affidavits. — The  certificate  alone  is 
not  sufficient;  the  court  should  be  fur- 
nished also  with  an  affidavit  of  facts 
sufficient  to  enable  it  to  form  an  opin- 
ion. Gould  V.  Chapin,  4  How.  Pr.  (N. 
Y.  Supreme  Ct.)  185;  How  v.  Muir,  4 
How.  Pr.  (N.  Y.  Supreme  Ct.)  252; 
Gori  V.  Smith,  3  Abb.  Pr.  N.  S.  (N.  Y. 
Super.  Ct.)  51.  Where  a  large  amount 
is  claimed  the  court  should  require 
some  specific  facts  to  be  stated,  such 
as  moneys  actually  expended  or  lia- 
bilities actually  incurred,  or  time  and 
labor  consumed  by  the  counsel  or  the 


party  in  the  preparation  and  trial 
of  the  cause,  how  much  time  was 
occupied  in  the  trial,  whether  more 
than  one  trial  at  the  circuit,  how 
often  it  was  postponed,  whether  it  was 
argued  more  than  once  at  the  Gen- 
eral Term,  whether  long  accounts  were 
taken  upon  a  reference,  etc.  People 
V.  New  York  Cent.  R.  Co.,  30  How.Pr. 
(N.  Y.  Supreme  Ct.)i48.  Where  the 
value  of  the  subject-matter  involved 
has  not  appeared  during  the  trial,  it 
may  be  determined  upon  affidavits  pre- 
sented upon  the  motion  for  allowance. 
Lyon  V.  Belchford,  8  Civ.  Pro.  Rep, 
(N.  Y.  Supreme  Ct.)  229. 

3.  Schwartz  v.  Poughkeepsie  Mut. 
L.  Ins.  Co.,  10  How  Pr.  (N.  Y.  Su- 
preme Ct.)93  ;  Dickson  v.  McElwain, 
7  How  Pr.  (N.  Y.  Supreme  Ct.)  39.  But 
the  applicant  or  his  attorney  may  be 
ordered  to  pay  costs  where  the  motion 
is  denied  and  it  is  clearly  apparent 
that  no  ground  for  the  application  ex- 
isted. Jordan  v.  Shoe,  etc..  Bank,  45 
N.  Y.  Super.  Ct.  423. 

4.  Jurisdiction  of  General  Term. — 
Duncan  v.  DeWitt,  7  Hun  (N.  Y.) 
184  ;  People  v.  New  York  Cent.  R. 
Co.,  29  N.  Y.  418  ;  Gori  v.  Smith,  3 
Abb.,Pr.  N.  S.  (N.  Y.  Super.  Ct.)  51. 
It  is  the  duty  of  the  General  Term  to 
review  such  orders  upon  the  merits. 
Board  of  Comrs.  of  Pilots  v.  Spoflford, 
3  Hun  (N.  Y.)  60  ;  Adams  v.  Arken- 
burgh,  106  N.  Y.  615.  But  where  the 
order  of  the  Special  Term  appears  not 
to  be  founded  upon  any  misapprehen- 
sion of  the  facts,  or  of  the  rights  of  the 
parties,  and  its  jurisdiction  is  undoubt- 
ed, the  General  Term  will  not  interfere 
with  the  discretion  exercised.  Morss 
V.  Hasbrouck,  13  N.  Y.  Wkly.  Dig. 
393  ;  Union  Bank  v.  Mott,  13  Abb.  Pr. 
(N.  Y.  Super.  Ct.)  247  ;  Riley  v.  Hul- 
bert,  13  N.  Y.Wkly.  Dig.  loi;  Hamilton 

18 


The  Application.       ADDITIONAL    ALIO  WANCES.  Appeal  from  Order. 

Court  of  Appeals. — Although  the  right  to  costs  is  a  substantial 
right,  and  when  claimed  under  the  positive  provisions  of  a 
statute  involves  no  question  of  discretion,  and  is  therefore 
appealable,*  yet  the  Court  of  Appeals  cannot  review  the  action 
of  the  court  below  in  making  an  additional  allowance  where  the 
same  does  not  exceed  the  maximum  limit  fixed  by  the  code  and 
no  rule  of  law  is  violated.* 


V.  Manhattan  R.  Co.  (Super.  Ct.),  29 
N.  Y.  St.  Rep.  28;  Mutual  L.  Ins.  Co.  v. 
Cranwell  (Supreme  Ct.),  32  N.  Y.  St. 
Rep.  376  ;  Tradesmen's  National  Bank 
V.  Wetmore  (Supreme  Ct.),  10  N.  Y. 
St.  Rep.  640.  The  presumption  is  that 
the  order  appealed  from  is  right. 
Everingham  v.  Vanderbilt,  12  Hun 
(N.  Y.)  75.  Where,  however,  the 
order  is  made  without  any  discretion 
being  exercised  it  is  reviewable  by 
the  General  Term.  Abbott  v.  Johns- 
town, etc.,  Horse  R.  Co.,  24  Hun 
(N.  Y.)  135.  The  discretion  of  the  trial 
court  may  be  reviewed  by  the  General 
Term,  but  not  by  the  Court  of  Ap- 
peals. Gorham  v.  Innis,  115  N.  Y.  87. 
An  order  awarding  an  allowance  be- 
yond the  power  of  the  court  to  grant 
is  appealable,  although  made  on  de- 
fault: the  party  prejudiced  may  appeal 
to  the  General  Term,  or  may  move  at 
Special  Term  to  set  aside  the  order 
for  irregularity.  Wilkinson  v.  Tiffany, 
4  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  98  ; 
Voorhis  v.  French,  47  N.  Y.  Super.  Ct. 
364.  But  a  trifling  excess,  apparently 
made  through  inadvertence,  may  not 
justify  the  interference  of  the  Court 
of  Appeals.  Kraushaar  v.  Meyer,  72 
N.  Y.  602. 

Bemitting  Case  Back. — When  the  prin- 
ciple of  allowance  has  been  determined 
the  case  will  be  remitted  by  the  Gen- 
eral Term  to  the  judge  before  whom 
it  was  heard,  for  a  hearing  upon  the 
merits.  Munro  v.  Smith  (Supreme 
Ct.),  25  N.  Y.  St.  Rep.  624.  Should 
the  General  Term  decide  that  the  case 
is  a  proper  one  for  an  additional  al- 
allowance,  it  may  order  the  motion 
to  be  remitted  to  the  Special  Term 
to  settle  the  amount.  Shiels  v.  Wort- 
mann,  126  N.  Y.  650.  And  similarly 
the  Court  of  Appeals  may  remit  to 
the  General  Term,  for  further  con- 
sideration and  disposal  upon  the 
merits,  an  order  of  the  latter  court 
made  upon  technical  grounds.  Adams 
V.  Arkenburgh,  106  N.  Y.  615. 

Exception  not  Necessary. — A  formal 
exception  is  not  requisite  for  the  pur- 


pose of  a  review  of  the  order  by  the 
General  Term.  Hanover  v.  Germania 
F.  Ins.  Co.,  138  N.  Y.  252. 

1.  Sturgis  V,  Spofford,  58  N.  Y.  103  ; 
People  V.  New  York  Cent.  R.  Co.,  29 
N.  Y.  418. 

2.  Jurisdiction  of  Court  of  Appeals. — 
Southwick  V.  Southwick,  49  N.  Y.  510  ; 
People  V.  Albany,  etc.,  R.  Co.,  16 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  465  ; 
Comins  v.  Jefferson,  64  N.  Y.  626. 
The  Court  of  Appeals  has  no  jurisdic- 
tion to  review  the  discretion  of  the 
court  below  in  granting  an  extra  al- 
lowance where  no  rule  of  law  is  vio- 
lated, or  in  refusing  an  extra  allow- 
ance unless  such  refusal  has  been 
based  upon  a  want  of  authority,  thus 
presenting  a  question  of  law.  Shiels 
V.  Wortmann,  126  N.  Y.  650.  Upon 
appeal  from  the  decision  of  the  Gen- 
eral Term,  however,  the  Court  of  Ap- 
peals may  pass  upon  the  question  of 
the  legal  right  of  the  court  below  to 
make  the  allowance.  Heilman  v.  Laz- 
arus, 12  Abb.  N.  Cas.  (N.  Y.  Ct.  App.) 
24  ;  Hanover  v.  Germania  F.  Ins.  Co., 
138  N.  Y.  252.  Or  may  pass  upon 
the  question  of  the  legal  right  of 
the  court  below  to  refuse  the  allow- 
ance where  such  refusal  is  based,  not 
upon  the  ground  of  discretion,  but  of 
want  of  jurisdiction  in  the  General 
Term.  Hudson  River  Tel.  Co.  v. 
Watervliet,  135  N.  Y.  393. 

Bemitting  Case  Back. — Where  the 
jurisdiction  is  established,  the  motion 
is  remitted  back  to  the  court  below  to 
be  heard  on  its  merits.  Adams  v. 
Arkenburgh,  106  N.  Y.  615. 

Merits. — The  burden  rests  upon  ap- 
pellants to  show  that  the  allowance  is 
improper.  People  v.  Clark,  9  N.  Y. 
370.  Where  the  amount  involved  in 
the  controversy  does  not  clearly  ap- 
pear, the  appellate  court  will  presume 
that  the  allowance  was  properly  com- 
puted. Rosa  V.  Jenkins,  31  Hun 
(N.  Y.)  384.  The  Court  of  Appeals 
will  not  feel  bound  to  reduce  the  al- 
lowance, although  in  excess  of  the 
limit,    where   no    objection   is   made. 


219 


Where  Granted        ADDITIONAL    ALLOWANCES. 


or  Befused. 


IV.  Wheee  Allowance  May  be  Gbanted  ob  Refttsed. — 1.  In 
General. — The  allowance  being  additional  only  to  other  costs,  a 
party  is  not  entitled  to  an  additional  allowance  unless  he  recovers 
costs*  upon  the  final  determination  of  the  action.* 

The  right  to  the  additional  allowance  is  perfect  when  the  ver- 
dict is  rendered,  although  the  amount  may  not  be  determined 
until  afterwards.^ 

An  allowance  may  be  granted  where  the  case  is  dismissed  by 
reason    of    plaintiff's    failure    to  appear    at    the    trial  ;"*    or    if 


Riggs    V.    Cragg,    26    Hun    (N.    Y.) 

89. 

Allowance  Discretionary. — Where  the 
allowance  is  a  matter  of  discretion  in 
an  equity  action,  this  discretion  can- 
not be  reviewed  upon  a  motion,  but 
must  be  challenged  by  an  exception  to 
the  finding  and  an  appeal  from  the 
judgment.  Woodford  v.  Bucklin,  14 
Hun  (N.  Y.)  444;  Rosa  z/.  Jenkins, 
31  Hun(N.  Y.)3S6  ;  Couch  z/.  Millard, 
41  Hun  (N.  Y.)  212. 

Allowance  Subsequent  to  Appeal. — 
Where  a  party  is  defeated  at  the  trial, 
but  succeeds  upon  an  appeal  to  the 
Court  of  Appeals,  the  Special  Term 
may,  after  the  filing  of  the  remittitur 
and  entry  of  an  order  thereon,  grant 
him  the  costs  of  the  action  and  an  ad- 
ditional allowance.  Brown  v.  Farm- 
ers' L.  &  F.  Co.,  26  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  160.  In  an  early 
case  the  contrary  was  determined  on 
the  ground  that  the  granting  of  such 
allowance  would  be  adding  to  the 
judgment  of  the  Court  of  Appeals. 
Parrott  v.  Sawyer,  26  Hun  (N.  Y.) 
466. 

1.  Becovery  of  Ordinary  Costs  Essen- 
tial.— Savage  v.  Allen,  2  Thomp.  &  C. 
(N.  Y.)  474;  Sherburn  v.  Taft  (Su- 
premeCt.),49N.  Y.  St. Rep.  771;  Couch 
V.  Millard,  41  Hun  (N.  Y.)  212  ;  Jor- 
dan V.  Hess  (Super.  Ct.),  54  N.  Y.  St. 
Rep.  326.  Nor  is  defendant  entitled  to 
an  allowance  where  plaintiff  recovers 
a  verdict  which  does  not  carry  costs. 
Devlin  v.  New  York,  15  Abb.  Pr.  N.  S. 
(N.  Y.  C.  PI.)  31  ;  Murray  J/.  Robinson, 
9  Hun  (N.  Y.)  137.  The  recovery 
which  entitles  a  defendant  to  costs  is 
a  recovery  on  the  issue  tried.  Pinder 
V.  Stoothoff,  7  Abb.  Pr.  N.  S.  (N.  Y. 
Supreme  Ct.)  433. 

2.  The  Litigation  mast  he  Ended. — 
Merchants'  Exch.  Nat.  Bank  v.  Com- 
mercial Warehouse  Co.,  35  N.  Y.  Su- 
per. Ct.  214  ;  Troy,  etc.,  R.  Co.  v.  Tib- 
bitts,  II  How.  Pr.  (N.  Y.  Supreme  Ct.) 
168  ;  Brace  v.  Beatty,  7  Abb.  Pr.  (N.  Y. 


Supreme  Ct.)  445  ;  Pool  v.  Osborn,  8 
Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.)  232. 
An  allowance  cannot  be  made  until 
the  amount  upon  which  it  is  to  be 
computed  is  fixed  and  determined. 
Citizens'  Sav.  Bank  v.  Bauer,  14  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  340. 

3.  Cook  V.  New  York  Floating  Dock, 
I  Hilt.  (N.  Y.)556. 

Betrials. — Where  a  case  is  retried, 
the  fact  that  an  allowance  was  denied 
on  the  first  trial  does  not  prevent  an 
allowance  being  made  on  the  second, 
where  the  facts  and  circumstances  at 
the  second  trial  are  materially  differ- 
ent. Fox  V.  Fox,  24  How.  Pr.  (N.  Y. 
Supreme  Ct.)  385.  And  a  party  suc- 
cessful upon  a  new  trial  involving 
nothing  difficult  or  extraordinary  may 
have  an  allowance  where  the  same 
party  succeeded  upon  the  first  trial, 
which  was  difficult  and  extraordinary. 
Howell  V.  Van  Siclen,  4  Abb.  N.  Cas. 
(N.  Y.  Ct.  App.)  I.  Upon  a  new  trial 
under  sec.  3252  a  second  allowance 
may  be  granted,  as  it  is  practically  the 
trial  of  a  new  case.  Wing  v.  De  La 
Rionda,  131  N.  Y.  422. 

4.  Trial. — In  a  difficult  and  extraor- 
dinary case  it  is  only  necessary  that  a 
defence  should  be  interposed.  Under 
the  former  Code  of  Procedure,  sec. 
309,  which  permitted  allowances  where 
a  trial  was  had,  the  word  "trial,"  in 
this  connection,  was  held  to  include 
every  mode  of  disposing  of  issues  in  a 
cause,  and  to  cover  judgments  by  de- 
fault. Rogers  v.  Degen,  4  Bosw.  (N.  Y.) 
669.  See  also  Danenhover  v.  March, 
4  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  254; 
Mora  V.  Great  Western,  10  Bosw. 
(N.  Y.)  622  ;  Mills  v.  Watson,  45  N.  Y. 
Super.  Ct.  591. 

It  is  within  the  power  of  the  court 
to  grant  an  allowance  in  a  case  which 
has  never  been  brought  to  trial.  Lock- 
wood  V.  Salmon  River  Paper  Co.  (Su- 
preme Ct.),  49  N.  Y.  'St.  Rep.  303  ; 
Moulton  V.  Beecher,  11  Hun  (N.  Y.) 
192. 


220 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Befused. 


plaintiff   submits  to  a    nonsuit 
murrer.* 


or   on   judgment    upon    a   de- 


2.  Subject-matter  must  Possess  Pecuniary  Value. — An  allowance 
cannot  be  made  in  any  action  where  no  property  or  right  is  in- 
volved upon  which  it  is  possible  to  place  a  pecuniary  estimate.* 


Submission  upon  Statement  of  Facts. — 
An  allowance  may  be  made  where  a 
difficult  and  extraordinary  case  has 
been  submitted  upon  an  agreed  state 
of  facts.  Kingsland  v.  New  York,  52 
Hun(N.  Y.)98.  But  see,  contra.  Peo- 
ple V.  Fitchburg  R.  Co.,  133  N.  Y.  239. 
But  an  allowance  cannot  be  made  upon 
the  submission  of  a  controversy  with- 
out action  where  the  submission  pro- 
vides only  for  costs  and  disburse- 
ments. Fish  V.  Coster,  28  Hun  (N.  Y.) 
64. 

Stipulation  as  to  Costs.  —  So,  also, 
v.-here  defendant  stipulated  to  permit 
judgment  for  an  amount  "with  costs," 
held  by  Lawrence,  J.,  that  these  words 
could  not  be  construed  to  contemplate 
or  include  an  additional  allowance. 
Pool  V.  Osborn,  8  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  232.  See  also  Landon 
V.  Van  Etten,  57  Hun  (N.  Y.)  122  ; 
Penfield  v.  James,  56  N.  Y.  659.  But 
see  Coates  v.  Goddard,  34  N.  Y.  Super. 
Ct.  118,  where  the  contrary  was  held. 
See  also  Safety  Steam  Generator  Co.  v. 
Dickson  Mfg.  Co.,  61  Hun  (N.  Y.)  335; 
Jermain  v.  Lake  Shore,  etc.,  R.  Co., 
31  Hun(N.  Y.)558. 

In  Doubtful  Cases. — Where  the  au- 
thority to  grant  is  doubtful,  the  allow- 
ance should  be  refused.  Sheehy  v. 
Kelly,  33  Hun  (N.  Y.)  543  ;  Gould  v. 
Chapin,4  How.  Pr.  (N.  Y.  Supreme  Ct.) 
185. 

1.  Nonsuit. — Allaire  v.  Lee,  4  Duer 
(N.  Y.)  609;  Woods  V.  Illinois  Cent. 
R.  Co.,  20  How.  Pr.  (N.  Y.  Supreme 
Ct.)  285;  Shiels  V.  Wortman  (Supreme 
Ct.),  39  N.  Y.  St.  Rep.  798. 

2.  Demurrer.  —  Victor  v.  Halstead, 
(Supreme  Ct.),  38  N.  Y.  St.  Rep.  407. 
But  no  allowance  can  be  granted  where 
a  demurrer  to  the  jurisdiction  is  up- 
held. Genet  v.  Delaware,  etc.,  Canal 
Co.,  57  Hun  (N.  Y.)  174.  Nor  on  de- 
murrer where  leave  to  plead  over  is 
given.  De  Stuckle  v.  Tehuantepec  R. 
Co.,  30  Hun  (N.  Y.)  34.  See  also 
Small  V.  Ludlow,  i  Hilt.  (N.  Y.)  307  ; 
Lowry  v.  Inman,  37  How.  Pr.  (N.  Y. 
Super.  Ct.)  286;  First  Nat.  Bank  v. 
Bush,  47  How.  Pr.  (N.  Y.  Supreme  Ct.) 
78  ;  McDonald  v.  Mallory,  46  N.  Y. 
Super.  Ct.  58;  Kingsland  z'.  New  York, 


16  Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.) 

323- 

3.  The  reason  why  it  is  requisite  to 
the  granting  of  an  allowance  that  the 
subject-matter  of  the  action  should 
possess  a  money  value  both  capable 
of  being  estimated  and  also  shown  in 
evidence  is  because  the  power  to 
grant  an  allowance  is  limited  to  five 
per  cent  of  the  (i)  claim  or  (2)  recovery 
or  (3)  the  subject-matter  involved  ; 
hence  it  is  necessary  that  such  sum, 
recovery,  or  amount  must  be  ascer- 
tained with  sufficient  exactness  to  en- 
able a  computation  of  five  per  cent  to 
be  made.  Otherwise  the  limitation 
would  be  inoperative,  since  it  could 
never  be  ascertained  whether  five  per 
cent  had  been  exceeded,  and  the  re- 
sult would  be  an  unlimited  power  to 
grant  an  allowance.  Coates  v.  God- 
dard, 34  N.  Y.  Super.  Ct.  118. 

Injunction  Suits.— For  this  reason 
the  allowance  cannot  be  made  in  a  suit 
in  the  nature  of  a  simple  injunc- 
tion bill,  and  no  money  or  property 
is  sought  to  be  recovered.  Hudson 
River  Teleph.  Co.  v.  Watervliet  Turn- 
pike, etc.,  Co.  (Supreme  Ct.),  39  N.  Y. 
St.  Rep.  966;  Johnson  v.  Shelter 
Island  Grove,  etc.,  Assoc,  122  N.  Y. 
330;  Huntingdon  v.  Moore,  59  Hun 
(N.  Y.)35i;  Palmer  z/.  DeWitt,  42  How. 
Pr.  (N.  Y.  Super.  Ct.)  466;  Gressler  v. 
Stuyvesant,  67  Barb.  (N.  Y.)  81;  Dia- 
mond Match  Co.  V.  Roeber,  35  Hun 
(N.  Y.)  421;  Perkins  v.  Whitney  (Su- 
preme Ct.),  34  N.  Y.  St.  Rep.  951.  But 
see  Williams  v.  Western  Union  Tel. 
Co.,  I  Civ.  Pro.  Rep.  (N.  Y.)  294;  Peo- 
ple V.  Albany,  etc.,  R.  Co.,  5  Lans. 
(N.  Y.)  25;  Conaughty  v.  Saratoga 
County  Bank,  92  N.  Y.  401;  Brown  v. 
Gallaudet,  19  Alb.  L.  J.  281;  Gray  v. 
Manhattan  R.  Co.,  3  Misc.  (N.  Y.) 
239.  Nor  in  a  suit  to  restrain  the 
foreclosure  of  a  mortgage.  Sprong 
V.  Snyder,  6  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  II.  But  the  fact  that 
an  undertaking  upon  injunction  has 
been  given  will  not  prevent  the  grant- 
ing an  allowance  in  a  proper  case. 
Williams  z/.  Western  Union  Tel.  Co.,  i 
Civ.  Pro.  Rep.  (N.  Y.)294.  Nor  will 
the  granting  of  such  allowance  affect 


221 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Befused. 


3.  Where  Court  may  Exercise  Discretion. — There  are  many  cases 
in   which    the    court  will   exercise   its   discretion   in   refusing  the 


the  recovery  of  damages  on  such  un- 
dertaking. Howell  V.  Miller,  5  Civ. 
Pro.  Rep.  (N.  Y.  C.  PI.)  164;  Froxell 
V.  Haynes,  5  Daly  (N.  Y.)  389. 

Other  Actions  where  Subject-matter 
has  no  Pecuniary  Value.  —  The  allow- 
ance cannot  be  made  in  an  action  in 
the  nature  of  a  quo  warranto.  People 
V.  Flagg.  25  Barb.  (N.  Y.)  652;  Peo- 
ple V.  Albany,  etc.,  R.  Co.,  5  Lans. 
(N.  Y.)  25.  Nor  in  actions  for  specific 
performance.  Weeks  v.  Southwick,  12 
How.  Pr.  (N.  Y.  Supreme  Ct.)  170.  But 
where  plaintiff  sued  for  rescission  of 
a  contract  for  sale  and  return  of  de- 
posit, and  defendant  succeeded  upon 
a  counterclaim  for  specific  perform- 
ance, held,  that  the  subject-matter  was 
the  value  of  the  land,  and  an  allow- 
ance was  granted  defendant.  Lahey 
V.  Kortright  (Super.  Ct.),  32  N.  Y'. 
St.  Rep.  112.  An  allowance  cannot 
be  made  in  an  action  to  vacate  an 
award  for  misconduct  of  an  umpire. 
Hoffmann  v.  De  Graaf,  39  Hun  (N.  Y.) 
648.  Nor  can  an  action  by  a  vendor 
to  foreclose  a  land  contract.  Burk- 
hart  V.  Babcock,  2  How.  Pr.  N.  S. 
(N.  Y.  Supreme  Ct.)  512.  Nor  to  set 
aside  a  voluntary  assignment.  Os- 
borne V.  Betts,  8  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  31.  Nor  to  set  aside  a  con- 
veyance. Buchanan  v.  Morrell,  13 
How.  Pr.  (N.  Y.  Super.  Ct.)  296;  Dono- 
van V.  Wheeler,  67  Hun  (N.  Y.)  68. 
Nor  to  remove  a  corporation  officer 
for  misconduct.  People  v.  Giroux, 
29  Hun  (N.  Y.)  248;  Conaughty  v. 
Saratoga  County  Bank,  92  N.  Y.  401, 
reversing  28  Hun  (N.  Y)  373.  Nor  to 
remove  an  assignee  and  appoint  a  re- 
ceiver. Meyer  v.  Rasquin,  20  N.  Y. 
Wkly.  Dig.  98.  Nor  to  restrain  de- 
fendant from  increasing  the  height  of 
a  party-wall.  Musgrave  v.  Sherwood, 
29  Hun  (N.  Y.)  475.  Nor  to  declare 
and  enforce  an  easement  to  which  no 
value  is  shown  to  attach.  Johnson  v. 
Shelter  Island  Grove,  etc.,  Assoc, 
47  Hun  (N.  Y.)  374,  122  N.  Y.  330; 
Moores  v.  Townshend,  8  St.  Rep. 
(N.  Y.)  893.  Nor  in  other  cases  where 
the  subject-matter  of  the  controversy 
is  a  mere  right,  not  directly  involving 
any  claim  to  property,  and  either  has 
no  pecuniary  value  or  its  value  fails 
to  be  shown.  Wood  v.  Lary,  47  Hun 
(N.  Y.)  550;  Malory  z/.  Associated  Lace 
Makers'  Co.  (Supreme  Ct.),  28  N.  Y. 


St.  Rep.  735;  People  v.  Ulster,  etc., 
R.  Co.  (Supreme  Ct.),  34  N.  Y.  St. 
Rep.  983,  128  N.  Y.  240;  Abell  v.  Brad- 
ner  (Supreme  Ct.),  39  N.  Y.  St.  Rep. 
5;  Bradley  v.  Walker  (Super.  Ct.), 
44  N.  Y.  St.  Rep.  213;  People  v. 
Genessee,  95  N.  Y.  666;  Palmer  v.  De- 
Witt,  42  How.  Pr.  (N.  Y.  Super.  Ct.) 
466;  Spofford  V.  Texas  Land  Co.,  41 
N.  Y.  Super.  Ct.  228;  People  v.  Rock- 
away  Beach  Imp.  Co.,  28  Hun  (N.  Y.) 
356;  Hanover  z/.  Germania  F.  Ins.  Co., 
138  N.  Y.  252;  Adams  v.  Sullivan,  42 
Hun  (N.  Y.)  278;  Patterson  v.  Bur- 
nett, 17  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  115;  Knapp  V.  Hammers- 
ley,  13  Civ.  Pro.  Rep.  (N.  Y.  Supreme 
Ct.)  258;  Weeks  v.  Silver  Islet  Con- 
solidated Min.,  etc.,  Co.  (Super.  Ct.), 
32  N.  Y.  St.  Rep.  447;  Gray  v.  Man- 
hattan R.  Co.,  3  Misc.  (N.  Y.)  239; 
People  V.  New  York,  etc.,  Ferry  Co., 
68  N.  Y.  71;  Weaver  v.  Ely,  83  N.  Y. 
89;  Voorhies  v.  French,  47  N.  Y.  Su- 
per. Ct.  364;  Heilmann  v.  Lazarus,  65 
How.  Pr.  (N.  Y.  Ct.  App.)  95;  Peo- 
ple V.  Genessee  Valley  Canal  R.  Co., 
30  Hun  (N.  Y)  565,  95  N.  Y.  666; 
Adams  v.  Arkenburgh,  106  N.  Y.  615. 
So  also,  in  actions  for  accounting, 
where  no  definite  sum  is  claimed  in 
the  complaint,  and  the  value  of  plain- 
tiff's alleged  interest  is  not  shown,  no 
allowance  can  be  granted.  Budd  v. 
Smales,  N.  Y.  Daily  Reg.  19  March, 
1884;  Coleman  z/.  Chauncev,  7  Robt. 
(N.  Y.)  578.  But  see  Tol'an  v.  Car, 
12  Daly  (N.  Y.)  520,  where  an  allow- 
ance was  computed  upon  the  amount 
recovered.  So  also  no  allowance  will 
be  granted  in  actions  for  divorce. 
Bentley  v.  Bentley,  3  N.  Y.  Month. 
L.  Bull.  76;  Pountney  z/.  Pountney  (Su- 
preme Ct.),  32  N.  Y.  St.  Rep.  334. 
But  this  does  not  apply  to  a  decision 
in  favor  of  the  wife  in  an  action  by  the 
husband  for  nullity  of  marriage.  Grif- 
fin V.  Griffin,  47  N.  Y.  134. 

Reference  to  Determine  Value. — It  is  a 
useful  practice  for  the  interlocutory 
decree  in  injunction  suits  to  provide 
for  the  ascertainment  by  the  referee 
of  the  value  (if  any)  of  the  subject- 
matter,  with  a  view  to  determine  the 
propriety  and  amount  of  an  additional 
allowance.  Munro  v.  Smith  (Supreme 
Ct.),  25  N.  Y.  St.  Rep.  624;  Dr.  jaeger 
Sanitary,  etc.,  Co.  v.  Le  Boutillier,  63 
Hun  (N.  Y.)  298. 


Where  Granted       ADDITIONAL    ALLOWANCES. 


or  Befused. 


allowance  otherwise  claimable  where  the  circumstances  are  such 
as  would  render  it  inequitable  to  grant  it,* 

Bight   to   have  Determination.  —  The 

unsuccessful  party  against  whom  the 
motion  is  made  has  a  right  to  require 
that  the  court  determine  the  value  of 
the  property  recovered  or  claimed  in 
the  action.  Dresser  v.  Jennings,  3 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  240. 

Interpleader  Action. — The  assignee  of 
a  sheriff's  claim  for  fees  having 
brought  suit  thereon,  other  persons 
interposed  a  claim  to  the  fund,  and 
were  by  an  order  of  interpleader  sub- 
stituted as  defendants,  the  money 
being  paid  into  court.  Plaintiff  was 
successful  in  the  action.  Held,  allow- 
ance proper,  especially  as  defendants 
had  wholly  failed  to  disclose  the 
nature  of  their  own  claim  to  the  fund. 
Bowery  Nat.  Bank  v.  Wilson  (Su- 
preme Ct.),  I  N.  Y.  Supp.  473. 

Partnership  Actions. — In  the  action  to 
dissolve  the  partnership  and  for  an 
accounting,  an  extra  allowance  was 
held  properly  made  to  defendant. 
Adams  v.  Arkenburgh,  106  N.  Y.  615, 
reversing  Adams  v.  Sullivan,  42  Hun 
(N.  Y.)  278.  But  the  bare  fact  that  the 
action  is  brought  for  an  accounting 
and  a  division  of  the  firm  assets  is  no 
ground  for  an  extra  allowance.  Hin- 
man  v.  Ryder,  44  N.  Y.  Super  Ct.  330. 
In  any  case  the  allowance  must  be  rea- 
sonable and  not  excessive.  Hagen- 
backle  v.  Schultz,  69  Hun  (N.  Y.)  183. 
Nor  should  an  extra  allowance  be 
made  out  of  assets  of  the  firm  in  the 
hands  of  a  receiver  where  creditors 
would  suffer.  Smith  v.  Green,  8  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  163. 

Wills. — In  an  action  for  the  con- 
struction of  a  will  brought  by  execu- 
tors an  allowance  may  be  made.  Wet- 
more  V.  Parker,  52  N.  Y.  450;  Betts  v. 
Betts,  4  Abb.  N.  Cas.  (N.  Y.  Supreme 
Ct.)  317.  But  the  allowances  to  the 
parties  must  be  limited  to  five  per 
cent  of  the  subject-matter  involved. 
Fraser  v.  McNaughton,  58  Hun  (N.  Y.) 
30.  But  in  a  proceeding  to  prove  an 
uncontested  will  an  extra  allowance 
cannot  be  made  to  the  defendant's  at- 
torney. Firth  V.  Campbell,  53  Barb. 
(N.  Y.)  325.  Nor  in  a  suit  for  the  con- 
struction of  a  will  where  the  court 
upholds  the  trust.  Provost  v.  Pro- 
vost, 7  Hun  (N.  Y.)  81;  Downing  v. 
Marshall,  37  N.  Y.  380.  Nor  on  dis- 
missal of  an  action  to  establish  a  will. 
Perkins  v.  Whitney  (Supreme  Ct.),  34 


N.  Y.  St.  Rep.  951.  The  allowance 
must  be  limited  to  five  per  cent  on  the 
subject-matter  involved.  Fraser  v.  Mc- 
Naughton, 58  Hun  (N.  Y.)  30. 

1.  Discretion  of  Court. — Thus  it  will 
not  be  allowed  where  it  would  require 
to  be  paid  out  of  a  fund  upon  which 
creditors  not  parties  to  the  action  have 
claims,  where  it  would  diminish  the 
dividend  to  be  received  by  them. 
Smith  V.  Green,  8  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  163;  Hurd  v.  Farmers' 
L.  &  T.  Co.,  16  N.  Y.  Wkly.  Dig.  480. 
But  in  an  action  to  set  aside  an  assign- 
ment for  creditors  an  additional  allow- 
ance was  made,  although  there  was 
not  enough  to  pay  all  creditors.  Du- 
rand  v.  Pierson  (Supreme  Ct.),  33  N.  Y. 
St.  Rep.  207. 

Stipulation  for  Allowance. — The  stipu- 
lation of  attorneys  is  not  suflScient  to 
justify  an  allowance,  if  otherwise  im- 
proper. Bockes  V.  Hathorn,  17  Hun 
(N.  Y.)  87.  But  the  stipulation  is 
sufficient  against  the  client,  unless  im- 
peached for  want  of  power.  People  v. 
Westchester  County  (Supreme  Ct.),  39 
N.  Y.  St.  Rep.  798  ;  Palen  v.  Starr,  7 
Hun  (N.  Y.)  422  ;  Ferguson  v.  Craw- 
ford, 86  N.  Y.  609. 

Against  Parties  Acting  in  Good  Faith. 
— An  allowance  ought  not  to  be  made 
against  a  trustee  interposing  a  defence 
in  good  faith  and  for  the  sake  of  pro- 
tecting other  interests  in  his  care. 
Graham  v.  New  York  L.  Ins.,  etc.,  Co. 
46  Hun  (N.  Y.)  261.  So  also  in  the 
case  of  a  surety,  unless  he  has  mis- 
behaved or  acted  in  bad  faith,  or  is 
possessed  of  the  means  to  indemnify 
himself.  Rice  v.  Wright,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  405.  So  also  an 
allowance  should  not  be  made  against 
a  petitioner  in  lunacy  where  his  pet  - 
tion  is  dismissed  but  it  is  apparent 
that  he  acted  in  good  faith.  Exp.  Mc- 
Adams,  19  Hun  (N.  Y.)  292.  Nor 
against  a  plaintiff  in  a  partition  suit 
brought  in  good  faith  for  the  purpose 
of  testing  the  right  of  heirs  to  a  divi- 
sion, the  plaintiff  being  in  strait- 
ened circumstances.  Van  Brunt  v. 
Van  Brunt  (Supreme  Ct.),  14  N.  Y. 
St.  Rep.  887,  III  N.  Y.  178.  So  also 
where  a  defence  was  made  in  good 
faith  to  an  action  to  recover  funds  in 
the  hands  of  the  city  treasurer,  and 
for  the  purpose  of  settling  contro- 
verted rights.    Field  v.  New  York,  3S 


223 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Befused. 


or  where  no  merits  are  disclosed  upon  the  application.' 

Hun  (N.  Y.)  590.  Nor  should  it  be 
granted  where,  in  a  dower  action, 
plaintiff  dies  after  filing  a  consent  to 
receive  a  gross  sum,  and  the  action  is 
revived  in  good  faith  by  executors 
who  are  advised  that  a  vested  right 
has  descended  to  them.  McKeen  v. 
Fish,  33  Hun  (N.  Y.)  28.  Where 
plaintiff,  a  receiver  in  supplementary 
proceedings,  had  sued,  pursuant  to 
leave  obtained  of  the  court,  to  set 
aside  a  conveyance  of  the  judgment 
debtor's  property,  in  good  faith  and 
in  ignorance  of  an  unrecorded  declara- 
tion of  trust,  although  the  complaint 
was  dismissed,  held,  in  view  of  all  the 
circumstances,  including  suspicious 
and  misleading  conduct  of  defendant, 
no  case  for  an  additional  allowance. 
Baldwin  v.  Reardon,  48  N.  Y.  Super. 
Ct.  166.  Nor  will  the  court  impose 
payment  of  an  allowance  as  a  term  of 
discontinuance  in  an  action  brought 
by  a  wife  for  separation.  Newton  v. 
Newton,  8  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  224. 

Hardship. — Nor  should  an  allowance 
be  granted  when  to  compel  its  pay- 
ment would  be  a  great  hardship  to  the 
defeated  party.  Baldwin  v.  Reardon, 
48  N.  Y.  Super.  Ct.  166  ;  Losee  v.  Bul- 
lard,  54  How.  Pr.  (N.  Y.  Supreme  Ct.) 
319.  In  this  case  it  was  held  that  the 
court  may,  before  granting  an  allow- 
ance in  a  difficult  and  extraordinary 
case,  scrutinize  the  merits  of  the  ap- 
plication. The  decision  in  Lane  v. 
Van  Orden,  11  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  C28,  to  the  effect  that  to  in- 
troduce the  consideration  of  hardship 
to  the  defeated  party  would  be  to  im- 
port a  factor  outside  the  statute,  has 
been  disapproved  in  subsequent  cases. 
Baldwin  v.  Reardon,  48  N.  Y.  Super. 
Ct.  166.  See  also  McConnell  v.  Man- 
hattan Constr.  Co.,  16  Civ.  Pro.  Rep. 
(N.  Y.  Supreme  Ct.)  310  ;  Burnett  v. 
Westfall,  15  How.  Pr.  (N.  Y.  Supreme 
Ct.)420. 

Fanishment. — It  has  been  held  that 
the  allowance  should  not  be  granted 
for  the  sole  purpose  of  punishing  the 
defeated  party.  Anonymous,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  317.  But 
conduct  on  the  part  of  an  applicant 
which  does  not  meet  the  approval  of 
the  court  may  be  considered.  Mitchell 
V.  Lane,  62  Hun  (N.  Y.)  253.  And  an 
allowance  may  properly  be  included 
with   the  fine  and  costs    in    contempt 


proceedings.  People  v.  Rochester, 
etc.,  R.  Co.,  76  N.  Y.  294 

Imposing  Terms. — Payment  of  an  al- 
lowance cannot  be  imposed  as  a  con- 
dition of  amendment  before  judg- 
ment. Merchants'  Exch.  Nat.  Bank  v. 
Commercial  Warehouse  Co.,  35  N.  Y. 
Super.  Ct.  214.  But  an  additional 
allowance  was  granted  plaintiff  after 
trial  and  after  delivery  of  the  report 
of  the  referee,  where  defendants  ap- 
plied for  leave  to  file  a  supplemental 
answer  ;  and  the  court  may  make  pay- 
ment of  such  allowance  a  term  of  the 
leave.  Mabie  v.  Adams,  i  N.  Y. 
Month.  L.  Bull.  65.  But  not  where  a 
demurrer  is  overruled  and  leave  to 
answer  given.  McDonald  v.  Mallory, 
46  N.  Y.  Super.  Ct.  58.  See  Williams 
V.  Kiernan,  4  N.  Y.  Month.  L.  Bull. 
41. 

Action  by  Wife. — Where,  in  an  action 
by  a  wife  for  a  separation,  the  defend- 
ant counterclaims  for  a  divorce,  and 
both  parties  fail,  held,  that  the  wife 
should  receive  an  additional  allowance 
to  repay  her  for  the  additional  expense 
she  was  put  to  by  reason  of  the  neces- 
sity of  meeting  the  charge  of  adul- 
tery. De  Meli  v.  De  Meli,  67  How. 
Pr.  (N.  Y.  Supreme  Ct.)  20. 

1.  Thus  the  allowance  will  be  re- 
fused where  plaintiff  recovers  a  sum 
much  less  than  that  claimed.  Fish  v. 
Forrance,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  317  ;  Sands  v.  Sands,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)453.  Also  where 
defendant  comes  in  and  confesses 
judgment.  Davison  v.  Waring,  9  How, 
Pr.  (N.  Y.  Supreme  Ct.)  254.  Or  where 
defendant  makes  a  sufficient  tender. 
Pratt  V.  Conkey,  15  How.  Pr.  (N.  Y. 
Supreme  Ct.)  27.  But  see  New  York 
F.  &  M.  Ins.  Co.  V.  Burrell,  9  How. 
Pr.  (N.  Y.  Supreme  Ct.)  398  ;  Pratt  v. 
Ramsdell,  16  How.  Pr.  (N.  Y.  Supreme 
Ct.)  59.  The  plaintiff  cannot  claim 
an  additional  allowance  where  the 
issue  litigated  was  solely  between  de- 
fendants. Poillon  V.  Cudlipp,  50  How. 
Pr.  (N.  Y.  Supreme  Ct.)  366.  The 
allowance  was  also  refused  where 
plaintiff  takes  judgment  after  answer 
for  want  of  an  affidavit  of  merits. 
Hall  V.  Parker,  7  N.  Y.  Leg.  Obs. 
138.  Or  on  a  felonious  answer.  Hale 
V.  Prentice,  i  Code  Rep.  (N.  Y.)  '81  ; 
Beers  v.  Squire,  i  Code  Rep.  (N.  Y.) 
84  ;  Rice  v.  Wright,  3  How.  Pr.  (N.  Y. 
Supreme  Ct.)  405.     Where  both  parties 


224 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Sefosed. 


4.  Special  Proceedings. — The  court  has  no  power  to  grant  allow- 
ances in  special  proceedings.^ 


failed.    Hall  v.  U.  S.  Reflector  Co.,  5 

N.  Y.  Month.  L.  Bull.  Where  defen- 
dants unnecessarily  severed  in  their 
answers.  Matthewson  v.  Thompson, 
9  How.  Pr.  (N.  Y.  Supreme  Ct,)  231  ; 
Tillman  v.  Powell,  13  How.  Pr.  (N.  Y. 
Supreme  Ct.)  117  ;  Fort  v.  Gooding,  9 
Barb.  (N.  Y.)  388.  Where  unnecessary 
actions  brought.  Sackett  v.  Ball,  4 
How.  Pr.  (N.  Y.  Supreme  Court)  71. 
And  where  the  cases  were  neither  difl5- 
cult  nor  extraordinary.  Dexter  v. 
Gardner,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  417  ;  Adams  v.  Herns,  29  Hun 
(N.  Y.)  280.  Also  where  plaintiff 
sued  in  formd  pauperis  and  recovered 
a  substantial  amount.  Marx  v.  Man- 
hattan R.  Co.  (Co.  Ct.),  3  N.  Y.  Supp. 
113.  An  extra  allowance  against  ex- 
ecutors is  governed  by  the  same  rules 
as  those  governing  the  question  of 
costs  against  them.  Niblo  v.  Binsse, 
31  How.  Pr.  (N.  Y.  Supreme  Ct.)  476. 

Party  Joined  at  his  Own  Bequest. — 
Where,  in  an  action  by  heirs  for  par- 
tition, the  executor  of  a  deceased 
owner  was  added  as  a  party  at  his  own 
request,  to  obtain  an  adjudication  of 
his  rights  as  executor,  and  before  the 
case  was  noticed  for  trial  the  heirs 
obtained  an  order  to  discontinue  upon 
payment  to  the  executor  of  $10,  held, 
no  additional  allowance  could  be  made. 
Woerman  v.  Baas  (Supreme  Ct.),  15 
N.  Y.  Supp.  469. 

Eecovery  on  Technical  Grounds. — An 
extra  allowance  will  not  be  granted  in 
an  action  to  recover  back  part  of  the 
sum  paid  to  a  city  in  payment  of  an 
assessment  subsequently  reduced  upon 
a  ground  purely  technical.  Schultze  v. 
New  York,  11  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  54. 

1.  Matter  of  Holden,  126  N.  Y.  589  ; 
Davis  V.  Rensselaer,  etc.,  R.  Co.,  55 
N.  Y.  145  ;  Matter  of  Simpson,  26  Hun 
(N.  Y.)  459  ;  Byrnes  v.  Labagh,  12  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  417; 
Matter  of  Barnett,  52  How.  Pr.  (N.  Y. 
Supreme  Ct.)  73;  Power  v.  Barr,  24 
Barb.  (N.Y.)  142;  Matter  of  New  York, 
etc.,  18  N.  Y.  Wkly.  Dig.  536;  Bonyn 
V.  New  York,  17  N.  Y.  Wkly.  Dig.  471  ; 
Peoj  le  V.  Security  L.  Ins.,  etc.,  Co., 
24  Hun  (N.  Y.)  596. 

Distribution  in  Foreclosure  Cases. — Nor 
in  applications  for  the  distribution  of 
surplus  money  on  a  foreclosure  sale, 
although  the  court  may  allow  a  suita- 


ble sum  for  costs  and  disbursements. 
New  York  L.  Ins.,  etc.,  Co.  v.  Vander- 
bilt,  12  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
458  ;  Hebrank  v.  Colell,  2  N.  Y.  Month. 
L.  Bull.  39  ;  Wellington  v.  Ulster  Ice 
Co.,  5  N.  Y.  Wkly.  Dig.  104;  German 
V.  Sharer,  25  Hun  (N.  Y.)  409  ;  McDer- 
motc  V.  Hennessy,  9  Hun  (N.  Y.)  59; 
Mowry  v.  Peet,  13  N.  Y.  Wkly.  Dig.  16. 

Condemnation  Proceedings — The  extra 
allowance  in  condemnation  proceed- 
ings provided  for  by  section  3372,  Code 
Civil  Procedure,  is  intended  as  an  in- 
demnity to  the  party  prevailing  for 
his  expenses  necessarily  or  reasonably 
incurred,  to  be  determined  from  the 
proofs  submitted  on  that  question. 
St.  Lawrence,  etc.,  R.  Co.  v.  DeCamp 
(Supreme  Ct.),  52  N.  Y.  St.  Rep.  10; 
Matter  of  Lake  Shore,  etc.,  R.  Co.,  65 
Hun  (N.  Y.)  538.  See  under  former 
practice.  Matter  of  New  York,  etc.,  R. 
Co.,  18  N.  Y.  Wkly.  Dig.  536. 

The  court  has  power  to  award  an 
additional  allowance  to  defendant 
in  condemnation  proceedings  even 
though  no  answer  was  interposed, 
provided  no  offer  to  purchase  was 
made.  Matter  of  Lake  Shore,  etc.,  R. 
Co.,  65  Hun  (N.  Y.)  538. 

Feigned  Issues. — An  allowance  can- 
not be  made  upon  a  trial  of  an  issue 
in  the  nature  of  a  feigned  issue.  Bur- 
ritt  V.  Silliman,  24  How.  Pr.  (N.  Y. 
Supreme  Ct.)  337. 

Mechanics'  Liens. — Prior  to  the  Me- 
chanics' Lien  Act  of  1885  it  was  held 
that,  under  the  law  as  it  then  stood 
(Laws  of  1875,  chapter  379),  no  author- 
ity existed  to  grant  extra  allowances. 
Ruth  V.  Jones,  i  N.  Y.  Month.  L.  Bull. 
61  ;  Hagan  v.  American  Baptist,  etc., 
Soc.  (C.  PI.),  6  N.  Y.  St.  Rep.  219; 
Randolph  v.  Foster,  3  E.  D.  Smith 
(N.  Y.)  648. 

But  under  the  later  statute  (Laws  of 
1885,  chapter  342),  section  7  of  which 
provides  that  the  lien  may  be  enforced 
in  a  civil  action,  it  has  been  held  that 
if  the  action  to  foreclose  the  lien  be 
difficult  and  extrordinary,  an  addi- 
tional allowance  may  be  granted. 
Lawson  v.  Reilly,  13  Civ.  Pro.  Rep. 
(N.  Y.  C.  PI.)  290;  Horgan  v.  McKen- 
zie  (C.  PI.),  43  N.  Y.  St.  Rep.  131. 
The  statute  fee  of  $60  under  section 
3252  Code  Civ.  Pro.  cannot,  however, 
be  allowed,  as  an  action  to  foreclose 
a    mechanics'    lien    is    not     properly 


I  Encyc.  PI.  &  Pr.— 15. 


225 


Where  Granted       ADDITIONAL    ALLOWANCES. 


or  Befused. 


5.  Where  Defendant  is  Entitled. — The  Code  provides  that  in 
certain  cases  the  defendant,  being  the  prevaiHng  party,  is,  as  well 
as  the  plaintiff,  entitled  to  additional  allowances.* 

6.  What  are  Difficult  and  Extraordinary  Cases. — Meaning  of  the  Term.— 
The  term  "difificult  and  extraordinary"  implies  something  more  and 
other  than  usual,  common,  and  ordinary  in  respect  to  the  skill 
and  labor  required,  or  in  the  time  occupied  in  the  preparation 
and  trial  of  a  cause,  or  both  ;*  the  words  of  the  Code  should  re- 


an  action  to  determine  a  claim  to  real 
property,  and  is  not  specially  included 
in  the  section.  Wright  v.  Rensens 
(Supreme  Ct.),  39  N.  Y.  St.  Rep.  802. 

1.  On  Counterclaim. — In  an  action 
to  rescind  an  agreement  to  purchase 
real  property,  where  the  defendant 
obtains  judgment  in  his  favor  upon 
his  counterclaim  demanding  specific 
performance,  the  court  may  grant  de- 
fendant an  allowance  based  on  the 
value  of  the  property.  Lahey  v.  Kort- 
right,  58  N.  Y.  Supe'r.  Ct.  576. 

Where  plaintiff  claimed  in  an  action 
for  breach  of  covenants  contained  in  a 
lease,  and  defendant  was  allowed  two 
thousand  dollars  on  a  counterclaim, 
being  nearly  one  fifth  of  plaintiff's 
claim,  it  was  held  that  an  extra  allow- 
ance to  defendants  was  properly  grant- 
ed. McCuUoch  V.  Dobson  (Supreme 
Ct.),  39  N.  Y.  St.  Rep.  908. 

Offer  to  Allow  Judgment. — A  defend- 
ant is  allowed  an  extra  allowance 
where  before  issue  joined  he  has 
served  an  offer  to  allow  judgment,  and 
the  plaintiff  has  failed  to  obtain  a  more 
favorable  recovery.  Hirschspring  v. 
Bol,  20  Abb.  N.  Cas.  (N.  Y.  City  Ct.) 
402.  See,  under  former  code,  McLees 
V.  Avery,  4  How.  Pr.  (N.  Y.  Supreme 
Ct.)44i  ;  Magnin  v.  Dinsmore,  47  How. 
Pr.  (N.  Y.  Super.  Ct.)  11. 

So,  also,  where  a  defendant  recovers 
a  judgment  for  the  costs  accruing  sub- 
sequent to  an  offer  to  allow  judgment 
to  be  taken  against  him,  such  judg- 
ment may,  under  proper  circumstances, 
be  made  the  basis  for  an  additional 
allowance.  Board  of  Comrs.  of  Pilots 
V.  Spofford,  3  Hun  (N.  Y.)  57.  So, 
also,  defendant  may,  in  a  proper  case, 
have  an  allowance  where  plaintiff  re- 
covers less  than  $50.  Brady  v.  Dur- 
brow,  2  E.  D.  Smith  (N.  Y.)  78. 

Discontinuance. — When  there  is  a  dis- 
continuance, a  defendant  cannot  obtain 
an  allowance  upon  a  greater  basis  than 
that  upon  which  plaintiff's  allowance 
would  have  been  computed  had  he 
succeeded.     McConnell  v.  Manhattan 


Constr.  Co.,  16  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  310. 

Death  of  Plaintiff  After  Verdict.— The 
right  of  a  defendant,  where  a  judg- 
ment is  rendered  in  his  favor,  to  an 
additional  allowance  is  not  affected  by 
the  death  of  one  of  the  plaintiffs  after 
verdict.  The  right  to  costs,  of  which 
the  allowance  was  part,  became  abso- 
lute the  moment  the  verdict  was  ren- 
dered, and  by  virtue  of  its  rendition. 
Arthur  v.  Schriever,  60  N.  Y.  Super. 
Ct.  59- 

Allowance  Befused. — Extra  costs  will 
not  be  given  where  defendants  have 
unnecessarily  severed  in  their  de- 
fences. Tillman  v.  Powell,  13  How. 
Pr.  (N.  Y.  Supreme  Ct.)  117.  And  they 
may  be  ordered  to  pay  costs  and  an  al- 
lowance. Fort  V.  Gooding,  9  Barb.  (N. 
Y.)  388.  Nor  will  an  extra  allowance 
be  made  where  two  defendants  appear 
by  different  attorneys  and  recover 
double  costs.  Matthewson  v.  Thomp- 
son, 9  How.  Pr.  (N.  Y.  Supreme  Ct.) 
231. 

Where  a  defendant  is  a  prevailing 
party  against  a  codefendant,  he  is  not 
entitled  to  costs  where  the  plaintiff  is 
so  entitled.  Devlin  v.  New  York,  15 
Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.)  34.  Nor 
if  the  only  issues  which  make  the  case 
a  difficult  and  extraordinary  one  are 
decided  in  favor  of  the  plaintiff.  Board 
of  Comrs.  of  Pilots  v.  Spofford,  4  Hun 
(N.  Y.)  74.  Nor  where  the  plaintiff  re- 
covers only  nominal  damages.  Mur- 
ray V.  Robinson,  9  Hun  (N.  Y.)  137  ; 
Pinder  v.  Stoothoff,  7  Abb.  Pr.  N.  S. 
(N.  Y.  Supreme  Ct.)  433. 

An  extra  allowance  should  not  be 
granted  to  one  whose  only  interest  is 
an  inchoate  right  of  dower  in  plaintiff's 
share,  nor  a  second  mortgagee.  Dore- 
mus  V.  Crosby,  66  Hun  (N.  Y.)  125. 

2.  Previous  to  1859  the  power  was 
conferred  to  order  additional  allow- 
ances of  costs  when  the  case  was 
either  difficult  or  extraordinary;  but 
in  that  year  the  provision  was 
changed,  rendering  it  necessary  that 


226 


Where  Granted       ADDITIONAL    ALLOWANCES. 


or  Befased. 


ceive  their  ordinary  popular  meaning.* 

No  General  Eule.— No  general  rule  can  be  laid  down  to  deter- 
mine what  cases  are  difficult  and  extraordinary;  each  case  will  be 
decided  upon  its  own  merits.'-* 


it  should  be  both  difficult  and  extra- 
ordinary before  any  allowance  could 
be  made.  See  Duncan  v.  DeWitt,  7 
Hun  (N.  Y.)  184;  also  remarks  of 
Barnard,  J.,  in  Woods  v.  Illinois, 
Cent.  R.  Co.,  20  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  285. 

Under  section  308  of  the  Code  of  Pro- 
cedure it  was  in  an  early  case  held  that 
all  litigated  trials  are  difficult  or  ex- 
traordinary.    Dyckman  v.  McDonald, 

5  How.  Pr.  (N.  Y.  Supreme  Ct.)  121; 
see  also  Niver  v.  Rossman,  5  How. 
Pr.  (N.  Y.  Supreme  Ct.)  153.  But  this 
construction  was  disapproved  in  later 
cases.  Fox  v.  Gould,  5  How.  Pr.  (N. 
Y.  Supreme  Ct.)  278;  Sands  v.  Sands, 

6  How.  Pr.  (N.  Y.  Supreme  Ct.>  454; 
Dexter  v.  Gardner,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)  417;  Howard  v.  Rome, 
etc.,  Plank  Road  Co.,  4  How.  Pr.  (N. 
Y.  Supreme  Ct.)  416;  Fox  v.  Fox,  22 
How.  Pr.  (N.  Y.  Supreme  Ct.)  454; 
Gooding  v.  Brown,  35  Hun  (N.  Y.) 
154.  See  Bostwick  v.  Menck,  40  N.  Y. 
383;  Colton  V.  Morrissy,  6  N.  Y.  Wkly. 
Dig.  165. 

1.  Duncan  v.  DeWitt,  7  Hun  (N.  Y.) 
184. 

2.  Discretion  of  the  Court. — Schwartz 
V.  Poughkeepsie  Mut.  F.  Ins.  Co., 
10  How.  Pr.  (N.  Y.  Supreme  Ct.) 
93.  The  discretion,  of  the  court 
is  absolute.  Morss  v.  Hasbrouck, 
13  N.  Y.  Wkly.  Dig.  393;  Union 
Bank  v.  Mott,  13  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  247.  And  the  deter- 
mination of  what  is  difficult  and  ex- 
traordinary involves  so  many  con- 
siderations addressed  to  this  discre- 
tion that  an  appellate  court  rarely  in- 
terferes. Morrison  v.  Agate,  9  N.  Y. 
Wkly.  Dig.  286;  Tolman  v.  Syracuse, 
etc.,  R.  Co.,  31  Hun  (N.  Y.)  397.  To 
justify  reversal,  a  clear  abuse  of  this 
discretion  must  be  shown.  Bryon  v. 
Durrie,  8  N.  Y.  Wkly.  Dig.  57,  6  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  135.  See 
also  People  v.  Albany,  etc.,  R.  Co.,  16 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  465; 
Gooding    v.   Brown,   35   Hun  (N.   Y.) 

153- 

Long  Trial. — It  has  been  held  that 
the  length  of  time  occupied  at  the 
trial  is  not,  of  itself  alone,  a  proper 
subject    for    consideration    in    deter- 


mining an  extra  allowance,  more  es- 
pecially if  the  defeated  party  in  no 
way  contributed  to  the  expenditure  of 
time.  Sands  v.  Sands,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)453.  But  the  extreme 
length  of  a  trial  may  render  a  case 
extraordinary.  Howard  v.  Rome,  etc.. 
Plank  Road  Co.,  4  How.  Pr.  (N.  Y. 
Supreme  Ct.)  416;  Fox  v.  Fox,  22 
How.  Pr.  (N.  Y.  Supreme  Ct.)  454; 
Fort  V.  Gooding,  9  Barb.  (N.  Y.)  388. 
See  also  Dexter  v.  Gardner,  5  How. 
Pr.  (N.  Y,  Supreme  Ct.)  417;  Powers 
V.  Wolcott,  12  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  565.  So  also  may  the 
examination  of  a  large  number  of 
expert  witnesses  in  a  case  where  the 
issues  were  bitterly  contested.  Mc- 
Culloch  V.  Dobson  (Supreme  Ct.),  39 
N.  Y.  St.  Rep.  908. 

Amount  Involved. — The  amount  in- 
volved may  properly  be  considered  ; 
as  the  fact  that  a  large  amount  of 
money  depends  upon  the  decision  of  a 
case  increases  the  responsibility  and 
anxiety  of  the  attorney,  and  justifies 
the  employment  of  eminent  counsel. 
Gooding  v.  Brown,  35  Hun  (N.  Y.) 
153.  Thus  in  an  action  concerning 
property  of  the  value  of  $80,000,  the 
rent  thereof  being  $8000,  and  the  de- 
cision involving  a  vexed  question  of 
law,  an  extra  allowance  of  $500  coun- 
sel fees  to  the  prevailing  party  was 
held  proper,  although  the  trial  of  the 
case  occupied  but  little  time.  Van- 
deveer  v.  Vanderveer  (Supreme  Ct.), 
I  N.  Y.  Supp.897.  So,  also,  where,  in 
an  action  of  contract,  plaintiff  asked 
judgment  for  $33,000  against  de- 
fendant, but  wholly  failed  to  maintain 
his  action,  upon  a  recovery  being  had 
against  plaintiff  an  additional  allow- 
ance was  held  proper.  Ract  v. 
Duviard-Dime,  4  N.  Y.  Supp.  161,  51 
Hun  (N.  Y.)  639.  So,  also,  where 
two  actions,  tried  together,  to  restrain 
the  removal  by  lessees  of  certain  per- 
sonal property  from  the  demised 
premises,  involved  the  title  to  such 
property,  the  value  of  which  was 
shown  in  one  case  to  be  $1000,  and 
in  the  other  $15,000;  held,  that  allow- 
ances, in  addition  to  costs,  of  $50  in 
the  former  case  and  $250  in  the  la.t^r, 
were  proper  and  reasonable  in  amount. 


227 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Befased. 


7.   On  Discontinuance. — An   additional   allowance  may  be  made, 
after  issue  joined,  upon  the  discontinuance  of  the  action.* 

I  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.) 
133;  Folsom  V.  Van  Wagoner,  7  Lans. 
(N.  Y.)  309,  14  Abb.  Pr.  N.  S.  (N.  Y.) 
44;  McDonald  v.  Mallory,  46  N.  Y. 
Super.  Ct.  58. 

Terms. — Held,  also,  that  the  court 
might  require  payment  of  such  allow- 
ance, in  a  proper  case,  as  a  condition 
of  allowing  the  discontinuance,  even 
where  there  is  an  objection  to  the 
jurisdiction.  Bright  v.  Milwaukee, 
etc.,  R.  Co.,  I  Abb.  N.  Cas.  (N.Y.  Su- 
preme Ct.)  14.  Or  as  a  term  of  setting 
aside  a  judgment.  Ellsworth  v.  Good- 
ing, 8  How.  Pr.  (N.  Y.  Supreme  Ct.)  i. 

Where  an  application  is  made  for 
leave  to  discontinue,  the  court  may  fix, 
in  a  proper  case,  the  amount  of  an 
extra  allowance  which  the  plaintiff 
should  pay  the  defendants  as  one  of 
the  conditions  of  leave  to  discontinue 
being  granted.  Society  of  New  York 
Hospital  V.    Coe,    15  Hun  (N.  Y.)  440. 

After  plaintiff  has  obtained  leave  to 
discontinue  upon  payment  of  the  ad- 
justable cosls,  the  defendant  may 
apply  for  and  obtain  an  order  for  an 
increased  allowance,  which,  in  order 
to  avail  himself  of  the  leave  to  discon- 
tinue, the  plaintiff  must  pay,  together 
with  the  adjustable  costs.  Moultonw. 
Beecher,  11  Hun  (N.  Y.)  192;  Society 
of  New  York  Hospital  v.  Coe,  15  Hun 
(N.  Y.)  440. 

To  Plaintiff's  Attorney. — Where  the 
parties  have  come  together  and  have 
agreed  to  discontinue  upon  payment 
of  costs  to  the  plaintiff,  the  court  may 
require,  as  a  condition  of  discontinu- 
ance, an  additional  allowance  to  be 
paid  to  the  plaintiff's  attorney.  Brown 
V.  Safeguard  Ins.  Co.,  7  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)345;  Bartow  z/.  Cleve- 
land. 7  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
339;  Bryon  v.  Durrie,  6  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  135.  See  also 
Danenhover  v.  March,  4  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  254;  Folsom  v.  Van 
Wagner,  14  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  44. 

Code  of  Procednre. — Under  the  former 
code  it  was  held  that  where  an  attach- 
ment suit  was  settled  before  trial  and 
before  judgment,  no  additional  allow- 
ance could  be  granted.  Brace  v.  Beatty, 
7  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  44. 
But  this  did  not  apply  to  equitable  ac- 
tions. The  statute  (now  appearing  as 
sec.   731  Code  Civ.  Pro.),  while  not  in 


Loeser  v.  Liebmann,  14  N.  Y.  Supp. 
569,  60  Hun  (N.  Y.)  579- 

Joinder  of  Several  Causes  of  Action. 
— Where  a  complaint  sets  forth  nine- 
teen different  causes  of  action,  most  of 
them  acquired  by  the  plaintiff  by  as- 
signment from  the  persons  in  whose 
favor  they  were  alleged  to  exist,  and 
the  trial  of  the  action,  as  well  as  the 
preparation  of  the  answer,  required 
the  examination  of  the  facts  of  each 
of  these  causes  of  action,  and  the  trial 
resulted  in  the  dismissal  of  the  com- 
plaint as  to  three  causes  of  action,  and 
in  judgment  in  favor  of  the  defend- 
ant upon  seven  causes  of  action  (upon 
which  the  complaint  demanded  judg- 
ment for  $11,422.20),  and  the  dismissal 
of  the  complaint  as  to  three  other 
causes  of  action,  and  in  favor  of  the 
plaintiff  upon  the  other  causes  of  ac- 
tion,— held,  that  the  case  was  both  diflS- 
cult  and  extraordinary,  and  that  allow- 
ances of  $500  to  the  defendant  and 
five  per  cent  to  the  plaintiff  upon  the 
amount  of  his  recovery  were  properly 
made.  Durant  v.  Abendroth,  48  Hun 
(N.  Y.)  16. 

Immaterial  Considerations.  —  On  the 
other  hand,  an  allowance  cannot  be 
made  where  the  only  difficulty  in  the 
case  is  caused  by  plaintiff  claiming 
more  than  he  is  entitled  to.  Hinman 
V.  Ryder,  44  N.  Y.  Super  Ct.  330.  Or 
by  a  counterclaim  as  to  which  plain- 
tiff does  not  succeed.  Lake  Erie,  etc., 
R.  Co.  V.  Carhart,  39  Hun  (N.  Y.) 
363.  Or  by  charges  in  the  complaint 
subsequently  withdrawn.  Hinman  v. 
Ryder,  44  N.  Y  Super  Ct*.  330.  Or  by 
an  anticipated  appeal.  People  v.  New 
York  Cent.  R.  Co.,  30  How.  Pr.  (N.  Y. 
Supreme  Ct.)  148. 

1.  Stallman  v.  Kimberly  (Supreme 
Ct.)  33  N.  Y.  St.  Rep.  313.  But  see 
People  V.  Ulster,  etc.,  R.  Co.,  128  N. 
Y.  240.  Receiving  costs  upon  the  dis- 
continuance of  an  action  does  not 
necessarily  prejudice  a  motion  for  ad- 
ditional allowance.  Moulton  v. 
Beecher,  i  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  245. 

Before  Trial. — It  was  held  under  sec- 
tion 309  of  the  former  Code  of  Pro- 
cedure that  an  extra  allowance  could 
be  granted  upon  plaintiff's  discontinu- 
ance before  trial.  Coffin  v.  Coke,  4 
Hun  (N.  Y.)  616;  Moulton  v.  Beecher, 
II  Hun  (N.  Y.)  192;  Robins  v.  Gould, 


228 


Where  Granted       ADDITIONAL   ALLOWANCES. 


or  Befased. 


8.  Only  One  Allowance. — An  allowance  can  be  granted  but  once 
in  the  action  ;*  it  cannot  be  granted  upon  any  interlocutory  judg- 
ment, where  leave  to  plead  over  is  given.* 


R 


terms  limited  to  common-law  actions, 
has  been  so  construed.     New  York  F. 

6  M.  Ins.  Co.  V.  Burrell,  9  How.  Pr. 
(N.  Y.  Supreme  Ct.)  398;  Connecti- 
cut River  Banking  Co.  v.  Voorhies, 
3  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  173; 
Pratt  V.  Ramsdell,  7  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  340,  note.  Sect.  385  of 
the  former  Code  of  Procedure  was  re- 
enacted  as  sec.  738  of  the  present  Code 
of  Civ.  Pro.  without  alteration.  This 
section  was  held  to  apply  to  foreclo- 
sure actions  where  an  order  for  a  per- 
sonal deficiency  was  asked.  Bathgate 
V.  Haskin,  63  N.  Y.  261. 

After  Discontinuance. — After  the  mak- 
ing of  an  order  of  discontinuance  the 
cause  is  at  an  end,  and  a  motion  for 
an  extra  allowance  cannot  then  be 
heard.  Harlem  Bridge,  etc.,  R.  Co. 
V.  Westchester,  76  Hun  (N.  Y.)  286. 

Tender. — In  foreclosure  plaintiff  is 
entitled  to  an  additional  allowance, 
notwithstanding  a  tender  of  the  prin- 
cipal, interest,  and  costs  before  hear- 
ing. Astor  J/.  Palache,  49H0W.  Pr.(N. 
Y.  C.  PI.)  231;  Bartow  v.  Cleveland,  7 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  339; 
Connecticut  River  Banking  Co.  v. 
Voorhies,  3  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  173;  New  York  F.  &  M.  Ins.  Co. 
V.  Burrell,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  398.     See   also    Brace  v.   Beatty, 

7  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  445. 
Notwithstanding  tender  of  costs  and 
notice  of  discontinuance,  the  com- 
plaint may  be  subsequently  dismissed 
and  an  allowance  granted  to  defend- 
ant.    Moffatt  V.  Ford,  14  Barb.  (N.  Y.) 

577- 

OflEer  to  Allow  Judgment.  —  Where 
plaintiff  accepts  defendant's  offer  of 
judgment  for  a  stated  amount  and 
costs,  the  court  has  no  power  to  grant 
an  extra  allowance.  Pool  v.  Osborn 
(Supreme  Ct.),  8  N.  Y.  Civ.  Pro.  Rep. 
232.  Where  defendant's  offer  of  judg- 
ment was  more  favorable  than  plain- 
tiff's actual  recovery,  an  additional  al- 
lowance may  be  granted  defendant. 
Landon  v.  Van  Etten  (Supreme  Ct.), 
32  N.Y.  St.  Rep.  439;  Hirschspring  v. 
Boc,  20  Abb.  N.  Cas.  (N.  Y.  City  Ct.) 
402,  13  Civ.  Pro.  (N.  Y.)  125.  But  see 
Magnin  v.  Dinsmore,  47  How.  Pr. 
(N.  Y.  Super.  Ct.)  11.  See  also  McLees 
V.  Avery,  4  How.  Pr.  (N.  Y.  Supreme 


Ct.)44i;  Penfield  v.  James,  56  N.  Y. 
659;  Austin  V.  Hartwig,  49  N.  Y. 
Super.  Ct.  259.  As  to  the  effect  of  an 
offer  to  allow  judgment  in  foreclosure 
cases  cutting  off  plaintiff's  right  to 
an  additional  allowance,  see  Coates  v. 
Goddard.  34  N.  Y.  Super.  Ct.  118; 
Astor  V.  Palache,  49  How.  Pr.  (N.  Y. 
C.  PI.)  231;  Bartow  v.  Cleveland,  7 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  339; 
Penfield  v.  James,  56  N.  Y.  659;  Pratt 
V.  Ramsdell,  7  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  340,  note. 

1.  Former  Code. — So  held  under  Code 
of  Procedure,  sec.  309.  Flynn  v.  Equi- 
table L.  Assur.  Soc,  18  Hun  (N.  Y.) 
212. 

2.  Given  for  the  Trial.  —  The  allow- 
ance is  given  for  the  trial  of  the  action, 
not  for  the  appeals.  Wolfe  v.  Van 
Nostrand,  2  N.  Y.  570.  The  case  of 
Eldridge  v.  Strenz,  39  N.  Y.  Super.  Ct. 
295,  which  held  that  after  the  Court 
of  Appeals,  on  appeal  from  an  order 
granting  a  new  trial,  has  rendered  a 
judgment  absolute,  the  court  below 
should  not  grant  an  allowance,  is  op- 
posed to  the  holding  in  Parrott  v. 
Sawyer,  26  Hun  (N.  Y.)  466.  See  re- 
marks on  these  cases  in  the  opinion  of 
Gildersleeve,  J.,  in  Monnet  v.  Merz,  30 
Abb.  N.  Cas.  (N.  Y.  Super.  Ct.)  282. 

Partition  Suits. — Where,  on  a  decree 
for  partition  and  sale,  an  additional 
allowance  is  made,  a  further  allow- 
ance cannot  be  made  in  the  same  action 
upon  the  making  of  the  subsequent 
decree  confirming  the  sale  and  direct- 
ing the  distribution  of  the  proceeds. 
Brewer  v.  Brewer,  11  Hun  (N.  Y.)  147, 
affirmed  72  N.  Y.  603. 

Partnership  Suits. — In  partnership  ac- 
tions the  allowance  cannot  be  made 
in  the  interlocutory  judgment  award- 
ing the  reference  and  appointing  a  re- 
ceiver. Spitz  V.  Tousey,  22  N.  Y.  Wkly. 
Dig.  446. 

Judgment  Set  Aside. — The  allowance 
being  made  upon  a  judgment,  if  this 
judgment  is  set  aside  all  the  incidents, 
of  which  the  allowance  is  one,  are  also 
set  aside  and  vacated.  Union  Trust 
Co.  V.  Whiton,  17  Hun  (N.  Y.)  593. 
The  Code  contemplates  but  one  allow- 
ance, and  that  only  upon  final  judg- 
ment. De  Stuckle  v.  Tehuantepec  R. 
Co.,    30    Hun  (N.   Y.)    34;    Monnet  v. 


229 


How  Computed.       ADDITIONAL   ALLOWANCES. 


Basis. 


V.  How  Allowance  Computed. —  1.  Basis  of  Allowance.  —  The 
amount  of  the  allowance,  within  the  limit.s  prescribed  by  the 
statute,*  is  entirely  discretionary  with  the  Special  Term  ;*  the 
amount  of  the  claim,  or  recovery,  is  the  limit,  not  the  measure, 
of  the  allowance.* 

The  additional  allowance  may  be  computed  upon  the 
subject-matter    of     the     action*     or     upon     the     amount     re- 


Merz,  30  Abb.  N.  Cas.  (N,  Y.  Super. 
Ct.)  281  ;  Bank  of  Mobile  v.  Phoenix 
Ins.  Co.,  8  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  212  ;  Merchants'  Exch.  Nat. 
Bank  v.  Commercial  Warehouse  Co., 
35  N.  Y.  Super.  Ct.  214  ;  McDonald  v. 
Mallory,  46  N.  Y.  Super.  Ct.  58. 

Ejectment. — Upon  the  second  trial  of 
an  ejectment  granted  under  section 
1525  of  the  Code  the  court  may  grant 
an  extra  allowance,  although  one  was 
granted  and  paid  upon  the  first  trial, 
and  although  the  two  allowances  to- 
gether exceed  five  per  cent  of  the 
value  of  the  property  in  dispute.  Wing 
V.  De  La  Rionda  (B'klyn  City  Ct.),  39 
N.  Y.  St.  Rep.  119  ;  approved  in  Bol- 
ton V.  Schriever  (Ct.  App.),  47  N.  Y. 
St.  Rep.  870  ;  on  appeal,  131  N.  Y.  422. 
See  also  Stallman  v.  Kimberly  (Su- 
preme Ct.),  33  N.  Y.  St.  Rep.  813;  Hoag 
V.  Greenwich  (Supreme  Ct.),  39  N.  Y. 
St.  Rep.  975. 

1.  Limits  of  Allowance. — The  allow- 
ance to  any  single  plaintiff,  or  to  any 
number  of  plaintiffs,  cannot  exceed 
$2000  ;  nor  can  the  allowance  to  any 
single  defendant  or  to  any  number  of 
defendants  exceed  that  sum.  The  lim- 
its are  $2000  to  each  side,  or  $4000  in 
all.  See  Noyes  w.  Children's  Aid  Soc, 
3  Abb.  N.  Cas.  (N.  Y.  Ct.  App.),  37, 
note  ;  Allis  v.  Wheeler,  56  N.  Y.  50. 
The  statutory  restriction  has  no  appli- 
cation on  a  motion  for  favor.  New 
York,  etc.,  R.  Co.  v.  Thorne,  i  How. 
Pr.  N.  S.  (N.  Y.  Supreme  Ct.)  190. 

Disbursements  not  Incladed. — In  com- 
puting the  extra  allowance,  the  fees 
paid  to  the  court  stenographer  are  not 
to  be  considered  ;  they  are  a  disburse- 
ment merely,  and  not  properly  costs. 
Down  V.  McGourkey,  15  Hun  (N.  Y.) 
444,  78  N.  Y.  614.  So,  also,  the  allow- 
ance to  a  guardian  in  partition  is  not 
included  in  or  limited  by  the  sum  of 
$2000  fixed  by  section  3254.  Weed  v. 
Paine,  31  Hun  (N.  Y.)  10. 

Limit  in  Foreclosure. — In  actions  to 
foreclose  a  mortgage  on  real  property, 
the  allowances  are  limited  to  $60  by 
the   statute   and    $200    by   the  court. 


Note  to  Pool  V.  Osborn,  8  Civ.  Pro. 
Rep.  (N.  Y.  Supreme  Ct.)  232  ;  Weed 
V.  Paine,  4  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  305.  In  no  case  may  the 
allowances  exceed  five  per  cent  of  the 
amount  claimed.  Lane  v.  Van  Orden, 
II  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.) 
228. 

2.  Union  Bank  v.  Mott,  13  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  247. 

3.  People  V.  New  York  Cent.  R.  Co., 
30  How.  Pr.  (N.  Y.  Supreme  Ct.)  148. 
The  words  "amount  of  recovery  or 
claim  "  indicate  and  mean  that  the  re- 
covery or  claim  shall  be  for  a  sum  of 
money;  the  word,  "subject-matter 
involved  "  being  used  to  cover  all  other 
cases.  Coates  v.  Goddard,  34  N.  Y. 
Super.  Ct.  ii8. 

4.  Subject  matter  in  Actions  relating  to 
Land. — In  an  action  for  partition,  the 
value  of  the  whole  property,  and  not 
the  value  alone  of  plaintiff's  share,  is 
the  subject-matter  involved.  Doremus 
V.  Crosby,  66  Hun  (N.  Y.)  125.  So  in 
trespass  to  real  property,  where  the 
question  of  title  is  the  paramount  is- 
sue, the  allowance  may  be  computed 
upon  the  value  of  the  property  in- 
stead of  the  amount  of  damages.  The 
cases  recognize  a  broad  distinction  be- 
tween an  action  of  trespass  to  recover 
damages  based  on  actual  possession 
and  an  action  which  involves  the 
right  to  the  possession  of  the  land: 
in  the  latter  tase  the  question  of  title 
is  involved;  but  not  in  the  former,  as 
title  is  presumed.  Warren  v.  Buck- 
ley, 2  Abb.  N.  Cas.  (N.  Y.  Supreme 
Ct.)  323.  Similarly,  in  an  action  to 
abate  a  nuisance,  the  subject-matter 
involved  being  the  nuisance  and  the 
damages  caused  thereby,  the  allow- 
ance is  Computed  upon  the  amount  of 
the  damages,  not  upon  the  value  of 
the  property.  Rothery  v.  New  York 
Rubber  Co.,  24  Hun  (N.  Y.)  172,  90  N. 
Y.  30.  So,  also,  where,  in  an  action  by 
an  abutting  owner,  the  referee  found 
$800  fee  damage,  held,  that  this 
amount  represented  the  subject-matter 
involved.     Dode  z/.  Manhattan  R.  Co., 


230 


How  Computed.       ADDITIONAL  ALLOWANCES. 


Basis. 


70  Hun  (N.  Y.)  376.  So  in  an  action 
to  enforce  a  covenant  in  the  nature  of 
a  building  restriction,  the  easement  is 
the  subject-matter  involved.  Lattimer 
V.  Livermore,  72  N.  Y.  174;  Atlantic 
Dock  Co.  V.  Libby,  45  N.  Y.  504. 

So,  in  an  action  by  a  purchaser  to 
recover  back  his  deposit  and  expenses 
of  search  of  title,  held,  that  these 
were  the  subject-matter  involved,  and 
not  the  land.  Moore  v.  Appleby,  36 
Hun  (N.  Y.)  371,  108  N.  Y.  237.  And 
in  an  action  by  a  judgment  creditor  to 
set  aside  a  fraudulent  conveyance,  the 
additional  allowance  was  computed 
upon  the  amount  of  plaintiff's  judg- 
ment, and  not  upon  the  value  of  the 
land.  Potter  v.  Farrington,  24  Hun 
(N.  Y.)  551;  Hoos  V.  Person,  15  N.  Y. 
Wkly.  Dig.  530;  Remington  Paper  Co. 
V.  O'Dougherty,  18  N.  Y.  Wkly.  Dig. 
190;  Baldwin  v.  Reardon,  48  N.  Y. 
Super.  Ct.  166.  The  subject-matter 
of  the  action  is  the  primary  right 
sought  to  be  enforced;  Christopher 
St.,  etc.,  R.  Co.  V.  Twenty-third  St. 
R.  Co.  (Supreme  Ct.),  48  N.  Y.  St. 
Rep.  805. 

In  an  action  by  a  taxpayer  to  restrain 
a  town  from  carrying  out  a  contract  to 
build  a  bridge,  held,  that  the  contract 
price  is  the  proper  basis  for  an  allow- 
ance. Barker  v.  Oswegatchie,  62  Hun 
(N.  Y.)  208. 

In  an  action  f6r  royalties  on  produc- 
tion of  a  dramatic  composition,  where 
the  complaint  alleged  a  contract  to  pay 
fifteen  dollars  for  each  performance, 
and  [alleged  there  had  been  300  per- 
formances, held,  that  this  furnished  a 
sufficient  basis  for  calculating  an  al- 
lowance. Carpenter  v.  Shook  (Su- 
preme Ct.),  43  N.  Y.  St.  Rep.  226. 

Proof  of  Value. — In  an  action  of 
ejectment,  where  there  was  no  proof 
of  the  value  of  the  lands  in  question, 
it  was  held  that  an  allowance  to  the 
defendant  might  be  computed  upon 
the  amount  of  damages  ^claimed  by 
the  plaintiff.  Rank  v.  Grote,  50  N.  Y. 
Super.  Ct.  275.  And  where  it  was 
sought  to  restrain  the  enforcement  of 
a  judgment  in  summary  proceedings 
to  regain  possession,  it  was  held  that 
the  value  of  the  leasehold,  and  not  of 
the  freehold,  was  the  proper  basis. 
Sheehy  v.  Kelly,  33  Hun  (N.  Y.)  543. 

Attachment. — Where  an  attachment 
has  been  vacated  upon  giving  bond, 
the  amount  of  the  additional  allow- 
ance is  properly  computed  on  the 
amount  of  the  bond  which  takes  the 


place  of  the  attached  property.  Han- 
over Bank  v.  Linneworth,  7  Hun  (N. 
Y.)  234.  But  if  the  sheriff  has  made 
no  return  of  appraisal  of  value,  it  is 
for  the  plaintiff  to  establish  by  affi- 
davit or  otherwise  the  value  of  the 
property  attached.  Fetchman  w.  Dav- 
enport, 8  Civ.  Pro.  Rep.  (N.  Y.  City 
Ct.)  220. 

Bank  Stock. — Where  the  precise  value 
of  bank  stock  is  not  shown,  the  pre- 
sumption may  in  some  cases  be  made, 
for  the  purpose  of  computing  the  al- 
lowance, that  it  is  worth  par.  Smith  v. 
Baker,  42  Hun  (N.  Y.)  504.  But  the 
value  of  bank  stock  must  as  a  rule  be 
proved.  Weeks  v.  Silver  Islet  Con- 
solidated Min.,  etc.,  Co.,  32  N.  Y.St. 
Rep.  417. 

Trade-mark — Where,  by  affidavit,  ^ 
trade-mark  is  proved  to  be  worth 
$50,000  at  least,  and  the  profits  upon 
it  to  be  worth  $3000  a  year,  an  allow- 
ance of  $250  was  held  properly  made. 
Waterman  v.  Shipman  (Supreme  Ct.), 
47  N.  Y.  St.  Rep.  418.  But  where  un- 
defined and  unascertained  interests, 
dependent  wholly  upon  the  result  of 
previous  inquiry,  are  in  question  and 
the  main  relief  is  denied,  there  is 
nothing  upon  which  an  allowance 
may  be  based.  So  held  in  an  action 
to  restrain  infringement  of  a  trade- 
mark and  for  incidental  damages 
from  alleged  profits,  where  it  was 
held  plaintiff  failed  in  establishing  a 
right  to  the  trade-mark,  no  sum  being 
therefore  recovered  or  claimed,  and 
the  "subject-matter  involved,"  i.e., 
the  trade-mark,  having  no  value,  and 
being,  indeed,  non-existent.  Jaeger 
V.  Le  Boutillier,  63  Hun  (N.  Y.)  297. 
In  an  action  for  damages  for  the  in- 
fringement of  a  trade-mark  and  for 
an  injunction  to  restrain  the  use  of  it, 
it  was  held  that  the  allowance  should 
be  computed  upon  the  value  of  the 
trade-mark,  and  not  merely  upon  the 
amount  of  damages  recovered.  Munro 
V.  Smith,  23  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  275.  In  this  case  the  un- 
contradicted testimony  of  the  plaintiff 
was  that  the  value  of  the  trade-mark 
was  $50,000,  and  that  he  had  expended 
that  sum  in  advertising  it;  and  the  al- 
lowance was  ''omputed  upon  this  sum. 
The  case  is  distinguished  from  the 
somewhat  similar  case  of  Coates  v. 
Goddard,  34  N.  Y.  Super.  Ct.  118, 
upon  the  ground  that  there  the  trade- 
mark and  its  infringement  constituted 
the  subject-matter  involved,  the  plain- 


231 


How  Computed.       ADDITIONAL   ALLOWANCES. 


Baiis. 


covered*  or  claimed  ;'^  and  the  amount  of  a  counterclaim  may 


tiff  had  not  recovered  a  money  judg- 
ment, but  merely  one  decreeing  an 
injunction  perpetual,  and  no  money 
value  was  shown  to  attach  to  the  trade- 
mark apart  from  the  article  to  which 
it  was  a  trade-mark.  The  case  is  not 
authority  for  the  general  proposition 
that  additional  allowances  may  be 
granted  in  suits  for  injunctions  to 
prevent  infringements  of  trade-marks, 
or  in  cases  where  merely  equitable 
rights  susceptible  of  a  money  value 
are  involved.  In  Munro  v.  Smith 
(Supreme  Ct.),  25  N.  Y.  St.  Rep.  624, 
the  actual  value  of  the  trade-mark 
was  proved  by  uncontradicted  evi- 
dence. Christopher  St.,  etc.,  R.  Co.  v. 
Twenty-third  St.  R.  Co.  (Supreme  Ct.), 
48  N.Y.  St.  Rep.  805.  See  also  Collins 
V.  Reynolds'  Card  Mfg.  Co.,  2  N.  Y. 
Month.  L.  Bull.  45. 

Proper  Basis. — The  value  of  the  prop- 
erty to  be  directly  affected  by  the  re- 
sult of  the  action  forms  the  proper 
basis  for  computing  the  percentage. 
People  V.  Albany,  etc.,  R.  Co.,  16 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  465  ; 
Coleman  v.  Chauncey,  7  Robt.  (N.  Y.) 
579.  Property  or  rights  having  an 
ascertainable  value  in  money  must  be 
directly  involved.  People  v.  Adams, 
128  N.  Y.  129  ;  Munro  v.  Smith  (Su- 
preme Ct.),  25  N.  Y.  St.  Rep.  624. 

1.  Amount  Eecovered. — Where  the  re- 
covery is  of  a  specified  sum  and  in- 
terest, the  allowance  is  computed  upon 
the  total  sum  of  principal  and  interest. 
Clegg  V.  Aikens,  17  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  88  ;  Struthers  v. 
Pearce,  51  N.  Y.  357.  Whether,  in  the 
computation,  interest  should  first  be 
added  to  the  verdict  is  not  clear.  Sinne 
V.  New  York,  8  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  252  ;  Bord  v.  New  York 
etc.,  R.  Co.,  14  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  496,  6  Civ.  Pro.  Rep.  (N. 
Y.)  222.  In  the  former  case,  an  action 
for  causing  death,  it  was  held  that  the 
additional  allowance  should  be  com- 
puted upon  the  amount  awarded  by 
the  jury,  but  not  on  that  sum//«j  the 
interest  which  sec.  1904  Code  Civ.  Pro. 
directs  the  clerk  to  add.  Where  the 
action  is  for  a  personal  injury,  the 
court  may  make  an  extra  allowance 
upon  the  verdict.  Gale  v.  New  York 
Cent,  etc.,  R.  Co.,  53  How.  Pr.  (N.  Y. 
Supreme  Ct.)  385.  If  no  amount  be 
claimed  in  either  complaint  or  answer, 
the  allowance  should  be  based  upon 


the  amount  recovered  in  the  judgment. 
Tolan  V.  Carr,  12  Daly  (N.  Y.)  520. 
Where  complaint  demanded  such  sum 
as  may  be  due  plaintiff  on  an  account- 
ing, and  no  sum  is  mentioned,  held, 
that  no  data  existed  for  computing  an 
allowance.  Coleman  v.  Chauncey,  7 
Robt.  (N.  Y.)  578  ;  People  v.  Albany, 
etc.,  R,  Co.,  16  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  465.  The  extra  allowance 
may  be  computed  upon  the  amount  re- 
covered as  fee  damage  in  an  action 
against  an  elevated  railroad.  Dode  v. 
Manhattan  R.  Co.,  70  Hun  (N.  Y.)  370; 
Hamilton  v.  Manhattan  R.  Co.,  24 
Abb.  N.  Cas.  (N.  Y.  Super.  Ct.)  156. 
29  N.  Y.  St.  Rep.  28. 

2.  Amount  Claimed.  —  Plaintiff's  al- 
lowance cannot  be  based  upon  the 
amount  of  damages  claimed.  Saratoga, 
etc.,  R.  Co.  V.  McCoy,  9  How.  Pr.  (N. 
Y.  Supreme  Ct.)  339  ;  Lahey  v.  Kort- 
right,  (Super.  Ct.)  32  N.  Y.  St.  Rep. 
112  ;  DeLancey  v.  Piepgras,  76  Hun 
(N.  Y.)  70.  It  is  only  where  the  de- 
fendant recovers  judgment  that  the 
allowance  can  be  computed  upon  the 
amount  claimed.  Wilkinson  v.  Tif- 
fany, 4  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
98  ;  Coates  v.  Goddard,  34  N.  Y.  Super. 
Ct.  118.  Where  plaintiff,  with  his 
summons,  serves  a  notice  of  claim 
naming  a  specific  sum,  this  is  plain- 
tiff's statement  of  the  amount  in- 
volved, and  he  cannot  be  heard  to  say, 
upon  defendant's  motion  for  an  allow- 
ance, that  the  notice  is  a  nullity. 
Adams  v.  Arkenburgh,  106  N.  Y.  615. 
So  where,  in  ejectment,  plaintiff  at 
the  trial  limited  his  claim  to  part  only 
of  the  premises  set  out  in  the  com- 
plaint, held,  that  defendant's  allow- 
ance was  properly  computed  upon  the 
value  of  the  entire  premises.  Burton 
V.  Tremper,  27  N.  Y.  Wkly.  Dig.  246. 
So  also  where  the  only  evidence  of 
value  of  the  subject-matter  was  con- 
tained in  the  undertaking  issued  by 
the  plaintiff,  this  was  held  to  form  the 
basis  of  allowance.  National  Steam- 
ship Co.  V.  Sheahan  (Ct.  App.),  11  N. 
Y.  St.  Rep.  891.  And  where  the  com- 
plaint contained  no  statement  of  an 
amount,  but  plaintiff's  counsel  in  his 
opening  virtually  claimed  an  amount, 
the  latter  was  taken  as  a  statement  of 
the  subject-matter  involved.  Rutty 
V.  Person,  6  Civ.  Pro.  Rep.  (N.  Y. 
Super.  Ct.)  25. 

Defendant's  Allowance. — And    where 


232 


How  Computed.        ADDITIONAL  ALLOWANCES.       Subject-matter. 

also  be  taken  into  account.* 

2.  Subject-matter  Involved. — The  word  "  involved  "  in  this  con- 
nection means  "affected."* 

In  an  action  of  ejectment  the  real  property  is  the  subject-mat- 
ter involved  ; '  in  personal  actions,  the  amount  of  the  personal 
property.'* 


defendant  recovers  a  balance  under  a 
counterclaim,  the  amount  of  his  extra 
allowance  may  be  calculated  on  the 
plaintiff's  claim,  not  upon  the  sum  re- 
covered only.  Vilmar  v.  Schall,  6i 
N.  Y.  564.  In  an  action  to  enforce 
certain  judgments  against  real  prop- 
erty upon  which  defendant  held  a 
mortgage,  held,  defendant's  additional 
allowance  was  properly  computed 
upon  the  amount  of  plaintiff's  claim, 
although  the  land  was  ordered  sold. 
Remington  Paper  Co.  v.  O'Dougherty, 
18  N.  Y.  V^kly.  Dig.  190.  See  also 
Potter  V.  Farrington,  24  Hun  (N.  Y.) 
551  ;  Noyes  v.  Children's  Aid  Soc,  3 
Abb.  N.  Cas.  (N.  Y.  Ct.  App.)  36  ; 
Sentenis  v.  Ladew,  140  N.  Y.  463. 

1.  Amount  of  Counterclaim. — In  an  ac- 
tion to  recover  a  sum  certain,  where 
the  defence  was  a  set-off,  the  plaintiff 
was  held  entitled  to  an  allowance  not 
merely  upon  the  amount  of  his  recov- 
ery, but  also  upon  the  set-off.  Barclay 
V.  Culver,  4  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  365  ;  Lissberger  v.  Schoen- 
berg  Metal  Co.,  2  N.  Y.  City  Ct.  Rep. 
158;  Woonsocket  Rubber  Co.  v.  Rubber 
Clothing  Co.,  i  Civ.  Pro.  Rep.  (N.  Y.) 
350.  But  no  allowance  will  be  made 
plaintiff  upon  a  counterclaim  where 
the  complaint  is  dismissed.  Hammann 
V.  Jordan  (Super.  Ct.),  36  N.  Y.  St. 
Rep.  434.  Nor  where  by  establishing 
a  counterclaim  defendant  reduces 
plaintiff's  recovery.  New  York  v.  Car- 
hart,  39  Hun  (N.  Y.)  363.  Nor  where 
the  counterclaim  was  necessarily  de- 
feated by  the  success  of  the  plaintiff. 
Barnes  v,  Denslow  (Supreme  Ct.),  30 
N.  Y.  St.  Rep.  315.  The  court  may 
base  the  allowance  upon  the  amount 
both  of  the  recovery  and  of  the  coun- 
terclaim disallowed.  Woonsocket  Rub- 
ber Co.  V.  Rubber  Clothing  Co.,  62 
How.  Pr.  (N.  Y.  Supreme  Ct.)  180. 
But  see  Devlin  v.  New  York,  15  Abb. 
Pr.  N.  S.  (N.  Y.  C.  PI.)  31,  where  it  was 
held  that  this  could  not  be  done  if  the 
counterclaim  was  defeated  upon  the 
same  evidence  as  was  necessary  to 
sustain  a  recovery.  The  fact  that  at 
the  trial  defendant  offers  to  admit  lia- 


bility should  not  deprive  plaintiff  of 
his  additional  allowance  if  otherwise 
proper.  Austin  v.  Hartwig,  49  N.  Y. 
Super.  Ct.  256. 

2.  Williams  v.  Western  Union  Tel. 
Co.,  61  How.  Pr.  (N.  Y.  Super.  Ct.)  305, 
I  Civ.  Pro.  Rep.  (N.  Y.)  294.  The  words 
"subject-matter  involved"  are  not 
used  in  the  same  or  a  kindred  sense 
with  "recovery"  or  "claim;"  they 
refer  to  those  cases  in  which  the  sub- 
ject-matter involved  in  the  action  has 
a  material  existence.  Devlin  v.  New 
York, 15  Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.)  31. 

3.  Devlin  v.  New  York,  15  Abb.  Pr. 
N.  S.  (N.  Y.  C.  PI.)  31.  Where  plaintiff 
sought  the  destruction  and  removal  of 
dock  property,  in  part  as  a  public  nui- 
sance and  in  part  as  a  purpresture, 
held,  that  the  value  of  the  property 
was  the  subject-matter  involved.  Peo- 
ple V.  New  York,  etc.,  Ferry  Co.,  7 
Hun  (N.  Y.)  113.  So,  where  plaintiff 
sought  to  have  certain  deeds  of  land 
declared  mortgaged,  a  successful  de- 
fendant was  granted  an  allowance 
based  upon  the  whole  value  of  the 
property  covered.  Burke  v.  Candee, 
63  Barb.  (N.  Y.)  552;  Coleman  v. 
Chauncey,  7  Robt.  (N.  Y.)  578.  The 
primary  relief  sought,  and  not  relief 
incidentally  claimed,  determines  the 
subject-matter  of  the  action.  Gray  v. 
Robjohn,  i  Bosw.  (N.  Y.)  618  ;  Smith 
V.  St.  Philip's  Church,  107  N.  Y.  610. 
In  partition,  the  value  of  the  whole 
property  in  question  is  the  subject- 
matter  involved.  Doremus  v.  Crosby, 
66  Hun  (N.  Y.)  125. 

4.  Hagenbuckle  v.  Schultz,  69  Hun 
(N.  Y.)  183  ;  Remington  Paper  Co.  v. 
O'Dougherty,  18  N.  Y.  Wkly.  Dig.  190  ; 
Ogdensburg  v.  Vermont,  63  N.  Y.  176  ; 
Sickles  V.  Richardson,  14  Hun  (N.  Y.) 
no;  Williams  z/.  Western  Union  Tel. 
Co.,  61  How,  Pr.  (N.  Y.  Super.  Ct.)  305; 
Mingay  v.  Holly  Mfg.  Co.,  99  N.  Y. 
270. 

Counsel's  Stipulation. — Counsel  may, 
by  stipulation,  fix  the  amount  involved 
in  the  controversy.  Board  of  Comrs. 
of  Pilots  V.  Spofford,  47  How.  Pr. 
(N.  Y.  Supreme  Ct.)  479. 


233 


ADDRESS. 

I.  In  Chancery  Practice,  234. 
IL  Under  Code  Practice,  236. 


I.  In  Chancery  Practice. — In  chancery  practice  the  address  is 
that  technical  part  of  a  bill  which  contains  the  appropriate  de- 
scription of  the  court.* 

Form  of  Address  of  Bill.— In  England  the  bill,  under  the  old  chan- 
cery practice,  was  addressed  to  the  person  or  persons  who  had  the 
actual  custody  of  the  great  seal  at  the  time  the  bill  was  filed.* 

As  the  address  of  the  bill  determined  who  was  to  hear  the  case, 
it  was  a  subject  of  more  importance  in  the  early  days  of  chancery 
practice  than  now,  when  the  jurisdiction  of  chancery  courts  is  de- 
fined by  statute.* 

1.  Story  on  Eq.  PI.  §  26. 
That  part  of  a  bill  which  contains  the 

names  and  description  of  the  persons 
exhibiting  the  bill,  commonly  called  in 
the  bill  by  the  title  of  "  your  orators 
and  oratrixes,"  is  what  is  technically 
known  as  the  "introduction."  Story 
on  Eq.  PI.  §  26. 

This  article  treats  only  the  subject  of 
"  Address  "  proper,  and  so  much  of  the 
subject  of  "Introduction"  as  deals 
with  the  place  of  abode  of  the  parties. 

2.  Daniell  on  Ch.  PI.  &  Pr.,  vol.  i, 
p.  358.  But  if  the  seals  were  in  the 
queen's  own  hand  the  bill  was  ad- 
dressed to  her.  The  following  is  the 
form  given  by  Daniell:  "To  the 
Queen's  Most  Excellent  Majesty  in 
her  High  Court  of  Chancery." 

Petition. — A  petition  in  chancery  was 
addressed  to  the  Lord  Chancellor  or  to 
the  Master  of  the  Rolls.  Daniell  on 
Ch.  PI.  &  Pr..  vol.  2,  1604. 

Form  used  in  U.  S.  Courts. — "Every 
bill  in  the  introductory  part  thereof 
shall  contain  the  names,  places  of 
abode,  and  citizenship  of  all  the  par- 
ties, plaintiffs  and  defendants,  by  and 
against  whom  the  bill  is  brought.  The 
form,  in  substance,  shall  be  as  fol- 
lows:  "To  the  Judges  of  the  Circuit 
Court  of  the  U.  S.  for  the  district  of 
:  A.   B.,  of and  a  citizen  of 


the  state  of ,  brings  this  his  bill 

against  C.  D.,  of and  a  citizen  of 

the  state  of ,  and  thereupon  your 

orator  complains  and  says  that."  20 
Eq.  Rules  Sup.  Ct.  U.  S. 

New  York. — The  form  under  the  old 
chancery  practice  in  New  York  was  : 
"To  the  Honorable  James  Kent, 
Chancellor  of  the  State  of  New  York." 
Blake's  Chan.  Pr.  27. 

Tennessee. — The  following  form  is 
used  in  Tennessee:  "To  the  Honor- 
able John  P.  Smith,  Chancellor  of  the 
First  Chancery  Division,  holding  the 
Chancery  Court  at  Dandridge."  Gib- 
son's Suits  in  Chancery,  §  186. 

The  Bill  is  addressed  to  the  Officer,  not  to 
the  man  ;  therefore  his  name  may  be 
omitted  entirely  and  only  his  official 
designation  as  "chancellor"  given. 
Gibson's  Suits  in  Chancery,  §  186. 

3.  Chancellor  a  Party. — When  the 
lord  chancellor  was  a  party  the  bill 
was  addressed  to  the  queen  herself. 
Daniell  on  Ch.  PI.  &  Pr.,  vol  i,  358. 

But  the  queen  did  not  hear  the  case 
herself,  but  always  referred  it  to  some 
judges.  The  master  of  the  rolls  and 
one  of  the  chief  justices  sat  to  decide  a 
case  wherein  the  lord  chancellor  was 
a  party.  Lord  Keeper  v.  Wyld,  i 
Vern  139. 

It  seems  from  a  note  in  Daniell  on 


234 


In  Chancery  Practice. 


ADDRESS. 


In  Chancery  Practice. 


Address  of  Complainants.— The  residence  or  abode  of  the  complain- 
ant should  be  stated  in  a  chancery  bill.* 

Where  a  bill  is  filed  on  behalf  of  an  infant  or  person  of  unsound 
mind  the  place  of  abode  need  not  be  stated,  but  the  abode  of  the 
next  friend  should  be  set  out.* 

Bemedy  for  Failure.— There  is  some  doubt  as  to  what  is  the  remedy 
for  a  failure  to  state  the  address  of  the  complainant  in  a  bill.  Some 
authorities  allow  a  demurrer,  while  others  establish  the  practice  to 
be  a  motion  for  security  for  costs.* 


Ch.  PI.  &  Pr.,  vol.  I,  358,  that  there  is 
a  record  in  the  English  Tower  Records 
of  a  case  where  the  master  of  the  rolls 
addressed  a  bill  to  the  Bishop  of  Bath 
and  Wells. 

1.  "  It  appears  to  be  laid  down  in 
all  the  books  upon  chancery  pleading 
that  the  residence  or  abode  of  the 
complainant  should  be  stated  in  the 
bill,  though  by  the  practice  in  this 
state  a  particular  description  of  his 
calling  or  business  does  not  appear  to 
be  necessary.  The  object  of  setting 
forth  the  residence  of  the  complainant 
is  stated  to  be  that  the  court  and  the 
defendant  in  the  suit  may  know  where 
to  resort  to  compel  obedience  to  any 
order  or  process  of  the  court,  and  par- 
ticularly for  the  payment  of  any  costs 
which  may  be  awarded  against  such 
complainant,  or  to  punish  him  for  any 
improper  conduct  in  the  course  of  the 
suit."  Per  the  Chancellor  in  Howe  v. 
Harvey,  8  Paige  (N.  Y.),  74  ;  Griffith  v. 
Ricketts,  5  Hare  195;  Sibbering  v.  Earl 
of  Balcarras,  i  De  G.  &  S.  683  ;  Al- 
bretcht  v.  Sussmann,  2  Ves.  &  B.  323  ; 
Mayer  v.  Tyson,  i  Bland  (Md.)  559; 
I  Fow.  Ex.  Prac.  26. 

2.  Daniell  on  Ch.  PI.  &  Pr.,  vol.  i, 
360. 

Nor  is  it  necessary  to  set  out  the  ad- 
dress of  a  married  woman,  but  the  ad- 
dress of  the  next  friend  should  be 
stated.  The  address  of  a  peer  or  of  a 
corporation  need  not  be  stated  in  the 
bill.  Daniell  on  Ch. PI. &  Pr., vol. 1,360. 

3.  "  It  seems  that  a  demurrer  will  lie 
to  a  bill  which  does  not  state  the  place 
of  abode  of  the  plaintiff  ;  and  that  if 
the  bill  describes  the  plaintiff  as  resid- 
ing at  a  wrong  place,  the  fact  may  be 
taken  advantage  of  by  plea  ;  though  a 
defendant  cannot  put  in  such  a  plea, 
after  a  demurrer  upon  the  same  ground 
has  been  overruled,  without  leave  of 
court.  The  modern  practice,  however, 
in  such  cases  is  not  to  demur  or  plead 
to  the  bill,  but  to  apply  by  special  mo- 


tion or  summons,  on  notice  to  the  plain- 
tiff, that  he  may  give  security  forcosts 
and  that  in  the  meantime  proceedings 
in  the  suit  may  be  stayed.  Thus  in 
Simpson  v.  Burton  (i  Beav.  556)  Lord 
Langdale,  M.R.,  said:  'There  can 
be  no  doubt  that  it  is  the  duty  of  a 
plaintiff  to  state  his  place  of  residence 
truly  and  accurately  at  the  time  he 
files  his  bill  ;  and  if  for  the  purpose 
of  avoiding  access  to  him  he  wilfully 
misrepresents  his  residence,  he  will 
be  ordered  to  give  security  for  costs. 
I  do  not  think  the  rule  extends  to 
a  case  where  he  has  done  so  inno- 
cently and  from  mere  error.'  It  is  to 
be  observed  that  in  this  case  all  the 
plaintiffs  were  incorrectly  described  in 
the  bill  ;  but  there  does  not  appear  to 
be  any  decision  upon  the  point  where 
there  have  been  several  plaintiffs,  one 
or  more  of  whom  are  correctly  de- 
scribed and  the  rest  not  so.  It  is  pre- 
sumed, however,  from  analogy  to  the 
practice-where  there  are  several  plain- 
tiffs, one  only  of  whom  is  resident 
abroad,  that  the  court  would  not,  in 
such  case,  require  those  plaintiffs  who 
are  not  properly  described  to  give  se- 
curity." Daniell  on  Ch.  PI.  &  Pr.,  vol. 
I,  358. 

In  Howe  v.  Harvey,  8  Paige  (N.  Y.) 
73,  it  is  doubted  whether  a  demurrer 
lies  for  a  failure  to  state  the  complain- 
ant's residence. 

In  Winnipisiogee  Lake  Co.  v.  Wors- 
ter,  29  N.  H.  433,  it  was  held  that  it 
was  optional  to  use  either  demurrer  or 
plea  in  the  nature  of  plea  in  abate- 
ment. In  that  case  the  description  of 
the  abode  of  complainant  was  "Mere- 
dith, in  the  county  of  Belknap."  It 
was  held  defective. 

In  Sheridan  v.  Cameron,  65  Mich. 
680,  it  was  held  that  the  rule  which  re- 
quires the  prayer  for  process  to  iden- 
tify the  parties  would  not  make  a  bill 
fatally  defective  for  the  want  of  it  if 
they  were  otherwise  identified. 


235 


Under  Code  Practice. 


ADDRESS. 


Under  Code  Practice. 


II.  TJndee  Code  PBACTICE. — New  York  Code.— The  Code  of  New 
York  requires  that  the  summons  and  the  notice  of  appearance 
shall  contain  the  addresses  of  the  attorneys.* 

If  the  summons  omits  the  address  it  has  been  held  to  be  fatally 
defective,  as  the  Code  is  mandatory  with  reference  to  what  the 
summons  shall  contain.* 

Notice  of  Motion.— The  written  adcircss  of  a  notice  of  motion  to 
the  party  or  attorney  on  whom  it  slioulu  be  served  is  a  material 
part  of  the  notice.^ 

Compelling  Attorney  to  Disclose  Address. — The  court  may,  in  a  proper 
case,  make  an  order  requiring  the  attorney  for  the  plaintiff  to 
furnish  the  defendant  with  the  plaintiff's  residence  and  address.* 


1.  N.  Y.  Code  Civ.  Proc.  §§  421,  417. 

2.  Osborn  v.  McCloskey,  55  How. 
Pr.  (N.  Y.  Supreme  Ct.)  345.  But  see 
Wiggins  V.  Richmond,  58  How.  Pr. 
(N.  Y.  Supreme  Ct.)  376,  where  it  was 
lield  that  the  omission  to  state  the  ad- 
dress was  not  a  jurisdictional  defect. 

An  amended  demurrer  was  attempt- 
ed to  be  served  by  defendant's  attor- 
ney from  Yonkers,  N.  Y.,  while  the 
attorney's  address  was  "Stewart 
Building,"  New  York  City.  Held, 
that  it  was  irregularly  and  improper- 
ly served.  Gray  v.  Smith,  10  N.  Y.  St. 
Rep.  866. 

Address  Printed. — A  summons  upon 
which  the  name  and  address  of  the 
plaintiff's  attorney  is  printed,  instead 
of  his  written  signature,  is  "sub- 
scribed" by  him  within  the  meaning 
of  §  417  of  the  Code  of  Civil  Pro- 
cedure. New  York  v.  Eisler,  10  Daly 
396  ;  Barnard  v.  Heydrick,  49  Barb. 
62;  Mutual  Life  Co.  v.  Ross,  10  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  260  note. 
Contra.  Farmers'  L.  &  T.  Co.  v.  Dick- 
son, 17  How.  Pr.  (N.  Y.  Supreme  Ct.) 

477- 

Foreclosure  of  a  Mortgage. — In  an 
action  to  foreclose  a  mortgage  where 
the  summons  was  accompanied  by  a 
notice  of  no  personal  claim,  which 
was  served  upon  the  defendant  H., 
whose  name  appeared  in  the  notice, 
but  not  in  the  summons ;  the  sum- 
mons also  failed  to  specify  the  office, 
post-office  address,  or  street  number 
of  the  plaintifif's  attorney,  and  no 
reference  thereto  was  made  in  the 
notice.  Held,  that  the  words  of  §  417 
of  the  Code  of  Civil  Procedure  were 
not  mandatory,  and  that  the  omission 
was  not  a  jurisdictional  defect,  but 
could  be  cured  by  amendment.  Wig- 
gins V.  Richmond,  58  How.  Pr.  (N.  Y. 
Supreme  Ct.)  376. 


3.  "The  written  address  or  direc- 
tion of  a  notice  of  motion  to  the  party 
or  attorney  on  whom  it  should  be 
served  is  a  material  part  of  the 
notice  ;  for  service  on  one  to  whom 
the  notice  is  not  addressed  may  prove 
ineffectual,  especially  if  it  be  ad- 
dressed to  others.  An  error  in  the 
address  does  not  vitiate  if  the  notice 
duly  reaches  the  one  intended  and  the 
error  does  not  mislead."  Abbott's 
New  Prac.  &  Forms,  vol.  i,  158. 

4.  "  The  order  requiring  the  disclo- 
sure of  the  residence  and  address  of 
the  plaintiff  was  made  in  the  reason- 
able exercise  of  the  discretion  and 
power  of  the  court.  The  moving 
affidavit  of  the  defendant  disclosed 
facts  tending  to  show  that  the  action 
was  being  prosecuted  without  the 
knowledge  or  desire  of  the  plaintiff, 
and  in  that  view  alone  it  was  proper 
enough  to  afford  an  opportunity  for 
his  examination.  Besides  this,  it  was 
the  right  of  the  defendant  to  examine 
the  plaintiff  before  trial,  and  to  that 
end  to  be  informed  of  his  where- 
abouts." Per  Dykman,  J.,  in  Corbett 
V.  Gibson,  18  Hun  (N.  Y.)  49. 

In  Corbett  v.  De  Comeau,  45  N.  Y. 
Superior  Ct.  637,  an  order  was  made 
for  the  disclosure  of  plaintiff's  ad- 
dress, where  the  affidavit  stated  that 
the  defendant  wanted  to  examine . 
plaintiff,  and  show  whether  he  was  a 
willing  party  to  the  action  ;  that  he 
was  insane  ;  that  the  allegations  of 
libel  in  the  complaint  were  true  ;  to 
secure  his  attendance  on  the  trial  ; 
and  to  obtain  security  for  costs. 

In  the  99  plaintiffs  v.  Vanderbilt, 
I  Abb.  Pr.  (N.  Y.)  193,  where  99  plain- 
tiffs sued  the  defendant,  an  order  was 
made  compelling  the  attorney  to  dis- 
close the  address  of  the  plaintiffs. 
The  court  said  :    "  The  defendant  can 


236 


Under  Code  Practice. 


ADDRESS. 


Under  Code  Practice. 


An  attorney  cannot  be  compelled  to  disclose  his  client's  address 
after  the  litigation  has  finally  terminated  ;  for  the  only  penalty 
for  refusing  the  information  is  to  stay  the  client's  proceeding  or 
strike  out  his  plea.* 

not  always  be  aware  who  are  his 
opponents.  It  may  happen,  and  in 
this  case  it  does,  that  he  may  be 
attacked  by  a  number  about  whom  he 
knows  nothing."  Consult  also  the 
following  common-law  cases :  Johnson 
V.  Birley,  5  B.  &  A.  540  ;  Worten  v. 
Smith,  6  J.  B.  Moore  iioi  ;  McKiernan 
V.  Patrick,  4  How.  (Miss.)  333  ;  West 
V.  Houston,  3  Harr.  (Del.)  15. 

"The  power  of  the  court  to  require 
a  party  to  disclose  his  residence  is  the 
subject  of  some  difference  of  opinion. 
It  is  clear  that  the  court  may  require 
either  party  to  disclose  his  address  as 
a  condition  of  being  allowed  to  pro- 
ceed actively  in  the  cause,  and  this 
will  usually  be  effectual  with  a  plain- 
tiff, or  a  defendant  seeking  affirmative 
relief.  In  an  unreported  case,  Law- 
rence, J.,  denied  a  motion  to  compel 
the  attorney  to  give  his  client's  ad- 
dress because  the  attorney  made 
affidavit  that  he  was  unable  to  do  so, 
his  client  being  absent ;  but  neverthe- 
less stayed  all  proceedings  on  the 
client's  part  until  he  should  return  to 
the  city  and  submit  to  examination 
under  the  order  which  it  was  sought 
to  serve  on  him."  Abbott's  New 
Prac.  &  Forms,  vol.  2,  500,  citing  Olm- 
stead  V.  Wehle,  18  N.  Y.  Wkly.  Dig. 
486. 

Attorney  Charged  with  Costs.  —  It  is 
the  duty  of  an  attorney,  as  an  officer 
of  the  court,  to  furnish  all  informa- 
tion required  by  the  court  in  order  to 
carry  out  its  process.  Where  an  attor- 
ney, in  answer  to  an  order  directing 
him  to  state  the  whereabouts  of  the 
plaintiff,  so  that  an  injunction  could 
be  served  upon  him,  made  a  statement 
of  the  residence  of  the  plaintiff  which 
was  misleading,  held,  that  the  attor- 
ney was  properly  charged  with  all  the 
expenses  of  the  reference  to  ascertain 
the  plaintiff's  whereabouts,  on  the 
ground  of  misconduct.  Bauer  z/.  Betz, 
I  How.  Pr.  N.  S.  (N.  Y.  Supreme  Ct.) 


344.  In  this  case  the  court  said:  "It 
cannot  be  questioned  that  the  service 
of  the  injunction  upon  the  plaintiff  was 
very  important  to  the  protection  of  the 
defendant's  interests,  and  it  was  just 
as  much  his  duty  to  aid  in  the  admin- 
istration of  justice  in  that  respect  as  it 
was  to  protect  his  client's  interests. 
As  an  officer  of  the  court  he  was  bound 
to  deal  with  it  in  all  respects  without 
reserve,  and  to  obey  its  orders  implic- 
itly unless  appealed  from  and  reversed 
on  appeal.  If  he  had  stated  in  his 
affidavit  that  his  client  had  resided  and 
he  believed  continued  to  reside  at  the 
place  named  in  this  city,  but  had  been 
sojourning  in  Jersey  City  under  an  as- 
sumed name,  and  that  he  had  parted 
from  him  on  the  twenty-fifth  of  Jan- 
uary, and  then  stated  what  he  believed 
as  to  his  intentions,  his  conduct  would 
have  appeared  upon  the  record  in  ref- 
erence to  the  subject  unimpeachable. 
He  suppressed,  however,  these  im- 
portant facts,  and  it  would  seem  with 
the  intention  of  screening  his  client. 
In  his  zeal  he  may  have  supposed  that 
this  was  his  duty  professionally,  but 
it  was  a  great  mistake  if  he  entertained 
any  such  view,  and  the  result  is,  the 
imposition  of  costs  upon  himself  and 
his  client  in  the  proceeding  which  a 
candid  and  honorable  revelation  would 
not  only  have  avoided  but  which  would 
have  rebounded  to  his  credit  as  an 
officer  of  the  court." 

Ground  of  Authority. — The  power  of 
the  court  to  compel  an  attorney  to 
disclose  his  client's  address  rests  on 
the  same  ground  as  that  to  disclose 
his  authority.  Friedberg  v.  Bates,  3 
N.  Y.  Month.  Law  Bull.  6. 

As  to  the  right  to  compel  an  attor- 
ney to  disclose  his  authority,  see 
New  York  v.  Purdy,  36  Barb.  (N.  Y.) 
266. 

1.  Walton  V.  Fairchild  (City  Ct.), 
24  N.  Y.  St.  Rep.  314. 


I 


237 


ADJOURNMENTS. 


By  Wm.   p.  Aiken. 

I.  Definition,  238. 
n.  CouETS  OF  Recced,  239. 

1.  Power  to  Adjourn,  239. 

2.  Length  of  Adjournment,  239. 

3.  Who  May  Order  Adjournjneni,  240. 

4.  Place  of  Adjourntnent^  243. 

5.  Consequences  of  Adjournment,  243. 

Justices  Couets,  247. 
Refeeees  and  Aebiteatoes,  247. 
Quasi  Judicial  Officees,  248. 


ni. 

IV. 
V. 


I.  Definition. — An  adjournment  is  the  suspension  of  the  sessions 
of  a  judicial  tribunal  or  other  official  body  until  a  time  certain,  or 
indefinitely  where  the  adjournment  is  without  day.* 

1.  An  adjournment  is  a  putting  off 
until  another  time  and  place.  Whart. 
Law  Lexicon  ;  People  v,  Martin,  5  N. 
Y.  26  ;  Wilson  v.  Lott,  5  Fla.  303.  A 
continuation  of  a  previous  term  of 
court.  Van  Dyke  v.  State,  22  Ala.  60. 
A  continuance  of  a  session  from  one 
day  to  another.  Tramnell  v.  Bradley, 
37  Ark.  379. 

Adjoarnment  and  Continuance  Distin- 
guished.— Adjournment,  as  compre- 
hended in  this  article,  must  be  distin- 
guished from  continuance,  which  may 
be  defined  as  the  adjournment  of  a 
case  as  distinguished  from  the  tribunal 
itself,  and  is  the  suspension  of  a  pro- 
ceeding before  the  tribunal  until  a  sub- 
sequent time.  The  treatment  of  this 
subject  will  be  found  in  the  article 
Continuances. 

Additional  Term,  Special  Term,  and  Ad- 
journed Term. — In  Harris  v.  Gest,  4 
Ohio  St.  473,  Herman,  C.  J.,  distin- 
guishes an  adjourned  term  from  the 
"additional  term "  provided  for  by 
section  5  of  the  Ohio  Act  of  January 
31,  1854  (52  Ohio  L.  10).  In  the  case 
of  the  former  the  sitting  after  the  ad- 
journment is  a  prolongation  of  the 
regular  term,  and  in  contemplation  of 
law  there  is  but  one  term  ;  but  the  lat- 


ter is  a  distinct  term  and  not  a  pro- 
longation of  the  regular  term.  So 
special  terms  provided  for  by  many  of 
the  statutes  must  be  distinguished 
from  an  adjourned  term  as  it  is  ap- 
parent that  the  same  difference  exists 
between  them  and  the  adjourned  term 
as  between  the  additional  term  of  the 
Ohio  statute  and  the  adjourned  term. 

"Adjourn." — In  La  Farge  v.  Van 
Wagenen,  14  How.  Pr.  (N.  Y.  Supreme 
Ct.)  58,  Birdseye,  J.,  said  :  "  It  is 
true  that  the  primary  signification  of 
the  term  '  adjourn  '  is  to  put  off  or  to 
defer  to  another  day  specified  ;  but  it 
has  acquired  also  the  meaning  of  sus- 
pending business  for  a  time — defer- 
ring, delaying.  Probably,  without 
some  limitation,  it  would,  when  used 
with  reference  to  a  sale  like  the  pres- 
ent, or  any  judicial  proceeding,  prop- 
erly include  the  fixing  of  the  time  to 
which  the  postponement  was  made." 

Adjourn  Held  Eqtiivalent  to  Postpone. — 
In  a  New  fersey  stsilute  prescribing  the 
length  of  time  for  which  a  justice  may 
grant  adjournments,  the  term  "ad- 
journ "  was  held  equivalent  to  "  post- 
pone," the  court  by  Kirkpatrick,  C.  J., 
saying  :  "  If  there  could  be  any 
doubt  upon  the  import  of  the  term  '  ad- 


238 


Courts  of  Becord. 


AD  JO  URNMENTS.        Length  of  Adjournment. 


11.  CouBTS  OF  Record. — 1.  Power  to  Adjourn. — inherent  >ower,— 
As  power  to  adjourn  is  essential  to  the  completion  of  business,  it 
is  an  inherent  attribute  of  judicial  tribunals.* 

Statutes  dealing  with  the  subject  of  adjournments  will  be  con- 
strued as  confirmatory  of  the  common  law  where  possible  ;  that 
is,  as  neither  abridging  nor  extending  the  inherent  power  of  the 
courts.'^ 

2.  Length  of  Adjournment. — It  has  been  intimated  that  common- 
law  adjournments  were  only  from  day  to  day;'  but  as  the  common 


journ,'  it  is  explained  in  the  subse- 
quent clause  of  the  section  where  the 
word  postpone  is  used  to  signify  pre- 
cisely the  same  thing.  The  definition 
of  this  word  according  to  Johnson  is 
to  put  off,  to  delay.  It  (the  statute)  will 
read  according  to  this  definition  :  The 
justice  may  put  off,  may  delay  the  trial 
for  any  time  not  exceeding  fifteen  days.' 

1.  Mechanics'  Bank  v.  Withers,  6 
Wheat.  (U.  S.)  io6  ;  People  v.  Sulli- 
van, 115  N.  Y.  185  ;  Harris  v.  Gest,  4 
Ohio  St.  469  ;  Cook  v.  Skelton,  20  111. 
no;  71  Am.  Dec.  250;  Hawley  v. 
Parrott,  10  Conn.  488  ;  Seymour  v. 
State,  15  Ind.  288  ;  Read  v.  State,  26 
Ga.  275  ;  Revel  v.  State,  26  Ga.  275  ; 
People  V.  Northrup,  50  Barb.  (N.  Y.) 
147  ;  Stirling  v.  Wagner  (Wyoming, 
1892),  31  Pac.  Rep.  1032  ;  Robinson  v. 
State,  22  Tex.  App.135  ;  In  r^  Hunter's 
Estate,  84  Iowa  388  ;  Murray  v.  State, 
(Ga.,  1893),  17  S.  E.  Rep.  99. 

In  Stirling  v.  Wagner  (Wyoming, 
1892),  31  Pac.  Rep.  1040,  it  is  said  : 
"  The  statute  being  silent,  the  inher- 
ent power  of  the  court  to  adjourn  to  a 
distant  day,  without  interference  with 
its  duties  elsewhere,  is  unfettered,  as 
nothing  seems  clearer  than  that,  inde- 
pendent of  statutory  warrant  or  inter- 
ference, courts  of  general  jurisdiction 
have  authority  to  hold  adjourned 
terms." 

In  re  Hunter's  Estate,  84  Iowa  388, 
it  is  said:  "Adjournments  of  the 
business  of  a  term  of  court  from  day 
to  day  and  from  time  to  time,  as  thv 
necessities  of  the  situation  seem  to  de- 
mand, is  essential  to  the  conduct  of 
business  and  has  the  sanction  of  uni- 
versal usage.  Such  a  right  is  not 
questioned." 

No  Beason  need  be  Assigned  for  the 
Adjournment — The  Indiana  Statute. — 
It  was  provided  by  the  Indiana  statute 
of  1855  (Rev.  St.  Indiana  1881,  §  1332) 
"  that  if  any  judge  of  a  circuit  court 
shall  adjourn  the  court  before  having 
gone  through  with  the  business  pend- 
ing, and  before  the  expiration  of  the 


time  fixed  by  law,  the  record  must 
show  the  reason  for  the  adjournment." 
In  Casily  v.  State,  32  Ind.  63,  it  was 
held  that  this  provision  had  reference 
only  to  final  adjournments  until  the 
next  regular  term  before  the  lapse  of 
the  time  allowed  for  that  term  of  the 
court,  and  that  the  circuit  court  had 
full  power  to  adjourn,  before  the  lapse 
of  time  allowed  by  law  for  its  term,  to 
a  day  beyond  such  time,  and  before 
the  next  regular  term,  and  that  it  was 
not  required  to  put  the  reason  for 
such  adjournment  upon  record.  Dis- 
approving of  the  decisions  in  Morgan 
V.  State,  12  Ind.  448  ;  Slaughter  v. 
Gregory,  16  Ind.  250.  Frazier,  C.J., 
in  delivering  the  opinion  of  the  court, 
said  :  "  When  it  adjourns  finally  until 
the  next  regular  term  before  the  lapse 
of  time  allowed  for  its  term,  .  .  . 
in  that  case  and  only  in  that  case  it 
must,  if  the  business  be  unfinished, 
put  the  reason  for  such  adjournment 
on  record.  .  .  .  The  statute  if  held 
directory  only  will  accomplish  every 
good  purpose  which  the  legislature 
had  in  view,  and  a  vast  amount  of 
mischief  will  be  prevented."  Casily 
V.  State,  32  Ind.  62,  was  approved  in 
Cass  V.  Krimbill,  39  Ind.  358  ;  and  in 
Harper  v.  State,  42  Ind.  410,  where  it 
is  said  :  "  The  case  of  Casily  v.  State, 
32  Ind.  62,  related  to  an  order  of  ad- 
journment to  a  day  in  vacation,  and 
not  to  an  adjournment  to  the  next 
regular  term,  and  the  ruling  in  that 
case  was,  in  effect,  the  overruling  of 
the  cases  of  Shiel  v.  Mafifett  17  Ind. 
316;  Slaughter  v.  Gregory,  16  Ind.  250; 
and  any  other  cases  which  hold  that 
in  the  order  of  the  court  adjourning  to 
a  day  in  vacation,  the  reason  for  the 
adjournment  must  be  stated,  and  we 
regard  them  as  overruled." 

2.  People  V.  Sullivan,  115  N.  Y.  185  ; 
Mechanics'  Bank  v.  Withers,  6  Wheat. 
(U.  S.)  106  ;  Smith  v.  Smith,  17  Ind.  75  ; 
Seymour  v.  State,  15  Ind.  288. 

3.  Griffin  z/.  Spalding,  6  Vt.  60  ;  Haw- 
ley V.  Parrott,  10  Conn.  486. 

'39 


Courts  of  Record. 


AD  JO  URNMENTS. 


Who  may  Order. 


law  considered  the  whole  term  but  one  day/  the  existence  of  any 
power  to  adjourn  is  held  to  imply  discretion  as  to  the  extent  of  the 
adjournment  within  the  limits  expressly  set  by  statute  to  the 
court's  term.*  But  courts  do  not  look  with  favor  upon  L.r*? 
adjournments.* 

3.  Who  May  Order  the  Adjournment. — Authority  to  order  an  ad- 
journment  is  a  judicial  power,  and  cannot  be  delegated  to  a  minis- 
terial officer.*     As  courts  derive  their  power  to  convene  from  con- 


1.  Barrett  v.  State,  i  Wis.  i8o ; 
People  V.  Sullivan,  115  N.  Y.  185  ; 
Hawley  v.  Parrott,  10  Conn.  486  ; 
Cutter  V.  Wadsworth,  7  Conn.  6.  The 
proposition  is  undisputed.    See  Term. 

But  the  true  time  when  a  judgment 
has  been  rendered  or  other  act  done 
may  always  be  shown  where  it  is 
material.  Barrett  v.  State,  r  Wis. 
175  ;  Prescott  v.  Wright,  6  Mass.  20  ; 
Com.  V.  Gee,  6  Cush.  (Mass.)  174; 
Hawley  v.  Parrott,  10  Conn.  486;  Cut- 
ter V.  Wadsworth,  7  Conn.  6. 

"Term"  and  "Session." — There  is  a 
conflict  in  the  cases  as  to  whether  the 
word  "term"  may  mean  "session." 
Pitman  v.  U.  S.,  45  Fed.  Rep.  82,  con- 
strues a  statute  providing  that  an 
absent  judge  may  adjourn  the  com- 
mencement of  any  "regular,  special, 
or  adjourned  term  "  by  written  order 
to  include  the  daily  sessions  of  either 
three  terms.  This  construction  is  also 
adopted  in  Stefani  v.  State,  124  Ind. 
3,  where  the  word  "session"  is  held 
an  equivalent  of  "term."  Lipari  v. 
State,  19  Tex.  App.  433,  holds  the 
contrary,  the  court  saying:  "A  session 
signifies  the  time  during  the  term  in 
which  the  court  sits  for  the  transac- 
tion of  business,  and  the  session  com- 
mences when  the  court  convenes  for 
the  term  and  continues  until  final  ad- 
journment either  before  or  at  the 
expiration  of  the  term.  The  term  of 
court  is  the  time  prescribed  by  law 
during  which  it  may  be  in  session. 
The  session  of  the  court  is  its  sitting." 
See  Term. 

2.  Barrett  v.  State,  i  Wis.  180;  Cook 
V.  Shelton,  20  111.,  iii  ;  71  Am.  Dec. 
250  ;  Stirling  v.  Wagner  (Wyoming, 
1892),  31  Pac.  Rep.  io4i;/«  r^  Hunter's 
Estate,  84  Iowa  388  ;  Robinson  v. 
State,  22  Tex.  App.  135  ;  Revel  v. 
State,  26  Ga.  276  ;  Seymour  v.  State, 
15  Ind.  288;  Mechanics'  Bank  v.  With- 
ers, 6  Wheat.  (U.  S.)  106,  where  the 
court  says  :  "There  being  nothing  in 
any  act  of  Congress  which  prevented 
the  courts  of  the  districts  from  exer- 
cising a  power  common  to  all  courts, 

240 


that  of  adjourning  to  a  distant  day, 
the  adjournment  on  the  i6th  of  May 
to  the  fourth  Monday  of  June  would 
be  a  continuance  of  the  same  term 
unless  a  special  act  of  Congress,  ex- 
pressly enabling  the  court  of  the 
districts  to  kold  adjourned  sessions, 
may  be  supposed  to  vary  the  law  of 
the  case.  This  act,  affirming  a 
pre-existing  power,  ought  not  to  be 
construed  to  vary  the  continuance  of 
that  power  unless  words  are  implied 
which  manifest  such  intention." 

Adjournment  from  Day  to  Day — Son- 
day. — As  Sunday  is  not  a  judicial  day, 
an  adjournment  from  Saturday  to 
Monday  does  not  violate  a  statute  re- 
quiring adjournments  to  be  made 
from  "  day  to  day."  State  v.  Howard, 
82  N.  Car.  623.  See  also  State  v.  King. 
23  Neb.  540;  Thayer  v.  Felt,  4  Pick. 
(Mass.)  354  ;  State  v.  Howard,  82  N. 
Car.  623;  and  see  Dies  Non. 

Louisiana — Statute  Limiting  the  Time 
of  Adjournment. — In  Willis  v.  Elam,  28 
La.  Ann.  857,  it  was  held  that  the 
Louisiana  statute  limiting  the  time  of 
adjournments  to  one  week  only  ap- 
plies to  one  adjournment  and  does  not 
prohibit  the  judge  from  adjourning 
his  court  more  than  once  at  the  same 
term,  although  the  aggregate  of  the 
adjournments  may  be  more  than  one 
week. 

3.  Cook  V.  Shelton,  20  111.  no  ;  71 
Am.  Dec.  250;  Harris  v.  Gest,  4  Ohio 
St.  469.  In  the  last  case  the  appellate 
court  preferred  to  consider  the  term 
in  question  an  "additional  term" 
rather  than  an  "adjourned  term."  If 
it  had  been  held  an  adjourned  term, 
it  would  have  made  the  adjournment 
a  very  long  one.  See,  however,  Fan- 
non  V.  Plummer,  30  Mo.  App.  25. 

4.  Wight  V.  Wallbaum,  39  111.  555; 
People  V.  Clews,  4  Abb.  N.  Cas.  (N. 
Y.  Ct.  Sess.)  256.  It  is  held  also,  in 
the  latter  case,  that,  as  power  to  ad- 
journ a  court  implies  a  court  to  ad- 
journ, no  absent  judge  can,  without 
express  statutory  authority,  adjourn  a 
court  while  absent. 


Courts  of  Becord. 


AD  JO  URNMENTS. 


Who  may  Order. 


stitution  or  statute,  a  court  which  does  not  meet  at  the  time  and 
place  prescribed  thereby  has  no  power  to  convene  at  all.^  If  the 
court  attempts  to  begin  its  session  at  a  time  or  place  other  than 
thus  prescribed,  the  whole  proceedings  at  that  term  will  be  void, 
since  they  do  not  take  place  at  the  term  authorized  by  statute.'-* 

Statutory  Provisions  — Statutes  authorizing  the  sheriff  or  clerk,  or 
a  single  judge  where  a  legal  quorum  is  absent,  to  adjourn  the  com- 
mencement of  the  term,  have  been  generally  adopted.  They 
usually  contain  a  provision  that  an  absent  judge  may  adjourn  the 
commencement  of  the  term,  or  a  subsequent  session,  by  a  written 
or  other  statutory  order  to  the  clerk  or  some  other  ofificer.^ 


I 


1.  People  V.  Bradwell,  2  Cow.  (N. 
Y.)  445;  Northrup  v.  People,  37  N.  Y. 
203;  Brumley  v.  State,  20  Ark.  78  ; 
Dunn  V.  State,  2  Ark.  229  ;  Ex  p. 
Osborn,  24  Ark.  479;  State  v.  Roberts, 
8  Nev.  239;  Ex  p.  Jones,  27  Ark.  349; 
People  V.  Sullivan,  115  N.  Y.  185. 
"The  term  is  appointed  to  be  held 
under  the  authority  of  a  statute,  and 
an  adjourned  term  of  the  court  at 
which  cases  may  be  noticed  and  jurors 
summoned  as  if  to  a  new  and  regular 
term  is  of  the  same  nature.  In  such 
a  case,  in  the  absence  of  any  statute, 
the  failure  of  any  judge  to  appear 
upon  the  day  may  well  be  regarded  as 
preventing  the  convening  of  a  legal 
court,  and  as  no  legal  court  convened 
and  commenced  its  term  on  the  day  ap- 
pointed by  law,  there  would  of  course 
be  no  power,  in  the  absence  of  a 
statute,  in  the  court  to  convene  the 
next  day  any  more  than  the  next 
month  or  the  next  year.  In  such  a 
case  there  would  be  no  court  to  con- 
vene." People  V.  Sullivan,  115  N.  Y. 
185. 

No  Adjoarnment  to  Await  a  Qaoram. — 
In  People  v.  Bradwell,  2  Cow.  (N.  Y.) 
445,  it  was  held  that  a  court  of  oyer 
and  terminer  could  not  be  adjourned  by 
a  circuit  judge,  or  otherwise,  by  rea- 
son that  a  number  of  the  county 
judges  sufficient  to  make  a  quorum 
were  not  present  at  the  day  appointed 
for  holding  it  ;  and  where  a  quorum 
did  not  appear  until  the  third  day  of 
the  circuit  and  then  opened  the  oyer 
and  terminer  and  convicted  a  criminal, 
it  was  held  that  the  proceedings  were 
coram  non  judice. 

2.  People  V.  Bradwell,  2  Cow.  (N. 
Y.)445;  People  v.  Sullivan,  115  N.  Y. 
185. 

3.  New  York  Code  Civ.  Pro.  §§  35, 
36,  41;  Pennsylvania  Bri.  Pur.  Dig.  p. 
1360 ;    Massachusetts  Rev.    St.   c.    153, 


§S  25,  26,  27;  New  Hampshire  Rev.  St. 
c.  207,  §^  2,  3,4;  MaineRev.  St.,  c.  77, 
§§  48,  50,  72,  77;  c.  70,  ^  2;  c.  67,  §  2; 
Connecticut  Rev.  St.  §§  441,  727,  750, 
790,  791,  802,  803,  820;  Alabama  Code, 
§g  660,  662,  663,  664;  Georgia  Code, 
S>^  3239.  3240,  3242,  3243.  3244.  4113; 
Michigan  Gen.  St.  (How.)  6407,  6408, 
6461;  Minnesota  Rev.  St.,  c.  64,  §§9, 
15;  c.  63,  §?;  7,  8,  9;  Mississippi  Code, 
S§  1400,  2263,  2254;  Ohio  Rev.  St.  §^ 
412,  4969;  Illinois  Rev.  St.  c.  37,  §§ 
4.  5.  51.  54.  56;  California  Code  Civ. 
Pro.  §§  46,  48,  74,  135,  139,  140,  617  ; 
Virginia  Code,  ^§  3111,  3122,  3123, 
3124  ;  Wisconsin  Ann.  St.  §g  2404, 
2427,  2449,  2572,  2573,  4049  ;  Tennessee 
Code,  §§4863,  4969,  4991,  5227,  5260. 

When  Commencement  is  Adjourned  the 
Day  Adjourned  to  is  the  "First  Day  of 
the  Term." — Where,  before  the  day 
appointed  for  the  beginning  of  the 
term,  the  commencement  of  the  term 
is  postponed  or  adjourned  to  a  future 
day,  the  date  to  which  it  is  adjourned 
becomes  the  first  day  of  the  term  ; 
that  is  to  say,  that  anything  appointed 
to  be  done  upon  the  first  day  of  the 
term  may  be  done  upon  the  day  to 
which  the  commencement  of  the  term 
is  adjourned,  i.  e.,  the  first  day  of  the 
adjourned  term.  Thus,  an  order 
that  papers  shall  be  filed  on  the 
first  day  of  the  term  is  sufficiently 
fulfilled  if  the  papers  are  filed  on 
the  day  to  which  the  commence- 
ment of  the  term  is  adjourned. 
Wilson  V.  Lott,  5  Fla.  302.  In  that 
case  the  court  by  Thompson,  J.,  said: 
"There  is  an  obvious  distinction  be- 
tween the  adjournment  of  the  court 
on  the  first  or  any  subsequent  day 
of  the  term,  and  the  adjournment  of 
the  term,  in  anticipation  of  the  ap- 
pointed time,  to  another  day;  in  the 
first  place,  the  term  has  actually  com- 
menced, and  the  effect  of  the  adjourn- 


i  Encyc.  PI.  &  Pr.— 16. 


241 


Conrts  of  Becord. 


AD  JO  URNMENTS. 


Who  may  Order. 


Liberally  Construed. — These  statutes  have  received  a  liberal  con- 
struction by  the  courts,  and  provisions  for  entering,  filing,  and 
publishing  such  orders  have  been  generally  held  directory,  unless 
a  party  is  prejudiced  by  the  failure  to  obey  them.* 


ment  is  but  a  prolongation  of  the 
term  ;  in  the  latter  case,  the  term  being 
postponed  by  adjournment  before  it 
commences,  the  return  day  thereof  is 
also  adjourned,  and  it  takes  its  begin- 
ning from  the  time  to  which  it  is  ad- 
journed." 

1.  Provisions  Held  Directory. — Where 
a  clerk  received  the  adjournment  or- 
der, but  failed  to  formally  adjourn  the 
court  and  left  the  order  unrecorded, 
unpublished,  and  unposted,  as  the 
statute  directed,  these  provisions  were 
held  to  be  directory  and  the  adjourn- 
ment nevertheless  valid.  Wise  v. 
State,  34  Ga.  348.  Where  a  clerk  ad- 
journed an  entire  week  instead  of  from 
"  day  to  day,"  as  the  Code  required, 
in  the  absence  of  the  judge,  the  pro- 
vision was  held  directory  and  the  ad- 
journment legal.  Mayz/.  People, 8  Colo. 
210.  For  construction  of  requirements 
for  calling  special  term  as  directory, 
see  Harman  v.  Copenhagen,  89  Va. 
836. 

A  Substantial  Compliance  Sufficient. — 
Where  statutes  grant  power  to  adjourn 
the  regular  term,  if  at  its  expiration 
business  is  unfinished,  the  court  may 
adjourn  before  the  expiration  of  the 
term  if  it  can  be  seen  that  business 
will  be  then  unfinished.  Walker  v. 
State,  102  Ind.  '^oi;  overruling  ^oxga.'o. 
V.  State,  12  Ind  448,  ;  and  compare 
Wright  V.  State,  5  Ind.  290;  61  Am. 
Dec.  90. 

Notice  of  Adjournment. — Reasonable 
notice  of  an  adjournment  must  always 
be  given,  whether  the  statutes  require 
it  or  not.  Grable  v.  State,  2  Greene 
(Iowa)  559  ;  Archer  v.  Ross,  3  111.  303. 

But  a  two  days'  notice  in  a  news- 
paper answers  the  requirement  of  a 
statute  requiring  publication,  but  not 
specifying  its  duration.  Clarke  County 
V.  State,  61  Ind.  75. 

Where  the  statute  required  an  ad- 
journing order  to  specify  how  public 
notice  should  be  given,  and  the  order 
actually  entered  by  the  clerk  failed  to  so 
specify,  although  he  gave  public  no- 
tice as  the  law  required,  it  was  held 
that  the  failure  of  the  original  order 
to  conform  to  the  law  did  not  invali- 
date the  adjournment,  and  that  a  cor- 
rect M««^/rt? /««f  order  might  be  en- 


tered. Conrad  v.  Johnson,  20  Ind. 
421  ;  Cordell  v.  State,  22  Ind.  i  ;  Wood 
V.  Franklin,  97  Ind.  117. 

Where  a  statute  provided  that  if  the 
judge  was  absent  the  sheriff  should 
adjourn  by  proclamation  and  by  post- 
ing notice  in  the  court-house,  and  the 
judge  while  present  directed  an  order 
to  be  entered  that  if  no  judge  was 
present  at  subsequent  hour  named  the 
sheriff  should  adjourn  the  court,  it  was 
held  that  as  the  adjournment  was 
made  by  the  order  of  the  judge,  no 
proclamation  or  posting  was  required. 
Bressler  v.  People,  117  111.  425  ;  and 
compare  People  v.  Central  Bank,  53 
Barb.  (N.  Y.)  416  ;  State  v.  McGuire, 
53  Iowa  165,  which  are  to  the  effect 
that  if  the  entry  of  a  customary  order 
of  adjournment  be  required  at  all,  it 
may  be  nunc  pro  tunc. 

But  where  neither  the  statutory 
order  of  the  judge  was  entered  of  rec- 
ord, nor  the  adjournment  proclaimed 
by  the  sheriff,  the  adjourned  term  was 
held  irregular,  as  no  public  notice  had 
been  given.  Stovall  v.  Emerson,  20 
Mo.  App.  322. 

Statutory  Orders  of  Adjournment  by 
Judges  in  Court  are  similarly  construed. 
An  order  entered  three  days  before 
the  expiration  of  the  term,  reciting  its 
inability  to  complete  business  at  regu- 
lar term,  declaring  that  an  "ad- 
journed term  is  hereby  ordered  and 
appointed  "  for  a  certain  date,  is,  when 
followed  by  another  order  of  adjourn- 
ment on  the  last  day  of  term,  reciting 
that  statutory  publication  of  notice  of 
adjournment  had  been  complied  with, 
a  sufficient  compliance  with  a  statute 
permitting  adjourned  term  to  be  held 
if  at  the  expiration  of  the  regular  term 
business  was  unfinished.  Washer  v. 
Allensville,  etc..  Turnpike  Co.,  81  Ind. 
78.  And  where  "special  adjourned 
terms"  of  a  court  might  be  held  by 
entering  an  order  to  that  effect,  a  sim- 
ple adjourning  order  to  a  distant  day, 
without  specifying  that  a  "  special  ad- 
journed term  was  to  be  held,"  was 
considered  sufficient,  Davies  v.  State, 
39  Ark.  448. 

An  entry  in  the  minutes,  reciting  that 
on  Saturday  the  court  adjourned  for 
the  term,  and  directing  the  clerk   to 


242 


Cooiits  of  Becord. 


AD  JO  URNMENTS.  The  Consequence  of. 


4.  Place  of  Adjournment. — Where  the  statute  names  the  specific 
place  for  holding  court,  it  cannot  be  legally  held  elsewhere,  and 
consequently  cannot  be  adjourned  elsewhere.* 

5.  The  Consequence  of  Adjournment. — Distinction  Between  Adjournment 
Sine  Die  and  Adjournment  to  a  Day  Certain. — An  adjournment  is  either  with- 
out day  or  to  a  day  certain.  The  distinction  is  vital.  An  adjourn- 
ment without  day  ends  the  power  of  the  court  over  the  business 
and  record  of  the  term.^     The  adjournment  of  the  term  to  a  day 

was  held  that  where  the  regular  time 
for  holding  two  courts  in  the  same  cir- 
cuit conflict,  one  being  appointed  for 
Monday  and  the  other  for  Tuesday  of 
the  same  week,  the  judge  may  ad- 
journ the  latter  to  another  date  ;  such 
conflict  being  an  "  unavoidable  cause  " 
under  the  Georgia  Code. 

In  Allen  v.  State,  74  Ga.  773,  it  was 
held  that  a  tornado  doing  great  dam- 
age was  such  an  "unavoidable  cause  " 
within  the  statute  as  to  authorize  the 
judge  to  order  an  adjournment  to  the 
commencement  of  the  term  ;  and  in 
that  case  it  was  further  held  that  the 
signature  of  the  judge  to  the  adjourn- 
ment order  was  not  necessary.  Citing 
Cogswell  V.  Schley,  50  Ga.  481.  And 
see  Wise  f .  State,  34  Ga.  348,  digested 
supra  this  note. 

The  clerk  of  the  superior  court  or 
his  deputy  cannot  adjourn  an  ad- 
journed term  of  the  court  from  day  to 
day  for  two  days,  in  the  absence  of 
the  judge,  where  such  absence  has  not 
ben  caused  by  unavoidable  accident. 
Norrie  v.  McCullough,  74  Ga.  602. 

1.  Bennett  v.  Cooper,  57  Barb.  (N. 
Y.)  642  ;  Northrup  v.  People,  37  N.  Y. 
203.  But  where  the  statute  names 
a  town  as  a  place  for  holding  the  court- 
it  may  be  reasonably  adjourned  any. 
where  within  the  limits  of  that  town, 
Litchfield  Bank  v.  Church,  29  Conn. 
137- 

2.  Dryden  v.  Wyllis,  54  Iowa  668  ; 
Shaw  V.  McGregor,  8  Cal.  521  ;  Earls 
V.  Earls,  27  Kan.  538. 

Term  Cannot  be  Reopened  after  Final 
Adjournment. — Consequently  a  term 
once  finally  adjourned  cannot  be  re- 
opened by  an  order  made  in  vacation. 
International,  etc.,  R.  Co.  v.  Smith,  62 
Tex.  185  ;  Johnson  v.  Pittsburgh  R. 
Co.,  47  Ohio  St.  318  ;  Newman  v. 
Newton,  14  Fed.  Rep.  634  ;  Bank  of 
U.  S.  V.  Moss,  6  How.  (U.  S.)  31  ; 
Becker  v.  Sauter,  89  111.  596  ;  and  see 
note  to  Jacques  v.  Bridgeport  Horse 
R.  Co.,  r6  Am.  Law"  Reg.  N.  S.  660; 
Carpentier  v.  Hart,  5  Cal.  406. 


enter  in  the  journal  an  adjournment 
from  day  to  day  without  fixing  a  date 
for  reconvention,  was  held  inconsis- 
tent with  itself,  and  a  final  adjourn- 
ment.    Ex  p.  Lilly,  7  S.  Car.  372. 

Where  the  entry  was,  "  Ordered, 
that  all  cases  ready  for  trial  having 
been  disposed  of,  the  daily  sessions  of 
the  court  will  be  dispensed  with,  the 
term  of  the  court  not  being  closed,"  it 
was  held  to  keep  the  term  open  by 
daily  adjournments  of  the  clerk  until 
the  judge  saw  fit  to  return  and  reopen 
court.  De  Leon  v.  Barrett,  22  S.  Car. 
412. 

Sheriff  Exceeding  his  Authority. — 
W^here  the  sheriff  was  to  adjourn 
from  day  to  day  for  a  week,  if  the 
judge  was  absent,  and  at  the  expira- 
tion of  a  week,  the  term  sine  die,  it 
was  held  that  the  judge  who  attended 
within  the  week  may  vacate  an  order  of 
the  sheriff  adjourning  the  term  sine 
die  before  the  last  day  of  the  week 
had  arrived.  Thomas  v.  Fogarty,  19 
Cal.  644.  Compare  People  v.  Sanchez, 
24  Cal.  18  ;  Garza  v.  State,  12  Tex. 
App.  261. 

Telegraphic  Order. — Where  the  stat- 
ute required  a  written  order,  and  the 
judge  telegraphed  the  clerk,  "  I  have 
made  and  sent  you  a  written  order  ad- 
journing court  until  to-morrow  morn- 
ing nine  o'clock  ;  adjourn  it  accord- 
ingly," and  the  clerk  adjourned  before 
written  order  was  received,  it  was  held 
a  substantial  compliance  with  the 
statute.  State  v.  Holmes,  56  Iowa 
5S8  ;  41  Am  Rep.  121. 

Georgia. — But  in  Hoye  v.  State,  39 
Ga.  723,  it  was  held  that  a  provision 
that  the  commencement  of  the  term 
should  not  be  adjourned  by  the  court 
in  vacation,  except  for  some  unavoid- 
able cause,  was  mandatory,  and  that 
an  adjournment  without  sufficient 
cause  would  render  the  term  irregu- 
lar and  the  proceedings  thereat  void 
unless  the  irregularity  be  waived  by 
the  parties. 

In  Osgood  V.  State,  63  Ga.   791,   it 


243 


Courts  of  Secord. 


AD  JO  URNMENTS. 


The  Consequence  of. 


certain  leaves  it  intact.  As  no  court  can  create  a  new  term  to  it- 
self without  statutory  authority,  all  adjournments  to  a  future  day 
certain  are  but  prolongations  of  the  terms  adjourned.* 


1.  Mechanics'  Bank  v.  Withers,  6 
Wheat.  (U.  S.)  io6;  Cherry  Tp.  v.  Mar- 
ion Tp.,  96  Pa.  St.  528;  People  v.  Cen- 
tral Bank,  53  Barb.  (N.  Y.)  416; 
Stefani  v.  State,  124  Ind.  3;  Com.  v. 
Sessions,  5  Mass.  435;  Sawyer  v.  Bry- 
son,  10  Kan.  200;  Smith  v.  Smith,  17 
Ind.  75;  Ulmer  v.  State,  14  Ind.  52; 
Harris  v.  Gest,  4  Ohio  St.  469.  "In 
contemplation  of  law  there  is  but 
one  term."  Davis  7/.  Finney,  37  Kan. 
65;  Springbrook  Road,  64  Pa.  St.  451; 
Maynard  v.  Head,  78  Ga.  190;  Ex  p. 
Casey,  18  Fed.  Rep.  86;  McDonald  v. 
Cash,  45  Mo.  App.  66. 

A  court  at  an  adjourned  term  may 
cause  the  proceedings  of  the  regular 
term  to  be  entered.  Knight  v.  State, 
70  Ind.  375;  Green  v.  White,   18  Ind. 

317. 

Action  on  Appeal  Brought  at  an  Ad- 
journed Term. — In  Connecticut,  in  the 
case  of  Hawley  v.  Parrott,  10  Conn. 
486,  it  was  held  that  an  act  might  be 
brought  originally  in  the  county 
court  adjourned  from  a  regular  term 
to  a  distant  day.  The  court  said:  "So 
far  as  we  have  been  able  to  ascertain, 
these  adjourned  terms  (as  they  have 
been  denominated)  have  been  attended 
by  nearly,  if  not  all,  the  incidents  of  a 
statute  term.  Causes  have  been  car- 
ried forward  to  them  as  from  term 
to  term.  New  juries  have  been  sum- 
moned and  bills  of  cost  taxed  in  the 
same  manner  as  though  the  term  had 
been  prescribed  by  law."  But  in 
Leavenworth  v.  Marshall,  19  Conn. 
I,  it  was  held  that  where  a  statute  re- 
quired an  appeal  to  be  brought  at  the 
next  term  of  the  appellate  court,  the 
appeal  could  not  be  taken  to  an  ad- 
journed term  of  that  court.  The  court 
cited  and  relied  upon  Fellows  v.  Car- 
penter, Kirby  (Conn.)  364,  and  distin- 
guished Hawley  v.  Parrott,  10  Conn. 
486;  Brewster  v.  Shelton,  24- Conn. 
144;  approved  Fellows  v.  Carpenter, 
Kirby  (Conn.)  364,  saying:  "  And  the 
reason  assigned  by  the  court  was  that 
the  words  of  the  statute  granting  ap- 
peals to  the  next  county  court  had 
reference  to  the  next  stated  term,  and 
not  to  an  adjourned  term,  which  was 
but  a  continuation  of  a  term;"  and 
distinguished  Hawley  v.  Parrott,  10 
Conn.  486,  thus  :  "  In  a  more  recent 
case  this  court  held  that,    in  view  of 


the  long  practice  which  had  prevailed 
in  this  state,  an  original  suit  might  be 
brought  to  an  adjourned  term  of  the 
court  ;  but  the  decision  was  placed 
entirely  upon  the  ground  of  such  long- 
continued  practice,  which  could  not 
be  disturbed  without  shaking  the 
foundation  of  many  titles." 

So  in  Massachusetts  it  was  held  that 
where  an  application  was  to  be  made 
at  the  next  term  of  court,  the  appli- 
cation could  not  be  made  to  an 
adjournment  of  the  same  term.  Com. 
V.  Sessions,  5  Mass.  435. 

Adjourned  Term  and  New  Special  Term. 
— But  care  must  be  taken  to  distin- 
guish between  an  "adjourned  term" 
and  a  new  and  distinct  term.  Statutes 
permitting  courts  to  order  a  new  and 
additional  or  special  term,  for  which  a 
new  calendar  is  prepared  and  a  new 
panel  of  jurors  is  drawn,  are  held  to 
confer  on  the  court  the  power  to  create 
a  distinct  term,  at  which  it  has  no 
power  over  the  record  of  the  old. 
People  V.  Sullivan,  115  N.  Y.  185;  Saw- 
yer V.  Bryson,  10  Kan.  200.  And 
where  the  court  has  power  to  create 
such  new  term,  it  may,  where  its  char- 
acter is  doubtful,  be  held  such,  to  dis- 
courage long  adjournments.  Harris 
V.  Gest,  4  Ohio  St.  469. 

Statutes  frequently  provide  that 
courts  may  create  special  terms.  With- 
out judicial  construction  it  is  impossi- 
ble in  many  cases  to  say  whether  such 
statutes  merely  confirm  the  court's  in- 
herent power  to  adjourn  its  term,  or 
grant  it  power  to  create  a  new  one. 
N.  Y.  Code  Civ.  Pro.  sees.  34,  280; 
Conn.  R.  S.  sec.  1617;  Ala.  Code, 
sees.  652,  653;  Mich.  R.  S.  sees.  6392, 
6465,  6627;  Iowa  Code,  sec.  166;  111. 
R.  S.  chap.  37,  sees.  44,  45,  46,  47,  48, 
49;  Ga  Code,  sec.  3245;  Ohio  R.  S. 
sees.  410,  450:  Miss.  Code,  sees.  630, 
912;  Minn.  R.  S.  chap.  63,  sees.  9,  10; 
chap.  64,  sec.  15;  Va.  Code,  sees.  3060, 
3061,  3062,  3106;  Wis.  An.  St.  2428, 
2429,  4049;  Tenn.  Code,  sees.  4708, 
4709,  4713. 

Where  a  court  had  power  by  statute 
to  decide  all  matters  at  an  adjourned 
session  with  the  "same  effect"  as  it 
might  at  regular  term,  it  was  held 
a  new  term  for  purposes  of  ap- 
pearance, and  not  a  prolongation  of 
regular    term.      Horton   v.   Miller,    38 


244 


Courts  of  Becord. 


A  DJO  URNMENTS, 


The  Consequence  of. 


Existence  of  Court  during  Adjournment.— As  the  term  continues  until 
final  adjournment,  the  court  exists  as  well  during  temporary 
adjournment  as  in  open  session.^  The  duration  of  adjournment 
matters  not.  The  power  of  the  court  for  that  term  is,  in  some 
respects,  suspended,  but  not  destroyed.  The  failure  of  a  court 
to  meet  on  an  adjourned  day  does  not  therefore  make  further 
session  illegal  or  even  irregular,*  as  is  the  case  when  the  court 
does  not  meet  on  the  day  set  by  statute  for  the  beginning  of  the 
term. 3  It  may  meet  at  any  time  thereafter,  but  fair  notice  must 
be  given  to  all  concerned.* 

Power  over  Record  of  Past  Business.— Where  the  business  of  the  ad- 
journed term  must  be  stated  in  the  order  of  adjournment,  this 
does  not  limit  the  court's  power  over  the  record  of  past  business 
of  the  term.  A  judgment  previously  rendered  may  be  vacated 
at  such  adjourned  term.^ 


Pa.  St.  270;  and  compare  Smith  v. 
Northern  Pac.  R.  Co.  (N.  Dak.,  1892), 
53  N.  W.  Rep.  173.  Code  Va.  sec. 
3062  provides  that  any  civil  cause 
may  be  tried  at  a  special  term  which 
might  have  been  tried  at  regular  term. 
Held,  that  this  authorized  the  court  to 
act  upon  the  report  of  a  judicial 
sale,  although  the  statutory  period  of 
two  regular  terms  intervened,  and 
that  consent  of  parties  was  not  neces- 
sary. Harman  v.  Copenhagen,  89 
Va.  836.  On  the  other  hand,  a  statute 
providing  that  "special  or  adjourned 
terms  may  be  held  "  has  been  de- 
clared to  mean  that  such  special  terms 
are  adjourned  terms,  even  although 
the  court,  at  the  time  of  making  the 
order  for  the  special  term,  adjourned 
the  regular  term  sine  die.  Cole  County 
V.  Dallmeyer,  loi  Mo.  175. 

General  statutes  affecting  adjourn- 
ments apply  to  special  and  adjourned 
terms  as  well  as  to  regular  terms. 
State  V.  Harkins,  100  Mo.  666.  Com- 
pare Anonymous,  5  Mass.  197,  where 
"first  day  of  the  term"  was  held  to 
mean  regular,  not  adjourned,  term. 

Where  adjournment  is  made  to  a 
statutory  adjourned  term,  compliance 
with  the  statute  is  legal  notice  to  all 
parties  and  their  attorneys  having 
lAisiness  before  the  court,  and  they 
cannot  plead  lack  of  actual  notice. 
Rawson  v.  Powell,  36  Ga.  255. 

Presumption  as  to  whether  Special  or 
Adjourned  Term. — In  Harris  v.  Gest,  4 
Ohio  St.  469,  it  is  held  that  where  the 
court  has  power  to  create  such  new 
term,  and  the  adjournment  would  be 
a  long  one,  a  term  would,  where  its 
character  is  doubtful,  be  held  an 
additional  term  under  the   Ohio  stat- 


ute, rather  than  an  adjourned  term  : 
this  to  discourage  long  adjournments. 
But  in  Fannon  v.  Plummer,  30  Mo. 
App.  25,  it  was  held  that  when  a  court 
sitting  in  session  is  adjourned  to  a 
specified  day  prior  to  its  next  ensu- 
ing regular  term,  the  sitting  thus 
adjourned  is  a  continuation  of  the 
term  adjourned  from  and  not  a  special 
or  different  term. 

1.  Eastman  v.  Concord,  64  N.  H. 
264;  People  V.  Central  Bank,  53  Barb. 
(N.  Y.)4i2. 

2.  People  V.  Sullivan,  115  N.  Y.  185; 
State  V.  Bohan,  ig  Kan.  29;  Lang- 
horne  v.  Waller,  76  Va.  213;  Union 
Pac.  R.  Co.  V.  Hand,  7  Kan.  380;  La- 
bradie  v.  Dean,  47  Tex.  100,  where 
the  court  asserts:  "The  order  of  ad- 
journment of  its  session  from  day  to 
day  or  to  a  particular  hour  is  a  mere 
announcement  of  its  proposed  or  in- 
tended order  of  transacting  the  busi- 
ness to  come  before  it  during  the  term, 
but  certainly  the  failure  of  the  court 
to  meet  at  the  hour  or  on  the  day  to 
which  it  had  adjourned  can  in  no  way 
affect  the  termor  put  an  end  thereto." 

3.  See  supra  this  title. 

4.  People  V.  Sullivan,  115  N.  Y.  185. 
May  Meet  before  the  Day  to  which  it 

Adjourned. — And,  conversely,  it  may 
meet  before  the  day  of  adjournment 
has  arrived.  A  court  made  an  order 
of  adjournment  until  the  26th  of  a 
month.  It  met  on  the  22d  and  vacated 
the  prior  order  of  record,  substituting 
an  order  for  a  statutory  adjourned 
term.  Held,  legal.  Cole  County  v. 
Dallmeyer,  loi  Mo.  175;  Bowen  v. 
Stewart,  128  Ind.  508;  Wharton  v. 
Sims,  88  Ga.  617. 

5.  Wharton  v.  Sims,  88  Ga.  617. 

245 


Courts  of  Becord. 


AD  JO  URNMENTS. 


The  Consequence  of. 


Instructions,  etc.,  during  Kecess.— Instructions  may  be  given  to  the 
jury  and  their  verdicts  received  after  adjournment  for  the  night, 
bills  of  exceptions  and  petitions  filed  during  recess,  and  in 
general  all  acts  which  require  the  existence,  but  not  the  open 
sitting,  of  the  court  may  be  done  until  final  adjournment.* 

Waiver  of  Irregularities.— It  has  been  said  that  in  civil  cases  pro- 
ceeding to  trial  without  objection  is  a  waiver  of  any  irregularity 
in  the  adjournment.*     In  a  criminal  case  there  is  a  difference  in 

And  where  statute  confers  the  right 
to  order  adjourned  term  on  account  of 
unfinished  business,  this  does  not  de- 
stroy the  court's  power  over  the  record 
of  the  regular  term  as  such  adjourned 
term.  It  exists  unimpaired.  Smith  v. 
Smith,  17  Ind.  75. 

1.  State  V.  Knight,  19  Iowa  98; 
Eastman  v.  Concord,  64  N.  H.  264; 
State  V.  Bohan,  19  Kan.  29.  In  Barrett 
V.  State,  I  Wis.  180,  the  court  said: 
"  The  general  rule  is  that  the  term  is 
to  be  considered  as  of  one  day.  These 
intervals  (temporary  adjournment),  for 
the  purposes  aforesaid,  cannot  suspend 
the  functions  of  the  court  altogether. 
A  jury  may  be  out  after  the  court  has 
retired  for  the  night,  and  yet  miscon- 
duct of  a  juror  during  such  interval 
might  be  punished  as  for  contempt. 
Appliances  to  a  grand  or  petit  juror 
during  such  interval  would  be  con- 
tempt of  the  court.  If  the  officer  hav- 
ing charge  of  the  jury  during  such  re- 
cess or  adjournment  should  desert  his 
post  or  tamper  with  the  jury,  he  would 
be  punishable  a  for  contempt.  It  is 
heldby  some  courts  that  the  publication 
of  its  day'sproceedingsduringthe  even- 
ing or  night  may  be  a  contempt  of  the 
authority  of  the  court.  These  conse- 
quences could  not  be  if  the  ordinary 
adjournments  from  day  to  day  operated 
a  cessation  of  the  functions  of  the 
court.  A  grand  jury  may  continue 
the  session  and  deliberate,  administer 
oaths,  examine  witnesses,  find  bills, 
etc.,  during  such  intervals,  which  they 
could  not  do  after  an  adjournment  of 
the  term.  Indeed,  it  was  the  very  ex- 
istence and  vitality  of  the  court  on 
the  evening  in  question  which  author- 
ized the  jury  in  this  case  to  delib- 
erate." Accordingly  it  was  held  in 
the  above  case  that  a  verdict  taken 
in  the  court-room  after  the  court  had 
adjourned  for  the  night  was  valid. 
See  also  Shapley  v.  White,  6  N.  H. 
172,  where  a  judge's  instructions  de- 
livered to  jury  after  the  adjournment 
of  the  court,  and  where  neither  parties 


nor  their  attorneys  were  present,  were 
held  not  to  invalidate  the  verdict 
where  right  to  except  to  such  charge 
was  reserved. 

Dakota — Sunday. — Section  38S  of  the 
Code  of  Civil  Procedure  of  Dakota 
Territory  provided  that  while  the  jury 
were  absent  "the  court  may  adjourn 
from  time  to  time  as  to  the  other  busi- 
ness, but  it  is  nevertheless  deemed 
open  for  other  purposes  connected 
with  the  cause  submitted  to  them." 
It  was  held  that  under  this  section, 
where  a  jury  retired  to  consider  their 
verdict  on  Saturday,  the  court  might 
on  Sunday  give  additional  instructions 
to  correct  a  supposed  error  in  the  law. 
People  V.  Odell,  i  Dakota  197. 

"  If,  in  any  case,  this  court  would 
go  into  an  inquiry  on  this  subject,  it 
need  not  do  so  in  this,  for  the  reason 
that  nothing  appears  on  the  subject, 
and  we  must,  in  this  as  in  every  other 
case,  presume  in  favor  of  the  action 
of  the  criminal  court.  ...  If  the  de- 
fendant in  this  case  could  raise  the 
question  as  to  whether  the  notice  of 
the  adjourned  term  was  given  or  not, 
she  ought  to  have  made  the  objection 
in  the  criminal  court,  and  cannot  raise 
the  question  here  for  the  first  time, 
especially  as  the  record  is  silent  on 
the  subject  as  to  whether  the  notice 
was  given  or  not."  Harper  v.  State, 
42  Ind.  405. 

A  statute  declaring  that  if  the  judge 
should  not  attend  three  days  succes- 
sively the  court  should  stand  ad- 
journed sine  die  does  not  apply  to  in- 
tervals during  which  the  court  has 
been  regularly  adjourned.  Redwine 
V.  State,  15  Ind.  293;  Seymour  v.  State, 
15  Ind.  2S8. 

2.  Hoye  v.  State,  39  Ga.  724.  The 
court  said:  "  When  the  judge,  without 
any  sufficient  legal  cause,  has  ad- 
journed the  regular  term  of  the  court 
by  order  in  vacation,  we  hold  that  he 
has  no  power  at  such  adjourned  term  to 
compel  any  party  to  go  to  trial  before 
him.       If,    however,    parties    to    civil 


J  46 


Justice's  Court. 


AD  JO  URNMENTS.      Eeferees  and  Arbitrators. 


the  authorities  as  to  whether  the  defendant  can  waive  the  irregu- 
larity of  an  adjournment  by  implication.* 

III.  Justice's  Courts. — The  peculiar  character  of  the  court  of  jus- 
tices of  the  peace,  constituted  as  it  is  for  the  quick  trial  of  minor 
causes,  has  led  to  sharp  statutory  restrictions  of  their  power  to 
adjourn  a  cause  and  to  allow  continuances.  As  such  courts  prac- 
tically never  convene  for  any  other  purpose  than  the  trial  of  a 
simple  cause,  the  question  of  the  legality  of  the  adjournment  of 
the  court,  as  distinct  from  an  adjournment  of  a  case,  seldom  arises ; 
for  this  reason  it  has  been  thought  best  to  refer  a  discussion  of  the 
statutes  and  principles  governing  the  adjournment  of  a  justice's 
court  to  a  future  article  of  this  .work  upon  CONTINUANCES. 

IV.  Referees  and  Arbitrators. — Referees  and  arbitrators  have 
the  inherent  powers  of  a  judicial  tribunal  to  adjourn  from  day  to 
day  or  to  a  future  day  certain,  provided  such  day  be  not  beyond 
the  time  named  in  the  submissions  or  appointment,  or  defined  by 
statute.*  Unless  they  meet  at  the  time  and  place  appointed  for 
the  first  meeting,  they  do  not  constitute  a  judicial  tribunal,  an 
adjournment  cannot  be  made,  and  subsequent  proceedings  are 
void  unless  acquiesced  in  by  parties.^  When  once  constituted, 
failure  to  meet  at  an  adjourned  session  does  not  make  a  subse- 
quent session  irregular.*  When  the  time  limited  for  the  report  or 
award  expires,  the  power  of  adjournment  is  gone.'  Statutory 
restrictions  do  not  limit  the  common-law  power  in  the  absence 
of  conflict.® 


causes  make  no  objections  and  go  to 
trial,  we  hold  the  irregularity  is 
waived,  and  that  they  cannot  after- 
wards be  heard  to  object  to  the  judg- 
ment on  the  ground  of  the  illegal  acts 
of  the  judge  in  ordering  the  adjourn- 
ment. But  the  rule  is  different  in  a 
criminal  case  involving  the  life  or  lib- 
erty of  the*  defendant.  He  waives 
nothing  by  implication  or  intendment, 
and  unless  he  expressly  waives  the  ob- 
jection to  the  legality  of  the  adjourn- 
ment with  a  view  to  the  trial  which  is 
to  bind  him,  we  hold  that  he  may  take 
advantage  of  it  even  after  verdict." 

1.  Irregularity  Held  Waived. — In 
Henslie  v.  State,  3  Heisk.  (Tenn.)  206, 
it  was  held  that  where  the  defendant 
went  to  trial  without  making  any  ob- 
jection as  to  the  irregularity  of  the 
term,  he  could  not,  after  plea  of  not 
guilty  and  trial,  object  in  the  appellate 
court. 

In  Smurr  v.  State,  105  Ind.  125,  it 
was  held  that  if  in  a  criminal  case  the 
accused  voluntarily  goes  to  trial  with- 
out objection  to  the  irregularity  of  the 
adjourned  term,  an  objection  after  con- 
viction will  be  too  late  to  be  of  avail. 


Irregularity  Held  Not  to  be  Waived. — 
In  Hoye  v.  State,  39  Ga.  724,  it  was  held 
that  where  the  adjourned  term  was  ir- 
regular, although  the  defendant  went 
to  trial  without  any  objection  to  the  ir- 
regularity, unless  he  expressly  waives 
the  objection  to  the  legality  of  the  ad- 
journment, he  may  take  advantage  of 
it  even  after  verdict.  See  also  Finne- 
gan  V.  State,  57  Ga.  427. 

2.  Vinton  v.  Lindsey,  68  Ga.  291; 
Exp.  Rutter,  3  Hill  (N.  Y.)  464;  Abeel 
V.  Hubbell,  52  Mich.  38;  Campau  v. 
Brown,  48  Mich.  147;  Brown  z*.  Leavitt, 

26  Me.  251;  Richardson  v.  Hartsfield, 

27  Ga.  528. 

3.  Harris  v.  Norton,  7  Wend.  (N.  Y.) 
534;  Weir  V.  Johnston,  2  S.  &  R.  (Pa.) 
459;  Stiles  V.  Carlisle,  etc..  Turnpike 
Co.,  10  S.  &  R.  (Pa.)  289.  Contra, 
Small  V.  Deforest,  2  How.  Pr.  (N.  Y.) 
176.  The  learned  judge  in  the  last 
case      ignores      7      Wend.      (N.     Y.) 

534- 

4. 

5. 
Cas 

6. 
464. 


Harrington  v.  Rich,  6  Vt.  666. 
Browner  v.    Kingsley,    i   Johns. 
(N.  Y.)  334. 
Ex    p.     Rutter,    3    Hill   (N.    Y.) 


247 


Quasi- Judicial  Officers  AD  JO  URNMENTS.  Quasi-Judicial  Officers. 


Supervision  by  the  Court  of  Referee's  Action. — Courts  will  not  interfere 
with  referee's  discretionary  power  of  adjournment,^  and  it  is  not 
proper  to  apply  to  courts  unless  such  discretion  is  abused.* 
Although  the  granting  or  refusal  of  an  adjournment  is  discre- 
tionary with  the  referee,  if  injury  is  occasioned  to  either  side,  the 
court  will  interfere  and  set  aside  the  referee's  report,  or  appoint  a 
new  referee.* 

V.  ftUASl-JuDICIAL  Officees.— All  quasi-judicial  oflficers  or  bodies 
possess  an  inherent  power  of  adjournment  unless  restricted  by  stat- 
ute.* Such  an  adjournment  is  the  exercise  of  a  discretionary 
power,  and  is  not  the  subject  of  review  in  an  appellate  court  unless 
it  is  an  abuse  of  the  corporate  functions  of  the  adjourning  body  and 
operates  to  the  detriment  of  those  affected  by  such  action.* 
Accordingly  an  executive  council,®  a  board  of  commissioners  for 
altering  boundaries  of  school  districts,''  a  town  board,*  a  town 
meeting,®  commissioners  for  condemning  land,*®  a  court  consti- 
tuted only  for  the  trial  of  an  election  case,**  commissioners  for 
taking  depositions,*'-*  a  board  of  school  inspectors,**  and  a  board 
of  road-viewers**  have  been  held  to  be  able  to  adjourn  from 
time  to  time.  The  presumption  oi  legality  of  adjournment,**  and 
the  requirements  that  the  adjournment  must  be  reasonable  in 
itself  and  attended  with  reasonable  notice,  apply  to  all  these  and 
similar  bodies.*® 


1.  Sutherland,  J.,  in  Cooley  v.  Hunt- 
ington, i6  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  384,  note;  Langley  v.  Hickman,  i 
Sandf.  (N.  Y.)68i. 

2.  Ex  p.  Ratter,  3  Hill  (N.  Y.)  464; 
Packer  v.  French,  Hill  &  D.  Supp.  (N. 
Y.)  103;  Forbes  v.  Frary,  2  Johns.  Cas. 
(N.  Y.)  224. 

3.  Cooley  v.  Huntington,  16  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  384,  note; 
Forbes  v.  Frary,  2  Johns.  Cas.  (N.  Y.) 
224;  Forrest  v.  Forrest,  3  Bosw.  (N.  Y.) 
650. 

4.  Com.  V.  Brown,  28  Kan.  85;  Don- 
ough  V.  Dewey,  82  Mich.  309. 

6.  Donough  J/.  Dewey,  82Mich.    309. 

6.  Com.  V.  Brown,  28  Kan.  85. 

7.  Donough  v.  Dewey,  82  Mich.  309. 

8.  Leavenworth,  etc.,  R.  Co.  v. 
Meyer,  50  Kan.  25. 

9.  Wisconsin  Cent.  R.  Co.  v.  Ash- 
land County,  81  Wis.  i  ;  Goodel  v. 
Baker,  8  Cow.  (N.  Y.)  288. 

It  must  be  for  a  reasonable  cause  and 
to  a  specified  day.  People  v.  Town- 
ship Board,  38  Mich.  615. 

10.  Memphis,  etc.,  Co.  v.  Parsons 
Town  Co.,  26  Kan.  503. 

11.  Steele  v.  Martin,  6  Kan.  430. 

12.  Pindar  v.  Barlow,  31  Vt.  529. 

13.  Passage  v.  Board  of  School  In- 
spectors, 19  Mich.  330. 


14.  Butman  v.  Fowler,  17  Ohio  loi. 

15.  Town  Meetings. — Where  a  town 
board  had  power  to  adjourn  a  town 
meeting  if  the  place  of  original  adjourn- 
ment was  "inconvenient,"  upon  giving 
notice  by  proclamation,  it  was  held 
that  the  town  board  were  sole  judges 
as  to  whether  a  place  was  so  "  incon- 
venient "  as  to  warrant  an  adjourn- 
ment; that  the  provision  for  notice 
was  directory  and  actual  notice  bind- 
ing ;  and  that,  although  the  record 
stated  that  the  adjournment  was  made 
at  "  9  A.M."  and  the  adjourned  meet- 
ing began  also  at  "  9A.M.,"  it  would  be 
presumed  that  the  adjournment  was 
made  a  few  minutes  before  9.  Wis- 
consin Cent.  R.  Co.  v.  Ashland  Coun- 
ty, 81  Wis.  I. 

Presumption  as  to  Notice. — Leaven- 
worth,  etc.,    Co.    V.   Meyer,   50    Kan. 

25- 

16.  Unreasonable  and  Irregfular  Ad- 
journments.— Memphis,  etc.,  R.  Co.  v. 
Parsons  Town  Co.,  26  Kan.  503;  Ben 
nettz*.  Bennett,  37  W.  Va.  396;  Pindar 
V.  Barlow,  31  Vt.  529;  Beach  v.  Work- 
man, 20  N.  H.  379;  Wixom  v.  Stephens, 
17  Mich.  518,  97  Am.  Dec.  205;  But- 
man z/.  Fowler,  17  Ohio  loi;  O'Neil  v. 
Tyler  (N.  Dak.,  1892),  53  N.  W.  Rep. 
434- 

48 


ADMIRALTY. 

By  Edward  G.  Benedict. 

L  Definition,  251. 
II.  Admiealty  Cottets,  251. 

1.  District  Courts,  251. 

2.  Circuit  Cottrt  of  Appeals  ana  Supreme  Court,  252. 

m.  DiFFEEENT  KINDS  OF   ADMIEALTY  STTITS,  252. 

IV.  The  Libel,  253. 

V.    INTEEEOGATOEIES,  255. 

VI.  Amendments,  256. 

VII.   LiBELLANT'S  STIPTTLATION   FOE  COSTS,  257. 

VIII.  JoiNDEE  OF  Rem  and  Peesonam  Peoceedings,  257. 
IX.  FoEEiGN  Attachment,  258. 

1.  Generally,  258. 

2.  Garnishment,  259. 

3.  Defendant' s  Default,  260. 

4.  Issue  as  to  Ownership  of  Credits  and  Effects,  260. 

X.  Mesne  Peocess,  261. 

XI.  Peopeety  Exempt  feom  Seizitee,  262. 

XII.  Retuen  of  Peocess,  263. 

1.  Time  for  Return,  263. 

2.  Contents,  263. 

3.  Appearance  and  Default,  263. 

4.  Claim,  264. 

5.  Respondenf  s  Stipulation  for  Costs,  264. 

6.  Stipulations  for  Release,  265. 

7.  The  Stipulation  for  Value,  266. 

8.  Sale  of  Perishable  Property,  268. 

9.  Tender,  268. 

10.  Sale  on  Return — Publication,  269. 

Xm.  Respondent's  Pleadings,  269. 

1.  Exceptions  to  Libel,  269. 

2.  Petitions  under  Rule  59,  270. 

3.  Answer,  271. 

4.  Counterclaim — Cross  Libel,  272. 

Xrv.  Issue,  274. 
XV.  Telal,  274. 

249 


ADMIRALTY. 

XVI.   INTEBLOCUTOBY  DECREE  AND  RHFESEXCE,  275. 

1.  Generally,  275. 

2.  Exceptions  to  Report,  276. 

XVII.  Taxation  of  Costs,  276. 
XVIIL  Final  Decree,  276. 
XIX.  Summary  Judgment  and  Execution,  278 
XX.  Appeals,  278. 

1.  Generally,  278. 

2.  Appeal  Bond,  279. 

3.  Petition  of  Appeal,  280, 

4.  Assignment  of  Errors,  280. 

5.  The  Citation,  280, 

6.  Filing  Papor.,  281. 

7.  Exceptions  to  tiond,  28 1. 

8.  The  Apostles,  28 1. 

9.  A'^  Testimony,  281. 

10.  Briefs,  282. 

11.  Hearing,  282. 

12.  Decision — Mandate,  282. 

13.  Final  Decree,  283. 

14.  Appeal  to  Supreme  Court,  283. 

XXI.  Evidence,  283. 

1.  Generally.     Rules,  283. 

2.  Depositions  De  Be  tie  Esse,  284. 

3.  Comtnissions  to  Take  Testimony,  285. 

4.  Letters  Rogatory,  285. 

5.  Deposition  In  Perpetuam  Rei  Memoriam,  286. 

XXn.  Petitions  and  Motions,  286. 

XXIII.  Limitations  of  Actions,  287. 

XXIV.  Intervention,  288. 

XXV.  Consolidation  of  Suits,  289. 

XXVI.  Personal  Injuries— Death,  289. 

XXVII.  Death  of  a  Party,  290. 
XXVIII.  Costs,  290. 

XXIX.  Limitation  of  Ll^ility,  293. 

1.  Generally,  293. 

2.  The  Proceeding,  295. 

a.  Generally,  295. 

b.  The  Petition  or  Libel,  296. 

c.  Proceedings  under  the  Libel,  297.        [298. 

d.  Proof  of  Claims  and  Return  of  Monition, 

e.  Decree,  298. 

f.  Costs,  299. 

XXX.  Prize,  299. 

1 .  Generally,  299. 

2.  Captor's  First  Duty,  300. 

3.  Prize  Com7nissioners,  300. 

250 


Definition. 


ADMIRALTY. 


Courts. 


4.  Excuninatiotts  in  Preparatorio,  301. 

5.  FAing  the  Libel,  301. 

6.  Proceedings  on  Return  of  Process,  302. 

7.  Decree  by  Default,  302. 

8.  Further  Proofs,  302. 

9.  Distribution  of  Proceeds,  303. 

10.  Costs  and  Expenses,  2,oZ' 

11.  Damages,  303. 

1 2.  Appeals,  304. 

13.  Military  Salvage  on  Recaptures,  304. 

I.  Definition. — Admiralty  practice  as  comprehended  in  this 
article  is  the  practice  of  the  courts  of  the  United  States  sitting  as 
Courts  of  Admiralty.* 

II.  Admiralty  Courts — 1.  District  Courts. — The  courts  having 
original  jurisdiction  of  suits  or  causes  in  admiralty  are  the  United 
States  Courts.  On  the  foundation  of  the  government,  this  grant 
of  original  jurisdiction  over  all  cases  of  admiralty  was  given  to  the 
United  States  District  Courts  for  the  various  judicial  districts  of 
the  country.^ 


1.  Nature  of  Admiralty  Practice. — "The 
Admiralty  should  be  otherwise  known 
than  as  a  court  of  curious  learning, 
where  controversies  are  determined 
upon  principles  and  under  forms 
which,  to  the  popular  feeling,  are  un- 
usual, abstruse,  or  difficult  of  appre- 
hension. Its  process  and  forms  are 
indeed  in  many  respects  different  from 
the  common  law,  the  administration 
of  which  is  most  generally  familiar  to 
the  people  of  the  United  States.  But 
one  of  its  main  and  most  characteristic 
features  is  that  it  is,  to  the  extent  of 
its  jurisdiction,  a  court  of  equity.  It 
entertains  pleas  of  part  performance, 
and  decrees  an  instrument  to  be  good 
in  part  and  bad  in  part,  as  the  fact  and 
equity  of  the  case  may  be.  It  annuls 
positive  contracts  improvidently  en- 
tered into  by  its  "ward,"  the  seaman, 
and  is  not  restrained  from  his  protec- 
tion by  the  binding  sanctity  of  a  seal. 
It  rejects  altogether  in  its  pleadings 
the  technical  niceties  of  the  common 
law,  and  requires  only  that  the  sub- 
stantial merits  should  be  set  forth, 
in  forms  that  are  peculiar,  indeed,  but 
wholly  liberal  and  unembarrassing.  In 
the  construction  of  contracts  it  seeks 
to  conpbine  the  intention  of  the  parties 
and  actual  justice  in  the  result  of 
their  controversies."  George  Ticknor 
Curtis. 

2.  United  States  Courts  are  the  Courts  of 
Admiralty,  with  the  exception  of  the 
United  States  Circuit  Courts,  which 
have  no  admiralty  jurisdiction  since 


the  Act  of  Congress  establishing  Cir- 
cuit Courts  of  Appeals  (26  Sts.  at  L. 
p.  826)  except  in  certain  cases  of  dis- 
ability of  the  District  Judge  (Rev, 
Sts.  §ecs.  587,  588),  and  in  admiralty 
matters  involving  some  crimes  of 
owners  and  officers  of  vessels  (Rev. 
Sts.  sec.  629;  Ben.  Adm.  §  578).  This 
jurisdiction  to  the  federal  courts  in 
civil  cases  of  admiralty  is  given  by  U. 
S.  Const,  art.  Ill,  sees,  i,  2. 

3.  District  Courts. — Rev.  Sts.  sec.  563. 
See  Wayman  v.  Southard,  10  Wheat. 
(U.  S.)  I  ;  Beers  v.  Haughton,  9  Pet. 
(U.  S)  329.  These  courts  are  held  by 
one  judge,  the  United  States  District 
Judge  for  that  particular  District,  who, 
in  admiralty  causes,  is  judge  of  the 
facts  aswell  as  the  law.  Rev.  Sts.  sees. 
55I1  556.  There  is  no  right  to  trial  by 
jury  in  the  admiralty  except  in  cases 
arising  on  the  great  lakes.  Rev.  Sts. 
sec.  566  ;  U.  S.  v.  Schooner  Betsey,  4 
Cranch  (U.  S.)  443  ;  Bigley  v.  The 
Venture,  21  Fed.  Rep.  880. 

The  District  Judge  sits  alone  to  hear 
the  entire  cause,  except  that  in  certain 
of  the  Districts  the  court  sometimes 
calls  to  its  assistance  experts  in  sea- 
manship, to  whom  are  submitted 
doubtful  questions  of  navigation,  and 
the  court  applies  the  rules  of  law  to 
the  statement  of  the  proper  rules  of 
navigation  as  laid  down  by  them.  Such 
experts  are  commonly  called  admiralty 
assessors.  They  correspond  to  the 
Elder  Brethren  of  the  Trinity  House 
in  the  English  Admiralty  Courts. 


251 


Different  Kinds  of  Suits. 


ADMIRALTY. 


Different  Kinds  of  Snits. 


2.  Circuit  Court  of  Appeals  and  Supreme  Court. — The  causes  hav- 
ing been  heard  and  decided  in  the  District  Courts,  then  go  by 
appeal  to  the  United  States  Circuit  Courts  of  Appeals.*  This 
court  is  the  final  court  for  admiralty  causes ;  except  that  in  prize 
causes,  and  causes  involving  the  jurisdiction  of  the  District  Court, 
the  construction  or  application  of  the  Constitution,  and  cases  of 
conviction  of  capital  or  otherwise  infamous  crimes,  an  appeal  lies 
directly  from  the  District  Court  to  the  Supreme  Court  of  the 
States.2 

III.  DiFFEEENT  KINDS  OF  ADMIRALTY  SUITS. — In  general,  there  are 
two  kinds  of  admiralty  suits :  the  suit  in  personam  and  the  suit 
in  rem.^  The  first  of  these  may  be  a  simple  suit  iti  personam,  or 
a  suit  in  personam  with  a  clause  of  foreign  attachment.  These 
suits  may  in  certain  cases  be  joined.* 

Suit  in  Personam. — The  suit  in  personam  is  a  proceeding  against  a 
personal  defendant  who  can  be  served  with  process  in  the  dis- 
trict, as  in  an  ordinary  action  at  common  law.**  In  such  a  suit 
the  defendant  is  not  required  to  furnish  security  on  appearing  to 
defend,  except  the  security  for  costs,  spoken  of  hereafter.® 

The  Suit  in  Personam  with  Clause  of  Foreign  Attachment  corresponds  to  an 
action  at  law  begun  against  a  non-resident  defendant  by  attach- 
ment of  his  goods  and  chattels  in  the  district.'' 


1.  Circuit  Court  of  Appeals. — These  are 
courts  established  by  the  Act  of  March 
3,  1891,  26  Sts.  at  L.  p.  826,  in  each 
of  the  nine  circuits  into  which  the 
country  is  divided.  Admiralty  ap- 
peals are  heard  by  three  Judges,  who 
may  be  a  Supreme  Court  Justice  sit- 
ting with  Circuit  Judges,  or  a  Circuit 
Judge  sitting  with  District  Judges,  or 
all  Circuit  or  all  District  Judges.  The 
District  Judge  who  heard  the  case  in 
the  court  below  is,  however,  disquali- 
fied from  sitting  on  the  appeal.  The 
court  consists  of  three  judges,  but  two 
constitute  a  quorum,  and  hence  an  ap- 
peal may  be  heard  by  two  only.  Act 
of  March  i,  1891  ;  26  Sts.  at  L.  p. 
826. 

2.  Act  Cong.  March  i,  1891,  §  5. 
These  exceptions  are,  however,  rare, 
and  an  admiralty  case  generally 
goes  through  the  District  Court 
and  the  Circuit  Court  of  Appeals 
only. 

Certifying  Questions  to  Supreme  Court. 
— In  addition  to  the  above,  any  Cir- 
cuit Court  of  Appeals  may  certify  to 
the  Supreme  Court  any  questions  or 
propositions  of  law  concerning  which 
the  said  Circuit  Court  of  Appeals  de- 
sires instruction.  And  the  Supreme 
Court   may  require,    by   certiorari  or 

25 


otherwise,  any  case  to  be  certified  up 
to  it  for  its  review  and  determination. 
Act  Cong.  Mch.  i,  1891,  §  6. 

3.  See  discussion  of  in  rem  and  in 
personam  suits  in  The  Merchant,  Abb. 
Ad.  I. 

4.  Joinder  of  Rem  and  Personam  Pro- 
ceedings.— See  post,  VIII. 

Treating  In  Rem  Proceeding  as  one  In 
Personam. — It  has  been  held  that  a 
court  could  treat  a  suit  begun  in  rem 
as  one  in  personam,  where  no  injustice 
would  be  done  thereby.  118  Sticks  of 
Timber,  10  Ben.  (U.  S.)  86.  See  Copp 
V.  De  Castro,  etc.,  Co.,  8  Ben.  (U.S.) 
321.  See  also  The  Monte  A.,  12  Fed. 
Rep.  331. 

5.  As  to  beginning  a  suit  in  per- 
sonam by  attachment,  see  Y^,post.  Suit 
in  personam  for  repairs  to  a  domestic 
vessel  is  within  the  admiralty  jurisdic- 
tion. Endener  v.  Greco,  3  Fed.  Rep. 
411.  See  The  Brothers,  7  Fed.  Rep.  878. 
Also  a  suit  to  enforce  payment  of  costs 
awarded  by  the  decree  of  an  admiralty 
court  of  another  district.  Pennsylva- 
nia R.  Co.  V.  Gilhooley,  9  Fed.  Rep. 
618. 

6.  Post,  XII,  5. 

7.  Atkins  v.  Fiber  Disintegrating 
Co.,  18  Wall.  (U.  S.)  272;  Manro  v.  Al- 
meida, 10  Wheat.  (U.  S.)  473. 


The  Libel. 


ADMIRALTY. 


The  Libel. 


Suit  in  Eem.— The  third  suit  is  different  from  any  common-law 
action,  except,  perhaps,  actions  for  forfeiture,  in  that  the  offending 
vessel,  or  the  debtor  cargo,  or  some  res  or  thing,  is  directly  made 
defendant  and  proceeded  against.* 

IV.  Thz  Libel. — An  admiralty  suit  is  commenced  by  the  filing 
of  the  complaint,  or,  as  it  is  called  in  admiralty,  the  libel,*  in   the 


1.  Maritime  Liens  as  Basis  of  Suit. — 
B-n.  Adm.  §  362;  The  Dictator,  7 
Asp.  Mar.  L.  Cas.  251;  The  J-  W. 
French,  13  Fed.  Rep.  916;  The  Guid- 
ing Star,  18  Fed.  Rep.  263.  The  ex- 
istence of  a  Maritime  Lien  is  the 
basis  -of  the  suit  in  rem.  Beane  v. 
The  Mayurka,  2  Curt.  (U.  S.)  72;  and 
the  suit  cannot  be  maintained  without 
it.  Vandewater  v.  Steamship  Yankee 
Blade,  McAll.  (U.  S.)  9;  The  Larch, 
2  Curt.  (U.  S.)  427.  Liens  will  become 
barred  by  unreasonable  delay  in  en- 
forcement.     The  Galloway  C.  Morris, 

2  Abb.  (U.S.)  164;  The  H.  B.  Foster, 

3  Ware  (U.  S.)  165;  Steamboat  Buck 
eve  State,  Newb.  Adm.  (U.  S.)  iii; 
The  D.  M.  French,  i  Lowell  (U.  S.) 
43;  Steamer  Nevada,  2  Sawy.  (U.  S.) 
144.  A  master  has  no  lien  on  the  ves- 
sel for  wages  under  the  maritime  law. 
The  Dubuque,  2  Abb.  (U.  S.)  20;  The 
Larch,  2  Curt.  (U.S.)  427.  One  who 
lends  money  for  a  vessel's  repairs  has 
a  lien.  Davis  v.  Child,  Davies  (U.  S.) 
71.  Seamen's  wages  on  an  illegal  voy- 
age are  no  lien.  Brig  Langdon  Cheves, 
2  Mason  (U.  S.)  58.  Proceedings  in 
rem  cannot  be  instituted  against  an 
undivided  interest  of  an  owner  in  a 
vessel.  Manhattan  F.  Ins.  Co.  v.  Five 
Sixteenths  of  Schooner  C.  L.  Breed,  i 
Flip.  (U.  S.)655.  A  part  owner  cannot 
put  in  a  claim  for  wages  in  opposition 
to  creditors  who  have  liens  thereon. 
Petrie  v.  Steam-tug  Coal-Bluff  No.  2,  3 
Fed.  Rep.  531.  Proceedings  in  rem 
can  be  brought  against  domestic  ves- 
sels only  when  the  local  law  gives  a 
lien.  The  Asa  R.  Swift,  Newb.  Adm. 
553:  The  Alida,  Abb.  Adm.  165.  See 
Rodd  V.  Heartt,  21  Wall.(U.  S.)  558. 
As  to  maritime  liens  generally,  see 
tit.  Maritime  Liens,  Am.  &  Eng. 
Ency.  Law. 

2.  Technical  Bales  of  Common-Law 
Pleading  do  not  prevail  in  admiralty, but 
there  must  be  substantial  agreement 
between  pleading  and  proof.  West  v. 
Steamer  Uncle  Sam,  McAll.  (U.S.)  505; 
Jenks  V.  Lewis,  i  Ware  (U.  S.)  51. 
See  The  Kendal,  56  Fed.  Rep.  237; 
Hays  V.  Pittsburg,  etc.,  Packet  Co.,  33 


Fed.  Rep.  552;  Sloop  Merchant,  Abb. 
Adm.  51.  But  the  libellant  may  be  al- 
lowed to  amend.  The  City  of  New 
Orleans,  33  Fed.  Rep.  683.    See  Wl,post. 

The  Preferable  Form  of  Suit.— In  the 
two  latter  classes  of  suits,  the  defend- 
ant, on  obtaining  the  release  of  his 
property,  is  obliged  to  give  security 
to  pay  the  claim,  if  found  liable  by  the 
court.  Hence,  such  suit  is  preferable 
to  one  in  personam,  unless  the  defend- 
ant is  amply  able  to  respond  to  a 
judgment. 

Where  Several  Parties  are  Interested. 
— As  a  general  rule,  when  several 
persons  have  claims  itt  rem  of  a  like 
nature  against  a  single  thing,  and  all 
involving  one  question,  all  may  join  in 
a  single  libel.  The  Young  Mechanic, 
3  Ware  (U.  S.)  58.  A  libel  may  be  filed 
for  libellants  and  all  other  persons  in- 
terested. American  Ins.  Co.  v.  John- 
son, B.  &  H.  Adm.  9. 

Time  of  Filing  Libel. — Libel  prema- 
turely filed  may  be  dismissed.  The 
Martha,  B.  &  H.  Adm.  151.  In  admir- 
alty parties  prosecute  or  defend  upon 
their  rights  as  existing  at  the  institu- 
tion of  the  suit,  without  regard  to  the 
state  of  the  parties  when  the  right  of 
action  or  defense  accrued.  The  Bos- 
ton, B.  &  H.  Adm.  309.  A  defendant 
may  waive  the  fact  of  a  premature  filing 
of  the  libel.  The  Edward,  B.  &  H. 
Adm.  286;  The  Salem's  Cargo,  i 
Sprague  (U.  S.)  389.  The  objection  that 
a  libel  is  prematurely  filed  should  be 
taken  by  exception  on  return  of  process. 
Furniss  v.  Brig  Magoun,  Olc.  Adm.  55. 

The  Notice  of  the  Pendency  of  the  suit 
dates  from  the  service  of  process  on 
the  vessel.  The  Robert  Gaskin,  9  Fed. 
Rep.  62;  Ben.  Adm.  §  372  et  seq. 

Libel  Should  Show  Jurisdiction. — The 
libel  should  always  show  the  jurisdic- 
tion of  the  court.  Boon  v.  The  Hor- 
net, Crabbe  (U.  S.)  426  ;  Thomas  v. 
Lane,  2  Sumn.  (U.  S.)  i. 

Libel  of  Keview,  When  Lies. — Jackson 
V.  Munks,  58  Fed.  Rep.  596;  Snow  v. 
Edwards,  2  Lowell  (U.  S.)  273;  North- 
western Car  Co.  V.  Hopkins,  4  Biss. 
(U.  S.)  51. 


253 


The  Libel. 


ADMIRALTY. 


The  Libel. 


office  of  the  clerk  of  the  district  court  of  the  district  in  which  the 
defendant,  or  in  which  the  res^  or  property,  can  be  found.* 

Form  and  Contents. — The  Hbel  is  a  pleading  in  the  form  of  a  petition 
addressed  to  the  judge  of  the  court,  setting  forth  the  nature  of 
the  action,  as,  for  example,  that  it  is  a  cause,  civil  and  maritime,  of 
contract,  or  of  tort  and  damage,  or  of  salvage,  etc.;  '-*  if  the  libel  be 
in  rejn,  that  the  property  is  within  the  district ;  if  in  personam,  the 
names,  occupations,  and  places  of  residence  of  the  parties.* 

The  cause  of  action  must  then  be  set  forth  in  distinct  articles.* 


1.  Fretz  V.  Bull,  12  How.  (U.  S.) 
466;  The  Richard  Doane,  2  Ben.  (U.  S.) 
Ill;  The  Young  Mechanic,  3  Ware 
(U.S.)  58;  The  R.  P.  Chase,  3  Ware 
(U.S.)  294;  The  Queen,  40  Fed.  Rep. 
694;  The  Slavers,  2  Wall.  (U.  S.)  383. 
In  admiralty,  a  personal  defendant  is 
commonly  called  the  respondent. 

Misjoinder  of  Parties  libellant  does 
not  prevent  decree,  when  not  ob- 
jected to.  Coast  Wrecking  Co.  v. 
Phoenix  Ins.  Co.,  7  Fed.  Rep.  236.  See 
The  Ping-On  v.  Blethen,  11  Fed.  Rep. 
607. 

Suit  by  Non-Resident. — A  consignee  of 
goods,  though  but  an  agent  of  a  non- 
resident owner,  may  sue  in  his  own 
name  for  the  loss  of  the  goods.  The 
Nail  City,  22  Fed.  Rep.  537. 

Owner  of  Ooods  Injured  by  Collision 
may  libel  for  his  own  loss  and  for  his 
insurers,  when.  The  Anchoria,  g  Fed. 
Rep.  840.  When  libellant,  "on  be- 
half of  all  entitled,"  may  settle  suit 
for  his  own  interest.  McConnochie  v. 
Kerr,  9  Fed.  Rep.  50. 

2.  But  a  Libel  for  Salvage,  alleging 
that  it  was  "  a  cause  of  contract,  civil 
and  maritime  and  for  extra  services 
rendered,"  will  not  prevent  the  claim. 
Adams  v.  Bark  Island  City,  i  Cliff. 
(U.  S.)  2IO. 

3.  Fretz  v.  Bull,  12  How.  'U.S.) 466; 
The  Queen  of  the  Pacii. j,  61  Fed. 
Rep.  213. 

4.  Form  of  Libel:  particularity  in 
pleading. — Brig  Joseph  Gorham,  7 
Law  Rep.  135  ;  Schooner  Boston,  i 
Sumn.  (U.  S.)  328;  Holmes  v.  Oregon, 
etc.,  R.  Co.,  6  Sawy.  (U.  S.)  262;  Whit- 
tock  V.  Barque  Thales,  20  How.  Pr. 
(N.  Y.)  447;  Brig  Caroline  v.  U.  S., 
7  Cranch  (U.  S.)  496;  Schooner  Anne 
V.  U.  S.,  7  Cranch  (U.  S.)  570;  Orne 
V.  Townsend,  4  Mason  (U.  S.)  541. 

A  tender  should  not  be  alleged  in  a 
libel.  Mott  V.  Frost,  45  Fed.  Rep.  897; 
Brig  Aurora  v.  U.  S.,  7  Cranch  (U.  S.) 
382.     Libel  to  recover  penalty  under 


passenger  act  need  not  allege  that 
master  has  been  convicted  and  fined. 
The  Scotia,  39  Fed.  Rep.  429. 

Libel  for  loss  of  cargo  in  collision 
must  set  forth  a  sufficient  identifica- 
tion of  the  goods  and  also  the  es- 
sential elements  of  any  contract  of  in- 
surance on  which  rights  or  liabilities  of 
parties  may  depend.  The  Anchoria,  9 
Fed.  Rep.  840.  In  a  libel  of  informa- 
tion it  is  not  necessary  to  allege  that 
the  act  was  done  contrary  to  the  form 
of  the  statute  in  such  case  made  and 
provided.  The  Idaho,  29  Fed.  Rep. 
187.  When  a  penalty  is  demanded 
against  a  vessel  upon  grounds  not  set 
forth  in  the  libel,  it  will  be  ignored. 
The  Pope  Catlin,  31  Fed.  Rep.  408. 
In  a  suit  on  a  charter-party  a  copy 
Ihereof  should  be  attached  to  the  libel. 
Card  V.  Hines,  33  Fed.  Rep.  189. 

A  libel  of  information  for  an  offense 
created  by  statute  must  conclude 
against  the  form  of  the  statute,  or  re- 
fer to  some  statute  on  which  the  pros- 
ecution may  rest.  The  Nancy,  i  Gall. 
(U.  S.)  67.  And  it  must  describe  ex- 
actly the  offense.  Schooner  Hopper 
V.  U.  S.,  7  Cranch  (U.  S.)  389.  But  a 
libel  of  information  in  admiralty  need 
not  be  expressed  with  the  technical 
nicety  of  an  indictment  at  common 
law.  The  Samuel,  i  Wheat.  (U.  S.)  9. 
See  18,000  Gallons  of  Distilled  Spirits, 
5  Ben.  (U.  S.)4;  Two  Hundred  Chests 
of  Tea,  9  Wheat.  (U.  S.)  430;  U.  S.  v. 
Brig  Neurea,  19  How.  (U.  S.)  92;  Locke 
V.  U.  S.,  7  Cranch  (U.  S.)  339;  U.  S. 
V.  Schooner  Paryntha  Davis,  i  Cliff. 
(U.  S.)  532;  Schooner  Betsey,  i  Mason 
(U.  S.)  354;  U.  S.  V.  Schooner  Little 
Charles,  i  Marsh.  (U.  S.)  347 

In  a  collision  libel  it  is  not  sufficient 
to  allege  that  the  colliding  vessel  was 
negligently  handled,  but  the  facts 
must  be  given  so  that  the  court  may 
see  judicially  that  negligence  contrib- 
uted to  the  result.  The  H.  P.  Baldwin 
2  Abb.  (U.  S.)  257.    On  libel  for  forfeit- 


254 


Interrogatories. 


ADMIRALTY. 


Interrogatories. 


Prayer  for  Relief.— The  libel  is  closed  with  a  prayer  to  the  court  for 
relief  * —  in  a  suit  iji  personam,  that  the  court  will  hear  the  cause, 
and  adjudge  the  respondent  liable ;  in  a  suit  in  personam  with  a 
clause  of  foreign  attachment,  that,  if  the  respondent  cannot  be 
found,  his  goods  and  chattels  or  credits  and  effects  may  be 
attached  to  answer  libellant's  claim  ;  in  a  suit  in  rem,  that  the 
property  may  be  sold  and  libellant  paid  out  of  the  proceeds.* 
Other  prayers  of  course  become  necessary  in  special  suits,  as  in 
suits  for  possession,^  or  for  a  sale,  or  limitation  of  liability. 

Verification. — Libels  must  be  verified  by  the  party,'*  if  within  the 
United  States  and  within  lOO  miles  of  the  place  of  trial ;  other- 
wise by  an  agent  or  attorney  of  the  party,  who  should  give  the 
grounds  of  his  knowledge  of  the  facts,  and  the  reason  why  the 
verification  is  made  by  him.* 

V.  INTEEEOGATOEIES— By  Libellant.— At  the  close  of  the  libel  the 


ure  it  is  necessary  to  aver  an  actual 
seizure  of  tne  vessei.  The  Washing- 
ton, 4  Blatchf.  (U.  S.)  loi;  Tug  Oconto, 
5  Biss.  (U.  S.)  460;  Schooner  Silver 
Spring,  I  Sprague  (U.  S.)  551;  The 
Fideliter  v.    U.    S.,    i    Sawy.    (U.    S.) 

153- 

A  libel  by  material-men  to  enforce  a 
maritime  lien  should  show  the  foreign 
nature  of  .the  ship;  a  libel  to  enforce  a 
lien  against  a  domestic  vessel  should 
specify  the  statute  conferring  the  lien. 
Propeller  Charles  Mears,  Newb. 
Adm.  197.  Neglect  to  aver  owner- 
ship— waiver.  Steamship  Ville  de 
Paris,  3  Ben.  (U.  S.)  276.  Libel  in 
personam  for  loss  of  goods  must 
charge  the  vessel  as  a  common  car- 
rier; a  libel  in  rem  need  not  so  charge. 
The  Pacific,  Deady  (U.  S.)  17. 

Declarations  in  Collision  Cases  should 
aver  what  happened  on  the  one  vessel: 
they  may  aver  a  belief  as  to  what 
happened  on  the  other  vessel,  but 
absolute  proof  as  to  the  latter  is  not 
required.  The  Cambridge,  2  Low. 
(U.  S.)  21.  In  collision  cases  a  full 
averment  of  the  facts  is  necessary. 
Bark  Havre,  i  Ben.  (U.  S.)  295; 
Schooner  Washington  Sturges,  9  N.  Y. 
Leg.  Obs.  321;  Steamboat  Transport, 
I  Ben.  (U.  S.)  86;  McWilliams  v.  Steam- 
tug  Vim,  2  Fed.  Rep.  874. 

1.  The  H.  P.  Baldwin,  2  Abb.  (U.  S.) 
257;  McWilliams  v.  Steam-tug  Vim,  2 
Fed.  Rep.  874;  The  L.  P.  Dayton,  18 
Blatch.  (U.  S.)  411.  Under  a  prayer 
for  general  relief  an  admiralty  court 
may  make  such  decree  as  is  required 
by  the  proof,  though  not  precisely 
stated  in  the  libel.  Sonsmith  v.  The 
J.  P.  Donaldson,  21  Fed  Rep.  671. 


2.  Dupont  de  Nemours  v.  Vance,  ig 
How.  (U.  S.)  162;  Pettingill  v.  Dins- 
more,  Davies  (U.  S.)  208;  Treadwell  v. 
Joseph,  I  Sumn.  (U.  S.)  390;  Schooner 
Boston,  I  Sumn.  (U.  S.)  32S;  McWill- 
iams V.  Steam-tug  Vim,  2  Fed.  Rep. 
874;  The  Anchoria,  9  Fed.  Rep.  840. 

3.  A  sheriff  may  sue  in  admiralty  to 
recover  possession  of  a  vessel  attached 
by  him,  and  taken  out  of  his  custody 
and  removed  to  another  state.  The 
Bonnie  Doon,  36  Fed.  Rep.  770. 

4.  Hutson  V.  Jordan,  i  Ware  (U.  S.) 
386.  Pleadings  in  admiralty  may  be 
sworn  to  before  a  judge,  clerk,  U.  S. 
commissioner,  or  notary  public.  The 
seal  of  a  notary  public  is  not  essential. 
Tug  E.  W.  Gorgas,  10  Ben.  (U.  S.) 
460.  Each  party  in  admiralty  may  re- 
quire the  answer  of  the  other  under 
oath.  Jay  v.  Almy,  i  Woodb.  &  M. 
(U.  S.)  262. 

5.  The  personal  oath  of  the  libellant 
to  the  truth  of  the  facts  of  the  libel 
may  be  obtained,  if  required  by  re- 
spondent, by  means  of  a  commission 
or  dedimiis potestatem.     See  post. 

Failure  of  Libellant  to  Sign. — Process 
issued  on  libel  signed  by  proctors  in 
their  firm  name  is  not  void.  The  fail- 
ure of  libellant  to  sign  is  a  defect 
amendable,  and  to  be  overlooked  by 
the  court  after  judgment.  Hardy  v. 
Moore,  4  Fed.  Rep.  843.  Naming  li- 
bellant by  initials  is  immaterial.   Id. 

The  Authority  of  an  Attorney  to  Verify 
a  libel  need  not  appear  in  the  libel, 
but  may  be  proved  when  called  in 
question.  Martin  v.  Walker,  Abb. 
Adm.  579.  But  the  modern  practice 
is  to  give  in  the  affidavit  of  verifica- 
tion the  reason  for  such  verification. 


k 


255 


Amendments. 


ADMIRALTY, 


Amendments. 


Hbellant  is  entitled  to  propound  to  the  defendant  any  interroga- 
tories which  he  may  desire  to  have  answered  concerning  the  alle- 
gations of  the  libel.* 

By  Defendant. — And  in  like  manner  the  defendant  may,  at  the  foot 
of  the  answer,  propound  interrogatories  to  the  libellant  which 
must  be  answered  under  oath.* 

VI.  Amendments — Mattersof  Form.— Amendments  to  pleadings  in 
matters  of  form  are  always  allowed,  as  of  course,  at  any  time, 
on  motion  to  the  court.* 

Matters  of  Substance — And  amendments  in  mattersof  substance  are 
commonly  allowed  to  be  made,  on  cause  shown;  and  new  counts 
may  in  like  manner  be  filed.*     But  in  these  cases  the  court  may 


1.  Ben.  Adm.  §  477. 

Inspection  of  Documents  cann9t  be  had 
by  means  of  interrogatories.  Have- 
meyer,  etc.,  Co.  v.  Compania  Trans- 
atlantica  Espanola,  43  Fed.  Rep.  90. 
See  Scobel  v.  Giles,  19  Fed.  Rep.  224. 

The  Defendant  is  Bound  to  Answer 
them  specifically  on  oath  at  the  time 
of  filing  his  answer;  or  he  may  incor- 
porate the  answers  to  the  interroga- 
tories generally  in  his  answer.  The 
answers  stand,  as  evidence,  like  the 
pleadings  only.  The  Serapis,  37  Fed. 
Rep.  436. 

If  defendant  fails  to  answer  the  in- 
terrogatories, the  libellant  may  except 
to  his  answer,  and  the  answer  may  be 
stricken  out,  and  libellant  have  judg- 
ment by  default. 

2.  Penalty  for  Failure  to  Answer  is  the 
dismissal  of  the  libel,  or  the  compel- 
ling of  an  answer  by  an  attachment,  or 
the  taking  of  the  subject-matter  of  the 
\x\l^xro^z.\.ox\&s  pro  confesso  against  the 
libellant.     Ad.  Rule  32. 

Amendment  by  Inserting  Interroga- 
tories.— If  a  pleading  shall  have  been 
filed  without  interrogatories,  which 
the  party  afterwards  desires  to  pro- 
pound, the  proper  practice  is  to  file  an 
amended  pleading,  containing  the  de- 
sired interrogatories  at  the  foot  there- 
of. The  Edwin  Baxter,  32  Fed.  Rep. 
296. 

3.  Rev.  Sts.  sec.  954;  Brig  Caro- 
line V.  U.  S.,  7  Cranch  (U.  S.)  496; 
Schooner  Adeline,  9  Cranch  (U.  S.) 
244;  The  Divina  Pastora,  4  Wheat. 
(U.  S.)  52;  The  Mary  Ann,  8  Wheat. 
(U.  S.)  380;  Schooner  Anne?/.  U.  S.,  7 
Cranch  (U.  S.)  570;  The  Charles 
Morgan  v.  Kouns,  115  U.  S.  69;  The 
Louisiana,  37  Fed.  Rep.  664;  The  City 
of  New  Orleans,  33  Fed.  Rep.  683. 

Changing  Nature  of  Action. — But  an 
amendment   which   changes  a  suit   in 


rem  to  one  in  personam  will  not  be  al- 
lowed. The  General  Sedgwick,  29 
Fed.  Rep.  606;  nor  an  amendment 
which  changes  the  entire  nature  of  the 
claim.  The  Alanson  Sumner,  28  Fed. 
Rep.  670;  nor  one  introducing  a  new 
ground  of  claim  where  evidence  on 
that  point  has  not  been  taken  and  de- 
fendant's witnesses  are  gone.  The 
Keystone,  31  Fed.  Rep.  412. 

On  Appeal.  —  Amending  defective 
process  on  appeal.  Mason  v.  Ervine, 
27  Fed.  Rep.  240.  It  has  been  held  that 
amendments  could  be  made  jn  the  Cir- 
cuit Court.  The  Charles  Morgan  v. 
Kouns,  115  U.  S.  69. 

Claim  of  Interest. — A  libel  may  be 
amended  to  claim  interest  after  all  the 
issues  of  the  suit,  except  the  amount 
of  damages,  have  been  decided.  The 
J.  E.  Trudeau,  54  Fed.  Rep.  907. 

Carrying  Claim  Back. — It  is  necessary 
to  amend  a  libel  before  evidence  can 
be  admitted  carrying  libellant's  claim 
for  wages  back  of  the  date  named  in 
the  original  libel.  Pinkham  v.  Rutan, 
31  Fed.  Rep.  496. 

Substitution  of  Claimants. — Substitu- 
tion of  one  claimant  for  another. 
Rights  of  sureties.  Boden  v.  Dem- 
wolf,  56  Fed.  Rep.  846. 

Supplemental  Pleadings.  —  See  841 
Tons  of  Iron  Ore,  15  Fed.  Rep.  615; 
The  Tubal  Cain,  9  Fed.  Rep.  834;  Hen- 
derson V.  300  Tons  Iron  Ore,  38 
Fed.  Rep.  36;  Thomas  v.  Gray,  B.  & 
H.  Adm.  493. 

4.  The  Imogene  M.  Terry,  ig  Fed. 
Rep.  463;  Schooner  Edwin  Post,  6 
Fed.  Rep.  314.  See  The  Monte  A.,  12 
Fed.  Rep.  331;  The  Corozal,  19  Fed. 
Rep.  655;  The  Manha'sset,  19  Fed.  Rep. 
430;  The  George  Taulane,  22  Fed.  Rep. 
799;  The  J.  E.  Trudeau,  54  Fed.  Rep. 
907.  But  the  court  will  not  allow  an 
amendment  which  changes  the  entire 


556 


Joinder  of  Bern  and 


ADMIRALTY. 


Personam  Proceedings. 


impose  terms  on  the  party  desiring  to  amend.' 

VII.  Libellant's  Stipulation  foe  Costs.— Witii  the  libel  must  be 
filed  a  stipulation  for  costs,  which  is  an  unsealed  agreement  entered 
into  by  the  libellant.  with  sureties,  to  pay  all  costs  which  may  be 
awarded  against  him  in  case  he  fails  in  his  suit.* 

VIII.  Joinder  of  Rem  and  Peksonam  Proceedings— Eight  to  join.— 
In  certain  cases  the  rules  of  the  supreme  court  permit  a  libellant 
to  join  rem  zx^^  personam  proceedings  ;  in  certain  cases  they  for- 
bid such  joinder ;  in  other  cases  they  are  silent.**     But  in   cases 

nature  of  the  claim,  to  the  prejudice 
of  the  other  parties.  The  Alanson 
Sumner,  28  Fed.  Rep.  670;  The  Gen- 
eral Sedgwick,  29  Fed.  Rep.  606;  The 
Keystone,  31  Fed.  Rep.  412;  The 
Thomas  Melville,  31  Fed.  Rep.  486, 
New  Haven  Steamboat  Co.  v.  The 
Mayor,  36  Fed.  Rep.  716. 

1.  Rev.  Sts.  sec.  954;  The  Epwin 
Post,  6  Fed.  Rep.  314;  The  Maryland, 
19  Fed.  Rep.  551;  The  Monte  A.,  12 
Fed.  Rep.  331;  The  George  Taulane, 
22  Fed.  Rep.  799. 

2.  Rawson  v.  Lyon,  23  Fed.  Rep. 
107. 

Amount  of  Stipulation. — The  amounts 
required  vary  in  the  different  districts. 
In  the  New  York  districts,  in  cases  in 
rem,  the  stipulation  must  be  in  the  sum 
of  ^250;  in  cases  in  personam,  $100. 
A  resident  party  need  supply  but  one 
surety ;  non-residents  must  supply  two; 
and  all  must  justify  in  double  the 
amount  of  the  undertaking. 

When  not  Required.  —  The  United 
States  is  never  required  to  give  stipu- 
lations for  costs.  Under  the  rules  of 
the  Eastern  and  Southern  Districts  of 
New  York,  seamen,  and  sailors  com- 
ing 'nto  port  in  possession  of  property 
saved,  petitioners  for  money  in  the 
Registry  of  Court,  and  the  cities  of 
New  York  and  Brooklyn  need  give  no 
stipulations.  And  in  any  case,  on 
proper  cause  shown,  the  court  has  the 
power  to  dispense  with  the  stipula- 
tion and  allow  the  libellant  to  prose- 
cute in  forma  pauperis.  Thomas  v. 
Thorwegan,  27  Fed.  Rep.  400.  See 
The  Phoenix,  36  Fed.  Rep.  272.  Chap. 
209  of  the  Laws  of  1892  (Sts.  at  L.,  vol. 
27,  p.  252)  apparently  permits  a  citizen 
to  sue  in  forma  pauperis  without  ap- 
plication to  the  court,  and  on  the  filing 
of  a  libel  accompanied  by  an  affidavit 
in  the  form  of  that  statute  process 
will  issue  as  of  course.  If  libellant 
be  not  a  citizen,  or  there  are  any  spe- 
cial circumstances,  the  order  of  court 
is  still  necessary.     This  statute  seems 


I  Encyc.  PI.  &  Pr.— 17. 


to  refer  only  to  exemption  from  pre- 
payment of  costs.  The  court  also 
has  power  to  exact  security  in  cases 
usually  commenced  without  it.  Cole 
V.  Tollison,  40  Fed.  Rep.  303.  Sea- 
men and  poor  suitors  are  not  re- 
quired to  give  security.  The  Shel- 
bourne,  30  Fed.  Rep.  510;  The  Phoenix, 
36  Fed.  Rep.  272;  Bradford  v.  Brad- 
ford, 2  Flip.  (U.  S.)  281;  Polydore  v. 
Prince,  i  Ware  (U.  S.)  402;  Thomas  v. 
Thorwegan,  27  Fed.  Rep.  400.  Com- 
/flr^Wheatley  v.  Hotchkiss,  i  Sprague 
(U:  S.)  225. 

Waiver. — The  rule  requiring  stipula- 
tion for  costs  may  be  waived.  Poly- 
dore V.  Prince,  i  Ware  (U.  S.)  402. 

3.  Thus  in  Supreme  Ccurt  Rules, 
12  to  20  are  named  cases  of  supplies, 
wages,  pilotage,  collision,  assault,  ma- 
rine hypothecations, bottomry, and  sal- 
vage, and  the  rules  state  specifically 
whether  the  ship,  freight,  owner,  or 
master,  or  any  one  or  more  of  them, 
may  be  proceeded  against.  See  Bon- 
dies  V.  Sherwood,  22  How.  (U.  S.)  214; 
The  Alida,  12  Fed.  Rep.  343;  The 
Guiding  Star,  i  Fed.  Rep.  347;  The 
Clatsop  Chief,  8  Fed.  Rep.  163;  The 
Corsair,  145  U.  S.  335.  In  a  suit  in 
rem  to  recover  possession  of  a  wreck, 
it  is  improper  to  join  the  wreckmasier. 
The  Margaretta,  29  Fed.  Rep.  324. 
Joinder  of  in  rem  and  in  personam  suits 
for  salvage  against  the  same  goods  is 
not  permitted.  Nott  v.  Steamboat  Sa- 
bine, 2  Woods  (U.  S.)  211.  When  a  libel 
is  filed  against. a  vessel  and  its  master 
for  a  cause  of  action  in  which  both 
may  be  liable,  the  libellant  will  not  be 
compelled  to  elect  between  his  remedy 
in  rem  and  inpersonatn.  The  Zenobia, 
Abb.  Adm.  48.  Separate  trespasses 
by  defendants  who  are  not  jointly 
liable.  Thomas  v  Law,  2  Sumn.  (U.  S.) 
i;  Roberts  v.  Skolfield,  3  Ware  (U.  S.) 
184.  Action  for  assault  and  action  for 
wages.  Pratt  v.  Thomas,  i  Ware  (U. 
S.)  437;  Borden  v.  Hiern,  B.  &  H. 
Adm.  293.     An  objection  to  a  suit  be- 

257 


Foreign  Attachment. 


ADMIRALTY. 


Generally. 


where  it  is  not  expressly  forbidden  by  those  rules,  the  courts  have 
generally  agreed  that  the  cause  in  rent  may  be  united  in  one  suit 
with  the  cause  in  personam.^ 

One  Snit  as  Bar  to  Another. — Analogous  to  the  above  is  the  question 
whether  a  suit  in  rem  is  a  bar  to  a  suit  in  personam  on  the  same 
cause  of  action.  It  is  not,  even  in  cases  of  collision,  where  the 
two  suits  cannot  be  joined,  unless  in  case  of  special  hardship 
caused  by  the  bringing  of  the  two  suits.  One  may,  however,  be 
stayed  until  the  hearing  of  the  other.'-* 

IX.  Foreign  Attachment— i.  Generally. — The  Supreme  Court 
rules  provide  that  the  mesne  process^  maybe,  among  other  things, 
by  a  warrant  of  arrest  of  the  person  of  the  defendant,  with  a 
clause  or  order  therein,  if  he  cannot  be  found,  to  attach  his  goods 
and  chattels  to  the  amount  sued  for,  or,  if  such  property  cannot 
be  found,  to  attach  his  credits  and  effects  to  the  amount  sued 
for  in  the  hands  of  the  garnishee  named  therein."*  This  is  called 
foreign  attachment. 


cause  of  such  joinder  should  be  taken 
by  exception  before  answer.  The  City 
of  Carlisle,  39  Fed.  Rep.  807.  A  suit 
in  personam  will  not  lie  against  a  mas- 
ter for  failing  to  sign  a  clear  bill  of 
lading,  but  the  remedy  is  against  the 
owners,  or  in  rem  against  the  vessel. 
Paterson  v.  Dakin,  31  Fed.  Rep.  6S2. 
Collision.  Ward  v.  The  Ogdensburg, 
5  McLean  (U.  S.)  622;  Mayor  v.  White, 
59  Fed.  Rep.  617.  In  rem  against  the 
vessel  and  in  personam  against  the 
master  may  be  joined.  Newell  v.  Nor- 
ton, 3  Wall.  (U.  S.)  257.  Wages.  Sloop 
Merchant,  Abb.  Adm.  i.  Contract. 
Henry  v.  The  Josie,  59  Fed.  Rep.  782. 
A  proceeding  against  the  vessel  and 
one  against  the  cargo  may  be  joined 
when  both  arise  out  of  the  same  trans- 
action. The  Dauntless,  7  Fed.  Rep.  366. 
The  question  of  the  right  to  sue  ship 
or  freight,  or  master  or  owner,  for 
particular  services  does  not  depend 
on  the  I2th  rule,  but  upon  the  gen- 
eral admiralty  and  maritime  law. 
Brig  Eledora,  2  Ben.  (U.  S.)  31. 

1.  In  suits  on  charter-parties  and 
contracts  of  affreightment  it  is  settled 
that  one  may  join  the  two  remedies. 
The  Director.  26  Fed.  Rep.  703;  The 
Baracoa,  44  Fed.  Rep.  102;  Vaughan 
V.  630  Casks,  7  Ben.  (U.  S.)  506;  The 
J.  F.  Warner,  22  Fed.  Rep.  345;  The 
City  of  Carlisle,  14  Savvy.  (U.  S.)  179; 
The  Monte  A.,  12  Fed.  Rep.  331;  The 
Prinz  Georg,  19  Fed.  Rep.  653. 

The  59th  Rule. — This  right  to  join 
the  different  proceedings  has  been 
considerably  enlarged  since  the  adop- 


tion of  the  59th  Rule,  permitting  one 
sued  to  bring  into  the  same  suit,  by  pe- 
tition, an  alleged  joint  tort-feasor.  In 
the  case  of  The  City  of  Lincoln,  25  Fed. 
Rep.  835,  the  original  libel  was  filed 
against  the  ship  to  recover  for  damage 
done  to  cargo  in  discharging  it  upon  a 
wharf.  The  ship  petitioned  that  the 
wharfinger  might  be  made  a  codefend- 
ant,  and  the  court,  under  the  analogy  of 
the  59th  Rule,  granted  the  petition  and 
made  the  owner  of  the  pier  codefend- 
ant  with  the  ship,  and  on  final  hearing 
each  was  compelled  to  pay  one-half 
the  damages.  In  the  case  of  Joice  v. 
Canal  Boats,  32  Fed.  Rep.  553,  the 
court  held  that  the  15th  Rule,  pro- 
hibiting joinder  of  owner  and  vessel 
in  cases  of  collision,  referred  only  to 
the  joinder  of  the  vessel  and  her  own 
owners,  and  that  even  in  cases  of  col- 
lision there  could  be  joined  one  of  the 
offending  vessels  with  the  owners  of 
another  vessel,  alleged  to  be  liable  for 
the  same  collision.  See  The  Alert,  40 
Fed.  Rep.  836.  Contra,  The  Young 
America,  i  Brown  Adm.  462. 

2.  Atlantic  Mut.  Ins.  Co.  v.  Alexan- 
dre, 16  Fed.  Rep.  279;  Watson  v.  Jones, 
13  Wall.  (U.  S.)  715  ;  Buck*!/.  Colbath, 
3  Wall.  (U.  S.)  334;  Providence  Wash- 
ington Ins.  Co.  V.  Wager,  35  Fed.  Rep. 
364;  The  Normandie,  40  Fed.  Rep.  590. 
affirmed  58  Fed.  Rep.  427.  See  The 
City  of  New  York,  25  Fed.  Rep.  149. 

3.  S^&post,  X. 

4.  Adm.  Rule  2;  Ben.  Adm.  §  426  et 
seq.  The  Alpena,  4  Fed.  Rep.  361.  The 
process  of  foreign  attachment  is  gov- 


258 


Foreign  Attacliment. 


ADMIRALTY. 


Garnishment. 


2.  Garnishiment. — If  the  defendant  has  no  goods  and  chattels 
which  can  be  found  by  the  marshal  within  the  district,  then  his 
credits  and  effects  in  the  hands  of  third  parties  may  be  attached. 
And  as  it  is  not  necessary  for  the  marshal  to  delay  in  attaching 
goods  and  chattels  in  order  to  find  and  make  service  upon  the  de- 
emed primarily  by  the  rules  of  the 
Supreme  Court.  Shorey  v.  Rennell,  i 
Sprague  (U.  S.)  418. 

The  clause  of  Rule  2  providing  that 
goods  may  be  attached  if  defendant 
cannot  be  found  does  not  mean  found 
for  the  purpose  of  arrest,  so  as  to  jus- 
tify an  attachment  in  a  case  where  de- 
fendant is  actually  within  and  a  resi- 
dent of  the  district,  but  cannot  be  ar- 
rested because  of  the  state  law.  The 
Bremena  v.  Card,  38  Fed.  Rep.  144. 

The  Practice  is  Old,  dating  at  least 
from  the  time  of  Queen  Elizabeth, 
being  fully  set  forth  in  Gierke's  Praxis, 
a  manual  of  admiralty  practice  pub- 
lished at  that  time.  Clerke,  Praxis 
Curiae  Admiralitatis  Anglis,  tit.  24-32. 
See  Smith  v.  Miln,  Abb.  Adm.  373. 

The  Modern  Practice  under  the  Su- 
preme Court  rule  is  not  to  apply  for  a 
warrant  of  arrest  for  the  defendant, 
but  for  a  simple  monition  to  him  to 
appear  and  answer  the  libel,  and  if  he 
cannot  be  found  by  the  marshal,  and 
the  monition  in  consequence  cannot  be 
served,  then  the  marshal  may  attach 
the  respondent's  goods  and  chattels. 
When  the  marshal  returns  that  he  has 
made  reasonable  efforts  to  find  defend- 
ant before  attaching  the  property,  the 
attachment  will  not  be  set  aside.  Har- 
riman  v.  Rockaway  Beach  Pier  Co.,  5 
Fed.  Rep.  461.  An  iron  pier  is  not 
"  goods  and  chattels."     Id. 

If  such  Goods  and  Chattels  cannot  be 
Found,  then  the  marshal  may  attach  his 
credits  and  effects  in  the  hands  of  a 
third  party.  Gaines  ik  Travis,  Abb. 
Adm.  422;  Gardner  v.  Isaacson,  Abb. 
Adm.  141.  See  Chiesa  v.  Conover,  36 
Fed.  Rep.  334.  Attachable  credit.  Dent 
V.  Radmann,  i  Fed.  Rep.  882. 

The  Object  of  the  Practice  is  to  compel 
the  appearance  of  the  defendant  and 
render  him  or  his  property  subject  to 
the  decree.  Smith  v.  Miln,  Abb.  Adm. 
373.  It  is  not  necessary  that  he  be  a 
foreigner  or  a  non-resident  of  the 
state.  Atkins  v.  Fiber  Disintegrating 
Co.,  18  Wall.  (U.  S.)  272. 

Non-Besidence — Service  of  Process. — It 
is  not  even  necessary  that  he  be  a  non- 
resident of  the  district.  The  sole 
requisite  of  the  right  to  so  attach  is 


that  he  be  not  found  within  the  district 
by  the  marshal  to  be  served  with  the 
citation.  Grace  v.  Evans,  2  Ben.  (U. 
S.)  479.  A  libel  in  personam  in  ad- 
miralty is  not  a  civil  suit  within  the 
meaning  of  the  eleventh  section  of  the 
Judiciary  Act;  and  it  is  sufficient  ser- 
vice of  process  to  give  the  court  juris- 
diction if  property  of  the  respondent 
found  in  the  district  has  been  attached, 
irrespective  of  the  residence  or  pres- 
ence of  the  respondent.  Manchester 
Hopkins  v.  Hotchkiss,  13  Int.  Rev. 
Rec.  125,  ID  Am.  L.  Reg.  (N.  S.)  379; 
Atkins  V.  Fiber  Disintegrating  Co.,  18 
Wall.  (U.  S.)  272;  Bouysson  v.  Miller, 
Bee  Adm.  186;  Clarke  v.  New  Jersey 
Steam  Nav.  Co.,  i  Story  (U.  S.)  531. 
A  court  of  admiralty  may  arrest  the 
person,  the  property,  or,  by  a  foreign 
attachment,  the  choses  in  action,  of  a 
tort-feasor.  The  Invincible,  2  Gall. 
(U.  S.)  29.  When,  in  a  suit  in  personam, 
defendant's  property  has  been  at- 
tached, but  process  has  not  been  per- 
sonally served,  a  decree  cannot  be 
made  against  the  defendant  person- 
ally. Boyd  V.  Urquhart,  i  Sprague 
(U.S.)  423. 

The  Marshal  is  not  Bound  to  Make 
any  Extended  Search  for  the  Defendant 
within  the  district.  He  should  go  to 
the  defendant's  residence  or  his  place 
of  business;  but  if  he  cannot  be  found 
at  such  place,  the  marshal  is  justified 
in  making  a  return  that,  not  finding 
the  defendant,  he  thereupon  attached 
his  goods  and  chattels.  See  Interna- 
tional Grain  Ceiling  Co.  v.  Dill,  10  Ben. 
(U.  S.)  62. 

Names  of  Non-Besidents. — When  the 
owners  of  a  vessel  are  all  non-resi- 
dents it  is  not  necessary  to  specify 
them  all  by  name  before  obtaining  an 
attachment  of  the  vessel.  Card  v. 
Hines,  39  Fed.  Rep.  818.  See  Card  v. 
Hines,  35  Fed.  Rep.  598.  When  suit 
has  been  brought  against  one  of  two 
shipowners,  and  property  attached 
thereunder  and  released  before  the 
name  of  the  other  owner  is  introduced, 
the  suit  must  be  regarded  as  against 
the  original  respondent  only.  National 
Board  of  Marine  Underwriters  v. 
Melchers,  45  Fed.  Rep.  643. 


259 


Foreign  Attachment. 


ADMIRALTY. 


Ownership  of  Effects. 


fendant,  so  it  is  not  necessary  for  the  marshal  to  lose  time  in 
searching  for  his  goods  and  chattels  when  he  knows  of  credits  and 
effects  belonging  to  him  which  may  be  attached  in  the  hands  of  a 
third  party.  Such  third  party  is  called  a  garnishee,  and  such 
attachment  is  called  a  garnisJiment  of  property.^ 

3.  Defendant's  Default. — If  the  marshal  returns  that  he  has  not 
found  the  defendant,  but  has  attached  his  goods  and  chattels,  the 
libellant  may  take  the  default  of  the  defendant,  and  obtain  an 
order  for  the  sale  of  the  goods  and  chattels  to  satisfy  his  claim. 
But  the  defendant  may  at  any  time,  either  before  or  on  the 
return  of  process,  obtain  the  release  of  his  goods  and  chattels  on 
giving  proper  stipulations  to  appear  and  abide  by  all  orders  of  the 
court.''* 

4.  Issue  as  to  Ownership  of  Credits  and  Effects. — When  the  de- 
fendant does  not  appear,  the  garnishee  may  come  in  and  deny 
that  the  credits  and  effects  attached  belong  to  the  defendant.  This 
raises  a  preliminary  issue  which  must  be  determined  before  default 
can  be  taken.     If  it  is  admitted  that  the  credits  and  effects  are 


1.  Garnishment  Process. — Property  is 
attached  in  the  hands  of  a  third  party 
by  the  service  of  a  copy  of  the  process 
on  the  person  who  holds  the  credits 
and  effects,  the  marshal  at  the  time 
exhibiting  to  such  person  the  origi- 
nal process.  Gushing  v.  Laird,  4  Ben. 
(U.  S.)  70. 

Disposal  and  Ownership  of  Property. — 
This  cites  the  garnishee  to  appear  in 
court  on  the  return  day  of  the  process, 
and  pending  such  return  day  the  gar- 
nishee may  not  dispose  of  the  property 
attached,  except  by  delivering  it  to  the 
marshal,  without  rendering  himself 
liable  to  be  attached  for  contempt. 
Hence  the  name  garnishee,  that  is,  one 
who  is  garnished  or  warned.  Bouv. 
L.  Diet.  tit.  Garnish.  The  service  of 
a  monition  by  a  marshal  upon  a  gar- 
nishee does  not  necessarily  place  the 
fund  out  of  reach  of  an  officer  of  a 
state  court.  The  Olivia  A.  Carrigan, 
7  Fed.  Rep.  507. 

The  garnishee  may  at  once  deliver 
up  to  the  marshal  the  specified  credits 
and  effects,  and  thereafter  pay  no  fur- 
ther attention  to  the  matter,  the  mar- 
shal returning  the  fact  to  court  and 
becoming  responsible  for  the  credits 
and  effects,  or  depositing  them  in  the 
registry  of  court.  A  garnishee  may 
always  be  compelled  to  answer  on  oath 
as  to  the  debts,  credits,  or  effects  of 
the  defendant  in  his  hands.  Adm. 
Rule  37;  Ben.  Adm.  §  459;  Shorey  v. 
Rennell,  Sprague  (U.  S.)  418.  And  he 
may  deny  the  fact  that  the  property  so 


attached  belongs  to  the  respondent. 
He  must  then  appear  on  the  return  of 
process  and  make  oath  as  to  the  own- 
ership of  the  property  and  his  interest 
in  it,  and  if  there  is  part  that  he  does 
not  claim,  he  must  pay  that  part  into 
court  orgive  a  stipulation  to  abide  the 
event.  In  default  of  this  he  may  be 
attached  for  contempt. 

2.  It  must  be  always  remembered 
that  as  the  reason  for  a  foreign  at- 
tachment is  simply  to  compel  an  appear- 
ance (see  Reed  v.  Hussey,  B.  &  H.  Adm. 
525),  such  attachment  can  always  be 
avoided  by  an  appearance.  As  the 
marshal  cannot  attach  if  he  can  find 
the  defendant  to  serve  him,  so  if  the 
defendant  learns  of  the  proceeding 
and  enters  an  appearance  before  his 
property  is  attached,  no  attachment 
can  thereafter  be  made,  and  the  de- 
fendant is  not  obliged  to  give  any 
stipulation  other  than  the  ordinary 
stipulation  in  $100  for  costs,  ex- 
acted in  any  suit  in  personatn.  But 
when  a  foreign  attachment  issued 
upon  a  libel  did  not  rightly  go 
against  certain  property  in  the  hands 
of  third  parties,  and  such  third  par- 
ties might  therefore  have  taken  no 
notice  of  the  libel,  but  in  fact  did  ap- 
pear and  answer  the  libel,  the  court 
considered  the  case  upon  the  same 
footing  as  if  the  property  had  been 
attached  and  the  claimants  had  inter- 
vened in  respect  thereto.  Reed  v. 
Hussey,  B.  &  H.  Adm.  525. 


260 


Mesne  Process. 


ADMIRALTY. 


Mesne  Process. 


the  defendant's,  the  garnishee  need  not  appear,  but  may  let  the 
case  take  its  course,  and  pay  over  the  credits  and  effects  to  the 
marshal,  as  stated  above,  or  as  ordered  by  the  court  on  final  de- 
cree. But  if  he  denies  that  the  defendant  is  the  true  owner,  it  is 
his  duty  to  appear  on  the  return  of  the  monition,  and  so  plead.* 

X.  Mesne  Process. — On  the  filing  of  the  libel,  with  proper 
stipulation  for  costs,  in  the  office  of  the  clerk,  the  latter  issues,  as 
of  course,  a  writ  or  order  to  the  marshal,  which  is  called  process. 
This  is  issued  in  the  name  of  the  President  of  the  United  States, 
tested  by  the  judge  of  the  court,  and  signed  and  sealed  by  the 
clerk.  It  is  directed  to  the  marshal,  and,  after  setting  forth  the 
facts  as  to  the  filing  of  the  libel,  it  directs  the  marshal  to  attach 
and  safely  keep  the  said  property,  if  the  action  be  in  rem,  or  to 
arrest  or  cite  the  defendant  to  answer,  or  to  attach  his  goods  and 
chattels,  if  he  cannot  be  found,  according  to  the  various  prayers 
in  the  different  kinds  of  causes.* 

Duty  of  Marshal.— This  process  is  delivered  by  the  clerk  or  the 
proctor  for  the  libellant  to  the  marshal,  by  whom  it  is  executed  ; 
that  is,  the  marshal  serves  a  citation  on  the  defendant,  or  attaches 
his  goods,  or  seizes  the  res  proceeded  against.^ 

1.  This  Issue,  as  to  Ownership  of  the     service  of  process  is  never  made  by 


credits  and  effects,  may  be  either  put 
upon  the  general  calendar  of  the 
court,  and  tried  as  any  other  issue  is 
tried,  or  the  matter  may  take  the  form 
of  a  reference,  and  be  sent  to  a  com- 
missioner to  determine  the  true  owner- 
ship. The  practice  is  not  uniform  in 
this  regard,  and  must  depend  more 
or  less  on  circumstances.  When  the 
subject-matter  is  small  or  the  ques- 
tion little  doubtful,  a  reference  would 
probably  be  ordered;  otherwise  where 
the  questions  are  serious.  And,  in 
any  case,  the  judge,  on  cause  shown, 
will  undoubtedly  order  the  case  on 
the  general  calendar,  for  hearing  in 
open  court.  On  the  determination 
of  this  issue,  if  the  court  finds  that 
the  credits  and  effects  attached  are 
those  of  the  defendant,  the  latter's 
default  may  be  entered,  and  a  final 
decree  in  favor  of  the  libellant  entered 
as  in  any  case  of  default. 

2.  Warrant  of  Arrest. — Adm.  Rule  2. 
But  in  suits  in  personam  no  warrants 
of  arrest  either  of  the  person  or  prop- 
erty of  the  defendant  shall  issue  for  a 
sum  exceeding  $500,  except  by  special 
order  on  cause  shown.  Adm.  Rule  7. 
And  see  Chiesa  v.  Conover,  36  Fed. 
Rep.  334;  The  Bremena  v.  Card,  38 
Fed.  Rep.  144.  A  warrant  of  arrest  in 
admiralty  may  issue  on  Sunday.  Pear- 
son V.  The  Alsalfa,  44  Fed.  Rep.  358. 

3.  Adm.   Rule  8,  9.     In   admiralty, 


any  one  other  than  the  marshal  and 
his  deputies,  unless  in  a  case  where 
the  marshal  is  interested,  when  the 
court  will  appoint  some  disinterested 
party  to  take  his  place.  Rev.  Sts. 
^  922. 

The  arrest  and  detention  of  a  vessel 
under  admiralty  process,  though  the 
claim  prove  untenable,  does  not  en- 
title the  owner  to  damages.  Swedish 
Bark  Adolph,  5  Fed.  Rep.  114;  Kemp 
Brown,  43  Fed.  Rep.  391;  Portland 
Shipping  Co.  v.  The  Alex.  Gibson,  44 
Fed  Rep.  371;  Henderson  v.  300  Tons 
Ire  Ore,  38  Fed.  Rep.  36;  The  Wasco, 
53  Fed.  Rep.  546.  But  see  Briggs  Ex- 
cursion Co.  V.  Fleming,  40  Fed.  Rep. 

593- 

Filing  libel  and  issuing  attachment 
without  seizure  are  not  constructive 
notice  of  the  pendency  of  the  suit. 
The  Robert  Gaskin,  9  Fed.  Rep.  62. 
See  Daily  v.  Doe,  3  Fed.  Rep.  903. 

Destruction  of  Property  Seized  under 
Judicial  Process  in  admiralty,  without 
fault  of  the  debtor,  works  a  payment 
of  the  debt  to  the  extent  of  the  value 
of  the  property.  The  Flavilla,  17  Fed. 
Rep.  399. 

A  Seizure  is  Necessary  to  Give  the  Court 
Jurisdiction  for  the  purposes  of  for- 
feiture. The  Washington,  4  Blatchf. 
(U.  S.)  loi;  The  Schooner  Silver 
Spring,  I  Sprague  (U.  S.)  551.  A 
valid   seizure   by   the    marshal    gives 


261 


Property  Exempt  from  Seizure.   ADMIRALl'Y.  Property  Exempt  from  Seizure. 


XL  Peopeety  Exempt  FEOM  Seizuee. — Certain  property  cannot 
be  seized  in  rem.^  Thus  property  held  by  a  sheriff  cannot  be 
attached.*  Nor  can  property  in  the  hands  of  a  receiver  appointed 
by  a  state  court,  without  first  obtaining  permission  of  such  court.' 

Property  in  the  hands  of  the  collector  of  the  port  may  be  seized 
by  service  of  the  monition  on  the  collector,  but  the  marshal  cannot 
take  the  property  into  his  possession  without  special  order  of  the 
court,*  the  collector  having  the  right  to  first  collect  the  duties ; 
after  which  it  would  be  his  duty  to  turn  over  the  surplus  to  the 
marshal. 

As  the  government  does  not  allow  itself  to  be  sued,  so  its  prop- 


the  court  jurisdiction,  which  is  not 
lost  by  an  accidental,  fraudulent,  or 
improvident  removal  of  the  res  from 
the  custody  of  the  marshal.  The  Rio 
Grande,  23  Wall.  (U.  S.)  45S. 

When  Defendant  is  Found  and  Served  in 
the  district,  and  is  not  liable  to  arrest, 
the  court  cannot  order  him  to  give 
security  under  penalty  of  imprison- 
ment, but  may  on  motion  order  his 
goods  attached.  Louisiana  Ins.  Co. 
V.  Nickerson,  2  Lowell  (U.  S.)  310. 

One  who  has  Attached  a  Vessel  may  be 
compelled  to  proceed  to  an  adjudica- 
tion. Burke  v.  Trevitt,  i  Mason  (U. 
S.)  96. 

Invalid  State  Attachment. — A  mar- 
shal attached  a  vessel,  which  was 
thereafter  fraudulently  taken  out  of 
his  possession  and  the  jurisdiction, 
and  attached  out  of  the  state  court. 
Held,  that  the  state  attachment  was 
invalid;  that  the  original  attachment 
by  the  marshal  held  good;  and  that 
the  federal  court  of  the  district  into 
which  she  had  been  removed  would 
restore  her  to  the  federal  court  of  the 
district  where  she  had  been  originally 
attached.  Brig  Joseph  Gorham,  7 
Law  Rep.  135. 

1.  See  Moran  v.  Sturges,  154  U.  S. 
256. 

Eeal  Estate  is  not  ordinarily  subject 
to  attachment  under  mesne  process 
in  admiralty.  Judge  Lowell,  in  Louis- 
iana Ins.  Co.  V.  Nickerson,  2  Lowell 
(U.  S.)  311,  says  :  "  It  [the  admiralty] 
retains  from  the  ancient  times  of  pro- 
hibitory legislation  the  inability  to  at- 
tach land  or  any  interest  therein  by 
process  out  of  the  admiralty."  If  this 
is  the  origin  of  the  inability  to  attach 
real  estate,  then,  as  the  admiralty  of 
this  country  has  so  largely  shaken  it- 
self free  from  the  bonds  of  the  com- 
mon-law prohibitions,  it  would  seem 
that  the   right  to    attach    real   estate 


might  now  exist.  There  is  no  appar- 
ent reason  why  land  should  not  be  at- 
tachable as  well  as  goods  and  chattels. 
And  process  on  executions  in  admi- 
ralty always  issues  against  lands  as 
well  as  goods  and  chattels.  See 
Ben.  Adm.  (3d  ed.),  §  433«. 

2.  Property  in  Possession  of  SherifT. — 
Taylor  v.  Carryl,  20  How.  (U.  S.)  583; 
The  Orpheus  3  Ware  (U.  S.)  143;  The 
Olivia  A.  Carrigan,  7  Fed.  Rep.  507; 
The  Julia  Ann,  i  Sprague  (U.  S.)  382. 
A  sheriff  desiring  to  protect  his  own 
attachment  of  a  vessel  against  a 
seizure  by  a  marshal  should  apply  to 
the  state  court  for  protection,  or  bring 
the  facts  before  the  federal  court  by 
petition,  and  pray  that  the  marshal  be 
withdrawn.  He  should  not  appear  in 
the  admiralty  suit  and  set  up  a  claim 
to  the  vessel.  Steamer  Circassian,  i 
Ben.  (U.S.)  128. 

3.  The  Red  Wing,  14  Fed.  Rep.  869; 
The  E.  L.  Cain,  45  Fed.  Rep.  367; 
The  Willamette  Valley,  63  Fed.  Rep. 
130;  Moran  v.  Sturges,  154  U.  S.  256. 
But  see  Ferryboats  Roslyn  and  Mid- 
land, 9  Ben.  (U.  S.)  119;  Paxton  v. 
Cunningham,  63  Fed.  Rep.  132. 

Contempt. — Unless  such  permission 
be  obtained,  libellant  may  be  called 
upon  by  the  state  court  to  show  cause 
why  he  should  not  be  punished  for 
contempt  for  interference  with  the 
officers  of  that  court.  When  receiver 
is  in  a  foreign  jurisdiction,  the  per- 
mission of  the  foreign  court  need  not 
be  obtained.  The  Willamette  Valley, 
62  Fed.  Rep.  293. 

Property  in  the  Hands  of  an  Assignee 
is  not  exempt.  The  James  Roy,  59 
Fed.  Rep.  784;  The  J.  G.  Chapman, 
62  Id.  939;  The  City  of  Frankfort,  62 
Id.  1006. 

4.  Two  Hundred  and  Fifty  Tons  of 
Salt,  5  Fed.  Rep.  216;  U.  S.  v.  One  Case 
of  Silk,  4  Ben.  (U.S.)  526. 


262 


Betorn  of  Process. 


ADMIRALTY. 


Appearance  and  Default. 


erty  cannot  be  seized,*  and  the  public  property  of  any  state,  or 
municipal  corporation,  such  as  a  police-boat,  cannot  be  attached  * 
And  the  statutes  forbid  the  libelling  of  a  canal-boat  for 
wages.' 

XII.  Retukn  of  Process— 1.  Time  for  Return. — In  every  case  it  is 
the  marshal's  duty  to  inform  the  court  of  what  he  has  done  under 
the  process  of  the  court.  For  this  purpose  each  court  has  cer- 
tain regular  days  which  are  called  return  days,  on  which  the  pro- 
cess issued  is  returned  to  the  court,  with  the  marshal's  indorse- 
ment as  to  his  action  thereunder.* 

In  Suits  In  Personam  process  is  returnable  on  the  next  general 
return  day  after  the  filing  of  the  libel,  and  the  same  is  the  case  in 
possessory  actions,  except  that  in  the  latter  at  least  three  days 
should  elapse  between  the  filing  of  the  libel  and  the  return,  and 
in  such  actions  the  answer  should  be  filed  on  such  return  day.* 

2.  Contents. — The  return  of  the  marshal  is  a  statement  of  what 
he  has  done,  as,  that  he  has  attached  the  defendant  vessel,  and 
has  given  or  not  given  notice  of  the  claim  to  any  one  who  may 
be  interested  ;  or,  that  he  has  cited  the  defendant  to  answer,  or 
has  arrested  him.* 

3.  Appearance  and  Default. — On  the  return  day  the  process  is 
called  in  open  court.  It  is  then  the  duty  of  the  respondent  to 
enter  his  appearance  and  file  his  answer  to  the  libel,  or  obtain 
further  time  in  which  to  answer.  If  the  process  is  returned  by 
the  marshal  duly  served,  and  the  respondent  fails  to  appear,  the 
libellant  may  have  an  order  pronouncing  him  in  contumacy  and 
default,  and  the  libel  will  be  adjudged  to  be  taker)  pro  confesso 


1.  The  Siren,  7  Wall.  (U.  S.)  152;  The 
Fidelity,  16  Blatch.  (U.  S.)  569;  Two 
Hundred  and  Fifty  Tons  of  Salt,  5 
Fed.  Rep.  216;  The  F.  C.  Latrobe,  28 
Fed.  Rep.  377.  See  Schooner  Othello, 
I  Ben.  (U.S.)  43. 

2.  The  Fidelity,  16  Blatchf.  (U.  S.) 
569;  The  Protector,  20  Fed.  Rep.  207; 
The  F.  C.  Latrobe,  28  Fed.  Rep.  377. 
But  the  fact  that  there  is  no  lien 
against  the  vessel  does  not  prevent  a 
suit  in  personam.  Id.  See  Tebo  v. 
Mayor,  61  Fed.  Rep.  692. 

3.  Rev.  Sts.  §  4251.  As  to  what  is  a 
canal-boat,  see  The  Wm.  L.  Norman, 
49  Fed.  Rep.  285. 

4.  False  Betum. — When  the  mar- 
shal's return  is  clearly  false,  the  court 
may  set  aside  all  proceedings.  Inter- 
national Grain  Ceiling  Co.  v.  Dill,  10 
Ben.  (U.S.)  92. 

Betnrn  as  to  Attachment. — A  return 
by  the  marshal  that  he  has  attached  a 
vessel  by  delivering  a  copy  of  the  writ 
to  her  owner  or  master  does  not  im- 
port any  seizure  of  the  vessel.     Bren- 


nan  v.  Schooner  Anna  P.  Dorr,  4  Fed. 
Rep.  459. 

In  Suits  In  Bern  two  full  weeks  have 
to  elapse  between  the  issuing  of  pro- 
cess and  its  return.  If,  therefore,  the 
regular  return  day  is  Tuesday,  and  the 
libel  is  filed  and  process  issued  on 
Wednesday,  the  process  will  not  be 
returned  to  court  until  two  weeks  from 
the  Tuesday  which  follows  the  Wed- 
nesday on  which  the  libel  was  filed. 

6.  In  Possessory  Suits  property  will 
not  ordinarily  be  released  on  bail,  es- 
pecially when  the  cause  may  be  put 
at  issue  and  tried  forthwith.  Schooner 
Rainbow,  i  Ben.  (U.  S.)  40. 

6.  Alias  Process. — If  the  marshal  has 
not  been  able  to  find  defendant  or 
seize  the  vessel  before  the  return  day, 
he  returns  that  fact,  on  which  libellant 
may  apply  to  the  court  for  what  is 
called  an  alias  process,  which  is  prac- 
tically a  reissuing  of  the  original  pro- 
cess to  enable  the  marshal  to  maVe 
another  attempt  to  serve.  See  Hardy 
V,  Moore,  4  Fed.  Rep.  843. 

63 


Betorn  of  Process. 


ADMIRALTY. 


Bespondent's  Stipulation. 


against  him,  and  the  court  will  hear  the  cause  ex  parte  and  grant 
the  libellant  such  relief  as  may  be  just.* 

4.  Claim. — In  ordinary  suits  in  personam,  where  the  process  is  a 
simple  citation  to  appear  and  answer,  nothing  is  ordinarily  gained 
by  filing  a  notice  of  appearance  before  the  return  day.  But  when 
the  goods  or  the  vessel  of  a  defendant  have  been  seized,  he  may 
appear  at  once  and  file  a  claim  and  stipulations!^  The  claim  is  a 
sworn  statement  as  to  the  interest  of  the  claimant  in  the  thing 
seized,  made  either  by  the  owner  himself,  or  by  an  agent  of  the 
owner,  or  one  who  has  some  interest  in  the  res.^ 

5.  Respondent's  Stipulation  for  Costs. — Before  the  claim  will  be 
received  on  file,  however,  a  stipulation  for  costs  must  be  filed  by 
the  respondent.*  And  in  suits  i7i  personam,  where  no  claim  is 
filed,  a  stipulation  for  costs  must  be  filed  with  respondent's  notice 
of  appearance.* 


1.  Adm.  Rule  29.  Rostron  v.  The 
Water  Witch,  44  Fed.  Rep.  95.  A 
decree  pro  confesso  is  not  final.  The 
Lopez,  43  Fed.  Rep.  95.  After  a  default 
claimant  cannot,  as  matter  of  right, 
obtain  the  release  of  the  property  by 
giving  bond  under  Rev.  Sts.  sec.  941. 
Sloop  Martha  C.  Burnite,  10  Ben.  (U. 
S.)  196. 

But  it  is  not  necessary  for  a  respondent 
to  wait  until  the  return  day  of  the  pro- 
cess before  entering  his  appearance. 
Indeed,  in  most  cases  it  would  be  a 
hardship  for  one  arrested  to  remain 
in  custody,  or  one  whose  vessel  or 
goods  have  been  seized  to  leave  them 
in  the  hands  of  the  marshal,  until  the 
regular  return  of  the  process.  A  re- 
spondent arrested  may  therefore  at 
once  give  bail,  with  sureties  to  appear 
and  abide  the  event  of  the  suit;  or  he 
may  appear  and  claim  the  property 
seized  if  the  suit  is  in  rem,  and  give 
stipulations  to  answer  any  judgment 
against  it,  and  thereupon  his  property 
will  be  released.  And  this  release 
may  be  had  at  any  time  on  filing  ap- 
pearance and  proper  stipulations  in  the 
clerk's  office — on  the  very  day  of  the 
attachment,  if  necessary.  On  filing 
stipulations  the  clerk  issues  an  order 
to  the  marshal  to  release  the  property. 
The  giving  of  a  stipulation  cures  any 
defect  in  service  of  the  process.  The 
Acadia,  Brown  Adm.  73.  After  claim- 
ant has  given  a  stipulation,  a  forcible 
seizure  of  the  vessel  by  him  is  not  a 
contempt  of  court.  U.  S.  v.  Towns,  7 
Ben.  (U.  S.)  444. 

2.  Filing  stipulations  without  claim. 
See  Todd  v.  Bark  Tulchen,  2  Fed.  Rep. 
600.     After  appearance  and  answer,  it 


is  too  late  to  move  to  dismiss  the  libel 
because  of  a  misnomer.  Mina  v.  I.  & 
V.  Florio  S.  S.  Co.,  23  Fed.  Rep.  915. 

3.  Schooner  Adeline,  9  Cranch.  (U. 
S.)  286  ;  U.  S.  V.  Casks  of  Wine,  i  Pet. 
(U.  S.)  547.  Claimant,  who  is.  The 
Two  Marys,  12  Fed.  Rep.  152  ;  Bark 
Laurens,  Abb.  Adm.  302.  The  first 
step  in  a  defense  is  to  interpose  a  claim. 
Who  may  claim  and  how.  Steamer 
Spark  V.  Lee  Choi  Chum,  i  Sawy.  (U. 

s.)  713- 

The  Master  of  a  Vessel  in  a  Foreign  Port 

frequently  claims  on  behalf  of  his  ab- 
sent owners.  And  a  consul  of  a  for- 
eign government  may  claim,  on  behalf 
of  subjects  of  his  country,  a  vessel 
seized  as  prize.  The  Bello  Corrunes, 
6  Wheat.  (U.  S.)  153  ;  The  London 
Packet,  I  Mason  (U.  S.)  14  ;  Steamer 
Spark  V.  Lee  Choi  Chum,  i  Sawy.  (U. 

S.)  713. 

Contents  of  Claim. — The  claim  states 
the  interest  of  the  claimant,  or  the 
ownership,  and  that  no  other  person  is 
owner,  and  if  made  by  an  agent,  that 
he  is  duly  authorized  thereto  by  the 
owner,  and  if  by  the  master,  that  he  is 
the  lawful  bailee  thereof  for  the  owner, 
and  should  end  with  a  short  prayer  to 
the  court  for  permission  to  defend  the 
suit.  (Adm.  Rule  26).  A  claim  is  a 
sufficient  notice  of  appearance. 

4.  See  Rawson  v.  Lyon,  15  Fed.  Rep. 
831. 

6.  Adm.  Rule  25. 

This  Stipulation  is  Similar  to  Libellant's 
Stipulation  filed  with  the  libel,  in  the 
sum  of  two  hundred  and  fifty  dol- 
lars in  cases  in  rem  and  one  hundred 
dollars  in  cases  in  personam,  and  is 
signed  by  the  defendant  and  at  least 
64 


Beturn  of  Process. 


ADMIRALTY. 


Stipulations  for  Belease. 


6.  Stipulations  for  Release. — When  a  defendant  has  been  arrested 
in  a  suit  in  personam  or  a  ship  or  goods  have  been  attached  in  a 
proceeding  in  rem,  and  the  defendant  desires  a  release,  he  must 
give  another  undertaking  in  addition  to  the  stipulation  for  costs.* 

Form  of  Undertaking. — In  suits  in  personam  where  defendant  is 
arrested,  this  undertaking  is  in  the  form  of  a  bond  or  stipulation 
conditioned  that  the  defendant  will  appear  and  abide  by  all  orders 
of  the  court,  interlocutory  or  final,  and  pay  the  money  awarded 
by  the  final  decree  rendered  therein  by  the  court  to  which  the 
process  is  returnable,  or  by  any  appellate  court.* 

Ordinary  Penal  Bond.— And  in  suits  iji  personam,  where  property  is 
attached,  and  in  suits  in  rem,  the  undertaking  may  be  an  ordinary 


one  surety  resident  in  the  district.  A 
non-resident  defendant  must  supply 
two  sureties.  An  objection  that  only 
one  surety  has  signed  the  stipulation 
must  be  seasonably  made.  The  In- 
fanta, Abb.  Adm.  327. 

1.  In  all  Proper  Cases  of  Seizure  under 
any  statute,  the  invariable  practice  of 
the  district  court  has  been  to  take  bonds 
for  the  property,  on  application  by 
claimant.  The  Brig  Alligator,  i  Gall. 
(U.  S.)  145. 

Waiver  of  Defects. — The  giving  of  a 
stipulation  for  the  release  of  a  vessel 
is  a  waiver  of  any  defect  in  the  service 
of  the  process.  The  Acadia,  Brown 
Adm.  73.  The  giving  of  a  stipulation 
is  not  necessarily  a  waiver  of  the  right 
to  deny  the  legality  of  the  custody  of 
the  marshal.  Ferryboats  Roslyn  and 
Midland,  9  Ben.  (U.  S  )  119  ;  The 
Berkeley,  58  Fed.  Rep.  920. 

Vessel  Never  in  Custody  — A  stipula- 
tion for  the  demand,  given  under  notice 
of  the  filing  of  the  libel,  is  valid 
though  the  vessel  was  never  in  custody. 
Id. 

In  Possessory  Suits  property  will  not 
ordinarily  be  released  on  bail. 
Schooner  Rainbow,  i  Ben.  (U.  S.)  40; 
Muir  V.  Brig  Brisk,  4  Ben.  (U.  S.)  252. 

In  Cases  of  Prize,  never  before  a 
hearing.  See  posf,  §  XX  ;  The  Diana. 
2  Gall.  (U.  S.)  93. 

The  Owner  of  Cargo  arrested  for  freight 
cannot  be  compelled  to  give  bail  for 
the  value  of  the  cargo  ;  and  he  has 
also  no  right  to  give  bail  for  freight 
which  he  acknowledges  to  be  due.  He 
should  therefore  pay  the  freight  into 
court.  The  Freight  Money  of  Canal- 
boat  Monadnock,  5  Ben.  (U.  S.)  357. 

When  Goods  in  a  Bonded  Warehouse  are 
libelled  by  the  government,  the  claim- 
ant    is    entitled    to     have    them     on 


giving  a  bond  for  their  value,  not  in- 
cluding the  amount  of  duties  charge- 
able on  them.  Four  Cases  Silk  Rib- 
bons, I  Ben.  (U.  S.)  214. 

Taking  Proceeds  from  Begistry. — A 
libellant  may  take  proceeds  from  the 
registry  on  giving  bonds,  when.  Bark 
Archer,  10  Ben.  (U.  S.)  99. 

2.  Adm.  Rules.  A  bond  to  perform 
the  decree  of  the  court  means  the 
court  which  shall  finally  decide  the 
cause.  U.  S.  v.  Schooner  Little 
Charles,  I  Marsh.  (U.  S.)  380.  A  bond 
executed  to  the  marshal  is  valid 
though  valuation  was  not  made  by 
commissioners  appointed  by  the  court. 
/</.  In  a  joint  and  several  bond,  when 
one  obligor  dies,  the  court  will  proceed 
against  the  survivors,  or,  at  the  option 
of  plaintiffs,  against  the  representa- 
tives of  the  deceased.  Ship  Octavia, 
I  Mason  (U.  S.)  149.  Sureties  on  a 
bond  to  appear  and  abide  may  sur- 
render their  principal,  when.  Lane  v. 
Townsend,  i  Ware  (U.  S.)  289.  But 
the  practice  of  the  admiralty  does  not 
admit.of  the  surrender  of  the  principal 
in  exoneration  of  bail.  Id. ;  Cure  v. 
Bullus,  Abb.  Adm.  555.  After  judg- 
ment against  a  respondent  in  suit  in 
personam  it  is  not  necessary  to  take 
out  an  execution  and  have  it  returned 
in  order  to  charge  the  bail.  In  re 
Snow,  2  Curt.  (U.  S.)  485.  A  bond  to 
secure  the  appearance  of  a  party  to 
answer  a  libel  in  admiralty  is  to  be 
considered  not  as  a  bail  bond  at  com- 
mon law,  but  as  an  admiralty  stipula- 
tion. Lane  v.  Townsend,  i  Ware  (U. 
S.)  289.  A  stipulation  by  a  party  ar- 
rested in  admiralty  to  abide  the  decree 
of  the  court  is  in  proper  form,  and  he 
cannot  be  compelled  to  stipulate  to 
pay  the  amount  decreed  against  him. 
Grace  v.  Evans,  3  Ben.  (U.  S.)  479. 


^65 


Hetarn  of  Process. 


ADMIRALTY. 


Stipulation  for  Value. 


penal  bond  to  the  libellant,  under  seal,  to  abide  the  event  and  pay 
the  judgment,  if  rendered.  But  the  two  customary  undertakings 
to  release  property  seized  in  an  admiralty  cause  are  the  stipulation 
for  value,  and  the  bond  to  the  marshal  under  the  act  of  1847.* 

7.  The  Stipulation  for  Value  is  an  instrument  reciting  the  insti- 
tution of  the  suit  and  the  appearance  and  claim  of  the  defendant ; 
it  is  executed  by  the  defendant  and  sureties,  and  contains  the 
consent  of  the  sureties  that  in  case  of  default  or  contumacy  on 
the  part  of  the  defendant  or  the  sureties,  execution  to  the  amount 
of  the  stipulation  may  issue  against  their  goods,  chattels,  and 
lands.* 

The  Amount  of  this  Stipulation  is  supposed  to  be  the  full  value  of  the 
property  seized  (in  a  bond  to  the  marshal,  double  the  value),  but 
it  is  often  a  matter  of  agreement  between  the  parties  to  the 
suit  or  their  proctors.  Thus,  if  a  valuable  vessel  is  libelled  for 
a  small  claim,  the  libellant's  proctors  will  usually  agree  that,  for 
the  purposes  of  that  suit,  the  value  of  the  vessel  may  be  considered 
to  be  an  amount  sufficient  to  cover  libellant's  claim  and  interest.' 


1.  Adm.  Rule  4.  See  Pope  v.  Seck- 
worth,  46  Fed.  Rep.  858.  Rev.  Sts. 
sec.  941;  Poland  v.  Cargo  of  Brig  Spar- 
ton,  I  Ware  (U.  S.)  134.  A  release 
bond  given  on  seizure  under  an  invalid 
warrant  of  arrest  is  not  a  waiver  of 
the  illegality  nor  an  appearance  in  the 
suit.    The  Berkeley,  58  Fed.  Rep.  920. 

Suhstitutes  for  Property. — Bonds 
given  in  admiralty  on  release  of  prop- 
erty seized  are  substitutes  for  the  prop- 
erty. The  Palmyra,  12  Wheat.  (U.  S.) 
i;  Steamer  Webb,  14  Wall.  (U.  S.)4o6; 
The  Wanata,  95  U.  S.  611;  U.  S.  v. 
Ames,  99  U.  S.  35.  When  a  vessel  is  re- 
leased on  a  bond,  her  subsequent  loss 
and  the  filing  of  a  petition  in  limita- 
tion of  liability  is  no  defense  to  the  li- 
bel. The  Percy  Birdsall,  55  Fed.  Rep. 
6S3. 

2.  Amount  of  Stipulation. — A  surety 
cannot  be  compelled  to  pay  more  than 
the  amount  expressed  in  his  stipula- 
tion. The  Wanata,  95  U.  S.  600;  The 
Ann  Caroline,  2  Wall.  (U.  S.)  538; 
Steamer  Webb,  14  Wall.  (U.  S.)  406; 
Jaycox  V.  Chapman,  10  Ben.  (U.  S.) 
517.  A  release  bond  is  not  rendered 
invalid  by  the  omission  of  the  specified 
sum  to  be  paid  in  case  of  a  default. 
The  Haytian  Republic,  59  Fed.  Rep. 
476. 

Interest. — Agents  or  sureties  are  re- 
sponsible as  principals  for  interest  on 
their  stipulations  when  they  appear 
and  defend  the  suit.  The  Wanata,  95 
U.  S.  612;  The  Maggie  J.  Smith,  123 
U.S.  356;  The  Maggie  M.,  33  Fed.  Rep. 


591.  When  obligors  in  a  stipulation 
will  be  liable  for  interest.  Steam 
Propeller  Belle,  5  Ben.  (U.  S.)  57. 
Under  a  stipulation  for  value  the  ob- 
ligors are  not  liable  for  interest  on  the 
sum  stipulated,  except  on  default  in 
complying  with  the  terms  of  the  stipu- 
lation. The  Sydney,  47  Fed.  Rep. 
260. 

Condition  of  Bond. — Under  Adm.  Rule 
4,  which  provides  that  an  attachment 
may  be  dissolved  on  defendant  giv- 
ing bond  to  abide  by  all  orders  of 
court,  and  pay  the  amount  awarded 
by  final  decree,  attached  property  can- 
not be  released  on  bond  conditioned 
for  payment  of  the  value  of  the  prop- 
erty released,  when  such  property  is 
less  than  the  debt  sued  for.  Pope  v. 
Seckworth,  46  Fed.  Rep.  858. 

Waiver  and  Appearance. — The  sub- 
mission of  the  sureties  to  the  jurisdic- 
tion of  the  court  is  not  a  waiver  of  the 
irregularity  and  does  not  operate  as 
an  appearance  in  the  suit,  when  the 
vessel  was  seized  and  the  stipulation 
given  under  an  invalid  warrant  of  ar- 
rest.    The  Berkeley,  58  Fed.  Rep.  920. 

3.  See  The  Monarch,  30  Fed.  Rep. 
283.  But  when  the  value  is  fixed  by 
consent,  a  motion  to  reduce  the  amount 
of  the  stipulation  cannot  be  made. 
Otherwise  when  the  amount  has  been 
fixed  by  the  court  or  under  Rev.  Sts. 
§941.  Id.  Or  the  court  will  fix  the 
amount  when  claimant  contends  that 
the  amount  exacted  by  libellant  is  ex- 
orbitant. 


266 


Eeturn  of  Process.  ADMIRAL  TY.  Stipulation  for  Value, 

On  the  other  hand,  when  the  claim  is  equal  to  or  greater  than  the 
value  of  the  vessel,  the  claimant  will  be  unwilling  to  give  a 
stipulation  for  more  than  her  value,  beyond  which  value  he  cannot 
be  held  liable.' 

Appraisal. — It  is  therefore  necessary  to  ascertain  the  actual  value 
of  the  vessel,  and  this  is  done  by  appraisal  (Adm.  Rule  ii.) 
Claimant  applies  to  the  court,  on  notice  to  libellant,  setting  forth 
by  affidavit  the  claim  against  his  vessel,  and  prays  for  the  appoint- 
ment of  appraisers,  which  appointment  is  usually  a  matter  of 
course,  the  libellant  merely  being  heard  as  to  their  disinterested- 
ness or  competency.  Having  appraised  the  vessel,  the  appraisers 
file  a  report  of  the  appraisal  in  the  clerk's  ofifice,  and  the  stipula- 
tion for  value  is  given  in  that  amount.  It  is  filed  in  the  clerk's 
office.* 

Bond  to  Marshal— Form. — A  bond  to  the  marshal  is  in  the  form 
of  a  penal  bond,  under  seal,  to  the  marshal  of  the  district,  in 
double  the  amount  of  the  libellant's  claim,  reciting  the  filing  of 
the  libel,  and  the  filing  of  the  claim  and  stipulation  for  costs,  and 
conditioned  that  the  claimant  shall  abide  by  and  perform  the 
decree  of  the  court,  or  otherwise  the  sureties  will  be  answerable. 
The  sureties  justify  in  double  the  amount  of  the  bond.' 

Judgment  Against  Sureties.  —  On  a  bond  to  the  marshal,  summary 
judgment  may  be  entered  by  the  libellant  against  the  sureties  on 
the  rendering  of  the  decree  ;  on  a  stipulation  for  value,  the  sureties 
are  ordinarily  called  upon  to  .show  cause  within  four  days  why 
execution  should  not  issue  against  them.* 

1.  Laws  1884,  ch.  121,  sec.  18;  23  Sts.  from  custody  by  giving  a  bond  under 
at  L.  p.  57;  The  Wanata,  95  U.  S.  600.  section  94,  Rev.  Sts.,  after  a  default 
When  the  claims  exceed  the  value  of  on  return  of  process.  Sloop  Martha 
the  vessel,  claimant  may  obtain  a  re-  C.  Burnite,  10  Ben.  (U.  S.)  ig6. 
lease  on  giving  a  stipulation  for  the  Filing  and  Approval. — Although 
value  of  the  vessel,  without  including  drawn  to  the  marshal,  this  bond  is 
the  freight.  Bark  Vivid,  3  Ben.  (U.  S.)  filed  in  the  office  of  the  clerk,  like  the 
397.  stipulation   for  value,  and,    unlike   a 

2.  After  Appraisal  and  the  giving  of  a  stipulation  for  value,  may  be  approved 
stipulation  claimant  cannot  insist  that  by  the  collector  of  customs  of  the 
the  value  of  the  ship  is  less  than  the  port,  as  well  as  by  the  court. 

sum  named  in  the   stipulation.     Ship  4.   The    Belgenland,   108  U.   S.   153; 

Virgin  v.  Vyfhius,  8  Pet.  (U.  S.)  538.  The  Sydney,  47  Fed.  Rep.  a6o. 

3.  See  The  City  of  Hartford,  II  Fed.  Eights  and  Liabilties  of  Sureties. — 
Rep.  89.  Under  such  a  bond  a  decree  Sureties  who  have  paid  a  judgment 
may  be  entered  against  the  obligors  against  their  principal  are  subrogated 
for  libellant's  claim  and  costs,  pro-  to  the  rights  of  the  original  libellant. 
vided  the  decree  does  not  exceed  the  Carroll  v.  Steamboat  T.  P.  Leathers, 
amount  of  the  penalty  of  the  bond.  Newb.  Adm.  432;  The  Madgie,  31  Fed. 
The  Madgie,  31  Fed.  Rep.  926.  Rep.    926.     See    Johnson   v.   Chicago, 

Additional  Stipulation. — After  a  bond  etc..  Elevator  Co.,  119  U.  S.  388;  The 

to   the   marshal  has  been  given,   the  Baltic,  B.  &  H.  Adm.  149. 

libellant  has  no  power  to  exact  any  A  court  of  admiralty  cannot  compel 

additional      stipulation.      Gaines      v.  a  surety  to  appear  and  submit  to  an 

Travis,  Abb.  Adm. 297.  examination   touching    his    property. 

Belease    on    Bond   After   Default. — It  The  Blanche  Page,  i  Blatchf.  (U.  S.)'i. 

seems  that  a  party  cannot,  as  matter  Nor  can  it  sequestrate  his  property, 

of  right,  obtain  the  release  of  a  vessel  Id.     Sureties   cannot   be   arrested   on 

267 


Beturn  of  Process. 


ADMIRALTY. 


Tender. 


Increasing  or  Keducing  Security.— And  in  all  cases  of  stipulations  in 
admiralty  and  maritime  causes  any  party  may  apply  to  the  court, 
on  cause  shown,  for  greater  or  further  security  ;  *  or  the  claimant, 
on  showing  that  libellant's  claim  is  exaggerated,  or  a  respondent, 
arrested  in  a  suit  in  personam,  may  apply  to  have  the  amount 
reduced.*     The  whole  matter  is  in  the  discretion  of  the  court.^ 

8.  Sale  of  Perishable  Property. — Pending  the  return  of  process, 
the  owner  may  desire  to  have  it  sold,  as,  for  example,  in  case  of 
attachment  of  a  cargo  of  ice  or  fruit.'*  In  such  case,  on  proper 
proof  of  the  liability  of  the  property  to  deterioration,  the  court 
will  always  order  the  sale  of  the  property  and  the  deposit  of  the 
proceeds  in  the  registry  of  court.® 

9.  Tender. — Before  suit  is  brought,  respondent  may  tender  what 
he  admits  to  be  due.  If  this  be  refused,  and  suit  is  thereafter 
brought,  the  amount  tendered  should  be  deposited  in  court, 
and  the  fact  of  the   tender  alleged  in  the   answer.®     After  suit 

execution  in  an  admiralty  cause  in 
New  York.  The  Kentucky,  4  Blatchf. 
(U.  S.)  448  ;  The  Blanche  Page,  16 
Blatchf.  (U.  S.)  I.  But  see  Sawyer  v. 
Oakman,  11  Blatchf.  (U.  S.)  65.  The 
rules  of  the  Supreme  Court  place  a 
principal  and  his  surety  on  bond  or 
stipulation  given  on  arrest  in  per- 
sonam on  the  same  footing;  and  sum- 
mary process  of  execution  may  is- 
sue against  the  surety  in  the  same 
way  and  at  the  same  time  as  against 
the  principal,  and  consequently  with- 
out an  order  to  show  cause.  Holmes 
V.  Dodge,  Abb.  Adm.  60. 

Justification  of  Sureties. — The  sureties 
on  any  bond  or  stipulation,  even  the 
stipulation  for  costs,  may  be  com- 
pelled to  justify  on  demand  therefor 
served  on  the  proctors  for  the  party 
giving  the  stipulation;  in  common 
practice  the  approval  of  the  sufficiency 
of  the  sureties  is  usually  sought  from 
the  libellant's  proctor  before  the  stipu- 
lations are  filed.  If  libellant's  .  .  . 
proctor  or  the  court  have  approved  the 
stipulation,  the  clerk,  on  the  filing  of 
the  same,  will  at  once  issue  a  direction 
to  the  marshal  to  release  the  property. 
See  The  Jeanie  Landles,  17  Fed.  Rep. 
91. 

The  addition  of  a  new  party,  or  any 
amendment  which  the  court  may 
make  without  affecting  the  identity  of 
the  suit,  will  not  affect  the  under- 
taking of  a  surety.  The  Maggie  Jones, 
I  Flip.  (U.  S.)  635. 

If  libellant  will  not  approve  the  stip- 
ulation, the  sureties  may  be  taken  be- 
fore the  judge,  and  his  approval  ob- 
tained. 


1.  The  Virgo,  13  Blatchf.  (U.S.)  255; 
The  City  of  Hartford,  11  Fed.  Rep.  8g. 

2.  Adm.  Rule  6.  But  the  fact  that  a 
libellant  seems  to  have  more  than 
sufficient  security,  though  having  only 
the  customary  security,  is  no  reason 
for  depriving  him  of  a  part  of  it.  Bark 
Archer,  9  Ben.  (U.  S.)  455. 

3.  Eeseizure  of  Property. — The  Union, 
4  Blatchf.  (U.  S.)  90.  See  Steamship 
Jewess,  I  Ben.  (U.  S.)  21.  Property 
which  has  once  been  arrested  in  ad- 
miralty and  fairly  discharged  on 
stipulation  cannot  be  arrested  again 
in  admiralty  for  the  same  cause  of 
action.  The  White  Squall,  4  Blatchf. 
(U.  S.)  103;  The  Thales,  3  Ben.  (U. 
S.)  327,  10  Blatchf.  (U.  S.)  203; 
The  Old  Concord,  Brown  Adm. 
270;  The  City  of  Hartford,  11  Fed. 
Rep.  89.  But  on  cause  shown,  as 
fraud,  or  the  total  failure  of  the  sure- 
ties, the  court  can  order  the  reseizure 
of  a  vessel.  The  Favorite,  2  Flip.  (U. 
S.)  86.  This  should  be  by  an  order  to 
the  marshal  made  on  affidavits  show- 
ing cause  therefor,  directing  him  to 
take  the  vessel  back  into  his  custody 
under  the  original  process,  not  by  the 
issuing  of  a  new  process.  But  a  regu- 
larly executed  stipulation  is  prima 
facie  good.  The  Snap,  24  Fed.  Rep. 
510. 

4.  Ship  Nathaniel  Hooper,  3  Sumn. 
(U.  S.)  542;  The  Cheshire,  Blatchf.  P. 
C.  165.  Property  whose  value  is  be- 
ing destroyed  by  charges  during  its 
custody,  as  storage  charges,  may  be 
sold  as  perishable  property. 

6.  Adm.  Rule  10. 

6.  Answer  should  specify  how  much 

68 


Eespondent's  Pleadings. 


ADMIRALTY. 


Exceptions  to  Libel. 


brought,  respondent  may,  without  actually  offering  the  cash  to  the 
hbellant,  pay  what  he  admits  to  be  due  into  court,  adding  thereto 
the  libellant's  costs  to  the  date  of  the  tender.  If  thereafter  the 
libellant  does  not  recover  a  decree  for  a  larger  sum  than  the  tender, 
he  must  pay  costs.^ 

10.  Sale  on  Return — Publication. — On  the  return  of  process,  regu- 
larly executed,  property  of  any  kind  which  has  been  attached 
may  be  sold  to  satisfy  the  libellant's  claim,  unless  the  respondent 
has  appeared  and  secured  the  claim  in  some  way.*  Property  is 
sold  at  auction,  by  the  marshal,  after  notice  given  to  all  parties 
known  to  be  interested  and  after  publication  of  the  notice  of  sale 
in  a  newspaper  designated  by  the  court.* 

XIII.  Respondent's  Pleadings.— The  process  is  now  returned 
and  the  respondent  has  appeared  in  court,  and  has  filed  security 
for  libellant's  claim,  and  has  obtained  the  release  of  his  property. 
His  first  pleading  may  be  an  exception  to  the  libel. 

1.  Exceptions  to  Libel. — Exceptions  are  of  two  kinds. 

The  peremptory  exception  is  in  one  respect  like  a  demurrer  at  com- 
mon law.*     If  an  absolute  bar  to  the  suit  appears  on  the  face  of 


is  tendered  on  claim,  and  how  much 
on  costs.  The  Good  Hope,  40  Fed. 
Rep.  608. 

1.  Payment  of  money  into  court  is 
an  unconditional  admission  that  such 
an  amount  is  due.  Ye  Seng  Co.  v. 
Corbitt,  9  Fed.  Rep.  423.  One  has  no 
right  to  give  bail  for  freight  moneys 
which  he  admits  to  be  due,  and  he 
should  pay  the  same  into  court  on 
attachment  of  cargo  for  the  freight; 
but  he  cannot  be  compelled  to  give 
bail  for  the  cargo.  Freight  Money  of 
Canal-boat  Monadnock,  5  Ben.  (U.  S.) 
357.  A  party  who  is  not  responsible 
for  refusal  of  a  tender  should  not  pay 
costs.  The  Dennis  Valentine,  47  Fed. 
Rep.  664,  affirmed  57  Fed.  Rep.  398. 

Withdrawal  of  Money. — The  libellant 
is  usually  allowed  on  motion  and 
order  to  withdraw  from  court  the 
money  deposited  as  a  tender  by  the 
defendant,  or  a  portion  thereof,  even 
though  he  continue  to  press  the  suit. 
Such  a  withdrawal  is  not  necessarily 
regarded  as  an  acceptance  of  the  ten- 
der.    Higbie  v.  Tomatoes,  59  Fed.  Rep. 

783- 

2.  Adm.  Rule  29. 

3.  But  notice  by  publication  is  not 
always  a  necessity.  Daily  v.  Doe,  3 
Fed.  Rep.  903. 

Order  of  Publication — Short  Order. — If 
it  is  probable  from  the  first  that  the 
property  will  have  to  be  sold,  as  in  a 
case  of  salvage  against  a  derelict,  or 
the  attachment  of  the  property  of  an 


insolvent,  an  order  of  publication 
should  be  obtained  on  filing  the  libel, 
and  the  publication  should  be  made 
daily  until  the  return  of  the  process. 
And  in  any  case  the  ordinary  period 
of  publication  is  two  weeks.  But 
this  period  of  publication  may  be 
reduced  on  cause  shown,  and  a  short 
order  of  publication  may  be  had  on 
application  to  the  court.  This  is 
ordinarily  a  publication  of  the  notice 
for  six  days,  but  the  court  may  reduce 
even  this  time  in  its  discretion.  The 
desirability  of  obtaining  an  order  for 
immediate  sale  on  taking  a  default  on 
return  of  process,  and  hence  of  having 
the  publication  completed  by  that  day, 
renders  the  short  order  convenient 
when,  for  any  reason,  the  publication 
has  not  been  begun  immediately  on 
the  filing  of  the  libel. 

4.  Brig  Attila,  Crabbe  (U.  S.)  326. 
See  Prince  S.S.  Co.  v.  Lehman,  39 
Fed.  Rep.  704.  Exceptions  in  admi- 
ralty have  the  effect  of  a  demurrer, 
and  also  that  of  a  motion  to  make 
more  definite  and  certain.  Steamboat 
Transport,  i  Ben.  (U.  S.)  86. 

Must  State  the  Insufficiency. — An  ex- 
ception that  a  libel  does  not  state  facts 
sufficient  to  constitute  a  cause  of  ac- 
tion is  not  well  taken  unless  it  states 
in  what  the  insufficiency  consists.  The 
Active,  Deady  (U.  S.)  165;  The  Sea 
Gull,  Chase's  Dec.  (U.  S.)  145;  A  Raft 
of  Spars,  Abb.  Adm.  291;  Reed  v, 
Hussey,  B.  &  H.  Adm.  525. 

69 


Bespondent*s  Pleadings. 


ADMIRALTY. 


Petition  under  Bole  59. 


the  libel,  the  respondent  may  dismiss  the  suit  by  peremptory 
exception.^ 

The  Dilatory  Exception  is  simply  a  preliminary  objection,  or  an 
objection  to  the  form  of  the  libel.* 

Amendment  of  Libel. — If  the  libellant  agrees  to  the  exception,  he 
will  file  his  amended  libel  within  a  reasonable  time.^  If  he  re- 
fuses to  amend,  either  party  may  notice  the  hearing  of  the  excep- 
tions before  the  court,  who  examines  the  matter  and  orders  the 
libel  amended  or  not,  according  to  justice.* 

Other  Exceptions. — Exceptions  may  be  also  taken  to  a  pleading 
for  surplusage,  irrelevancy,  impertinence,  or  scandal,  and  the  ex- 
ceptionable matter  maybe  stricken  from  the  pleading  if  the  court 
so  orders.^ 

2.  Petition  under  Rule  59. — Another  pleading  which  may  now 
be  made  by  a  defendant  is  a  petition  under  admiralty  rule  59.* 
In  collision  cases  it  not  infrequently  happens  that  only  one  of 
the  colliding  vessels  is  sued.''     This  objection  may  be  taken  ad- 


1.  What  May  be  Set  Tip. — If  respond- 
ent is  willing  to  rely  on  one  matter  of 
bar,  as  lack  of  jurisdiction,  payment, 
etc.,  he  may  set  that  up  by  peremp- 
tory exception,  though  the  subject- 
matter  may  not  appear  on  the  face  of 
the  libel.  And  facts  judicially  known 
to  the  court  may  be  brought  up  by 
exceptive  allegation  when  they  do  not 
appear  in  the  libel.  The  Seminole, 
42  Fed.  Rep.  924. 

When  to  be  Taken. — Exceptions  in 
matters  of  substance  must  be  taken 
before  joining  issue  and  filing  cross- 
bill, or  else  the  exception  will  be  held 
to  be  too  late.  The  Fifeshire,  11  Fed. 
Rep.  743  ;  Ben  Adm.  §  468  ;  Betts  Pr. 
p.  48. 

Practice  to  Unite  with  Answer. — It  is 
also  quite  common  practice  to  unite 
exceptions  with  an  answer  on  the 
merits,  the  pleading  being  entitled  the 
Exceptions  and  Answer  of  the  claim- 
ant or  respondent,  and  in  such  case 
the  exceptions  are  heard  when  the  case 
comes  up  regularly  for  trial. 

2.  As  when  a  defendant  excepts  to 
a  collision  libel  because  it  does  not 
state  the  direction  of  the  wind  or  the 
tide,  the  courses  or  lights  of  the 
ships,  or  any  of  the  matters  as  to 
which  the  defendant  is  entitled  to  be 
fully  informed  of  the  libellant's  claim 
before  answering.  See  Adm.  Rule  28. 
Certain  Logs  of  Mahogany,  2  Sumn. 
(U.  S.)  589. 

3.  New  York. — In  the  Southern  and 
Eastern  Districts  of  New  York,  within 


four  days  after  notice  of  his  submit- 
ting.    D.  C.  Rule  44. 

4.  Court  may  Impose  Terms. — The 
court,  on  granting  leave  to  the  libel- 
lant to  amend  in  matter  of  form,  may 
impose  terms. 

5.  Exceptions  for  insufficiency  and 
impertinence  should  not  be  taken  to 
the  same  matter.  The  Whistler,  13 
Fed.  Rep.  295.  Exceptions  to  plead- 
ings in  collision  cases  are  permitted 
only  when  made  in  good  faith.  The 
Intrepid,  42  Fed.  Rep.  185. 

Admiralty  Rule  36  provides  for  a  ref- 
erence of  such  matters  to  a  commis- 
sioner to  report  his  findings  thereon, 
which  are  subject  to  the  approval  of 
the  court.  It  is  common  practice, 
however,  for  the  court  to  hear  the  ex- 
ceptions and  pass  upon  them  in  the  first 
instance. 

6.  This  rule  grew  out  of  the  case 
of  The  Hudson,  15  Fed.  Rep.  162. 
See  Copp  V.  DeCastro,  8  Ben.  (U.  S.) 
321.  It  is  noticed  here  because  the 
proceeding  under  it  should  be  taken 
before  or  at  the  time  of  filing  the  an- 
swer, although  the  court  may  for  cause 
shown  allow  it  to  be  made  later. 

7.  Thus  an  owner  of  cargo  damaged 
by  reason  of  a  collision  may  sue  only 
the  boat  which  was  carrying  the  cargo 
on  the  breach  of  its  carrier's  contract, 
while  the  owner  of  such  boat  may  re- 
gard the  other  vessel  in  collision  as 
solely  responsible  for  the  accident. 
Or  the  owner  of  a  boat  in  tow  of  tug 
A  may  be  run  into  by  tug  B,  and  tug 

70 


Bespondent's  Pleadings. 


ADMIRALTY. 


AnawM". 


vantage  of  by  a  petition  setting  forth  the  facts.* 

other  Cases  Than  Collision. — The  59th  rule  specifies  only  cases  of 
collision,  but  the  courts  have  enlarged  it  to  take  in  cases  of  dam- 
age arising  from  other  causes.*^ 

3.  Answer — Time  of  Filing. — On  the  return  day  of  process,  or 
within  such  further  time  as  may  be  allowed  by  the  court,  or 
granted  by  libeMant's  proctor,  the  respondent  files  in  the  clerk's 
office  his  answer  to  the  libel. ^ 

Contents. — This,  like  the  libel,  is  addressed  to  the  judge  by  name 
and  titles.  It  describes  itself  as  the  answer  to  a  certain  specified 
libel,  and  replies  in  specific  paragraphs  to  the  various  allegations 
of  the  libel,  sets  up  any  affirmative  defence,  and  concludes  with 
the  general  prayer  for  relief  that  the  libel  may  be  dismissed  with 
costs.* 


B  alone  be  libelled.  But  the  owner  of 
B  may  think  that  the  fault  for  the 
collision  lies  with  A  alone.  In  such 
cases  proceedings  under  the  59th  rule 
are  proper. 

1.  The  owner  of  such  vessel  may 
thereupon  file  a  petition  setting  forth 
the  facts  of  the  collision,  and  the  fact 
that  the  suit  is  brought  against  his 
boat  alone,  and  alleging  that,  for  rea- 
sons specified,  another  vessel  or  some 
other  party  is  wholly  or  partially  li- 
able for  the  damage,  and  may  there- 
upon pray  that  the  latter  vessel  or  her 
owner,  or  any  other  party  liable,  may 
be  made  codefendant  with  his  own 
vessel  in  the  original  suit  of  the  dam- 
aged boat.  This  petition  is  filed  in  the 
clerk's  office,  with  a  stipulation  by  pe- 
titioner consenting  to  pay  to  the  libel- 
lant,  or  any  claimant  or  new  party 
brought  in  by  virtue  of  process  under 
such  petition,  all  such  costs,  damages, 
and  expenses  as  shall  be  awarded 
against  the  petitioner  by  the  court. 
Process  will  thereupon  issue,  and  the 
new  party-  be  summoned  into  court 
and  compelled  to  give  security  as 
though  it  or  he  were  the  only  party 
proceeded  against.  Petitioner  must 
also  answer  the  original  libel,  and  the 
new  party  brought  in  must  answer  the 
petition  ;  and  the  cause  proceeds  as 
though  the  original  libel  had  been 
filed  against  both  vessels.  The  Green- 
ville, 58  Fed.  Rep.  805. 

Costs. — But  if  the  vessel  originally 
proceeded  against  is  held  liable  and 
the  vessel  brought  in  is  dismissed,  the 
costs  of  such  vessel  are  taxed  against 
the  petitioner.  The  Waverley,  42  Fed. 
Rep.  188  ;  The  Brothers,  30  Fed.  Rep. 
75. 


2.  The  City  of  Lincoln,  25  Fed.  Rep. 
835;  The  Alert,  40  Fed.  Rep.  836. 

3.  Adm.  Rule  27;  The  Dictator.  30 
Fed.  Rep.  6gg;  Virginia  Home  Ins.  Co. 
V.  Sundberg,  54  Fed.  Rep.  389;  The 
City  of  Salem,  7  Sawy.  (U.  S.)  477. 

As  to  new  matter  in  answer,  see  The 
Whistler,  8  Sawy.  (U.  S.)  233,  13  Fed. 
Rep.  295. 

Excessive  formality  is  not  required. 
Schooner  Navarro,  Olc.  Adm.  127. 

4.  Requisites  and  Sufficiency  of 
Answers. — Answer  must  be  full,  ex- 
plicit, and  distinct.  The  Commander- 
in-Chief,  I  Wall.  (U.  S.)  43;  Propeller- 
Sun,  I  Biss.  (U.  S.)  373;  Schooner  Bos- 
ton, I  Sumn.  (U.  S.)  328.  Proof  must 
correspond  with  allegations.  The 
Washington  Irving,  Abb.  Adm.  336. 
Answer  which  neither  admits  nor  de- 
nies a  material  allegation  is  insuffi- 
cient. The  Elizabeth  Frith,  B.  &  H. 
Adm.  195.  Impertinent  and  irrelevant 
allegations  will  be  stricken  out  on 
motion.  The  Gustavia,  B.  &  H.  Adm. 
189.  Particular  matters  of  defense 
must  be  averred.  The  William  Har- 
ris, I  Ware  (U.  S.)  367.  A  deliberate 
omission  to  file  answer  is  a  waiver 
of  the  right  to  do  so.  Ferryboats 
Roslyn  and  Midland,  9  Ben.  (U.  S.) 
119. 

An  agreement  to  arbitrate  tempo- 
rarily suspends  the  necessity  for 
answer.  The  Nineveh,  i  Lowell 
(U.  S.)  400. 

When  one  part  of  an  answer  is  in- 
consistent with  another,  the  court  must 
accept  the  part  most  adverse  to  the 
claimant.  Bark  Olbers,  3  Ben.  (U.  S.) 
148. 

The  statute  of  limitations  must  be 
pleaded.       Brown    v.    Jones,    2   Gall. 


271 


Respondent's  Pleading^. 


ADMIRAL  TY. 


Counterclaim. 


Exceptions  and  Verification. — It  may  be  joined  with  exceptions  to  the 
Hbel,  as  indicated  above,  and  it  is  required  to  be  verified  in  all 
cases  in  which  the  libel  must  be  verified,  and  in  a  similar  manner.^ 

New  Facts  Alleged. — When  the  answer  alleges  new  facts,  these  are 
considered  as  denied,  and  no  replication  is  allowed.* 

4.  Counterclaim. — Cross-Iibel.— The  respondent  may  set  up  in  his 
answer  any  matter  of  recoupment  or  counterclaim  arising  out  of 
the  same  cause  of  action  as  is  set  up  in  the  libel,'  but  the  general 


(U.  S.)  477.      Also  the  defence  of  stale 
claim.      The    Platina,    21   Law    Rep. 

(u.  s.)  397.  . 

It  is  sufficient  to  aver  a  release  with- 
out setting  out  the  particulars  of  the 
release.  The  Western  Metropolis,  2 
Ben.  (U.  S.)  212. 

The  answer  need  not  respond  to 
mere  narrative  statements.  Brig  Al- 
debaran,  Olc.  Adm.    130. 

Causes  of  action  may  be  severed  and 
judgment  rendered  for  claim  admitted 
to  be  due.  Larrinaga  v.  Two  Thou- 
sand Bags  of  Sugar,  40  Fed.  Rep.  507. 
An  allegation  that  respondent  is  "ig- 
norant "  of  an  allegation  of  the  libel  is, 
it  seems,  sufficient.  The  City  of  Salem, 
10  Fed.  Rep.  843.  All  allegations  in  a 
libel  not  denied  by  the  answer  are  not 
to  be  taken  as  true;  but  when  the 
answer  is  silent  as  to  facts  in  the  libel 
supposed  to  be  peculiarly  within  the 
respondent's  knowledge,  it  is  within 
the  court's  discretion  to  take  the  fact 
pro  confesso.  Campbell  v.  Steamer 
Uncle  Sam,  McAll.  (U.  S.)  77. 

It  is  not  proper  practice  to  make  an 
answer  in  a  collision  case  operate  by 
agreement  as  a  cross-libel.  Ward  v. 
Chamberlain,  21  How.  (U.  S.)  572. 

A  respondent  cannot  change  his 
ground  and  rely  on  a  defense  not  set 
up  in  his  answer.  Turner  v.  Ship 
Black  Warrior,  McAll.  (U.  S.)  181. 

The  fact  that  a  material  allegation 
of  a  libel  was  not  denied  in  the  origi- 
nal answer,  although  it  was  denied  in 
an  amendment  to  such  answer,  may 
be  taken  into  account  by  the  court, 
if  there  is  a  conflict  of  testimony  on 
the  fact  averred.  Steamboat  Empire 
State,  I  Ben.  (U.S.)  57- 

One  may  refuse  to  answer  an  alle- 
gation of  the  libel  on  the  ground  that 
such  answer  will  subject  it  to  a  for- 
feiture or  penalty.  Pollock  v.  Steam- 
boat Laura,  5  Fed.  Rep.  133. 

In  Prize  Cases  the  answer  should  set 
forth  specifically  the  owner  of  the  ves- 
sel, the  place  of  her  outfit,  and  the 
course  of  her  employment.     The  Han- 


nah M.  Johnson,  Blatchf.  P.  C.  97. 
All  the  answer  required  in  prize  is  a 
brief  assertion  that  the  property  is  not 
liable  to  condemnation  and  forfeiture. 
The  Lynchburg,  Blatchf.  P.  C.  3. 

Answer  as  Evidence. — Cushman  v. 
Ryan,  i  Story  (U.  S.)  91;  Sherwood  v. 
Hall,  3  Sumn.  (U.  S.)  127;  Steamboat 
H.  D.  Bacon,  Newb.  Adm.  274;  The 
Santa  Claus,  Olc.  Adm.  428. 

Objections. — An  answer  should  be  ob- 
jected to  as  insufficient  before  taking 
testimony.  The  Rocket,  i  Biss.  (U.  S.) 
354;  The  California,  i  Sawy.  (U.  S.) 
463- 

Separate  Answers  by  different  defend- 
ants must  be  supported  each  by  its 
own  proof.  Gardner  v.  Bibbins,  B.  & 
H.  Adm.  356. 

1.  Adm.  Rule  27;  see  CoflSn  v. 
Jenkins,  3  Story  (U.  S.)  108;  Gammell 
V.  Skinner,  2  Gall.  (U.S.)  45;  The 
Infanta,  Abb.  Adm.  265. 

2.  Adm.  Rule  51;  Moore  z/.  The  Robi- 
lant,  42  Fed.  Rep.  162.  The  evidence 
of  two  witnesses  is  not  necessary  in 
admiralty  to  overcome  an  answer 
under  oath.  Jay  v.  Almy,  i  Woodb. 
&  M.  (U.  S.)  262.  On  the  submission 
of  a  cause  on  the  pleadings,  new  mat- 
ter in  the  answer,  or  general  denials, 
must  be  wholly  disregarded,  except  so 
far  as  they  may  be  admissions  against 
interest.  The  River  Mersey,  48  Fed. 
Rep.  686. 

3.  Dupont  de  Nemours  v.  Vance,  19 
How.  (U.  S.)  162;  The  C.  B.  Sanford, 
22  Fed.  Rep.  863;  The  Zouave,  29  Fed. 
Rep.  296;  The  Sapphire,  18  Wall.  (U. 
S.)  51 ;  The  Dove,  91  U.  S.  383;  O'Brien 
V.  1614  Bags  of  Guano,  48  Fed.  Rep. 
726.  See  The  City  of  New  Bedford, 
20  Fed.  Rep.  57;  White  v.  The  Ranier, 
45  Fed.  Rep.  773.  Although  courts  of 
admiralty  do  not  generally  take  notice 
of  set-oflfs,  the  fact  that  a  respondent 
has  claims  against  the  libellant  which 
might  properly  be  allowed  in  other 
courts  by  way  of  set-off  does  not  oust 
the  jurisdiction  of  an  admiralty  court. 
Dexter  v.  Munroe,  2  Sprague  (U.  S.) 


272 


Bespondent's  Pleadings. 


ADMIRALTY. 


Counterclaim. 


practice  is  to  file  a  cross-libel.* 

When  Cross  Libel  Necessary. — If  the  respondent  desire  to  obtain 
damages  in  excess  of  those  claimed  by  libellant,  a  cross-libel  is 
necessary,  as  the  court  cannot  award  any  such  excess  to  respondent 
on  the  answer  alone.* 

Security.— When  such  a  cross-libel  is  filed,  the  respondents,  i.e. 
the  original  libellants,  must  give  security  in  the  usual  amount  and 
form  unless  the  court  shall  otherwise  direct ;  and  all  proceedings 
on  the  original  libel  will  be  stayed  until  such  security  is  given.^ 


39.  A  defendant  in  a  libel  for  freight 
may  claim  by  way  of  recoupment  that 
the  goods  carried  were  damaged  by 
the  libellant's  negligence.  Such  coun- 
terclaim may  also  be  set  up  by  cross- 
libel.  Snow  V.  Carruth,  9  Law  Rep.  N. 
S.  198.  But  no  excess  can  be  recovered 
without  a  cross-libel.  Snow  v.  Car- 
ruth, I  Sprague  (U.  S.)  324.  No  set- 
off is  allowable  on  a  libel  for  seaman's 
wages.  Bains  v.  Schooner  James  & 
Catherine,  Baldw.  (U.  S.)  544. 

1.  On  What  Founded.  —  A  cross-libel 
must  be  founded  on  a  claim  arising 
out  of  the  same  cause  of  action  as  the 
original  libel.  Cro'well  v.  The  Theresa 
Wolf,  4  Fed.  Rep.  152;  Maxwell  v. 
The  Powell,  i  Woods  (U.  S.)  99; 
Nichols  V.  Tremlett,  i  Sprague  (U.  S.) 
361;  Snow  V.  Carruth,  i  Sprague  (U. 
S.)  324;  The  Ping-On  v.  Blethen,  11 
Fed.  Rep.  607;  Vianello  v.  The  Credit 
Lyonnais,  15  Fed.  Rep.  637;  Ward  v. 
Chamberlain,  21  How.  (U.  S.)  572. 

When  Cross-Libel  Not  Necessary. — 
See  Brooklyn,  etc.,  Ferry  Co.  v.  The 
Morrisania,  35  Fed.  Rep.  558. 

Notice  of  Filing. — Libellant's  proctor 
cannot  be  deemed  the  agent  of  the 
libellant  to  receive  notice  of  the  filing 
of  a  cross-libel.  But  if  the  libellant 
in  the  original  libel  is  out  of  the  juris- 
diction, the  court  may  order  a  stay. 
Nichols  V.  Tremlett,  i  Sprague  (U.  S.) 
365.  Substituted  service  of  monition 
on  cross-libel.  The  Eliza  Lines,  61 
Fed.  Rep.  308. 

Dismissal  of  Libel. — On  dismissal  of  a 
libel,  a  cross-libel  not  so  connected 
with  the  subject-matter  of  the  libel  as 
to  be  maintainable  must  also  be  dis- 
missed. Kemp  V.  Brown,  43  Fed. 
Rep.  391. 

2.  Snow  V.  Carruth,  i  Sprague  (U.  S.) 
324;  Kennedy  r/.  Dodge,  i  Ben.  (U.  S.) 
311;  Erbert  v.  Schooner  Reuben  Dowd, 
3  Fed.  Rep.  520;  Willard  v.  Dorr,  3 
Mason  (U.  S.)  161.  See  Bains  v. 
Schooner  James  &  Catherine,   Baldw. 


(U.  S.)  544;  Ward  v.  Chamberlain,  21 
How.  (U.  S.)572;  The  Nadia,  18  Fed. 
Rep.  729;  The  Ciampa  Emelia,  39  Fed. 
Rep.  126;  Southwestern  Transp.  Co.  t. 
Pittsburg  Coal  Co.,  42  Fed.  Rep.  920. 

3.  Adm.  Rule  53.  Rule  46  of  the 
Southern  and  Eastern  Districts  of  New 
York  is  as  follows:  "  In  suits  in  rem 
in  collision  cases,  where  one  of  the 
colliding  vessels  shall  be  wholly  lost, 
so  that  no  cross-libel  against  her  could 
be  maintained,  the  defendant,  if  he 
shall  desire  to  recoup  or  offset  any 
damage  to  his  own  vessel  in  case  it 
shall  be  determined  on  the  trial  that 
the  collision  occurred  through  the 
fault  of  both  vessels,  must  in  his  an- 
swer state  the  facts  and  his  own  dam- 
ages, in  like  manner  as  upon  filing  a 
cross-libel ;  and  such  statement  of  dam- 
age shall  be  without  prejudice  to  any 
defense  he  may  make  that  the  colli- 
sion was  wholly  the  fault  of  the  other 
vessel."  See  Steamer  Bristol,  4  Ben. 
(U.  S.)  55;  The  Toledo,  Brown  Adm. 
445;  Vianello  ^z.  The  Credit  Lyonnais, 
15  Fed.  Rep.  637;  Empresa  Maritima 
a  Vapor  v.  North  &  South  American 
Steam  Nav.  Co.,  16  Fed.  Rep.  502; 
Compagnie  Universelle  du  Canal  In- 
teroc6anique  v.  Belloni,  45  Fed.  Rep. 
587;  The  Electron,  48  Fed.  Rep.  689. 

The  fifty-third  rule,  requiring  re- 
spondents in  a  cross-libel  to  give  secu- 
rity, applies  to  suits  in  rem  as  well  as 
to  suits  in  personam.  The  Toledo, 
Brown  Adm.  445. 

Respondent  on  a  cross-libel  may  be 
compelled  to  give  security  when  the 
parties  plaintiff  were  not  parties  of 
record  in  the  original  suit,  provided 
the  proceeding  is  really  and  practically 
a  cross-libel.  The  George  H.  Parker, 
I  Flip.  (U.  S.)  606. 

Original  Salt. — It  is  not  essential  to 
file  a  cross-libel  if  defendant  in  origi- 
nal suit  desires  to  proceed  independ- 
ently. Brooklyn,  etc.  Ferry  Co.  ». 
The  Morrisania,  35  Fed.  Rep.   558. 


I  Encyc.  PI.  &.Pr.— 18. 


273 


Issue.  ADMIRALTY.  Trial. 

XIV.  Issue. — On  the  filing  of  the  answer  with  the  clerk,  the 
cause,  in  certain  districts,  is  at  issue  without  further  proceedings 
by  either  party,  and  will  come  up  in  its  turn  on  the  regular  calen- 
dar, or  be  set  down  for  hearing  on  a  particular  date  by  the  court. 
In  other  districts  the  cause  is  not  placed  on  the  calendar  until  a 
note  of  issue  is  filed  with  the  clerk,  and  a  calendar  fee  paid.^ 

XV.  Tbial — Method  of  Trial. — In  some  districts  the  court  never 
sees  the  witnesses.  As  soon  as  the  cause  is  at  issue,  an  order  of 
course  is  entered  that  the  evidence  in  the  cause  be  taken,  and  one 
of  the  standing  commissioners  of  the  court  is  usually  appointed 
to  take  down  the  testimony.*  And  not  until  it  is  all  written 
down  is  the  cause  submitted  to  the  court,  the  pleadings  and 
evidence  being  read  to  the  court  by  the  advocates,  and  the  cause 
thereupon  summed  up  and  submitted  on  written  briefs.  In  othei- 
districts  the  witnesses  are  present  in  court.  The  cause  is  opened 
by  the  reading  of  the  libel  by  the  advocate  for  the  libellant,  fol- 
lowed by  the  reading  of  the  answer  for  the  respondent.  The 
libellant  then  calls  his  witnesses  and  the  respondent  his,  and,  the 
evidence  being  all  in,  the  cause  is  summed  up.  A  difference 
between  the  ordinary  trial  practice  in  summing  up  a  case,  and  the. 
summing  up  of  an  admiralty  cause,  is  that  in  the  latter  the 
libellant  has  the  right  to  open  the  argument,  and  when  the  defend- 
ant has  presented  his  side  of  the  case  the  libellant  has  the  right 
to  reply  and  thus  conclude  the  summing  up.  There  is  no  non- 
suit in  admiralty,  the  court  always  hearing  the  defendant's  case, 
or  requiring  him  to  rest  without  putting  in  evidence  ;  and,  in 
cases  of  collision,  the  libellant  is  always  bound  to  make  out  a 
prima-facie  case  of  negligence  in  the  vessel  libelled.' 

Court  Reserving  Decision. — Admiralty  causes  of  any  importance  are 
rarely  decided  by  the  court  at  once.  In  perhaps  no  class  of  cases 
is  a  careful  study  of  the  evidence  so  necessary  in  order  to  reach 
a  just  decision.^     At  the  close  of  the  argument,  therefore,  the 

1.  Note  of  Issue. — The  note  of  issue  Steam-tug  L.  P.  Dayton,  4  Fed.  Rep. 
is  a  mere  statement  of  the  title  of  the  134,  120  U.  S.  337;  The  Honora  Carr, 
cause,  the  various  proctors,  and  the  31  Fed.  Rep.  S42;  The  Gibson,  35  Fed. 
date  of  issue,  with  frequently  but  not  Rep.  333. 

necessarily  a  statement  of  the  nature  4.  New    Trial — Behearing,  etc. — The 

of  the  suit,  as  that  it  is  of  collision,  or  granting  of  a  new  trial  in  admiralty  is 

on- contract,  or  for  damage  to  cargo,  practically  unknown.     Even  a  rehear- 

etc.  ing  and  the    introduction    of    further 

Delay  in  Bringing  Cause  to  Hearing. —  evidence,  after  decision  once  had,  is 

Delay  in  bringing  a  cause   to  hearing  unusual,  though  it  is  of  course  within 

after  issue  joined  is  no  ground  for  dis-  the   power  of  the  court.     The  Vader- 

missing  the  libel.     The  Mariel,  6  Fed.  land,   19    Fed.   Rep.   527;  Mainwaring 

Rep.  831.  V.  Bark  Carrie  Delap,  i  Fed.  Rep.  880. 

2.  Beason for  Beference. — Under  Adm.  See  Burdett  v.  Williams,  29  Fed.  Rep. 
Rule  44,  the  District  Court  may  reffer  542;  The  Havilah,  39  Fed.  Rep.  333; 
any  cause  to  a  commissioner  to  take  Hatch  v.  The  Newport,  44  Fed.  Rep. 
testimony  without  assigning  any  spe-  300;  The  Newport,  38  Fed.  Rep.  669. 
cial  reason  for  the  reference.  The  A  motion  for  a  rehearing  should  be 
Wavelet,  25  Fed.  Rep.  733.  made  at  the  same  term  in  which  final 

3.  Method  of  Procedure. — McNally  v.  decree  was   rendered.     The  Comfort, 

274 


Interlocutory  Decree 


ADMIRALTY. 


and  Beference. 


court  usually  takes  the  papers  and  in  due  course  renders  its 
decision.^ 

XVI.  INTEKLOCUTOKY  DECKEE  AND  REFERENCE — 1.  Generally.— 
The  court  does  not  act  as  assessor  of  damages.  When  the  amount 
claimed  in  the  libel  is  a  definite  amount,  or  easy  of  ascertainment, 
the  court  may  pronounce  for  a  definite  amount.  Usually,  though, 
the  matter  is  referred  to  a  commissioner.*  The  libellant,  there- 
fore, enters  an  interlocutory  decree  and  order  of  reference.  This 
is  a  decree  reciting  the  suit  and  the  submission  of  it  to  the  court, 
and  ordering,  adjudging,  and  decreeing  that  the  libellant  recover 
of  the  ship  and  its  sureties,  or  of  the  respondent,  the  damages 
sustained  by  hbeilant  by  reason  of  the  matters  and  things  in  the 
libel  alleged,  and  further  ordering  that  the  matter  be  referred  to 
a  certain  commissioner  to  ascertain  the  amount  of  the  libellant's 
damage  and  report  thereon  to  the  court. 

A  copy  of  this  decree  is  served  on  the  respondent,  and  a  certi- 
fied copy  delivered  to  the  commissioner  named.  Thereafter  a  no- 
tice of  the  time  and  place  of  the  reference,  signed  by  the  com- 
missioner, is  served  upon  the  respondent,  and  at  the  appointed 
time  the  libellant,  with  his  witnesses,  appears  before  the  commis- 
sioner and  gives  evidence  as  to  his  damages.* 


32  Fed.  Rep.  327;  The  Madge,  31  Fed. 
Rep.  926;  The  Annex  No.  3,  38  Fed. 
Rep.  620;  The  Oriental,  2  Flip.  (U.S.)  6. 
The  rule  that  a  rehearing  may  not 
be  had  after  the  term  at  which  the 
cause  was  originally  decided,  except 
upon  a  showing  of  fraud,  applies  only 
to  a  direct  proceeding  in  the  same 
cause,  and  does  not  affect  a  proceeding 
to  review  the  original  suit.  Jackson  v. 
Munks,  58  Fed.  Rep.  596;  Snow  v.  Ed- 
wards, 2  Lowell  (U.  S.)  273;  Northwest- 
ern Car  Co. z/. Hopkins, 4  Biss.(U.S.)5i. 

1.  The  Judgment. — If  the  decision  be 
in  favor  of  the  defendant,  the  judg- 
ment will  be  that  the  libel  be  dis- 
missed, with  or  without  costs,  and 
defendant  taxes  his  costs,  as  referred 
to  hereafter,  and  enters  a  final  decree 
that  the  libel  be  dismissed.  If  the  de- 
cision is  in  favor  of  the  libellant,  then 
the  matter  is  usually  referred  to  a 
commissioner. 

2.  Who  Acts  as  Referee. — In  a  colli- 
sion case,  for  example,  where  the  dam- 
ages may  consist  of  hundreds  of  items, 
and  in  other  cases, — in  fact,  in  admi- 
ralty causes  generally, — the  clerk  of 
the  court,  or  one  of  the  United  States 
commissioners,  acts  as  a  referee  to  as- 
certain the  exact  amount  of  the  libel- 
lant's damage. 

3.  Proceedings  before  Commissioner. — 
.:".   reference    before    a   commissioner 


proceeds  like  an  ordinary  trial;  ob- 
jections to  evidence  are  passed  upon 
by  the  commissioner  at  the  time  of  of- 
fering them,  and  are  afterwards  re- 
viewable by  the  court.  Ship  E.  C. 
Scranton,  2  Ben.  (U.  S.)  81;  Brigantine 
Beaver,  8  Ben.  (U.  S.)  594.  Either 
party,  however,  is  at  liberty  to  insist 
that  the  court  pass  upon  the  question 
objected  to  histanter  and  before  the 
continuance  of  the  reference.  This 
is  the  proper  method  of  procedure 
when  objection  is  made  to  the  method 
of  the  commissioner  in  ascertaining 
the  damages.  The  E.  C.  Scranton,  4 
Ben.  (U.S.)  125;  Schooner  Transit,  4 
Ben.  (U.S.)  138;  Brigantine  Beaver,  8 
Ben.  (U.  S.)  594. 

The  reference  being  then  adjourned, 
the  commissioner  will  certify  to  the 
court  the  question  objected  to,  with 
his  ruling  thereon,  and  his  reasons  for 
the  ruling,  if  he  so  desires,  and  the 
matter  may  be  brought  before  the 
court,  on  notice,  on  any  motion  day, 
or  according  to  the  practice  of  the 
particular  district,  and  having  been 
passed  upon  by  the  court,  the  reference 
proceeds.  At  the  close  of  the  libel- 
lant's evidence,  the  defendant  offers 
his  evidence  tending  to  reduce  the 
claim  of  the  libellant,  and  the  matter 
will  then  be  summed  up  and  submitted 
to  the  commissioner. 


275 


Taxation  of  Costs.  ADMIRALTY.  rinal  Decree,  What  is. 

Commissioner's  Eeport. — In  due  time  the  commissioner  makes  his 
report,  which,  with  the  evidence  and  exhibits,  is  filed  in  the  office 
of  the  clerk.* 

2.  Exceptions  to  Report. — Either  party  may  except  to  the  com- 
missioner's report.  The  exceptions  should  state  particularly  the 
ground  of  the  exception;*  and  they  may  be  brought  on  for  hear- 
ing before  the  court  on  short  notice.  Exceptions  are  usually 
heard  on  some  regular  motion  day  of  the  court,  and  are  argued 
and  submitted,  with  the  report,  evidence,  and  exhibits,  and  the 
court,  either  on  the  argument  or  at  alater  date,  passes  upon  them, 
overruling  or  allowing  them,  seriatim?' 

Confirming  Eeport. — The  exceptions  having  been  finally  disposed  of, 
the  report  is  confirmed  by  the  court.  And  if  no  exceptions  at  all 
have  been  filed,  the  report  will  be  confirmed  absolute  in  a  reason- 
able time  after  notice  of  the  filing  of  the  report  has  been  given 
the  other  side.* 

The  case  is  now  ready  for  the  taxation  of  costs  and  entry  of 
final  decree. 

XVII.  Taxation  of  Costs.— In  some  districts  the  costs  are  taxed 
before  the  final  decree  is  entered,  and  the  amount  of  them  is  in- 
cluded in  and  forms  a  part  of  the  amount  of  the  final  decree.  In 
other  districts  the  final  decree  is  entered  for  the  damages  alone, 
and  the  taxed  bill  is  a  separate  paper  to  be  attached  to  the  decree, 
the  amount  of  both  the  decree  and  the  bill  of  costs  being,  of 
course,  inserted  in  the  execution,  when  issued.* 

XVIII.  Final  Decree,  What  is.— The  final  decree  is  an  order  of 
court  reciting  the  commencement  of  the  suit,  the  hearing,  the 
interlocutory  decree,  the  reference  to  a  commissioner,  the  report, 
the  exceptions,  if  any  were  taken,  and  the  action  of  the  court 
thereon,  and  finally  ordering,  adjudging,  and  decreeing  that  the 
libellant  recover  of  the  respondent  such  and  such  specified  sum, 

1.  Principles  on  which  Damages  are  disputed  point.  And  the  commit- 
Assessed. — The  commissioner's  report  sioner's  second  report  may  be  excepted 
should  explain  the  principles  on  which     to  in  like  manner  to  the  first. 

the  damages  are  assessed.     Murray  z/.  4.  Confirmation  Nisi  and  Absolute. — In 

Schooner  Charming  Betsey,  2  Cranch  some  districts,  a  report,  on  being  filed 

(U.  S.)  64.  in   the   office  of  the  clerk,  is  at  once. 

Adoption  by   Court. — The  court  will  and  of  course,  confirmed  nisi,  that  If, 

generally  adopt  the  commissioner's  re-  confirmed    unless   exceptions  are  filed 

port  unless   errors  are  clearly   estab-  within  a  specified  time;  and   if  no  ex- 

lished  by  the  excepting  party.     Steam-  ceptions  are  filed  within  that  time,  the 

boat   Narragansett,    Olc.    Adm.   388  ;  report  is,   as  matter   of   course,   coi.- 

Baker  v.   Ship  Potomac,  18  How.  Pr.  '  firmed  absolute. 

(N.  Y.)i85.  6.  The  Costs  are   Taxed  by  the  Ckik 

2.  The  Commander-in-Chief,  i  Wall,  after  notice  to  the  proctor  for  the  other 
(U.  S.)  43;  Schooner  Transit,  4  Ben.  side,  and  such  taxation  is  subject  to  an 
(U.  S.)  138.  appeal  by  either  party  to  the  couif. 

3.  Further  Reference. — It  is  quite  The  taxed  bill  is  filed  in  the  clerk's 
within  the  power  of  the  court,  and  not  office.  The  amount  of  costs  will  be 
infrequently  done,  to  refer  the  matter  considered  later.  See  post,  xxvin. 
again    to  the    commissioner,    to    take  Costs. 

further  evidence   in   regard   to   some 

276 


Final  Decree,  What  is. 


ADMIRALTY. 


Final  Decree,  What  is. 


being  the  amount  of  the  Hbellant's  damages,  costs,  and  interest  to 
date.i 

Performance  by  Stipulators. — It  may  also  contain  the  order  that  unless 
the  decree  be  satisfied  or  an  appeal  intervene,  the  stipulators  for 
value  and  for  claimant's  or  respondent's  costs  cause  the  engage- 
ment of  their  stipulations  to  be  performed,  or  show  cause  within 
a  certain  time  why  execution  should  not  issue  against  them,  their 
goods,   chattels,  and  lands.'^     On   this  decree,  after  the  time  to 


1.  Proper  Form  of  Decree  for  libellant 
on  appeal. — Deems  v.  Albany  &  C. 
Line,  14  Blatchf.  (U.  S.)  474. 

In  Suit  for  Damages  for  Personal  In- 
juries, court  may  make  a  decree  for  ex- 
penses of  cure.  The  Lizzie  Frank,  31 
Fed.  Rep.  477. 

When  Several  Libellants  have  distinct 
damage  interests,  decree  may  be  for 
all  for  an  aggregate  sum,  and  direct  a 
distribution.     The  City  of  Alexandria, 

44  Fed.  Rep.  361. 

A  Decree  Pro  Confesso  is  not  final. 
The  Lopez,  43  Fed.  Rep.  95.  Nor  is  a 
decree  dismissing  a  libel  for  want  of 
evidence.   The  Delaware,  33  Fed.  Rep. 

589. 

Interest  on  Demurrage. — Milburn  v. 
Bopo,  57  Fed.  Rep.  237;  The  M.  Kalb- 
fleisch,  59  Fed.  Rep.  198. 

2.  Decree  against  Principal  and  Sureties. 
— The  decree  may  be  entered  against 
both  principal  and  sureties  at  the  time 
of  its  rendition,  where  a  bond  to  the 
marshal  has  been  given.  The  Belgen- 
land,  108  U.  S.  153. 

Where  Damages  are  Divided  between 
Two  Vessels,  each  being  held  liable  for 
one-half  of  Hbellant's  damages,  the 
decree  should  provide  that  each  pay 
one-half  the  damage,  to  the  amount  of 
their  respective  stipulations,  and  that 
if  either  vessel  is  unable  to  pay  such 
half,  the  balance  shall  be  collected 
from  the  other  offender.  The  Ala- 
bama, 92  U.  S.  695  ;  The  Civilta,  103 
U.  S.  699  ;  The  Virginia  Ehrman,  97 
U.  S.  309  ;  The  Sterling,  106  U.  S.  647; 
The  V\^ashington,  9  Wall.  (U.  S.)  513. 
See  The  Helen  R.  Cooper,  10  Blatchf. 
(U.  S.)2i2  ;  The  Eleanora,  17  Blatchf. 
(U.  S.)  88  ;  The  Shubert  v.  The  Brown,. 

45  Fed.  Rep.  500.  Division  of  damages 
where  more  than  two  vessels  in  fault. 
The  Brothers,  2  Biss.  (U.  S.)  104  ;  The 
Peshtigo,  25  Fed.  Rep.  488.  See  The 
Anerley,  58  Fed.  Rep.  794. 

The  Act  of  February  13,  1893,  27  Sts. 
at  Large,  445,  provides  (section  3)  that 
under  certain  conditions  "neither  the 
vessel  nor  her  owner  .  .  .  shall  be  held 


responsible  for  loss  resulting  from 
faults  of  navigation."  It  has  been 
held  that  this  applies  only  to  claims 
for  damage  to  cargo  on  board  the 
vessel  in  fault.  The  Viola,  59  Fed. 
Rep.  632;  The  Berkshire,  59  Fed.  Rep. 
1007.  When  in  a  case  of  collision, 
both  vessels  have  been  held  in  fault, 
the  assessment  of  damages  is  made  as 
follows :  the  damages  of  the  two  vessels, 
including  personal  effects  (which  are 
to  be  treated  as  part  of  the  vessel)  are 
first  to  be  made  even.  Either  vessel 
whose  cargo  has  been  damaged  cannot 
be  charged,  directly  or  indirectly,  with 
any  part  of  the  loss  suffered  by  her 
own  cargo,  nor  can  any  offset  against 
the  carrying  vessel's  claim  for  her  own 
damage  be  made  by  the  other  vessel 
on  account  of  what  the  latter  must  pay 
for  the  carrying  vessel's  cargo  dam- 
age; but  the  claim  of  the  cargo  of  the 
carrying  vessel  must  be  reduced  by  the 
amount  which  would,  before  the  pas- 
sage of  the  above  act,  have  been 
charged  against  such  carrying  vessel, 
or  against  the  moneys  payable  to  her. 
The  Viola,  60  Fed.  Rep.  296. 

In  Cases  of  Cross-libels  for  Collision, 
where  both  vessels  have  been  damaged, 
and  both  are  held  in  fault,  the  decree 
should  provide  that  the  party  suffer- 
ing the  greater  damage  shall  recover 
one-half  the  excess  of  his  damage  over 
the  damage  of  the  other  vessel.  Sub- 
tract the  lesser  damage  from  the 
greater  damage,  and  divide  the  result 
by  two,  and  the  result  will  be  the 
amount  to  be  entered  in  the  decree  for 
the  vessel  suffering  the  greater  dam- 
age. The  North  Star,  106  U.  S.  18  ; 
Steamship  Oregon,  14  Sawy.  (U.  S.) 
440,  43  Fed.  Rep.  62. 

A  Personal  Judgment  cannot  ordi 
narily  be  entered  against  a  claimant 
in  a  suit  in  rem  unless  he  has  signed 
the  stipulation.  Atlantic  Ins.  Co.  v. 
Alexandre,  16  Fed.  Rep.  279.  Or  on 
issuing  new  process,  or  on  a  general  ap- 
pearance. The  Monte  A.,  12  Fed.  Rep. 
331. 


277 


Appeals. 


ADMIRALTY. 


Generally. 


appeal  and  the  time  allowed  stipulators  to  show  cause  has  ex- 
pired, a  summary  judgment  may  be  obtained  against  the  defend- 
ant and  his  sureties,  and  an  execution  issued  thereon. 

XIX.  SxjMMAEY  Judgment  and  Execution. — On  proof  by  affi- 
davit, ex  parte  or  on  notice  to  the  proctors  for  the  losing  party,  that 
the  time  to  appeal  has  expired  and  the  judgment  remains  unpaid, 
the  court  will  enter  a  summary  judgment*  against  the  stipulators 
for  the  amount  of  the  stipulations,  on  which  execution  will  issue 
instantly  against  the  sureties.* 

Sale  of  Property  and  Distribution  of  Proceeds- — When,  in  pursuance  of 
this  execution,  the  marshal  has  sold  the  property,*  he  pays  the 
proceeds  into  the  registry  of  the  court,  and  the  clerk,  under 
direction  of  the  court,  will  satisfy  the  libellant's  decree,  or  distrib- 
ute the  proceeds  if  there  are  several  creditors.* 

XX.  Appeals— 1.  Generally. — An  appeal  can  be  taken  only  from 
final  decrees.*     But  when  so  taken  it  brings  up  the  whole  case  for 


1.  No  Necessity  for  an  Action. — The  ad- 
miralty stipulations  containing  agree- 
ments on  the  part  of  the  respondent 
and  his  sureties  that  in  case  of  default 
on  the  part  of  the  principal,  execution 
may  issue  against  them,  their  goods, 
chattels,  and  lands,  there  is  never  any 
necessity  for  an  action  against  the 
sureties  on  theii  stipulation.  The 
Baltic,  B.  &  H.  Adm.  149. 

MarsliarB  Bonds. — This  is  the  case 
only  on  bonds  to  the  marshal.  In 
stipulations  for  value  an  order  is  or- 
dinarily made  calling  on  the  sureties 
to  show  cause  in  four  days  why  execu- 
tion should  not  issue  against  them, 
their  goods,  chattels,  and  lands;  and  if 
no  cause  is  shown,  execution  issues  as 
of  course.  And  see  The  Sydney,  47 
Fed.  Rep.  260;  Adm.  Rule  21.  See  The 
Blanche  Page,  16  Blatchf.  (U.  S.)  i. 

2.  Execution. — The  execution  is  in 
the  nature  of  a.  Jieri  facias,  command- 
ing the  marshal  or  his  deputy  to  levy 
and  collect  the  amount  of  the  judg- 
ment out  of  the  goods  and  chattels, 
lands  and  tenements,  or  other  real 
estate  of  the  defendant  or  his  stipula- 
tors, and  the  marshal  collects  the 
judgment  by  sale  of  such  goods  and 
lands,  as  in  ordinary  cases  of  execu- 
tion. 

3.  Sale  of  Property. — There  is  no  war- 
ranty, express  or  implied,  in  the  sale 
of  property  by  a  court  of  admiralty. 
The  Monte  AUegre,  9  Wheat.  (U.  S.) 
616.  A  court  of  admiralty  has  power 
to  compel  the  payment  of  the  purchase 
money  in  a  judicial  sale  by  attaching 
the  person  of  the  purchaser.  The  Kate 


Williams,  2  Flip.  (U.  S.)  50.  A  sale 
may  be  set  aside  on  petition  showing 
collusion,  mistake,  or  a  wholly  inade- 
quate price.  Steamer  Sparkle,  7  Ben. 
(U.  S.)  528.  But  a  motion  to  set  aside 
a  sale  must  be  made  seasonably.  U. 
S.  V.  Steamboat  Austin,  9  Ben.  (U.  S.) 
350;  The  Kaloolah,  Brown  Adm.  55. 

4.  Distribution  of  Proceeds.  —  It  is 
highly  irregular  for  the  marshal  to 
retain  proceeds  or  himself  distribute 
them.  TheCollector,  6  Wheat.  (U.  S.) 
194  ;  Bark  Laurens,  Abb.  Adm.  508. 
The  surplus  of  proceeds  of  sale  may  be 
appropriated  to  the  paymant  of  other 
liens  on  the  original  property.  Brackett 
V.  The  Hercules,  Gilp.  (U.  S.)  184;  The 
Fanny,  2  Lowell  (U.  S.)  508;  Rodd  v. 
Heartt,  2i  Wall.  (U.  S.)  558;  Gardner  v. 
Ship  New  Jersey,  i  Pet.  Adm.  223;  The 
Santa  Anna,  B.  &  H.  Adm.  79;  Harper 
V.  The  New  Brig,  Gilp.  (U.  S.)  536;  The 
Skylark,  2  Biss.  (U.  S.)  251.  One  who 
had  no  right  of  action  in  rem  may  be 
paid  out  of  surplus  proceeds  in  a  court 
of  admiralty.  The  Stephen  Allen, 
B.  &.  H.  Adm.  175;  Petriez/.  Steam-tug 
Coal  Bluff  No.  2,  3  Fed.  Rep.  531. 
Contra,  Remnants  in  Court,  Olc.  Adm. 
382.  When  a  cargo  is  arrested  for 
freight,  the  owner  should  pay  the 
freight  admitted  to  be  due  into  court. 
Freight-money  of  Canal-boat  Monad- 
nock,  5  Ben.  (U.  S.)  357. 

5.  See  The  Delaware,  33  Fed.  Rep. 
589.  Where  libellant  sued  both  ship 
and  charterer  in  the  District  Court, 
which  fixed  the  liability  of  the  ship, 
but  left  the  charterer's  liability  un- 
settled, it  was  held  iha.\.  the  decree  was 


'78 


Appeals. 


ADMIRALTY. 


Appeal  Bond. 


review,  including  all  interlocutory  decrees  and  orders  which  may 
have  been  entered  during  the  progress  of  the  suit.* 

How  Taken. — The  appeal  is  taken  by  filing  with  the  clerk  of  the 
district  court,  and  serving  on  the  proctor  for  the  adverse  party, 
a  notice,  signed  by  the  appellant  or  his  proctor,  to  the  effect  that 
the  appellant  appeals  from  the  decree  complained  of.* 

2.  Appeal  Bond. — Within  ten  days  thereafter  the  appellant  must 
also  file  a  bond*  in  the  sum  of  $250,  conditioned  that  he  will 
prosecute  his  appeal  to  effect,  and  pay  the  costs  if  the  appeal  is 
not  sustained. 

Bond  to  Stay  Execution. — This  bond  is  therefore  necessary  to  an  ap- 
peal, but  the  giving  of  it  does  not  stay  execution  of  the  decree 
below.  In  order  to  do  that,  another  bond  must  be  given,  in  such 
sum^  as  is  ordered  by  the  judge  of  the  District  Court  or  a  judge  of 
the  Circuit  Court  of  Appeals,  conditioned  that  the  appellant  will 
abide  by  and  perform  whatever  decree  may  be  rendered  by  the 
Circuit  Court  of  Appeals  in  the  cause,  or,  on  the  mandate  of  that 
court,  by  the  court  below.* 


final  and  appealable  as  between  libel- 
lant  and  the  ship.  The  Alert,  61  Fed. 
Rep.  113. 

1.  The  Havilah,  48  Fed.  Rep.  684; 
The  State  of  California,  49  Fed.  Rep. 
172.  A  finding  of  fact  by  a  commis- 
sioner will,  when  erroneous,  be  re- 
versed on  appeal.  The  Cayuga,  59 
Fed.  Rep.  483.  A  commissioner's 
findings,  made  on  conflicting  evidence, 
should  not  be  disturbed  unless  error 
clearly  appears.  Panama  R.  Co.  v. 
Napier,  61  Fed.  Rep.  408. 

Proper  Appellant. — The  claimant  of 
record  in  the  court  below  is  the  proper 
appellant,  though  he  be  but  the  master 
of  the  vessel,  claiming  for  the  benefit 
of  the  owner.  The  owner  and  surety, 
appearing  also  of  record,  may  join  in 
the  appeal.  Aiken  v.  Smith,  54  Fed. 
Rep.  894. 

Within  What  Time  Final  Decree  Exe- 
cuted— The  final  decree  of  the  District 
Court  cannot  be  executed  until  ten  days 
after  entry  of  such  decree  in  that  court*; 
in  some  districts,  until  ten  days  after 
notice  of  such  entry  has  been  served  on 
the  proctor  for  the  party  against  whom 
the  decree  is  entered. 

2.  Notice  of  Appeal.  —  This  notice 
stays  the  execution  of  the  decree  of  the 
District  Court  for  the  further  period 
of  ten  days  from  the  date  of  filing  the 
notice  of  appeal.  In  the  second  circuit 
the  notice  of  appeal  may  contain  the 
statement  that  the  appellant  desires  to 
review  one  or  more  questions  only, 
which  questions  must  be  stated  in  the 


notice,  and  the  appellant  is  concluded 
by  such  notice,  and  the  review  on  such 
appeal  is  limited  to  such  questions. 
See  Adm.  Rule  3,  Ct.  C.  A.,  Second  Cir- 
cuit. 

Time  to  Perfect  Appeal. — In  the  ab- 
sence of  any  general  rule  or  special 
order,  the  appellant,  under  Admiralty 
Rule  45,  has  thirty  days  from  the  ren- 
dition of  the  appeal  within  which  to 
perfect  his  appeal.  The  Canary  No.  2, 
22  Fed.  Rep.  536. 

3.  Bond  Not  Giren  in  Time. — If  this 
bond  is  not  given  within  such  ten  days, 
the  appeal  will  be  deemed  abandoned, 
and  the  decree  of  the  District  Court 
may  be  executed,  unless  otherwise  or- 
dered by  a  judge  of  the  Circuit  Court  of 
Appeals. 

4.  Amount  of  Bond. — The  amount  of 
this  bond  is  usually  a  matter  of  agree- 
ment between  proctors,  and  should  be 
amply  sufficient  to  cover  the  amount  of 
the  decree  of  the  District  Court,  and  in- 
terest thereon  pending  the  appeal. 

5.  Appeal  Bond  and  Bond  for  Costs. — 
Both  this  bond  and  the  bond  for  costs 
are  drawn  to  the  appellee  as  obligee, 
and  both  bonds  may  be,  and  in  common 
practice  usually  are,  combined  in  one 
instrument,  which  recites  that  the  ap- 
pellant's bondsmen  are  bound  in  such 
and  such  a  sum,  and  in  the  further  sum 
of  8250,  conditioned  that  the  appellant 
shall  prosecute  his  appeal  to  effect,  and 
pay  all  costs  if  the  appeal  be  not  sus- 
tained, and  will  also  abide  by  and  per- 
form whatever  decree  may  be  rendered 


279 


Appeals. 


ADMIRALTY. 


The  Citation. 


3.  Petition  of  Appeal. — Under  the  old  admiralty  practice,  a 
petition  of  appeal  was  necessary.  This  is  a  petition  addressed  to 
the  judges  of  the  appellate  court,  setting  forth  minutely  the  date 
of  the  filing  of  the  libel,  the  exceptions  thereto,  if  any,  the  date 
of  the  filing  of  the  answer,  and  the  time  and  place  of  hearing  in 
the  District  Court,  with  the  decision  of  the  court  thereon,  and  the 
date  of  the  entry  of  the  interlocutory  decree  ;  a  mention  of  the 
reference,  and  the  amount  of  the  final  decree,  with  its  time  of 
entry  ;  and  the  fact  that  the  appellant  is  advised  and  insists  that 
the  decree  is  erroneous :  the  whole  concluding  with  a  prayer  that 
the  appellate  court  will  call  up  the  record  from  the  District  Court 
and  will  hear  the  cause  anew  and  revise  the  decree.  It  is  signed 
by  the  proctor  for  the  appellant,  and  need  not  be  verified.* 

4.  Assignment  of  Errors. — The  appellant  is  also  required  to 
indicate  in  what  particulars  he  considers  the  decree  of  the  District 
Court  erroneous.  This  is  called  assigning  error  to  the  decree, 
and  the  document  setting  forth  such  error  is  called  an  assignment 
of  errors.* 

5.  The  Citation. — The  citation  is  a  notice  issued  by  the  appellate 
court,  directed  to  the  appellee  in  the  cause,  reciting  briefly  the 
appeal,  and  the  filing  of  proper  security  by  the  appellant,  and  call- 
ing upon  him  to  present  himself  at  a  certain  time  before  the  ap- 


by  the  Circuit  Court  of  Appeals  in  the 
cause,  or,  on  the  mandate  of  that  court, 
by  the  court  below.  Appeal  bonds 
may  be  taken  before  a  United  States 
commissioner.  The  Canary  No.  2,  22 
Fed.  Rep.  536.  When  appeal  has  a 
standing  in  the  appellate  court,  irre- 
spective of  the  bond.  The  Natchez,  27 
Fed.  Rep.  309.  In  the  Brantford  City, 
32  Fed.  Rep.  324,  it  was  held  not  neces- 
sary to  give  a  new  stipulation  for  the 
whole  amount  of  the  decree  and  costs. 
This  decision  was  before  the  passage 
of  the  Circuit  Court  of  Appeals  Act, 
but  probably  would  be  followed. 

1.  Necessity  for  Petition  of  Appeal. — In 
the  Second  Circuit,  when  the  Circuit 
Court  of  Appeals  has  prescribed  spe- 
cial rules  in  admiralty  governing  ap- 
peals, separate  from  the  general  rules 
in  use  in  all  the  circuits,  the  petition 
of  appeal  would  appear  to  be  unneces- 
sary. For  the  ist  Admiralty  Rule 
provides  that  an  appeal  shall  be  taken 
by  the  filing  of  a  notice  of  appeal,  and 
Rule  4  requires  the  record  on  ap- 
peal to  begin  with  a  statement  which 
contains  all  the  facts  for  the  informa- 
tion of  the  court  formerly  inserted 
in  the  petition  of  appeal.  And  yet 
General  Rule  11,  which  by  the  19th  Ad- 
miralty Rule  is  specified  as  an  ad- 
miralty rule,    states    that   no  writ    of 


error  or  appeal  shall  be  allowed  until 
the  assignment  of  error  shall  have 
been  filed.  This,  by  providing  for  the 
allowance  of  an  appeal,  would  certainly 
seem  to  indicate  that  an  appeal,  or 
petition  of  appeal,  is  necessary.  But 
in  actual  practice  it  is  rarely  used  in 
the  Second  Circuit.  In  other  circuits 
which  have  no  admiralty  appeal  rules, 
and  where  appeals  are  governed  solely 
by  the  general  rules,  a  petition  of  ap- 
peal would  apparently  be  neces- 
sary. 

2.  Ct.  C.  App.  Rule  ti. 

Particularity  Required. — In  admiralty 
causes,  which  are  frequently  mere  re- 
views of  fact,  it  is  often  practically  im- 
possible to  assign  minute  error  to  the 
decree;  and  in  th'e  Second  Circuit,  at 
least,  the  assignment  of  errors  is 
usually  most  simple,  stating  merely 
that  the  court  erred  in  decreeing  as  it 
did,  with  the  further  error  that  it  did 
not  decree  as  the  appellant  thinks  it 
ought  to  have  decreed.  If  further 
error  can  be  assigned,  as  to  the  admis- 
sion or  rejection  of  evidence,  or  the  con- 
duct of  the  trial,  it  should  be  set  out  in 
due  form.  And  when  the  error  alleged 
is  as  to  the  admission  or  rejection  of 
evidence,  the  assignment  must  quote 
the  full  substance  of  the  evidence  ad- 
mitted or  rejected. 

80 


Appeals.  ADMIRALTY.  New  Testimony. 

pellate  court  to  do  and  receive  what  may  appertain  to  justice  to 
be  done  in  the  premises.* 

6.  Filing  Papers. — The  assignment  of  errors,  bonds,  petition  of 
appeal,  and  citation  being  all  prepared,  the  appellant  presents  all 
four  papers  to  the  judge  of  the  District  Court,  or  a  judge  of  the 
Circuit  Court  of  Appeals,  who  allows  the  appeal,  approves  the 
bond,  and  signs  the  citation,  A  copy  of  the  citation  is  then  served 
on  the  appellee  or  his  proctors,  and  all  four  documents,  the  citation 
accompanied  by  proof  of  service  of  a  copy  on  the  respondent  or 
his  proctors,  are  filed  in  the  ofifice  of  the  clerk  of  the  District  Court. 

7.  Exceptions  to  Bond. — The  approval  of  the  bond  by  a  judge, 
as  mentioned  above,  is  a  formal  matter,  but  is  required  before  the 
citation  can  be  signed.* 

8.  The  Apostles. — The  clerk  of  the  District  Court  thereupon 
makes  up  a  transcript  of  the  record  of  the  cause.  This  is  called 
the  Apostles.* 

Certification  and  Eeturn,. — The  Apostles  are  certified  by  the  clerk  of 
the  District  Court,  and  are  returned  to  the  Circuit  Court  of  Ap- 
peals within  thirty  days  after  filing  the  notice  of  appeal.* 

Notice  and  Appearance.— The  appellant's  proctor  thereupon  serves 
notice  on  the  appellee  of  the  return  of  the  Apostles,  and  the 
appellee  must  enter  his  appearance  in  the  Circuit  Court  of 
Appeals  within  ten  days  thereafter,  otherwise  the  appellant  may 
proceed  ex  parte. 

9.  New  Testimony. — Under  the  old  practice  of  appeal  in  admi- 
ralty, either  party  had  a  right  to  file  new  pleadings  and  take  new 
evidence  on  appeal  as  matter  of  course.     It  was  one  of  the  great 

1.  Necessity  of  Citation. — It  is  doubt-  which  appellant  desires  to  have  re- 
ful  if  a  citation  is  necessary  in  an  viewed;  the  reports  of  the  commis- 
admiralty  appeal.  It  belongs  more  sioner,  the  exceptions  thereto,  and  the 
properly  to  a  writ  of  error.  The  rulings  on  the  exceptions;  the  opinions 
notice  of  appeal  given  in  an  admiralty  of  the  court,  the  final  decree  and  appeal 
cause  gives  to  the  appellee  all  the  papers,  and  the  assignment  of  errors, 
warning  necessary  of  the  carrying  up  Adm.  Rule  52.  In  the  Second  Circuit 
of  the  case,  and  makes  the  service  of  parties  may  stipulate  that  the  Apostles 
a  citation  a  superfluity.  may  consist  of  portions  of  the  record 

2.  Rev.  Sts.  sec.  1000.  only,  when  only  one  or  more  questions 
On  filing  the   bond  in    the  District     are  sought  to  be  reviewed.     See  Adm. 

Court,  the  appellant  should  give  notice  Rule  4  of  the  Circuit  Court  of  Appeals, 
of  such  filing,  and  of  the  names  and  Second  Circuit.  When  the  record  is  not 
residences  of  the  sureties.  If  the  ap-  made  up  in  accordance  with  Adm.  Rule 
pellee  excepts  to  the  sureties,  they  52,  the  Appellate  Court  cannot  be  re- 
must  justify  on  short  notice.  If  no  quired  to  review  the  testimony.  The 
exception  be  served,  the  bond  is  Alijandro  v.  Wallace,  56  Fed.  Rep. 
deemed  approved.  621. 

3.  Derivation. — Greekl4n'ocrrf'A.A.e/J',  4.  No  dismissal  for  failure  to  docket 
\.o  send  from,  i.e.,  that  which  is  sent  case.  The  Chatham,  52  Fed.  Rep.  396. 
from  the  District  Court.  Printing. — In    the     Second     Circuit 

Making  up  the  Apostles. — The  Apostles  the  Apostles  are  printed  by  the  clerk 

contain  a  short  history  of  the  cause,  of  the  Circuit  Court  of  Appeals,  who 

with  the  dates  of  the  various  events;  delivers  a  certain  number  of  copies  to 

all  the  pleadings,  the  proofs,  the  inter-  each  proctor.   In  other  circuits  the  ap- 

locutory  decree,  and  any  order  of  court  pellant  prints  the  record. 

281 


Appeals.  ADMIRALTY.  Decision. 

differences  between   an    admiralty   and    a   common-law   appeal. 
This  practice  is  retained  in  many  of  the  circuits.* 

10.  Briefs. — Following  the  practice  of  the  Supreme  Court,  the 
Circuit  Courts  of  Appeal  require  printed  briefs  to  be  filed  a  cer- 
tain number  of  days  before  the  hearing  of  the  appeal.* 

11.  Hearing. — The  appeal  comes  up  for  hearing  in  regular 
order,  and  is  argued  by  the  respective  advocates,  the  appellant 
being  entitled  to  open  and  close,  except  in  case  of  cross-appeals, 
when  the  libellant  in  the  court  below  is  entitled  to  open  and 
close.* 

12.  Decision — Mandate.— In  due  course  the  court  hands  down  its 
decision.  The  successful  party  thereupon  prepares  the  mandate, 
which  is  the  order  of  the  Circuit  Court  of  Appeals  to  the  Dis- 
trict Court  to  do  certain  matters  and  things  in  the  cause.  The 
mandate  is  rendered  necessary  by  the  fact  that  the  appellate  court 
does  not  execute  its  own  decrees.  An  order  is  at  the  same  time  pre- 
pared directing  the  mandate  to  issue  to  the  District  Court ;  and  a 
copy  of  this  proposed  order  and  of  the  proposed  mandate  is  served 
on  the  proctor  for  the  losing  party,  with  a  notice  of  motion  for 
the  order.  The  losing  party  may  attend  on  the  motion  to  object 
to  the  form  of  the  order  or  mandate  as  proposed.  When  the 
proper  form  has  been  settled,  the  costs  of  the  Circuit  Court  of 
Appeals  are  made  up  by  the  clerk  of  that  court  and  attached  to 
the  mandate,  which  is  signed  by  the  clerk,  and  delivered  to  the 

1.  New  Testimony — When  Allowed. —  circuits,  but  the  appellant  must  always 
An  admiralty  appeal  has  always  been  file  his  brief  first,  and  an  opportunity 
regarded  as  a  new  trial.  Irvin  v.  The  thus  be  given  to  the  appellee  of  seeing 
Hesper,  122  U.  S.  256;  The  Ethel,  31  it  in  sufficient  time  before  printing  his 
Fed.  Rep.  576;  The  Cassius,  41  Fed.  own  brief  to  answer  the  argument  of 
Rep.    367.     See    Shaw  v.    Folsom,    40  his  opponent. 

Fed.  Rep.  511;  The  Ciampa  Emilia,  50  3.  Conflicting  Evidence. — The  deci- 
Fed.  Rep.  239;  The  Guy  C.  Goss,  53  sion  of  the  District  Court  on  questions 
Fed.  Rep.  826.  But  in  some  of  the  of  fact,  when  the  evidence  is  conflict- 
circuits  such  new  testimony  can  be  ing,  will  ordinarily  not  be  disturbed, 
taken  only  on  order  granted  by  the  The  Thomas  Melville,  37  Fed.  Rep. 
Court  of  Appeals  on  cause  shown.  271;  Cooper  v.  The  Saratoga,  40  Fed. 
And  the  courts  are  somewhat  inclined  Rep.  509;  The  Ludwig  Holberg,  43 
to  discourage  the  general  taking  of  Fed.  Rep.  117;  Duncan  v.  The  Gov. 
such  testimony,  and  allow  it  only  on  Francis  T.  Nicholls,  44  Fed.  Rep.  302; 
good  cause  being  shown  for  the  previ-  Mentz  v.  The  Sammy,  44  Fed.  Rep. 
ous  omission  to  take  it.  Singlehurst  r/.  624;  The  Parthian,  48  Fed.  Rep.  564; 
Compagnie  G6n6rale  Transatlantique,  Bixby  v.  Deemar,  54  Fed.  Rep.  718; 
50  Fed.  Rep.  104;  The  Venezuela,  52  The  City  of  New  York,  54  Fed.  Rep. 
Fed.  Rep.  873;  Sorensen  v.  Keyser,  51  181;  The  Alijandro,  56  Fed.  Rep.  621; 
Fed.  Rep.  188;  The  Lurline,  57  Fed.  S.S.  Wilhelm,  59  Fed.  Rep.  169. 
Rep.  398;  Red  River  Line  v.  Cheatham,  No  Allowance  of  Interest. — When  both 
60  Fed.  Rep.  517;  The  Philadelphian,  parties  appeal  from  the  decision  of  the 
60  Fed.  Rep.  423.  See  Ross  z/.  Southern  District  Court  apportioning  damages, 
Cotton  Oil  Co.,  41  Fed.  Rep.  152;  The  the  Circuit  Court,  on  affirming  its  de- 
Sirius,  54  Fed.  Rep.  188;  The  Beeche  cree,  will  not  allow  interest.  The  C. 
Dene,  55  Fed.  Rep.  526;  New  Plead-  P.  Raymond,  36  Fed.  Rep.  336. 
ings,  The  Thomas  Melville,  34  Fed.  Appeals  in  Salvage  Cases. — The  Bay  of 
Rep.  350.  Naples,  48  Fed.  Rep.  737;  The  Albany, 

2.  This  Time  Varies  in  the  different  48  Fed.  Rep.  565. 


b 


Evidence.  ADMIRALTY.  Generally. 

proctor  for  the  successful  party,  who  files  the  same  in  the  clerk's 
ofifice  of  the  District  Court.* 

13.  Final  Decree. — A  decree  is  thereupon  entered  in  the  District 
Court  in  the  terms  of  the  mandate,  commanding  that  the  libel  be 
dismissed  or  that  the  libellant  recover  a  certain  sum,  or  decreeing 
any  other  relief  called  for  by  the  mandate,  and  ordering  the  origi- 
nal sureties  and  the  sureties  on  appeal  to  make  good  the  obliga- 
tion of  their  stipulations,  as  in  the  final  decree  of  the  District 
Court  in  the  first  instance.'^  And  thereupon  execution  may  issue 
as  already  indicated.* 

14.  Appeal  to  the  Supreme  Court. — An  appeal  to  the  Supreme 
Court  in  the  cases  where  an  appeal  lies  directly  from  the  District 
Court  to  the  Supreme  Court  is  taken  in  the  same  manner  as  an 
appeal  to  a  Circuit  Court  of  Appeals  under  the  general  rules  of 
the  latter  courts.^ 

Prohibition— Mandamus— Certiorari. — In  cases  where  prohibition,  man- 
damus, or  certiorari  to  a  District  Court,  or  for  mandamus  or 
certiorari  to  a  Circuit  Court  of  Appeals*  is  applied  for,  the  appli- 
cation is  made  ex  parte,  on  a  petition  setting  forth  the  facts. 
The  petition  should  be  accompanied  by  twenty-five  copies  of 
the  record  in  the  court  below,®  one  of  which  must  be  certified  by 
the  clerk  of  that  court.'' 

XXI.  Evidence— 1.  Generally— Rules.— The  Supreme  Court  has 
provided  no  rules  relating  to  the  general  examination  of  wit- 
nesses in  an  admiralty  cause.**  Hence  each  court  has  in  general 
followed  its  own  rules.® 

1.  Costs.  —  The  question  of  costs  preme  Court  may  issue  the  writ  on 
should  be  settled  by  motion,  if  neces-     such  ex  parte  application  alone. 

sary,  before  the  mandate  issues  from  In  Cases  of  Prohibition  and  Mandamus 

the  appellate  court.    The  State  of  Cali-  it   is  usual  for  the  Supreme  Court  to 

fornia,  54  Fed.  Rep.  404.  issue  an  order  to  the  court  below,  call- 

2.  The  Sydney,  47  Fed.  Rep.  260.  ing  upon  it  to    show  cause   why  the 

3.  See  ante,  XIX.  writ  should  not  issue.     That  court  re- 

4.  Act  March  3,  1891;  26  Sts.  at  L.  turns  what  it  has  done  in  the  cause, 
p.  826.  See  Supreme  Court  Rules  35  and  leaves  it  to  the  proctor  for  the 
and  36.  party  who  objects  to   the  prohibition 

Amount  Involved. — The  old  provision  or  the  mandamus  in  the  court  below  to 

requiring  the  amount  involved  in  such  show  the  requisite  cause.     If,  on  hear- 

an   appeal  to  be  $5000  is  done  away  ing  before  the  Suprerhe  Court,  proper 

with  by  the  Act  of  March  3,  1891.  cause  be  not  shown,  the  writ  will  issue. 

6.  District  Court. — The  statutes  give  If  certiorari  be  granted,  the  case  will 
the  Supreme  Court  power  to  issue  pro-  go  on  the  calendar  of  the  Supreme 
hibition  tfo  the  District  Court  only.  Court,  and  the  cause  be  fully  exam- 
Rev.  Sts.   8  688.  ined    in    regular   order,  as    though   it 

6.  Copies  of  Record. — The  clerk  of  the  were  an  actual  appeal. 

Supreme  Court  will  sometimes  accept  8.  Rules  Prescribed  by  Supreme  Court. — • 

ten  copies  of  the  record  on  the  applica-  The  Revised  Statutes  provide  that  the 

tion  for  the  order  to  show  cause  why  mode    of    proof   in   admiralty   causes 

the  writ  should  not  issue,  one  copy  for  shall  be  according  to  rules  to  be  pro- 

the  files  and  one  for  each  of  the  jus-  pounded  by  the  Supreme  Court.    Rev. 

tices;  but  if  the  order  to  show  cause  Sts.  §  862. 

be  granted,  the  full  number  must  be  9.  Examination  ofWitnesses  in  Different 

filed  before  the  hearing.  Courts. — It  has  been  heretofore  noted 

7.  In    Oases    of   Certiorari     the    Su-  that  in  some  districts  the  witnesses  are 

283 


Evidence. 


ADMIRALTY. 


Depositions  De  Bene  Esse. 


The  General  Laws  of  Each  State  govern  the  competency  of  witnesses,* 
and  the  rules  of  the  state  courts  as  to  the  admissibiHty  of  evi- 
dence in  general  are  to  be  considered.* 

2.  Depositions  De  Bene  Esse. — It  often  happens  in  the  admiralty 
that  witnesses  cannot  be  kept  in  port  until  the  hearing  of  a  suit, 
and  hence  that  their  evidence  must  be  reduced  to  writing.  This 
is  accomplished  by  an  examination  de  bene  esse,  notice  of  the  hold- 
ing of  which  must  be  served  on  the  opposing  proctor  a  reasonable 
time  beforehand.* 

Place  of  Examination. — It  is  not  necessary  that  the  examination 
should  be  held  in  the  district  which  is  the  place  of  trial.* 

Opposing  Side  Unrepresented. — If  the  notice  was  properly  served,  and 
the  requisites  as  to  the  departure  or  infirmity  of  the  witness  are 
shown,  the  deposition  can  be  read  in  evidence,  though  the  oppos- 
ing side  was  unrepresented  at  the  examination.^ 


examined  orally  in  open  court  ;  in 
others,  their  testimony  is  written  down 
before  trial  by  a  commissioner,  and 
the  written  testimony  only  submitted 
to  the  court. 

1.  Rev.  Sts.  §  858. 

2.  Variance  between  Pleading  and 
Proof. — Dupont  de  Nemours  v.  Vance, 
19  How.  (U.  S.)  162;  Brig  Sarah 
Ann,  2  Sumn.  (U.  S.)  206;  The  Gen. 
Meade,  20  Fed.  Rep.  923;  The  Iris,  i 
Lowell  (U.  S.)  520;  Davis  v.  Leslie,  Abb. 
Adm.  123;  The  Rocket,  i  Biss.  (U.  S.) 
354;  The  Camanche,  8  Wall.  (U.  S.) 
448;  TheV\^illiam  Penn,  3  Wash.  (U.  S.) 
484. 

Admission  in  Answer. — An  admission 
in  an  answer,  afterward  withdrawn, 
still  has  weight  as  evidence.  Kenah 
v.  Tug  John  Markee,  Jr.,  3  Fed.   Rep. 

45- 

Exceptions  to  Ealing  of  Court. — It  is 
not  necessary  to  except  to  the  adverse 
ruling  of  a  court  in  a  matter  of  the 
admission  or  exclusion  of  evidence  in 
order  to  have  such  admission  or  ex- 
clusion reviewed  on  appeal.  The 
assignment  of  errors  practically  takes 
the  place  of  such  exception,  and  calls 
the  attention  of  the  appellate  court  to 
the  disbelief  of  the  appellant  in  the 
correctness  of  the  ruling,  which  is  the 
function  of  an  exception. 

3.  Notice  of  Examination. — Sections 
863,  864,  and  865  of  the  Revised  Stat- 
utes provide  an  easy  method  of  secur- 
ing such  evidence.  The  proctor  for 
the  party  desiring  to  take  it  serves  on 
the  opposing  proctor  a  simple  notice 
that  the  witness,  naming  him,  who  re- 
sides at  a  greater  distance   than  100 


miles  from  the  place  of  trial,  or  is 
bound  on  a  voyage  to  sea,  or  is  about 
to  go  out  of  the  United  States,  or  out 
of  the  district  in  which  the  case  is  to 
be  tried,  and  to  a  greater  distance  than 
100  miles  from  the  place  of  trial,  before 
the  time  of  trial,  or  is  ancient  or  in- 
firm, will  be  examined  de  bene  esse  at  a 
certain  time  and  place  before  a  magis- 
trate, and  that  the  opposing  proctor  is 
required  to  be  present  at  such  exam- 
ination and  put  such  questions  to  the 
witness  as  he  shall  think  fit. 

Depositions  in  a  Foreign  Country  can- 
not be  taken  under  §  863.  Cortes  Co. 
V.  Tannhauser,  18  Fed.  Rep.  667. 

Production  of  Books  and  Papers. — A 
witness  examined  under  g  863  may  be 
compelled  to  produce  books  and  papers 
in  his  possession  which  would  be  ma- 
terial and  competent  evidence  for  the 
party  calling  him,  on  the  trial  of  the 
cause,  but  he  cannot  be  compelled  to 
produce  books  and  papers  merely  for 
the  purpose  of  refreshing  his  memory. 
U.  S.  V.  Tilden,  10  Ben.  (U.  S.)  566. 

4.  Eeasonable  Notice. — A  notice  can 
be  served  on  a  New  York  proctor  to 
take  testimony  in  San  Francisco  under 
this  section,  but  in  all  cases  the  notice 
of  examination  must  be  served  in  sea- 
son to  allow  a  reasonable  time  for  the 
proctor  so  notified  to  be  present  or  rep- 
resented at  the  examination.  What  is 
such  reasonable  notice  is  a  question 
for  the  court. 

6.  Motion  to  Suppress. — But  if  the  no- 
tice is  too  brief  to  allow  the  opposing 
proctor  to  be  present,  or  if  he  is  aware 
that  the  requisites  of  the  statute  are  not 
complied  with,  a  motion  to  suppress  the 


284 


i 


Evidence.  ADMIRALTY.  Dedimtis  Potestatem. 

The  Deposition  must  be  Keduced  to  Writing  by  the  magistrate  taking  it, 
after  the  witness  has  been  sworn,  and  must  be  subscribed  by  the 
deponent.* 

Ketnrn. — It  must  then  be  returned  by  the  magistrate  to  the 
court  for  which  it  was  taken,  under  seal,  and  with  a  certificate  of  the 
reasons  for  which  it  was  taken,  and  the  notice  given  to  the  ad- 
verse party.'-* 

3.  Dedimus  Potestatem,  or  Commission  to  Take  Testimony. — It 
very  commonly  happens  in  admiralty  suits  that  the  testimony  of 
witnesses  resident  abroad  is  required.  On  affidavit  showing  the 
materiality  of  such  testimony,  and  on  notice  to  the  other  side, 
the  court  will  issue  its  commission  to  some  disinterested  party, 
empowering  him  to  take  the  evidence  of  the  witness  therein 
named  and  return  the  same  to  the  court. ^ 

Interrogatories. — The  motion  for  the  commission  being  granted, 
the  moving  party  serves  written  interrogatories  on  the  opposite 
party,  who  in  turn  serves  cross-interrogatories,  which  are  settled 
by  the  court  on  notice,  if  the  parties  disagree  concerning  them. 
The  clerk  then  attaches  such  interrogatories  to  the  commission, 
which  is  issued  by  the  clerk  and  under  the  seal  of  the  court,  with 
instructions  as  to  its  execution,  and  it  is  despatched  to  its  desti- 
nation.* 

After  Execution. — After  being  executed  it  is  returned  to  the  clerk, 
who  opens  it  on  order  or  by  consent  and  in  the  presence  of  both 
proctors,  and  places  it  on  the  files. 

4.  Letters  Rogatory. — An  admiralty  court  will  also  obtain  the 
evidence  of  foreign  witnesses  "by  means  of  letters  rogatory.* 

deposition   must  at  once  be  made  on  Time  of  Moving  for  Commission. — In 

such  ground.    Doane  v.  Allen,  24  Wall,  the  New  York  districts  the  commission 

(U.  S.)  33.     And  it  will  not  do  to  wait  must  be   moved    for   within    fourteen 

until  the  time  of  trial  and  then  object  days  after  the  claim  or  answer  is  filed 

to  the  admission  of  the  deposition,  for  and  perfected. 

the  reason  that  if  a  deposition  is  sup-  Commission  for  Special  Object. — A  com- 
pressed before  trial  for  irregularity  in  mission  may  be  issued  for  some  special 
the  method  of  taking  it,  there  may  yet  thing  besides  the  obtaining  of  evi- 
be  time  for  the  party  calling  the  wit-  dence,  such  as  the  verification  of  a 
ness  to  take  his  deposition  over  again  libel  personally  by  a  foreign  libellant. 
in  proper  form  and  in  due  season  for  Stay  of  Proceedings. — The  order  for 
the  trial.     Bibb  v.  Allen,  149  U.  S.  481.  commission  usually  contains  a  stay  of 

1.  Rev.  Sts.  §  864.  Cook  v.  Burn-  proceedings  until  the  return  of  the 
ley,  II  Wall.  (U.  S.)659.  commission  duly  executed. 

Bight  of  Master  to  be  Present. — The  4.  Oral  Cross-Ezamination; — An  order 

master  of  a  vessel  has   a  right  to  be  for  oral  cross-examination  on  a  com- 

present  at  the  taking  of  the  depositions  mission    may    be    made.       Steamship 

of  his  crew.   Bark  Havre,  i  Ben.  (U.  S.)  Louisiana,  i  Ben.  (U.  S.)  328. 

295.  Enlarging  Time. — On  proof  of  newly- 

2.  Rev.  Sts.  §  865.  discovered  evidence,  the  court  may  en- 

3.  See  Ship  Norway,  2  Ben.  (U.  S.)  large  the  time  for  taking  testimony, 
121.  although  previously  closed  by  order. 

Commissions  to  Foreign  Countries. — In  Schooner  Ruby,  5  Mason  (U.  S.)  451. 

commissions  to  foreign  countries  the  5.  Natnre  of  Letters  Rogatory. — This  is 

commissioner   named   is    usually   the  a  document  issued  by  the  court  to  some 

nearest  United  States  consul.  foreign  tribunal  requesting  it  to   call 

285 


Petitions  and  Motions. 


ADMIRALTY. 


Petitions  and  Motions. 


5.  Depositions  In  Perpetuam  Rei  Memoriam. — The  statutes  pro- 
vide also  that  any  Circuit  Court,  upon  application  to  it  as  a  court  of 
equity,  may,  according  to  the  usages  of  chancery,  direct  deposi- 
tions to  be  taken  iji  perpetuam  rei  memoriam,  if  they  relate  to  any 
matters  that  may  be  cognizable  in  any  court  of  the  United  States.* 

XXII.  Petitions  and  Motions.— Almost  any  matter  in  which 
either  of  the  parties  to  a  suit  desires  relief  may  be  brought  before 
the  court  by  a  petition  or  a  motion  ;  by  a  petition,  generally,  if  the 
matter  is  ex  parte,^  otherwise  by  a  motion.  And  the  court  will 
hear  evidence  on  the  matter,  either  ex  parte,  or  on  notice  to  such 
parties  as  are  known  to  it  as  persons  who  maybe  interested  in  the 
decision  ;  or  on  general  notice  by  publication  ;  and  will  decide 
according  to  justice. 

Motions  are  applications  for  relief  of  some  kind  made  on   notice^ 


before  it,  by  its  ordinary  process,  cer- 
tain witnesses  within  its  jurisdiction 
and  examine  them  touching  certain 
subjects,  either  orally  or  on  interroga- 
tories. And  the  letters  always  assure 
the  foreign  tribunal  that  the  court  issu- 
ing the  letters  will  do  the  same  for  it 
in  return,  if  the  occasion  should  arise. 
This  method  of  obtaining  evidence  is 
especially  valuable  if  the  witnesses 
sought  to  be  examined  are  hostile  or  in- 
different to  the  party  desiring  their  tes- 
timony, inasmuch  as  the  foreign  tri- 
bunal can  put  forth  its  process  and 
compel  the  appearance  and  testimony 
of  the  witness  by  its  ordinary  methods 
for  so  doing. 

How  Obtained. — An  order  for  the  issu- 
ing of  letters  rogatory  can  be  obtained 
on  simple  motion,  accompanied  by 
proof  of  the  necessity  therefor. 

1.  Testimony  for  Future  Suit. — Rev. 
Sts.  §  866.  Under  this  section  a  depo- 
sition can  be  taken  before  suit  brought, 
and  for  the  purpose  of  perpetuating 
the  testimony  in  the  event  of  a  future 
suit. 

How  Taken. — It  is  taken  according  to 
the  usages  of  chancery.  On  petition  to 
the  Circuit  Court,  setting  forth  the 
necessary  facts,  the  court  will,  as  of 
course,  grant  the  order  to  perpetuate 
the  testimony.  Notice  of  the  exami- 
nation should  be  served  on  all  known 
parties  who  may  possibly  be  interest- 
ed, and  the  deposition,  when  taken,  is 
filed  with  the  clerk  of  the  Circuit  Court. 
If  suit  is  thereafter  brought  in  the  Dis- 
trict Court,  an  order  for  the  transmis- 
sion of  the  deposition  from  the  files  of 
the  Circuit  to  the  District  Court  can  be 
obtained,  as  of  course,  before  trial. 

2.  Examples. — The  petition  under  the 


59th  Rule,  the  petition  of  an  executor 
to  continue  the  suit  after  the  death  of 
a  party,  and  the  petition  for  leave  to 
intervene,  are  common  examples.  It 
often  happens,  also,  that  when  prop- 
erty has  been  sold  and  the  proceeds 
have  been  deposited  in  court,  a  sur- 
plus may  remain  after  all  claimants  are 
paid.  When  there  is  such  a  surplus, 
the  owner  may  come  to  the  court  with 
a  petition  stating  his  ownership  and 
praying  the  restoration  of  his  property. 
Or  other  persons,  having  claims  of  a 
maritime  nature  against  the  owner, 
may  attack  the  fund  in  court  by  a 
petition.  Such  a  petition  need  not  be 
accompanied  by  a  stipulation  for  costs. 
Adm.  Rule  43  ;  Andrews  v.  Wall,  3 
How.  (U.S.)  568;  Mutual  Safety  Ins. 
Co.  V.  Cargo  of  Brig  George,  Olc.  Adm. 
89;  The  Santa  Anna,  B.  &  H.  Adm. 
79;  The  Boston,  B.  &  H.  Adm.  309; 
The  Stephen  Allen,  B.  &  H.  Adm.  175; 
The  E.  V.  Mundy,  22  Fed.  Rep.  173. 
See  The  Albert  Schultz,  12  Fed.  Rep. 
156.  Effect  of  coming  in  by  petition 
after  final  decree  of  condemnation  and 
sale.  The  Sea  Lark,  34  Fed.  Rep.  52. 
But  a  proceeding  by  a  salvor  against 
a  fund  in  court,  already  decreed  to  an- 
other salvor,  to  secure  contribution 
thereof  under  an  alleged  contract, 
cannot  be  maintained  in  the  admi- 
ralty. Sheldrake  v.  The  Chatfield,  52 
Fed.  Rep.  495.  But  a  salvor  may  pro- 
ceed in  admiralty  against  his  co-salvor 
to  recover  a  share  of  the  salvage 
money.  McMullin  v.  Blackburn,  59 
Fed.  Rep.  177.  Payment  of  proceeds 
to  proctors.  See  Rostron  v.  The 
Water  Witch,  44  Fed.  Rep.  95. 

3.     Notice. — Reasonable     notice     is 
usually  sufficient,  and  in  many  cases 

86 


Limitation  of  Actions. 


ADMIRALTY. 


Limitation  of  Actions. 


to  the  other  side  during  the  progress  of  a  suit.*  They  do  not 
differ  from  motions  in  ordinary  cases  at  law,  except  that  they  are 
usually  more  informally  made.  And  it  is  not  always  necessary  to 
accompany  the  notice  of  motion  with  an  affidavit.*  The  whole 
matter,  in  this  as  in  other  branches  of  the  admiralty  practice,  lies 
in  the  sound  discretion  of  the  court,  and  is  little  confined  by  arbi- 
trary rules. ^ 

XXIII.  Limitation  of  Actions. — There  is  no  absolute  statute  of 
limitations  in  admiralty.'* 

Laches.— But  the  court  will  not  allow  a  stale  claim  to  be  prose- 
cuted, and  what  lapse  of  time  will  make  a  claim  stale  is  always  a 
question  of  fact  for  the  court.  In  general,  an  admiralty  court 
will  adopt  the  trem  specified  by  the  statute  of  limitations  of  the 
state,  and  hold  a  claim  which  at  common  law  would  be  barred 
by  such  statute  to  be  barred  in  admiralty  by  the  laches  of  the 
plaintiff,^  unless  there  is  some   peculiarity  of   a  maritime  nature 


when  speed  is  necessary  twenty-four 
hours'  notice  is  all  that  is  given. 

1.  Question  of  Jurisdiction. — A  ques- 
tion of  jurisdiction  ought  not  to  be  dis- 
posed of  on  motion,  but  presented  by 
pleading  at  the  trial.  Gushing  v. 
Laird,  4  Ben.  (U.S.)  70;  The  Crusader, 
1  Ware  (U.  S.)  437;  Lands  v.  A  Cargo 
of  Coal,  4  Fed.  Rep.  478. 

Giving  of  a  Stipulation. — The  giving 
of  a  stipulation  is  not  necessarily  a 
waiver  of  an  objection  to  the  jurisdic- 
tion.     The  Orpheus,  3  Ware  (U.    S.) 

143- 

Joinder  of  Issue. — But  joinder  of  issue 
and  filing  of  a  cross-libel  is  such 
waiver.      The  Fifeshire,  11  Fed.  Rep. 

743- 

Motion  to  Dismiss  Libel. — A  motion  to 
dismiss  a  libel  in  rem  in  admiralty  may 
be  made,  although  a  full  hearing  has 
been  had  on  the  merits.  The  John  C. 
Sweeny,  55  Fed.  Rep.  540. 

2.  Affidavit.  —  Any  formal  motion, 
such  as  one  to  obtain  a  short  order  of 
publication  or  to  confirm  a  report  nisi, 
need  not  be  accompanied  by  an  affida- 
vit, though  the  court,  on  hearing  the 
motion,  may  require  proof  as  to  the 
facts  before  granting  the  motion;  and 
this  even  though  the  motion  be  not 
defended. 

A  motion  for  additional  security  in 
the  admiralty  may  be  supported  by 
the  affidavit  of  the  proctor.  Brig  Har- 
riet, Olc.  Adm.  222. 

3.  New  York. — In  New  York,  where 
person  or  property  is  arrested,  any  one 
interested  may,  on  evidence  showing 
any    improper    practices  or  manifest 


want  of  equity  on  the  part  of  thelioel- 
lant,  have  a  mandate  from  the  judge 
for  the  libellant  to  show  cause  instan^ 
ter  why  the  arrest  or  attachment 
should  not  be  vacated.       D.  C.  Rule  19. 

4.  Adopting  State  Statutes.  —  The 
nearest  approach  is  when  the  admi- 
ralty determines  to  follow  some  state 
statute,  as  in  cases  of  liens  for  sup- 
plies furnished  to  domestic  vessels. 
Then  the  requirements  that  specifica- 
tions shall  be  filed  with  the  county 
clerk  within  thirty  days  after  the  com- 
pletion of  the  work,  and  that  the  suit 
must  be  commenced  within  one  year 
unless  the  vessel  is  absent  at  the  end 
of  the  year,  are  strictly  enforced. 

5.  McCluny  v.  Sillman,  3  Pet.  (U.  S.) 
270;  Ross  V.  Duval,  13  Pet.  (U.  S.)  45; 
Jayz/.  Allen,  i  Sprague(U.  S.)  130;  Brig; 
Sarah  Ann,  2  Sumn.  (U.  S.)  206;  The 
Key  City,  14  Wall.  (U.  S.)  653;  The  H. 
B.  Foster,  3  Ware  (U.  S.)  165;  Coburn 
V.  Factors,  etc.,  Ins.  Co.,  20  Fed.  Rep. 
644;  The  Platina,  3  Ware  (U.  S.)  180; 
The  Harriett  Ann,  6  Biss.  (U.  S.)  13; 
The  Blenheim,  5  Sawy.  (U.  S.)  192; 
Scull  V.  Raymond,  18  Fed.  Rep.  547; 
The  Robert  Gaskin,  9  Fed.  Rep.  62; 
Harpending  v.  Dutch  Church,  16  Pet. 
(U.  S.)  455;  The  Columbia,  13  Blatchf. 
(U.  S.)  291;  The  D.  M.  French,  i  Lowell 
(U.  S.)  43;  The  Frank  Moffatt,  2  Flip. 
(U.  S.)  291;  The  Bristol,  20  Fed.  Rep. 
800;  Bailey  v.  Sundberg,  49  Fed.  Rep. 
583;  Smith  V.  Sturgis,  3  Ben.  (U.  S.) 
330;  Joy  V.  Allen,  2  Woodb.  &  M.  (U.S.) 
303;  Ship  Mary,  i  Paine  (U.  S.)  I80; 
Syles  V.  Steamship  Santiago  de  Cuba, 
2  Fed.  Rep.  271;  The  Utility,  B.  &  H. 


Intervention. 


ADMIRALTY. 


Intervention. 


which  makes  it  a  matter  of  justice  that  the  plaintiff  be  allowed  to 
sue.*  Ill  such  cases  the  court  in  its  discretion  will  disregard  the 
periods  fixed  by  state  statutes. 

XXIV.  Intekvention. — There  are  many  cases  where  one  may 
be  interested  in  the  outcome  of  an  admiralty  suit,  though  he  is 
not  the  libellant,  or  owner  of  the  res  libelled.  Such  person  may 
intervene  for  his  own  interest  in  the  suit  already  begun.* 

How  Accomplished.— Intervention  may  be  accomplished  by  a  peti- 
tion to  the  court  .setting  forth  the  interest  of  the  intervenor,  and 
praying  that  he  may  be  permitted  to  intervene  for  his  own  in- 
terest. Such  petition  must  be  accompanied  by  a  stipulation  for 
costs,  as  in  all  cases  of  appearance.'  The  court  will  usually  grant 
the  prayer  of  such  a  petition  as  of  course  ;  but  if  there  is  doubt 
as  to  the  propriety  of  the  intervention,  an  order  can  be  always 
had  requiring  libellant  or  claimant  to  show  cause  why  the  prayer 
of  the  petition  should  not  be  granted,  or  even  referring  the  mat- 


Adm.  218;  Southard  v.  Brady,  36  Fed. 
Rep.  560;  Nesbit  v.  The  Amboy,  36 
Fed.  Rep.  926  ;  The  Queen  of  the 
Pacific,  61  Fed.  Rep.  213. 

1.  The   Key  City,   14  Wall.  (U.  S.) 

653- 

2.  Salvage  Cases. — Thus  where  there 
are  several  salvors  and  one  of  them 
libels  the  vessel  saved,  the  proper  pro- 
ceeding for  the  other  salvors  is  not  to 
commence  independent  proceedings, 
but  to  intervene  in  the  suit  of  the  first 
salvor.  But  when  in  salvage  cases  the 
various  interests  are  somewhat  antag- 
onistic it  is  not  only  proper  but  some- 
times necessary  that  several  libels  be 
filed.  The  S.  S.  Merrimac,  i  Ben. 
(U.  S.)  68.  These  may  then  be  tried 
together. 

Suit  for  Wages — Mortgagee  etc. — And 
when  one  seaman  has  brought  suit  for 
his  wages,  other  seamen  suing  for 
wages  on  the  same  voyage  are  re- 
quired to  come  into  the  first  suit  in- 
stead of  libelling  anew;  likewise  when 
a  vessel  is  libelled  for  any  cause  what- 
ever and  the  owner  has  appeared  and 
claimed,  a  mortgagee  or  other  lienor 
may  intervene  to  defend  the  vessel  in 
the  interest  of  his  own  lien.  Steam- 
boat Edward  Howard,  Newb.  Adm. 
522;  The  L.  B.  Goldsmith,  Newb.  Adm. 
123;  The  Two  Marys,  12  Fed.  Rep. 
152;  The  Steamship  Oregon,  42  Fed. 
Rep.  78;  Steamer  City  of  Paris,  i  Ben. 
(U.  S.)  529;  The  Nahor,  9  Fed.  Rep. 
213;  Pertie  v.  Steamship  Cold  Bluff  No. 
2,  3  Fed.  Rep.  531;  The  Queen,  40 
Fed.  Rep.  694;  The  Julia,  57  Fed.  Rep. 
233. 

Bond    Given    for   Full  Value. — When 


the  stipulation  or  bond  is  given  for  the 
full  value  of  the  res  libelled,  an  inter- 
venor may  proceed  against  the  bond 
as  he  would  against  the  res  itself. 
The  Oregon,  45  Fed.  Rep.  62. 

Bond  Given  for  Original  Claim. — But 
apparently  not  where  the  bond  has 
been  given  simply  to  cover  the  original 
claim.  The  T.  W.  Snook,  51  Fed.  Rep. 
244;  Osborne  v.  U.  S.,  91  U.  S.  474; 
The    Commander-in-Chief,     i    Wail. 

(U.S.)43. 

Mortgagae. — One  having  a  mortgage 
on  a  vessel  may  intervene  and  be  paid 
out  of  the  proceeds  in  court,  although 
he  may  not  have  been  able  to  maintain 
a  libel  for  want  of  jurisdiction  in  the 
court.  Leland  v.  Ship  Medora,  2 
Woodb.  &  M.  (U.  S.)  92. 

Lienor — Suit  for  Forfeiture. — One  hav- 
ing a  lien  on  a  vessel  may  intervene 
for  his  interest  in  a  suit  for  forfeiture. 
The  Mary  Anne,  i  Ware  (U.  S.)  104; 
The  Old  Concord,  i  Brown  Adm. 
270. 

Possessory  or  Petitory  Suit — State  Stat- 
ute.— In  a  possessory  or  petitory  suit 
the  party  having  a  lien  under  state 
statutes  cannot  intervene  to  enforce 
his  lien,  which  cannot  be  effected  by 
the  decree  in  a  possessory  suit.  The 
Tarranto,  i  Sprague  (U.  S.)  170. 

Insurer. — An  insurer  may  intervene. 
Propeller  Monticello  v.  Mollison,  17 
How.  (U.  S.)  152, 

Court  May  Impose  Terms. — The  court 
may  impose  terms  on  allowing  one  to 
intervene.  The  America,  56  Fed.  Rep. 
1021. 

3.  Adm.  Rule  34  ;  Rawson  v.  Lyon, 
15  Fed.  Rep.  831. 

88 


Consolidation  of  Suits. 


ADMIRALTY. 


Personal  Injuries. 


ter  to  a  commissioner  to  take  proof  as  to  the  propriety  of  the 
would-be  intervener's  appHcation. 

XXV.  Consolidation  of  Suits.— The  admiralty  courts,  when  no 
injustice  will  be  perpetrated  thereby,  will  not  hear  more  than  one 
controversy  involving  the  same  facts.*  And  where  there  are  a 
number  of  suits  against  the  same  object  and  arising  out  of  the 
same  transaction,  the  court,  on  motion,  will  consolidate  the  suits.* 

State  Laws— Suits  can  also  be  consolidated  where  the  law  of  the 
state  allows  a  consolidation. 

XXVI.  Personal  Injuries.— A  suit  to  recover  for  personal  in- 
juries occasioned  by  negligence  may  be  brought  in  admiralty, 
either  in  persotiam  or  in  rem,  where  the  locus  of  the  tort  was  with- 
in the  admiralty  jurisdiction.  And  the  case  is  heard  as  any  case 
of  tort  in  the  admiralty,  and  the  amount  of  damages  to  be  awarded 
is  entirely  in  the  discretion  of  the  court.* 

Death  Claims.— In  the  absence  of  any  act  of  Congress  allowing  a 
personal  representative  to  recover  damages  for  a  tort  causing 
death,  such  a  suit  cannot  be  maintained  in  the  admiralty  when  the 
death  occurred  on  the  high  seas.* 


1.  Rev,  Sts.  §  921;  The  North 
Star,  106  U.  S.  17;  The  Queen  of  the 
Pacific,  61  Fed.  Rep.  213.  Thus  the 
old  rules  of  the  District  Court  for  the 
Southern  District  of  New  York  pro- 
vided that  when  various  actions  were 
pending,  all  resting  upon  the  same  mat- 
ter of  right  or  defense,  the  court,  in  its 
discretion,  would  compel  the  parties  in 
one  suit  to  abide  by  the  decision  of  the 
other,  though  there  was  no  common 
interest  among  them.  This  rule  is 
now  obsolete.  But  its  effect  is  re- 
tained in  a  rule  providing  for  consoli- 
dation of  similar  suits,  and  this  prac- 
tice is  common  to  other  districts  than 
the  one  specified.  And  when  several 
parties  are  suing  the  same  res,  though 
with  distinct  rights,  the  proceedings 
are,  for  certain  purposes,  necessarily 
to  be  considered  together,  as  to  mat- 
ters of  priority.  See  The  Prinz  Georg, 
19  Fed.  Rep.  653. 

Husband  and  Wife's  Suit  for  Same  Cause 
of  Action. — Where  libellant  sued  for 
damages,  and  while  his  suit  was  still 
pending  his  wife  began  a  separate  suit 
for  the  same  cause  of  action,  the  court 
held  that  she  should  have  made  her- 
self a  party  to  her  husband's  suit,  and 
dismissed  her  libel.  The  William  F. 
McRae,  23  Fed.  Rep.  557. 

2.  Various  Libels  for  Same  Cause. — If 
more  than  one  seaman  on  a  particular 
voyage  libels  a  vessel,  the  court,  on 
motion,  will  of  course  consolidate  the 
suits.  And  so  in  cases  where  various 
salvors  libel  for  a  salvage  service  ren- 

I  Encyc.  PI.  &  Pr.— 19.  2 


dered  in  common  by  all.  In  such  a 
suit  not  only  is  an  advantage  gained 
in  a  saving  of  time  and  expense,  but 
the  whole  matter  being  before  the 
court  at  once,  it  can  observe  more 
readily  the  relative  merits  of  the  dif- 
ferent salvors.  The  Eliza  Lines,  61 
Fed.  Rep.  308;  The  Sarah  E.  Kennedy, 
25  Fed.  Rep.  672. 

3.  Locus  of  Tort  Generally.— The  Neil 
Cochran,  Brown  Adm.  162;  The  Otta- 
wa, Brown  Adm.  356;  The  Plymouth, 
3  Wall.  (U.  S.)  20;  Ex  parte  Phcenix 
Ins.  Co.,  118  U.  S.  610;  The  Epsilon,  6 
Ben.  (U.  S.)  381;  The  Maud  Webster, 
8  Ben.  (U.  S.)  547;  The  Curtis,  37  Fed. 
Rep.  705;  The  City  of  Lincoln,  25  Fed. 
Rep.  835;  City  of  Boston  v.  Crowley, 
38  Fed.  Rep.  202;  Assante  v.  Charles- 
ton Bridge  Co.,  40  Fed.  Rep.  765;  Hill 
V.  Board  of  Freeholders,  45  Fed.  Rep. 
260;  Penn.  R.  Co.  v.  Cent.  R.  Co.,  59 
Fed.  Rep.  190;  Greenwood  v.  Town  of 
Westbrook,  60  Fed.  Rep.  560. 

Contributory  Negligence  No  Bar. — 
Contributory  negligence  is  not  a  bar  to 
a  suit  in  the  admiralty  for  a  personal 
injury;  but  where  negligence  is  shown 
on  both  sides,  the  court  may  award 
libellant  one-half  his  damages.  The 
Max  Morris,  137  U.  S.  i;  The  Explorer, 
20  Fed.  Rep.  135;  The  Truro,  31  Fed. 
Rep.  158;  Anderson  v.  The  Ashbrooke, 
94  Fed.  Rep.  124;  The  Mystic,  44  Fed. 
Rep.  398;  Olsen  v.  Flavel,  13  Sawy. 
(U.S.)  232. 

4.  The  Alaska,  33  Fed.  Rep.  107; 
Welsh  V.  The  North  Cambria,  39  Fed. 


Death  of  a  Party. 


ADMIRALTY. 


Costs. 


But  when  the  tort  occurs  within  the  boundaries  of  a  state, 
though  on  navigable  waters  within  the  admiralty  jurisdiction,  and 
the  law  of  the  state  gives  a  right  of  action  for  such  tort,  the  ad- 
miralty court  will  adopt  to  itself  the  state  law,  and  award  as  dam- 
ages for  the  tort  the  amount  allowed  by  the  statute  of  the  state, 
or  other  amount  in  its  discretion.*  The  libellant  is  of  course  the 
executor  or  administrator  of  the  decedent.* 

XXVII.  Death  of  a  Paety.— When  a  party  dies  pending  a 
suit,  his  personal  representatives  may  come  in  by  petition  to  the 
court,  and  prosecute  or  defend  the  suit  to  an  end.*'  Or,  if  they 
decline  to  do  so  voluntarily,  they  may  be  made  parties  on  the  pe- 
tition of  the  adverse  party.*  And  the  usual  stipulations  are  re- 
quired of  parties  so  coming  or  brought  into  a  suit.* 

XXVIII.  Costs. — The  award  of  costs  in  admiralty  is  always  a 
matter  in  the  discretion  of  the  court.®     The  amount  of  costs  is 


Rep.   615;  The  Harrisburg,  119  U.  S. 
199. 

1.  Holmes  v.  Oregon,  etc.,  R.  Co. ,6 
Sawy.  (U.  S.)262;  Steamship  Oregon, 
42  Fed.  Rep.  78.  See  The  St.  Nicho- 
las, 49  Fed.  Rep.  671;  Cheatham  v. 
Red  River  Line,  56  Fed.  Rep.  248; 
Boden  v.  Demwolf,  56  Fed.  Rep.  846; 
Oleson  V.  The  Ida  Campbell,  34  Fed. 
Rep.  432.  But  such  a  suit  being  sub- 
ject to  the  conditions  of  the  state 
statute,  contributory  negligence  of  the 
deceased  will  bar  recovery  in  an  ad- 
miralty court.  The  City  of  Norwalk, 
55  Fed.  Rep.  98.  In  Jones  v.  The  St. 
Nicholas,  49  Fed.  Rep.  671,  where  a 
shipowner  filed  a  libel  in  limitation  of 
his  liability  for  death  claims,  the  court 
held  that  by  this  action  the  owner  was 
estopped  from  denying  the  right  of  the 
representatives  of  the  deceased  to 
share  in  the  fund  realized  from  the 
sale  of  the  boat  if  negligence  was 
found,  although  the  statute  of  the 
state,  giving  a  right  of  action  for 
wrongful  death,  gave  no  lien  therefor. 

2.  Actions  In  Rem  and  In  Personam. — 
Although  it  has  been  held  that  a  ves- 
sel carries  with  her  on  the  high  scathe 
laws  of  the  state  to  which  she  belongs 
(McDonald  v.  Mallory,  77  N.  Y.  546), 
yet  the  Supreme  Court  has  held  that 
no  action  in  retn  will  lie  to  recover  for 
death,  although  by  the  law  of  the  state 
a  right  of  action  may  survive  to  the 
decedent's  personal  representative, 
unless  such  state  shall  expressly  give 
a  lien  for  the  tort,  which  most  of  the 
state  statutes  allowing  recovery  for  a 
tort  causing  death  fail  to  do.  The 
Corsair.  145  U.  S.  335. 


But  the  action  will  lie  in  personam 
when  the  tort  occurred  within  the  state 
whose  law  gives  a  right  of  action  for 
damages  for  such  tort.  The  City  of 
Norwalk,  55  Fed.  Rep.  98,  61  Fed.  Rep. 
364;  In  re  Humboldt  Lumber  Manuf'r's 
Assoc.  60  Fed.  Rep.  428.  Where  the 
constitution  and  code  of  a  state  fix  its 
seaward  boundary  at  a  line  three  miles 
from  shore,  an  action  can  be  main- 
tained for  wrongful  death  occurring  on 
the  high  seas  two  miles  from  shore. 
Id.  When  the  local  law  gives  a  right 
of  action  for  wrongful  death,  and 
makes  the  damages  a  lien  on  the  vessel, 
a  suit  iti  rem  will  lie.  The  Premier, 
59  Fed.  Rep.  797. 

3.  Penhallow  v.  Doane,  3  Dall.  (U.  S.) 
54  ;  Nevitt  v.  Clarke,  Olc.  Adm.  316  ; 
Ship  Octavia,  i  Mason  (U.  S.)  149. 
See  The  Cadiz,  20  Fed.  Rep.  157. 

4.  Contents  of  Petition. — The  petition 
should  contain  briefly  the  prayer  of  the 
original  pleading,  the  interest  of  the 
new  party,  and  the  proceedings  there- 
tofore had  in  the  cause,  and  conclude 
with  a  prayer  that  the  persons  named 
may  be  made  parties  to  the  suit. 

5.  Death  Pending  Appeal. — As  to  the 
death  of  a  party  pending  an  appeal  to 
the  Circuit  Court  of  Appeals,  see  C.  C. 
App.  Rule  19. 

6.  When  Allowed. — An  exaggerated 
claim  may  be  followed  by  a  disallow- 
ance of  costs.  The  Maggie  J.  Smith. 
123  U.  S.  349.  See  The  Benison,  36 
Fed.  Rep.  793;  Forace  v.  Salinas,  50 
Fed.  Rep.  284;  The  Komuk,  50  Fed. 
Rep.  618  ;  The  Stelvio,  34  Fed.  Rep. 
431;  The  Marinim  S.,  28  Fed.  Rep.  664. 
See  Pettie  v.  Boston  Tow-boat  Co..  44 


290 


Costs. 


ADMIRALTY. 


Costs. 


regulated  by  statute,  and,  if  we  except  disbursements,  which  are 
sometimes  heavy,  are  very  moderate  when  compared  with  the  costs 
allowed  by  the  courts  of  many  of  the  states.* 


Fed.  Rep.  382;  The  Weatherby,  49  Fed. 
Rep.  463  ;  The  O.  C.  DeWitt,  59  Fed. 
Rep.  620. 

Unnecessarily  encumbering  record. 
The  Ashland,  19  Fed.  Rep.  651. 

No  costs  allowed  when  libel  dis- 
missed on  grounds  not  pleaded.  The 
Ocean  Express,  22  Fed.  Rep.  176. 

No  costs  allowed  on  dismissal  of 
libel  where  there  were  apparently 
good  grounds  for  bringing  the  suit. 
The  Geneva,  26  Fed.  Rep.  647. 

No  costs  where  libellant  did  not  prop- 
erly present  his  case  until  it  reached  the 
appellate  court.  The  Jefferson,  31  Fed. 
Rep.  489  ;  The  Olympia,  52  Fed.  Rep. 
985;  The  John  Sherman,  52  Fed.  Rep. 
985;  The  Pioneer,  53  Fed.  Rep.  279; 
The  D.,  L.  &  W.  No.  6  C,  53  Fed.  Rep. 
284  ;  The  Atlantic,  53  Fed.  Rep.  607  ; 
The  Union  Ice  Co.  v.  Crowell,  55  Fed. 
Rep.  87. 

Costs  given  against  one  who  sues  for 
debt  before  it  is  due,  although  the  libel 
Avas  retained.  The  Papa,  46  Fed.  Rep. 
576. 

On  Appeals  a  docket  fee  of  $25  is  al- 
lowed, the  expenses  of  printing  record 
and  briefs,  and  the  fees  of  the  clerk  of 
the  appellate  court.  See  The  Lillie, 
42  Fed.  Rep.  179 ;  Miller  v.  Cox,  46 
Fed.  Rep.  662.  See  also  Healy  v.  Cox, 
46  Fed.  Rep.  663.  When  a  decree  for 
libellant  includes  interest,  he  is  en- 
titled to  interest  on  the  whole  amount 
of  the  decree  below,  unless  there  are 
special  circumstances.  The  Umbria, 
59  Fed.  Rep.  475.  On  a  libel  against 
one  vessel  for  damages  to  cargo  of 
another  vessel  by  collision,  and  decree 
against  the  vessel  libelled,  if  the  decree 
is  reversed  on  claimant's  appeal, 
claimant  is  entitled  to  costs.  Id.  What 
costs  libellant  entitled  to.  Id.  One 
who  appeals  from  a  decree  in  his  favor 
in  a  collision  case  is  not  entitled  to 
interest  pending  the  appeal.  The  Ex- 
press, 59  Fed.  Rep.  476. 

And  when  both  parties  appeal  from 
a  decree,  dividing  damages,  and  the 
decree  is  affirmed,  interest  will  not  be 
allowed.  The  C.  P.  Raymond,  36  Fed. 
Rep.  336. 

Failure  of  a  party  to  a  decree  for 
division  of  damages  to  appeal  there- 
from prevents  reversal  as  to  him. 
The  J.  and  J.  McCarthy,  61  Fed.  Rep. 
516. 


Ten  per  cent  additional  damages  on 
unjustifiable  appeal.     Id. 

Appellate  court  may  modify  decree 
by  excluding  interest.  The  North 
Star,  62  Fed.  Rep.  71. 

1.  Docket  Fee. — The  proctor  is  en- 
titled to  a  docket  fee  of  twenty  dollars 
on  the  final  hearing;  for  each  deposi- 
tion taken  and  used  in  evidence,  $2.50; 
for  services  rendered  in  removing  a 
case  from  2,  district  to  a  circuit  court 
by  appeal,  $5.00. 

Docket  fee  allowed  in  Hayford  v. 
Griffith,  3  Blatchf.  (U.  S.)34;  Andrews 
V.  Cole,  22  Blatchf.  (U.  S.)  184  ;  The 
Bay  City,  3  Fed.  Rep.  47;  Goodeyear  v. 
Sawyer,  17  Fed.  Rep.  2;  Price  v.  Cole- 
man, 22  Fed.  Rep.  694 ;  Partee  v. 
Thomas,  27  Fed.  Rep.  429.  Final  hear- 
ing. The  Alert,  15  Fed.  Rep.  621.  On 
exceptions.  The  Anchoria,  23  Fed.  Rep. 
669.  On  reference.  Kelley  ^/.TheTopsy, 
45  Fed.  Rep.  486.  Deposition  fee  al- 
lowed in  Beckwith  v.  Easton,  4  Ben. 
(U.  S.)  357;  Jerman  v.  Stewart,  12  Fed. 
Rep.  271;  The  Sallie  P.  Linderman,  22 
Fed.  Rep.  557;  Wooster  v.  Handy,  23 
Fed.  Rep.  49;  American  Diamond  Rock 
Boring  Co.  v.  Sheldon,  28  Fed.  Rep. 
217.  In  summary  proceedings,  when 
amount  is  less  than  $50,  no  proctor's 
fee  except  by  special  allowance  of  the 
court.     The  Ethel,  59  Fed.  Rep.  474. 

Only  one  docket  fee  when  case  is 
appealed.  The  Lillie,  42  Fed.  Rep. 
179  ;  Miller  v.  Cox,  46  Fed.  Rep.  662. 
Not  allowed  in  Jones  v.  Schell,  8 
Blatchf.  (U.  S.)  79;  Doughty  v .  West, 
8  Blatchf.  (U.  S.)  107;  Yale  Lock  Mfg. 
Co.  V.  Colvin,  21  Blatchf.  (U.  S.)  168  ; 
Strafer  v.  Carr,  6  Fed.  Rep.  466  ;  Cox 
V.  Perkins,  13  Fed.  Rep.  iii,and  note; 
McLean  v.  Clark,  23  Fed.  Rep.  861  ; 
Consolidated  Bunging  Apparatus  Co. 
V.  American  Process  Fermentation  Co., 
24  Fed.  Rep.  658;  Wighton  v.  Brainerd, 
28  Fed.  Rep.  29  ;  Ryan  v.  Gould,  32 
Fed.  Rep.  754;  Cleaver  v  Traders'  Ins. 
Co.,  40  Fed.  Rep.  863;  Hunter  v.  In- 
ternational R.  Co.,  28  Fed.  Rep.  842; 
Winegar  v.  Cahn,  29  Fed.  Rep.  676; 
Stimpson  v.  Brook,  3  Blatchf.  (U.  S.) 
456;  Gorse  v.  Parker,  36  Fed.  Rep. 
840.  On  depositions  before  the  com- 
missioners in  proceedings  to  distrib- 
ute funds  in  court.  James  Dalzell's 
Sons  &  Co.  V.  The  Daniel  Kaine,  31 
Fed.  Rep.  746. 


291 


Costs. 


ADMIRALTY. 


Costff, 


Bill  of  Costs. — The  bill  of  costs  is  taxed  by  the  clerk  subject  ta 
review  by  the  judge,  and  is  included  in  and  forms  a  portion  of  the 


Clerk's  Fees. — By  sec.  828  Rev.  Sts. 
the  clerk  is  allowed  fees  for  his  various 
services  in  the  progress  of  a  suit,  such 
as  issuing  process  and  subpoenas,  fil- 
ing papers,  administering  oaths,  certi- 
fying records  on  appeal,  etc.  In  U.  S. 
courts  subpoenas  are  always  issued  by 
the  clerk  and  not  by  the  proctor.  The 
clerk  is  also  entitled  to  a  commission 
on  moneys  deposited  in  and  paid  out 
of  the  registry  of  the  court. 

Clerk's  costs  considered  in  the  Yacht 
Siren,  9  Ben.  (U.  S.)  194:  Schooner  F. 
Merwin,  10  Ben.  (U.  S.)  403  ;  Cavender 
V.  Cavender,  10  Fed.  Rep.  828.  Com- 
missions on  moneys  deposited  in 
bank.  Ex  p.  Prescott,  2  Gall.  (U.  S.) 
146.  General  objections  to  his  costs 
not  considered.  Dedekam  v.  Vose,  3 
Blatchf.  (U.  S.)  153.  Fees  collected 
from  United  States.  Hill  v.  U.  S.,  40 
Fed.  Rep.  441  ;  Erwin  v.  U.  S.,  37  Fed. 
Rep.  470  ;  Jones  v.  U.  S.,  39  Fed.  Rep. 
410.  Charge  for  note  of  issue  and 
making  up  record.  The  Alice  Tainter, 
14  Blatchf.  (U.  S.)  225;  The  Thomas 
Fletcher,  24  Fed.  Rep.  481;  Blain  v. 
Home  Ins.  Co.,  30  Fed.  Rep.  667. 
Attendance  in  court.  Goodrich  v.  U. 
S.,  35  Fed.  Rep.  193. 

Marshal's  Fees. — By  sec.  829  Rev. 
Sts.  U.  S.,  the  marshal  is  entitled  to 
fees  for  attaching  property,  serving 
process,  and  the  expenses  incident  to 
keeping  and  selling  property.  He  is 
also  entitled  to  poundage  when  the 
claim  is  settled  by  the  parties,  and  on 
a  levy  under  execution. 

Keeper's  fees  allowed.  U.  S.  v.  300 
Barrels  of  Alcohol,  i  Ben.  (U.  S.)  72. 
Although  notified  not  to  put  keeper 
in  charge.  Canal  Boat  Independent, 
9  Ben.  (U.  S.)  489.  Although  private 
keeper  aboard.  The  San  Jacinto,  30 
Fed.  Rep.  266.  Keeper's  fees  dis- 
allowed— day  and  night  fees.  The 
Captain  John,  41  Fed.  Rep.  147.  Two 
dollars  and  fifty  cents  per  day  not 
necessarily  limit  of  charge  for  keeper's 
fees.  The  Perseverance,  22  Fed.  Rep. 
462  ;  The  Nellie  Peck,  25  Fed.  Rep. 
463.  Wharfage.  Schooner  F.  Merwin, 
ID  Ben.  (U.  S.)403.  Dry-dock  charges. 
Steamboat  Novelty,  9  Ben.  (U.  S.)  195. 
Auctioneer's  fees.  The  John  E.  Mul- 
ford,  18  Fed.  Rep.  455.  Retaining 
keeper  on  board  after  suit  settled. 
The    J.    W.    Dennis,    19    Fed.     Rep. 


799.  Same  vessel  held  under  differ- 
ent processes.  Steamship  Circas- 
sian, 6  Ben.  (U.  S.)  512.  Actual 
travelling  expenses  in  lieu  of  mileage. 
The  Wavelet,  25  Fed.  Rep.  733.  Pre- 
servation of  property.  The  George- 
anna,  31  Fed.  Rep.  406.  Goods  at- 
tached in  warehouse.  Jorgensen  v. 
3173  Casks  of 'Cement,  40  Fed.  Rep. 
606  ;  Steamship  Russia,  5  Ben.  (U.  S.) 
84  ;  Steamship  Acadia,  10  Ben.  (U.  S.) 
482.  Commission.  The  Clintonia,  11 
Fed.  Rep.  740  ;  Robinson  v.  15,516 
Bags  of  Sugar,  35  Fed.  Rep.  603.  The 
Morgan  City,  38  Fed.  Rep.  572.  Com- 
mission not  allowed.  The  Colorado,. 
21  Fed.  Rep.  592. 

Commissioner's  and  Witnesses'  Fees. — 
Commissioners  (sec.  847  Rev.  Sts.  U. 
S.)  are  also  entitled  to  fees  for  perform- 
ing the  services  rendered  by  them  in  an 
admiralty  suit,  usually  on  references; 
and  witnesses'  fees  are  taxable  by  sec. 
848  Rev.  Sts.  U.  S. 

Commissioner's  fee  chargeable 
though  parties  do  not  appear.  The 
Wavelet,  25  Fed.  Rep.  733.  Fees  of 
three  commissioners.  Young  v.  Mer- 
chants' Ins.  Co.,  29  Fed.  Rep.  275. 
Testimony  written  by  person  other 
than  commissioner.  Schooner  F. 
Merwin,  10  Ben.  (U.  S.)  403.  Notary's 
charge  for  depositions.  Id.  One  charge 
for  issuing  summons  for  seamen's 
wages.  Kelly  v.  The  Topsy,  45  Fed. 
Rep.  486.  Amount  larger  than  three 
dollars.  Doughty  v.  West,  8  Blatchf. 
(U.  S.)  107.  State  officers  acting  as 
commissioners.  Jerman  v.  Stewart,  12 
Fed.  Rep.  271.  Bill  of  commissioner's 
fees.  Beckwith  v.  Easton,  4  Ben. 
(U.  S.)  357.  Witness  fees  taxable 
though  witness  not  examined.  Clark  v. 
American  Dock,  etc.,  Co.,  25  Fed.  Rep. 
641.  Must  show  actual  payment. 
Beckwith  v.  Easton,  4  Ben.  (U.  S.) 
357  ;  The  Highlander,  19  How.  Pr. 
(N.  Y.)  343.  Travel  100  miles,  unless 
distance  wholly  within  district.  The 
Syracuse,  36  Fed.  Rep.  830 ;  Buffalo 
Ins.  Co.  V.  Providence,  etc.S.  S.  Co., 
29  Fed.  Rep.  237  ;  Beckwith  v.  Easton, 
4  Ben.  (U.  S.)  357  ;  Steamship  Leo,  5. 
Ben.  (U.  S.)486;  Eastman  v.  Sherry, 
37  Fed.  Rep.  844  ;  The  Vernon,  36  Fed. 
Rep.  113.  Court  may  allow  mileage 
for  more  than  100  miles.  Smith  v. 
Chicago,  etc.,  R.  Co.,    38    Fed.    Rep. 


292 


Ximitation  of  Liability. 


ADMIRALTY. 


Generally. 


decree  against  the  losing  party ;  it  is  filed  with  the  papers  in  the 
cause.* 

XXIX.  Limitation  of  Liability — 1.  Generally. — The  Revised 
Statutes*  provide  that  a  shipowner  shall  not  be  liable  in  cases  of 
loss  by  fire  on  a  vessel ;  *  and  that  in  cases  where  damage  has  been 
done,  occasioned,  or  incurred  without  the  privity  or  knowledge*  of 


321.  Witness  from  without  state. 
U.  S.  V.  Sanborn,  28  Fed.  Rep.  299  ; 
Cahn  V.  Monroe,  29  Fed.  Rep.  675  ; 
Haines  v.  McLaughlin,  29  Fed.  Rep. 
70.  Fees  taxable  throughout  district. 
Sims  V.  Schult,  40  Fed.  Rep.  143  ; 
Anonymous,  5  Blatchf.  (U.  S.)  134 ; 
Steamship  Leo,  5  Ben.  (U.  S.)  486. 
Taxable  though  deposition  taken. 
Beckwith  v.  Easton,  4  Ben.  (U.  S.)  357. 
Party  as  witness.  Schooners  Eliza- 
beth and  Helen,  4  Ben.  (U.  S.)  loi  ; 
Hussey  v.  Bradley,  5  Blatchf.  (U.  S.) 
210  ;  Tuck  V.  Olds,  29  Fed.  Rep.  883. 
Witness  in  more  than  one  case. 
Young  V.  Merchants'  Ins.  Co.,  29  Fed. 
Rep.  273  ;  Archer  v.  Hartford  Fire  Ins. 
Co.,  31  Fed.  Rep.  660  ;  The  Vernon.  36 
Fed.  Rep.  113.  Money  actually  paid, 
but  in  excess  of  statutory  fees,  not 
taxable.  Leary  v.  The  Miranda,  40 
Fed.  Rep.  607.  Mileage  of  witnesses 
may  be  charged,  though  their  deposi- 
tions might  have  been  taken.  Hunter 
V.  Russell,  59  Fed.  Rep.  964.  How 
mileage  computed.     Id. 

Stenographer's  Fees. —Stenographer's 
fees  are  not  taxable  except  by  consent 
of  the  parties  or  order  of  the  court. 
Bridges  v.  Sheldon,  18  Blatchf.  (U. 
S.)  508  ;  The  E.  Luckenbach,  19  Fed. 
Rep.  847. 

Cost  of  Printing — Other  Expenses. — 
The  necessary  cost  of  printing  is  also 
taxable,  and  ordinarily  any  expense 
incurred  under  a  rule  or  order  of  the 
court  may  be  charged  against  the 
losing  party.  Copies.  Yale  Lock  Mfg. 
Co.  V.  Colvin,  14 Fed.  Rep.  269;  Hussey 
V.  Bradley,  5  Blatchf.(U.S.)  210;  Dennis 
V.  Eddy,  12  Blatchf.  (U.  S.)  195. 
Printed  papers.  Dennis  v.  Eddy,  12 
Blatchf.  (U.  S.)  195.  Commission. 
The  Frisia,  27  Fed.  Rep.  480.  Map. 
The  Vernon,  36  Fed.  Rep.  113.  Sur- 
veys. Tuck  V.  Olds,  29  Fed.  Rep. 
883.  Auctioneer.  The  John  E.  Mul- 
ford,  18  Fed.  Rep.  455.  Telegrams, 
postage.  Hussey  z/.  Bradley,  5  Blatchf. 
{U.S.)  210.  Searching  title  of  sureties. 
Simpson  v.  no  Sticks  of  Timber,  7 
Fed.  Rep.  243. 

Libellant  Becovering  less  than  $300. 
— When  a  libellant,  on  his  own  appeal. 


recovers  less  than  the  sum  or  value  of 
$300,  exclusive  of  costs,  he  shall  not 
be  allowed,  but,  at  the  discretion  of 
the  court,  may  be  compelled  to  pay 
costs.     Rev.  Sts.  sec.  968. 

Costs — Several  Libels  Filed. — When 
several  libels  are  filed  against  vessel 
and  cargo  which  might  legally  be 
joined  in  one  libel,  only  one  bill  of 
costs  can  be  taxed  to  the  libellants, 
unless  special  cause  for  libelling  the 
vessel  separately  is  satisfactorily 
shown  on  motion  in  open  court. 
See  The  Julia,  57  Fed.  Rep.  233. 
Where  two  libels  were  filed  for  the 
same  collision,  but  not  in  form  of 
cross-libels,  and  the  suits  were  heard 
together,  the  successful  party  taxed 
two  bills  of  costs,  except  docket  fee. 
The  Medusa,  47  Fed.  Rep.  821. 

But  allowance  may  be  made  on  one 
libel  or  information  for  the  costs  inci- 
dental to  several  claims.  Sec.  978 
Rev.  Sts. 

Cause  Dismissed  for  Lack  of  Jurisdic- 
tion.— Where  a  cause  is  dismissed  for 
lack  of  jurisdiction,  no  costs  are  al- 
lowed. The  McDonald,  4  Blatchf.  (U. 
S.)  477;  Wenberg  v.  A  Cargo  of  Mineral 
Phosphate,  15  Fed.  Rep.  285.  But  this 
rule  does  not  apply  when  the  lack  of 
jurisdiction  is  only  disclosed  by  sub- 
sequent pleadings  or  evidence,  after 
the  parties  are  in  court.  The  City  of 
Florence,  56  Fed.  Rep.  236  ;  Lowe  v. 
Canal-boat  Benjamin,  i  Wall.  Jr.  187. 

1.  Rev.  Sts.  §983. 

2.  Act  of  Congress  of  March  3, 1851, 
the  provisions  of  which  are  now  em- 
bodied in  §§4282,  4283,  4284,  and  4285 
of  the  Revised  Statutes. 

3.  Vessel  Entitled  to  Immunity. — The 
vessel  itself  is  entitled  to  immunity 
from  liability  for  a  loss  by  fire,  al- 
though its  ownership  may  have 
changed  since  the  damage.  The 
Rapid  Transit,  52  Fed.  Rep.  320.  §  4282 
does  not  release  a  shipowner  from 
liability  to  contribute  in  general  aver- 
age.    The  Roanoke,  59  Fed.  Rep.  161. 

4.  See  The  Maria  &  Elizabeth,  n 
Fed.  Rep.  520;  Sumner  v.  Caswell,  20 
Fed. Rep.  249;  The  City  of  Para,  44  Fed. 
Rep.  689;    The   Anna,   47   Fed.    Rep. 


293 


Limitation  of  Liability. 


ADMIRALTY. 


Generally. 


the  shipowner,  such  owner  shall  not  be  held  liable  therefor  beyond 
the  value  of  his  interest  in  such  vessel  and  her  freight  pending.* 
This  act  applied  only  to  torts,  but  was  later  extended  to  cover  the 
general  debts  of  a  ship.  If,  therefore,  a  shipowner  is  sued  or  his 
ship  libelled  for  a  claim  of  loss  arising  under  such  circumstances, 
it  is  sufficient  for  him  in  his  answer,  after  pleading  to  the  merits, 
if  he  desires,  to  set  up  the  provisions  of  the  statute  and  pray  that 
the  court  decree,  if  he  is  to  be  held  liable  for  the  loss,  that  he  be 
declared  not  liable  beyond  the  value  of  his  vessel  and  her  freight 
pending,  or  his  interest  in  them.* 


525;  Whitcomb  v.  Emerson,  50  Fed. 
Rep.  128;  Quinlan  v.  Pew,  56  Fed.  Rep. 
iir;  Matter  of  Meyers  Excursion,  etc., 
Co.,  57  Fed.  Rep.  240;  Lord  v.  Good- 
all  Steamship  Co.,  4  Sawy.  (U.  S.)  299. 
Passenger's  baggage  is  not  merchan- 
dise. The  Marine  City,  6  Fed.  Rep. 
413.  Claim  for  unearned  freight.  In 
re  Liverpool,  etc.,  Steam  Co.,  3  Fed. 
Rep.  168. 

1.  Ben.  Adm.  (3d  ed.)  §§  554-584- 
The  act  includes  claims  for  personal 
injuries.  Steam  Propeller  Epsilon,  6 
Ben.  (U.  S.)  378;  Butler  v.  Boston  SS. 
Co.,  130  U.  S.  527  ;  In  re  Petition 
of  Long  Island,  N.  S.,  P.,  etc.,  Co.,  5 
Fed.  Rep.  599;  The  Amsterdam,  23 
Fed.  Rep.  112.  Where  claims  in 
excess  of  the  value  of  the  vessel 
were  made  and  the  shipowner  filed  a 
petition  for  limitation,  and  claimants 
thereupon  reduced  their  claims,  it  was 
held  that  the  jurisdiction,  once  ac- 
quired, could  not  be  so  divested.  The 
Tolchester,  42  Fed.  Rep.  180.  Applies 
to  vessels  navigating  inland  waters, 
when.  In  re  Petition  of  Long  Island, 
N.  S. ,  P. ,  etc. ,  Co. ,  5  Fed.  Rep.  599.  Not 
to  steam  pleasure  yacht.  The  Mamie, 
5  Fed.  Rep.  813.  Not  to  vessel  solely 
employed  on  Hudson  River.  Tug 
Sears,  8  Fed.  Rep.  365.  (But  the  three 
last-named  decisions  were  made  be- 
fore the  passage  of  the  Act  of  June  19, 
1886.)  The  court  cannot  take  jurisdic- 
tion of  a  petition  for  limitation  of 
liability  where  it  would  not  originally 
have  had  cognizance  in  admiralty  of 
the  cause  of  action.  Exp.  Phenix  Ins. 
Co.,  118  U.  S.  610.  Elwell  V.  Geibei, 
33  Fed.  Rep.  71.  The  statute  does  not 
protect  a  shipowner  against  a  claim 
on  which  the  vessel  has  been  seized 
and  released  on  bond,  although  the 
vessel  be  subsequently  lost  and  a  peti- 
tion in  limitation  thereupon  filed.  The 
Percy  Birdsall  v.  The  Invertrossacks, 
55  Fed.  Rep.  683.     "  Privity  or  knowl- 


edge." Lord  V.  Goodall,  etc.,  Co.,  4. 
Sawy.  (U.  S.)  299;  Craig  v.  Continental 
Ins.  Co.,  26  Fed.  Rep.  292;  The  Anna, 
47  Fed.  Rep.  525;  Matter  of  Petition 
of  Myers  Ex'n  Co.,  57  Fed.  Rep.  240, 
aff.  61  Fed.  Rep.  109;  Quinlan  f.  Pew, 
56  Fed.  Rep.  iii. 

Passage  money  and  freight  prepaid 
at  the  port  of  departure  are  not 
"freight  pending."  The  Main  v. 
Williams,  152  U.  S.  122. 

Value. — The  value  can  be  ascer- 
tained by  an  appraisal,  and  a  stipula- 
tion for  value  given  for  such  appraised 
value,  as  in  ordinary  cases  ;  and  the 
suit  will  proceed  in  regular  course, 
though  the  shipowner  is  protected  by 
the  provisions  of  the  statute. 

2.  L.  1884,  ch.  121,  t;i8;  23  Sts.  at 
L.  p.  57;  L.  1886,  ch.  421,  §4;  26  Sts. 
at  L.  p.  80.  The  Scotland,  105  U.  S. 
24;  The  Manitoba,  122  U.  S.  100;  The 
Doris  Eckhoff,  30  Fed.  Rep.  140.  The 
statutes  may  be  brought  up  by  excep- 
tions to  the  libel.  Miller  v.  O'Brien, 
35  Fed.  Rep.  779.  If  there  is  but  a 
single  claim,  it  has  been  held  that  this 
defense  may  be  set  up  in  an  answer 
to  an  action  at  law,  and  hence  that  an 
independent  proceeding  in  admiralty 
would  not  be  allowed,  or  a  stay  of  the 
case  at  law  issued.  The  Rosa,  53  Fed. 
Rep.  132.  But  this  holding  was  dis- 
approved by  the  Circuit  Court  of  Ap- 
peals for  the  First  Circuit,  in  Quinlan 
V.  Pew,  56  Fed.  Rep.  in.  Petitioner 
is  liable  for  interest  on  his  stipulation 
from  the  date  thereof.  The  Favorite, 
12  Fed.  Rep.  213. 

Validity  —  Exemptions.  —  The  act  of 
June  19,  1886,  extending  the  bene- 
fits of  limited-liability  legislation  to 
all  vessels  used  on  lakes  and  rivers 
or  in  inland  navigation,  including 
canal-boats,  barges,  and  lighters,  is 
valid.  In  re  Garnett,  141  U.  S.  i;  The 
Katie,  40  Fed.  Rep.  480;  Butler  v.  Bos- 
ton, etc.,  SS.  Co.,  130  U.  S.  527.     But 


294 


Limitation  of  Liability. 


ADMIRALTY. 


The  Proceeding-. 


2.  The  Proceeding — a.  GENERALLY. — But  it  often  happens  not 
only  that  the  vessel  has  done  damage  exceeding  her  value  without 
the  privity  or  knowledge  of  her  owner,  but  that  the  claims  arising 
from  such  damage  are  numerous,  or  are  largely  unknown,  or  that 
suits  are  brought  thereon  in  different  courts,  or  the  owner  sued  in 
the  courts  of  a  state  and  the  vessel  libelled  in  the  admiralty  court. 
The  rules  of  the  Supreme  Court  have  provided  a  method,  under 
the  above-mentioned  law,  by  which  the  whole  matter  can  be 
heard  in  a  single  proceeding,  and  all  other  proceedings  enjoined, 
and,  if  the  owner  succeeds  in  establishing  his  position,  all  possible 
claimants  against  him  on  account  of  this  particular  damage  and 
loss  may  be  forever  barred,  and  pending  suits  perpetually  stayed.* 
Such  is  a  proceeding  in  limitation  of  liability  taken  in  the  admi- 
ralty courts  of  the  United  States.* 


the  act  is  not  retroactive.  Chappell  v. 
Bradshaw,  35  Fed.  Rep.  923.  The 
later  statutes  do  not  exempt  a  ship- 
owner from  liability  on  his  personal 
contracts.  The  Amos  D.  Carver,  35 
Fed.  Rep.  665;  McPhail  v.  Williams, 
41  Fed.  Rep.  61;  The  Giles  Loring,  48 
Fed.  Rep.  471;  Douse  v.  Sargent,  48 
Fed.  Rep.  695;  Laverty  v.  Clausen,  40 
Fed.  Red.  542;  Gokey  v.  Fort,  44  Fed. 
Rep.  364.  Nor  does  the  statute  ex- 
empt from  liability  for  the  destruction 
of  structures  on  land  destroyed  by  fire 
communicated  by  a  vessel.  Goodrich 
Transp.  Co.  v.  Gagnon,  36  Fed.  Rep. 
123;  Ex  p.  Phenix  Ins.  Co.,  Ii8  U.  S. 
610. 

Applicable  to  British  Corporation. — A 
British  corporation  may  take  advan- 
tage of  the  act,  though  the  accident 
happened  within  English  jurisdiction. 
Levinson  v.  Oceanic  Steam  Nav.  Co., 
17  Alb.  L.  J.  285.  See  In  re  Leonard, 
14  Fed.  Rep.  53;  The  State  of  Vir- 
ginia, 60  Fed.  Rep.  1018. 

1.  Adm.  Rules  54-58;  Black  v.  South- 
ern Pac.  R.  Co.,  14  Sawy.  (U.  S.)  120. 
But  when,  in  a  case  of  collision,  both 
vessels  are  in  fault,  the  statute  can- 
not be  applied  until  the  balance  of 
damage  has  been  struck;  and  then  the 
party  against  whom  the  decree  passes 
may  claim  the  benefit  of  the  statute 
in  respect  to  the  balance  which  he  is 
decreed  to  pay.  The  North  Star,  106 
U.  S.  17. 

2.  Rales  of  the  Sonthern  and  Eastern 
Districts  of  New  Tork  in  Proceedings  to 
Limit  Liability. — Rule  73.  "Petitions 
or  libels  to  limit  liability  must  state: 
(i)  the  facts  showing  that  the  applica- 
tion is  properly  made  in  this  district; 
(2)  the  voyage  on  which  the  demands 


sought  to  be  limited  arose,  with  the 
date  and  place  of  its  termination  ;  the 
amount  of  all  demands,  including  all 
unsatisfied  liens  or  claims  of  liens  on 
contract  or  on  tort,  arising  on  that  voy- 
age, so  far  as  known  to  the  petitioners, 
and  what  suits,  if  any,  are  pending 
thereon;  whether  the  vessel  was  dam- 
aged, lost,  or  abandoned,  and,  if  so, 
when  and  where;  the  value  of  the  ves- 
sel at  the  close  of  the  voyage,  or,  in 
case  of  wreck,  the  value  of  her  wreck- 
age, strippings,  or  proceeds,  if  any,  as 
nearly  as  the  petitioners  can  ascertain, 
and  where  and  in  whose  possession 
they  are;  also  the  amount  of  any  pend- 
ing freight,  recovered  or  recoverable. 
If  any  of  the  above  particulars  are  not 
fully  known  to  the  petitioner,  a  state- 
ment of  such  particulars,  according  to 
the  best  knowledge,  information,  and 
belief  of  the  petitioner,  shall  be  suf- 
ficient. " 

Rule  74.  "  If  a  surrender  of  the  ves- 
sel is  offered  to  be  made  to  a  trustee, 
the  libel  or  petition  must  further  show 
whether  there  is  any  prior  paramount 
lien  on  the  vessel,  and  whether  she 
has  made  any,  and,  if  so,  what  voyage 
or  trip  since  the  voyage  or  trip  on 
which  the  claims  sought  t«  be  limited 
arose,  and  any  existing  lien  or  liens, 
maritime  or  domestic,  arising  upon  any 
such  subsequent  voyage  or  trip,  with 
the  amounts  and  causes  thereof,  and 
the  names  and  addresses  of  the  lienors, 
so  far  as  known;  also  the  special  facts 
on  which  the  right  to  surrender  the 
vessel  is  claimed,  notwithstanding 
such  subsequent  trip  or  voyage,  and 
whether  the  vessel  sustained  any  in- 
jury upon,  or  by  reason  of,  such  sub- 
sequent voyage  or  trip. 


295 


Limitation  of  Liability. 


ADMIRALTY. 


The  Proceeding. 


b.  The  Petition  or  Libel. — The  shipowner  first  files  a  libel 
or  petition,  setting  forth  the  casualty,  and  its  happening  without 
his  privity  or  knowledge,  and  alleging  that  the  damages  are  in 
excess  of  the  amount  of  his  interest  in  the  vessel  and  her  pending 
freight,  and  that  claims  therefor  have  been  made  upon  him  or  his 
vessel,  or  that  he  is  in  fear  that  such  claims  will  be  made.^     The 


"  Upon  surrender  of  the  vessel  no  fi- 
nal decree  exempting  from  liability  will 
be  made  until  all  such  liens  as  may  be 
admitted  or  proved,  prior  to  such  final 
decree,  to  be  superior  to  the  liens  of 
the  claims  limited,  shall  be  paid  or  se- 
cured independently  of  the  property 
surrendered,  as  may  be  ordered  by  the 
court;  and  the  monition  in  cases  of 
surrender  shall  cite  all  persons  having 
any  claim  upon  the  vessel  to  appear 
on  the  return  day  or  be  defaulted,  as 
in  ordinary  process  in  rem." 

Rule  75.  "  If ,  instead  of  a  surrender 
of  the  vessel,  an  appraisement  thereof 
be  sought  for  the  purpose  of  giving  a 
stipulation  for  value,  the  libel  or  peti- 
tion must  state  the  names  and  ad- 
dresses of  the  principal  creditors  and 
lienors,  whether  on  contract  or  in  tort, 
upon  the  voyage  on  which  the  claims 
are  sought  to  be  limited,  and  the 
amounts  of  their  claims,  so  far  as  they 
are  known  to  the  petitioner,  and  the 
attorneys  or  proctors  in  any  suit  there- 
on; or  if  such  creditors  or  lienors  be 
very  numerous,  then  a  sufficient  num- 
ber of  them  properly  to  represent  all 
in  the  appraisement;  and  notice  of  the 
proceedings  to  appraise  the  property 
shall  be  given  to  such  creditors  as  the 
court  shall  direct,  and  to  all  attorneys 
and  proctors  in  such  pending  suits." 

Rule  76.  "  The  stipulation  for  value 
upon  such  appraisement  shall  be  given 
with  sufficient  sureties  and  upon  justi- 
fication as  required  under  these  rules 
in  actions  tw  retn,  and  shall  provide  for 
the  payment  of  the  appraised  amount 
with  interest  from  the  close  of  the 
voyage,  uniess  otherwise  ordered  by 
the  court." 

Rule  77.  "If  issue  is  taken  by  the 
pleadings  upon  the  right  of  the  peti- 
tioners to  any  limitation  of  liability, 
or  upon  the  liability  of  the  petitioners 
for  the  claims  alleged  against  them, 
such  issue  will  not  be  heard  and  de- 
termined until  the  publication  of  the 
monition,  unless  otherwise  ordered  on 
application  to  the  court.  " 

Rule  78.  "  Proof  of  claims  presented 
to  the  commissioner  shall  be  made  by 


or  before  the  return  day  of  the  moni- 
tion by  affidavit  specifying  the  na- 
ture, grounds,  and  amount  thereof, 
the  particular  dates  on  which  the 
same  accrued,  and  what,  if  any,  cred- 
its were  given  thereon,  and  what  pay- 
ments, if  any,  have  been  made  on  ac- 
count; with  a  bill  of  particulars  giving 
the  respective  dates  and  amounts,  if 
the  same  consists  of  several  different 
items.  Such  proof  shall  be  deemed 
sufficient,  unless  within  five  days  after 
the  return  day  of  the  monition,  or  after 
interlocutory  decree  in  case  of  issue 
joined  by  answer  to  the  petition,  or 
within  such  further  time  as  may  be 
granted  by  the  court,  the  allowance  of 
the  claim  shall  be  objected  to  by  the 
petitioner  or  by  some  other  creditor 
filing  a  claim,  who  shall  give  notice 
in  writing  of  such  objection  to  the 
commissioner  and  to  the  proctors  of 
the  claim  objected  to,  if  any.  Any 
claim  so  objected  to  must  be  estab- 
lished by  further  legal  frirna-facie 
proof  on  notice  to  the  objecting  party, 
as  in  ordinary  cases;  but  any  creditor 
desiring  to  contest  the  same  upon  any 
specific  defense  must,  with  his  notice 
of  objection,  or  subsequently,  if  al- 
lowed by  the  commissioner  or  the 
court,  state  such  defense,  or  be  pre- 
cluded from  giving  evidence  thereof  ; 
and  the  unsuccessful  party  to  such 
contest  may  be  charged  with  the  costs 
thereof.  The  commissioner  shall,  on 
the  return  day  of  the  monition,  file  in 
open  court  a  list  of  all  claims  pre- 
sented to  him." 

1.  Proceedings.— See  The  Rose  Cul- 
kin,  52  Fed.  Rep.  332. 

It  is  unnecessary  to  aver  or  prove 
that  the  claims  against  the  vessel  are 
in  excess  of  her  value.  The  Garden 
City,  26  Fed.  Rep.  770. 

The  proceeding  may  be  instituted 
before  any  suit  is  brought  against  the 
owner  or  his  vessel.  Ex  p.  Slayton, 
105  U.  S.  451  ;  Steamship  John  Bram- 
all,  10  Ben.  (U.  S.)  511;  Black  v. 
Southern  Pac.  R.  Co.,  39  Fed.  Rep.  565. 

Claims  and  Claimants. — The  Benefac- 
tor, 103  U.  S.  239. 


2g6 


Limitation  of  Liability. 


ADMIRALTY. 


The  Proceeding. 


petitioner  thereupon  claims  the  benefit  of  the  statute,  and  offers 
to  surrender  the  vessel  during  the  pendency  of  the  proceeding,  to 
a  trustee  to  be  appointed  by  the  court ;  or  else  he  asks  for  an 
appraisal,  offering  to  deposit  the  appraised  amount  in  court,  or 
give  bonds.  The  libel  also  prays  for  the  appointment  of  a  com- 
missioner to  receive  proof  of  claims.  The  libel  may  simply  ask 
that  the  owner  be  not  held  liable  beyond  the  value  of  his  vessel, 
surrendering  such  value  without  contest  to  any  claimants ;  or  it 
may  contest  the  liability  of  the  owner  to  any  extent  whatever,  on 
the  merits,  while  claiming  the  benefits  of  the  statute,  if  the  court 
finds  that  the  contention  of  entire  exemption  from  liability  is 
untenable. 

Filing  Libel— Stipulation.— The  libel  should  be  filed  in  the  district  in 
which  the  vessel  is  found,  or  in  the  district  in  whigh  the  owner 
resides  and  may  be  sued.^  It  is  accompanied  by  the  usual  stipu- 
lation for  costs. 

c.  Proceedings  Under  the  Libel — Trustee. — On  the  filing 
of  the  libel  the  court  may  appoint  a  trustee,  to  whom  the  libel- 
lant  may  turn  over  his  vessel.* 

If  Appraisal  is  Asked  the  court  appoints  appraisers  who  value 
the  vessel  and  pending  freight,  whereupon  libellant  pays  the 
appraised  amount  into  court,  or  gives  a  stipulation  therefor.** 


1.  Adm.  Rule  57.  See  The  Alpena, 
8  Fed.  Rep.  280;  In  re  Leonard,  14 
Fed.  Rep.  53.  The  proceeding  must 
originate  in  the  District  Court.  El- 
well  V.  Geibei,  33  Fed.  Rep.  71,  a  pro- 
ceeding in  equity,  wrongly  reported 
as  in  admiralty;  The  Mary  Lord,  31 
Fed.  Rep.  416.  Where  the  jurisdiction 
of  the  District  Court  has  attached,  it 
is  exclusive.  Black  v.  Southern  Pac. 
Co.,  39  Fed.  Rep.  565;  /«  r^  Morrison, 
147  U.  S.  14. 

2.  Turning  Over  Vessel — Interest. — 
This  is  done  by  ordinary  bill  of  sale, 
or,  better,  by  an  instrument  reciting 
the  proceeding,  and  stating  that  the 
transfer  is  made  ^in  accordance  with 
such  proceeding.  It  is  not  necessary 
that  the  vessel  be  placed  in  custody  of 
the  marshal.  In  re  Morrison,  147  U.  S. 
14.  Trustee  may  sell  to  prevent  de- 
struction. The  Mendota,  14  Fed.  Rep. 
358.  The  owner  must  surrender  the 
vessel  free  from  previous  liens.  The 
U.  S.  Grant,  45  Fed.  Rep.  642.  When 
owners  surrender  a  vessel,  they  can- 
not be  required  to  add  interest  on  her 
appraised  value  from  the  time  the  lia- 
bility was  incurred,  though  they  have 
long  delayed  the  surrender.  But 
when  they  elect  to  give  a  bond  for  the 
appraised  value,  they  may  be  required 
to  provide  for  interest  until  such  time 


as  the  money  is  paid.  The  Battler,  58 
Fed.  Rep.  704;  In  re  Harris,  57  Fed. 
Rep.  243. 

3.  The  Anna,  47  Fed.  Rep.  525;  The 
H.  F.  Dimock,  52  Fed.  Rep.  598;  The 
City  of  Norwich,  i  Ben.  (U.  S.)  89; 
Norwich,  etc.,  Transp.  Co.'s  Petition, 
8  Ben.  (U.  S.)  312;  The  Doris  Eckhoff, 
30  Fed.  Rep.  140;  The  U.  S.  Grant,  45 
Fed.  Rep.  642;  Gokey  v.  Fort,  44  Fed. 
Rep.  364.  The  court  may  require  that 
the  bond  include  a  stipulation  for  in- 
terest.    Iti  re  Harris,  57  Fed.  Rep.  243. 

The  price  realized  at  a  marshal's 
sale  of  a  vessel  is  not  conclusive  as  to 
her  value,  and  the  court,  on  cause 
shown,  may  require  a  bond  for  the 
actual  value,  as  proved.  The  U.  S. 
Grant,  45  Fed.  Rep.  642. 

The  voyage  of  a  vessel,  sunk  in  col- 
lision, terminates  on  such  sinking,  and 
the  owner's  liability  is  measured  by 
her  value  as  she  lies  at  the  bottom, 
and  is  not  affected  by  the  fact  that  she 
is  afterwards  raised  and  repaired. 
The  City  of  Norwich,  118  U.  S.  468; 
The  Scotland,  118  U.  S.  507;  The 
Great  Western,  118  U.  S.  520.  See  The 
Anna,  47  Fed.  Rep.  525. 

The  value  is  the  actual  value  of  the 
vessel,  without  any  deduction  on  ac- 
count of  liens.  The  Leonard  Richards, 
41  Fed,  Rep.  818. 


297 


Limitation  of  Liability. 


ADMIRALTY. 


The  Proceeding. 


Proof  of  Claims.— The  court  also  appoints  a  commissioner  ta 
receive  proof  of  claims,  and  issues  to  the  marshal  its  monition 
concerning  the  notification  of  claimants.* 

Staying  Proceedings.— An  injunction  order  is  also  made  at  the  same 
time,  staying  all  proceedings  already  begun,  and  the  commence- 
ment of  any  others,  until  the  final  disposition  of  the  proceeding 
in  question.* 

d.  Proof  of  Claims  and  Return  of  Monition. — Being 
notified,  claimants  appear  before  the  commissioner,  and  make 
proof  of  their  claims,  and  the  commissioner  returns  to  the  court 
the  complete  list  tiiereof.^ 

On  the  return  of  the  monition,  also,  claimants  should  appear  in 
court  and  answer  the  libel  or  obtain  time  to  answer,  and  the  peti- 
tioner should  take  the  default  of  all  claimants  who  do  not  so 
appear.  The  libel  being  answered,  the  cause  goes  upon  the 
calendar,  and  is  heard  on  evidence  as  in  ordinary  cases. 

e.  Decree. — If  the  court  decrees  that  the  petitioner  is  not  en- 
titled to  the  limitation  of  liability  which  he  claims,  a  decree  will 
be  made  dismissing  the  petition,  dissolving  the  injunction,  and 
allowing  claimants  to  proceed  against  the  petitioner  or  his  vessel. 

Insurance  on  a  vessel  is  not  part  of 
the  owner's  interest  to  be  surrendered. 
The  City  of  Norwich,  Ii8  U.  S.  468; 
The  Scotland,  118  U.  S.  507;  The 
Great  Western,  118  U.  S.  520;  The 
Rapid  Transit,  52  Fed.  Rep.  320. 
When  the  vessel  is  lost  and  no  freight 
is  earned,  the  owner  is  not  liable  for 
freight  pending.     Id. 

1.  Court's  Monition  to  Marshal. — This 
directs  him  to  publish  a  notice  once  a 
day  for  14  days,  and  thereafter  once  a 
week  until  the  expiration  of  not  less 
than  three  months  from  the  date  of 
the  first  publication,  citing  all  persons 
having  claims  by  reason  of  the  casu- 
alty in  question  to  appear  before  the 
commissioner  and  make  proof  of  such 
claims  at  or  before  a  certain  time 
named  in  the  writ;  and  also  to  ap- 
pear in  court  and  answer  the  allega- 
tions of  the  libel,  if  the  claim  of  the 
libel  is  contested.  The  court,  in  its 
discretion,  may  also  direct  further  no- 
tice to  be  given,  through  the  post- 
oflSce  or  otherwise. 

2.  See  Providence,  etc.,  Co.  v.  Hill 
Mfg.  Co.,  109  U.  S.  578;  Black  v. 
Southern  Pac.  R.  Co.,  39  Fed.  Rep. 
565. 

Copy  of  Injunction  Order. — A  copy  of 
this  injunction  order  must  be  served 
on  all  known  claimants  with  the  moni- 
tion.    Adm.  Rules  54-57. 

3.  Practice  before  Commissioner. — The 
t>roper   practice,    on   proof   of   claims 


before  a  commissioner,  in  a  case 
where  petitioner  is  seeking  to  limit  his 
liability,  and  is  also  claiming,  on  the 
merits,  an  absolute  exemption  from 
all  liability,  is  for  each  claimant  to 
file  with  the  commissioner  an  affi- 
davit setting  forth  his  claim  and 
the  amount  thereof.  The  commis- 
sioner should  return  a  list  of  these 
to  the  court,  on  or  before  the  return 
day  of  the  monition,  and  the  peti- 
tioner should  thereupon,  on  entering 
his  order  for  the  default  of  all  persons 
not  appearing,  incorporate  into  it  a 
provision  that  all  proceedings  before 
the  commissioner  be  stayed  until  the 
hearing  in  court  on  the  merits.  Un- 
less this  method  is  followed,  claimants 
may  be  put  to  minute  proof  of  the 
claims  before  the  commissioner,  with 
questions  of  priority,  etc.,  before  it  is 
settled  that  they  have  any  claim  at 
all.  If  the  petitioner  is  declared  liable 
by  the  court,  if  only  to  the  extent  of 
the  fund,  the  matter  may  be  referred 
back  to  the  commissioner,  to  hear  for- 
mal proof  as  to  the  claims,  with  such 
opposing  evidence  as  other  claimants 
or  the  petitioner  may  adduce,  as 
in  ordinary  references  on  interlocu- 
tory decree.  When  petitioner  does 
not  contest  the  right  of  claimants  to 
the  fund,  but  only  seeks  to.  limit  his 
liability  to  such  fund,  the  str'ct  proof 
of  claims  may  be  as  well  before  as. 
after  the  hearing  in  court. 


298 


FriM. 


ADMIRALTY. 


Generally. 


If  the  decision  is  that  the  petitioner  is  not  in  fault  for  the  dam- 
age complained  of,  the  court  makes  a  decree  to  that  effect,  and  the 
injunction  against  the  commencement  or  continuance  of  the  pro- 
ceedings is  made  perpetual,  and  the  trustee  is  directed  to  return 
his  boat  to  the  petitioner,  or  the  clerk  directed  to  return  to  peti- 
tioner the  money  deposited  in  court,  or  an  order  entered  cancel- 
ling petitioner's  stipulations.^ 

If  the  decision  of  the  court  be  that  petitioner  is  liable,  but  is 
nevertheless  entitled  to  the  benefit  of  the  statute,  a  decree  will  be. 
made  that  the  petitioner  pay  into  court  the  amount  called  for  by 
the  stipulation,  if  the  money  be  not  already  so  deposited,  and  that 
the  fund  be  distributed  among  the  various  claimants  in  proportion 
to  their  claims,  or  that  the  trustee  sell  the  vessel  and  distribute 
the  proceeds  in  like  manner.* 

/,  Costs. — Costs  in  limitation  proceedings  are  usually  paid  out 
of  the  fund.^  The  costs  taxable  in  such  cases  are  the  same  as  are 
taxable  in  ordinary  cases.* 

XXX.  Peize — 1.  Generally. — When  vessels  or  other  property 
are  captured  in  time  of  war,  or  in  time  of  peace  are  seized  as  pi- 


1.  Norwich,  etc.,  Transp.  Co.'s  Pe- 
tition, ID  Ben.  (U.  S.)  193.  Or  any  sur- 
plus of  the  fund  over  the  amount  of 
claims  filed  may  be  returned  to  peti- 
tioner. See  Wallace  v.  Providence, 
etc.,  SS.  Co.,  14  Fed.  Rep.  58. 

2.  Reference  Back  to  Commissioner. — 
If  there  are  questions  of  priority  of 
payment  among  claimants,  or  if  peti- 
tioner desires  to  contest  any  of  the 
claims,  the  matter  is  ordinarily  re- 
ferred back  to  the  commissioner  who 
originally  received  the  claims,  to  hear 
and  decide  such  questions  and  report 
to  the  court.  Meantime  the  petitioner 
may  enter  an  order  that  he  be  exempted 
from  all  liability  beyond  such  fund, 
and  that  any  further  suits,  actions,  or 
proceedings,  unless  against  the  fund, 
be  perpetually  enjoined. 

3.  Adm.Rule53.  See  Norwich,  etc., 
Transp.  Co.'s  Petition,  10  Ben.  (U.  S.) 
194,  17  Blatchf.  (U.  S.)  221,  118  U.  S. 
468.  But  the  practice  adopted  in  the 
foregoing  case,  where  the  successful 
petitioner  taxed  a  docket  fee  for  each 
claimant,  is  not  now  followed.  Peti- 
tioner is  ordinarily  allowed  one  docket 
fee  on  hearing  and  one  on  reference 
only. 

The  provision  that  costs  shall  be 
paid  out  of  the  fund  applies  only  to 
cases  where  petitioner,  after  having 
established  his  right  to  limitation, 
does  not  contest  the  liability  of  his 
vessel.  The  Leonard  Richards,  41  Fed. 
Rep. 818;  Inre  Harris,  57  Fed. Rep. 243. 

299 


Award  of  Costs. — When  the  petitioner 
is  held  not  entitled  to  his  limitation, 
costs  go  to  the  claimants;  when  the 
limitation  is  allowed  him,  even  though 
he  be  held  liable  on  the  merits,  peti- 
tioner is  entitled  to  costs  against  the 
fund,  though  claimants  may  tax  their 
disbursements  against  it.  When  peti- 
tioner is  declared  exempt  from  all  lia- 
bility, it  would  seem  that  claimants 
are  liable  to  pay  petitioner's  costs  on 
their  stipulations  for  costs,  filed  with, 
their  answers.  In  some  cases,  how- 
ever, costs  have  been  taxed  against 
the  fund  in  favor  of  petitioner  in  such 
cases.  The  shipowner  may  be  held 
to  pay  costs  beyond  the  amount  of  his 
stipulation,  if  he  opposes  and  defends. 
The  Wanata,  95  U.  S.  600;  In  re 
Harris,  57  Fed.  Rep.  243.  Where  the 
decree  is  against  the  owners,  they  are 
liable  in  solido  for  costs.  The  Giles 
Loring,  48  Fed.  Rep.  463.  A  claimant 
who  desires  to  contest  the  liability  of 
a  vessel,  sold  by  a  trustee  under  the 
Limited  Liability  Act,  and  gives  a  stip- 
ulation for  costs  under  Admiralty  Rule 
26,  is  liable  only  for  the  costs  properly 
incident  to  such  contest.  The  Ver- 
non, 36  Fed.  Rep.  113. 

4.  When  one  enjoined  from  continu- 
ing a  state  court  proceeding,  and 
brought  into  an  admiralty  court  by 
limitation  proceedings,  may  recover 
costs  incurred  in  state  court.  In  re 
The  Garden  City,  27  Fed.  Rep. 
234- 


Prize. 


ADMIRALTY. 


Prize  Commissioiiers. 


rates  or  slavers,  or  violators  in  any  way  of  the  law  of  nations,  their 
condemnation  as  prize  has  always  been  required,  in  civilized  coun- 
tries, before  the  captured  property,  or  its  proceeds,  can  be  appro- 
priated by  the  captors.^ 

Of  such  proceedings  the  United  States  District  Court  has  cog- 
nizance.* 

2.  Captor's  First  Duty. — Therefore,  when  a  captured  vessel,  or 
other  captured  property,  is  brought  into  a  port  of  the  United 
States,  the  first  thing  necessary  for  the  captor  to  do  is  to  notify 
the  judge  of  the  District  Court,  or  the  prize  commissioners  ap- 
pointed by  such  court,  of  that  fact,  and  of  the  place  where  the 
property  can  be  found. ^ 

3.  Prize  Commissioners. — In  time  of  war*  there  are  permanent 
commissioners  appointed  by  the  judge  of  the  District  Court  at 
each  prominent  seaport.* 

They  are  called  prize  commissioners,  and  it  is  their  duty  to 
attend  to  the  preliminary  matters  in  cases  of  prize,  as  herein 
below  set  forth.® 


1.  Formal  Proof  that  Vessel  Subject  to 
Torfeiture  Necessary. — It  must  appear 
■as  matter  of  formal  proof  that  the  ves- 
sel actually  was  an  enemy's  vessel,  or 
otherwise  subject  to  be  forfeited  by 
the  laws  of  war  or  of  nations. 

2.  Jurisdiction. — This  condemnation 
proceeding,  with  its  allied  actions,  has 
always  been  peculiarly  within  the 
jurisdiction  of  the  admiralty.  The 
United  States  District  Court  when 
sitting  in  such  a  proceeding  becomes 
a  court  of  prize,  as  in  ordinary  ad- 
miralty cases  it  is  an  instance  court, 
-and  in  admiralty  matters  involving 
crime  a  criminal  court.  See  Bouvier 
L.  Diet.,  title  Instance;  Ben.  Adm.  sec. 
■330. 

Practice. — Practice  in  prize  cases  is 
considered  in  Note  II  in  the  appen- 
dix to  vol.  I  of  Wheaton's  Reports,  i 
Wheat.  (U.  S.)494. 

3.  Prize  Rule  2. 

4.  In  Peace. — In  time  of  peace  these 
commissioners  are  appointed  only  on 
occasion  arising  to  call  for  their  ser- 
vices. 

5.  Number,  etc.,  of  Commissioners. — 
They  are  not  to  exceed  three  in  num- 
ber, one  of  whom  must  be  a  retired 
naval  officer.  Rev.  Sts.  sec.  4621; 
Prize  Rule  i. 

6.  Duty  of  Commissioners. — On  receiv- 
ing a  notification  of  the  arrival  of  a 
prize,  or  without  any  notification,  if 
the  commissioners  become  in  any  way 
•aware  of  the  fact,  it  is  their  duty  to  go 
at  once  to  the  captured  property,  ex- 

300 


amine  its  condition,  and  see  that  it  is  in 
a  place  of  safety;  to  take  possession 
of  all  ship's  papers,  if  the  prize  be  a 
vessel,  and  documents  of  every  kind 
relating  to  the  captured  property,  and 
seal  it  up,  by  securing  a  vessel's 
hatches,  or  in  any  other  way  if  the 
prize  be  other  property;  and  such  seals 
may  not  be  thereafter  broken  without 
the  special  order  of  the  court,  except 
in  case  of  fire  or  tempest,  or  of  abso- 
lute necessity  of  some  kind.  Prize 
Rules  3-6. 

If  the  Property  is  Perishable,  the  com- 
missioners must  so  report  to  the  court, 
in  order  to  secure  its  immediate  sale. 
Rev.  Sts.  sees.  4622,  4627;  Steamer 
Ella  Warlev,  Blatchf.  P.  C.  288;  The 
Cheshire,  B'latchf.  P.  C.  165. 

Taking  Possession  of  Ship's  Docu- 
ments.— This  taking  possession  of  all 
the  documents  of  a  ship  is  of  the  ut- 
most importance,  because  in  cases  of 
prize  all  the  evidence  to  convict  the 
vessel  is  drawn  primarily  from  the 
ship  herself  and  the  testimony  of  those 
on  board  of  her;  and  ordinarily  a  case 
of  prize  is  decided  only  upon  such 
proof,  unless  that  proof  shows  that 
the  liability  to  forfeiture  is  doubtful. 
The  SirWm.  Peel,  5  Wall.  (U.  S.)5i7; 
The  Georgia,  7  Wall.  (U.  S.)  32;  The 
Dos  Hermanos,  2  Wheat.  (U.  S.)  76; 
The  Pizarro,  2  Wheat.  (U.  S.)  227;  The 
Amiable  Isabella,  6  Wheat.  (U.  S.)  i; 
The  Luminary,  8  Wheat.  (U.  S.)  407; 
D.  C.  Prize  Rule  46. 

Duty  of  Master.— The  master  of  the 


Prize. 


ADMIRALTY. 


Filing  the  Libel.. 


4,  Examinations  in  Preparatorio. — Within  a  reasonable  time  after 
the  arrival  of  the  prize  in  port,  the  captor  must  produce  before 
the  commissioners  certain  of  the  persons  who  were  captured  with 
or  who  claim  the  prize.* 

When  the  witnesses  are  before  the  commissioners,  the  latter 
must  proceed  to  examine  them  on  the  standing  interrogatories.* 
This  examination  is  called  the  examination  in  preparatorio. 

Ketum  of  Answers. — Where  all  the  witnesses  have  answered  the 
entire  list  of  questions,  the  answers  to  the  interrogatories  are  re- 
turned to  the  office  of  the  clerk  of  the  District  Court,  under  the 
seal  of  the  commissioners,  together  with  all  the  ship's  documents.^ 

5.  Filing  the  Libel. — At  any  time  after  the  arrival  of  the  prize 
in  port,  and  before  or  during  the  examination  in  preparatorio,  a 
libel  in  rem  must  be  filed  against  the  prize.*  And  it  must  be  filed 
within  a  reasonable  time.' 


capturing  vessel,  or  some  one  who  was 
present  at  the  taking  of  the  prize, 
must  therefore  make  an  affidavit  that 
all  documents  taken  from  the  prize 
have  been  delivered  to  the  commis- 
sioners, or,  if  they  have  not,  the  rea- 
son why,  and  also  that  if  before  final 
condemnation  or  acquittal  any  other 
papers  are  found,  they  shall  also  be  de- 
livered to  the  commissioners. 

1.  Rev.  Sts.  sec.  4625.  Three  days. 
Prize  Rule  12.  Three  or  four  persons, 
if  there  be  so  many  of  the  company 
who  were  captured  with  or  who  claim 
the  property;  and  if  the  capture  be  a 
vessel,  the  master  and  mate,  or  super- 
cargo, must  always  be  two.     Id. 

Effect  of  Captor's  Neglect. — If  the  cap- 
tor has  not  given  notice  of  arrival  as 
above  stated  to  be  required,  or  does 
not  produce  the  captured  crew,  any 
claimant  of  the  prize  may  give  the 
notice  to  the  judge  or  commissioners, 
and  the  commissioners  must  at  once 
notify  the  captor  to  forthwith  produce 
the  documents  and  the  witnesses;  and 
if  the  captor  still  neglect  to  do  so,  the 
commissioners  shall  certify  the  facts 
to  the  judge,  who  will  take  proper  ac- 
tion thereon.      Prize  Rule  22. 

2.  Prize  Rule  12. 

History  and  Nature  of  Interrogatories. — 
These  interrogatories  are  very  old,  de- 
scending from  the  English  prize  courts, 
and  are  the  same  for  all  the  district 
courts  of  this  country;  they  consist  of 
a  minute  inquisition  into  the  relation 
of  the  witness  to  the  prize,  the  vessel, 
her  cargo  and  voyage,  and  the  circum- 
stances of  the  capture. 

Practice  concerning  Interrogatories. — 
No   other  interrogatories   besides  the 


standing  interrogatories  are  allowed  to- 
be  put  by  the  commissioners;  the  wit- 
ness may  not  see  the  interrogatories,, 
documents,  or  papers,  or  consult  with 
counsel  or  with  any  person  interested 
without  the  special  order  of  the 
court;  and  the  claimant  of  the  prize, 
has  no  right  to  object  to  questions, 
or  to  cross-examine,  though  he  may 
be  present  at  the  examination.  Rev. 
Sts.  sec.  4622;  Prize  Rule  13. 

3.  Prize  Rule  11. 

4.  Filing  the  Libel — Nature. — This  is 
the  real  beginning  of  the  proceeding, 
the  foregoing  being  regarded  but  as 
preliminary  thereto.  Prize  Rule  124. 
Betts  Pr.  72.  This  libel  is  filed  by  the 
United  States  attorney  for  the  district, 
in  the  name  of  the  United  States,  or 
in  his  own  name,  as  district  attorney, 
but  on  behalf  of  the  United  States,  in 
cases  where  the  capture  has  been 
made  by  a  government  vessel.  The 
Palmyra,  12  Wheat.  (U.  S.)  i;  Jecker 
V.  Montgomery,  18  How.  (U.  S.)  no. 
When  a  private  armed  vessel  has  made 
the  capture,  the  libel  is  filed  by  her 
master  or  owner,  through  his  private 
proctor,  on  behalf  of  himself,  his  of- 
ficers and  crew.  The  libel  is  in  the 
ordinary  form  of  an  admiralty  libel, 
setting  forth  the  jurisdiction  and  the 
facts  of  the  capture,  and  praying  for 
the  condemnation  and  forfeiture  of  the 
prize,  and  the  distribution  of  her  pro- 
ceeds. 

5.  Effect  of  Punctuality. — If  the  libel 
is  promptly  filed  by  the  captor,  a- 
monition  thereupon  issues,  returnable 
in  ten  days,  and  the  mesne  process 
under  the  libel  is  delivered  to  the  mar- 
shal and  executed  as  in  any  proceeding 


301 


True. 


ADMIRALTY, 


Further  Proofs. 


6.  Proceedings  on  Return  of  Process. — No  Answer  to  a  Libel  in  Prize  Need 

te  Filed,  but  the  owner  or  any  one  interested  in  the  captured  property 
may  appear  in  court  and   file  a  claim.* 

7.  Decree  by  Default. — Tlie  cause  is  placed  on  the  calendar  and 
comes  on  to  be  heard  in  regular  order,  on  the  libel  and  the  evi- 
dence taken  at  the  examination  in  preparatorio.  If  the  property 
be  not  claimed,  a  decree  of  condemnation  and  sale  is  entered  by 
default.* 

If,  however,  a  claim  be  interposed,  and  on  the  libel  and  the 
claim  and  the  answers  to  the  standing  interrogatories  the  court 
still  has  a  doubt  as  to  the  propriety  of  condemning  the  property  as 
prize,  it  will  order  further  proofs.^ 

8.  Further  Proofs. — Further  proofs  are,  as  the  name  indicates, 
additional  evidence  tending  to  acquit  or  condemn  the  vessel.* 
When  the  case  is  reheard  on  such  further  proofs,  the  decision  of 
the  court  is  final. 


in  forfeiture  on  the  instance  side  of 
the  court.      Prize  Rule  44. 

Effect  of  Tardiness. — If  this  proceed- 
ing is  not  begun  by  the  captor  within 
a  reasonable  time  after  the  arrival  of 
the  prize,  any  claimant  may  move  for 
a  monition  to  show  cause  why  such 
proceedings  should  not  be  commenced, 
<3r  may  institute  an  original  suit  for 
restitution,  and  in  either  case  the 
monition  shall  be  served  on  the  district 
attorney  and  the  Secretary  of  the 
Navy,  and  on  such  other  persons  as  the 
court  shall  order  to  be  notified.  Rev. 
Sts.  §  4625. 

Seasonable  Time.  —  Twenty  -  four 
hours  for  notification,  and  two  days 
for  filing  libel.     D.  C.  Prize  Rules  22, 

23- 

1.   Prize  Rule  42. 

Claim  Must  be  Accompanied  by  Affidavit 
— Pleading. — The  claim  filed  by  one  al- 
leging ownership  of  or  interest  in  the 
property  captured  must  be  accom- 
panied by  an  affidavit,  called  a  test 
nffidavit,  stating  the  facts  respecting 
the  claim,  and  its  truth,  and  how  the 
deponent  stands  connected  with  or  ac- 
quired knowledge  of  it.  Prize  Rule  42. 
These  are  all  the  pleadings  required  ; 
and  if  the  owner  does  not  even  claim, 
he  may  still  be  heard  in  court  on  the 
libel  and  the  proofs  afforded  by  the 
examination  in  preparatorio. 

Delivery  of  Prize  Property. — Prize 
property  cannot  be  delivered  to  the 
claimant  on  any  stipulation  or  secu- 
rity, except  when  there  has  been  a  de- 
cree of  restitution  from  which  the 
captors  have  appealed,  or    when  the 

302 


court  has  ordered  further  proofs;  or 
when  the  claimant  can  satisfy  the 
court  that  the  property  has  some  pe- 
culiar value  to  him  independent  of  its 
market  value.  Rev.  Sts.  §  4626;  The 
Diana,  2  Gall.  (U.  S.)  93. 

2.  Unless  Proof  of  Forfeiture  Clear,  Court 
Retains  Proceeds. — But  even  in  such 
cases,  unless  the  evidence  is  clear  that 
the  property  is  forfeited,  the  court  will 
direct  the  proceeds  to  remain  in  its 
registry  for  a  year  and  a  day,  to  await 
a  possible  claimant.  None  appearing 
within  that  time,  a  decree  of  distribu- 
tion is  entered  as  of  course. 

3.  The  Sally  Magee,  3  Wall.  (U.  S.) 
451. 

4.  Additional  Plea  or  Answer  —  Evi- 
dence.—  Further  proofs  are  usually 
offered  by  claimant.  And  the  claimant 
may  now  file  a  plea  or  answer,  addi- 
tional to  his  claim,  setting  up  any  de- 
fense which  may  relieve  the  vessel 
from  condemnation,  and  may  obtain 
the  release  of  his  vessel  on  giving  se- 
curity, and  may  examine  witnesses  to 
prove  his  allegations.  And  such  evi- 
dence should  be  taken  by  depositions. 
Betts  Pr.  77;  The  London  Packet,  2 
Wheat.  (U.  S.)  371. 

But  no  commission  to  take  testimony 
can  be  issued  to  an  enemy's  country. 
On  the  other  hand,  the  captor  may  be 
examined  as  a  witness  and  may  invoke 
further  proof  in  the  form  of  documents 
from  other  vessels,  first  obtaining  the 
mandate  of  the  court  to  do  so,  on  af- 
fidavit specifying  the  materiality  of 
such  papers.  Rule  30  ;  The  Anne,  3 
Wheat.  (U.  S.)  435. 


Prize. 


ADMIRALTY. 


Damage*. 


9.  Distribution  of  Proceeds. — The  proceeds  of  a  prize  captured 
by  a  vessel  of  the  navy  belong  to  the  captors,  when  the  prize  is 
of  superior  or  equal  force  to  the  vessel  making  the  capture;  when 
of  inferior  force,  one  half  is  decreed  to  the  United  States  and  the 
other  half  to  the  captors.* 

After  decree  of  condemnation  the  court  will  consider  the  claims 
of  all  vessels  entitled  to  participate  in  the  proceeds,  and  will  hear 
evidence  and  make  the  proper  decree  of  distribution.'^ 

10.  Costs  and  Expenses. — All  costs  and  all  expenses  incident  to 
the  bringing  in,  custody,  preservation,  sale,  or  other  disposal  of 
the  prize  property,  when  allowed  by  the  court,  shall  be  a  charge 
upon  such  property,  and  shall  be  paid  out  of  the  proceeds  thereof, 
unless  the  court  shall  decree  restitution  free  from  such  charge.* 

11.  Damages. — Damages  may  be  awarded  to  the  owner  of  the 
prize  when  the  seizure  is  declared  to  be  without  probable  cause."* 
And  they  may  be  awarded  against  the  United  States. 


1.  Capture  by  Privateers  or  under 
Letters  of  Marque. — In  cases  of  capture 
by  privateers  or  under  letters  of  marque 
the  whole  prize  belongs  to  the  captors, 
unless  it  shall  be  otherwise  provided 
in  the  commissions  issued  to  such  ves- 
sels.    Rev.  Sts.  §  4630. 

2.  Method  of  Distribution.  —  The 
method  of  distribution  is  governed  by 
statute.     Rev.    Sts.    sees.    4631,   4632, 

4633- 

Contents  of  Decree. — The  decree  must 
recite  the  amount  of  the  gross  proceeds 
of  the  prize,  subject  to  the  order  of  the 
court,  the  amount  deducted  therefrom 
for  costs  and  expenses,  and  the 
amount  remaining  for  distribution,  and 
whether  the  whole  of  such  residue  is 
to  go  to  the  captors  or  one  half  to  the 
captors  and  one  half  to  the  United 
States.     Rev.  Sts.  sec.  4634. 

Appeal. — And  even  if  there  be  an  ap- 
peal from  the  decree  of  condemnation, 
the  District  Court  may  still  proceed  to 
make  the  decree  of  distribution  so  far 
as  to  determine  what  share  shall  go  to 
the  captors,  and  what  vessels  are  en- 
titled to  participate  therein.  Rev.  Sts. 
sec.  4637. 

3.  Rev.  Sts.  sec  4639. 
Unjustifiable  Capture. — Costs  are  also 

awarded  against  the  captor  when  it  ap- 
pears that  the  seizure  was  unjustifi- 
able. And  such  costs  can  be  awarded 
against  the  United  States  when  an  un- 
justifiable capture  has  been  made  by  a 
naval  vessel.  But  in  all  such  cases  the 
unjustifiable  nature  of  the  seizure  must 
plainly  appear.  When  there  was  prob- 
able cause  for  the  capture,  costs  will 


not  be  awarded  against  the  captor, 
though  the  decree  restore  the  property 
to  the  owner.  The  Thompson,  3  Wall. 
(U.  S.)  155  ;  The  Marianna  Flora,  il 
Wheat.  (U.  S.)  i. 

Kestitution  on  Rightful  Seizure.  — 
Where  the  seizure  was  rightful,  and  a 
decree  of  restitution  was  granted  on 
causes  subsequently  arising,  the  dis- 
bursements were  allowed  against  the 
vessel  captured,  and  not  against  the 
United  States.  The  Ambrose  Light, 
25  Fed.  Rep.  408. 

Compensation  of  District  Attorney  and 
Prize  Commissioners. — The  compensa- 
tion of  the  district  attorney  and  of  the 
prize  commissioners,  except  the  naval 
officer,  are  to  be  paid  as  costs  in  the 
cause.     Rev.  Sts.  sec.  4646. 

Security  for  Costs. — And  the  court 
may  require  any  party,  at  any  stage  of 
the  cause,  and  on  claiming  an  appeal,  to 
give  security  for  costs.  Rev.  Sts.  sec. 
4638. 

4.  Probable  Cause  — As  to  meaning  of 
"  probable  cause,"  see  Locke  v.  U.  S., 
7  Cranch  (U.  S.)  339. 

Recovery  and  Award  of  Damages. — 
Such  damages  may  be  recovered  by 
the  claimant  on  the  failure  of  an  ordi- 
nary prize  suit  against  the  captured 
property,  or  may  be  awarded  in  an  in- 
dependent suit  brought  against  the 
captor  or  the  capturing  vessel  for  the 
purpose  of  recovering  such  damages. 
The  Anna  Maria,  2  Wheat.  (U.  S.) 
327- 

Amount  of  Damages. — The  amount  of 
the  damages  to  be  awarded  is  ascer- 
tained by  a  reference  to  commissioners 


k 


3°: 


Prize. 


ADMIRALTY. 


Military  Salvage. 


12.  Appeals. — An  appeal  in  all  prize  causes  may  be  taken  di- 
rectly to  the  Supreme  Court.* 

13.  Military  Salvage  on  Recaptures. — Cases  of  recapture  are  cases 
of  prize,  and  American  property  recaptured  before  it  has  been 
condemned  as  prize  by  a  foreign  tribunal  must  be  restored  to  its 
owners.* 


appointed   by    the    court.     The    Anna 
Maria,  2  Wheat.  (U.  S.)  327. 

1.  Act  March  3,  1891,  sees.  5-26, 
Sts.  at  L.  p.  826. 

Practice  on  Appeal — Such  appeal  must 
be  made  within  thirty  days  after  the 
rendering  of  the  decree  appealed  from, 
unless  the  court  previously  extends  the 
time,  for  cause  shown  in  the  particular 
case  ;  and  the  Supreme  Court  may,  if 
in  its  judgment  the  purposes  of  justice 
require  it,  allow  an  appeal  in  any  prize 
cause,  or  allow  any  amendment,  either 
in  form  or  substance,  if  it  appears 
that  any  notice  of  appeal  or  of  intention 
to  appeal  was  filed  with  the  cleric  of 
the  District  Court  within  thirty  days 
next  after  the  rendition  of  the  final  de- 
cree therein.  Rev.  Sts.  sees.  1009, 
4636. 

2.  Procedure. — The  procedure  is  the 
same  as  in  ordinary  cases  of  prize,  but 
it  must  affirmatively  appear  to  the 
court  that  the  property  has  not  been 
condemned  abroad  as  prize  before  its 
recapture.  Schooner  Adeline,  9  Cranch 
(U.  S.)  244;  The  Star,  3  Wheat.  (U.  S.) 
78;  The  Ann  Green,  i  Gall.  (U.  S.)  274. 

Restoration  of  Recaptured  Property. — 
If  the  recaptured  property  belonged 
to  the    United    States,    it    is   restored 


to  it,  and  the  treasury  pays  the 
salvage,  costs,  and  expenses.  The 
salvage  takes  the  place  of  the  prize 
money  in  ordinary  prize  cases.  Pri- 
vate property  is  restored  to  its  own- 
ers, upon  their  claiming  and  making 
the  same  payment.  When  the  recap- 
tured property  belongs  to  any  person 
residing  in  a  foreign  country  friendly 
to  the  United  States,  and  by  the  laws 
of  such  country  the  property  of  a 
citizen  of  the  United  States  would  be 
restored  under  like  circumstances  of 
recapture,  the  prize  is  to  be  restored 
to  its  owner,  upon  his  claim,  on  such 
terms  as  by  the  law  or  usage  of  such 
foreign  government  would  be  required 
of  a  citizen  of  the  United  States  under 
like  circumstances  of  recapture  ;  or, 
when  no  such  law  or  usage  is  known, 
it  should  be  restored  upon  the  pay- 
ment of  such  salvage,  costs,  and  ex- 
penses as  the  court  may  order.  Rev. 
Sts.  sec.  4652. 

Salvage  Awarded  to  Captors. — The 
whole  amount  awarded  as  salvage 
shall  be  decreed  to  the  captors,  and  no 
part  to  the  United  States,  and  shall  be 
distributed  as  in  the  case  of  proceeds  of 
property  condemned  as  prize.  Rev. 
Sts.  sec.  4652. 


304 


ADULTERY    (AS   A   CRIME). 

I.  The  Indictment  Geneeally,  305. 

H  Allegations  of  Time,  306. 
m.  Name  of  Co-ceiminal,  306. 
IV.  Allegations  of  Knowledge,  307. 

V.  Allegations  of  Maeeiage,  307. 

1.  Only  One  Married,  -yy], 

2.  Parties  Not  Husband  and  Wife,  307. 

3.  Name  of  Defendant's  Wife,  307, 

4.  Name  of  Defendant s  Husband,  307. 

VI.  Joinder  of  Counts,  307- 
VII.  Joinder  of  Defendants,  308. 

VIII.    iNSTRdCTIONS,  308. 
As  to  Adultery  in  Divorce  Law,  see  DIVORCE. 
As  to  Civil  Action  for  Adultery,  see  CRIMINAL  CONVERSATION. 

I.  The  Indictment  Generally — Essential  Allegations. — In  prosecu- 
tions for  the  crime  of  adultery  all  the  elements  which  constitute 
the  crime   must  be  charged  with  certainty  in  the  indictment.* 

The  Form. — It  is  sufficient  if  the  allegations  conform  substantially 
to  the  statute  defining  the  crime  ;  but  the  precise  words  of  the 
statute  need  not  be  used.* 

1.  Edwards  f.  State,  10  Tex.  App.  25.  son,"  the  words   "without  living  to- 

2.  Lord  V.  State,  17  Neb.  526;  State  gether"  are  not  elements  in  the  of- 
V.  Tally,  74  N.  Car.  322.  See  State  v.  fense  of  adultery,  and  they  may  be 
Miller,  60  Vt.  90,  where  the  exact  omitted  from  the  indictment.  State 
words  of   the   statute  were  used   and  v.  Carroll,  30  S.  Car.  85. 

yet  the  indictment  was  held  bad.  Good  Indictment. — The  following  form 

Using   Words    "  Commit   Adultery." —  of  indictment  was  held  good  :  the  in- 

It  has  been  held  that  the  only  essen-  dictment  alleged  that  the  respondent, 

tial  allegation  is  the  one  that  the  de-  on,  etc.,  at,  etc.,  then  and  there  being 

fendant  did   "commit   adultery."     If  a   married    man    and    having   a   wife 

this    is    used,    no    other  allegation  is  then  living,  did  carnally  know  C,  she 

necessary,  as  this  implies  the  offense  then  and  there  being  a  married  woman 

without    the  allegation   of   any  other  and  the  wife  of  L. ,  of,  etc.,  who  was 

fact.      State    v.    Hinton,    6    Ala.    864  ;  then  living,  and  not  the  wife  of  the 

Helfrick   v.   Com.,    33   Pa.   St.   68,    75  respondent,  and  with  her  did  then  and 

Am.  Dec.  579.  there  commit  the  crime  of  adultery  by 

Words  in  a  Statute  not  an  Element. —  carnally  knowing  her,  etc.     State  v. 

Under  a  statute  which  prohibits  the  Bridgman,    49  Vt.   202,   24  Am.   Rep. 

"  habitual    carnal     intercourse    with  124. 

each  other,   without  living  together,  Pennsylvania. — A  count  for  adultery 

of  a  man  and  woman,  when  either  is  drawn  according  to  established  prece- 

lawfully  married  to  some  other  per-  dents  recognized  by  the  courts  prior 

I  Encyc.  PI.  &  Pr.— 20.  305 


£  negations  of  Time. 


ADULTERY. 


Name  of  Co-Criminal. 


Using  Word  "Adultery." — The  indictment  need  not  contain  the 
name  of  the  offense.  The  term  "adultery"  is  not  material;  a 
statement  of  the  facts  constituting  the  offence  is  sufficient.* 

Open  and  Notorious. — An  averment  that  the  adultery  was  open  and 
notorious  should  be  made,  especially  where  this  is  an  element  of 
the  crime  as  defined  by  statute.* 

Surplusage. — The  allegation  of  other  acts  of  adultery  than  the 
one  proved  may  be  rejected  as  surplusage.^ 

Party  Commencing  Prosecution. — Where  a  statute  provides  that  the 
prosecution  must  be  commenced  by  the  husband  or  wife  of  one 
of  the  guilty  parties,  the  indictment  need  not  allege  that  it  was 
so  commenced."* 

II.  Allegations  of  Time. — In  an  indictment  for  adultery  every 
material  fact  necessary  to  constitute  the  offense  charged  must  be 
set  forth  with  certainty  as  to  time.* 

Between  Different  Periods.— It  may  be  charged  that  the  offense  was 
committed  between  certain  points  of  time.* 

III.  Name  of  Co-Criminal.— The  name  of  the  person  with 
whom  the  defendant  committed  adultery,  if  known',  is  material 
and  must  be  alleged  truly.** 


to  the  crimes  acts  will  be  adjudged 
sufl5cient,  though  not  pursuing  the 
language  of  %  36,  act  March  31,  i860, 
Pa.  L.  392.    Gorman  v.  Com.,  124  Pa. 

St.  536. 

1.  State  V.  Baldy,  17  Iowa  39. 

In  an  indictment  the  words  "carnal 
knowledge  "  imply  sexual  bodily  con- 
nection.    Com.   V.   Squires,  97   Mass. 

59- 

2.  State  V.  Johnson,  69  Ind.  85. 
Living   Together.  — Some   authorities 

hold  that  the  indictment  must  show 
that  the  guilty  parties  lived  together. 
State  V.  Gartrell,  14  Ind.  280  ;  McGuire 
V.  State,  37  Ala.  160  ;  State  v.  Dunn, 
26  Ark.  34.  This  last  case  also  holds 
that  there  should  be  an  allegation  that 
the  parties  were  of  different  sexes. 

3.  State  V.  Briggs,  68  Iowa  416. 
Discretion    of   Court. — It     is    wholl-y 

within  the  discretion  of  the  trial  court 
to  allow  further  specifications  of  the 
crime  than  those  contained  in  the  in- 
dictment. State  V.  Bridgman,  49  Vt. 
202,  24  Am.  Rep.  124. 

4.  State  V.  Maas,  83  Iowa  468  ;  State 
v.  Stout,  71  Iowa  343  ;  State  v.  Mahon, 
Si  Iowa  121. 

Sufficient  Commencement. — The  prose- 
cution may  be  sufficiently  commenced 
either  by  making  complaint  before  a 
grand  jury  or  by  filing  an  information 
before  a  magistrate.  State  v.  Briggs, 
68    Iowa   416  ;   State  v.   Donovan,   61 


Iowa  278  ;  State  v.  Wilson,  22  Iowa 
364 ;  State  v.  Dingee,  17  Iowa  232  ; 
State  V.  Baldy,  17  Iowa  39. 

Instruction  by  Court. — The  court  need 
not  instruct  the  jury  as  to  the  neces- 
sity of  the  prosecution  being  com- 
menced by  the  husband  or  wife.  State 
V.  Hazen,  39  Iowa  648. 

5.  State  V.  Thurstin,  35  Me.  205,  58 
Am.  Dec.  695. 

Amendment. — Where  an  indictment 
charged  the  offence  —  adultery — to 
have  been  committed  in  the  year  1800, 
it  was  held  that  the  state  could  not 
amend  by  inserting  the  words  "  sixty- 
eight."  Com.  V.  Seymour,  2  Brew. 
(Pa.)  567. 

6.  State  V.  Way,  5  Neb.  283.  And 
the  indictment  may  lay  a  broader  pe- 
riod of  intercourse  than  will  be  proved. 
Bailey  v.  State,  36  Neb.  809. 

Continuando. — Living  together  in 
adultery  need  not  be  charged  with  a 
continuando,  but  as  on  a  single  desig- 
nated day.  Swancoat  v.  State,  4  Tex. 
App.  105. 

7.  Name  Unknown. — But  if  the  name 
is  unknown  to  the  grand  jurors,  an  al- 
legation that  the  name  is  unknown  is 
sufficient.  Com.  v.  Tompson,  2  Cush. 
(Mass.)  551. 

8.  State  V.  Vittum,  9  N.  H.  519,  where 
the  indictment  alleged  that  the  accused 
committed  adultery  with  one  L.  W.,  it 
was  held  that  evidence  could  not  be  in- 


306 


Knowledge. 


ADULTERY. 


Joinder  of  Counts. 


IV.  Allegations  OF  Knowledge.— It  need  not  be  averred  that 
the  defendant  had  guilty  knowledge  of  his  act.  An  allegation 
that  the  defendant  knew  the  person  with  whom  he  or  she  com- 
mitted adultery  to  be  married  is  not  requisite.* 

V.  Allegations  of  Maeriage — 1,  Only  One  Married. — The  crime  of 
adultery  is  well  laid  in  an  indictment,  if  at  the  time  of  the  offense 
only  one  of  the  parties  is  alleged  to  have  been  married.'-* 

2.  Parties  Not  Husband  and  Wife.  — The  allegation  that  the  parties 
committing  the  adultery  are  not  man  and  wife  is  a  material  one.' 

Manner  of  Making  Averment.— But  any  form  of  words  stating  that 
the  woman  or  man  was  the  wife  or  husband  of  some  person  other 
than  the  accused  is  sufficient.* 

3.  Name  of  Defendant's  Wife. — The  allegation  that  the  de- 
fendant is  married  is  sufficient ;  the  name  of  his  wife  need  not  be 
given  in  the  indictment.^ 

4.  Name  of  Defendant's  Husband.^— But  it  is  essential  when  a 
married  woman  is  prosecuted  for  adultery  that  the  indictment  set 
forth  the  name  of  her  husband.* 

VI.  JoiNDEB  OF  Counts. — The  indictment  may  contain  several 
counts.'' 


troduced  to  show  adultery  with  L.  W. 
junior. 

1.  Com.  V.  Elwell,  2  Met.  (Mass.)  190; 
Fox  V.  State,  3  Tex.  App.  329,  30  Am. 
Rep.  144. 

2.  State  V.  Hutchinson,  36  Me.  261  ; 
State  V.  Thurstin,  35  Me.  205  ;  58  Am. 
Dec.  695  ;  Clay  v.  State,  3  Tex.  App. 
499  ;  Com.  V.  Reardon,  6  Cush.  (Mass.) 
78  ;  Parks  v.  State,  3  Tex.  App.  337. 
The  above  authorities  are  probably 
constructions  of  statutes  making  it 
adultery  in  both  parties  when  either  is 
married  ;  they  are  not  applicable  when 
it  is  necessary  that  the  defendant 
should  be  married  in  order  to  consti- 
tute the  crime. 

Insufficient  Allegation. — Where  an  in- 
dictment which  charged  that  the  de- 
fendant committed  the  crime  of  adul- 
tery with  E.  W.,  the  wife  of  S.  H.  W., 
she  being  a  married  woman  and  the 
lawful  wife  of  said  S.  H.  W. ,  it  was  held 
that  the  indictment  did  not  sufficiently 
allege  that  she  was  a  married  woman 
when  the  offense  was  committed.  State 
V.  Thurstin,  35  Me.  205,  58  Am.  Dec. 

695- 

3.  Hopper  v.  State,  19  Ark.  143 ; 
Tucker  v.  State,  35  Tex.  113  ;  State  v. 
Clinch,  8  Iowa  400. 

4.  Moore  v.  Com.,  6  Met.  (Mass.)  244, 
39  Am.  Dec.  724;  Com.  v.  Reardon, 
6  Cush.  (Mass.)  78.  See  Com.  v.  Cor- 
son, 4  Pa.  L.  J.  271. 


Insufficient  Allegation. — An  indict- 
ment which  alleges  that  P.  M.  on  a 
certain  day  and  at  a  certain  place  "  did 
commit  the  crime  of  adultery  with  one 
M.  S.  by  then  and  there  having  carnal 
knowledge  of  the  body  of  said  S.,  she, 
the  said  S.,  then  and  there  being  a 
married  woman  and  having  a  husband 
alive,"  is  not  sufficient  to  support  a 
conviction.  These  allegations  do  not 
show  with  certainty  that  M.  S.  was 
not  the  wife  of  P.  M.  Moore  v.  Com., 
6  Met.  (Mass.)  243,  39  Am.  Dec.  724. 

5.  Davis  V.  Com.  (Pa.,  1886),  7  Atl. 
Rep.  194;  Gorman  v.  Com.,  124  Pa.  St. 
536,  holding  that  such  omission  is  but 
a  matter  of  form  to  be  set  up  before 
the  jury  is  sworn. 

6.  Com.  z/.  Corson,  2  Pars.  Eq.  Cas. 
(Pa.)  475.  But  see  Collum  v.  State, 
10  Tex.  App.  709,  holding  that  the 
husband's  name  may  be  treated  as 
surplusage. 

7.  Gorman  v.  Com.,  124  Pa.  St.  536; 
State  V.  Marvin,  35  N.  H.  22. 

Bastardy. —  A  charge  of  bastardy 
may  be  united  with  that  of  adultery  in 
the  same  count.  Gorman  v.  Com.,  124 
Pa.  St.  536. 

Several  Specifications. — An  indictment 
which  contains  several  specifications, 
and  yet  charges  substantially  but  one 
offense,  is  not  open  to  the  objection 
that  it  charges  several  offenses  in  the 
same  count,  if  such  adultery  was  the 


307 


Joinder  of  Defendants. 


ADULTERY. 


Instructions. 


Vn.  JoiNDEE  OF  Defendants.— The  parties  may  be  jointly  in- 
dicted.* 

Better  Practice.— But  the  better  practice  is  to  indict  the  parties 
separately.''* 

Vm.  DESTRUCTIONS. — The  court  need  not  instruct  the  jury  as  to 
the  meaning  of  common  words  in  a  statute  which  defines  adultery. 
The  jury  are  presumed  to  know  the  meaning  of  familiar  phrases.' 

same,  defined  by  the  same  section  of 
the  statute,  and  punishable  in  the  same 
manner.  State  v.  Clawson,  30  Mo. 
App.  139. 

1.  State  V.  Bartlett,  53  Me.  446; 
Com.  V.  Thompson,  99  Mass.  444; 
Com.  V.  Elwell,  2  Met.  (Mass.)  190; 
Frost  V.  Com.,  9  B.  Mon.  (Ky.)  362. 

Separate  Trial. — When  jointly  in- 
dicted, one  may  be  tried  alone.  State 
V.  Carroll,  30  S.  Car.  85. 

2.  State  V.  Dingee,  17  Iowa  232; 
State  V.  Wilson,  22  Iowa  364. 

3.  "Habitual  Carnal  Intercourse." — 
Where  the  statute  makes  "  habitual 
carnal  intercourse "  adultery,  the 
court  need  not  explain  to  the  jury  the 
meaning  of  such  phrase.  Collum  v. 
State,  10  Tex.  App.  709.  See  State  v. 
Carroll,  30  S.  Car.  85,  where  it  was 
held  that  the  court  might  leave  it  to 
the  jury  to  say  how  frequent  the  act 
must  be  to  make  it  "habitual." 

Change  of  Law. — The  penal  code  of  a 
state  may  materially  change  the  law 
of  adultery;  and  the  alterations  may 
be  such  as  to  necessite  a  correspond- 
ing change  in  the  instructions  to 
juries.  "  The  change  in  the  law  must 
be  borne  in  mind  in  trials  for  this  of- 
fense where,  as  in  the  present  case, 
the  offense  is  alleged  to  have  been 
committed  since  the  last  revision  of 
the  Code  went  into  operation.  Espe- 
cially should  these  changes  be  care- 
fully observed  in  the  preparation  of 
indictments  or  informations,  and  in  the 
charge  of  the  court  as  to  what  the  proof 


must  show  in  order  to  warrant  a  con- 
viction." Per  Winkler,  J.,  in  Collum 
V.  State,  10  Tex.  App.  708,  711. 

The  Penal  Code  of  Texas  has  so 
changed  the  law  that  adultery  may 
now  be  committed  in  either  of  two 
modes:  (i)  by  the  living  together  and 
having  carnal  intercourse  with  each 
other  of  a  man  and  a  woman  of  whom 
either  is  married  to  some  other  person ; 
or  (2)  by  "habitual  carnal  inter- 
course "  of  such  persons  with  each 
other,  without  living  together.  Col- 
lum V.  State,  10  Tex.  App.  708. 

"  From  the  language  employed  we 
think  it  manifest  that  more  is  required 
to  be  alleged,  and  consequently 
further  evidence  is  required  by  the  re- 
vision than  by  the  former  law  on  the 
subject,  and  hence  we  conclude  that 
adjudications  under  the  old  law  cannot 
furnish  a  safe  and  sufficient  guide  in 
the  administration  of  the  present  law, 
so  far  as  the  changes  are  concerned; 
and  especially  must  this  be  the  case 
when  the  change  as  to  the  proof  is  so 
manifest."  Per  Winkler,  J.,  in  Collum 
V.  State,  ID  Tex.  App.  708. 

Under  a  statute  which  prohibits 
"the  habitual  carnal  intercourse  with 
each  other,  without  living  together,  of 
a  man  and  woman,  when  either  is 
lawfully  married  to  some  other  per- 
son," it  was  held  that  the  carnal  inter- 
course must  be  more  than  occasional, 
and  that  the  trial  judge  might  properly 
so  instruct  the  jury.  State  v.  Carroll, 
30  S.  Car.  85. 


308 


AFFIDAVITS. 

By  W.  Calvin  Chesnut. 
iSttaXso  AFFIRMATIONS;  OATHS;    VERIFICATION.) 

I.  Definition,  309. 
II.  Sufficiency,  310. 

I.  Formal  Requisites,  311. 

a.  Title,  311. 

b.  Venue,  313. 

c.  Signature,  315. 

d.  Jurat,  316. 

e.  Authentication,  317. 
/.  Date,  320. 

2.  Substance,  320. 

a.  In  General,  320. 

b.  Parties,  323. 

c.  Language,  323. 
</.   Oath,  324. 

ni.  Who  May  Make,  325. 

IV.  Who  Authorized  to  Take,  328. 

1.  Within  the  State,  328. 

2.  Foreign  Affidavits,  331. 

V.  "Use  of  Affidavits,  333. 
VI.  Amendment,  336. 

Affidavits   in  Particular   Proceedings,   see   various    titles,   as  ATTACH- 
MENT, CHANGE  of  VENUE,  etc. 
Affidavits  of  Merits  or  Defense,  see  that  title. 

I.  Definition. — An  affidavit*  is  a  voluntary*  ex  parte^  state- 

1.   "  A  statement  or  declaration  re-  2.  A  court  has  no  power  to  compel 

duced  to  writing  and  sworn  or  affirmed  the  making  of  an  aflSdavit  respecting 

to  before  some  officer  who  has  author-  a  motion.     Bacon  v.   Magee,  7   Cow. 

ity  to  administer  an  oath."     i  Bouvier  (N.    Y.)   515;    Dudley  v.   McCord,    65 

Law  Diet.  Iowa  671. 

Robertson,  J.:  "The  description  in  But  in  Robb  v.  McDonald,  29  Iowa 
Bacon's  Abridgment  (tit.  Affidavits)  of  330,  4  Am.  Rep.  211,  and  State  v.  Sea- 
an  affidavit  will  hardly  stand  any  crit-  ton,  61  Iowa  563,  it  was  held  that  one 
ical  examination  as  a  definition.  It  is  subpcenaed  to  appear  before  a  justice 
there  called  an  oath  in  writing  admin-  of  the  peace  to  make  affidavit  as  re- 
istered;  how  that  can  be  when  the  quired  under  sections  3692  and  3693  of 
form  is  presented  orally  is  not  very  the  Iowa  Code,  must  obey  the  sub- 
clear."  Soulew.  Chase,  I  Robt.  (N.  Y.)  poena,  notwithstanding  that  the  desired 
222;  I  Abb.  Pr.  N.  S.  (N.  Y.)  48.  affidavit  may  be  of  no  use  as  evidence 

"  An  affidavit  is  a  written  declara-  in  the  case  in  aid  of  which  it  is  sought; 

tion  under  oath  made  without  notice  and  for  refusing  obedience  he  may  be 

to  the  adverse  party."     Kansas  Code  committed  for  contempt. 

Civ.  Proc.  1881,  §  341.  3.    Compared      with      Deposition. — It 

309 


Sufficiency. 


AFFIDA  FITS. 


Sufficiency. 


ment,  formally  reduced   to  writing,   and    sworn   to  or   affirmed 
before  some  officer  authorized  by  law  to  take  it.* 

n.  Sufficiency. — The  true  test  of  the  sufficiency  of  a  paper 
as  an  affidavit  is  the  possibility  of  assigning  perjury  upon  it  if 
false.*  To  meet  this  test  it  must  be  sufficient  both  in  form  and 
in  substance.' 


seems  that  the  difference  between  a 
deposition  and  an  affidavit  is  that  the 
former  is  made  after  notice  and  the 
latter  without  notice.  Atchison  v. 
Bartholow,  4  Kan.  124;  State  v.  Hen- 
ning  (S.   Dak.,  1893),  54  N.  W.   Rep. 

536. 

"  A  deposition  is  evidence  given 
under  interrogatories,  oral  or  written, 
and  usually  written  down  by  an  official 
person;  while  an  affidavit  is  the  mere 
voluntary  act  of  the  party  making  the 
oath,  and  may  be,  and  generally  is, 
taken  without  the  cognizance  of  the 
one  against  whom  it  is  to  be  used." 
Stimpson  v.  Brooks,  3  Blatchf.  (U.  S.) 
456. 

1.  Affidavits  must  always  be  in  writ- 
ing.    Windley  v.  Bradway,  77  N.  Car. 

333- 

Compared  with  Oath.  —  A  defective 
affidavit  may  be  good  as  an  oath  (or 
affirmation)  to  show  what  facts  were 
testified  to,  for  every  affidavit  includes 
an  oath  (or  affirmation).  Burns  v. 
Doyle,  28  Wis.  460. 

Where  a  statute  requires  an  oath,  it 
will  be  complied  with  if  the  matter  is 
reduced  to  the  form  of  an  affidavit, 
signed  and  sworn  to  by  the  proper 
officer.  Edwards  v.  McKay,  73  111. 
570. 

But  affidavits  are  very  different 
from  official  and  promissory  oaths, 
which  are  not  at  all  in  the  nature  of 
evidence.  State  v.  Green,  15  N.  J.  L. 
88. 

Nature. — Brewer,  J.:  "An  affidavit 
is  a  complete  thing.  Like  a  deed,  it 
speaks  for  itself,  and  shows  by  its 
caption,  its  signature,  and  jurat  that 
the  commencement  and  the  close  are 
there;  and  an  admission  that  it  is  cor- 
rect is  an  admission  that  the  entire  af- 
fidavit is  preserved."  Dewey  v.  Lins- 
cott,  20  Kan.  684. 

Pleading. — An  affidavit  is  not  a  plead- 
ing.    Johnson  v.  Laughlin,  7  Kan.  359. 

Complaint. — Under  the  extradition 
laws  of  Congress  the  term  "  com- 
plaint "  is  not  necessarily  or  presump- 
tively equivalent  to  "  affidavit."  State 
V.  Richardson,  34  Minn.  115. 


2.  Hyde  v.  Adams,  80  Ala.  iii;  City 
Nat.  Bank  v.  Flippen,  66  Tex.  610; 
English  V.  Wall,  12  Rob.  (La.)  132; 
Neal  V.  Gordon,  60  Ga.  112;  Harris  v. 
Heberton,  5  How.  (Miss.)  575;  Mays 
V.  Lewis,  4  Tex.  38;  People  v.  Becker, 
20  N.  Y.  354;  Gaddis  v.  Durashy,  13 
N.  J.  L.  324;  Peers  v.  Carter,  4  Litt. 
(Ky.)  268. 

Language  of  Statute. — Lyon,  J.: 
"  The  affidavit  is  in  the  language  of 
the  statute.  This  is  sometimes  suffi- 
cient, but  not  so  in  all  cases.  We 
must  look  for  some  other  test  by  which 
to  determine  its  sufficiency.  The  pro- 
ceeding by  attachment  is  very  sum- 
mary and  violent.  The  purpose  of  the 
law,  which  requires  that  a  certain  affi- 
davit be  made  before  the  writ  can  is- 
sue, is  to  protect  the  alleged  debtor 
from  so  severe  a  process,  unless  the 
creditor,  or  some  person  in  his  behalf, 
under  the  responsibilities  of  an  oath, 
shall  assert  the  existence  of  certain 
facts  which  the  law  adjudges  good 
grounds  for  issuing  the  writ.  This 
requirement  of  the  law  would  afford 
the  debtor  no  protection  whatever  un- 
less the  affiant  is  liable  to  be  punished 
criminally  if  he  wilfully  swears  falsely 
in  such  affidavit.  Hence,  although  the 
affidavit  be  in  the  very  words  of  the 
statute,  it  is  not  sufficient  unless  per- 
jury can  be  assigned  upon  it.  Here, 
then,  we  find  the  true  test  of  the  suffi- 
ciency of  an  affidavit  which  employs 
the  language  of  the  statute."  Miller 
V.  Munson,  34  Wis.  579,  17  Am.  Rep. 
461.  See  also  Quarles  v.  Robinson,  2 
Pin.  (Wis.)  97,  note  p.  99,  i  Chand. 
(Wis.)  29,  note  p.  32;  Lathrop  v.  Sny- 
der, 16  Wis.  293;  Oliver  v.  Town,  28 
Wis.  329;  Mairet  v.  Marriner,  34  Wis. 
582. 

3.  State  V.  Henning  (S.  Dak.,  1893), 
54  N.  W.  Rep.  536. 

Perjury  Assignable  though  Affidavit 
Formally  Defective. — But  it  seems  that 
in  some  instances  perjury  may  be  as- 
signed though  the  affidavit  is  so  form- 
ally defective  as  to  preclude  its  being 
read  in  evidence.  Bell  v.  Bament,  8  M  & 
W.  316;  Rex  V.  Hailey,  i  C.  &  P.  258, 


310 


Suf^ciency. 


AFFIDA  VJTS. 


Formal  Bequisites. 


1.  Formal  Requisites. — The  formal  requisites  of  an  affidavit  are 
the  {a)  title,  {b)  venue,  (c)  signature,  {a)  jurat,  and  {e)  authen- 
tication.^ 

a.  Title. — An  affidavit  should  generally  be  entitled  in  the 
court  and  cause  in  which  it  is  filed,*  but,  as  the  purpose  of  the 


II  E.  C.  L.   383;  Reg.   V.   Christian,  i 
C.  &  M.  388,  41  E.  C.  L.  214. 

1.  Beebe  v.  Morrell,  76  Mich.  114; 
Am.  &  Eng.  Ency.  Law,  tit.  Affi- 
davits. 

2.  Higham  v.  Hayes,  2  How.  Pr. 
(N.  Y. )  27;  Baxter  v.  Seaman,  i  How. 
Pr.  (N.  Y.)  51;  Parent  v.  Kellogg,  i 
How.  Pr.  (N.  Y.  C.  PI.)  70;  Dickenson 
V.  Gilliland.  I  Cow.  (N.  Y.)  481;  Vin- 
son V.  Norfolk,  etc.,  R.  Co.,  37  W.  Va. 
598.  Cole,  J.:  "  The  general  rule  in 
regard  to  the  entitling  of  affidavits  un- 
doubtedly is  that  they  should  be  regu- 
larly entitled  in  the  court  in  which  they 
are  made  or  intended  to  be  used.  2 
Archb.  Pr.  899;  3  Chit.  Pr.  538;  2 
Burrl.  Pr.  342.  And  the  reason  gener- 
ally assigned  for  the  rule  is  that  the 
affidavit  must  be  correctly  entitled,  so 
that  an  indictment  for  perjury  will 
lie  upon  it  if  false."  Kearney  v.  An- 
drews, 5  Wis.  23. 

Contents. — The  title  of  an  affidavit 
embraces  its  entire  heading — the  name 
or  style  of  the  court  as  well  as  the 
names  of  the  parties.  Bowman  v. 
Sheldon,  5  Sandf.  (N.  Y.)  657.  And  it 
should  also  contain  the  character  in 
which  the  parties  sue  or  are  sued, 
though  this  is  not  necessary  if  other- 
wise correct.  Steyner  v.  Cottrell,  3 
Taunt.  377;  Bullman  v.  Callow,  i  Chit. 
Rep.  728  note,  18  E.  C.  L.  216;  Ex  p. 
Metzler,  5  Cow.  (N.  Y.)  287. 

Court  on  Appeal. — After  appeal  is 
made,  although  "  the  title  of  the  action 
need  not  be  changed,"  the  affidavits 
for  motions  must  name  the  court  in 
which  they  are  to  be  used.  Clickman 
V.  Clickman,  i   N.  Y.  611. 

Title  in  the  Body. — It  will  be  suffi- 
cient if  the  title  appears  in  the  body  of 
the  affidavit,  instead  of  at  the  com- 
mencement, as  is  usual.  Saunders  v. 
Erwin,  2  How.  (Miss.)  732.  But  in 
Humphrey  v.  Cande,  2  Cow.  (N.  Y.) 
509,  it  was  held  that  an  affidavit 
wrongly  entitled,  though  the  case  was 
rightly  described  in  the  body  of  the 
affidavit,  could  not  be  read.  See  Blake 
V.  Locy,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)  108. 

Abbreviations  of  Title. — Where  there 


is  but  one  suit  depending  between 
several  parties  it  will  be  sufficient  to 
entitle  the  affidavit,  "A.  et  al.  v.  B.  et 
al.,"  naming  only  one  party  on  each 
side.  Seymour  v.  Bailey,  66  111.  288; 
White  V.  Hess,  8  Paige  (N.  Y.)  544. 
Contra,  Arnold  v.  Nye,  11  Mich.  456. 
And  perjury  may  be  assigned  upon 
such  an  affidavit,  although  it  may  be 
formally  defective.  Reg.  v.  Christian, 
I  C.  &  M.  388,  41  E.  C.  L.  214. 

Where  there  are  several  plaintiffs  to 
a  cause  it  is  no  objection  to  an  affida- 
vit made  therein  that  the  Christian 
name  of  one  of  the  plaintiffs  was 
omitted  from  the  title.  Maury  v.  Van 
Arnum,  i  Hill  (N.  Y.)  370;  Howell  v. 
Coleman,  2  Bos.  &  Pul.  466.  But  see 
Fores  v.  Dieman,  7  T.  R.  657;  Bull- 
man  V.  Callow,  I  Chit.  Rep.  727,  18 
E.  C.  L.  216. 

How  Entitled. — An  affidavit  for  a 
certiorari  to  a  justice's  court  is  rightly 
entitled  in  the  cause  in  the  court  be- 
low, but  not  in  the  Supreme  Court. 
Whitney  v.  Warner,  2  Cow.  (N.  Y.)  499. 
On  a  motion  to  set  aside  proceedings  in 
a  suit  on  a  bail-bond  for  irregularity, 
the  affidavit  is  well  entitled  in  the  bail- 
bond  suit.  Pell  V.  Jadwin,  3  Johns. 
(N.Y.)448.  In  such  a  proceeding  it  is 
wrong  to  entitle  the  affidavit  in  the 
original  action.  Phelps  v.  Hall.  5 
Johns.  (N.  Y.)  367. 

Incorrectly  Entitled  —  Misjoinder.  — 
Generally,  if  the  affidavit  is  incorrectly 
entitled,  it  cannot  be  used.  Thus,  on  a 
writ  of  error,  an  affidavit  entitled  "  G. 
D.  W.  V.  W.  &  R.,"  after  W.  had  been 
allowed  to  sever  from  R.  in  the  prose- 
cution of  the  writ,  was  held  insuffi- 
cient. Whipple  V.  Williams,  i  Mich. 
115.  But  in  Cunningham  v.  Yon  Pus- 
tan  (Supreme  Ct.),  9  N.  Y.  Supp.  255, 
a  misjoinder  of  parties  in  the  title  was 
held  not  to  vitiate  the  affidavit. 

Position  of  Parties  Beversed. — Where 
in  the  titles  of  all  the  papers,  both  af- 
fidavits and  notice,  the  position  of  the 
parties  is  reversed  so  that  the  defend- 
ant seems  to  be  suing  the  plaintiff,  it 
is  fatal.  Parkman  v.  Sherman,  I  Cai. 
(N.  Y.)  344.  But  it  is  no  objection 
that  the  title  reads  "C.  D.  ads.  A.  B.," 


3" 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Bequisites. 


title  is  to  identify  the  suit,  if  this  appears  in  another  way,  as  by 
reference  to  other  papers  duly  entitled,*  it  will  be  sufficient.* 

When  not  to  be  Entitled. — Some  aflfidavits,  as  those  used  to  found  a 
suit  not  already  begun,  must  not  be  entitled.^     If  entitled,  they 


instead  of  "A.  B.  v.  C.  D."  Bowen 
V.  Wilcox,  etc.,  Sewing  Mach.  Co.,  86 
111.  II. 

Entitled  Two  Ways.— Where  an  affi- 
davit was  entitled  in  two  ways,  one  of 
which  was  right  and  the  other  wrong, 
and  the  affidavit  proceeded  to  speak  of 
the  cause  in  the  singular,  it  was  suffi- 
cient. Roosevelt  v.  Dale,  2  Cow. 
(N.  Y.)  581. 

Title  Altered. — If  an  aflSdavit  is  cor- 
rectly entitled  when  sworn  it  will  be 
sufficient,  although  the  title  of  the 
cause  may  have  been  altered  by  subse- 
quent amendment.  Hawes  v.  Bam- 
ford,  9  Sim.  653. 

Mistake  after  Decree. — A  mistake  in 
the  title  is  immaterial  after  the  decree 
is  rendered.  Majors  v.  Edwards,  36 
Neb.  56. 

1.  Reference. — An  afl5davit  annexed 
to  a  petition,  to  which  it  refers  as  "  the 
foregoing  petition,"  is  not  defective 
because  it  does  not  contain  the  names 
of  the  parties.  It  will  be  presumed 
that  the  petition  and  affidavit  were 
both  before  the  affiant  when  he  was 
sworn.  One  thus  supplemented  the 
other.  Levy  v.  Wilson,  43  Iowa  605. 
An  affidavit  of  service  immediately 
following  or  indorsed  on  papers  for 
a  motion,  properly  entitled,  need  not 
itself  be  entitled.  Anonymous,  4  Hill 
(N.  Y.)  597. 

Campbell,  J.:  "The  object  of  en- 
titling affidavits  is  to  connect  them 
with  a  suit,  so  that  perjury  will  lie 
upon  them.  We  think  an  affidavit  re- 
ferring to  a  paper  properly  entitled,  to 
which  it  is  appended,  must  be  assumed 
to  have  adopted  the  title  by  reference." 
King  V.  Harrington,  14  Mich.  532. 

2.  An  affidavit  need  not  be  entitled, 
provided  it  shows  upon  its  face  that 
it  is  an  affidavit  in  the  proper  suit. 
Dunham  v.  Rappleyea,  16  N.  J.  L.  75. 

"Our  attention  has  not  been  called 
to  any  authorities,  in  our  state  or  else- 
where, where  it  has  been  held  that  an 
affidavit  filed  in  a  pending  suit  not  en- 
titled is  a  nullity.  The  inquiry  in  such 
cases  is,  has  the  affidavit  been  fully 
identified  as  having  been  filed  in  that 
cause?  If  it  has,  then  the  want  of  the 
formality  of  a  title  is  of  no  consequence, 
sii.ce  the  title    is    for  the  purpose  of 


identifying  the  suit  in  which  the  afl5- 
davit  is  designed  to  be  used."  Beebe 
V.  Morrell,  76  Mich.  114. 

In  Illinois  it  seems  the  title  is  not 
requisite.  Scott,  C.  J.,  says:  "  It  does 
not  depend  on  the  fact  whether  it  is  en- 
titled in  any  cause  or  in  any  particular 
way.  Without  any  caption  whatever  it 
is  nevertheless  an  affidavit."  Harris  v. 
Lester.  80  111.  307.  But  in  Watson  v. 
Reissig,  24  111.  281,  74  Am.  Dec.  746, 
the  court  refused  to  consider  an  affi- 
davit which  had  a  mistake  in  the  title. 

3.  They  should  not  be  entitled  in 
either  the  court  or  cause.  If  entitled, 
it  is  good  cause  for  their  rejection. 
Rex  V.  Jones,  2  Str.  704  ;  Rex  v.  Pier- 
son,  Andr.  313  ;  Rex  v.  Harrison,  6 
T.  R.  60  ;  King  v.  Cole,  6  T.  R.  640,  i 
Dan.  Ch.  Pr.  891;  Hawlev  v.  Donnelly, 
8Paige(N.  Y.)4i5;  i  Barb.  Ch.  Pr.  600. 
For  the  English  practice  in  entitling 
such  affidavits,  see  further  Hollis  v. 
Brandon,  i  B.  &  P.  36  ;  Green  v.  Red- 
shaw,  I  B.  &  P.  227  ;  Clarke  v.  Caw- 
thorne,  7  T.  R.  317. 

Attachment. — AflSdavits  for  attach- 
ment need  not  be  entitled  in  either 
cause  or  court.  West  v.  Woolfolk,  21 
Fla.  189  ;  Cheaaie  v.  Riddle,  6  Ark. 
480  ;  Kinney  v.  Heald,  17  Ark.  397  ; 
Quarles  v.  Robinson,  2  Pin.  (Wis.)  97, 

1  Chand.  (Wis.)  29.  See  also  Bron- 
son'sCase,  12  Johns. (N.Y.)  460;  Folger 
V.  Hoogland,  5  Johns.  (N.  Y.)  235. 

Mandamus  and  Bail. — Likewise  affi- 
davits for  7nandamus  and  to  hold  to 
bail  must  not  be  entitled.  The  reason 
is  that  there  is  no  suit  pending,  and  a 
conviction  for  perjury  could  not  be  had 
on  the  affidavit  if  false,  because  it 
could  not  be  shown  that  such  a  cause 
existed  in  the  court.  Ex  p.  La  Farge, 
6  Cow.  (N.  Y.)  61  ;  Haight   v.  Turner, 

2  Johns.  (N.  Y.)  371  ;  People  v.  Tioga 
C.  P.,  I  Wend.  (N.  Y.)  291. 

Criminal  Information. — Nor  should  an 
affidavit  made  the  basis  of  a  criminal 
information  be  entitled.  "  Under  some 
circumstances  it  would  be  improper. 
It  is  usually  made  before  there  is  a 
suit  pending,  and  there  is  no  title  to 
give.  It  is  only  necessary  that  it 
should  appear  that  the  affidavit  was 
made  for  the  purposes  of  the  suit  in 
which  it   is  afterwards  filed."     Haw- 


312 


Safficiency. 


AFFIDA  VI TS. 


Formal  Bequisites. 


will  be  nullities.* 

b.  Venue. — The  venue  of  an  affidavit  states  the  county  in 
which  it  was  taken  and  \s  prima-facie  evidence  thereof.*  In  the 
older  practice  it  was  deemed  so  essential  that  without  it  the 
affidavit  was  treated  as  a  nullity.*     Later  cases  modify  this  rule.* 


kins  V.  State  (Ind.,  1894),  36  N.  E.  Rep. 
419. 

Bepleyin. — In  a  replevin  suit,  the  affi- 
davit of  ownership  of  property  should 
not  be  entitled.  Stacy  -v.  Farnham,  2 
How.  Pr.  (N.  Y.)  26. 

1.  Milliken  v.  Seelye,  3  Den.  (N.Y.) 
54  ;  Stacy  v.  Farnham,  2  How.  Pr.  (N. 
Y.)26;  Beebe  f.  Morrell,  76Mich.  114. 

Not  Surplnsage. — The  title  is  not  sur- 
plusage, as  without  it  the  body  of  the 
affidavit  would  be,  in  many  cases,  ren- 
dered meaningless.  Blake  Crusher  Co. 
V.  Ward,  i  Am.  L.  T.  N.  S.  423; 
Bronson  v.  Mitchill,  12  L.  J.  R.  460. 

Minnesota. — Strongly  dissenting  from 
these  authorities  is  the  case  of  Crom- 
bie  V.  Little,  47  Minn.  581.  Mitchell,  J. : 
"  Another  objection  to  the  affidavit  is 
that  it  was  void  because  entitled  in  a 
cause  not  yet  commenced.  There  are 
undoubtedly  decisions  which  go  to  this 
length,  but  they  are,  in  our  judgment, 
devoid  of  reason  and  based  upon  a 
frivolous  technicality.  We  do  not 
suppose  that  there  was  ever  an  affi- 
davit made  in  this  state  for  a  replevin, 
garnishment,  attachment,  or  publica- 
tion of  summons  that  was  not  entitled, 
although,  strictly  speaking,  the  action 
was  not  yet  commenced  when  the  affi- 
davit was  sworn  to.  Even  at  com- 
mon law  it  was,  at  most,  a  mere  irreg- 
ularity, which,  in  the  language  of  the 
court  in  Clarke  v.  Cawthorne,  7  T.  R. 
317,  'did  not  interfere  with  the  justice 
of  the  case.'  A  prosecution  for  perjury 
based  on  such  an  affidavit  would  lie. 
City  Bank  v.  Lumley,  28  How.  Pr. 
(N.  Y.  C.  PI.)  397.  See  also  People  v. 
Sutherland,  81  N.  Y.  9." 

2.  Cook  V.  Staats,  18  Barb.  (N.  Y.) 
407;  Smith  V.  Collier  (Supreme  Ct.),  3 
N.  Y.  St.  Rep.  172;  Belden  v.  Devoe, 
12  Wend.  (N.  Y.)  225;  and  see  follow- 
ing notes. 

Form. — The  proper  venue  of  an  affi- 
davit taken  before  a  United  States 
Commissioner  is:   "United  States  of 

America,     District    of ,"    naming 

the   district  and   state   for  which  the 
commissioner  is  appointed.    It  should 

not   be:    "State   of  ,    County   of 

."     Sterrick    v.    Pugsley,    i   Flip. 

(U.  S.)  350. 


Letters  "ss." — "These  letters  form 
no  material  part  of  the  venue,  and 
although  it  is  customary  and  more 
lawyerlike  to  use  them  after  stating 
the  venue,  yet  their  use  or  omission, 
like  the  use  or  omission  of  the  letters 
'  viz.'  or  the  words  '  to  wit,'  for  which 
the  letters  'ss.'  are  a  substitute,  is 
more  a  matter  of  form  than  of  real 
substance."  Smith  v.  Richardson,  i 
Utah  Ter.  194.  Approved  in  McCord, 
etc..  Mercantile  Co.  v.  Glenn,  6  Utah 

139- 

City  and  County. — An  affidavit  before 
a  commissioner  of  deeds  for  a  city  is 
defective  when  the  venue  is  laid  only 
in  the  county  in  which  the  city  is  situ- 
ated. People  V.  Dutchess  County 
(N.  Y.   Supreme  Ct.),  20  N.  Y.  Supp. 

329- 

3.  Marvin,  P.J. :"  Affidavits  should, 
by  the  universal  practice,  contain  a 
venue;  and  it  is  said  to  be  an  essen- 
tial part  of  an  affidavit,  (i  Barb.  Ch.  Pr. 
601;  Lane  v.  Morse,  6  How.  Pr.  (N.  Y. 
Supreme  Ct.)  394.)  It  is  important 
that  it  should  indicate  the  county  in 
which  it  was  taken,  in  reference  to 
a  prosecution  for  perjury."  Cook  v. 
Staats,  18  Barb.  (N.  Y.)407. 

In  New  York  an  affidavit  lacking  a 
venue  is  a  nullity.  Saril  v.  Payne  (C. 
PI.),  4  N.  Y.  Supp.  897;  Vincent  v. 
People,  5  Park.  Cr.  Rep.  (N.  Y.)  88; 
People  V.  Decamp,  5  N.  Y.  Wkly.  Dig. 
462.  See  also  Smith  v.  Richardson,  i 
Utah  Ter.  194. 

In  Nebraska  the  affidavit  must  show 
on  its  face  that  it  was  taken  within 
the  officer's  jurisdiction — must  have  a 
venue.  Blair  v.  West  Point  Mfg.  Co., 
7  Neb.  146;  Byrd  v.  Cochran  (Neb., 
1894),  58  N.  W.  Rep.  127. 

Facts  Not  Inferred. — The  venue  should 
be  given.  Facts  are  not  to  be  inferred 
from  affidavits  when  the  party  has  it 
in  his  power  to  state  them  positively. 
Brooks  V.  Hunt,  3  Cai.  (N.  Y.)  128. 

4.  Kellam,  J.  :  "  It  was  not  material 
to  the  character  of  the  instrument  as 
an  affidavit  that  it  show  in  what 
county  the  oath  was  administered.  It 
doubtless  is  desirable  and  convenient 
for  many  purposes  that  an  affidavit  so 
show,  but  we  do  not  think  it  is  indis- 


l^^l 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Bequisites. 


The  purpose  of  the  venue  is  to  show  that  the  officer  administer- 
ing the  affidavit  acted  within  his  jurisdiction.* 


pensable.  The  important  fact  is  that 
an  oath  was  administered  by  an  au- 
thorized officer  and  within  his  juris- 
diction." State  V.  Henning  (S.  Dak., 
1893),  54  N.  W.  Rep.  536.  In  this  case 
it  was  said  that  the  rule  that  without 
a  venue  the  affidavit  is  a  nullity  is 
confined  to  New  York. 

Berry,  J.:  "We  are  of  opinion  that 
the  absence  of  a  venue  is  not  fatal  to 
an  affidavit.  (Rex  v.  Emden,  9  East 
437.)  Such  appears  to  have  been  the 
opinion  of  Chancellor  Walworth  in 
Barnard  v.  Darling,  i  Barb.  Ch.  (N.  Y.) 
219,  and  in  Parker  v.  Baker,  8  Paige 
(N.  Y.)  430."  Young  V.  Young,  18 
Minn.  90. 

Absence  of  Formal  Venue. — An  affida- 
vit, properly  entitled  in  the  cause,  and 
sworn  to  before  the  clerk  of  the  court 
wherein  the  cause  is  pending,  should 
not  be  treated  as  a  nullity  by  reason 
of  the  want  of  a  formal  venue.  Stone 
V.  Williamson,  17  111.  App.  J75.  Even 
if  it  is  the  general  rule  that  the 
absence  of  a  venue  renders  the  affi- 
davit fatally  defective,  it  will  never- 
theless be  sufficient  if  the  seal  of  the 
notary  shows  the  county  for  which  he 
was  commissioned  and  the  affidavit  is 
correct  in  other  respects.  Reavis  v. 
Cowell,  56  Cal.  588.  Nor  did  the  ob- 
jection that  there  was  no  venue  avail 
where  the  officer  signed  the  jurat  as 
"  Court  Commissioner  of  Fond  du  Lac 
County,  Wis."  Wood  v.  Blythe,  46 
Wis.  650. 

Conclusion  Drawn. — The  conclusion 
to  be  drawn,  both  on  the  weight  of 
authority  and  on  reason,  is  that  an 
affidavit  without  a  venue  is  prima  facie 
a  nullity,  just  as  the  venue  is  prima- 
facie  evidence  of  the  place  where  it 
was  taken.  See  Smith  v.  Collier  (Su- 
preme Ct.),  3  N.  Y.  St.  Rep.  172. 

1.  Jurisdiction  Presumed. — But  the 
majority  of  cases  now  hold  that  it 
need  not  conclusively  appear  on  the 
face  of  the  affidavit,  by  venue,  that  the 
officer  acted  within  his  jurisdiction. 
It  will  be  presumed  he  so  acted 
if  nothing  appears  to  the  contrary. 
Parker  v.  Baker,  8  Paige  (N.  Y.) 
428;  Barnard  v.  Darling,  i  Barb.  Ch. 
(N.  Y.)  218;  In  re  Sheepshead,  etc.,  R. 
Co.,  5  N.  Y.  Wkly.  Dig.  488.  Even  if 
he  does  not  state  for  what  county  he 
was  appointed.  Snell  v.  Eckerson,  8 
Iowa  284. 


Officer  of  Local  Jurisdiction. — But  an 
affidavit  made  before  an  officer  having 
only  local  jurisdiction  must  show 
upon  its  face  that  he  acted  within  his 
jurisdiction.  Saunders  v.  Erwin,  2 
How.  (Miss.)  732.  Resort  to  the  date 
of  the  certificate  of  the  gov-ernor  au- 
thenticating the  magistrate's  certifi- 
cate will  not  remedy  the  defect,  i 
Burr.  Tr.  99.  Compare  Tooker  v. 
Thompson,  3  McLean  (U.  S.)  92. 

Venue  Given. — Where  the  venue  is 
given  and  the  officer  states  his  official 
title,  it  will  be  presumed  that  he  acted 
within  his  jurisdiction,  though  he 
does  not  so  state.  People  v.  Cady, 
105  N.  Y.  299;  Crosier  v.  Cornell 
Steamboat  Co.,  27  Hun  (N.  Y.)  215,  15 
N.  Y.  Wkly.  Dig.  34;  Remington  Sew- 
ing Mach.  Co.  V.  Cushen,  8  Mo.  App, 
528. 

Thus  in  attesting  an  affidavit  a 
notary  public  need  not  add  the  state 
or  county  for  which  he  is  notary, 
where  the  affidavit  gives  the  state 
and  county  in  the  venue,  and  his 
title  of  notary  public  and  seal  are 
annexed  to  his  signature.  Stone  v. 
Miller,  60  Iowa  243.  See  also  Mosher 
V.  Heydrick,  45  Barb.  (N.  Y.)  549,  i 
Abb.  Pr.  N.  S.  (N.  Y.)  258,  30  How. 
Pr.  (N.  Y.)  161,  and  Smith  v.  Runnells, 
94  Mich.  617. 

In  Illinois  even  the  title,  simply,  an- 
nexed to  his  name  will  be  sufficient 
when  the  affidavit  is  offered  for  use  in 
the  same  county  as  is  mentioned  in 
the  venue.  Dyer  v.  Flint,  21  111.  80, 
74  Am.  Dec.  73. 

Officer  Beyond  Jurisdiction. — But  where 
the  affidavit  shows  by  its  venue  that 
it  was  taken  in  one  county,  while  it 
is  signed  by  an  officer  appointed  for 
another  county,  it  cannot  be  read. 
Cook  V.  Staats,  18  Barb.  (N.  Y.)  407; 
Davis  V.  Rich,  2  How.  Pr.  (N.  Y.)  86; 
Sandland  v.  Adams,  2  How.  Pr.  (N.Y.) 
127;  Snyder  v.  Olmsted,  2  How.  Pr. 
(N.  Y.  Supreme  Ct.)  181.  Thus  if  there 
is  a  difference  between  the  county  of 
the  venue  and  the  seal  of  a  notary 
public,  it  is  bad.  Byrd  v.  Cochran 
(Neb.,  1894),  58  N.  W.  Rep.  127.  But 
in  Goodnow  v.  Litchfield,  67  Iowa  691, 
it  was  held  that  it  would  still  be 
presumed  that  the  officer  acted  within 
his  jurisdiction  notwithstanding  the 
discrepancy. 

An  affidavit  stating  a  certain  county 


314 


1 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Beqoisites. 


c.  Signature. — The  better  practice  requires  that  an  affidavit 
should  be  signed  by  the  affiant  in  order  to  more  readily  identify 
it ;  *  but,  in  the  absence  of  some  positive  statute  or  rule  of 
court,*  this  is  generally  not  necessary.^     And  persons  incapable, 


in  the  venue,  but  certified  before  a 
commissioner  of  a  city  in  that  county, 
will  be  held  defective  if  objected  to 
promptly.  People  v.  Dutchess  County 
Canvassers  (Supreme  Ct.),  20  N.  Y. 
Supp.  329. 

In  Michigan  a  venue  is  not  neces- 
sary to  an  affidavit  made  before  a  no- 
tary public;  but  if  made  before  a  jus- 
tice of  the  peace  it  would  probably  be 
void  if  no  venue  at  all  were  stated  in 
the  instrument.  Sullivan  v.  Hall,  86 
Mich.  7. 

Evidence  Aliande  of  Venue. — As  the 
venue  is  a  matter  in  pais,  if  legally 
questioned  it  must  be  proved  aliunde. 
Perkins  v.  Collins,  3  N.  J.  Eq.  482. 
In  a  prosecution  for  perjury,  where 
the  venue  has  been  omitted,  extrinsic 
evidence  may  be  given  that  the  officer 
acted  within  his  jurisdiction.  Young 
V.  Young,  18  Minn.  90. 

1.  Noble  V.  U.  S.,  Dev.  Ct.  of  CI.  83, 
and  cases  in  following  notes. 

2.  The  signature  of  the  affiant  is  not 
necessary  to  an  affidavit  unless  re- 
quired by  some  statute  or  rule  of  court. 
Hitsman  v.  Garrard,  16  N.  J.  L.  124; 
Redus  V.  Wofford,  4  Smed.  &  M. 
(Miss.)  579;  Watts  w.  Womack,  44  Ala. 
605. 

Perjury  Assignable. — And  the  affiant 
is  liable  to  indictment  for  perjury  if 
the  affidavit  is  false.  Bates  v.  Robin- 
son, 8  Iowa  318;  Drake  on  Attach- 
ment, 91. 

Not  Signed,  but  Name  Appearing. — 
Gilfillan,  C.  J.:  "Although  it  is  the 
universal  custom  for  the  affiant  to  sub- 
scribe, it  is  not,  in  the  absence  of  a 
rule  of  court  (Hathaway  v.  Scott,  11 
Paige  (N.  Y.)  173),  or  a  statute  requir- 
ing it,  necessary,  where  his  name  ap- 
pears in  it  as  the  person  who  took  the 
oath.  Haff  v.  Spicer,  3  Cai.  (N.  Y.) 
190;  Jackson  v.  Virgil,  3  Johns.  (N.  Y.) 
540;  Redus  V.  Wofford,  4  Smed.  &  M. 
(Miss.)  579;  Bates  v.  Robinson,  8  Iowa 
318;  Bloomingdale  v.  Chittenden,  75 
Mich.  305.  While  it  may  be  useful 
for  the  purpose  of  identification,  as 
where  there  may  be  two  persons  of  the 
same  name,  it  does  not,  as  does  the 
signature  of  the  officer,  authenticate 
the  act,  or  show  that  the  oath  was 
taken."     Norton  v.  Hauge,  47   Minn. 


405;  Alford  V.  McCormac,  90  N.  Car. 
151. 

Statute  Bequiring. — Where  a  statute 
requires  a  subscription  to  the  affidavit, 
the  absence  of  it  renders  the  affidavit 
a  nullity.  Nave  v.  Ritter,  41  Ind.  301. 
And  it  seems  that  a  subscription  is  re- 
quired where  a  form  for  the  affidavit 
is  given,  leaving  a  blank  space  for 
the  signature.  Cohen  v.  Manco,  28 
Ga.  27.  In  Texas  now  by  statute  the 
affidavit  must  be  signed.  Gordon  v. 
State,  29  Tex.  App.  410. 

3.  Ede  V.  Johnson,  15  Cal.  53;  Gill 
V.  Ward,  23  Ark.  16;  West  Tennessee 
Agricultural,  etc.,  Assoc,  v.  Madison, 
9  Lea  (Tenn.)  407;  Alford  v.  Cochrane, 
7  Tex.  485;  Crist  v.  Parks,  19  Tex.  234; 
Shelton  v.  Berry,  19  Tex.  154;  Brooks 
V.  Snead,  50  Miss.  416;  Noble  v.  U.  S., 
Dev.  Ct.  of  CI.  83.  In  New  York  the 
signature  is  not  necessary.  Millius  v. 
Shafer,  3  Den.  (N.  Y.)  60,  and  cases 
cited  above.  But  see  Laimbeer  v. 
Allen,  2  Sandf.  (N.  Y.)  648,  2  Code 
Rep.  (N.  Y.)  15.  In  Iowa  now  an  affi- 
davit is  not  complete  unless  signed  by 
the  affiant,  even  though  the  statute 
does  not  expressly  require  a  signature. 
Lynn  v.  Morse,  76  Iowa  665;  Crenshaw 
V.  Taylor,  70  Iowa  386.  And  in  Mis- 
souri an  affidavit  must  be  signed  by 
the  affiant.  Norman  v.  Horn,  36  Mo. 
App.  419;  Hargadine  v.  Van  Horn,  72 
Mo.  370. 

Prima  Facie  Sufficient. — An  affidavit 
to  a  chattel  mortgage  not  signed  by 
affiant  but  regular  in  other  respects  is 
sufficient  prima  facie.  Gambrinus 
Stock  Co.  V.  Weber,  41  Ohio  St.  689. 

Wbere  Signed.  —  But  an  affidavit 
should  not  be  treated  as  a  nullity 
merely  because  the  signature  of  the 
affiant  was  placed  below  the  jurat,  in- 
stead of  in  its  proper  place,  immedi- 
ately succeeding  the  body  of  the  affi- 
davit. Launius  v.  Cole,  51  Mo.  147; 
Kohn  V.  Washer,  6g  Tex.  67. 

In  New  Jersey  the  practice  of  the 
court  requires  that  "when  the  verifi- 
cation of  an  answer  is  in  the  form  of 
an  affidavit,  the  name  of  the  deponent 
be  subscribed  at  the  foot  of  the  affi- 
davit; and  where  the  verification  is  in 
the  form  of  a  certificate  of  the  officer 
who  administered  the  oath,  the  name 


315 


Safflciency. 


AFFIDA  FITS. 


Formal  Requisites. 


by  disease  or  natural  infirmities,  of  making  either  a  signature  or 
a  mark,  are  not  debarred  from  making  an  affidavit.* 

d.  Jurat. — The  Jurat  is  that  part  of  an  afHdavit  where  the 
ofBcer  certifies  that  the  same  was  "  sworn  before  him."  *  It  is  no 
part  of  the  affidavit  proper,*  but  is  always  essential  as  a  certificate 
of  the  authenticity  of  the  afifidavit.*  Great  particularity  in  the 
words  used  in  the  certificate  is  not  ordinarily  required  ;  if  they 
state  in  substance  that  the  affiant  appeared  and  took  the  oath,  the 
affidavit  is  usually  held  to  be  good.^ 

of  the  deponent  should  be  subscribed 
to  the  answer.  The  object  is  to  facili- 
tate the  identification  of  the  affiant  in 
case  of  prosecution  for  perjury." 
Pincers  v.  Robertson,  24  N.  J.  Eq.  348. 

And  in  Missouri,  if  the  defendant 
signs  the  answer  just  above  the  mag- 
istrate's certificate,  he  need  not  also 
sign  the  certificate  of  the  magistrate 
as  an  affidavit  separate  from  the  an- 
swer. Smith  V.  Benton,  15  Mo.  371. 
Likewise  in  regard  to  an  affidavit  to  a 
mechanic's  lien.  Laswell  v.  Jefferson 
City  Presbyterian  Church,  46  Mo.  279. 

Agent's  Signature.  —  An  affidavit 
which  recites  that  the  litigant  ap- 
peared and  swore  is  not  vitiated  be- 
cause signed  "A.  B.  by  C.  D.,  At- 
torney." No  signature  at  all  was 
necessary  so  long  as  the  affidavit  was 
the  personal  oath  of  the  party  making 
it.  Coppock  V.  Smith,  54  Miss.  640. 
An  affidavit  signed  "J.  M.  S.  per  D. 
M.  S."  sufficiently  showed  that  it  was 
made  for  the  plaintiff,  although  it 
should  have  been  signed  "  D.  M.  S., 
agent  for  J.  M.  S."  Spencer  v.  Bell, 
109  N.  Car.  39. 

Partnership  Signature. — An  affidavit 
that  "I.  R.  P.,  state,"  etc.,  and  signed 
"  F.  and  P."  is  sufficient.  Fortenheim 
V.  Claflin,  47  Ark.  49.  An  affidavit  hav- 
ing a  partnership  signature  should  be 
considered  the  affidavit  of  him  who 
signed  the  partnership  name.  Ran- 
dall V.  Baker,  20  N.  H.  335. 

But  in  Missouri,  where  it  is  held  that 
an  affidavit  must  be  signed  by  the 
affiant,  an  affidavit  to  which  is  sub- 
scribed a  firm  name  is  a  nullity.  Nor- 
man V.  Horn,  36  Mo.  App.  419. 

Objection  Too  Late. — After  a  case  has 
been  disposed  of  on  the  merits,  it  is  too 
late,  on  appeal,  to  object  to  affidavits 
to  answers  in  chancery  that  they  were 
insufficient  because  not  signed  by 
affiants.  Yeizer  v.  Burke,  3  Smed.  & 
M.  (Miss.) 439. 

1.  Soule  V.  Chase,  i  Robt.  (N.  Y.) 
222,  I  Abb.  Pr.  N.  S.  (N.  Y.)  48.     Per- 


jury is  assignable  where  a  mark  is 
made.     U.  S.  v.  Mallard,  40  Fed.  Rep. 

151- 

2.  Bouvier  Law  Diet. 
Form. — The  usual  form  is  :  "Sworn 

and  subscribed  before  me,  on  the 

day  of ,  18—.  ,  J.  P."     Where 

no  special  form  is  prescribed  by  stat- 
ute this  will  be  sufficient.  Parker  v. 
Clark,  7  W.  Va.  467. 

3.  Veal  V.  Perkerson,  47  Ga.  92. 
Venue  of  Jurat. — But  it  is  so  much  a 

part  of  the  affidavit  that  it  need  not 
have  a  separate  venue.  Rahillyz^.  Lane, 
15  Minn.  447. 

4.  Merrimon,  J.:  "  It  must  be  certi- 
fied by  the  officer  before  whom  the 
oath  was  taken  before  it  can  be  used 
for  legal  purposes;  indeed  it  is  not 
complete  or  operative  until  this  is 
done.  The  certificate,  usually  called 
the  jurat,  is  essential,  not  as  a  part  of 
the  affidavit,  but  as  official  evidence 
that  the  oath  was  taken  before  a 
proper  officer."  Alford  v.  McCormac, 
90  N.  Car.  151. 

Perjury. — But  on  an  indictment  for 
perjury  the  jurat  is  not  essential.  Rex 
V.  Emden,  9  East  437. 

Sworn  in  Open  Court. — A  paper  pur 
porting  to  be  an  affidavit  and  so  treated 
by  the  court  below  will  not  be  held  de- 
fective by  the  superior  court  because 
it  does  not  appear  to  have  the  jurat  of 
the  clerk.  For  it  may  have  been  sworn 
to  in  open  court;  if  so,  it  needs  no  jurat 
as  evidence  that  it  had  been  duly 
sworn  to  by  the  affiant.  Cleveland  v. 
Stanley,  13  Ind.  549.  But  see  Nave  v. 
Ritter,  41  Ind.  301. 

Jurat  Not  Immediately  Annexed. — An 
affidavit  sufficient  in  all  other  re- 
spects will  not  be  rendered  fatally  de- 
fective because  the  clerk  before  whom 
it  was  made  failed  for  a  few  days  to  an- 
nex the  jurat.  Buckland  v.  Goit,  23 
Kan.  327. 

5.  "Before  Me." — The  jurat  should 
contain  the  words  "  before  me,"  or 
their  equivalent.     In  Smart  v.  Howe, 

16 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Bequisites. 


e.  Authentication. — Ordinarily    the  jurat   must  be  authen- 
ticated by  the  signature  of  the  officer  before  whom  the  affidavit  is 


3  Mich.  590,  and  Reg.  v.  Bloxham,  6 
Q.  B.  528,  51  E.  C.  L.  526,  their  ab- 
sence rendered  the  affidavit  fatally  de- 
fective. And  in  Canada  the  omission 
of  these  words  and  the  date  from 
the  jurat  rendered  an  affidavit  accom- 
panying a  bill  of  sale  fatally  defective. 
Archibald  v.  Hubley,  18  Can.  Sup.  Ct. 
Rep.  116. 

But  this  result  will  not  follow  when 
the  affidavit  is  used  before  the  officer 
who  administered  it.  In  re  Teachout, 
15  Mich.  346.  And  where  the  body  of 
the  affidavit  showed  that  it  was  made 
before  a  justice,  there  was  no  force  in 
the  objection.  Cross  v.  People,  10 
Mich.  24.  And  if  sworn  to  before  a 
judge,  such  an  omission  is  not  fatal. 
Empey  v.  King,  13  M.  &  W.  519. 

"  Then  Personally  Appeared."  —  In 
Clement  v.  Bullens,  159  Mass.  193,  it 
was  said  that,  however  it  might  be  as 
to  affidavits  before  a  commissioner 
(Reg.  V.  Bloxham,  6  Q.  B.  528,  51  E.  C. 
L.  526),  or  as  the  basis  of  an  appeal 
(Smart  v.  Howe,  3  Mich.  590),  the 
words  "before  me"  have  not  been 
held  necessary  in  all  cases.  (Empey  v. 
King,  13  M.  &  W.  519.)  And  that  the 
words  "  then  personally  appeared," 
used  in  this  case,  which  did  not  occur 
in  any  of  the  foregoing,  meant  per- 
sonally appeared  before  the  signer,  by 
their  only  fair  interpretation. 

And  the  phrase  "  sworn  before  me 
this  1st  day  of  Nov.,"  etc.,  without 
expressly  certifying  that  the  deponent 
appeared  before  the  officer,  is  sufficient. 
Jackson  v.  Gumaer,  2  Cow.  (N.  Y.) 
552. 

Equivalent  Words. — "  Given  under 
my  hand  and  seal  "  will  suffice  for  the 
stereotyped  formula,  "  sworn  to  and 
subscribed  before  me."  Trice  v.  Jones, 
52  Miss.  138.  And  "  subscribed  and 
sworn  to  before  me  "  is  substantially 
equivalent  to  the  statutory  require- 
ment "  sworn  to  or  affirmed  before  me, 
and  signed  in  my  presence."  Sargent 
V.  Townsend,  2  Disney  (Ohio)  472. 

In  New  York,  in  general,  a  substan- 
tial compliance  with  the  requisites  of 
the  jurat,  prescribed  by  statute,  will 
be  sufficient.  Manufacturers',  etc., 
Bank  v.  Cowden,  3  Hill  (N.  Y.)  461; 
Belden  v.  Devoe,  12  Wend.  (N.  Y.) 
223  ;  McKinstry  v.  Thurston,  12  Wend. 
(N.  Y.)  225,  note. 

Name  of  Affiant. — The  jurat  need  not 


name  the  person  signing  and  swearing 
to  the  affidavit.  Stone  v.  Miller,  60 
Iowa  243.  But  where  the  affiant  sub- 
scribed the  affidavit,  and  stated  that 
he  swore  to  it,  and  his  name  was 
written  in  the  body  of  it,  the  affidavit, 
construed  with  what  preceded,  suffi- 
ciently showed  by  whom  it  was  made, 
although  it  was  very  doubtful  whether 
perjury  could  be  assigned  upon  it. 
Stoddard  v.  Sloan,  65  Iowa  680;  Kirby 
V.  Gates,  71  Iowa  100. 

Sworn  or  Affirmed. — A  jurat  which 
stated  that  the  affiants,  naming  them, 
were  "  sworn  and  affirmed,"  but  not 
showing  which  were  sworn  ^nd  which 
affirmed,  was  held  defective.  State  v. 
Browning,  27  N.  J.  L.   536. 

Where  an  affirmation  is  made  instead 
of  an  oath,  it  is  not  necessary  for  the 
certificate  of  the  officer  to  state  that 
the  affirmant  was  conscientiously  scru- 
pulous of  taking  an  oath.  It  is  the 
duty  of  the  officer  to  satisfy  himself 
on  that  point,  and,  in  the  absence  of 
proof  t«  the  contrary,  it  must  be  pre- 
sumed that  he  discharged  his  duty. 
Loney  v.  Bailey,  43  Md.  10. 

Surplusage. — Where  the  jurat  stated 
that  the  facts  were  "affirmed,  sworn 
to,  and  subscribed,"  it  was  held  that 
the  surplusage  did  not  vitiate  the  affi- 
davit. Gibbons  v.  Sheppard,  2  Brew. 
(Pa.)  I. 

Where  several  persons  make  affi- 
davit, the  magistrate's  certificate  need 
not  state  that  they  "  severally  "  swore, 
although  the  statute  prescribes  that 
form.  The  word  may  be  regarded  as 
surplusage,  and  not  affecting  the  sense. 
Randall  v.  Baker,  20  N.  H.  335. 

Service  of  Copy. —  Montgomery,  J.: 
"Where  a  law  requires  a  copy  of  an 
affidavit  to  be  served  upon  the  ad- 
verse party  it  is  not  necessary  to  serve 
a  copy  of  the  jurat.  Livingston  v. 
Cheetham,  2  Johns.  (N.  Y.)  479.  Un- 
less, without  it,  facts  stated  may  be 
unintelligible.  Union  Furnace  Co. 
V.  Shepherd,  2  Hill  (N.  Y.)  413. 
And  even  then  the  magistrate's  name 
may  be  omitted.  Chase  v.  Edwards, 
2  Wend.  (N.  Y.)  283."  Veal  v.  Per- 
kerson,  47  Ga.  92. 

But  an  affidavit  should  not  be  served 
before  it  is  sworn  to.  Wilson  v.  Tif- 
fany, 3  Wend.  (N.  Y.)  310. 

Date  of  Jurat. — See  post,  f.  Date. 

Omission  of  Name  from  Jurat. — Where 


317 


L 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Beqaisites. 


made;*  but  where  it  is  proved  extrinsically  that  it  was  really  made,* 
the  affidavit  will  not  be  rendered  fatally  defective  by  the  negligence 
of  the  officer  in  not  attesting  it.^ 

Official  Title. — In  general  the  officer  need  not  annex  to  his  signa- 
ture his  title  of  office,  although  it  is  more  regular  to  do  so."*     If 


an  affidavit  stated  the  name  of  affiant, 
and  his  name  was  subscribed  thereto, 
but  was  omitted  in  the  jurat,  it  was 
sufficiently  shown  that  the  affidavit 
was  sworn  to  by  the  affiant.  Kirby  v. 
Gates,  71  Iowa  100. 

1.  McDermaid  v.  Russell,  41  111.  489; 
Cantwell  v.  State,  27  Ind.  505  ;  Morris 
V.  State,  2  Tex.  App.  502  ;  Westerfield 
V.  Bried,  26  N.  J.  Eq.  357. 

Blank  Form. — An  affidavit  lacking  the 
signature  of  an  officer  can  be  regarded 
only  as  a  blank  form,  although  the 
jurat  contains  the  words  "  sworn  to 
and  subscribed  in  open  court,  Dec. 
22nd,  1841."  State  Bank  v.  Hinchcliffe, 
4  Ark.  444. 

In  Michigan  it  must  be  signed  even 
though  offered  for  use  before  the  offi- 
cer who  administered  it.  Calvert  v. 
McNaughton,  2  Mich.  (N.  P.)  8. 

Neither  Signed  nor  Certified. — An  affi- 
davit neither  signed  by  the  affiant  nor 
certified  by  the  officer  is  a  nullity. 
Watt  V.  Carnes,  4  Heisk.  (Tenn.)  532  ; 
Third  Nat.  Bank  v.  Garton,  40  Mo. 
App.  113. 

Initials. — It  is  not  a  valid  objection 
to  an  affidavit  that  the  clerk  before 
whom  it  was  made,  in  signing  the 
jurat,  gave  the  initials  only  of  his 
Christian  name.  Rice  v.  People,  15 
Mich.  9. 

Time  of  Signing. — An  affidavit  in  re- 
plevin is  not  invalidated  by  the  fact 
that  the  justice  signs  the  jurat  at  some 
time  after  plaintiff  has  made,  signed, 
and  sworn  to  the  affidavit.  Peterson 
V.  Fowler,  76  Mich.  258. 

2.  Wiley  v.  Bennett,  9  Baxt.  (Tenn.) 
581  ;  Stout  V.  Folger,  34  Iowa  71  ; 
Tacoma  Grocery  Co,  v.  Draham,  8 
Wash.  263  ;  Ladow  v.  Groom,  i  Den. 

(N.  Y.)429. 

3.  In  Pennsylvania,  a  clerical  omis- 
sion of  a  prothonotary  to  attest  an  affi- 
davit sworn  to  before  him  will  not  be 
fatal.  Maples  v.  Hicks,  Bright.  (Pa.) 
56  ;  Pottsville  v.  Curry,  32  Pa.  St.  443. 
But  see  Shortle  v.  Stockton,  7  Watts 
(Pa.)  526.  In  commenting  on  this 
latter  case,  it  was  said  in  Pottsville  v. 
Curry,  32  Pa.  St.  443,  that  the  amend- 
ment was  there  refused  because  there 


was  nothing  upon  record  to  show  that 
an  oath  had  been  taken. 

Illinois,  Iowa,  West  Virginia,  Alabama, 
Arkansas. — "  The  mere  omission  of 
the  clerk  to  put  his  name  to  an  act 
which  was  done  through  him  as  an  in- 
strument should  not  prejudice  an 
innocent  party  who  has  done  all  he 
was  required  to  do.  The  clerk's  omis- 
sion to  write  his  name  where  it  should 
have  been  written  was  not  the  fault 
or  neglect  of  the  affiant.  He  signed 
and  swore  to  the  affidavit."  Kruse  v. 
Wilson,  79  111.  233  ;  Cook  v.  Jenkins, 
30  Iowa  452  ;  Farmers'  Bank  v.  Get- 
tinger,  4  W.  Va.  305  ;  Hyde  v.  Adams, 
80  Ala.  Ill  ;  McCartney  v.  Branch 
Bank,  3  Ala.  709  ;  Lowry  v.  Stowe,  7 
Port.  (Ala.)  483 ;  Fortenheim  v.  Clafiin, 
47  Ark.  49. 

In  Judge's  Handwriting. — Where  the 
jurat  was  in  the  judge's  handwriting, 
and,  though  not  signed  by  him,  was 
immediately  followed  by  an  order  for 
an  attachment,  reciting  that  the  judge 
had  read  the  petition,  affidavit,  etc. , and 
signed  by  him,  it  was  held  that  from 
the  circumstances  there  arose  the 
strongest  implication  that  the  affidavit 
had  been  sworn  to  before  him.  and 
that  it  would  be  sufficient  to  sustain  an 
assignment  for  perjury.  English  v. 
Wall,  12  Rob.  (La.)  132. 

4.  In  New  York  the  title  need  not 
be  given.  People  v.  Rennselaer  C.  P., 
6  Wend.  (N.  Y.)  543.  Contra,  Jackson 
V.  Stiles,  3  Cai.  (N.  Y.)  128,  Col.  &  C. 
Cas.  (N.  Y.)  468.  Where  the  clerk  re- 
ceives and  files  such  an  affidavit  it  is 
prima  facie  sufficient.  Hunter  v.  Le 
Conte,  6  Cow.  (N.  Y.)  728. 

Massachusetts. — Field,  J.:  "Affida- 
vits and  depositions,  lawfully  taken  by 
a  person  authorized  to  take  them,  are 
not  to  be  treated  as  unsworn  state- 
ments because  the  magistrate  has  not 
added  to  the  certificate  signed  by  him 
the  name  of  his  office.  Courts  permit 
the  certificate  to  be  amended,  or  with- 
out an  amendment  admit  evidence  of 
the  authority  of  the  person  by  whom 
they  were  taken,  if  they  do  not  take 
judicial  notice  of  it."  Jackman  v. 
Gloucester,  143  Mass.  380. 


318 


Sufficiency. 


AFFIDA  VI TS. 


Formal  Sequisites. 


the  officer  taking  the  affidavit  elects  to  give  the  title  of  his  office, 
a  well-understood  abbreviation  will  usually  suffice.* 


In  New  Jersey,  where  neither  the 
body  of  the  affidavit  nor  the  jurat, 
either  by  words  at  length  or  by  the 
accustomed  abbreviation,  states  the  of- 
ficial character  of  the  attesting  officer, 
the  affidavit  is  defective.  State  v. 
Hutchinson,  lo  N.  J.  L.  242. 

Minnesota, — See  also  Knight  v.  El- 
liott, 22  Minn.  551,  which,  however, 
was  distinguished  in  Bandy  z/.Chicago, 
etc.,  R.  Co.,  33  Minn.  380,  where  Gil- 
fillan,  C.  J.,  said:  "  But  if  the  proper 
official  character  appears  upon  the  face 
of  an  affidavit,  it  is  immaterial  in  what 
part  of  it.  It  may,  and  usually  does, 
appear  by  the  official  designation  being 
affixed  to  the  signature  subscribed  to 
the  jurat;  but  it  may  also  be  stated 
elsewhere  in  the  affidavit;  and  if  it 
appears  anywhere  on  the  face  of  the 
paper  that  the  person  before  whom  it 
was  sworn  was  an  officer  authorized 
to  take  affidavits,  it  is  sufficient." 
Thus  it  may  appear  in  the  titling,  as, 
"  State  of  Minnesota,  County  of  Scott. 
In  Justice's  Court,  before  M.  M. 
Shields,  Esq.,  Justice,"  and  the  jurat  is 
signed  "  M.  M.  Shields." 

Judicial  Notice. — In  California  and 
Indiana  the  courts  take  judicial  notice 
of  the  names  and  signatures  of  their 
officers.  Ede  v.  Johnson.  15  Cal.  53; 
Mountjoy  v.  State,  78  Ind.  172;  Hipes 
V.  State,  73  Ind.  39;  Buell  v.  State,  72 
Ind.  523;  Brooster  v.  State,  15  Ind.  190. 

Sufficiency  of  Title — Clerk. — Where 
the  jurat  to  an  affidavit  for  a  writ  of  at- 
tachment showed  that  the  affidavit  was 
sworn  to  before  "  A.  B.,"  but  the  writ, 
issued  on  the  same  day,  was  attested 
and  signed  by  "  A.  B.,  Clerk  of  the 
Alexandria  Circuit  Court,"  it  was  held 
that  the  court  would  presume  that  the 
affidavit  was  sworn  to  before  the  clerk. 
Singleton  v.  Wofford,  4  111.  576.  Like- 
wise in  a  replevin  suit  where  the  jurat 
was  signed  simply  "  A.  B.,  clerk,"  but 
the  signature  to  the  writ  gave  the  full 
title  of  the  clerk.  Branch  v.  Branch, 
6  Fla.  314.  And  where  by  statute  the 
clerk  of  the  county  court  acted  also  as 
clerk  of  the  probate  court,  and  the 
clerk  of  the  county  court  alone  could 
take  the  affidavits  of  subscribing  wit- 
nesses to  wills,  an  affidavit  purporting 
to  be  made  in  the  Probate  Court  of 
Montgomery  County,  the  jurat  of 
which  was  signed  "A.  B.,  Clk., 
P.  C.  M.  C,"  though  no  seal  of  office 


was  added,  sufficiently  showed  that  it 
had  been  sworn  to  before  the  clerk  of 
the  county  court.  Russell  v.  Oliver, 
78  Tex.  II. 

Insufficient. — But  the  following  pa- 
per purporting  to  be  an  affidavit  for 
publication  was  held  insufficient  be- 
cause it  did  not  appear  to  have  been 
sworn  to  by  any  one  or  before  any  offi- 
cer: "  The  State  of  Texas,  county  of 
McLennan.  This  day  personally  came 
and  appeared  before  A.  J.  E.,  clerk  of 
the  district  court  of  said  county,  and 
says  the  names  of  the  heirs  of  J.  W., 
deceased,  are  unknown  to  affiant.  J. 
R.  H.  A.  J.  E.  D.  C.  McL.  Co.,  Tex." 
Hardy  v.   Beaty,  84  Tex.  562. 

Wrong  Capacity. — Where  an  affidavit 
is  taken  before  a  special  officer,  it  will 
be  worthless  if  he  signs  the  jurat  in 
another  capacity.  Frost  v.  Hayward, 
10  M.  &  W.  673. 

Expiration  of  Commission. — Where  a 
statute  required  that  the  notary  public 
before  whom  an  affidavit  verifying  a 
lien  was  made  should  annex  to  his 
subscription  to  the  jurat  the  date  of 
the  expiration  of  his  commission,  and 
he  failed  to  do  so,  it  did  not  invalidate 
the  affidavit,  but  merely  subjected 
him  to  a  penalty.  Phelps,  etc..  Wind- 
mill Co.  V.  Baker,  49  Kan.  434. 

Deputy. — In  Colorado  an  affidavit 
which  read,  "A.  B.,  who  personally 
appeared  before  me,  J.  S.  S.,  county 
clerk,  deposes  and  says:  ...  In  wit- 
ness whereof  I  have  hereunto  set  my 
hand  and  seal  this  third  day  of  Au- 
gust, 1889.  J.  S.  S.,  County  Clerk,  by 
T.  T.,  Deputy,"  was  insufficient  be- 
cause it  showed  that  the  deponent  ap- 
peared before  the  clerk,  while  the  cer- 
tificate was  made  by  the  deputy. 
Palmer  v.  McCarthy,  2  Colo.  App.  422. 

But  in  Washington,  although  it  may 
be  an  irregularity  for  the  deputy  to 
sign  the  jurat  in  the  name  of  his  prin- 
cipal, by  himself  as  deputy,  it  is  not 
sufficient  to  destroy  the  force  of  the 
jurat.     State  v.  Rosener,  8  Wash.  42. 

And  in  Minnesota  a  jurat  signed 
"  F.  W.  E.,  Clerk  of  District  Court,  St. 
Louis  County,  per  J.  R.  C,  Deputy," 
is  sufficient  although  not  in  the  most 
approved  form.  Crombie  v.  Little,  47 
Minn.  581. 

1.  Abbreviations. — The  abbreviation 
"J.  P."  for  "Justice  of  the  Peace  "  is 
a  sufficient  designation  of  the  official 


319 


Sufficiency. 


AFFIDA  VJTS. 


Substance. 


Seal. — In  the  absence  of  statutory  requirement  the  officer's  seal, 
where  he  has  one,  need  not  be  added  ;*  but  in  most  states  a  no- 
tary pubHc  must  affix  his  seal.* 

f.  Date. — A  date  is  not  essential  to  an  affidavit.  If  a  mistake 
has  been  made  in  the  date,  it  is  competent  to  show  it.* 

2.  Substance. — a.  IN  GENERAL. — If  made  in  good  faith  and 
reasonably  sufficient,  an  affidavit  should  be  held  good.'* 


character  of  the  officer.  Green  v. 
Kindy,  i  Mich.  (N.  P.)  41;  Hawkins  v. 
State  (Ind.,  1894),  36  N.  E.  Rep.  419; 
Scudder  v.  Scudder,  10  N.  J.  L.  340; 
Larimer  v.  Knoyle,  43  Kan.  338;  Shat- 
tuck  V.  People,  5  111.477;  Livingston z/. 
Kettelle,  6  111.  116. 

And  "  N.  P."  is  a  sufficient  indica- 
tion of  the  title  "Notary  Public." 
Rowley  v.  Berrian,  12  111.  198. 

And  an  affidavit  is  not  defective  be- 
cause the  justice  in  attesting  the  jurat 
has  so  written  his  name  that  some  of 
the  letters  extend  over  the  printed 
letters  "J.  P."  Sieckman  v.  Ar- 
wein,  ID  Mo.  App.  259.  See  article 
Abbreviations. 

Demurrer. — And  it  seems  that  the 
omission  to  state  the  official  title  may 
not  be  taken  advantage  of  by  a  gener- 
al demurrer  to  the  sufficiency  of  the 
affidavit, for  the  jurat  is  no  part  of  the 
affidavit.  Smith  v.  Walker  (Ga.,  1894), 
18  S.  E.  Rep.  830. 

1.  Rosenstein  v.  State  (Ind.  App., 
1894),  36  N.  E.  Rep.  652;  Schaefer  v. 
Kienzel,  123  111.  430.  In  Qualter  v. 
State,  100  Ind.  92,  where  the  record 
affirmatively  showed  that  the  affidavit 
had  been  sworn  to,  the  absence  of  the 
seal  did  not  constitute  a  good  ob- 
jection. 

Treat,  C.  J.:  "Clerks  of  courts 
are  in  the  constant  habit  of  tak- 
ing affidavits  without  attaching  the 
seal  of  the  court  to  their  jurats,  and 
the  validity  of  their  acts  and  the  pro- 
priety of  the  practice  have  never  been 
questioned  "  Stout  v.  Slattery,  12  111. 
162;  Crombie  v.  Little  47  Minn.  581; 
Mountjoy  v.  State,  78  Ind.  172. 

But  the  seal  may  be  of  service, 
for,  in  Iowa,  where  a  clerk  insuf- 
ficiently stated  his  authority  and  the 
venue,  it  was  held  that  the  seal  of  the 
court  attached  should  be  taken  into 
consideration  to  supplement  the  defi- 
ciency.    Levy  V.  Wilson,  43  Iowa  605. 

2.  Iowa,  Indiana,  Nebraska.  —  The 
rule  obtains  in  Iowa,  Indiana,  and  Ne- 
braska. Tunis  V.  Withrow,  10  Iowa 
305.    77  Am.    Dec.    117;    Goodnow   v. 


Litchfield,  67  Iowa  691;  Miller  v.  Stale, 
122  Ind.  355;  Byrd  v.  Cochran  (Neb., 
1894),  58  N.  W.  Rep.  127. 

In  Illinois,  a  notary  taking  an  affi- 
davit to  be  used  in  the  county  of  his 
residence  peed  not  add  his  seal  to  his 
attestation.  But  when  the  affidavit  is 
to  be  used  in  another  county,  his  seal 
of  office,  or  some  other  evidence  of  his 
official  character,  is  indispensable. 
Stout  V.  Slattery,  12  111.  162.  In  this 
case  it  was  said  that  the  seal  is  not  re- 
quired by  the  common  law,  for  the 
power  itself  to  administer  oaths  is 
given  to  notaries  public  by  statute. 
Rowley  v.  Berrian,  12  111.  198.  But 
see  McKichan  v.  Follett,  87  111.  103. 

In  Georgia  and  Massachusetts  the  seal 
is  not  required.  Jowers  v.  Blandy,  58 
Ga.  379;  Clement  v.  Bullens,  159  Mass. 

193- 

3.  If  an  affidavit  is  untrue,"  perjury 
may  be  assigned  upon  it,  though  it 
may  have  no  date,  or  a  wrong  or  im- 
possible one,  and  the  true  tin:e  of 
making  it  may  be  averred  ai:d 
proved."  Freas  v.  Jones,  15  N.  J.  L. 
20.  But  see  Chase  v.  Edwards,  2 
Wend.  (N.  Y.)  283.  A  jurat  is  not  in- 
sufficient because  the  day  of  the  month 
is  omitted,  the  year  and  month  being 
given.  Scudder  v.  Scudder,  10  N.  J. 
L.  340.  Contra,  Duke  of  Brunswick  v. 
Slowman,  8  C.  B.  617,  65  E.  C.  L.  617. 
And  the  omission  cannot  be  cured  by 
reference  to  it  in  another  affidavit. 
See  also  Archibald  v.  Hubley,  18  Can. 
Sup.  Ct.  Rep.  116. 

4.  Haight  v.  Arnold,  48  Mich.  512. 
An  affidavit  to  a  plea  consisting  only 
of  the  plea  signed  by  the  party  and 
the  jurat  of  the  officer  is  sufficient. 
Chevallier  v.  Williams,  2  Tex.  239; 
Loeb  V.  Smith,  78  Ga.  504.  And  it  is 
no  objection  to  an  affidavit  that  the 
jurat  was  on  the  back,  and  that  thus 
the  affidavit  might  have  been  written 
after  the  jurat.  Noble  v.  U.  S., 
Dev.  Ct.  of  CI.  83.  And  for  further 
illustration  of  the  proposition  see 
State  V.  Central  Pac.  R.  Co.,  17  Nev. 
259;  Jamison  v.   Beecher,   4  Abb.  Pr. 


320 


Sufficiency. 


AFFIDAVI2S. 


Sabstance. 


Where  certain  language  is  prescribed  by  statute,  a  substantial 
compliance  therewith  will  suffice.^ 

It  should  be  free  from  scandalous  matter'-*  and  interlineations 
and  erasures,^  but  clerical  errors  will  not  vitiate  it.* 

Statements  should  be  made  positively  and  not  upon  information 


(N.  Y.)  230;  Fairbank  v.  Lorig,  4  Ind. 
App.  451;  Merrielles  v.  State  Bank,  5 
Tex.  Civ.  App.  483. 

Attachment. — Thus,  the  omission 
from  an  affidavit  for  an  attachment 
of  "  the  "  from  the  proper  phrase,  "  he 
says  '  the'  statements  in  the  foregoing 
petition  are  true,"  is  not  a  material 
defect.  Clark  v.  Miller,  88  Ky.  108. 
But  in  City  Nat.  Bank  v.  Flippen,  66 
Tex.  610,  the  court  decided  that  the 
omission  of  "is"  before  the  phrase 
"justly  indebted"  was  a  fatal  defect. 
Also  the  omission  of  the  word  "justly." 
Evans  v.  Tucker,  59  Tex.  249;  Thomp- 
son V.  Towson,  I  Har.  &  M.  (Md.) 
504.  Contra,  Livengood  v.  Shaw,  10 
Mo.  273. 

Drawn  up  by  Counsel. — Affidavits  of 
witnesses  drawn  up  by  counsel  and 
sworn  to  in  the  same  words  by  differ- 
ent persons  are  suspicious  and  objec- 
tionable. Moore  v.  Ewing,  i  N.  J.  L. 
144. 

1.  Thus  a  statement  that  a  claim 
"is  true  and  correct,  and  that  the 
same  is  due  and  owing  from  said 
county  to  deponent,"  is  a  substantial 
compliance  with  the  statutory  require- 
ment "that  the  amount  claimed  is 
justly  due."  Rhoda  v.  Alameda 
County,  65  Cal.  523;  Gibbons  v.  Shep- 
pard,  2  Brew.  (Pa.)  i;  Efection  Cases, 
65  Pa.  St.  20,  7  Phila.  (Pa.)  41;  Story  ^'. 
Story,  32  Ind.  137;  Fleming  v.  Wells, 
65  Cal.  336;  Large  v.  Keen's  Creek 
Draining  Co.,  30  Ind.  263,  95  Am.  Dec. 
6g6;  Russell  v.  Ralph,  53  Wis.  328; 
Scruggs  V.  Gibson,  40  Ga.  511. 

Beference. — Where  an  affidavit  com- 
plies in  statement  substantially  with 
the  statutory  requirements,  minor  de- 
fects may  be  aided  by  reference  to 
other  parts  of  the  record.  Miller  v. 
Eastman,  27  Neb.  408. 

Insufficient  Compliance. — But  a  stat- 
ute requiring  a  statement  in  the  affida- 
vit for  an  attachment  of  some  of  the 
grounds  upon  which  it  is  made  is  not 
satisfied  by  a  statement  "that  affiant 
has  good  reasons  aud  does  believe." 
Campbell  v.  Hall,  McCahon  (Kan.)  53, 
i  Kan.  488;  Cowles  v.  Hardin,  79  N. 
Car.  577.    And  "thinks"  is  not  equiv- 


alent to    "believes."     Rittenhouse  v. 
Harman,  7  W.  Va.  380. 

Becital. — Where  a  statutes  requires 
that  the  residence  of  the  deponent 
should  be  given,  it  will  not  be  suffi- 
cient to  give  it  merely  by  way  of  reci- 
tal. Staples  V.  Fairchild,  3  N.  Y.  41; 
Payne  z/.  Young,  8  N.  Y.  158. 

2.  Opdyke  v.  Marble,  18  Abb.  Pr. 
(N.  Y.)  375;  Lewis  v.  Woolrych,  3 
Dowl.  Pr.  Cas.  692;  Cassen  v.  Bond,  2 
Y.  &  J.  531;  Balls  V.  Smythe,  2  M.  & 
G.  350,  40  E.  C.  L.  406. 

3.  Didier  v.  Warner,  2  Edm.  Sel. 
Cas.  (N.  Y.)  41,  I  Code  Rep.  (N.  Y.) 
42;  Williams  v.  Clough,  i  Ad.  &  El. 
376,  28  E.  C.  L.  106;  Chambers  z*.  Bar- 
nard, 9  Dowl.  Pr.  Cas.  557. 

4.  Ross  V.  Davis,  13  Ark.  293;  Vin- 
cent V.  Snoqualmie  Mill  Co.,  7  Wash. 
566;  Corrigan  v.  Nichols  (Tex.  Civ. 
App.,  1894),  24  S.  W.  Rep.  952;  Huff- 
man V.  Hardeman  (Tex.,  1886),  i  S.  W. 
Rep.  575;  Weis  v.  Chipman,  3  Tex. 
Civ.  App.  106. 

Thus  the  use  of  the  word  "  national  " 
instead  of  "notarial"  in  the  phrase 
"  I  hereunto  set  my  hand  and  na- 
tional seal "  in  the  attestation  of  a 
notary  is  only  a  clerical  misprision  of 
no  importance.  Schwarz  v.  Baird 
(Ala.,  1893),  13  So.  Rep.  947.  And 
where  an  affidavit  for  publication 
against  a  non-resident  stated  that  the 
residence  of  the  defendant  "  was 
known  "  instead  of  "  unknown  "  to  the 
affiant.  Pierpont  v.  Pierpont,  19  Tex. 
227.  Likewise  where  an  affidavit  for 
attachment  stated  that  affiant  was  the 
agent  of  the  plaintiff,  and  then  con- 
tinued "  the  said  plaintiff  makes  oath,'' 
when  it  obviously  should  have  been 
"the  said  affiant,"  and  a  printed  form 
was  used.  Whipple  v.  Hill,  36  Neb. 
720.  And  the  failure  of  a  justice  of 
the  peace  before  whom  an  affidavit 
for  an  attachment  was  made  to  insert 
in  his  certificate  the  word  "  dollars  "  in 
the  amount  of  indebtedness  sworn  to, 
where  the  word  appeared  in  the  war- 
rant issued  by  the  justice,  was  merely 
a  clerical  error.  De  Bebian  v.  Gola, 
64  Md.  262;  Jean  v.  Spurrier,  35  Md. 
no. 


I  Encyc.  PI.  &  Pr. — 21. 


321 


Safficiency. 


AFFIDAVITS. 


Sabstance. 


and  belief,*  or  in  the  alternative.^     An  affidavit  should  not  state 
inconsistent  grounds  for  a  remedy  sought.* 

Opinions  and  Conclusions.— An   affidavit    should   not  state   matters  of 
opinion  or  conclusions  of  law.* 


1.  Den  V.  Den,  lo  N.  J.  L.  237; 
Thompson  v.  Higginbotham,  18  Kan. 
42;  Atchison  z*.  Bartholow,  4  Kan.  124; 
Winson  v.  Farmers',  etc.,  Nat.  Bank, 
81A  Pa.  St.  304;  Claflin  v.  Baere,  57 
How.  Pr.  (N.  Y.  Supreme  Ct.)  78. 

But  in  Virginia  it  was  held  that  the 
insertion  by  the  affiant  in  an  affidavit 
in  support  of  a  plea  of  non  est  factufti  of 
the  words  "to  the  best  of  his  knowl- 
edge and  belief  "  did  not  vitiate  the 
affidavit;  because  no  man  can  be  re- 
quired to  swear  positively  (if  at  all)  to 
legal  inferences.  Jackson  z'.  Webster, 
6  Munf.  (Va.)  462. 

And  in  New  York  the  addition  of  the 
words  "to  deponent's  best  knowledge, 
information,  and  belief "  does  not 
modify  or  detract  from  the  words 
previously  employed.  Pratt  z".  Stevens, 
94  N.  Y.  387.  "  The  true  rule  seems 
to  be  that  statements  in  affidavits  will 
be  presumed  to  have  been  made  on 
personal  knowledge  unless  stated  to 
have  been  on  information  and  belief, 
and  unless  it  appears  affirmatively  and 
by  fair  inference  that  they  could  not 
have  been  and  were  not  on  such  knowl- 
edge." Crowns  v.  Vail,  51  Hun  (N. 
Y.)  204.  Thus  an  allegation  in  an  affi- 
davit that  representations  were  false, 
as  deponent  "  had  since  learned," 
amounts  to  a  positive  averment  of 
their  falsity.  Cummings  v.  WooUey, 
16  Abb.  Pr.  (N.  Y.)  297,  note.  And 
an  affidavit  in  support  of  a  requisition 
which  positively  charges  a  crime  is  not 
made  insufficient  by  the  addition  to 
the  statement  "  as  deponent  verily 
believes."  In  re  Keller,  36  Fed.  Rep. 
681. 

In  Georgia  an  affidavit  to  an  account 
which  was  positive  as  to  a  certain  sum 
■was  not  rendered  defective  by  the  ex- 
pression by  the  affiant  of  his  belief  that 
a  still  larger  sum  was  due  than  the 
balance  exhibited.  Howard  v.  Mun- 
ford,  80  Ga.  166. 

2.  Wilke  V.  Cohn,  54  Cal.  212;  Blum 
V.  Davis,  56  Tex.  423;  Leonard  v.  Bow- 
man, 21  Civ.  Pro.  Rep.  (N.  Y.  Supreme 
Ct.)  237,  15  N.  Y.  Supp.  822;  Collins  v. 
Beebe  (Supreme  Ct.),  7  N.  Y.  Supp. 
442. 

Thus  an  affidavit  for  removal  of  exa- 
mination   which    states     "  that    from 


prejudice  or  other  cause  "  the  per- 
son charged  believed  that  the  justice 
would  not  decide  impartially  is  defec- 
tive because  in  the  alternative.  Bill- 
ings V.  Noble,  75  Wis.  325. 

Language  of  Statute. — But  if  the  affi- 
davit follows  the  language  of  the 
statute,  it  is  no  objection  that  it  is  in 
the  alternative.  Cunningham  v.  Doyle 
(C.  PL),  25  N.  Y.  Supp.  476;  Staub- 
sandt  V.  Lennon  (C.  PL),  22  N.  Y. 
Supp.  544;  Schwartz  v.  Allen  (Super. 
Ct.),  7  N.  Y.  Supp.  5. 

3.  Pearre  v.  Hawkins,  62  Tex.  434. 

4.  3  Greenleaf  Ev.  ^  381;  The  Con- 
stitution, I  Newb.  Adm.  107;  Hodg- 
man  v.  Barker  (Supreme  Ct.),  14  N.  Y. 
Supp.  574;  Westervelt  v.  Agrumaria 
Sicula  Societata,  etc.,  58  Hun  (N.  Y.) 
147,  II  N.Y.  Supp.  340;  Brown  v.  Keogh 
(City  Ct.),  14  N.  Y.  Supp.  915;  Catta- 
raugus Cutlery  Co.  v.  Case  (Supreme 
Ct.),  9  N.  Y.  Supp.  862;  Moore  v. 
Becker  (Supreme  Ct.),  13  N.  Y.  St.  Rep. 
567;  Labalt  z/.  Schulhof  (Supreme  Ct.), 
4  N.  Y.  Supp.  819;  Markey  v.  Diamond 
(City  Ct.),  19  N.  Y.  Supp.  181;  Wilmer- 
ding  V.  Cunningham,  65  How.  Pr.  (N. 
Y.  Supreme  Ct.),  344;  Delaplain  v. 
Armstrong,  21  W.  Va.  211;  Pemberton 
V.  Hoosier,  i  Kan.  108;  Baker  v. 
Akerman,  77  Ga.  89. 

"  An  affidavit  must  set  forth  facts 
specifically;  mere  general  denials  or 
general  averments,  which  involve 
questions  of  law  as  well  as  of  fact,  are 
insufficient."  Thus  it  is  insufficient  to 
state  that  defendant  has  a  "  just,  full, 
and  legal  defense,"  or  that  "  he  is  not 
legally  indebted  to  the  plaintiff  in  any 
sum  of  money  whatever,"  without 
coupling  with  it  any  specific  facts. 
Noble  V.  Kreuzhamp,  iii  Pa.  St.  68. 

Conclusions  of  Fact. — The  office  of  an 
affidavit  is  to  set  forth  the  evidence 
from  which  the  court  may  draw  con- 
clusions of  fact,  differing  in  this  re- 
spect radically  from  a  complaint,  which 
should  only  set  forth  conclusions  of 
fact  and  not  the  evidence  of  the  cor- 
rectness of  these  conclusions."  Me- 
chanics', etc.,  Bank  v.  Loucheim  (Su- 
preme Ct.),  8  N.  Y.  Supp.  520;  Thomp- 
son V.  Best  (Supreme  Ct.),  4  N.  Y. 
Supp.  229. 

Inferences. — An  affidavit  should  not 


322 


Sufficiency. 


AFFIDA  VI TS. 


Substance. 


b.  Parties. — The  body  of  the  affidavit  should  contain  the 
names  of  the  plaintiff  and  defendant  and  affiant,  but  it  will  be 
sufficient  if  shown  by  the  whole  instrument  who  they  are,* 

c.  Language. — It  is  immaterial  in  what  language  an  affidavit 
is  written,  provided  it  appears  that  the  affiant  understood  the  oath 
he  took.* 


\ 


state  facts  inferentially.  Feuchtwan- 
ger  V.  Dessar  (Supreme  Ct.),  5  N.  Y. 
Supp.  129;  Powell  V.  Kane,  5  Paige 
<N.  Y.)  265. 

Proof  by  Affidavit  can  only  be  made 
by  a  statement  and  verification  of  such 
facts  as  are  requisite  to  establish  the 
principal  fact  sought  to  be  maintained. 
Duanesburgh  v.  Jenkins,  40  Barb.  (N. 
Y.)  574- 

1.  PlaintifiF. — An  affidavit,  properly 
entitled  in  the  action,  by  a  plaintiff 
that  "he  was  the  plaintiff  above 
named"  was  suflHcient  although  his 
name  was  not  stated  in  the  body  of  the 
affidavit.  Morrison  v.  Watson,  23  N. 
Y.  Wkly.  Dig.  286. 

In  Michigan  an  affidavit  for  an  at- 
tachment which  must  be  annexed  to 
the  writ  need  not  name  the  plaintiff  if 
he  is  named  in  the  writ,  and  reference 
is  made  thereto.  Stringer  v.  Dean,  61 
Mich.  196.  The  reverse  is  true  in  the 
justice's  court,  where  the  affidavit  need 
not  be  annexed  to  the  writ.  Burnside 
V.  Davis,  65  Mich.  74.  But  an  affidavit 
for  an  attachment,  which  is  not  en- 
titled, which  nowhere  shows  who  is  the 
plaintiff  or  who  the  defendant,  which 
does  not  name  either  individually,  and 
does  not  state  who  "deponent"  is,  is 
entirely  insufficient.  Burgess  v.  Stitt, 
12  How.  Pr.  (N.  Y.  Supreme  Ct.)  401. 

The  fact  that  the  plaintiff  making  an 
affidavit  describes  himself  as  "guar- 
dian "  does  not  vitiate  it  if  it  is  still  his 
individual  oath.  Wade  v.  Roberts,  53 
Ga.  26. 

Partnership. — Although  it  is  the  bet- 
ter practice  to  set  out  the  names  of 
the  individuals  who  compose  a  defend- 
ant firm,  in  an  attachment  case,  the 
affidavit  will  not  be  void  if  the  firm 
only  be  named.  Johnson  v.  Smith,  83 
Ga.  779  ;  De  Leon  v.  Heller,  77  Ga. 
740.  Where  it  appeared  from  an  affi- 
davit made  for  a  company  that  it  was 
located  at  a  certain  place,  that  V.  was 
its  agent,  and  that  it  was  the  concern 
with  which  the  defendants  had  the  deal- 
ings which  were  the  basis  of  the  suit, 
it  was  held  that  the  affidavit  sufficient- 
ly described  who  was  the  real  plaintiff, 
although  the  names  of  the  copartners 


of  the  company  were  not  given. 
Emerson  v.  Detroit  Steel,  etc.,  Co. 
(Mich.,  1894).  58  N.  W.  Rep.  659, 

An  affidavit  the  titling  of  which  was 
simply  "A.  B.  Co.  v.  C.  &  D.,"but 
the  body  of  which  gave  the  indi- 
vidual as  well  as  the  firm  names  of 
the  defendants,  and  described  them 
as  partners  and  defendants  in  the  suit, 
sufficiently  showed  who  were  the  plain- 
tiffs. Munzesheimer  v.  Heinze,  74 
Tex.  254. 

Christian  Names. — An  error  in  the 
Christian  name  of  a  person,  in  a  part 
of  the  affidavit  which  may  be  treated 
as  surplusage,  will  not  vitiate  the  affi- 
davit. Selman  v.  Shackelford,  17  Ga. 
615.  But  an  affidavit  for  attachment 
by  the  attorney  of  the  plaintiffs  which 
states  only  their  surnames  is  defective, 
although  the  affiant  stated  that  their 
Christian  names  were  unknown  to  him. 
It  may,  however,  be  amended.  Barber 
V.  Smith,  41  Mich.  138. 

Affiant. — A  verification  subscribed  by 
the  affiant  is  sufficient  although  he  is 
not  named  in  the  body  thereof.  Cun- 
ningham V.  Doyle  (C.  PL),  25  N.  Y. 
Supp.  476  ;  People  v.  Sutherland,  81 
N.  Y.  I.  See  also  Voorheis  v.  Eiting 
(Ky.,  1893),  22  S.  W.  Rep.  80.  Where 
a  petition  to  a  court  of  insolvency, 
purporting  to  be  brought  by  the  two 
assignees  of  the  debtor,  was  signed 
only  by  "  A.  B.,"  a  person  of  the  same 
name  as  one  of  the  assignees,  without 
any  official  designation,  and  the  affi- 
davit attached  to  it  recited  that  the 
above-named  "A.  B."  appeared  and 
made  oath,  etc. .it  was  held  that  these 
considerations,  without  more,  would 
have  warranted  the  judge  of  the  court 
of  insolvency  in  finding  that  the  affi- 
davit was  made  by  an  assignee.  Clem- 
ent V.  Bullens,  159  Mass.  193. 

2.  It  is  no  objection  to  an  affidavit 
sworn  to  in  Germany  that  it  was  origi- 
nally in  the  German  language,  if  it  is 
translated,  and  the  translation  is  veri- 
fied; and  the  oath  may  be  administered 
in  German  if  it  is  translated  by  an  in- 
terpreter to  the  affiant.  In  re  Eady,  6 
Dowl.  Pr.  Cas.  615.  Where  the  jurat 
to  an  affidavit   made   by  a   foreigner 


323 


Sufficiency 


AFFIDA  FITS. 


Substance, 


d.  Oath. — Although  no  particular  ceremony,  as  raising  the 
hand,  is  required,  the  circumstances  must  show  that  there  was  an 
oath  or  affirmation  made  to  the  statements  of  the  affidavit.* 


certified  that  the  "affidavit  was  inter- 
preted by  F.  C,  professor  of  languages 
(he  having  first  sworn  that  he  under- 
stood the  English  and  French  langu- 
ages), to  the  deponent,  who  was  after- 
wards sworn  to  the  truth  thereof,"  it 
was  held  sufficient  though  it  did  not 
appear  thereby  that  the  deponent 
understood  the  language  in  which  the 
affidavit  was  interpreted,  or  that  the 
interpreter  was  sworn  truly  to  inter- 
pret. Bosc  V.  Solliers,  4  B.  &  C.  358; 
6  Dowl.  &  R.  514.  10  E.  C.  L.  356; 
Marzetti  v.  Comte  du  Jouffroy,  i 
Dowl.  Pr.  Cas.  41. 

But  in  California  it  has  been  held 
that,  on  a  motion  for  a  new  trial,  it  is 
not  error  for  the  court  to  exclude  affi- 
davits written  in  a  foreign  language 
in  support  of  it,  for  if  admitted  they 
would  have  been  of  no  service  to  the 
plaintiff  on  his  motion,  and  hence  he 
was  not  prejudiced  by  their  rejection. 
Spencer  v.  Doane,  23  Cal.  418. 

1.  Form. — From  a  jurat  which  states 
that  deponent  was  "duly"  sworn,  it 
will  be  presumed,  in  the  absence  of 
proof  to  the  contrary,  that  the  oath 
was  administered  'n  a  manner  binding 
on  the  conscience  of  the  deponent. 
Fryatt  v.  Lindo,  3  Edw.   Ch.  (N.  Y.) 

239- 

The  oath  of  a  Hebrew  to  a  bill  must 
be  according  to  the  oath  of  the  Jewish 
religion.  Newman  v.  Newman,  7  N.  J. 
Eq.  26. 

Although  the  body  of  an  affidavit 
recites  that  the  affiant  does  solemnly 
promise  and  swear  (or  affirm),  and  the 
jurat  reads,  "  affirmed  before  me," 
it  is  nevertheless  sufficient.  State  v. 
Shreeve,  4  N.  J.  L.  297. 

Where,  in  the  presence  of  a  justice 
of  the  peace,  an  affidavit  was  read 
over  to  the  affiant  and  then  handed  to 
the  justice,  who  asked  the  latter  if  he 
would  swear  to  it,  and  he  replied 
he  would,  but  "  did  not  hold  up  his 
right  hand  and  swear,"  and  by  mis- 
take neither  affidavit  nor  jurat  was 
signed,  though  both  parties  testified 
that  they  thought  they  were  doing 
everything  to  make  the  oath  binding 
— held,  what  was  done  was  sufficiently 
formal.     Dunlap  v.  Clay,  65  Miss.  454. 

Insufficient. — The  attorney  for  the 
plaintiff  in  a  suit  to  foreclose  a  chattel 


mortgage  wrote  out  the  affidavit  and 
signed  his  name  to  it  as  attorney  for 
the  plaintiff,  then  carried  it  to  the 
clerk  of  the  court,  sitting  at  his  desk, 
laid  it  thereon,  and  said  to  him : 
"  Here  is  an  affidavit  I  want  to  swear 
to.  I  have  already  signed  it.  The 
facts  stated  in  it  are  true."  It  was  not 
proved  that  the  clerk  heard  him.  No 
formal  oath  was  administered,  and  the 
clerk  did  not  until  long  afterward 
affix  a  jurat  to  the  affidavit,  and  he 
testified  that  he  had  no  recollection  of 
administering  the  oath.  Held,  that 
the  affidavit  was  not  duly  made.  Mat- 
thews V.  Reid  (Ga.,  1894),  19  S.  E.  Rep. 
247. 

An  agent  of  a  creditor  went  to  a 
justice  of  the  peace  and  asked  him  to 
prepare  the  papers  for  the  issuance  of 
an  attachment  against  the  debtor, 
stating  to  him  the  amount  owed  and 
the  grounds  for  the  attachment.  The 
officer  hurriedly  prepared  the  affidavit, 
writ,  and  bond,  and,  handing  them  to 
the  agent,  asked  "  if  that  was  what  he 
wanted."  The  agent  answered  "  Yes, 
that  it  was  all  right."  The  affidavit 
was  not  signed  and  no  attempt  was 
made  to  administer  an  oath,  though 
the  agent  testified  that  he  considered 
he  was  making  affidavit.  Held,  that 
these  circumstances  did  not  constitute 
the  taking  of  an  affidavit;  and  that  the 
question  was  determinable,  not  from 
what  one  of  the  parties  considered  he 
was  doing,  but  from  what  was  actually 
done.     Carlisle  v.  Gunn,  68  Miss.  243. 

A  paper  which  reads:  "State  of 
West  Virginia,  Lewis  County,  to  wit: 
A.  C.  this  day  personally  appeared 
before  me,  W.  G.  H.,  clerk  of  the  Cir- 
cuit Court  in  and  for  the  county  and 
state  aforesaid;  that  he  has  instituted 
an  action  of  covenant  in  the  Circuit 
Court  of  Lewis  County  against  T.  M., 
which  action  is  now  pending  and  un- 
determined," etc.,  and  is  signed, 
"Given  under  my  hand  this  21st  day 
of  June,  1884.  W.  G.  H.,  Clerk,"  can- 
not be  regarded  as  an  affidavit,  be- 
cause it  does  not  state  that  the  depo- 
nent was  duly  sworn  or  stated 
anything  under  oath,  and  does  not 
conclude  with  a  jurat.  Cosner  v. 
Smith,  36  W.  Va.  788. 

Secital  by  Officer. — Where  a  statute 


324 


Who  May  Make. 


AFFIDA  FITS. 


Who  May  Make. 


III.   Who  May  Make — Competency  of  Affiants The  peculiar  uses  of 

affidavits  necessitate  rules  for  the  competency  of  affiants  differing 
from  those  of  ordinary  witnesses.* 

Parties  to  Cause. — Affidavits  required  for  the  various  stages  of  legal 
procedure  may  always  be  made  by  parties  to  the  cause.* 


requires  as  grounds  for  an  attachment 
that  certain  material  facts  shall  ap- 
pear by  affidavit,  it  is  not  sufficient 
that  a  recital  of  them  is  made  in  the 
body  of  the  affidavit  by  the  notary  be- 
fore whom  the  affidavit  was  made, 
when  it  does  not  appear  that  all  the 
facts  were  also  sworn  to  by  the  affiant. 
Hudkins  v.  Haskins,  22  W.  Va.  645. 

1.  Interested  Parties. — Parties  who, 
by  reason  of  interest,  would  have  been 
incompetent  witnesses  were  allowed 
to  make  affidavits  for  some  purposes; 
^s  on  motions,  U.  S.  v.  Twenty-eight 
Packages,  Gilp.  (U.  S.)  311;  and  in 
proof  of  a  lost  paper,  Tayloe  v.  Riggs, 
I  Pet.  (U.  S.)  591.  But  see  M'Bride 
V.  Floyd,  2  Bailey  (S.  Car.)  209. 

Negro. — In  1850  it  was  held  by  the 
Circuit  Court  for  Indiana  that  the  affi- 
davit of  a  negro  was  admissible  in 
Jiabeas  corpus  proceedings,  though  he 
was  not  a  competent  witness  under 
the  state  law.  Norris  v.  Newton,  5 
McLean  (U.  S.)  92.  Likewise  the  affi- 
davit of  a  free  negro.  DeLacy  v.  An- 
toine,  7  Leigh  (Va.)  438.  And  in  Ken- 
tucky, when  a  party  to  the  suit,  his 
affidavit  was  admissible  in  any  case 
where  the  affidavit  of  a  party  was  re- 
quired or  admissible,  although  he 
could  not  in  all  cases  be  a  witness. 
Com.  V.  Oldham,  i  Dana  (Ky.)  466. 

Wife. — The  affidavit  of  a  wife  prose- 
cuting or  defending  as  a.  feme  sole  in  a 
suit  for  divorce  will  be  received. 
Kirby  v.  Kirby,  i  Paige  (N.  Y.)  261. 

Atheist. — The  affidavit  of  a  party  to 
a  suit  cannot  be  excluded  by  virtue  of 
the  filing  of  counter-affidavits  alleging 
that  he  is  an  atheist.  Leonard  v. 
Manard,  i  Hall  (N.  Y.)  200. 

Witness. — Where  an  affidavit  is  ad- 
missible upon  certiorari  no  legal  objec- 
tion can  exist  to  such  affidavit  being 
made  by  the  witness  who  was  before 
the  justice.  Goldsmith  v.  Bane,  8  N. 
J.  L.  87.  But  the  affidavits  of  persons 
who  would  have  been  competent  wit- 
nesses and  might  have  been  called 
are  not  admissible.  Patterson  v. 
Fagan,  38  Mo.  70. 

An  affidavit  admitted  in  evidence  at 
the  hearing  ol  an  application  for  an 
injunction,  .no  objection  being  made 


on  the  ground  of  the  incompetency  of 
the  affiant  and  no  motion  being  made 
to  rule  it  out,  may  be  considered, 
whether  the  affiant  was  competent  or 
not.     Putney  v.  Kohler,  84  Ga.  528. 

Felon. — In  New  York  a  person  con- 
victed of  forgery  and  not  pardoned  is 
not  competent  to  make  an  affidavit, 
and  does  not  become  competent  by 
serving  out  his  term.  People  v.  Rob- 
ertson, 26  How.  Pr.  (N  Y.  Supreme 
Ct.)  90.  If  made  after  indictment, 
although  before  conviction,  the  affi- 
davit still  cannot  be  received,  for  the 
incompetency  relates  back  to  the  in- 
dictment. Webster  v.  Mann,  56  Tex. 
119,  42  Am.  Rep.  688. 

Lanatic. — An  affidavit  sworn  to  in  a 
lunatic  asylum  without  the  statement 
in  the  jurat  of  the  circumstances, 
whereby  the  mental  condition  of  the 
affiant  may  be  inquired  into,  was  or- 
dered to  be  stricken  from  the  ^files. 
Spittle  V.  Walton,  L.  R.  11  Eq.  420,  40 
L.  J.  Ch.  368. 

Young  Child.— The  affidavit  of  the 
loss  and  contents  of  a  bond,  which  by 
statute  is  required  to  be  made  by  one 
having  knowledge  of  the  facts,  cannot 
be  made  by  one  who  at  the  time  of  its 
execution  was  only  a  child  between 
five  and  eight  years  old.  Cheek  v. 
James,  2  Heisk.  (Tenn.)  170. 

Guardian. — A  guardian  of  a  minor, 
whether  natural  or  specially  ap- 
pointed, may  make  an  affidavit  in 
replevin  for  him.  Wilson  v.  Me-ne- 
chas,  40  Kan.  648. 

Printer. — A  statute  requiring  an  affi- 
davit by  the  "printer"  of  a  paper  is 
satisfied  by  that  of  a  person  who  de- 
scribes himself  as  "the  proprietor." 
Quivey  v.  Porter,  37  Cal.  458;  Menard 
V.  Crowe,  20  Minn.  448;  Bunce  v. 
Reed,  16  Barb.  (N.  Y.)  347;  Sharp  v. 
Daugney,  33  Cal.  513. 

Juror. — The  affidavit  of  a  juror, 
sworn  to  be  true  by  another  person, 
may  be  treated  as  the  original  affida- 
vit of  the  latter.  Wilson  v.  Berry- 
man,  5  Cal.  44,  62  Am.  Dec.  78. 

2.  Marshall,  C.  J.:  "Questions 
which  do  not  involve  the  matter  in 
controversy,  but  matter  which  is  aux- 
iliary to  the  trial,  which  facilitate  the 


325 


Who  May  Make. 


AFFIDA  VI TS. 


"Who  May  Make, 


Attorneys.— And  they  may  also  often  be  made  by  the  attorney  or 
soHcitor  of  the  parties.* 


preparation  for  it,  often  depend  on  the 
oath  of  the  party.  An  affidavit  to  the 
materiality  of  a  witness,  for  the  pur- 
pose of  obtaining  a  continuance,  or  a 
commission  to  take  his  deposition,  or 
an  affidavit  of  his  inability  to  attend, 
is  usually  made  by  the  party  and  re- 
ceived without  objection.  So  affidavits 
in  support  of  a  motion  for  a  new  trial 
are  often  received."  Tayloe  v.  Riggs, 
I  Pet.  (U.S.  591.) 

A  party's  affidavit  may  be  received 
in  support  of  a  motion  for  judgment, 
as  in  case  of  nonsuit.  Ames  z/.  Merri- 
man,  9  Wend.  (N.  Y.)  498.  An  affida- 
vit may  be  made  by  a  party  in  interest 
even  if  not  a  party  to  the  record. 
Fraley  v.  Steinmetz,  22  Pa.  St.  437; 
Sleeper  v.  Dougherty,  2  Whart.  (Pa.) 
177;  Hunter  v.  Reilly,  36  Pa.  St.  509; 
Miller  v.  Hooker,  2  How.  Pr.  (N.  Y.) 
124. 

California. — Under  §  446,  Code  of 
Civil  Procedure  of  California,  which 
prescribes  that  pleadings  shall  be  veri- 
fied by  the  plaintiff  or  his  attorney,  it 
is  sufficient  if  one  of  two  codefend- 
ants,  alone,  makes  the  affidavit.  Clai- 
borne V.  Castle,  98  Cal.  30. 

Eepresentatives. — Statutes  requiring 
the  affidavits  of  parties  are  fulfilled  by 
the  affidavits  of  the  legal  representa- 
tives of  such  parties,  if  they  them- 
selves are  under  disability  to  take  an 
oath. 

Corporation. — Thus  the  chief  officer  of 
a  corporation  may  make  its  affidavits. 
Ex  p.  Sargeant,  17  Vt.  425.  And  they 
can  be  made  not  only  by  the  president 
or  attorney,  but  also  by  the  secretary, 
or  any  officer  or  agent  of  the  corpora- 
tion. St.  Louis,  etc.,  R.  Co.  v.  Fow- 
ler, 113  Mo.  458.  For  a  municipality 
the  affidavit  may  be  made  as  well  by 
the  city  attorney  as  by  the  mayor  and 
other  chief  officers.  Corpenny  v.  Se- 
dalia,  57  Mo.  88.  An  affidavit  by  a 
bank  which  stated  that  M.  was  the 
president  of  the  bank,  and  was  signed 
simply  "  M.,  Pres.,"  was  sufficient. 
First  Nat.  Bank  v.  Graham  (Tex.  App., 
1889),  22  S.  W.  Rep.  iioi;  West  Ten- 
nessee Agricultural,  etc.,  Assoc,  v. 
Madison,  9  Lea  (Tenn.)  407.  An  affi- 
davit which  read,  "  The  said  plaintiff, 
the  Moline,  Milburn  and  Stoddard  Co., 
makes  oath,  and  the  said  S.  W.  Croy, 
agent  of  the  Moline,  Milburn  and 
Stoddard  Co.,  also  makes  oath,"  etc.. 


and  was  signed  by  the  agent,  suffi- 
ciently showed  from  an  examination 
of  the  whole  paper  that  it  was  the 
affidavit  of  the  agent,  although  the 
first  clause  purported  to  be  the  affida- 
vit of  the  corporation  itself.  Moline, 
etc.,  Co.  V.  Curtis  (Neb.,  1893),  57  N. 
W.  Rep.   161. 

But  in  Wisconsin  an  affidavit  for  a 
corporation  of  another  state  cannot  be 
made  by  the  "general  agent"  or 
"  managing  agent  "  in  that  state.  It 
must  be  made  by  an  officer  of  the  cor- 
poration, and  not  by  a  mere  attorney 
or  agent.  Wheeler,  etc.,  Mfg.  Co.  v. 
Lawson,  57  Wis.  400;  Western  Bank  v. 
Taliman,  15  Wis.  92. 

Secretary. — And  under  the  statute  of 
Congress  (14  U.  S.  Sts.  fat  Large,  559) 
providing  for  the  removal  of  cases 
from  a  state  to  a  federal  court  upon 
the  affidavit  of  the  party  seeking  it, 
an  affidavit  cannot  be  made  on  behalf 
of  a  corporation  by  its  secretary,  un- 
less he  is  specially  authorized  to  make 
it.  Dodge  V.  Northwestern  Union 
Packet  Co.,  13  Minn.  458. 

A  Partnership,  as  such,  cannot  make 
an  affidavit.  Gaddis  v.  Durashy,  13 
N.  J.  L.  324;  Norman  v.  Horn,  36  Mo. 
App.  419.  But  it  may  do  so  by  its 
agent,  who  may  sign  the  firm  name 
"by"  his  own.  Bennett  v.  Gray,  82 
Ga.  592. 

Number  of  Affiants. — Peters,  J.;  "  As 
many  persons  as  choose  to  do  so  may 
swear  in  the  identical  same  words  and 
verify  their  oaths  by  their  signatures, 
and  whether  the  oath  is  written  on  one 
or  many  pieces  of  paper  makes  no 
difference."  Taylor  v.  State,  48  Ala. 
180. 

1.  Thus,  for  an  appeal,  Coppock  v. 
Smith,  54  Miss.  640;  to  a  plea  in  abate- 
ment, Atwood  V.  Higgins,  76  Me.  423; 
for  a  certiorari,  McAlpin  v.  Finch,  18 
Tex.  831;  for  an  attachment.  Weaver 
V.  Roberts,  84  N.  Car.  493;  Clark  v. 
Miller,  88  Ky.  108;  Hardie  v.  Colvin, 
43  La.  Ann.  851;  Fulton  v.  Brown,  la 
La.  Ann.  350. 

Betts,  J.:  "  The  courts  of  law,  as  a 
general  rule,  require  affidavits  to  the- 
merits  of  a  cause,  and  in  those  in- 
stances where  the  diligence  and  good 
faith  of  a  party  are  in  question,  to  be 
made  by  the  party  himself.  Still  the 
rule  in  those  cases  is  not  inflexible,  for 
the  deposition  of  an  attorney  or  other 

26 


Who  May  Make. 


AFFIDA  VI TS. 


Who  May  Make. 


Agents  may,  in  many  cases,  make  affidavits  for  their  principals.* 


person  may  be  substituted  when 
good  cause  is  shown  for  the  change. 
Williams  v.  Magill,  i  H.  Bl.  637; 
Peake's  N.  P.  97;  Geib  v.  Icard,  11 
Johns.  (N.  Y.)  82;  Roosevelt  v.  Dale, 
2  Cow.  (N.  Y.)  581 ;  Chase  v.  Edwards, 
2  Wend.  (N.  Y.)  283."  A  proctor  in 
admiralty  can  make  an  affidavit  for  the 
party.  The  Harriet,  Olc.  Adm.  222. 
See  Affidavits  of  Merits. 

Knowledge  of  Facts. — If  the  attorney 
has  personal  knowledge  of  the  facts, 
he  may  generally  make  the  affidavit. 
Rausch  z*.  Moore,  48  Iowa  611,  30  Am. 
Rep.  412;  Will  V.  Lytle  Creek  Water 
Co.,  100  Cal.  344.  And  an  affidavit  of 
an  attorney  or  agent  making  positive 
statements  need  not  give  his  source  of 
knowledge.  Anderson  v.  Wehe,  58 
Wis.  615.  And  see  Doll  v.  Mundine, 
84  Tex.  315. 

But  in  New  York ,  if  he  has  not  the 
knowledge,  and  no  excuse  is  given  for 
the  failure  of  the  party  to  make  the 
affidavit,  his  affidavit  is  generally  in- 
sufficient. Cross  V.  National  F.  Ins. 
Co.,  17  Civ.  Pro.  Rep.  (N.  Y.  Supreme 
Ct.)  199,  6  N.  Y.  Supp.  84;  Clark  v.  Sul- 
livan (Supreme  Ct.),  8  N.  Y.  Supp.  565; 
Pach  V.  Geoffroy  (Supreme  Ct.),  19 
N.  Y.  Supp.  583;  Talbert  v.  Storum, 
66  Hun  (N.  Y.)  635,  21  N.  Y.  Supp. 
719;  Van  Ingen  v.  Herold  (Supreme 
Ct.),  19  N.  Y.  Supp.  456;  Cohn  v. 
Baldwin  (Supreme  Ct.),  26  N.  Y.  Supp. 
457.  And  an  attorney  who  makes  an 
affidavit  in  respect  of  a  transaction  of 
his  client  will  not  be  presumed  to  have 
any  personal  knowledge  of  the  facts 
as  to  which  he  affirms.  Crowns  v. 
Vail,  31  Hun  (N.  Y.)  204. 

In  Missouri  an  affidavit  for  change  of 
venue  in  civil  cases  must  be  made  by 
the  party  himself  and  not  by  his  attor- 
ney. Lewin  v.  Dille,  17  Mo.  64;  Huth- 
sing  V.  Maus,  36  Mo.  loi;  Norvell  v. 
Porter,  62  Mo.  309;  In  re  Whitson's 
Estate,  89  Mo.  58;  Squires  v.  Chilli- 
cothe,  89  Mo.  226.  See  Change  of 
Venue. 

In  Colorado,  under  a  statute  which 
requires  that  an  affidavit  for  publica- 
tion of  summons  shall  be  made  by  a 
party  to  the  action,  it  cannot  be  made 
by  the  attorney,  except  possibly  in  a 
very  exceptional  case,  and  then  by 
reason  of  his  interest.  Davis  v.  John 
Mouat  Lumber  Co.,  2  Colo.  App.  381; 
Morton  v.  Morton,  16  Colo,  358. 

Absent    Plaintiff. — Where    a    statute 


authorized  an  affidavit  to  be  made  by 
the  attorney  or  agent  of  the  plaintiff 
when  the  latter  was  absent,  it  could 
not  be  made  for  an  absent  plaintiff 
by  the  attorney  usually  employed  by 
the  plaintiff,  but  who  at  the  time  of 
making  the  affidavit  had  not  consulted 
with  the  plaintiff  in  reference  to  in- 
stituting the  particular  proceedings, 
though  his  acts  were  ratified  by  the 
plaintiff  upon  coming  to  his  knowledge. 
Johnson  v.  Johnson,  31  Fed.  Rep.  700. 

The  Affidavits  of  Two  Attorneys, 
swearing  to  different  facts,  will  be 
sufficient  if,  taken  together,  they 
cover  all  the  facts.  Lewis  v.  Stewart, 
62  Tex.  352. 

In  Indiana  attorneys  may  make  affi- 
davits for  their  clients,  as  ether  agents. 
Abbott  V.  Zeigler,  g  Ind.  511.  But  see 
Shattuck  V.  Myers,  13  Ind.  46. 

The  Attorney's  Clerk  cannot,  in  gen- 
eral, make  the  affidavit.  Ames  v. 
Merriman,  9  Wend.  (N.  Y.)  498;  Pitts- 
burgh Bank  v.  Murphy  (Supreme  Ct.), 
18  N.  Y.  Supp.  575. 

Counsel  for  the  party  may  not  make 
affidavits  unless  he  has  personal 
knowledge  or  gives  a  sufficient  excuse 
for  the  failure  of  the  party  himself  to 
make  it.  People  v.  Spalding,  2  Paige 
(N.  Y.)  326;  Marshall  v.  Witte,  i 
Phila.  (Pa.)  117;  Gross  v.  Painter,  i 
W.  N.  C.  (Pa.)  154;  Philadelphia  v. 
Devine,  i  W.  N.  C.  (Pa.)  358.  But  in 
Deshay  v.  Persse,  9  Abb.  Pr.  (N.  Y.) 
289,  note,  an  affidavit  by  counsel  was 
allowed  to  be  supplemented  at  the 
hearing  by  his  statement  that  the 
party  was  absent. 

And  in  Iowa  the  professional  state- 
ment of  counsel,  when  received  by 
the  court,  is  to  be  regarded  as  an  affi- 
davit.    Rice  V.  Griffith,  9  Iowa  539. 

1.  McWortert/.  Reid,  i  Hill  (S.  Car.) 
368;  Allen  V.  Champlin,  32  La.  Ann. 
511;  Deering  z*.  Warren,  i  S.  Dak.   35. 

But  not  in  all  cases.     Thus: 

In  Georgia  an  affidavit  to  be  allowed 
to  make  a  claim  \n  forma  pauperis  may 
not  be  made  by  an  agent.  Hadden  v. 
Larned,  83  Ga.  636. 

And  in  Kansas  an  affidavit  for  an 
execution  may  not  be  made  by  a  mere 
agent.     In  re  Heath,  40  Kan.  333, 

In  Missouri,  Minnesota,  Michigan,  Ala- 
bama, and  Texas  it  is  proper  but  not 
indispensable  that  an  affidavit  by  an 
agent  should  expressly  swear  to  the 
existence  of    the   agency.     Recital  of 


327 


Who  Attthorized  to  Take. 


AFFIDA  VI TS. 


Within  the  State. 


Third  Person. — And  sometimes  even  a  third  person  may  make  the 
affidavit.' 

rv.  Who  Atjthoeized  to  Take— 1.  Within  the  State. — Affida- 
vits must  be  made  before  some  officer  authorized  either  generally 
or  specially  to  administer  oaths  and  affidavits.'-* 


it  will  suffice.  Remington  Sewing 
Machine  Co.  v.  Cushen,  8  Mo.  App. 
528;  Smith  V.  Victorin,  54  Minn.  338; 
Wetherwax  v.  Paine,  2  Mich.  557; 
Murray  v.  Cone,  8  Port.  (Ala.)  252; 
Evans  v.  Lawson,  64  Tex.  199.  But 
see  Willis  v.  Lyman,  22  Tex.  268.  In 
Missouri  the  agency  may  appear 
aliunde.  Ring  v.  Chas.  Vogel  Paint, 
etc.,  Co.,  46  Mo.  App.  374. 

In  Looisiana,  New  York,  and  Wis- 
consin the  contrary  has  been  held. 
Lithgow  V.  Byrne,  17  La  Ann.  8;  Ex  p. 
Bank  of  Monroe,  7  Hill  (  N.  Y.)  177; 
Ex  p.  Aldrich,  i  Den.  (N.  Y.)  662; 
Cunningham  v.  Goelet,  4  Den.  (N.  Y.) 
71;  Ex  p.  Shumway,  4Den.  (N.  Y.)  258; 
People  V.  Perrin,  i  How.  Pr.  (N.  Y.) 
75;  Wiley  V.  Aultman,  53  Wis.  560; 
Sloane  v.  Anderson,  57  Wis.  123,  135; 
Miller  v.  Chicago,  etc.,  R.  Co.,  58  Wis. 
310.     See  also  Hill  v.  Hoover,  5  Wis. 

354- 

Behalf  of  Principal.  —  An  affidavit 
made  by  an  agent  should  show  that  it 
is  made  on  behalf  of  the  principal. 
Mackey  v.  Hyatt,  42  Mo.  App.  443; 
Gilkeson  v.  Knight,  71  Mo.  403; 
Stringer  v.  Dean,  61  Mich.  196;  Nic- 
olls  V.  Lawrence,  30  Mich.  395. 

In  Arkansas  the  affidavit  need  not 
state  that  the  affiant  made  it  for  the 
plaintiff,  as  the  court  will  not  presume 
he  was  unauthorized.  Mandel  v.  Peet, 
18  Ark.  236. 

1.  As  in  the  absence  or  sickness  of 
the  party  himself.  James  v.  Young,  i 
Dall.  (Pa.)  248;  Sleeper  v.  Dougherty, 
2  Whart.  (Pa.)  177. 

But  an  affidavit  for  supplementary 
proceedings  which  was  not  made  by 
the  judgment  creditor  or  his  attorney, 
but  by  one  who  failed  to  show  that  he 
was  authorized  to  make  it  in  behalf  of 
the  creditor,  is  insufficient.  Brown  7'. 
Walker  (Supreme  Ct.),  8  N.  Y.  Supp, 

59- 

"  The  correct  rule  would  seem  to 
be  that  when  a  defendant  puts  in  a 
stranger's  affidavit,  it  must  show  upon 
its  face  sufficient  reason  why  it  was 
not  made  by  the  defendant  himself; 
that  a  real  disability  existed  which 
prevented  him  from  making  it,  and 
the  circumstances  giving  rise  to  the 


disability."  Griel  v.  Buckins,  114  Pa. 
St.  187. 

2.  State  V.  Green.  15  N.  J.  L.  88; 
Ladow  V.  Groom,  i  Den.  (N.  Y.)  429; 
Greenvault  v.  Farmers,  etc.,  Bank,  2 
Doug.  (Mich.)  498. 

General  Authority. — Where  an  affida- 
vit is  required  and  no  particular  officer 
is  designated,  it  may  be  made  before 
any  officer  having  general  authority 
to  administer  oaths  and  affidavits. 
Dunn  V.  Ketchum,  38  Cal.  93;  Christ- 
man  V.  Floyd,  9  Wend.  (N.  Y.)  340; 
Wood  V.  Jefferson  County  Bank,  9 
Cow.  (N.  Y.)  194. 

Tinder  Acts  of  Congress. — For  use  in  the 
courts  of  the  United  States,  affidavits 
must  be  made  before  some  person  au- 
thorized by  act  of  Congress  or  rule  of 
court  to  take  them.  Haight  v.  Morris 
Aqueduct,  4  Wash.  (U.  S.)  601;  Gray 
V.  Tunstall,  Hempst.  (U.  S.)  558.  Or 
by  regulation  of  the  head  of  a  de- 
partment. U.  S.  V.  Bailey,  9  Pet. 
(U.  S.)  238.  Or  by  the  custom  of  a 
department.  U.  S.  v.  Winchester,  2 
McLean  (U.  S.)  135. 

An  act  of  Congress  may  authorize  a 
state  magistrate  to  take  affidavits  in 
support  of  claims  against  the  United 
States.  U.  S.  v.  Bailey,  9  Pet.  (U.  S.) 
238. 

As  to  what  affidavits  for  use  in 
United  States  courts  may  be  made  be- 
fore notaries  public,  see  In  re  Mc- 
Kibben,  12  Nat.  Bank  Reg.  97,  2 
Cent.  L.  J.  277.  A  notary  public  ap- 
pointed by  a  state  had  not,  prior  to 
the  passage  of  the  act  of  Congress, 
Feb.  26,  1881,  power  to  administer  an 
oath  to  an  officer  of  a  national  bank, 
making  a  report  under  i;  5211  of  the 
Revised  Statutes.  U.  S.  v.  Curtis, 
107  U.  S.  671. 

An  affidavit  upon  which  a  requisi- 
tion was  sought,  the  venue  of  which 
reads,  "State  of  Wisconsin,  Muni- 
cipal Court,  City  and  County  of  Mil- 
waukee," and  the  jurat  of  which  is 
signed  "  J.  M.,  Cleric  of  the  Municipal 
Court,"  sufficiently  conforms  to  the 
act  of  Congress  providing  that  the 
affidavit  shall  be  sworn  to  before  "  a 
magistrate."  In  re  Keller,  36  Fed. 
Rep.  6S1. 


328 


Who  Authorized  to  Take. 


AFFIDAVITS. 


Within  the  State. 


Judges  and  clerks  of  courts,*  justices  of  the  peace,*  notaries 
public,^ 

2.  But  they  are  not  authorized  ex  of- 
ficio. Munn  V.  Merry,  14  N.  J.  L.  183; 
Matter  of  Highway,  16  N.  J.  L.  91. 

In  New  Jersey  before  the  act  of  Feb. 
14,  1839,  Rev.  Sts.  871,  a  justice  could 
not  administer  an  oath  except  upon 
proceedings  before  him.  Smith  v.  Ab- 
bott, 17  N.  J.  L.  358.  See  also  Anony- 
mous, 8  N.  J.  L.  176;  Vanderveer  v. 
Conover,  16  N.  J.  L.  490;  Hunt  v. 
Langstroth,  9  N.  J.  L.  223. 

Kentucky. — Nor  were  they  author- 
ized in  Kentucky.  Trabue  v.  Holt,  2 
Bibb  (Ky.)393;  Green  v.  Breckinridge, 
4T.  B.  Mon.  (Ky.)  541. 

In  New  York  they  were  authorized 
by  the  act  of  1840.  People  v.  Brooks, 
I  Den.  (N.  Y.)  457,  43  Am.  Dec.  704. 
And  see  People  v.  Tioga,  7  Wend. 
(N.  Y.)5i6. 

But  in  Delaware  and  Alabama  they 
may  take  affidavits.  Shute  v.  Gould, 
4  Harr.  (Del.)  203;  Bloodgood  v. 
Smith,  14  Ala.  423. 

In  Missouri  the  act  of  1847,  provid- 
ing that  affidavits  taken  under  it 
could  be  made  before  any  court  of 
record  within  the  United  States,  did 
not  take  from  justices  of  the  peace  the 
power  to  take  affidavits.  Glasgow  v. 
Switzer,  12  Mo.  395. 

In  Arkansas  they  may  administer 
oaths  anywhere  within  the  limits  of 
their  respective  counties,  although 
they  are  not  authorized  to  act  judicial- 
ly in  civil  proceedings  beyond  their 
respective  townships.  Humphries  v. 
McCraw,  5  Ark.  61. 

3.  They  did  not  necessarily  have 
the  power  at  common  law,  but  it  is 
universally  granted  by  statute.  Prof- 
fat  on  Notaries,  sec.  24;  Keefer  v. 
Mason,  36  111.  406. 

In  Missouri  they  have  the  same 
power  to  administer  oaths  as  any  judi- 
cial officer.  State  v.  Boland,  12  Mo. 
App.  74. 

Alabama. — Under  the  law  of  Ala- 
bama a  notary  public  is  a  justice  of  the 
peace,  and  as  such  he  may  administer 
an  oath.     Taylor  v.  State,  48  Ala.  180. 

In  Illinois  a  notary  public  who  has 
authority  to  administer  oaths  general- 
ly may  take  the  affidavit  of  the  service 
of  a  summons  by  a  special  deputy 
sheriff.  Edwards  v.  McKay,  73  111. 
570. 

In  New  York  the  statute  conferring 
on   notaries   the   authority  to   certify 


1.  Judges. — In  the  absence  of  statu- 
tory provision  to  the  contrary,  affi- 
davits to  be  read  in  common-law 
courts  upon  any  trial  or  argument  may 
be  taken  in  open  court  or  before  a 
judge  thereof  at  chambers.  English 
V.  Bonham,  15  N.  J.  L.  451. 

In  New  York  the  judges  of  the 
Courts  of  Common  Pleas  were  by 
statute  ex  officio  commissioners  for 
taking  affidavits  to  be  read  in  the  Su- 
preme Court,  and  could  take  affidavits 
in  any  county.  Hopkins  v.  Mender- 
back,  5  Johns.  (N.  Y.)  234. 

Clerks. — Under  the  Code  of  Virginia 
of  i860,  ch.  176,  §  27,  which  be- 
stowed upon  "any  court,  or  the  clerk 
of  any  court,"  authority  to  administer 
affidavits,  the  clerk  of  the  District 
Court  of  the  United  States  for  the 
Dictrict  of  West  Virginia  was  in- 
cluded. Parker  v.  Clark,  7  W.  Va. 
467.  But  see  Robinson  v.  Gregg,  57 
Fed.  Rep.  186. 

In  West  Virginia  the  provision  of 
the  Code  (1868,  p.  585,  ch.  117,  §  6) 
that  "  a  clerk  of  a  court  or  his  deputy 
may  administer  an  oath  in  any  case 
wherein  an  affidavit  is  necessary  or 
proper"  does  not  limit  their  authority 
to  cases  in  which,  without  regard  to 
circumstances,  the  making  the  affida- 
vit is  a  necessary  prerequisite  to  the 
performance  of  an  official  act  which 
the  clerk  is  called  upon  to  perform, 
but  extends  it  to  all  cases  wherein  an 
affidavit  is  necessary.  Chesapeake, 
etc.,  R.  Co.  V.  Patton,  5  W.  Va.  234. 

In  Tennessee  an  affidavit  to  the  loss 
of  an  instrument  upon  which  suit  has 
been  brought  must  be  made  before  the 
clerk  of  the  court,  or  before  the  court 
where  the  suit  was  commenced  or  is 
pending.  Baker  v.  Grigsley,  7  Heisk. 
(Tenn.)  627. 

In  Illinois  a  clerk  of  the  Circuit 
Court  is  authorized  to  administer  an 
oath  to  a  party  making  affidavit  upon 
which  to  found  a  ca.  sa.  Fergus  v. 
Hoard,  15  111.  357. 

An  affidavit  for  an  attachment  need 
not  be  made  before  the  same  clerk 
who  issues  the  writ.  Wright  v.  Smith, 
66  Ala.  545.  See  also  Wicker  v.  Scho- 
field,  59  Ga.  210. 

Beyond  Jurisdiction. — But  a  clerk  for 
one  county  may  not  administer  an  affi- 
davit in  another.  Tanner,  etc.,  Engine 
Co.  V.  Hall,  22  Fla.  391. 


329 


Who  Authorized  to  Take. 


AFFIDA  VI TS. 


Within  the  State. 


and  commissioners*  are  the  officers  usually  empowered. 

Deputy. — Except  in  the  absence  of  a  competent  officer,  his  dep- 
uty, unless  also  authorized  by  statute,  should  not  take  affidavits.* 

Attorney. — In  general,  the  attorney  of  record  of  the  party  may 
not  take  affidavits  offered  by  him.^ 


afiSdavits  was  not  construed  as  re- 
stricted to  affidavits  in  actions  pending 
only.  Mosher  v.  Heydrich,  i  Abb. 
Pr.  N.  S.  (N.  Y.)  258,  30  How.  Pr. 
(N.  Y.)  161. 

1.  Wire  V.  Browning,  20  N.  J.  L.  364. 

In  New  York  commissioners  to  take 
affidavits  to  be  read  in  the  Supreme 
Court  might  take  affidavits  to  be  read 
in  a  justice's  court.  Whitney  v. 
Warner,  2  Cow.  (N.  Y.)  499. 

The  act  of  March  24,  1818,  author- 
izing the  appointment  of  commission- 
ers to  perform  certain  special  duties, 
did  not  supersede  the  authority  of  the 
commissioners  appointed  by  the  court 
to  take  affidavits.  Jones  v.  Smith,  16 
Johns.  (N.  Y.)  232.  But  the  office  of 
commissioners  to  take  affidavits,  under 
the  act  of  1818,  in  the  cities,  became 
vacant  by  the  appointment  of  new 
commissioners  for  the  cities  under  the 
act  of  1823.  Brown  v.  Osborne,  2 
Cow.  (N.  Y.)457. 

Proof  of  Commission. — To  validate  an 
affidavit  taken  before  a  public  commis- 
sioner, his  commission  need  not  be 
proved.  Rex  v.  Howard,  i  M.  &  R. 
187.  See  also  Parker  v.  Baker,  8 
Paige  (N.  Y.)  428. 

Others. — In  New  York  a  state  sena- 
tor could  take  affidavits.  Craig  v. 
Briggs,  4  Paige  (N.  Y.)  548.  But  a 
master  in  chancery  could  not  take  an 
affidavit  of  the  publication  of  a  notice 
for  creditors  to  appear.  Stanton  v. 
Ellis,  16  Barb.  (N.  Y.)  319.  And  a 
coroner  cannot  in  that  state  adminis- 
ter oaths.  Berrien  v.  Westervelt,  12 
Wend.  (N.  Y.)  194.  Nor  an  assistant 
justice  of  a  ward  court,  as  a  judge  of 
a  court  of  record.  Wood  v.  Williams, 
I  N.  Y.  Leg.  Obs.  154. 

In  Kansas  affidavits  may  be  made 
before  a  register  of  deeds.  Thompson 
V.  Higginbotham,  18  Kan.  42. 

Pennsylvania. — The  recorder  of  the 
city  of  Philadelphia  may  take  affida- 
davits.  Election  Cases,  65  Pa.  St.  20,  2 
Brew.  (Pa.)  i,  7  Phila.  (Pa.)  41; 
Schumann  v.  Schumann,  6  Phila.  (Pa.) 
318. 

Arkansas. — An  affidavit  made  "in 
the  County  of  Sebastian,  State  of  Ar- 
kansas,    before     John     F.     Wheeler, 


mayor,"  was  made  before  one  utterly 
unknown  to  the  laws  of  that  state. 
Edmondson  v.  Carnall,  17  Ark.  284. 
But  where  the  statute  gives  a  mayor 
the  powers  of  a  justice  of  the  peace 
he  may  take  an  affidavit.  Robinson 
V.  Benton  County,  49  Ark.  49. 

2.  In  general  a  deputy  clerk  may 
not  take  them.  Norton  v.  Colt,  2 
Wend.  (N.  Y.)  250;  Murdock  v.  Hillyer, 
45  Mo.  App.  287.  Nor  a  oX&xV  pro  tern. 
State  V.  Bayonne,  35  N.  J.  L.  476. 

In  Pennsylvania  the  deputy  of  the 
prothonotary  may  take  them.  Elec- 
tion Cases,  7  Phila.  (Pa.)  41,  2  Brew. 
(Pa.)  I,  65  Pa.  St.  20. 

And  an  oath  required  to  be  adminis- 
tered by  a  collector  of  customs  may 
also  be  administered  by  his  legal  dep- 
uty.     U.   S.   V.   Barton,   Gilp.  (U.   S.) 

439- 

In  Minnesota  and  Michigan  a  deputy 
clerk  is  authorized  to  administer 
oaths.  Crombie  v.  Little,  47  Minn.  581. 
In  the  latter  state  whether  his  princi- 
pal is  absent  or  not.  Dorr  v.  Clark,  7 
Mich.  310. 

In  New  York,  under  a  statute  allow- 
ing a  deputy  clerk  to  administer  oaths 
in  the  "  absence  "  of  the  clerk,  the  lat- 
ter must  be  absent  not  only  from 
the  office,  but  from  the  neighborhood. 
Lucas  V.  Ensign,  4  N.  Y.  Leg.  Obs. 
142. 

In  Washington  also  he  is  authorized 
by  statute,  and  should  sign  the  jurat 
in  his  own  capacity  without  mention- 
ing his  principal.  State  v.  Doe,  6 
Wash.  587. 

The  certificate  to  the  verification  of 
a  complaint  which  read,  "  Sworn  ard 
subscribed  to  before  me,  etc.,  A.  J.  R,, 
Clerk  of  the  Circuit  Court  of  the  Uni- 
ted States  for  the  Eastern  District  rf 
North  Carolina,  in  the  Fourth  Circuit, 
by  Wm.  H.  Shaw,  Deputy  Clerk,"  was 
held  insufficient  because  "  some  one 
else  than  the  clerk  states  that  the 
affiant  came  before  the  clerk,  and  was 
sworn,  presumably  by  him,  and  sub- 
scribed the  oath.  This  statement  can- 
not bind  the  clerk  and  is  but  secondary 
evidence  of  the  facts  stated."  Robin- 
son V.  Gregg,  57  Fed.  Rep.  186. 

3.  King   V.    Wallace,    3    T.   R.   403; 


330 


\ 


Who  Authorized  to  Take. 


AFFIDA  VI TS. 


Foreign  Affidavits. 


2.  Foreign  Affidavits  may  generally  be  made  before  any  officer 
of  another  state  or  county  authorized  by  its  laws  to  administer 


Hopkinson  v.  Buckley,  8  Taunt.  74, 
4  E.  C.  L.  23;  1  Lee  Die.  Pr.  28;  i 
Petersd.  Ab.  368,  9;  2  Paine  &  Duer 
Pr.  54- 

Kansas. — Tottlez'.  Smith,  34  Kan.  27; 
Foreman  v.  Carter,  9  .Kan.  681;  War- 
ner V.  Warner,  ii  Kan.  121;  Schoen  v. 
Sunderland,  39  Kan.  758. 

Colorado. — Andersons.  Sloan,  i  Colo. 
33;  Martin  v.  Skehan,  2  Colo.  614. 

In  Arkansas  an  attorney  in  the  cause 
cannot  even  take  an  affidavit  of  the 
service  of  a  notice,  though  not  made 
by  the  party.  Hammond  v.  Freeman, 
9  Ark.  62. 

New  York. — Anonymous,  4  How.  Pr. 
(N.  Y.  Supreme  Ct.),  290;  Kuh  v.  Bar- 
nett  (Super.  Ct.),  6  N.  Y.  Supp.  881; 
Murray  w.  Hefferman,  2  Month  L.  Bull. 
67;  Bliss  V.  Molter,  58  How.  Pr.  (N.  Y. 
Supreme  Ct.)  112.  In  this  case  the  at- 
torney did  not  indorse  his  name  on  the 
paper  until  after  the  affidavits  were 
taken,  but  the  court  decided  that  he 
was  throughout  acting  as  attorney.  In 
Vary  v.  Godfrey,  6  Cow.  (N.  Y.)  587, 
it  was  implied  that  the  affidavit  would 
have  been  excluded  even  if  the  attor- 
ney had  been  merely  retained. 

"  The  rule  which  excludes  an  affida- 
vit taken  before  the  attorney  is  merely 
technical  and  has  never  in  this  state 
been  extended  beyond  the  case  of  the 
attorney  or  solicitor  on  record.  In 
Willard  v.  Judd  (15  Johns.  (N.  Y.)  531), 
the  Supreme  Court  refused  to  extend 
the  principle  to  the  counsel  in  the 
cause.  And  in  Hallenback  v.  Whita- 
ker  (17  Johns.  (N.  Y.)  2)  the  same  court 
decided  that  it  did  not  extend  to  the 
partner  of  the  attorney  on  record,  al- 
though he  was  interested  in  the  profits 
of  the  business.  The  Supreme  Court 
reluctantly  consented  to  adopt  the  rule 
in  the  case  of  Taylor  v.  Hatch  (12 
Johns.  (N.  Y.)340),  because  they  found 
the  practice  to  be  thus  settled  in  the 
Court  of  King's  Bench.  But  the  latter 
court  has  never  extended  the  rule  be- 
yond the  attorney  on  record."  People 
V.  Spalding,  2  Paige  (N.  Y.)  326. 

Suit  Not  Pending. — The  rule,  how- 
ever, applies  only  to  affidavits  made  be- 
fore an  attorney  in  a  suit  pending,  not 
to  those  preparatory  to  the  commence- 
ment of  one.  Vary  v.  Godfrey,  6  Cow. 
(N.  Y.)  587;  Willard  v.  Judd,  15  Johns. 
(N.  Y.)  531;  Hallenback  z/.  Whitaker, 
17  Johns.  (N.  Y.)  2;  Gilmore  v.  Hemp- 


stead, 4  How.  Pr.  (N.  Y.  Supreme  Ct.) 
IS3;  Howard  v.  Nalder,  Barnes' 
Notes,  60;  Adams  v.  Mills,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  219. 

An  attorney  may  take  the  oath  of 
admeasurers  of  dower.  Griffin  v. 
Borst,4  Wend.  (N.  Y.)  195. 

The  Attorney's  Partner  may  take. 
Duke  of  Northumberland  v.  Todd,  7 
Ch.  Div.  777;  Turner  z/.  Bates,  10  Q.  B. 
292,  59  E.  C.  L.  290;  Hallenback  v. 
Whitaker,  17  Johns.  (N.  Y.)  2. 

Attorney's  Clerk. — In  England,  for- 
merly, the  affidavit  might  be  taken 
before  the  clerk  of  the  attorney  of 
record.  Goodtitle  v.  Badtitle,  8  T.  R. 
638.  But  not  now.  3  Chit.  Gen.  Pr, 
492.  It  may  be  taken  by  a  clerk  of  a 
firm  of  solicitors,  where  one  of  the  so- 
licitors was  a  party,  but  the  firm  not 
solicitors  of  record.  Foster  v.  Har- 
vey, 4  De  G.,  J.  &  S.  59.  And  in 
Nebraska  a  notary  who  is  a  clerk  of 
an  attorney  may  administer  an  oath 
to  verify  a  pleading  prepared  by  such 
attorney.  Schuyler  Nat.  Bank  v.  Bol- 
long,  24  Neb.  821. 

In  Wisconsin  the  attorney  may  take 
the  affidavit  of  his  client,  though  it  is 
said  to  be  an  obvious  impropriety. 
Dawes  v.  Glasgow,  i  Pin.  (Wis.)  171. 

Attorney  and  Notary. — In  most  states 
where  the  attorney  is  also  a  notary 
public  he  may  take  the  affidavit. 
Reavis  v.  Cowell,  56  Cal.  588;  Kuh- 
land  V.  Sedgwick,  17  Cal.  128;  McCas- 
lin  V.  Camp,  26  Mich.  390;  Sullivan  v. 
Hall,  86  Mich.  7;  Young  v.  Young, 
18  Minn.  90;  Ryburn  v.  Moore,  72 
Tex.  85.  A  notary  is  not  disquali- 
fied by  the  fact  of  being  the  prosecut- 
ing attorney  from  taking  affidavits  to 
be  used  by  the  state.  State  v.  Noland, 
in  Mo.  473. 

In  Kansas  the  affidavit  is  voidable 
only  and  may  be  amended.  Swearin- 
gen  V.  Howser,  37  Kan.  126. 

In  Colorado  and  Missouri,  although 
notary,  he  may  not  take.  Frybarger 
V.  McMillan,  15  Colo.  349;  Smith  v. 
Ponath,  17  Mo.  App.  262. 

Attorney  and  Justice. — In  Massachu- 
setts a  justice  of  the  peace,  also  the 
attorney,  may  administer  an  oath  to 
his  client.  McDonald  v.  Willis,  143 
Mass.  452.  Contra,  Hammond  v.  Free- 
man, 9  Ark.  62. 

Objection  to  an  aflSdavit  because 
made  before  the  attorney  should   be 


331 


^ho  Authorized  to  Take. 


AFFIDA  FITS. 


Foreign  Affidavits. 


an  oath,*  and  are  generally  duly  authenticated  if  they  are  sub- 
scribed by  such  officer,  and  there  is  annexed  to  them  a  certificate 
of  the  clerk  or  other  officer  of  a  court  of  record  of  such  state  or 
county,  under  an  official  seal,  verifying  the  genuineness  of  the 
signature  of  the  first-mentioned  officer,  and  his  authority  to  ad- 
minister an  oath.     But,  although  this  is  the  usual  form,  nearly  all 

made  promptly  or  it  will  be  disre- 
garded. Gilmore  v.  Hempstead,  4 
How.  Pr.  (N.  Y.  Supreme  Ct.)  153; 
Linck  V.  Litchfield,  141  111.  469;  Smith 
V.  Ponath,  17  Mo.  App.  262. 

Solicitor. — The  affidavit  may  not  be 
made  before  the  solicitor  of  the  party. 
Pullen  V.  Pullen,  46  N.  J.  Eq.  318. 

Counsel. — But  if  made  before  the 
counsel  of  the  party,  it  may  be  read, 
as  there  is  not  the  same  objection. 
Willard  v.  Judd,  15  Johns.  (N.  Y.)  531; 
People  V.  Spalding,  2  Paige  (N.  Y.) 
326;  Atchison  v.  Glenn,  4  Cranch. 
(C.  C.)  134;  State  V.  Bergen,  24  N.  J. 
L.  548.  Contra,  Den  v.  Geiger,  9  N.  J. 
L.  225. 

1.  Hays  V.  Bouthalier,  i  Mo.  346; 
Fox  V.  Lawson,  44  Ala.  319. 

In  New  York  it  is  usual  to  allow  affi- 
davits in  support  of  collateral  matters 
arising  during  the  progress  of  a  suit, 
as  on  a  motion  for  a  commission  to  ex- 
amine witnesses  abroad,  to  be  taken 
before  magistrates  or  public  officers  out 
of  the  state.  Marshall  v.  Mott,  13 
Johns.  (N.  Y.)423. 

For  Use  in  Pennsylvania  an  affidavit  of 
debt  might  be  made  before  a  justice  of 
the  peace  in  England.  Walker  v. 
Bamber,  8  S.  &  R.  (Pa.)  61;  Burandon 
V.  Flindt,  5  Haz.  Pa.  Reg.  382. 

Where  an  affidavit  which  purported 
to  have  been  sworn  to  before  "  Thom. 
Williamson,  Alderman,  Bo.  of  Nor- 
folk," was  objected  to  because  it 
did  not  appear  that  it  had  been  taken 
before  any  one  authorized  by  law  to 
administer  an  oath,  the  court  held  that 
although  they  might  not  judicially 
know  that  an  alderman  of  Norfolk  had 
the  power  to  administer  an  oath,  yet, 
in  the  absence  of  any  evidence  to  the 
contrary,  it  was  sufficient.  Noble  v. 
U.  S.,  Dev.  Ct.  of  CI.  83. 

A  Number  of  Early  Cases  held  that  af- 
fidavits might  not  be  made  outside  the 
state  before  officers  of  another  state. 
Scull  V.  Alter,  16  N.  J.  L.  147;  Anony- 
mous, 8  N.  J.  L.  176;  Trenton  Bank  z'. 
Wallace,  9  N.  J.  L.  83;  Reid  v.  Brum- 
mitt,  I  Brev.  (S.  Car.)  16. 

In  Kentucky  such  affidavits  were  not 
admissible  except   upon  an  answer  in 


chancery.       Ramy    v.     Kirk,    9    Dana 
(Ky.)  267. 

Notary  Public. — Nor  were  they  ad- 
mitted even  when  made  before  a  notary 
public.  Benedict  v.  Hall,  76  N.  Car. 
113;  Spragella  v.  Bruno,  i  Mill  (S. 
Car.)  281.  Contra,  Tucker  v.  Ladd, 
4  Cow.  (N.  Y.)  47. 

Ohio. — An  affidavit  for  use  in  Ohio 
cannot  be  made  in  another  state  be- 
fore a  clerk  of  a  court  of  record  of  that 
state.  Fitch  v.  Campau,  31  Ohio  St. 
646. 

Commissioners  are  very  generally  ap- 
pointed by  the  various  states  to  take 
affidavits  outside  the  state.  Irving  v. 
Edrington,  41  La.  Ann.  671;  Andrews 
V.  Ohio,  etc.,  R.  Co.,  14  Ind.  169. 

Consul. — Under  the  act  of  March  10, 
1853  (Nix.  Dig.  132,  pi.  57),  a  consul  of 
the  United  States  may  take.  Seidel 
z'.  Peschkaw,  27  N.  J.  L.  427.  A  consul 
of  the  United  States,  in  attesting  an 
affidavit  made  before  him  in  his 
capacity  of  notary  public,  bestowed 
upon  him  by  the  act  of  Congress, 
should  give  his  title  of  office  not  simply 
as  "  Consul,"  but  as  "  Notary  Public," 
or  "  Consul  and  ex-officio  Notary  Pub- 
lic." Bruce  v.  Gibson,  5  Cin.  L.  Bull. 
(Ohio)  loi. 

Where  an  agreement  was  made  be- 
tween solicitors  that  an  answer  to  be 
given  in  France  might  be  taken  and 
sworn  to  by  any  person  authorized  to 
administer  oaths  by  the  laws  of  France, 
and  the  answer  was  sworn  to  before 
the  American  consul,  held,  not  within 
the  agreement.  Herman  v.  Herman, 
4  Wash.  (U.  S.)555. 

An  affidavit  of  a  plaintiff  residing 
in  Havana,  taken  before  the  com- 
mercial and  naval  agent  of  the  United 
States  resident  there,  may  be  read  on 
a  motion  for  a  commission  to  take  the 
examination  of  witnesses  abroad. 
Welsh    V.     Hill,     2     Johns.     (N.    Y.) 

373- 

Lord  Mayor. — In  Pennsylvania,  in 
1785,  an  affidavit  of  debt  sworn  to 
before  the  Lord  Mayor  of  London  was 
held  to  be  sufficient.  Taylor  v.  Knox, 
I  Dall.  (Pa.)  158.  And  see  Rogers  v. 
Spalden,  Jeff.  (Va.)  58. 


332 


Use  of. 


AFFIDA  FITS. 


TTse  oL 


the  states  prescribe  a  method  of  authenticating  foreign  affidavits, 
with  which  there  must  be  a  substantial  compHance,  or  they  will 
generally  be  void.* 

v.  Use  of  Affidavits. — In  practice  affidavits  are  most  fre- 
quently used  to  initiate  legal  proceedings,  and  to  further  the 
various  stages  therein  ;  to  certify  and  prove  the  service  of  process, 
or  other  matters  relating  to  the  proceedings  in  a  cause  ;  and  to 
support  or  oppose  motions,  in  cases  where  a  court  determines 
matters  in  a  summary  way  ;*  and  for  various  other  purposes.^ 

1.  Phelps  V.  Phelps,  6  Civ.  Pro,  Rep. 
(N.  Y.  Supreme  Ct.)  117;  Cream  City 
Furniture  Co.  v.  Squier,  2  Misc.  Rep. 
(N.  Y.)  438,  21  N.  Y.  Supp.  972.  See 
also  Wood  V.  St.  Paul  City  R.  Co.,  42 
Minn.  411  ;  Hyatt  v.  Swivel,  52  N.  Y. 
Super  Ct.  I. 

For  illustration  of  a  substantial  com- 
pliance with  such  statutes,  see  Ross  v. 
Wigg,  34  Hun  (N.  Y.)  192,  6  Civ.  Pro. 
Rep.  (N.  Y.)  277;  Manufacturers',  etc., 
Bank  v.  Cowden,  3  Hill  (N.  Y.)46r; 
National  Exchange  Bank  v.  Stelling, 
32  S.  Car.  102. 

Georgia. — An  affidavit  taken  outside 
the  state  and  lacking  the  authentica- 
tion of  the  official  character  of  the  per- 
son administering  the  oath  cannot  be 
recognized  in  Georgia.  Behn  v. 
Young,  21  Ga.  207. 

In  Missouri  the  official  character  of 
a  judge  of  another  state,  before  whom 
an  affidavit  is  made,  is  sufficiently 
proved  by  a  certificate  of  the  clerk  of 
the  court  under  the  seal  of  the  court. 
Hays  V.  Bouthalier,  i  Mo.  346.  Like- 
wise that  of  a  justice  of  the  peace. 
Posey  V.  Buckner,  3  Mo.  604. 

North  Carolina. — An  affidavit  made 
before  a  commissioner  of  North  Caro- 
lina, resident  outside  the  state,  is  suf- 
ficiently verified  when  authenticated 
by  his  official  signature  and  seal. 
Young  V.  Rollins,  85  N.  Car.  485. 
When  taken  by  the  clerk  of  a  court  of 
another  state,  the  affidavit  must  be 
accompanied  by  a  certificate  of  the 
judge  concerning  the  identity  and  au- 
thority of  the  clerk.  Miazza  v.  Cal- 
loway, 74  N.  Car.  31. 

In  Illinois  and  New  Tork  an  affidavit 
taken  before  a  notary  public  of  an- 
other state,  to  be  admissible  in  evi- 
dence, must  show  that  the  notary  was 
authorized  by  his  state  to  administer 
oaths.  Keefer  v.  Mason,  36  111.  406; 
Bowen  v.  Stilwell,  9  Civ.  Pro.  Rep. 
(N.  Y.  City  Ct.)  277;  Williams  v.  Cul- 
hane  (C.  PI.),  22  N.  Y.  St.  Rep.  42,  3 
N.  Y.  Supp.  241. 


Maryland,  Texas,  Iowa. — Under  the 
Maryland  attachment  law,  when  the 
affidavit  is  made  outside  the  state  and 
before  a  judge  of  a  court  of  record  it 
must  be  accompanied  by  a  certificate 
of  the  clerk  of  the  court,  under  its 
seal,  stating  that  the  court  is  a  court 
of  record.  It  will  not  be  presumed 
from  the  seal  that  the  court  is  a  court 
of  record.  Evesson  v.  Selby,  32  Md. 
340;  Coward  v.  Dillinger,  56  Md.  59. 
Contra,  Moore  v.  Carson,  12  Tex.  66. 

In  loiua  it  may  be  proved  aliunde. 
Levy  V.  Wilson,  43  Iowa  605. 

Judicial  Record. — An  affidavit  made 
in  another  state  is  not  a  judicial  record 
within  the  meaning  of  the  act  of  Con- 
gress providing  a  method  for  the  au- 
thentication of  such,  but  is  sufficiently 
certified  when  in  accordance  with  the 
requirements  of  the  state  in  which  it 
is  offered.  Dillon  v.  Rand,  15  Colo. 
372;  Gibson  v.  Tilton,  i  Bland  (Md.) 
352,  17  Am.  Dec.  306. 

The  Term  "Foreign  Affidavits"  em- 
braces those  made  in  foreign  countries 
as  well  as  those  made  in  other  states. 

2.  I  Burr.  L.  Diet.  tit.  "Affidavit." 
For  the  use  of  affidavits  in  particular 
proceedings  see  various  titles  in  this 
work,  as  Attachment,  Change  of 
Venue,  etc. 

3.  Affidavits  may  be  introduced 
tending  to  prove  partiality  or  misbe- 
havior of  arbitrators,  but  not  mistake 
in  law  or  fact.  Pleasants  v.  Ross,  i 
Wash.  (Va.)  157,  i  Am.  Dec.  449. 

Pedigree. — An  ex  parte  affidavit  is 
good  evidence  to  prove  the  identity  of 
a  person  so  far  as  it  respects  his  mar- 
riage or  pedigree.  Winder  v.  Little,  i 
See  also  Douglass 
Dall.  (Pa.)  116,  I 
Depositions  of  de- 
ceased witnesses  (whether  made  in  or 
out  of  the  state)  taken  in  another 
cause  between  other  parties  may  be 
admitted  as  declarations  of  pedigree, 
whether  made  after  or  before  the 
question  of  pedi&ree  became  a  subject 


Yeates  (Pa.)  152. 
V.  Sanderson,  2 
Yeates  (Pa.)   15. 


333 


Use  of. 


AFFIDA  VI TS. 


Use  of. 


As  Evidence. — Upon  the  trial  of  a  material  question  at  issue,  they 


of  controversy.  Boudereau  v.  Mont- 
gomery, 4  Wash.  (U.  S.)  i86.  But  an 
affidavit  made  in  another  state  nearly 
half  a  century  previous  to  the  trial  is 
not  admissible  to  prove  pedigree, 
there  being  no  proof  that  affiant  is 
dead.  Peterson  v.  Ankrom,  25  W.  Va. 
56;  Kellar  v.  Nutz,  5  S.  &  R.  (Pa.) 
246. 

As  Pleadings. — The  records  of  courts 
cannot  be  proved  by  affidavits;  nor  can 
an  affidavit  be  made  to  take  the  place 
or  serve  the  purpose  of  an  answer  in 
abatement  or  in  bar.  Kellogg  v.  Suther- 
land, 38  Ind.  154. 

In  Virginia,  according  to  the  settled 
doctrine  of  the  court,  when  an  account 
of  the  transactions  of  a  fiduciary  has 
been  ordered  upon  a  proper  bill,  if 
additional  objections  to  the  settled  ex 
J)arte  accounts  are  discovered  in  the 
progress  of  the  cause,  the  plaintiff,  to 
save  the  expense  and  delay  of  an 
amended  bill,  is  permitted  to  present 
the  matter  before  the  commissioner 
with  proper  specifications  in  writing, 
and  the  defendant  is  allowed  to  meet 
these  by  affidavit,  which  has  the  same 
weight  as  would  be  given  to  an  answer 
in  chancery.  Davis  v.  Morriss,  76  Va. 
21;    Corbin  v.    Mills,   19    Gratt.   (Va.) 

465- 

Argument. — On  a  motion  for  a  final 
order  to  confirm  a  report  of  commis- 
sioners for  opening  streets,  it  is  within 
the  discretion  of  the  court  to  include 
in  the  motion  an  affidavit,  which  was 
nothing  but  an  argument  of  counsel  in 
the  form  of  proof,  in  opposition  to  the 
motion.  In  re  Board  of  Street  Open- 
ing, 65  Hun  (N.  Y.)  625,  20  N.  Y.  Supp. 

563- 

An  Extra-judicial  Affidavit  to  a  vote 
of  the  stockholders  of  a  corporation  is 
sufficient  authentication  to  make  it  ad- 
missible evidence.  Hallowell,  etc., 
Bank  v.  Hamlin,  14  Mass.  178. 

An  Affidavit  by  a  Club  given  to  a 
sheriff  for  the  purpose  of  notifying 
him  of  their  claim  to  certain  property, 
not  made  as  the  basis  of  a  replevy,  is 
a  mere  private  paper,  not  required  to 
be  made  by  law,  and  may  thus  be 
proved  by  the  testimony  of  the  affiant. 
Lavretta  v.  Holcombe,  98  Ala.  503. 

Before  Justice. — On  a  proceeding  be- 
fore a  justice  of  the  peace,  affidavits 
cannot  be  used  to  oust  his  jurisdiction. 
Esslerw.  Johnson,  25  Pa.  St.  350;  Mont- 
gomery V.  Snowhill,  a  N.  J.  L.  362. 


Made  in  Another  Suit. — On  an  applica- 
tion for  an  order  of  publication,  it  is 
allowable  to  read  affidavits  used  and 
entitled  in  another  suit.  Barnard  v. 
Heydrick,  49  Barb.  (N.  Y.)  62,  2  Abb. 
Pr.  N.  S.  (N.  Y.)  47.  Such  evidence 
has  been  allowed  in  England  on  cer- 
tain applications.  Langston  v.  Wether- 
all,  14  M.  &  W.  104.  But  see  Lum- 
brozo  V.  White,  Dick.  150.  In  lotva, 
where  the  parties  were  the  same  and 
the  motion  similar,  the  affidavit, 
though  made  at  a  previous  term,  was 
admitted.  Scholes  v.  Murray  Iron 
Works  Co.,  44  Iowa  igo. 

The  courts  will  not  consider  affi- 
davits read  and  filed  in  a  case  upon 
which  nothing  is  asked  and  which  are 
not  applicable  to  any  motion,  issue,  or 
proceeding  in  the  case.  State  v.  Allen, 
5  Kan.  213. 

Counter-affidavits  are  often  used  to 
defeat  suits,  as  for  a  new  trial.  Finch 
V.  Green,  16  Minn.  355.  But  not  a 
motion  for  a  continuance.  Eslingerz'. 
East,  100  Ind.  434.     See  various  titles. 

Preliminary  Proof. — Where  an  insur- 
ance policy  requires  the  insured  to 
give,  in  case  of  loss,  an  account 
thereof,  under  oath,  in  a  suit  on  a 
policy,  the  affidavit  of  the  insured  is 
admissible  to  prove  a  compliance  with 
the  requirement,  but  for  no  other  pur- 
pose. Phoenix  Ins.  Co.  v.  Lawrence, 
4  Mete.  (Ky.)  9,  81  Am.  Dec.  521.  An 
affidavit  of  publication  by  the  printer 
or  publisher  of  a  newspaper  is  a  mere 
matter  of  preliminary  proof,  and  ac- 
complishes its  functions  as  soon  as  it 
is  filed  and  passed  upon  by  the  court. 
After  judgment  rendered,  it  cannot  be 
attacked  in  a  collateral  action.  Free- 
man V.  Thompson,  53  Mo.  183. 

To  Supplement  Record. — On  appeal 
matters  which  should  have  been  of 
record  cannot  be  supplied  by  affidavits. 
Stannard  v.  Graves,  2  Call  (Va.)  369. 
Nor  can  they  be  used  to  correct  mate- 
rial facts  untruthfully  stated  in  the' 
record.  Struber  v.  Rohlfs,  36  Kan. 
202. 

But  in  New  Jersey  an  affidavit  may 
properly  be  used  to  bring  before  the 
Supreme  Court  the  evidence  which  a 
particular  witness  gave  before  a  jus- 
tice, where  such  evidence  can  be  cor- 
rectly had,  for  the  purpose  of  showing 
that  such  evidence  was  incompetent  or 
that  the  justice  erred  in  admitting  it. 
Goldsmith  v.  Bane,  8  N.  J,  L.  87. 


334 


T7se  of. 


AFFIDA  VI TS. 


Use  of. 


are  generally  not  admissible  as  evidence,*  especially  when  purely 
ex  parte^'^  except  as  admissions  against  the  affiant.^ 


1.  Lummis  v.  Stratton,  2  N.  J.  L. 
245;  Newton  z/.  West,  3  Mete.  (Ky.)  24; 
Talbot  V.  Pierce,  14  B.  Mon.  (Ky.  )  158. 

In  Indiana  an  affidavit  made  in  sup- 
port of  an  application  for  a  change  of 
venue  is  not  admissible  as  evidence. 
Ohio,  etc.,  R.  Co.  v.  Levy  (Ind.  Sup., 
1893),  34    N.  E.  Rep.  20. 

An  affidavit  of  a  surveyor,  not  the 
county  surveyor,  and  not  being  any 
officer  of  the  court  or  the  county,  is 
not  admissible  in  evidence  on  an  ac- 
tion for  the  purchase-money  of  a  tract 
of  land.      Maples  v.  Hoggard,  58  Ga. 

315. 

In  an  action  against  a  railroad  for 
killing  a  horse,  it  is  not  error  to  allow 
to  be  read  in  evidence  an  affidavit 
made  at  a  previous  term  by  an  em- 
ploy6  of  the  defendant  in  support  of 
a  continuance  and  describing  the  cir- 
cumstances of  the  death  of  the  horse. 
Asbach  v.  Chicago,  etc.,  R.  Co.  (Iowa, 
1892),  53  N.  W.  Rep.  90. 

On  a  Claim  to  Property  Levied  on  in 
proceedings  to  foreclose  a  lien  the 
plaintiff  may  offer  in  evidence  the  affi- 
davit of  foreclosure.  Dixon  v.  Will- 
iams, 82  Ga.  105. 

2.  Plankinson  v.  Cave,  2  Yeates 
{Pa.)  370;  Lewis  v.  Bacon,  3  Hen.  & 
M.  (Va.)  89;  Blincoe  v.  Berkeley,  i 
Call  (Va.)  405;  Braxton  v.  Lee,  4 
Hen.  &  M.  (Va.)  376;  Clutch  v.  Clutch, 
I  N.  J.  Eq.  474;  Egerton  v.  Egerton, 
17  N.  J.  Eq.  419;  Layton  v.  Cooper,  2 
N.  J.  L.  61.  In  a  certiorari  case  no- 
tice of  the  taking  of  an  affidavit  must 
be  given  to  the  opposite  party  al- 
though he  has  not  appeared.  War- 
ford  V.  Smith,  25  N.  J.  L.  212. 

Dickey,  J.  :  "As  to  matter  directly 
in  issue,  the  testimony  of  witnesses 
must  be  so  taken  as  to  subject  the 
witness  to  cross-examination,  but  as 
to  some  collateral  or  ancillary  matters, 
and  among  such  as  to  the  loss  of  a 
document,  affidavits  taken  ex  parte  are 
competent."  Taylor  v.  Mclrvin,  94 
111.  488;  Baldwin  v.  Flagg,  43  N.  J.  L. 
495,  where  it  was  said  that  the  practice 
of  taking  affidavits  ex  parte,  to  be  used 
on  the  argument  of  a  motion,  is  pecul- 
iar to  the  court  of  chancery  and  has 
never  been  adopted  in  the  courts  of 
law. 

Ex  parte  depositions  cannot  be  read 
in  evidence  to  establish  an  indepen- 
dent title;  but  they  are  admissible  to 
establish  mere  boundary,  or  by  way  of 


corroboration  of  other  testimony  given 
in  the  cause.  Sturgeon  v.  Waugh,  2 
Yeates  (Pa.)  476;  Lilly  v.  Kitzmiller,  i 
Yeates  (Pa.)  28. 

Weight. — Earle,  J.:  "A  voluntary 
affidavit  ranks  in  equal  grade  with 
hearsay  testimony  in  the  scale  of  evi- 
dence, and  in  no  case  is  received 
where  better  testimony  can,  from  the 
nature  of  the  case,  be  had."  Patter- 
son V.  Maryland  Ins.  Co.,  3  Har.  &  J. 
(Md.)  71,  5  Am.  Dec.  419.  Ex  parte 
affidavits  may  be  read  in  opposition  to 
and  in  support  of  awards  in  cases  at 
law,  but  they  will  be  given  much  less 
weight  than  testimony  taken  in  court 
or  on  notice  and  subject  to  cross- 
examination.  Tennant  v.  Divine,  24 
W.  Va.  387;  Pleasants  v.  Ross,  i 
Wash.  (Va.)  156,  i  Am.  Dec.  449; 
Adams  v.  Hubbard,  25  Gratt.  (  Va.) 
129. 

They  are  not  conclusive.  Lane  v. 
Schomp,  20  N.  J.  Eq.  82. 

3.  State  V.  Lazarus,  i  Mill  (S.  Car.) 
34;  Morrell  v.  Cawley,  17  Abb.  Pr. 
(N.  Y.)  76;  Chicago,  etc.,  R.  Co.  v. 
Ohle,  117  U.  S.  123. 

One  party  may  introduce  in  evidence 
the  affidavits  of  the  other  made  during 
the  progress  of  the  cause  if  they  are 
relevant;  but  they  can  have  no  effect 
on  the  merits  unless  so  introduced. 
Wyser  v.  Calhoun,  11  Tex.  323.  And 
an  admission  made  in  an  affidavit  used 
in  a  suit  between  other  parties  is  ad- 
missible against  the  affiant.  Hall  v. 
Cannon,  4  Harr.  (Del.)  360. 

Laying  Foundation. — But  an  affidavit 
used  in  a  litigation  by  a  deceased  de- 
fendant cannot,  merely  by  reason  of 
such  use,  be  introduced  at  a  subse- 
quent stage  of  the  case,  to  affect  the 
credibility  of  a  witness,  by  whom  it 
was  made,  for  a  new  party  defendant, 
brought  in  by  the  plaintiff,  without 
laying  the  foundation  for  it  as  im- 
peaching evidence.  Gardner  v.  Gran- 
niss,  57  Ga.  539. 

An  affidavit,  although  contained  in  a 
record  read  by  plaintiff,  was  held  not 
to  be  evidence  against  him,  because  it 
was  ex  parte,  and  the  affiant  was  pres- 
ent as  a  witness  in  the  case  on  trial. 
Hargis  v.  Price,  4  Dana  (Ky.)  79. 

Explain  Circumstances. — The  affiant 
should  be  allowed  to  explain  the  cir- 
cumstances. Yale  V.  Edgerton,  14 
Minn.  194;  Snydacker  v.  Brosse,  51 
111.  357- 


335 


Amendment. 


AFFIDA  VITS. 


Amendment, 


As  Part  of  Record. — Unless  specially  made  so,  affidavits  do  not  con- 
stitute a  part  of  the  record.'     See  also  APPEALS. 

Filing— The  originals  of  all  affidavits  upon  motions  should  be 
f^led.2 

stale  Affidavits.— Affidavits  for  certain  purposes  must  not  lie  unused 
too  long  or  they  become  "stale."  * 

VI.  Amendment. — In  nearly  all  the  states  formal  defects'*  in 
affidavits,  and  in  many  even  more  substantial  ones,  may  now  be 
amended.* 


1.  Clifford,  J.:  "  Neither  depositions 
nor  affidavits,  though  appearing  in  the 
transcript  of  a  common-law  court  of 
errors,  can  ever  be  regarded  as  a  part 
of  the  record,  unless  the  same  are  em- 
bodied in  an  agreed  statement  of  facts, 
or  are  made  so  by  a  demurrer  to  the 
evidence,  or  are  exhibited  in  a  bill  of 
exceptions."  Baltimore,  etc.,  R.  Co. 
V.  Sixth  Presbyterian  Church,  91  U.  S. 
127. 

Appeal. — For  consideration  on  appeal 
affidavits  must  be  embraced  in  a  bill  of 
exceptions.  Garland  v.  Bugg,  I  Hen. 
&  M.  (Va.)  374;  Goldsmith  v.  State,  30 
Ohio  St.  208;  Backus  v.  Clark,  i  Kan. 
303,  83  Am.  Dec.  437;  Tiffin  v.  Forres- 
ter, 8  Mo.  644;  McDonald  v.  Arnout, 
14  111.  58;  Altschiel  v.  Smith,  9  Kan. 
90;  Jenks  V.  School  Dist.,  18  Kan.  356; 
Faulkner  v.  Wilcox,  2  Litt.  (Ky.)  369; 
Kirby  v.  Cannon,  9  Ind.  371;  Murphy 
V.  Tilly,  II  Ind.  511;  Round  v.  State, 
14  Ind.  493;  Cochran  v.  Dodd,  16  Ind. 
476;  Merritt  v.  Cobb,  17  Ind.  314; 
Matlock  V.  Todd,  19  Ind.  130;  White- 
side V.  Adams,  26  Ind.  250;  Bell  v. 
Rinker,  29  Ind.  267;  Potter  v.  Stiles, 
32  Ind.  318;  Blizzard  v.  Phebus,  35 
Ind.  284;  Taulby  v.  State,  38  Ind.  437; 
Blackwell  v.  Acton,  38  Ind.  425;  Wray 
V.  Tindall,  45  Ind.  517  ;  Martin  v. 
Harrison,  50  Ind.  270 ;  Kimball  v. 
Loomis,  62  Ind.  201  ;  Fryberger  v. 
Perkins,  66  Ind.  19;  lies  v.  Watson,  76 
Ind.  359;  Chambers  v.  Kyle,  87  Ind. 
83  ;  Harrison  School  Township  v. 
McGregor,  96  Ind.  185  ;  Shields  v. 
McMahon,  loi  Ind.  591;  Kleespies  v. 
State,  106  Ind.  383;  McClure  v.  State, 
116  Ind.  169;  Smith  v.  Wilson,  26  111. 
186;  State  V.  McGinniss,  17  Oregon 
332;  Patee  v.  Parkinson,  18  Kan.  465. 
Nor  will  the  fact  that  they  have  been 
copied  into  the  record  by  the  clerk 
avail  if  not  introduced  by  a  bill  of  ex- 
ceptions. Schultz  V.  State,  32  Ohio 
St.  276;  Taylor  v.  Fletcher,  15  Ind. 
80;  Horton  v.  Wilson,  25  Ind.  316; 
Whaley  v.  Gleason,  40  Ind.  405;  Will- 
iams V.  Potter,   72   Ind.    354;    Kellen- 


berger  v.  Perrin,  46  Ind.  282;  Turnbull 
V.  Ellis,  35  Ind.  422;  Corey  v.  Russell, 
8  111.  366;  Edwards  v.  Patterson,  10 
111.  126;  Lucas  V.  Farrington,  21  111. 
31;  Smith  V.  Wilson,  26  111.  186. 

Affidavits  not  referred  to  in  any  de- 
cree or  order  entered  in  the  cause  are 
no  part  of  the  record.  Hilleary  v. 
Thompson,  11  W.  Va.  113. 

An  order  to  transmit  to  the  court 
above  "  original  exhibits  "  will  not  in- 
clude affidavits.  Craig  v.  Smith,  100 
U.  S.  226. 

2.  Anonymous,  5  Cow.  (N.  Y.)  13. 
An  affidavit  used  on  a  motion,  but 

not  filed  until  after  the  motion  was 
heard,  may  nevertheless  be  entered  in 
the  order  as  read,  when  it  does  not  in- 
terfere with  the  date  of  the  order,  as 
when  it  is  filed  on  the  same  day  that 
the  motion  was  heard.  In  re  King  & 
Co.'s  Trademark  (1892),  2  Ch.  462. 

3.  In  Clarke  v.  Stilwell,  8  Ad.  &  El. 
645,  35  E.  C.  L.  480,  it  was  held  that 
this  rule  applied  to  affidavits  of  debt 
only. 

The  time  within  which  they  must  be 
used  is  one  year.  Ramsden  v.  Maugh- 
am, 4D0WI.  Pr.  Cas.  403;  Burt  v.  Owen, 
I  Dowl.  Pr.  Cas.  691,  i  Tidd  Pr.  190. 

4.  Thus  the  omission  of  the  signa- 
ture of  the  affiant  may  be  supplied  by 
amendment.  Schumann  v.  Schumann, 
6  Phila.  (Pa.)  318;  Watts  v.  Womack, 
44  Ala.  605.  Contra,  Cohen  v.  Manco, 
28  Ga.  27.  A  mistake  in  the  middle 
name  of  the  affiant  may  be  amended. 
State  V.  Giles,  103  N.  Car.  391. 

In  Missouri  an  affidavit  for  attach- 
ment, although  it  did  not  state  the 
venue  and  was  made  nearly  three 
months  before  the  writ  was  sued  out, 
might  have  been  amended.  Avery  v. 
Good,  114  Mo.  290.  And  where  blanks 
were  left  where  the  words  "  his  "  and 
"  is  "  should  have  appeared,  they  were 
allowed  to  be  filled,  it  not  appearing 
that  the  defendant  was  thereby  pre- 
judiced. Stewart  v.  Cabanne,  16  Mo. 
App.  517. 

6.  An  affidavit   so  drawn  as  to  ap- 


Zl^^ 


Amendment 


AFFIDAVITS, 


Amendment. 


Where  the  jurat  is  defective  through  the  negligence  of  the  oflfi- 
cer,  it  is  freely  allowed  to  be  amended.* 

statutes. — Many  states  expressly  provide  by  statute  for  the 
amendment  of  aflfidavits.* 

pear  to  be  made  on  hearsay  may  be 
amended.  Cutler  v.  Rathbone,  i  Hill 
(N.  Y.)  204.  Or  upon  information  and 
belief.  Cook  v.  Whipple,  55  N.  Y. 
150. 

An  affidavit  by  a  printer  of  the  pub- 
lication of  a  summons  may  be  amended 
so  that  it  will  show  the  date  on  which 
<he  publication  began.  Weaver  v. 
Roberts,  84  N.  Car.  493. 

In  Nebraska  a  defective  affidavit  for 
replevin  may  be  amended  and  filed 
nunc  pro  tunc.  Lewis  v.  Connolly,  29 
Neb.  222. 

In  Illinois,  no  matter  how  defective 
the  affidavit  is,  it  may  be  amended  by 
riling  another.  Thus,  it  may  be 
amended  although  made  before  the 
wrong  officer.  ■  Campbell  v.  Whetstone, 
4  111.  361. 

In  Georgia  an  affidavit  for  a  distress 
warrant  is  amendable  as  other  declara- 
tions. The  right  includes  the  supply- 
ing of  essential  averments.  Reese  v. 
Walker,  89  Ga.  72;  Bryant  v.  Mercier, 
82  Ga.  409. 

But  in  Florida  substantial  defects  in 
affidavits,  where  jurisdictional,  as  in 
attachment,  cannot  be  amended.  Tan- 
ner, etc..  Engine  Co.  v.  Hall,  22  Fla. 
391;  Roulhac  V.  Rigby,  7  Fla.  336. 

In  Maryland,  before  the  act  of  1888, 
an  affidavit  for  attachment  could  not 
be  amended  by  striking  out  one  of  the 
defendants.  Halley  v.  Jackson,  48 
Md.  254. 

Resworn. — An  affidavit  amended  by 
permission  of  the  court  must,  in  North 
Carolina,  be  resworn  to,  or  it  will  be  a 
nullity.  Atlantic  Bank  v.  Frankford, 
Phil.  (N.  Car.)  199. 

Filing  Nunc  Pro  Tunc. — Where  the 
want  of  an  affidavit  was  not  promptly 
objected  to,  it  was  allowed  to  be  filed 
nunc  pro  tunc.  Jones  v.  U.  S.  Slate 
Co.,  16  How.  Pr.  (N.  Y.  Supreme  Ct.) 


129. 

Failure  to  Amend  after  Leave. — After 
leave  has  been  obtained  to  amend  an 
affidavit  of  merits  and  there  has  been 
a  failure  to  do  so,  defendant  cannot 
insist  on  the  sufficiency  of  the  affidavit. 
McKichan  v.  Follett,  87  111.  103. 

1.  Where  the  names  of  the  defend- 
ants were  omitted  from  the  jurat 
through  the  negligence  of  the  judge's 
clerk,  it  was  allowed  by  the  judge  to 


be  amended.  Ex  p.  Smith,  2  Dowl. 
Pr.  Cas.  607. 

Signature  of  Officer. — Where  the  offi- 
cer neglects  to  sign  the  jurat,  the  affi- 
davit may  be  amended.  West  Ten- 
nessee Agricultural,  etc.,  Assoc,  v. 
Madison,  9  Lea  (Tenn.)  407;  Pierson 
V.  Hendrix,  88  111.  34;  Peterson  v. 
Fowler,  76  Mich.  258.  His  signature 
may  be  added  mine  pro  tunc.  Veal  v. 
Perkerson,  47  Ga.  92;  Williams  v. 
Stevenson,  103  Ind.  243;  Hart  v.  Jones, 
6  Kulp  (Pa.)  326;  Sims  v.  Redding,  20 
Tex.  386;  State  v.  Cordes  (Wis.,  1894), 
58  N.  W.  Rep.  771 :  Lederer  v.  Chicago, 
etc.,  R.  Co..  38  Wis.  244:  Bergesch  v. 
Keevil,  19  Mo.  127.  And  the  affidavit 
may  be  amended  even  though  by  acci- 
dent both  the  subscription  of  the  affi- 
ant and  the  attestation  of  the  officer 
were  omitted.  Stout  v.  Folger,  34 
Iowa  71.  Likewise  where  the  officer 
neglected  to  sign  and  date  an  affidavit 
for  an  appeal.  Green  v.  Boon,  57 
Miss.  617.  Where  the  affidavit  was 
authenticated  by  both  the  signature 
and  the  seal  of  a  notary,  but  the  jurat 
did  not  refer  to  his  notarial  seal,  it 
was  amendable  in  that  respect.  Hal- 
lett  V.  Chicago,  etc.,  R.  Co.,  22  Iowa 
259,  92  Am.  Dec.  393. 

Official  Title. — And  where  the  officer 
neglects  to  give  his  official  title  the 
affidavit  may  be  amended.  Stone  v. 
Miller,  60  Iowa  243;  Dickson  v.  Thur- 
mond, 57  Ga.  153;  Hudson  v.  Fishel, 
17  R.  I.  69. 

Foreign  Affidavit. — Where  an  affida- 
vit was  made  before  a  notary  public 
of  another  state,  it  was  not  error  for 
the  court  to  allow  the  filing,  by  way  of 
amendment,  of  an  additional  certificate 
by  such  notary  that  he  was  author- 
ized by  the  laws  of  such  state  to  ad- 
minister oaths.  Goldie  v.  McDonald, 
78  111.  605. 

Absence  of  Jurat. — An  affidavit  which 
is  merely  defective  from  absence  of 
the  jurat  may  be  reformed  upon  proof 
that  it  was  properly  made  before  the 
proper  officer.  Re  Cussick's  Appeal, 
136  Pa.  St.  459.  ID  L.  R.  A.  228. 

2.  §  1483  of  the  Code  of  Mississippi 
of  1871.  Fitzpatrick  v.  Flannagan,  106. 
U.  S.  648. 

Act  of  Georgia  of  Oct  25.  1889  (Acts 
1888-9,  P-  no)- 


I  Encyc.  PI.  &  Pr.— 22. 


337 


AFFIDAVITS   OF    MERITS    OR   DEFENSE. 

By  F.  A.  Card. 

I.  Definition,  338. 
II.  In  General,  339. 

III.  Constitutionality,  339. 

IV.  When  Requieed,  341. 

1.  To  Prevent  hiquests  or  Judgments  by  Default,  341. 

a.  To  Prevent  Jnquests,  341. 

b.  On  Overruling  a  Demurrer,  342. 

c.  Action  at  Common  Law,  342. 

d.  Action  ofi  Money  Demand,  343, 

e.  Action  on  Contract,  343. 

f.  Action  on  Judgments,  347. 

g.  Action  of  Assumpsit,  347. 

2.  To  open  Judgments  or  Inquests,  352. 

3.  To  Extend  Time  to  Answer  or  Demur,  355. 

4.  To  Change   Venue,  355. 

5.  On  Motions  Generally,  356. 

V.  At  "What  Time  Made,  357. 
VI.  By  Whom  Made,  358. 

VII.  Contents,  360. 

1.  ///  General,  360. 

a.  The  Usual  Affidavit,  360. 

b.  When  Facts  are  Stated,  366. 

c.  Illinois  Pule,  367. 

d.  Pennsylvaftia  Rule,  368. 

2.  By  Codefettdant,  yj  1 . 

3.  By  Agent,  Attorney,  or  Clerk,  371. 

4.  To  Obtain  Change  of  Venue,  373. 

5.  Title,  Jttrat,  etc.  374. 

6.  Amendinents,  375. 

VIII.  Service  and  Filing,  375. 

IX.  Controverting  Affidavit,  375. 

I.  Definition. — An    affidavit  of  merits  represents  that,   upon 
the   substantial    facts   of   the  case,    justice   is  with    the   affiant.* 

1.   Anderson's  Law  Diet.;  Abb.  Law  groundless  one;  not  a  defense   which 

Diet.  will   be   successful  at  all   events,  but 

When  a  Party  Swears  he  has  a  Defense  good  in  the  sense  of  bona   fide,   a  de- 

on  the    merits  it  is    understood   as    a  fense  to  the  merits  which  he  ought  to 

real,    genuine,  and    bona-fide  defense,  be  allowed  to  present  and  have  investi- 

is  distinguished  from  a   frivolous  or  gated.   McDonnell  z/.Olwell,  17  111.  376. 

338 


In  General. 


AFFIDAVITS   OF  MERITS.        Constitutionality, 


Merits  signify  the  legal    rights    of  the  parties,  as  distinguished 
from  questions  of  practice  and  discretion. ^ 

II.  In  General. — The  requirement  of  an  affidavit  of  merits  in 
certain  cases  was  an  old  rule  of  practice  in  Efigla^id,^  which  has 
been  very  generally  adopted  in  the  United  States.  In  some  of  the 
states  the  practice  in  relation  to  it  is  governed  by  rules  of  court,* 
in  others  by  statutes,*  which  in  some  cases  have  conside/H'-^y 
enlarged  and  changed  the  old  rule. 

III.  Constitutionality. — The  provisions  of  rules  and  statutes  re- 
quiring a  defendent  to  make  an  afifidavit  of  merits  have  frequently 
been  attacked  as  unconstitutional,  but  they  have  been  sustained  by 
the  courts.*  In  Pennsylvania  such  provisions  were  attacked  as  be- 
ing an  infringement  of  the  right  of  trial  by  jury,  but  the  objection 
was  not  sustained.*      In  Massachusetts  they  were  sustained  as 


1.  St.  John  V.  West,  4  How.  Pr.  (N. 
Y.  Supreme  Ct.)  329;  Megrath  v.  Van 
Wyck,  3  Sandf.  (N.  Y.)  750;  Tracy  v. 
New  York  Steam  Faucet  Mfg.  Co.,  i 
E.  D.  Smith  (N.  Y.)  349;  Bowman  v. 
De  Peyster,  2  Daly  (N.  Y.)  203. 

2.  Tidd  Pr.,  vol.  i,  p.  302;  3  Chit- 
ty  Genl.  Pr.,  p.  543;  Bourne  v. 
Walker,  2  C.  &  M.  338;  Hilton  v.  Jack- 
son, I  Chit.  Rep.  677,  18  E.  C.  L.  201; 
Court   Rule  of  i8o8,  3  Johns.  (N.  Y.) 

535- 

3.  Rules  23  &  28,  New  York  Supreme 
Ct. ;  Rule  99,  Michigan  Supreme  Ct. ; 
Rule  73,  District  of  Columbia  Circuit 
Ct. 

4.  Laws  of  1844,  p.  2,  §  II,  Michigan; 
§  980,  New  York  Code  of  Civil  Pro- 
cedure; Sts.  of  1874  (10  Session  61), 
Colorado;  Laws  of  1874,  ch.  248,  §  3, 
Massachusetts;  §  697  Mississippi  Code 
of  1892;  Act  of  May  25,  1887,  of  Penn- 
sylvania, p.  8271;  Laws  of  Illinois  as 
amended  June  2,  1877,  Hurd's  111. 
Sts.,  p.  1047,  8  37.  ed.  of  1891. 

Uniformity  of  Practice, — The  practice 
of  the  various  states  is  not  uniform  as 
to  the  cases  in  which  such  an  affidavit 
is  required  or  as  to  its  contents,  and 
is  subject  to  frequent  changes.  But 
in  the  application  of  the  rules  a  certain 
uniformity  exists  which  appears  from 
an  examination  of  the  decisions  on  the 
subject. 

6.  Vanatta  v.  Anderson,  3  Binn. 
(Pa.)  423;  Hoffman  v.  Locke,  19  Pa. 
St.  57;  Lord  V.  Ocean  Bank,  20  Pa.  St. 
387,  59  Am.  Dec.  728;  Lawrence  v. 
Borm,86Pa.  St.  225;  Randall  v.  Weld. 
86  Pa.  St.  357;  Lawrence  v.  Smedley 
6  W.  N.  C.  (Pa.)  42;  Honeywell  v., 
Toney,  5  Kulp  (Pa.)  360;  Krause  v. 
Pennsylvania  R.  Co.,  20  W.  N.  C.  (Pa.) 


Ill;  Kauffman  v.  Jacobs,  4  Pa.  Co.  Ct. 
Rep.  462;  Hunt  v.  Lucas,  99  Mass. 
404;  Merchants'  Nat.  Bank  v.  Glendon 
Co.,  120  Mass.  97;  McDonnell  v.  Ol- 
well,  17  111.  375;  Roberts  v.  Thomson, 
28  111.  79;  Honore  v.  Home  Nat.  Bank, 
80  111.  4S9. 

6.  In  Pennsylvania. — In  the  case  of 
Vanatta  v.  Anderson,  3  Binn.  (Pa.) 
422,  the  question  was  raised  as  to  the 
constitutionality  of  a  rule  of  the  Court 
of  Common  Pleas  of  Philadelphia, 
which  provided  that  "  in  all  actions  on 
contract  or  debt  the  plaintiff  shall  be 
at  liberty  to  enter  judgment  unless  the 
defendent  or  some  person  for  him 
shall  make  and  file  an  affidavit  that  to 
the  best  of  his  or  her  knowledge  and 
belief  there  is  a  just  defense  in  the 
said  case."  It  was  contended  for  de- 
fendant that  the  rule  infringed  the 
right  of  trial  by  jury,  and  was  a  spe- 
cies of  judicial  legislation  which  the 
court  had  no  power  to  make.  Both 
contentions  were  overruled,  and  the 
rule  was  held  constitutional  and  with- 
in the  power  of  the  court.  In  the 
course  of  the  opinion  it  was  said: 
"  The  rule  makes  no  alteration  in  the 
right  of  trial  by  jury,  but  only  pro- 
vides that  previous  to  the  trial  the  de- 
fendant shall  swear  or  affirm  that  to 
the  best  of  his  knowledge  and  belief 
he  has  a  just  cause  of  defense."  A 
similar  question  was  raised  and  de- 
cided in  the  same  way  in  Harres  v. 
Com.,  35  Pa.  St.  416. 

In  Hoffman  v.  Locke,  19  Pa.  St.  59, 
the  question  was  raised  as  to  the  con- 
stitutionality of  an  act  of  the  legisla- 
ture requiring  a  defendant  to  make  an 
affidavit  of  defense  in  certain  actions, 
disclosing  the  facts  of  his  defense.    In 


339 


Constitutionality.         AFFIDAVITS  OF   MERITS.         Constitutionality. 


in  accordance  with  the  common  law  ;*  and  in  Illinois  they  were 
considered  as  mere  provisions  of  practice  entirely  within  the 
control  of  the  legislature.* 


holding  the  act  constitutional  the  court 
said:  "The  clause  of  the  constitution 
which  forbids  it  is  not  pointed  out, 
and  I  am  ignorant  of  any  provision 
which  secures  to  the  good  people  of 
this  commonwealth  the  privilege  of 
making  false  defenses  to  just  claims. 
The  law  is  not  only  constitutional,  but 
eminently  wise  and  necessary.  It  is 
no  tyranny  to  require  that  a  good  de- 
fense should  be  fully  and  fairly  stated 
on  the  record,  and  no  hardship  to 
verify  it  on  oath." 

The  constitutionality  of  a  similar  act 
of  the  legislature  was  again  vigor- 
ously attacked  in  Lawrence  v.  Borm, 
86  Pa.  St.  225,  on  the  ground  that  it 
infringed  the  right  of  trial  by  jury. 
In  holding  the  act  constitutional  it 
was  said:  "While  the  sacredness  of 
this  reserved  right  cannot  be  impaired 
by  the  legislature,  we  are  unable  to 
see  that  the  law  in  question  does  in- 
fringe it.  Clearly  if  a  defendent  in  an 
action  presents  no  defense  to  be  tried 
by  a  jury,  he  cannot  claim  that  his 
privilege  is  denied  him.  The  affidavit 
of  defense  is  but  a  special  plea  made 
on  oath  by  which  the  defendant  pre- 
sents the  facts  of  his  case  for  the  con- 
sideration of  the  court.  At  no  time 
in  the  history  of  civil  proceedings  has 
it  been  held  that  the  right  of  trial  by 
jury  involves  the  right  of  the  jury  to 
decide  the  law  of  the  case.  A  plea 
in  abatement  and  in  other  cases  *  *  * 
must  be  put  in  under  oath.  *  *  * 
There  cannot  be  an  objection  to  the 
fact  that  a  party  is  obliged  to  state  his 
plea  or  his  defense  under  oath.  This 
is  but  a  means  to  prevent  delay  by 
falsehood  and  fraud.  *  *  *  It  is  a 
misconception  of  the  right  of  trial  by 
jury  to  suppose  that  it  draws  the 
pleadings,  no  matter  what  their  form, 
from  the  court  to  the  jury.  The  affi- 
davit of  defense  is  only  a  modern  but 
vuluable  mode  of  making  up  the  issue 
for  the  jury;  and  when,  on  a  state- 
ment of  all  the  facts  a  defendant  can 
conscientiously  swear  to,  the  court 
finds  the  law  upon  these  facts  is 
against  him,  he  has  no  right  to  go  be- 
fore a  jury." 

1.  Massachusetts.  —  An  act  of  the  leg- 
islature of  Massachusetts  provided  that 
in   all   actions   at   law   plaintiff  could 


enter  judgment  by  default  unless  de- 
fendant or  some  one  on  his  behalf 
filed  an  affidavit  to  the  effect  "  that  he 
verily  believes  that  the  defendant  has 
a  substantial  defense  to  the  action  on 
its  merits  and  intends  to  bring  the 
same  to  trial."  In  sustaining  the 
constitutionality  of  said  act  it  was  said 
in  Hunt  v.  Lucas,  gg  Mass.  40.4:  "The 
system  of  pleading  was  intended  to 
require  of  parties  written  statements 
of  what  they  believed  to  be  true.  In 
some  cases  the  common  law  required 
a  defendant  not  only  to  state  his  de- 
fense, but  to  make  oath  to  it.  In  actions 
of  debt  and  several  oth(;r  species  of  ac- 
tion the  plaintiff  might  require  him  to 
wage  his  law,  and  this  must  be  done 
upon  oath.  In  suits  in  equity  a  de- 
fendant has  always  been  required  to 
make  oath  to  the  truth  of  his  answer. 
*  *  *  These  provisions  were  more 
stringent  than  that  of  our  statute  re- 
quiring an  affidavit  of  defense.  But 
when  our  Constitution  was  framed 
they  had  never  been  regarded 
as  any  infringement  on  those 
rights  which  are  declared  in  the 
clauses  referred  to.  Nor  is  there 
any  reason  to  believe  that  the  Consti- 
tution was  designed  to  prohibit  the 
legislature  from  enacting  reasonable 
laws  in  regard  to  pleadings  in  civil 
actions,  or  from  requiring  averments 
to  be  supported  by  affidavit." 

2.  Illinois. —  A  statute  of  Illinois  pro- 
vided that  in  certain  actions  plaintiff 
should  be  entitled  to  judgment  unless 
defendant,  his  agent  or  attorney,  shall 
file  with  his  plea  an  affidavit  stating 
"that  he  verily  believes  he  has  a  good 
defense  to  said  suit  upon  the  merits, 
to  the  whole  or  a  portion  of  the  plain- 
tiff's demand,  and  if  a  portion,  speci- 
fying the  amount  according  to  the 
best  of  his  judgment  and  belief."  In 
holding  this  statute  constitutional 
it  was  said:  "The  General  Assembly 
has  the  undoubted  right  and  ample 
power  to  prescribe  the  practice  of  our 
courts,  and  to  alter  and  change  the 
same  as  they  may  think  the  promotion 
of  practice  requires.  We  have  never 
heard  it  questioned  that  the  General 
Assembly  has  the  power  to  require 
any  and  all  pleadings  to  be  sworn  to 
as  a  condition  precedent  to  their  being 


340 


When  Bequired.  AFFIDA  VI TS  OF  MERITS.  To  Prevent  Inquests. 

IV.  When  Required— 1.  To  Psevent  Inquests  or  Judgments  by 
Default. — Rules  of  practice  have  required  an  affidavit  of  merits 
to  prevent  an  inquest  in  cases  where  it  is  allowed.*  And  rules 
of  practice  and  statutes  require  an  affidavit  of  merits  to  prevent 
the  plaintiff  taking  judgment  by  default  when  defendant's 
demurrer  to  the  plaintiff's  declaration  is  overruled  ;*  in  all  actions 
at  common  law  ;^  in  actions  of  contract,  debt,  or  assumpsit  upon 
a  money  bond,  promissory  note,  or  bill  of  exchange,  where 
defendant  is  sued  in  his  individual  capacity;*  in  actions  on  con- 
tract, express  or  implied,  for  the  payment  of  money,  where  plain- 
tiff files  with  his  declaration  an  afifidavit  showing  the  nature  of  his 
demand  and  the  amount  due  to  him  from  the  defendant  ;*  and  in  all 
actions  of  assumpsit  where  the  plaintiff  files  with  his  declaration 
copies  of  the  contract  or  notes,  etc.,  sued  on  or  a  reference  to  a 
record  upon  which  suit  is  brought.® 

a.  To  Prevent  Inquests. — In  New  York  inquests  may  be 
taken  for  want  of  a  sufficient  affidavit  of  merits  in  all  common-law 
actions.''  The  rule  does  not  apply  to  actions  in  equity,*  nor 
where  the  only  defense  is  a  set-off  to  which  there  is  no  reply,^  nor 
to  a  plaintiff,***  nor  where  a  case  is  called  in  its  order  on  the  calen- 
dar.** 


filed  in  a  case,  and  this  is  the  effect  of 
this  statute,  and  its  only  effect."  Ho- 
nore  v.   Home  Nat.  Bank,  80  111.  489. 

1.  Rule  28,  New  York  Supreme 
Court;  3  Wait's  Practice  (N.  Y.)  44;  3 
Johns.  (N.  Y.)  535. 

2.  Mississippi  Code (1892),  §697;Og- 
den  V.  Slidevvell,  5  How.  (Miss.)  181. 

3.  Hunt  V.  Lucas,  99  Mass.  404. 

4.  Rule  99, Michigan  Supreme  Court; 
I  Greene's  New  Practice  (Mich.)  p.  239. 

5.  Hurd's  Revised  Statutes  of  Illi- 
nois (ed.  of  1891,  p.  1047,  §  37);  Young 
V.  Browning,  71  111.  44;  Kassing  v. 
Griffith,  86  111.  265;  Rule  73,  Circuit 
Court  of  the  District  of  Columbia;  Cog- 
ley's  Dig.  Dist.  of  Columbia  512,  §  7; 
Rule  121,  Supreme  Court  Dist.  of  Co- 
lumbia, ch.  184,  §^  170  and  171 ;  Laws  of 
18S6  of  Maryland. 

6.  Laws  of  Penn.  passed  May  25th, 
1887,  P.  L.  p.  271,  No.  158;  Marlin  v. 
Waters,  127  Pa.  St.  177;  Fritz  z/.  Hath- 
away, 135  Pa.  St.  274;  Newboldz/.  Pen- 
nock,  154  Pa.  St.  591;  Flegal  v.  Hoo- 
ver, 156  Pa.  St.  276. 

7.  New  York.— Rule  28  of  New  York 
Supreme  Court  provides  that  inquests 
may  be  taken  in  actions  out  of  their 
order  on  the  calendar  in  cases  in  which 
they  are  allowed  on  any  day  after 
the  first  day  of  court,  provided  a  suffi- 
cient affidavit  of  merits  shall  not  have 
been   filed   and  served,   and   provided 


the  answer  shall  not  been  verified. 
This  was  a  repetition  of  an  old  rule 
made  in  1808.  3  Johns.  (N.  Y.)  535. 
It  was  held  to  apply  to  all  common- 
law  actions.  3  Wait's  Practice  (N.  Y.) 
44.  But  in  actions  at  law  the  plaintiff 
can  take  an  inquest  for  want  of  a  suffi- 
cient affidavit  of  merits.  Brainard  v. 
Hanford,  6  Hill  (N.  Y.)  368;  Richmond 
V.  Cowles,  2  Hill  (N.  Y.)  359;  Sand- 
land  V.  Adams,  2  How.  Pr.  (N.  Y.)  98; 
Jones  V.  Russell,  3  How.  Pr.  (N.  Y. 
Supreme  Ct.)  324;  Howe  z/.  Hasbrouck, 
I  How.  Pr.  (N.  Y.)  168;  Miller  v. 
Hooker,  2  How.  Pr.  (N.  Y.)  124;  John- 
son V.  Lynch,  15  How.  Pr.  (N.  Y. 
Super.  Ct.)  199;  Clark  v.  Parker,  19 
Wend.  (N.  Y.)  125;  Cutler  v.  Biggs,  2 
Hill  (N.  Y.)409;  Anderson  v.  Hough, 
I  Sandf.  (N.  Y.)  721. 

8.  It  does  not  apply  to  actions  in 
equity  in  which  there  is  no  jury  trial 
and  can  be  no  inquest,  3  Wait's  Prac- 
tice (N.  Y.)  45;  Devlin  v.  Shannon,  8 
Hun  (N.  Y.)  531- 

9.  Potter  V.  Smith,  9  How.  Pr.  (N. 
Y.  Supreme  Ct.)  162. 

10.  Regan. z/.  Priest,  3  Den.  (N.  Y.) 
163. 

11.  The  rule  allowing  inquests  to  be 
taken  in  cases  out  of  their  order  on 
the  calendar  does  not  apply  where  a 
case  is  called  in  its  order  on  the  calen- 
dar.    When  that  is  done  the  defendant 


341 


When  Eequired.  AFFIDA  VI TS  OF   MERITS.   To  Prevent  Inquests. 

A  verified  answer  is  equivalent  to  an  affidavit  of  merits.* 

b.  On  Overruling  a  Demurrer. — In  Mississippi  when  a 
demurrer  is  overruled  the  party  demurring  must  make  an  affi- 
davit of  merits  to  prevent  judgment.*  The  rule  does  not  apply 
where  the  demurrer  is  withdrawn  or  confessed.*  Where  the  de- 
fendant's demurrer  is  sustained  and  plaintiff  wishes  to  amend 
it  is  held  that  he  must  file  an  affidavit  of  merits.*  An  affidavit 
"  that  the  plea  is  true,"  or  one  "  setting  out  the  grounds  of  a  legal 
defense,"  is  sufficient.* 

c.  In  Actions  at  Common  Law. — In  Massachusetts  an  affi- 
davit of  merits  was  formerly  necessary  to  prevent  judgment  by 
default  in  common-law  actions.*  But  it  is  required  now  only 
in  cases  of  money  demands,  where  the  plaintiff  verifies  his  claim 
and  swears  there  is  no  defense.'' 


can  appear  and  defend,  although  he 
has  not  filed  or  made  an  affidavit  of 
merits.  Starkweather  v.  Carsvvell,  i 
Wend.  (N.  Y.)  77.  But  in  such  a  case, 
if  defendant  fail  to  appear  and  defend, 
he  cannot  object  to  an  inquest  taken. 
Kerker  v.  Carter,  i  Hill  (N.  Y.)  loi. 

1.  Formerly  a  verified  answer  would 
not  take  the  place  of  an  affidavit  of 
merits  for  the  purpose  of  preventing 
an  inquest.  Sheldon  v.  Martin,  i 
Code  Rep.  (N.  Y.)  81;  Anderson  v. 
Hough,  I  Sandf.  (N.  Y.)  721,  i  Code 
Rep.  (N.  Y.)  50;  Jones  v.  Russell,  3 
How.  Pr.  (N.  Y.  Supreme  Ct.)  324, 
I  Code  Rep.  (N.  Y.)  113.  But  now 
§  980  of  the  New  York  Code  of 
Civil  Procedure  provides  that"  An  in- 
quest for  want  of  an  affidavit  of  merits 
cannot  be  taken  where  the  answer  is 
verified." 

2.  Mississippi. — §  697  of  the  Mississippi 
Code  of  1S92  provides  "  that  if  the  de- 
murrer of  the  defendant  to  the  plain- 
tiff's declaration  be  overruled,  the 
court  shall  give  judgment  for  the 
plaintiff  for  the  amount  due  and  in- 
terest, and  a  plea  shall  not  be  admitted 
unless  the  defendant  make  oath  that 
he  has  a  good  and  substantial  defense, 
setting  forth  fully  the  nature  of  the 
defense,  that  the  court  may  judge 
whether  the  plea  ought  to  be  admitted 
or  not."  This  was  a  substantial  re- 
enactment  of  a  statute  passed  in  1840. 
Ogden  V.  Glidewell,  5  How.  (Miss.) 
181.  Under  this  provision  plaintiff  can 
obtain  leave  to  plead  when  his  de- 
murrer is  overruled  only  upon  filing 
an  affidavit  of  merits.  Robertson  v. 
Banks,  i  Smed.  &  M.  (Miss.)  666; 
Drane  v.  Board  of  Police,  42  Miss. 
264; 


3.  Ogden  v.  Glidewell,  5  How, 
(Miss.)  181;  Shaw  v.  Brown,  42  Miss. 
309- 

4.  If  defendant's  demurrer  is  sus- 
tained and  plaintiff  amends  his  decla- 
ration, it  has  been  held  that  the 
plaintiff  must  file  an  affidavit  of  mer- 
its.    Ross  V.  Sims,  27  Miss.  359. 

5.  Johnson  v.  Beard,  7  Smed.  &  M. 
(Miss.)  214;  Shaw  v.  Brown,  42  Miss. 
309- 

6.  Massachusetts. — A  statute  of  Massa- 
chusetts provided  that  in  all  actions  at 
common  law  the  plaintiff  could  take 
judgment  by  default  unless  the  de- 
fendant or  some  one  in  his  behalf 
should  file  an  affidavit  stating  "that 
he  verily  believes  that  the  defendant 
has  a  substantial  defense  to  the  action 
on  its  merits  and  intends  to  bring  the 
same  to  trial."  Hunt  v.  Lucas,  99 
Mass.'  404. 

This    statute   was  repealed  in    1870. 

7.  In  1874  an  act  was  passed  pro- 
viding substantially  "  that  in  all  ac- 
tions where  plaintiff  seeks  to  recover 
a  debt  or  liquidated  demand  in  money, 
payable  by  defendant  with  or  without 
interest,  if  defendant  appears,  plaintiff, 
on  an  affidavit  verifying  his  cause  of 
action  and  swearing  that  in  his  belief 
there  is  no  defense,  may  enter  an  or- 
der for  defendant  to  show  cause  why 
he  should  not  consent  to  judgment  by 
default,  or  describe  by  affidavit,  or  in 
such  manner  as  the  court  directs,  such 
facts  as  shall  constitute  a  defense,  or 
such  as  the  court  may  think  sufficient 
to  entitle  him  to  defend,  and  the  court 
shall  advance  such  action  for  speedy 
trial.  The  court  shall  require  defend- 
ant to  disclose  specifically  and  clearly 
the  substantive  facts  on  which  he  re- 


342 


When  Kequired.  AFFIDAVITS  OF  MERITS.  To  Prevent  Inquests. 


d.  In  Actions  on  Money  Demands. — In  Michigan  an  affi- 
davit of  merits  is  necessary  to  prevent  judgment  by  default  in 
actions  on  money  demands  where  defendant  is  sued  in  his  indi- 
vidual capacity.  1 

e.  In  Actions  on  Contract,  where  Plaintiff  Files  an 
Affidavit  of  the  Amount  Due. — In  several  of  the  states 
defendant  is  required  to  make  an  affidavit  of  merits  to  prevent 
judgment  by  default  in  actions  on  contract  where  the  plaintiff 
files  an  affidavit  of  the   amount  due  him   from  the   defendant.'-* 


lies."      Laws  of  Mass.  1874,   ch.  248, 

§3. 

Under  this  statute  it  was  held  that 
it  rested  in  the  discretion  of  the  court 
whether  to  open  a  judgment  taken 
against  a  defendant  for  failure  to  com- 
ply with  an  order  entered  thereunder, 
and  that  the  appellate  court  would  not 
on  appeal  interfere  with  such  discre- 
tion. Rogers  z/.  Ladd,  117  Mass.  334.  It 
was  also  held  that  the  plaintiff's  affida- 
vit of  no  defense  need  not  comply 
strictly  with  the  statute  in  stating  the 
nature  of  the  cause  of  action,  and  that 
independently  of  the  statute  the  court 
has  power  to  advance  causes  for 
speedy  trial.  Merchants'  Nat.  Bank  v. 
Glendon  Co.,  120  Mass.  97. 

1.  Michigan.— Rule  99  of  the  Su- 
preme Court  of  Michigan  provides 
"that  in  action  of  covenant,  debt, 
or  assumpsit,  upon  a  money  bond, 
promissory  note,  or  bill  of  exchange, 
where  defendant  is  sued  in  his  indi- 
vidual capacity,  the  plaintiff  may  no- 
tice the  cause  for  trial  as  an  inquest, 
and  an  inquest  may  be  taken  therein 
at  the  opening  of  the  court  on  any  day 
in  term  after  the  first,  unless  the  de- 
fendant or  his  attorney  shall,  before 
the  first  day  of  the  term,  have  filed  an 
affidavit  of  merits  and  served  a  copy 
thereof  on  plaintiff's  attorney."  i 
Green's  New  Pr.  239.  A  statute  of 
1844  of  Michigan  allowed  inquests  for 
default  of  an  affidavit  of  merits  in  all 
actions  on  contracts.  Brown  v.  Cowee, 
2  Dougl.  (Mich.)  432.  But  rule  99  has 
superseded  it.  Rule  59  of  the  Michi- 
gan Supreme  Court  prescribes  the  form 
of  the  affidavit  of  merits,  and  in  the 
absence  thereof  an  inquest  and  judg- 
ment by  default  for  plaintiff  may  be 
taken,  i  Green's  New  Pr.  239-241. 
Rule  63  of  Michigan  Chancery  pro- 
vides that  when  a  case  is  to  be 
heard  on  pleadings,  or  pleadings  and 
proofs,  it  will  be  entitled  to  a  prefer- 
ence on  the  calendar  unless  defendant 
files   an  affidavit  that  he  has  a  good 


and  meritorious  defense,  and  that  his. 
answer  was  not  put  in  for  the  purpose 
of  delay. 

2.  Illinois.  —  A  statute  of  Illinois 
passed  in  1872,  and  amended  in  1877, 
provides  "that  if  the  plaintiff  in  any 
suit  upon  contract,  express  or  implied, 
for  the  payment  of  money,  shall  file 
with  his  declaration  an  affidavit  show- 
ing the  nature  of  his  demand  and  the 
amount  due  him  from  the  defendant 
after  allowing  to  the  defendant  all  his 
just  credits,  deductions,  and  set-offs,  if 
any,  he  shall  be  entitled  to  judgment 
as  in  case  of  default,  unless  the  de- 
fendant or  his  agent  or  attorney  (if 
the  defendant  is  a  resident  of  the 
county  in  which  the  suit  is  brought) 
shall  file  with  his  plea  an  affidavit 
stating  'that  he  verily  believes  he  has 
a  good  defense  to  said  suit  upon  the 
merits,  to  the  whole  or  a  portion  of 
the  plaintiff's  demand,  and,  if  a  por- 
tion, specifying  the  amount  according 
to  the  best  of  his  judgment  and  be- 
lief.' Upon  good  cause  shown  the 
time  for  filing  such  affidavit  may  be 
extended  for  such  reasonable  time  as 
the  court  shall  order.  No  affidavit 
of  merits  need  be  filed  with  a  demur- 
rer or  motion.  Provided  that  this 
section  shall  not  apply  to  any  case 
where  an  executor  or  administrator 
shall  defend  on  behalf  of  an  estate, 
and  provided  further  that  if  the  plain- 
tiff, his  agent  or  attorney,  shall  file  an 
affidavit  stating  that  affiant  is  taken 
by  surprise  by  such  plea  and  affidavit 
of  merits,  and  that  he  believes  that 
plaintiff  has  testimony  to  support  his 
claim  against  the  defendant  which  he 
cannot  produce  at  that  term  of  court, 
but  expects  to  produce  by  next  term, 
the  court  shall  continue  such  cause 
until  the  next  term."  Hurd's  Rev. 
Sts.    of  Illinois,   ed.  of  1891,    p.   1047, 

§37- 

A  rule  of  the  Superior  Court  of  Chi- 
cago provides  that,  in  actions  on  con- 
tract, plaintiff,  by  making  an  affidavit 


343 


When  Eequired.  AFFIDA  VI TS  OF   MERITS.  To  Prevent  Inquests. 


Under  such   provisions  the    plaintiff  must  file   the  affidavit  of 
amount  due  if  he  wishes  to  compel  defendant   to  file  an  affidavit 


that  he  believes  the  defense  is  put  in 
only  for  delay,  may  compel  the  defend- 
ant to  state  the  facts  of  his  defense  in 
an  affidavit,  or  have  the  cause  tried 
out  of  its  order  on  the  calendar.  Wall- 
baum  V.  Haskin,  49  111.  313.  But  such 
a  rule  is  void  as  contrary  to  the  pro- 
visions of  the  Constitution  providing 
that  practice  in  courts  of  the  same 
grade  shall  be  uniform,  and  the  stat- 
ute furnishes  the  rule  for  plaintiff  to 
follow  if  he  would  compel  defendant 
to  make  an  affidavit  or  obtain  judg- 
ment by  default.  Angel  v.  Plume, 
etc.,  Mfg.  Co.,  73  111.  412. 

Maryland. — Ch.  184  of  the  Laws  of 
1886  of  Maryland  \n  relation  to  actions 
in  the  Superior  Court  of  Baltimore, 
the  Court  of  Common  Pleas,  and  the 
Baltimore  City  Court  provides  as  fol- 
lows: "§  170.  In  any  suit  where  the 
cause  of  action  is  a  contract,  whether 
in  writing  or  not,  or  whether  express 
or  implied,  the  plaintiff,  if  affidavit  or 
affirmation  be  made  as  hereinafter 
stated,  shall  be  entitled  to  judgment 
to  be  entered  by  the  court  or  the  clerk 
thereof  on  motion  in  writing  at  any 
time  after  fifteen  (15)  days  from  the 
return  day  to  which  the  defendant 
shall  have  been  summoned,  although 
the  defendant  may  have  pleaded,  un- 
less such  plea  contains  a  good  de- 
fense, and  unless  the  defendant  or 
some  one  in  his  behalf  shall  under 
oath  or  affirmation  state  that  every 
plea  so  pleaded  by  the  defendant  is 
true,  and  shall  further  state  the 
amount  of  the  plaintiff's  demand,  if 
anything,  admitted  to  be  due  or  owing, 
and  the  amount  disputed  ;  and  fur- 
ther, that  the  affiant  verily  believes  the 
defendant  will  be  able  at  the  trial  of 
the  cause  to  produce  sufficient  evi- 
dence to  support  the  said  plea  as  to 
the  portion  disputed,  and  that  he  is  ad- 
vised by  counsel  to  file  the  said  plea  ; 
and  such  plea  shall  be  accompanied 
by  a  certificate  of  counsel  that  he  so 
advised  the  party  making  such  oath 
or  affirmation;  and  if  the  copartner- 
ship or  incorporation  of  any  of  the 
parties  to  the  suit  shall  be  alleged  in 
the  declaration  and  the  affidavit  to  be 
pleaded  therewith  as  hereinafter  pro- 
vided, or  if  there  shall  be  filed  with  the 
declaration  in  said  cause  any  paper  pur- 
porting to  be  signed  by  any  defendant 
therein,  the  fact   of  said  alleged  co- 


partnership or  incorporation,  and  the 
genuineness  of  such  signature,  shall 
be  deemed  admitted  for  the  purposes 
of  said  cause,  unless  the  said  affidavit 
shall  further  state  that  the  affiant 
knows  or  has  good  reason  to  believe 
such  allegation  of  copartnership  or 
incorporation  to  be  untrue,  or  that 
such  signature  was  not  written  by 
or  by  the  authority  of  the  person 
whose  signature  it  purports  to  be." 
"§  171.  The  plaintiff  shall  not  be  en- 
titled to  judgment  under  the  preced- 
ing section  unless  at  the  time  of  bring- 
ing his  action  he  shall  file  with  his 
declaration  an  affidavit  or  affirmation 
— if  the  affiant  is  conscientiously  scru- 
pulous as  to  taking  an  oath — stating 
the  true  amount  the  defendant  is  in- 
debted to  him  over  and  above  all  dis- 
counts, and  shall  also  file  the  bond, 
bill  of  exchange,  promissory  note,  or 
other  writing  or  account  by  which  the 
defendant  is  so  indebted;  or,  if  the  ac- 
tion be  founded  upon  a  verbal  cr  im- 
plied contract,  shall  file  a  statement  of 
the  particulars  of  the  defendant's  in- 
debtedness thereunder;  if  there  are 
two  or  more  plaintiffs  the  affidavit  or 
affirmation  may  be  made  by  any  one  of 
them,  or  if  all  the  plaintiffs  be  absent 
from  the  state  at  the  time  of  the  bring- 
ing of  the  said  suit,  or  if  the  plaintiff 
be  a  corporation,  the  said  affidavit  or 
affirmation  may  be  made  by  any  agent 
of  plaintiff  or  plaintiffs,  or  any  of 
them,  who  will  make  further  oath  or 
affirmation  that  he  has  personal 
knowledge  of  the  matter  therein 
stated." 

Under  this  statute  it  was  held  that 
the  purpose  of  the  act  was  to  prevent 
a  defendant  from  putting  in  a  plea  of 
the  general  issue  and  swearing  to  the 
truth  of  it,  where  a  part  of  plaintiff's 
demand  was  due,  and  his  declaration 
was  true  as  to  that  part,  and  to  com- 
pel a  defendant  in  such  a  case  to  ad- 
mit on  the  record  that  part  of  the  de- 
mand was  due — if  such  was  the  truth. 
Hence,  where,  to  an  action  on  a  note, 
defendant  pleaded  that  he  never  prom- 
ised as  alleged,  and  was  never  indebted 
as  alleged,  and  made  affidavit  that  his 
plea  was  true,  helJ,  bad  for  not  stat- 
ing the  amount  of  plaintiff's  demand 
admitted,  and  amount  denied.  Adler 
V.  Crook,  68  Md.  494. 

District    of    Columbia. — Rule  73  Cir- 


344 


When  Kequired.  AFFIDAVITS  OF   MERITS.   To  Prevent  Inquests. 


of  merits.*  By  pleading  over  it  has  been  held  that  plaintiff  does 
not  waive  the  right  to  require  an  affidavit  of  defense  from  defend- 
ant.* In  Illinois  the  defendant's  affidavit  should  be  filed  with  his 
plea,  ^  but  it  is  not  necessary  on  motions,  demurrers,  or  pleas  in 


cuit  Court  of  the  District  of  Columbia 
provides  :  "  That  in  actions  arising  in 
contract,  if  plaintiff  or  his  agent  shall 
have  filed  at  the  time  of  bringing  his 
action  an  affidavit  setting  out  dis- 
tinctly his  cause  of  action  and  the  sum 
he  claims  to  be  due,  exclusive  of  all 
set-offs  and  just  grounds  of  defense, 
and  shall  have  served  the  defendant 
with  copies  of  his  declaration  and  of 
said  affidavit,  he  shall  be  entitled  to 
judgment  for  the  amount  claimed  with 
interest  and  costs,  unless  the  defend- 
ant shall  file  along  with  his  plea,  if  in 
bar,  an  aflSdavit  of  defense  denying 
the  right  of  the  plaintiff  as  to  the  whole 
or  some  specified  part  of  his  claim,  and 
specifically  stating  also,  in  precise  and 
distinct  terms,  the  grounds  of  his  de- 
fense, which  must  be  such  as  would, 
if  true,  be  sufficient  to  defeat  the  plain- 
tiff's claim  in  whole  or  in  part.  And 
where  the  defendant  shall  have  ac- 
knowledged in  his  affidavit  of  defense 
his  liability  for  a  part  of  the  plaintiff's 
claim  as  aforesaid,  the  plaintiff,  if  he 
so  elect,  may  have  judgment  .entered 
in  his  favor  for  the  amount  so  con- 
fessed to  be  due.  The  provisions  of 
this  rule  shall  not  apply  to  defendants 
who  are  representatives  of  decedents' 
estates,  except  where  the  affidavit  filed 
with  the  declaration  sets  forth  that  the 
contract  sued  on  was  directly  with  such 
representative,  or  that  a  promise  to 
pay  was  made  by  him.  When  the  de- 
fendant is  a  corporation  the  affidavit 
of  defense  may  be  made  by  an  ofliicer, 
agent, or  attorney  of  such  corporation." 
Cogley's  Digest,  District  of  Columbia, 
512,  §  7.  Under  this  rule  it  was  held 
that,  where  defendant  admits  part  of 
plaintiff's  claim  to  be  due,  and  but  one 
cause  of  action  is  sued  on,  if  plaintiff 
elects  to  take  judgment  for  the  part 
admitted. to  be  due,  that  ends  the  con- 
troversy, and  the  court,  on  motion  of 
defendant,  will  discontinue  plaintiff's 
suit  for  the  balance  over  the  amount 
admitted  by  defendant.  If  plaintiff 
does  not  want  to  accept  the  amount 
admitted  due,  he  can  join  issue  on  the 
defense  and  go  to  trial.  But  he  cannot 
accept  judgment  for  the  amount 
admitted,  and  go  to  trial  as  to  the  bal- 
ance of  his  claim.  Kennedy  v.  Poal, 
5  Wash'.  L.  Rep.,  129. 


1.  Plaintiff's  affidavit. — Under  the 
statute  it  rests  with  the  plaintiff 
whether  to  file  an  affidavit  with  his 
declaration  or  not;  the  only  effect  of 
his  not  doing  so  is  that  the  defendant 
can  plead  without  an  aflSdavit  of 
merits.  Kern  v.  Strasberger,  71  111. 
303- 

But  if  plaintiff  wants  to  compel  de- 
fendant to  file  an  affidavit  of  merits,  or 
wants  to  obtain  judgment  by  default, 
he  can  only  do  so  by  complying  with  the 
statute,  and  filing  an  affidavit  with  his 
declaration.  Fisher  z*.  National  Bank, 
73  111.  34;  Kidder  v.  Rand,  73  111.  38; 
Angel  V.  Plume,  etc.,  Mfg.  Co.,  73  111. 
412.  Plaintiff  need  not  file  his  own 
aflSdavit;  the  statute  says  an  affidavit. 
Young  z/.  Browning,  71  III.  44;  Honore, 
V.  Home  Na;;.  Bank,  80  111.  489. 

An  affidavit  by  one  of  several  plain- 
tiffs showing  the  nature  and  amount 
of  the  demand  is  sufficient.  Haggard 
V.  Smith,  71  111.  226. 

Default. — Where  plaintiff  has  com- 
plied with  the  statute,  and  filed  with 
his  declaration  such  an  affidavit  as  the 
statute  requires,  he  can  take  judgment 
by  default  unless  the  defendant  files 
an  affidavit  of  merits,  as  required  by 
the  statute.  Young  v.  Browning,  71 
111.  44;  Goldie  V.  McDonald,  78  111.  605; 
Filkins  v.  Byrne,  72  111.  loi;  Mestling 
V.  Hughes,  89  111.  389;  Pierson  v. 
Hendrix,  88  111.  34;  Chicago,  etc.,  R. 
Co.  V,  Bank  of  N.  A.,  82  111.  493;  Kas- 
sing  V.  GriflSth,  86  111.  265;  Mayberry 
V.  Van  Horn,  83  111.  289;  Coursen  v. 
Browning,  86  111.  57;  Wayne  v.  Stern, 
75  111.  313;  TruesdellT/.  Hunter,  28  111. 
App.  292. 

To  prevent  default  where  plaintiff 
has  filed  the  required  aflSdavit,  the  de- 
fendant must  file  an  affidavit  of  merits, 
although  he  files  with  his  plea  a  mo- 
tion to  strike  the  plaintiff's  affidavit 
from  the  files.  Kassing  v.  Griffith,  86 
111.  265. 

2.  Williams  v.  Richland,  16  111.  App. 
333;  McDowell  V.  Hunter,  22  111.  28. 
Contra,  Hutton  v.  Marx,  69  Md.  252. 

3.  Defendant  must  file  his  plea 
with  his  aflBdavit;  the  affidavit  of  merits 
without  a  plea  will  not  prevent  judg- 
ment by  default.  Scammon  17.  McKey, 
21  111.  554.  But  a  plea  will  not  take 
the  place  of  the   affidavit;  and  where, 


345 


When  Required.  AFFIDAVITS  OF   MERITS.   To  Prevent  Inquests. 


abatement.*  The  defendant  must  file  an  affidavit  of  merits  in 
actions  on  distress  warrants,  appeal  bonds,  and  on  appeal  from 
justice  courts.*  In  Maryland  it  is  held  that  the  defendant's  affidavit 
must  clearly  show  to  what  part  of  plaintiff's  demand  it  applies  in 
order  to  prevent  judgment  ;^  while  in  Illinois  it  is  sufficient  if  it 
follows  the  statute.*  Where  the  affidavit  of  merits  concedes  part 
of  plaintiff's  claim  it  has  been  held  that  plaintiff  might  take 
judgment  for  that  part  without  regard  to  the  defense  to  the  bal- 
ance of  the  claim.* 

vent  judgment  by  default.  Mestling 
V.  Hughes,  89  111.  389;  Coursen  v. 
Browning,  86  111.  57;  Myers  v.  Shone- 
man,  90  111.  80. 

Appeals  from  Justice  Courts. — Where 
an  action,  begun  before  a  justice  court 
with  an  affidavit  of  claim  is  appealed, 
defendant  need  not  file  an  affidavit  of 
merits  until  the  case  is  reached  for  trial. 
Martin  v.  Hochstadter,  27  111.  App. 
166;  World's  Soap  Mfg.  Co.  v.  Woltz,  27 
111.  App.  302. 

3.  Where,  in  an  action  on  an  open 
account,  the  plea  of  the  statute  of  limi- 
tations was  interposed,  with  an  af- 
fidavit of  its  truth,  it  was  held  not  suf- 
ficient to  prevent  a  judgment  by  de- 
fault because  it  did  not  state  to  what 
items  of  the  account  it  applied,  and 
hence  did  not  show  what  part  of  plain- 
tiff's claim  was  admitted  and  what  de- 
nied. Hutton  V.  Marx,  69  Me.  252; 
Alaryland  Court  of  Appeals,  June  13, 
1888.  But  where  a  defendant, sued  in  as- 
sumpsit, pleads  payment  and  full  satis- 
faction of  plaintiff's  claim,  and  makes 
affidavit  that  his  plea  is  true,  held,  suf- 
ficient, and  that  he  need  not  state  the 
amount  admitted  and  the  amount  dis- 
puted, as  this  would  be  surplusage 
where  full  payment  is  alleged.  And 
quare,  whether  the  statute  applies  to 
actions  against  executors  on  debts  of 
their  testator,  as  they  could  not  have 
knowlenge  of  the  facts,  and  the  ap- 
parent intent  of  the  act  is  to  have  the 
affidavit  of  a  person  having  knowledge 
of  the  facts.  May  v.  Wolvington,  69 
Md.  117;  Maryland  Court  of  Appeals, 
June  13,  1888. 

4.  An  affidavit  of  merits  is  sufficient 
if  it  states  that  defendant  has  a  de- 
fense upon  the  merits  in  the  language 
of  the  statute.  McCormick  v.  Wells, 
83  111.  239. 

5.  Where  the  affidavit  of  merits  filed 
with  a  plea  goes  only  to  a  part  of  the 
plaintiff's  demand,  it  is  a  virtual  admis- 
sion that  the  part  excepted  is  due,  and 
plaintiff  may  concede   the   defense   to 


in  an  action  on  a  promissory  note,  de- 
fendant filed  a  verified  plea  denying 
the  execution  of  the  note,  held,  not  a 
compliance  with  the  statute,  and  that 
it  was  properly  stricken  from  the  files. 
Bank  of  N.  A.  v.  Chicago,  etc.,  R.  Co., 
82  111.  493.  But  where  several  were 
sued  as  partners,  verified  pleas  deny- 
ing joint  liability  were  held  equivalent 
to  an  affidavit  of  merits  under  the  stat- 
ute. Fergus  v.  Cleveland  Paper  Co., 
3  111.  App.  629. 

Leave  to  file  an  amended  affidavit  of 
plaintiff's  claim  extends  the  time  to  file 
an  affidavit  of  merits.  Healyz'.  Charn- 
ley,  79  111.   592. 

1.  The  statute  provides  that  an  af- 
fidavit of  merits  is  not  necessary  on 
motion  or  on  demurrer.  The  statute 
of  1874  provided  also  that  it  was  not 
necessary  on  filing  a  plea  in  abate- 
ment; and  although  the  provision 
as  to  plea  in  abatement  is  omitted 
from  the  present  statute,  an  affi- 
davit of  merits  is  not  required  with 
such  a  plea,  but  it  must  be  verified, 
viz.,  sworn  to  be  true.  Chicago,  etc., 
Co.  V.  Congdon,  etc.,  Mfg.  Co.,  iii  111. 
309;  Ricker  v.  Scofield,  28  111.  App.  32. 

But  when  a  plea  to  the  merits  is  put 
in,  it  must  be  accompanied  by  an  af- 
fidavit of  merits.  Kassing  v.  Griffith, 
86  111.  265.  The  affidavit  is  part  of  the 
plea  and  part  of  the  record  on  appeal. 
Whiting  V.  Fuller,  22  111.  33;  Williams 
V.  Reynolds,  86  111.  263. 

2.  Distress  Warrant. — Where  plain- 
tiff files  an  affidavit  of  claim  with  a 
distress  warrant,  the  defendant  must 
file  an  affidavit  of  merits,  for  this  pro- 
ceeding is  made  by  statute  a  suit  in 
contract,  and  is  for  the  payment  of 
money.  Bartlett  v.  Sullivan,  87  111. 
219. 

Appeal  Bond. — Where  an  action  is 
brought  on  an  appeal  bond,  it  is  an  ac- 
tion on  contract  for  the  payment  of 
money;  and  if  plaintiff  files  the  affidavit 
required  by  the  statute,  defendant 
must  file  an  affidavit  of  merits  to  pre- 


346 


When  Kequired.  AFFIDAVITS  OF  MERITS.   To  Prevent  Inquests. 


/.  Actions  on  Judgments. — In  the  District  of  Columbia  2in 
affidavit  of  merits  is  required  in  actions  on  judgments  to  render 
defendant's  plea  valid.* 

g.  In  Actions  of  Assumpsit  accompanied  by  Statement 
OF  Plaintiff's  Demand. — In  Pennsylvafiia  by  statute  an  affi- 
davit of  defense  is  necessary  to  prevent  judgment  by  default  in 
actions  of  assumpsit,  where  the  plaintiff  files  or  serves  a  state- 
ment of  his  claim  or  demand.*  Prior  to  the'  passage  of  this  act 
various  statutes  on  the  subject  existed,  which  are  repealed  so 
far  as  inconsistent  therewith,  and  a  uniform  rule  is  established.* 


the  part  alleged  and  take  judgment  for 
the  balance  without  regard  to  a  plea  to 
the  entire  cause  of  action.  Henry  v. 
Meriam.etc,  ParaffineCo.,  83  111.  461; 
Watt  V.  Allen,  69  111.  655;  Mayberry 
V.  Van  Horn,  83  111.  289;  Williams  v. 
Reynolds,  86  111.  263;  Haggard  v. 
Smith,  71  111.  226.  Contra,  Kennedy  v. 
Foal,  5  Wash.  L.  Rep.  129. 

Where  defendant's  affidavit  of  merits 
discloses  to  only  a  part  of  the  entire 
cause  of  action,  and  plaintiff  concedes 
such  defense,  defendant  cannot  put  in 
a  different  defense  to  the  entire  cause  of 
action.     Allen  v.  Watt,  69  111.  655. 

1.  Rule  121  of  the  Supreme  Court  of 
the  District  of  Columbia  provides  that 
in  cases  of  scire  facias  on  judgments, 
and  in  actions  on  judgments  of  a  state 
court  or  a  court  of  the  United  States, 
any  plea  thereto  shall  be  treated  as  a 
nullity  unless  an  affidavit  accompanies 
the  plea,  showing  a  defense  to  the  ac- 
tion. Held,  that  this  rule  applied  to 
all  judgments,  however  rendered,  if 
the  court  which  rendered  it  had  juris- 
diction, and  that,  unless  want  of  ju- 
risdiction was  shown,  such  an  affidavit 
of  defense  must  be  made  to  pre- 
vent a  judgment.  Loeber  v.  Moore, 
19  Wash.  L.  Rep.  194. 

2.  Pennsylvania  Statute. — An  act  of 
the  legislature  of  Pennsylvania,  passed 
May  25,  1887,  P.  L.,  p.  271,  No.  158, 
provides,  §3:  "The  plaintiff's  decla- 
ration shall  consist  of  a  concise  state- 
ment of  plaintiff's  demand  .  . 
and  in  the  action  of  assumpsit  shall  be 
accompanied  by  copies  of  all  notes, 
contracts,  book  entries,  or  a  particular 
reference  to  the  records  of  any  court 
within  the  county  in  which  the  action 
is  brought  (if  any)  upon  which  the 
plaintiff's  claim  is  founded;  and  a  par- 
ticular reference  to  such  record,  or  to 
the  records  of  any  deed  or  mortgage 
or  other  instrument  of  writing  re- 
corded in  such  county,  shall  be  suffi- 


cient in  lieu  of  the  copies  thereof.  The 
statement  shall  be  signed  by  the  plain- 
tiff or  his  attorney,  and  in  the  action 
of  assumpsit  shall  be  replied  to  by  affi- 
davit. §  4.  The  plaintiff  shall  be  at 
liberty,  in  each  of  said  actions,  to 
serve  copies  of  his  statement  upon  the 
defendants.  If  such  service  be  made 
not  less  than  fifteen  (15)  days  before 
the  return  day  of  the  writ,  it  shall  be 
the  duty  of  the  defendant  in  the  action 
of  assumpsit  to  file  an  affidavit  of  de- 
fense on  or  before  the  return  day.  § 
5.  In  the  action  of  assumpsit  judg- 
ment may  be  moved  for,  for  want  of 
an  affidavit  of  defense,  or  for  want  of 
a  sufficient  affidavit  for  the  whole  or 
part  of  the  plaintiff's  claim,  as  the 
case  may  be,  in  accordance  with  the 
present  practice  in  debt  and  assump- 
sit. §  6.  If  the  plaintiff  shall  neglect 
to  serve  his  statement  at  least  fifteen 
(15)  days  before  the  return  day  of  the 
writ,  he  may  file  it  on  or  at  any  time 
after  the  return  clay;  and  in  the  action 
of  assumpsit,  unless  the  defendant 
shall  file  a  sufficient  affidavit  of  de- 
fense within  fifteen  (15)  days  after  no- 
tice that  said  statement  has  been  filed, 
the  plaintiff  may  move  for  judgment 
for  want  thereof.  §  9.  That  all  laws 
or  parts  of  laws  inconsistent  herewith 
be  and  the  same  hereby  are  repealed." 
3.  Previous  Statutes  —  Effect  of  Lat- 
ter Act. —  Prior  to  the  passage  of 
this  statute  there  existed  various 
statutory  provisions  relating  to  an 
affidavit  of  defense  in  certain  ac- 
tions, providing  substantially  that  in 
all  actions  on  bills,  notes,  bonds,  or 
other  instruments  in  writing  for  the 
payment  of  money  or  for  the  recovery 
of  book  debts,  or  on  judgments  on  me- 
chanics' liens  or  contracts  for  the  loan 
of  money,  or  on  bonds  or  recogni- 
zances, etc.,  when  the  plaintiff  filed 
copies  of  the  instrument  or  contract 
sued   on,    or   referrec'    to   the    record 


347 


When  Eequired,  AFFJDA  VITS  OF   MERITS.  To  Prevent  Inquests, 


To  What  Actions  Applicable. — The  provisions  requiring  an  affidavit 
of  defense  have  been  held  to  apply  to  all  actions  of  assumpsit,  to 
actions  against  married  women,  to  foreign  attachments,  actions 
against    public   of^cers  and  corporations,  and  to  appeals  ;*    and 


thereof,  the  plaintiff  could  enter  judg- 
ment by  default  unless  the  defendant 
filed  an  affidavit  of  defense  stating 
therein  the  nature  and  character  of  the 
same.  Act  of  March  28,  1835,  P.  L. 
89;  Act  of  March  11,  1836,  P.  L.  79; 
Act  of  March  12,  1842,  P.  L.  66;  Act 
of  April  4,  1846,  P.  L.  328;  Act  of  May 
4,  1874,  P.  L.  159. 

These  acts  were  not  expressly  re- 
pealed by  the  act  of  1887,  but  so  far  as 
inconsistent  with  it  they  are  repealed 
thereby,  and  the  act  of  1887  now  gov- 
erns the  practice  in  relation  to  an  affi- 
davit of  defense.  Gould  v.  Sage,  118 
Pa.  St.  559;  Marlin  z/.  Waters,  127  Pa. 
St.  177;  Fritz  V.  Hathaway,  135  Pa. 
St.  274;  Newbold  v.  Pennock,  154  Pa. 
St.  591;  Flegal  V.  Hoover,  156  Pa.  St. 
276.  And  a  rule  of  court  allowing 
judgments  contrary  to  such  statute 
is  of  no  force  and  void.  Marlin  v. 
Waters,  127  Pa.  St.  177.  But  it  did 
not  change  the  former  practice  where 
not  inconsistent  therewith,  and  not 
provided  for  in  the  act  of  1887.  Fie-  • 
gal  V.  Hooner,  156  Pa.  St.  276;  Sted- 
man  v.  Paterie,  139  Pa.  St.  loi.  Thus 
the  defendant  is  still  required  to  state 
the  facts  constituting  his  defense  as 
under  the  former  provisions.  Flagg 
V.  Taylor  (Del.,  1888),  14  Atl.  Rep.  26; 
Superior  Nat.  Bank  v.  Stadelman,  153 
Pa.  St.  634;  Newbold  v.  Pennock, 
154  Pa.  St.  591;  Clarke  v.  Allen,  132 
Pa.  St.  40.  The  act  of  1887  was  held 
constitutional,  Honeywell  v.  Toney, 
5  Kulp  (Pa.)  360;  Kauffman  v.  Jacobs, 
4  Pa.  Co.  Ct.  Rep.  462;  and  to  apply 
to  actions  pending  when  it  was  passed, 
Krause  v.  Pennsylvania  R.  Co.,  20  W. 
N.  C.  (Pa.)  Ill;  Insurance  Co.  v. 
Reinoehl,  5  Lancaster  Law  Rev. (Pa.)  3. 

1.  The  Act  Applies  to  all  Actions  of  As- 
sumpsit where  a  proper  statement  is 
filed  by  the  plaintiff,  whether  the  ac- 
tion is  founded  on  a  book  account  or 
on  contract,  and  whether  the  contract, 
etc.,  is  in  writing  or  oral.  Blanchard 
V.  Hunter,  7  Pa.  Co.  Ct.  Rep.  552; 
Frederici  v.  Insurance  Co.,  i  Mona- 
han  (Pa.)  493. 

Married  Women. — The  act  extends  to 
an  action  against  a  married  woman  for 
a  debt  contracted  by  her  dum  sola, 
Wanamaker  v.  Gray,  15  W.  N.  C.  (Pa.) 


112;  Sharpler  v.  Elliot.  17  W.  N.  C. 
(Pa.)  478;  also  to  an  action  on  a  claim 
for  which  on  its  face  it  appears  she  or 
her  estate  is  liable,  Alworth  v.  Al- 
worth,  4  Law  Times  N.  S.  (Pa.)  188; 
Steinman  v.  Henderson,  94  Pa.  St. 
313.  But  not  to  a  suit  against  her  for 
necessaries.  Cooper  v.  Wallace,  7  W. 
N.  C.  (Pa.)  468.  Nor  to  a  suit  against 
her  and  her  husband  on  a  book  ac- 
count, where  it  is  not  averred  that  the 
goods  were  sold  to  the  wife  or  pur- 
chased on  her  credit.  Sheedy  v. 
Tinker, 40  Leg.  Int.  (Pa.)  360.  See  Scott 
V.  Wilmer,  i  W.  N.  C.  (Pa.)  41;  Eisen- 
bery  v.  Negus,  2  W.  N.  C.  (Pa.)  445; 
Schlecht  V.  Watson,  3  W.  N.  C.  (Pa.) 
43;  Defraham  v.  WalTier,  3  W.  N.  C. 
(Pa.)  26. 

Foreign  Attachments. — Under  the  act 
of  1887  it  has  been  held  that  an  afl5- 
davit  of  defense  is  necessary  in  a  case 
of  foreign  attachment.  Hubbard  v. 
Dorman,  7  Pa.  Co.  Ct.  Rep.  384; 
Smith  V.  Eyre,  26  W.  N.  C.  (Pa.)  214. 
The  contrary  was  held  in  Paff  v.  North 
Bangor  Co.,  5  Lancaster  Law  Rev. 
(Pa.)  301;  and  also  under  the  former 
law,  Roberts  v.  Hugg,  2  Miles  (Pa.) 
283. 

Public  Officers. — The  act  does  not 
apply  to  proceedings  against  public 
officers  who  have  given  bonds,  with 
sureties,  and  no  afiidavit  of  defense  is 
necessary  in  such  cases.  Com.  v. 
Morris,  5  Kulp  (Pa.)  488.  Contra, 
Bailey  v.  Com.  (Pa.,  1887),  10  Atl.  Rep. 
764. 

Corporations. — In  actions  of  assump- 
sit against  corporations  an  affidavit  of 
defense  must  be  filed,  although  a  re- 
ceiver has  been  appointed  therefor. 
Havs  V,  Pittsburgh,  etc.,  R.  Co.,  27 
Pittsb.  L.  J.  (Pa.)  105. 

Municipal  Corporation. — Whether  an 
affidavit  of  defense  must  be  made  in  an 
action  against  a  municipal  corporation 
was  not  decided.  Malone  v.  Phila- 
delphia, 132  Pa.  St.  209. 

Appeals. — When  plaintiff  makes  a 
statement  on  appeal  defendant  must 
file  an  affidavit  of  merits.  Lanfer  v. 
Landis,  23  W.  N.  C.  (Pa.)  460.  The 
act  applies  to  appeals  from  a  justices' 
judgment,  and  defendant  must  file  an 
affidavit  of  defense  thereon.    Connelly 


348 


When  Kequired.  AFFIDA  VI TS  OF  MERITS.   To  Prevent  InquMta. 


not  to  apply  to  actions  for  torts,  against  lunatics,  on  implied  con- 
tracts, on  judgments,  against  infants,  executors,  administrators, 
or  heirs.* 

Plaintiff's  Statement. — To  compel  the  defendent  to  present  an  affi- 
davit of  defense  the  plaintiff  must  serve  or  file  a  proper  statement 
showing  2l  prima-facie  liability  on  the  part  of  the  deferrdant.*  The 


V.  Wilson,  6  Pa.  Co.  Ct.  Rep.  421; 
Horner  v.  Horner,  145  Pa.  St.  258,  29 
W.  N.  C.  420. 

1.  Actions  for  Torts. — But  it  does  not 
apply  to  actions  for  torts.  Borlin  v. 
Com.,  99  Pa.  St.  42;  Reed  v.  Bush,  5 
Binn.  (Pa.)  457. 

An  action  against  a  national  bank 
to  recover  penalties  for  taking  usury 
is  an  action  ex  delicto,  and  hence  no 
affidavit  of  defense  is  necessary  there- 
in, although  the  action  is  in  the  form 
of  assumpsit.  Osborn  v.  First  Nat. 
Bank,  154  Pa.  St.  134.  And  see  Boyd 
V.  Turner,  i  Browne  (Pa.)  133;  Union 
Glass  Co.  V.  First  Nat.  Bank,  10  Pa. 
Co.  Ct.  Rep.  565. 

Lunatics. — The  act  does  not  apply 
to  a  defendant  found  by  inquisition 
to  have  been  a  lunatic  at  the  time 
the  contract  sued  on  was  executed. 
Philadelphia  Trust  Co.  v.  Kneedler, 
13  Phila.  (Pa.)  421,  35  Leg.  Int.  (Pa.) 
234.  The  former  act  held  not  to  ap- 
ply to  an  action  against  a  lunatic  or 
his  committee.  Alexander  z/.  Ticknor, 
I  Phila.  (Pa.)  120. 

Implied  Contracts. — Under  the  former 
law  it  was  held  to  apply  not  to  im- 
plied, but  only  to  express,  contracts. 
Sylva  V.  Bond,  2  Miles  (Pa.)  421;  Barr 
V.  Duncan,  76  Pa.  St.  395. 

Scire  Facias  sur  Judgment  is  not  an 
action  of  assumpsit  under  the  act  of 
1887,  requiring  an  affidavit  of  defense. 
Cowden  v.  Kennedy,  7  Pa.  Co.  Ct. 
Rep.  312.  The  former  law  applied  to 
such  actions.  Act  of  March  28.  1835, 
P.  L.  89. 

Infants. — The  former  act  was  held 
not  to  apply  to  an  action  against  an 
infant.  Reed  v.  Bush,  5  Binn.  (Pa.) 
455.  The  infancy  should  be  set  up  by 
affidavit.  Walker  v.  Morgan,  2  W.  N. 
C.  (Pa.)  173.  See  Charlton  v.  Alle- 
gheny, I  Grant's  Cas.  (Pa.)  208. 

Executors  and  Administrators. — The 
statute  does  not  apply  to  an  action 
against  an  executor  or  administrator 
on  a  contract  made  by  decedent.  Ken- 
nedy V.  Kennedy,  7  Pa.  Co.  Ct.  Rep. 
311;  Wiseman  v.  Insurance  Co.,  20 W. 
N.  C.  (Pa.)  299;  Cowden  v.  Kennedy, 


7  Pa.  Co.  Ct.  Rep.  312;  Orne  v.  Ritchie, 
4  W\  N.  C.  (Pa.)  477;  Malone  v.  Phila- 
delphia, 7  Pa.  Co.  Ct.  Rep.  613.  And 
it  was  so  held  under  the  former  act. 
Edwards  v.  Ewing,  4  Yeates  (Pa.)  235; 
Parker  v.  Farr,  2  Browne  (Pa.)  39; 
Siebert  v.  Hoeker,  i  Miles  (Pa.)  263  ; 
Vandusen  v.  Graham,  i  W.  N.  C.  (Pa.) 
103;  Seymour  v.  Hubert,  83  Pa.  St. 
346;  Umberger  v.  Zearing,  8  S.  &  R. 
(Pa.)  163.  In  scire  facias  on  a  mechan- 
ic's lien  claim,  where  the  contractor  is 
dead,  his  administrator  (defendant)  is 
not  required  to  make  an  affidavit  of 
defense.  And  see  Richards  v.  Reed, 
I  Phila.  (Pa.)  220;  Com.  v.  McKin- 
ney,  i  Sack.  Jur.  (Pa.)  107. 

But  where  an  executor  executed  a 
mortgage  as  executor,  an  affidavit  of 
defense  is  required  to  a  scire  facias 
sur  mortgage.  Palaiset  v.  Fidelity 
Co.,  16  W.  N.  C.  (Pa.)  146.  So  also 
such  an  affidavit  is  required  to  a  scire 
facias  on  a  judgment  obtained  against 
an  executor.  Umberger  v.  Zearing,  8 
S.  &  R.  (Pa.)  163.  Where  an  executor 
has  voluntarily  submitted  to  arbitra- 
tion, he  must  file  an  affidavit  of  de- 
fense to  an  action  of  debt  on  the  award. 
Bayard  v.  Gillasspy,  i  Miles  (Pa.) 
256. 

Heirs. — No  affidavit  of  defense  is  re- 
quired where  heirs  are  sued  on  the  con- 
tract of  the  decedent.  Boas  v.  Bir- 
mingham, 2  Pears.  (Pa.)  334;  Wright 
w.  Cheyney,  10  Phila.  (Pa.)  469:  Hallz/. 
Wiggins,  15  W.  N.  C.  (Pa.)  112.  Nor 
is  it  required  on  scire  facias  against 
heirs  to  show  cause  why  execution 
should  not  be  levied  of  their  lands. 
Stadelman  v.  Pennsylvania  Trust  Co., 
6  W.  N.  C.  (Pa.)  134. 

2.  In  order  that  plaintiff  may  compel 
a  defendant  to  make  an  affidavit  of  de- 
fense in  a  proper  case,  he  must  file  a 
sufficient  statement  of  his  claim;  for  if 
a  sufficient  statement  is  not  filed,  judg- 
ment cannot  be  taken  for  want  of  an 
affidavit  of  defense,  liarr  v.  McGarry, 
131  Pa.  St.  401.  It  is  error  to  give 
judgment  on  account  of  the  insuffi- 
ciency of  an  affidavit  of  defense,  where, 
the  case  is  one  in  which  an  affidavit  of 


349 


When  Eequired.  AFFIDA  VI TS  OF   MERITS.  To  Prevent  Inquests. 

defendant  does  not  waive  his  right  to  a  proper  statement  by  filing 
an  affidavit  of  defense.* 

Judgment  by  Default. — Where  a  proper  statement  has  been  made 
by  plaintiff,  and  defendant  omits  to  make  an  affidavit  of  defense, 
or  the  one  made  is  insufficient,  the  plaintiff  is  entitled  to  judg- 
ment by  default.* 

Waiver  of  Defects. — If  plaintiff  does  not  take  advantage  of  any  de- 
fect in  the  affidavit  at  the  first  opportunity,  he  waives  objections 
thereto.* 


defense  cannot  be  required.    Bartoe  v. 
Guckert    (Pa.,     1893),    27    Atl.     Rep. 

845. 

Sufficiency  of  Plaintiff's  Statement. — 
To  entitle  plaintiff  to  judgment  for 
want  of  an  affidavit  of  defense,  his 
statement  must  show  a  prima-facie 
liability  on  the  part  of  defendant. 
Karthaus  Coal,  etc.,  Co.  v.  Given,  i 
W.  N.  C.  (Pa.)  366;  Van  Dyke  v.  Mc- 
Connell,  i  W.  N.  C.  (Pa.)  276.  And  he 
must  file  a  copy  of  the  contract  sued 
on,  or  refer  to  its  record.  Jordan  z/. 
Keller,  5  W.  N.  C.  (Pa.)  341;  Laird  v. 
Potts,  6  W.  N.  C.  (Pa.)  56.  A  state- 
ment is  not  sufficient  if  it  alleges  nec- 
e-sary  facts  in  such  a  way  that  it 
amounts  simply  to  the  expression  of 
affiant's  opinion  that  they  are  facts; 
they  should  be  specifically  stated  as 
facts.  Bank  v.  Fair,  127  Pa.  St.  324. 
Where  the  items  of  a  claim  were  stated 
to  be  "nearly  as  follows,"  held,  in- 
sufficient to  require  an  affidavit  of  de- 
fense. Ide  V.  Booth,  8  Pa.  Co.  Ct. 
Rep.  499.  Where,  in  an  action  on 
book  entries,  it  is  stated  that  the 
charges  made  in  the  books  "were  in- 
tended as  personal  charges  against 
the  defendant,"  held,  defective,  and 
not  to  require  an  affidavit  of  defense. 
Fritz  V.  Hathaway,  135  Pa.  St.  274. 

In  an  action  by  a  depositor  against 
a  banking  company  to  recover  an  al- 
leged balance  of  deposit,  where  the 
plaintiff's  statement  sets  forth  a  copy 
of  an  entry  "to  balance  "  made  by  the 
defendant  in  plaintiff's  book,  giving 
the  date  and  amount,  held,  sufficient  to 
call  for  an  affidavit  of  defense  by  de- 
fendant. Such  an  entry  constitutes  a 
sufficient  instrument  of  writing  under 
the  affidavit  of  defense  lavv.  Schoono- 
ner  z/.Jones,ii  Pa.  Co.  Ct.  Rep.  63.  It  is 
the  duty  of  a  plaintiff  to  present  such 
a  record  as  entitles  him,  under  the  act 
of  May  25,  1887,  and  the  rules  of  court, 
to  a  judgment  before  he  can  call  on 
defendant  for  an  affidavit  of  defense. 


Medlar  v.  Wadlinger,  2  Pa.  Dist.  Rep. 
638.  To  compel  defendant  to  file  an 
affidavit  of  defense,  plaintiff's  state- 
ment must  show  a  pri?na-facie  liability 
on  the  part  of  defendant.  Hence, 
where  the  plaintiff's  statement  set  out 
a  written  instrument  in  which  the  re- 
ceipt of  the  consideration  was  ad- 
mitted, and  then  averred  demand  for 
and  the  refusal  of  defendant  to  pay 
such  consideration,  but  did  not  aver 
any  mistake,  or  that  the  consideration 
was  unpaid  held,  not  sufficient  to  re- 
quire an  affidavit  of  defense.  Grist 
V.  Mundell  (Pa.,  1888),  13  Atl.  Rep. 
319- 

1.  Filing  Affidavit  of  Defense  not  a 
Waiver  of  Objection  to  Statement. — The 
defendant,  by  filing  an  affidavit  of  de- 
fense, does  not  waive  the  objection 
that  plaintiff's  statement  is  insufficient 
to  call  for  such  affidavit  or  to  entitle 
plaintiff  to  judgment.  Ferguson  v. 
Anglo-American  Tel.  Co.,  151  Pa.  St. 
211;  Hutchinson  v.  Woodwell,  107  Pa. 
St.  509;  Miffiin  V.  R.  Co.,  10  Lane.  Bar 
(Pa.)  128;  Brown  v.  Street,  6  W.  &  S. 
(Pa.)  222;  Fenst  v.  Fell,  6  W.  N.  C.  (Pa.) 
43;  Hill  V.  Gaw,  4  Pa.  St.  495. 

2.  Judgment  for  Want  of  Affidavit  or 
Defect  in. — If  no  affidavit  of  defense  is 
filed  where  one  is  required,  or  if  the 
affidavit  filed  is  defective,  plaintiff  can 
take  judgment  as  by  default.  Lan- 
caster Bank  v.  McCall,  2  Clark  (Pa.) 
498;  West  V.  Simmons,  2  Whart.  (Pa.) 
261;  Taylor  v.  Nyce,  3  W.  N.  C.  (Pa.) 
433;  Pennock  v.  Kennedy,  153  Pa.  St. 
577;  Moore  v.  Phillips,  154  Pa.  St.  204. 
Such  a  judgment  has  been  held  to  be 
final,  and  not  interlocutory.  McClung 
V.  Murphy,  2  Miles  (Pa.)  177. 

3.  Chew  V.  Griffith,  i  Ashm.  (Pa.)  18. 
So,  taking  any  step  in  the  cause  has 
been  held  to  be  a  waiver  by  plaintiff  of 
the  right  to  take  judgment  for  want 
of  an  affidavit  of  defense.  O'Neal  v. 
Rupp,  22  Pa.  St.  395;  Johnston  v  Bal- 
lentine,  i  W.  N.  C.  (Pa.)  626. 


35° 


When  Required.  AFFIDAVITS  OF   MERITS.    To  Prevent  Inquests. 


Admissian  of  Part  of  Claim. — If  the  defendant  admits  part  of  the 
claim,  judgment  may  be  taken  for  that  part.* 

How  Sufficiency  Tested. — The  sufficiency  of  an  affidavit  of  defense 
should  be  tested  by  a  motion  for  judgment,*  although  the  affida-, 
vit  must  allege  all  the  facts  necessary  to  make  a  legal  answer  to 
plaintiff's  claim.  On  such  a  motion  the  affidavit  is  considered 
true,  and  if,  so  considered,  a  defense  in  law  or  equity  is  stated,  the 
motion  should  be  denied.' 

Admissions  Binding. — Admissions  contained  in  the  statement  of 
claim  and  affidavit  of  defense  are  binding  on  the  parties.* 


1.  Judgment  for  Part  of  Claim. — Where 
part  of  plaintiiff's  claim  is  admitted  by 
or  not  denied  in  the  affidavit  of  de- 
fense, the  practice  is  to  allow  plaintiff 
to  take  judgment  for  that  part,  and  to 
litigate  as  to  the  balance.  So  also, 
where  the  defense  set  up  in  the  affi- 
davit is  insufficient  as  to  part  of  plain- 
tiff's claim,  the  court  has  power  to  and 
will  direct  judgment  for  the  part  as 
to  which  the  affidavit  is  insufficient, 
and  allow  plaintiff  to  proceed  for  the 
balance.  Drake  v.  Irvine,  lo  Pa.  Co. 
Ct.  Rep.  487.  The  act  of  May  25,  1887, 
did  not  affect  the  practice  of  the  courts 
as  to  entering  judgment  for  part  of  a 
claim,  and  such  practice  of  the  lower 
courts  will  not  be  interfered  with  on 
appeal.  Stedman  v.  Paterie,  139  Pa. 
St.  no. 

2.  Necessity  for  Affidavit— How  Ques- 
tion Baised. — The  proper  way  to  raise 
the  question  whether  an  affidavit  of 
defense  is  needed  in  reply  to  plaintiff's 
statement  under  the  act  of  May  25, 
1S87,  is  for  plaintiff  to  enter  a  rule  for 
judgment  for  want  of  it;  a  rule  by  de- 
fendant to  show  cause  why  he  should 
not  be  relieved  from  filing  it  is  not 
proper.  Com.  v.  Payton,  i  Pa.  Dist.  Ct. 
Rep.  609.  The  question  may  properly 
be  raised  by  a  demurrer  by  defendant 
to  plaintiff's  declaration.  Fox  v.  Brin- 
ton,  I  Pa.  Dist,  Ct.  Rep.  608. 

3.  Class  V.  Kingsley,  142  Pa.  St.  636, 
28  W.  N.  C.  (Pa.)32i,  22  Pitts.  L.J.  N.  S. 
67,  48  Leg.  Int.  (Pa.)  364. 

Sufficiency  of  •  Affidavit  —  Inferences. 
— In  considering  the  question  of  the 
sufficiency  of  an  affidavit  of  defense,  all 
the  material  averments  thereof  must  be 
treated  by  the  court  as  true.  The  court 
should  not  infer  from  anything  appear- 
ing therein  that  defendant  will  not  be 
able  to  prove  his  case.  Shoemaker 
Piano  Co.  v.  Owens,  9  Lane.  L.  Rev. 
(Pa.)  74.  A  motion  for  judgment  for 
want  of  a  sufficient  affidavit  of  defense 


is  in  the  nature  of  a  demurrer  to  the 
affidavit  of  defense,  and  the  question 
raised  by  it  is  whether  the  amendments 
of  fact  in  the  affidavit  are  sufficient  to 
carry  the  case  to  the  jury.  In  consider- 
ing that  question  every  material  aver- 
ment of  fact  in  the  affidavit  must  be  ac- 
cepted as  true,  and  if  any  of  the  aver- 
ments contain  what  either  in  law  or  in 
equity  amounts  to  a  substantial  de- 
fense to  plaintiff's  claim,  the  affidavit 
must  be  sustained  and  judgment  on 
plaintiff's  claim  refused.  Third  Re- 
formed Dutch  Church  v.  Jones,  132 
Pa.  St.  465,  25  W.  N.  C.  (Pa.)  396,  47 
Leg.  Int.  (Pa.)  131. 

Where  the  refusal  to  give  judgment 
for  want  of  a  sufficient  affidavit  of  de- 
fense is  assigned  as  the  ground  of 
plaintiff's  appeal,  the  decision  will  not 
be  reversed  unless  plaintiff's  right  to 
such  judgment  as  shown  by  the  case 
presented  is  very  clear  ;  for,  notwith- 
standing such  refusal,  plaintiff  has  still 
a  right  to  submit  his  case  to  a  jury, 
and  a  fair  chance  to  obtain  a  verdict  if 
he  is  entitled  to  it.  Garis  v.  Fish,  133 
Pa.  St.  559- 

When,  at  the  time  of  a  motion  for 
judgment  for  want  of  a  sufficient  af- 
fidavit of  defense,  there  is  anything  on 
the  record  which  for  any  reason  shows 
that  plaintiff  is  not  entitled  to  it, it  is  the 
duty  of  the  court  to  deny  the  motion 
and  send  the  case  to  the  jury.  Hence, 
where  a  supplemental  affidavit  which 
showed  a  defense  was,  as  plaintiff  al- 
leged, improperly  filed,  held,  plaintiff 
was  not  entitled  to  judgment  as  long  as 
such  affidavit  was  on  file,  and  should 
move  to  strike  it  off  the  file  before  mov- 
ing for  judgment.  Wilkinson  v.  Brice, 
3  W.  N..C.  (Pa.)  30,  I  Pa.  Adv.  Rep. 
481. 

4.  While  the  affidavits  of  claim  and 
defense  are  not  ordinarily  intended  as 
evidence  for  the  jury,  they  constitute 
part  of  the  pleadings,  and  their  prov- 


V 


35 1 


Whea  Required.  AFFIDA  VI TS  OF   MERITS.     To  Open  Judgments. 


2.  To  Open  Judgments  or  Inquests. — It  is  the  almost  universal 
practice  to  require  an  affidavit  of  merits  in  order  to  open  a  judg- 
ment  regularly   taken    by  default,   or  to  set  aside   an  inquest.* 


ince  is  to  reduce  the  contest  to  the 
points  actually  in  dispute;  and  the 
courts  should  take  notice  of  the  admis- 
sions in  the  record,  and  confine  the  con- 
test to  the  matters  in  dispute.  White- 
head V.  North  School  Dist.,  145  Pa.  St. 
428;  Neely  v.  Bair,  144  Pa.  St.  256; 
South  Bethlehem  ^'.  Samper,  11  Pa.  Co. 
Ct.  Rep.  65.  Thus,  where  the  rules  of 
court  provided  that  in  actions  on  writ- 
ten instruments,  etc.,  where  a  copy 
thereof  is  filed  with  the  declaration, 
plaintiff  need  not  prove  its  execution 
unless  defendant  denies  it  by  an  affi- 
davit filed  with  his  plea,  plaintiff  can- 
not be  compelled  to  prove  its  execution 
where  no  affidavit  denying  it  is  filed  by 
defendant.  Whitehead  v.  North  School 
Dist.,  145  Pa.  St.  418,  48  Leg.  Int.  (Pa.) 
537;  22  Pitts.  L.  J.  N.  S.  174. 

1.  Alabama.  —  Mayfield  v.  Allen, 
Minor  (Ala.)  274. 

Arkansas. — Browning  v.  Roane,  9 
Ark.  354;  50  Am.  Dec.  218;  Nelson  v. 
Hubbard,  13  Ark.  253. 

California. — Francis  v.  Cox,  33  Cal. 
323;  Parratt  v.  Den.,  34 Cal.  79;  Bailey 
V.  TTaaffe,  29  Cal.  424;  Reese  v.  Ma- 
honey,  21  Cal.  315;  Woodward  v. 
Backus,  20  Cal.  137;  People  v.  Rains, 
23  Cal.  129;  Nevada  Bank  v.  Dresback, 
63  Cal.  324. 

Colorado. — Martin  v.  Skehin,  2  Colo. 
614;  Colorado  Springs  Co.  v.  Hewitt, 
3  Colo.  375;  Leaky  v.  Dunlap,  6  Colo. 
552. 

Florida. — Tidwell  v.  Witherspoon,  18 
Fla.  2S2;  Roussz'.  Gilbert,  19  Fla.   54. 

Georgia. — Beall  ».  Marietta,  etc., Co., 
45  Ga.  28. 

Illinois. — Hitchcock  v.  Herzer,  90 
111.  543;  Pith  V.  Magee,  24  111.  610; 
Springfield,  etc.,  R.  Co.  v.  Ross,  88111. 
179;  Moir  V.  Hopkins,  21  111.  557;  Con- 
stantine  v.  Weeks,  83  111.  192;  Little  v. 
Arlington,  93  111.  253;  Slack  v.  Casey, 
22  111.  App.  412;  Holmes  v.  Parker,  125 
111.  478;  Terry  v.  Eureka  College.  70 
111.  236;  Treftz  V.  Stahl,  46  111.  App. 
462;  Dunn  V.  Keegin,  4  111.  292. 

/ndi ana.  — Stevens  v.  Helm,  15  Ind. 
183;  Sturges  V.  Fay,  16  Ind,  429,  79 
Am.  Dec.  440;  Nutting  v.  Losance,  27 
Ind.  37;  Blake  v.  Stewart,  29  Ind.  318; 
Yancy  v.  Teter,  39  Ind.  305;  Phelps  v. 
Osgood,  34  Ind.  150;  Bristor  z/.  Galvin, 
62  Ind.  352;  Ratliff  v.  Baldwin,  29 
Ind.  16,  92  Am.  Dec.  330. 


Iowa. — Smith  v.  Watson,  28  Iowa 
218;  McDonald  v.  Donaghue,  30  Iowa 
568;  King  V.  Stewart,  48  Iowa  334;  Dis- 
trict Tp.  V.  White,  42  Iowa  608; 
Palmer  v.  Rogers,  70  Iowa  381. 

Kansas. — McPherson  v.  Kingsbaker, 
22  Kan.  646;  Ha^ght  v.  Schenck,  6  Kan. 
192. 

Mid.  J    ..  -  Loree  v.  Reeves,  2  Mich. 

133-  . 

Minnesota. — Woods  v.  Woods,  16 
Minn.  81;  Hilderbrandt  v.  Robecke,  20 
Minn.  100;  Weymouth  v.  Gregg,  40 
Minn.  45;  St.  Paul,  etc.,  R.  Co.  v. 
Blackmar,  44  Minn.  514. 

Mississippi. — Shields  v.  Taylor,  13 
Smed.  &  M.  (Miss.)  127;  Porter  z/.  John- 
son, 2  How.  (Miss.)  736;  Fore  v.  Fol- 
som,  4  How.  (Miss.)  282;  Maury  v. 
Roberts,  5  Cush.  (Miss.)  225. 

Missouri. — Campbell  v.  Garton,  29 
Mo.  343;  Adams  v.  Heckman,  43  Mo. 
168;  Doan  z*.  Holly,  27  Mo.  256;  Stout 
V.  Lewis,  II  Mo.  438. 

Montana. — Lamb  v.  Gastoy,  etc., 
Min.  Co.,  I  Mont.  57;  Donnelly  r/.  Clark, 
6  Mont.  135. 

Nebraska. — Mills  v.  Miller,  3  Neb.  95; 
Mulhollan  v.  Scoggin,  8  Neb.  202; 
Bernstein  v.  Brown,  23  Neb.  64. 

Nevada. — State  v.  Consolidated  Vir- 
ginia, etc.,  Co.,  13  Nev.  194;  Ewing  v. 
Jennings,  15  Nev.  379;  Jones  v.  San 
Francisco  Sulphur  Co.,  14  Nev.  172. 

New  Hampshire. — Ela  v.  Goss,  20 
N.  H.  52. 

New  Jersey. — Miller  z/.  Alexander,  i 
N.  J.  L.  400;  Gulick  V.  Thompson,  4 
N.  J.  L.  292;  Bell  V.  Kelly,  17  N.  J.  L. 
270;  Hendrickson  v.  Herbert,  38  N.  J. 
L.  296. 

New  York. — Gage  v.  Lessler,  19  Alb. 
L.  J,  (N.  Y.)  400;  Home  v.  Montgom- 
ery, 5  How.  Pr.  (N.  Y.)  238;  Stewart 
V.  McMartin,  2  How.  Pr.  (N.  Y.)  38; 
Robinson  v.  Sinclair,  i  How.  Pr.  (N.  Y.) 
106;  Alberth  v.  Peck,  i  How.  Pr.  (N.Y.) 
230;  Bogardus  v.  Doty,  2  How.  Pr. 
(N.  Y.)  75;  Tallmadge  v.  Stockholm, 
14  Johns.  (N.  Y.)  342;  Quinn  v.  Case,  2 
Hilt.  (N.  Y.)467;  Clark  v.  Lyon,  2  Hilt. 
(N.  Y.)  91;  Giles  V.  Caines,  3  Cai. 
(N.  Y.)  107;  Allen  v.  Thompson,  i  Hall 
(N.  Y.)  54;  Hunter  v.  Lester,  18  How. 
Pr.  (N.  Y.)  347;  Tryon  v.  Jennings,  22 
How.  Pr.  (N.  Y.  C.  PI.)  421;  Randall 
V.  United  Life,  etc.,  Ins.  Assoc,  39 
N.  Y.  St.  Rep.  155;  Kitson  v.  Blake,  39 


352 


When  Required.  AFFIDA  VI TS  OF  MERITS.    To  Open  Judgments. 


This  is  the  rule  in  equity  as  well  as  at  law.* 

In  Equity  such  an   affidavit  is  required  to  state  the  facts  of  the 
defense,*  and  the  proposed  answer  should  also  be  served.* 

At   Law  a   general   affidavit   of  merits  is  usually  sufficient,'*  al- 


N.  Y.  St.  Rep.  45;  Duche  v.  Voisin,  i8 
Abb.  (N.Y.)  358;  Bruen  z/.J  Adams,  3 
Cai.  (N.  Y.)  97;  Philips  v.  Blagge, 
3  Johns.  (N.  Y.)  141;  Fink  v.  Bryden, 
3  Johns.  (N.  Y.)  245;  Howe  v.  Has- 
brouck,  I  How.  Pr.  (N.Y.)  68;  Fake  ^'. 
Edgerton,  6  Duer  (N.  Y.)  653;  Daven- 
port V.  Ferris,  6  Johns.  (N.  Y.)  131. 

Ohio. — Messick,  etc., Co.  v.  Roxbury, 
I  Handy  (Ohio)  190;  Wayne  v.  Wash- 
ington, etc.,  Co.,  3  West.  L.  J.  (Ohio) 
305;  Havard  v.  Abbey,  i  West.  L. 
Month.  (Ohio)  278. 

Oregon. — Marsh  w.  Perrin,  10  Oregon 
364;  Mitchell  V.  Campbell,  14  Oregon 

454- 

Pennsylvania. — Reichenback  v.  Hum- 
mell,  6  Pa.  Co.  Ct.  Rep.  661;  Barber  z/. 
Dans,  I  Miles  (Pa.)  118;  Martin  v.  Hall, 
I  Phila.  (Pa.)  233;  Emerson  v.  Knight, 
I  Phila.  (Pa.)  121;  Nicholson  v.  Fitz- 
patrick,  2  Phila.  (Pa.)  205;  Scranton 
Supply  Co.  V.  Cooper,  4  Com.  Pleas 
Rep.  (Pa.)  103;  Kittle  v.  Compton,  4 
Com.  Pleas  Rep.  (Pa.)  117;  Brandle  v. 
Jones,  2  Woodward  (Pa.)  7;  Bright  v. 
McLaughlin,  i  Pa.  Co.  Ct.  Rep.  296; 
Keenan  v,  Dugan,  6  Lancaster  Rev. 
(Pa.)  408. 

South  Carolina. — Williamson  v.  Cum- 
mings,  2  McCord  (S.  Car.)  250. 

Texas. — Auston  v.  Burke.  55  Tex. 
331;  Goodhue  v.  Meyers,  58  Tex.  405. 

Wisconsin. — Mowry  v.  Hill,  11  Wis. 
146;  Butler  V.  Whitehall,  15  Wis.  355; 
Omro  V.  Ward,  19  Wis.  232;  Babcock 
V.  Perry,  4  Wis.  31;  Johnson  v.  Eldred, 
13  Wis.  482;  Wicke  v.  Lake,  21  Wis. 
410;  Sayles  v.  Davis,  22  Wis.  225;  But- 
line  V.  Bouer,  25  Wis.  486;  Cleveland 
V.  Hopkins,  55  Wis.  598. 

United  States. — Den  v.  McAllister,  4 
Wash.  (U.  S.)  393;  Scott  v.  Propeller 
Young  America,  Newb.  Adm.  no. 

England. — Neesom  7).  Whytock,  3 
Taunt.  403;  Morris  v.  Hunt,  i  Chit. 
Rep.  93,  18  E.  C.  L.  37;  Bonner  v. 
Hemp,  I  C.  &  J.  287,  288. 

1.  Mowry  v.  Hill,  11  Wis.  146; 
Grubb  V.  Crane,  5  111.  156;  Stockton  v. 
Williams,  Harr.  (Mich.)  241;  Thayer 
V.  Swift,  Walk.  (Mich.)  384;  Lansing  v. 
McPherson,  3  Johns.  Ch.  (N.  Y.)  424; 
Hunt  V.  Wallis,  6  Paige  (N.  Y.)  371; 
Winship  v.  Jewett,  i  Barb.  Ch.  (N.  Y.) 
173;  Goodhue  v.  Churchman,  ^i  Barb. 


Ch.  (N.  Y.)  596;  Babcock  v.  Perry,  4 
Wis.  31;  Dale  v.  Bugh,  16  Ind.  233; 
Powers  V.  Trenor,  3  Hun  (N.  Y.)  3; 
Wells  V.  Cruger,  5  Paige  (N.  Y.)  164; 
Sea  Ins.  Co.  v.  Stebbins,  8  Paige  (N. 
Y.)  565;  Meach  v.  Chappell,  8  Paige 
(N.  Y.)  135. 

2.  Meach  v.  Chappell,  8  Paige  (N.  Y.) 
135;  Sea  Ins.  Co.  v.  Stebbins,  8  Paige 
(N.  Y.)  565;  Wells  V.  Cruger,  5  Paige 
(N.  Y.)  164;  Hunt  V.  Wallis,  6  Paige  (N, 
Y.)  371;  Thayer  v.  Swift,  Walk.  (Mich.) 
384;  Mowry  v.  Hill,  11  Wis.  146;  Bab- 
cock V.  Perry,  4  Wis.  31;  Lansing  v. 
McPherson,  3  Johns.  Ch.  (N.  Y.)  424; 
Winship  27.  Jewett,  i  Barb.  Ch.  (N.  Y.) 
173;  Goodhue  v.  Churchman,  i  Barb. 
Ch.  (N.  Y.)  596;  Ferussac  v.  Thorn,  i 
Barb.  (N.  Y.)42;  Stockton  v.  Williams, 
Harr.  (Mich.)  241;  Hunt  v.  Lindsay, 
Walk.  (Mich.)  72;  Grubb  v.  Crane.  5 
111.  156;  Dale  V.  Bugh,  16  Ind.  233. 

It  is  the  settled  practice  in  chancery 
to  require  that  an  affidavit  of  merits 
shall  state  what  the  merits  are.  Thay- 
er V.  Swift,  Walk.  (Mich.)  384.  By  the 
well-settled  practice  of  chancery  a 
general  affidavit  of  merits  is  not  suf- 
ficient to  open  a  default,  but  the  af- 
fiant is  required  to  state  what  the 
merits  are,  so  that  the  court  can  see 
that  the  defense  is  not  imaginary,  and 
that  the  affiant  can  be  punished  for 
perjury  if  it  is  false.  Meach  v.  Chap- 
pell, 8  Paige  (N.  Y.)  135.  But  see 
Burch  V.  Scott,  i  Bland  (Md.)  112. 

3.  The  proposed  answer  as  well  as 
the  special  affidavit  is  usually  required 
to  be  served  to  open  the  default. 
Grubb  V.  Crane,  5  111.  156;  Stockton  v. 
Williams,  Harr.  (Mich.)  241;  Russell 
V.  Waite,  Walk.  (Mich.)  31. 

Answer  not  a  Substitute. — But  a  veri- 
fied answer  will  not  take  the  place  of 
an  affidavit  of  merits  stating  the  facts 
of  the  defense.  Mowry  v.  Hill,  11 
Wis.  146. 

4.  Van  Home  v.  Montgomery,  5 
How.  Pr.  (N.  Y.  Supreme  Ct.)  238;  Dix 
V.  Palmer,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  233;  Ellis  V.  Jones,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  296;  Bower  v. 
Kemp,  I  C.  &  J.  287;  Lane  v.  Isaacs,  3 
Dowl.  Pr.  Cas.  652;  Tate  v.  Bodfield,  3 
Dowl.  Pr.  Cas.  218;  Page  v.  South,  7 
Dowl.   Pr.  Cas.  412;  Burrows  v.  Hill- 


I  Encyc.  PI.  &  Pr. — 23. 


353 


When  Kequired.  A  F FID  A  VI TS  OF  MERITS.    To  Open  Judgments. 

though  the  rule  is  not  uniform,  and  many  authorities  require  the 
facts  constituting  the  defense  to  be  stated.* 

Verified  Answer. — In  some  jurisdictions  a  verified  answer  is  held  to 
take  the  place  of  an  affidavit  of  merits  for  the  purpose  of  opening 
a  default  ;*  while  in  others  both  the  proposed  answer  and  an  affi- 
davit of  merits  must  be  served.* 


house,  6  Johns.  (N.  Y.)  132;  McKinstry 
V.  Edwards,  2  Johns.  Cas.  (N.  Y.)  113; 
Coggswell  V.  Vandenburg,  i  Cai.  (N. 
Y.)  156;  Briggs  V.  Briggs.  3  Johns.  (N. 
Y.)  258;  Francis  v.  Cox,  33  Cal.  323; 
Woodward  v.  Backus,  20  Cal.  137; 
Howe  V.  Caldren,  4  Nev.  171;  State  v. 
Consolidated  Virginia,  etc.,  Min.  Co., 
13  Nev.  194;  Butler  v.  Mitchell,  17  Wis. 

52. 

1.  When  suspicious  circumstances 
exist,  a  special  affidavit  of  merits,  stat- 
ing the  facts  of  the  defense,  has  been 
required.  Dix  v.  Palmer,  5  How.,  Pr. 
(N.  Y.  Supreme  Ct.)  233;  Ellis z/.  Jones, 
6  How.  Pr.  (N.  Y.  Supreme  Ct.)  296; 
Sheldon  v.  Campbell,  5  Hill  (N.  Y.) 
508;  Merchant's  Bank  v.  Mills,  3  E.  D. 
Smith  (N.  Y.)  210;  McGaffigan  v.  Jen- 
kins, I  Barb.  (N.  Y.)  31. 

Where  the  defendant  had  admitted 
the  debt  and  asked  time  in  which  to 
pay  it  held,  that  his  default  should 
not  be  opened  on  a  general  affidavit, 
but  that  he  should  be  compelled  to 
disclore  the  facts  of  his  defense.  Shel- 
don V.  Campbell,  5  Hill  (N.  Y.)  508. 
A  special  affidavit  should  be  required, 
stating  the  facts  of  the  defense,  to 
open  default  where  defendant  has 
used  improper  continuances  to  gain 
time.  Gregory  v.  Stout,  6  Hill  (N.  Y.) 
380. 

And  without  regard  to  the  circum-  ■ 
stances,  it  seems  to  be  the  rule  in 
many  of  the  states  to  require  a  state- 
ment of  the  facts  of  the  defense  in 
the  affidavit  in  order  to  open  a  default. 
Miller  v.  Alexander,  i  N.  J.  L.  400; 
Bell  V.  Kelly,  17  N.  J.  L.  270;  Gib- 
boney  v.  Gibboney,  2  111.  App.  322; 
Holmes  v.  Parker,  125  111.  428;  Rich  v. 
Hathaway,  18  111.  548;  Hitchcock  v. 
Heizer,  90  111.  543;  Pitts  v.  Magie,  24 
111.  610;  Treftz  V.  Stahl,  46  111.  App. 
462;  Frost  V.  Dodge,  15  Ind.  139; 
Goldsberry  v.  Carter,  28  Ind.  59;  To- 
ledo, etc.,  R.  Co.  V.  Gates,  32  Ind.  238; 
Yancy  v.  Teter,  39  Ind.  503;  Phelps  v. 
Osgood,  34  Ind.  297;  Lake  v.  Jones, 
49  Ind.  297;  Buck  v.  Havens,  40  Ind. 
221;  Hays  V.  State  Bank,  21  Ind.  154; 
Nord  V.  Marty,  56  Ind.  531;  King  v. 


Stewart,  48  Iowa  334;  Jaeger  v.  Evans, 
46  Iowa  188;  McGrew  v.  Downs,  67 
Iowa  687;  McPherson  v.  Kingsbaker, 
22  Kan.  646;  Barry  v.  Johnson,  3  Mo. 
372;  Green  z/.  Goodloe,  7  Mo.  25;  Lamb 
V.  Nelson,  34  Mo.  501;  Campbell  v. 
Garton,  29  Mo.  343;  Florez  v.  Uhrig, 
35  Mo.  517;  Donnelly  z/.  Clark,  6  Mont. 
135;  Goodhue  v.  Meyers,  58  Tex.  405; 
Houston,  etc.,  R.  Co.  v.  Burke,  55 
Tex.  323,  40  Am.  Rep.  808;  Tullis  v. 
Scott,  38  Tex.  537;  Scott  v.  The  Young 
America,  Newb.  Adm.  no. 

2.  It  is  sometimes  held  thiat  a  veri- 
fied answer  will  take  the  place  of  an 
affidavit  of  merits  for  the  purpose  of 
opening  a  default.  Kupferle  v.  Mer- 
chants' Nat.  Bank,  32  Ark.  717;  Mc- 
Pherson V.  Kingsbaker,  22  Kan.  646; 
Haggerty  v.  Walker,  21  Neb.  596; 
Omro  V.  Ward,  19  Wis.  232;  Levy  v. 
Goldberg,  40  Wis.  308;  Howey  v.  Clif- 
ford, 42  Wis.  561 ;  Louchime  v.  Strouse, 
49  Wis.  623;  Laws  Wis.  1861,  ch.  211. 

That  a  verified  answer  will  not  take 
the  place  of  an  affidavit  of  merits  on 
such  motion,  see  Parrott  v.  Den,  34 
Cal.  79;  Martin  v.  Skehan,  2  Colo. 
614;  Butler  V.  Whitehell,  15  Wis.  355; 
Jones  V.  Russell,  3  How.  Pr.  (N.  Y. 
Supreme  Ct.)  324. 

New  York. — Although  §  980  of  the 
New  York  Code  allows  a  verified  an- 
swer to  take  the  place  of  an  affidavit 
of  merits  for  the  purpose  of  prevent- 
ing an  inquest,  it  does  not  seem  to 
have  changed  the  rule  in  other  re- 
spects. State  Bank  v.  Gill,  23  Hun 
(N.  Y.)4o6. 

3.  Reynolds  v.  Palen,  13  Civ.  Pro. 
Rep.  (N.  Y.)  200;  Palmer  v.  Van  Orden, 
4  Civ.  Pro.  Rep.  (N.  Y.)  44;  Hale  v. 
Bender,  13  Neb.  66;  Spencer  z/.  Thistle.. 
13  Neb.  201;  Fritz  v.  Grosnicklaus,  20 
Neb.  413.  Where  the  affidavit  of  merits 
stated  the  nature  of  the  defense,  held, 
that  service  of  the  proposed  answer 
was  excused.  Palmer  v.  Van  Orden, 
4  Civ.  Pro.  Rep.  (N.  Y.)  44.  49  N.  Y. 
Super.  Ct.  89. 

Where  the  proposed  answer  is  frivo- 
lous or  bad  the  motion  has  been  de- 
nied.    Hunt  V.    Mails,    i    Code   Rep. 


354 


■When  Required.  A  F FID  A  VI TS  OF  MERITS.        To  Change  Venue 

When  Defaults  Opened. — Where  probable  merits  are  shown,  defaults 
are  usually  opened.* 

Irregular  Default. — It  is  only  where  a  judgment  by  default  has  been 
regularly  taken  that  an  aflfidavit  of  merits  is  required  to  open  it; 
if  irregular,  no  merits  need  be  shown.* 

3.  To  Extend  Time  to  Answer  or  Demur. — An  affidavit  of  merits 
is  sometimes  required  to  obtain  an  extension  of  time  to  answer 
or  demur.^ 

4.  To  Change  Venue. — On  a  motion  to  change  the  venue  of  an 


<N.  Y.)  ii8;  Potter  z/.  Clark,  6  Abb. 
Pr.  (N.  Y.)  74,  note.  But  the  answer 
must  be  clearly  bad  in  order  to  defeat 
the  motion.  Excise  v.  Hallister,  2 
Hilt.  (N.  Y.)  588. 

1.  Andrews  v.  Davane,  2  Hayw.  (N. 
Car.)  373.     See  Defaults. 

Justice's  Judgment  —  New  York. — 
t$  3064  New  York  Code  of  Civil  Pro- 
cedure provides  that  a  justice's  judg- 
ment by  default  may  be  set  aside  on 
appeal  if  excused  and  shown  that  in- 
justice has  been  done.  Held,  that  to 
set  aside  such  a  judgment  the  appel- 
lant must  show  that  he  has  a  merito- 
rious defense,  and  should  state  what 
the  defense  is.  Young  v.  Conklin,  3 
Misc.  Rep.  (N.  Y.)  122. 

Technical  Defense. — Where  only  a 
technical  defense  is  shown,  viz.,  al- 
leged defects  appearing  on  the  face  of 
the  complaint,  held,  no  ground  for 
opening  the  judgment.  People  v. 
Rains,  23  Cal.  127.  Same  effect,  Jones 
v.  San  Francisco  Sulphur  Co.,  14  Nev. 
172;  Ewing  V.  Jennings,  15  Neb.  379; 
Howard  v.  Abbey,  i  West.  L.  Month. 
(Ohio)  278. 

Plaintiff  Admitting  Partial  Defense. — 
Motion  to  open  a  default  should  not 
be  denied  because  plaintiff  concedes  a 
defense  as  to  part  of  his  claim,  and 
consents  to  exclude  that  part  from  his 
judgment.    Francis  v.  Cox,  33  Cal.  323. 

2.  Norton  v.  Atchison,  etc.,  R.  Co., 
97  Cal.  388;  Browning  v.  Roane,  9 
Ark.  354,  50  Am.  Dec.  218;  Howell  v. 
Denniston,  3  Cai.  (N.  Y.)  96;  Thomas 
V.  Douglass,  2  Johns.  Cas.  (N.  Y.)  226; 
DePeyster  v.  Warne,  2  Cai.  (N.  Y.) 
45;  Gulick  V.  Thompson,  4  N.  J.  L. 
292;  Rice  V.  Griffith,  9  Iowa  539;  Find- 
ley  V.  Johnson,  i  Overt.  (Tenn.)  344. 

Where  the  Ohio  Code,  §  538,  pro- 
vided "  that  a  judgment  should  not  be 
vacated  on  motion  until  it  was  ad- 
judged there  was  a  good  defense," 
held,  that  this  provision  did  not  apply 
to  a  judgment  obtained  on  a  warrant  of 


attorney  which  applied  only  to  another 
and  distinct  cause  of  action,  or  where 
the  court  had  obtained  no  jurisdiction 
of  the  person  of  the  defendant.  Knox 
County  Bank  v.  Doty,  9  Ohio  St.  505, 
75  Am.  Dec.  479.  So  where  a  default 
was  obtained  through  misapprehen- 
sion or  mistake  occasioned  by  the 
plaintiff  or  his  attorney,  it  was  opened 
without  showing  merits,  although  it 
was  regularly  obtained.  Stewart  v. 
Atkins,  3  Cow.  (N.  Y.)  67;  Olney  v. 
Bacon,  3  Cai.  (N.  Y.)  132. 

Merits  Although  Irregular. — Although 
ajudgment  has  been  irregularly  entered 
it  will  not  be  opened  unless  the  peti- 
tioner shows  he  might  have  succeeded 
in  the  merits,  and  that  injust  ce  has 
been  done.     Ela  v.  Goss,  20  N.  H.  52. 

3.  Rule  24  of  the  New  York  Supreme 
Court  provides  that  "no  order  ex- 
tending a  defendant's  time  to  answer 
or  demur  shall  be  granted  unless  the 
party  applying  for  such  order  shall 
present  to  the  justice  or  judge  to 
whom  the  application  shall  be  made 
an  affidavit  of  merits,  or  proof  that  it 
has  been  filed,  or  an  affidavit  of  the 
attorney  or  counsel  retained  to  defend 
the  action  that,  from  the  statement  of 
the  case  in  the  action  made  to  him  by 
the  defendant,  he  verily  believes  that 
the  defendant  has  a  good  and  sub- 
stantial defense  upon  the  merits  to  the 
cause  of  action  set  forth  in  the  com- 
plaint or  to  some  part  thereof."  An 
order  made  extending  the  time  to  an- 
swer or  demur  without  an  affidavit  of 
merits  is  irregular  and  may  be  disre- 
garded. Ellis  V.  Van  Ness,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)  313;  Graham 
V.  Pinckney,  7  Robt.  (N.  Y.)  147; 
Davenport  v.  Sniffen,  i  Barb.  (N.  Y.) 
223.  The  affidavit  or  copy  must  be 
served.  Corning  v.  Roosevelt  (Su- 
preme Ct.)  10  N.  Y.  Supp.  93.  See 
also  Pingar  v.  Van  Click,  36  Wis.  141; 
Scammon  v.  McKey,  21  111.  554;  Ball  v. 
Geoch,  78  Wis.  355. 


355 


When  Required.  A  F FID  A  VI TS  OF   MERITS.  On  Motions  GeneraUy; 


action  an  affidavit  of  merits  is  required  by  the  practice  of  some 
jurisdictions.* 

5.  On  Motions  Generally. — An  affidavit  of  merits  is  frequently 
required  to  be  made  by  a  defendant  on  making  motions,  especially 
if  the  motion  be  one  which  tends  to  delay  the  action.®  Such  an 
affidavit  has  been  required  on  a  motion  to  stay  proceedings  on  a 
bail  bond;*  to  set  aside  proceedings  for  irregularity;*  to  obtain 
a  stay  of  proceedings  on  a  commission  to  examine  witnesses  ;*  to 
obtain  leave  to  answer  after  a  demurrer  has  been  overruled  as 
frivolous ;  ®  to  resist  a  motion  to  strike  out  a  plea  as  false ;  ^  to 
obtain  a  continuance.*     But  where  the  complaint  has  not  beea 


1.  Nicoll  V.  Nicoll.  4  West  Coast 
Rep.  (Cal.)  219;  Watkins  v.  Degener, 
63  Cal.  500;  Buell  v.  Dodge,  63  Cal. 
553;  Rathget  v.  Tiscornia,  66  Cal.  96; 
Rowland  v.  Coyne,  55  Cal.  i;  Johnson 
V.  Nevison,  2  Dowl.  Pr.  Cas.  260; 
Chemung  Canal  Bank  v.  Chemung 
County,  I  How.  Pr.  (N.  Y.)  162; 
Swartwout  v.  Hooge,  16  Johns.  (N.  Y.) 
3;  Mills  V.  Adsit,  2  How.  Pr.  (N.  Y.) 
83;  Brittain  v.  Peabody,  4  Hill  (N.  Y.) 
61;  Brownell  v.  Marsh,  22  Wend. 
(N.  Y.)  636;  Johnson  v.  Rogers,  3  Cow. 
(N.  Y.)  14;  Cromwell  v.  Van  Rensse- 
laer, 3  Cow.  (N.  Y.)  346;  Onondaga 
County  Bank  v.  Shepherd,  19  Wend. 
(N.  Y.)  ID,  I  Green's  New  Pr.  (Mich.) 
516;  Wharton  v.  Barrv,  I  How.  Pr. 
(N.  Y.)  62;  Anonymous',  i  Hill  (N.  Y.) 
668;  Jordan  v.  Garrison,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  6;  Bleecker  v. 
Storms,  2  How.  Pr.  (N.  Y.)  161;  State 
Bank  v.  Gill,  23  Hun  (N.  Y.)  406; 
Carpenter  v.  Continental  Ins.  Co.,  31 
Hun  (N.  Y.)  78;  Noys  Mfg.  Co.  v. 
Whitmore,  23  N.  Y.  Wkly.  Dig.  424; 
Chapin  v.  Overin,  55  N.  Y.  St.  Rep. 
130.  Contra,  Sherman  v.  Gregory,  42 
How.  Pr.  (N.  Y.  Supreme  Ct.)  481. 

Rule  48  of  the  New  York  Supreme 
Court  provides  that,  in  addition  to 
what  has  usually  been  stated  in  affida- 
vits on  motions  to  change  the  place  of 
trial,  either  party  may  state  the  nature 
of  the  controversy,  and  show  how  his 
witnesses  are  material,  and  where  the 
cause  of  action  or  defense  arose. 

§  396  of  the  California  Code  of  Civil 
Procedure  provides  that  on  motions 
to  change  the  venue  the  defendant 
must  file  an  affidavit  of  merits  at  the 
time  he  appears  and  answers  or  de- 
murs. Under  this  provision  it  has 
been  held  that  the  affidavit  of  merits 
should  accompany  the  answer  or  de- 
murrer, and  that  one  filed  before  is 
inconsequential    and    would     not    be 


sufficient  on    such  motion.     Nicoll  v. 
Nicoll,  4  West  Coast  Rep.  (Cal.)  219. 

2.  Bourne  v.  Walker,  2  C.  &  M.  338;. 
Hilton  V.  Jackson,  i  Chit.  Rep.  677, 
18  E.  C.L.  201;  3  Chitty  Genl.  Pr.  543. 

Rule  23  of  New  York  Supreme  Court 
provides  that,  when  an  affidavit  of 
merits  has  once  been  served  and  filed,, 
no  other  shall  be  necessary,  but  that 
on  making  a  motion  such  filing  and 
serving  shall  be  shown  by  affidavit. 
Prior  to  the  making  of  such  a  rule  it 
washeld  that  anaffidavit  of  merits  made 
for  the  purpose  of  one  motion  could 
not  be  used  on  another  motion.  Robin- 
son V.  Sinclair,  i  How.  Pr.  (N.  Y.)  106; 
Cutler  V.  Biggs,  2  Hill  (N.  Y.)  409; 
Popham  V.  Baker,  i  How.  Pr.  (N.  Y.} 
166.  But  the  court  would  not  presume 
without  proof  that  an  attempt  was  be- 
ing made  to  use  the  same  affidavit 
twice.  Mygatt  z/.  Garrison,  18  Abb.  Pr. 
(N.  Y.)  292,  note. 

A  Defendant  who  makes  a  Motion  be- 
fore Answering  is  still  required  to  make 
an  affidavit  of  merits.  Bingham  v. 
Bingham,  i  Civ.  Pro.  Rep.  (N.  Y.> 
166. 

3.  Bourne  v.  Walker,  2  C.  &  M.  138; 
Hilton  V.  Jackson,  i  Chit.  Rep.  677,  18 
E.  C.  L.  201;  Tidd  Pr.,  vol.  i,  p.  302. 

4.  Chitty  Genl.  Pr.;  Tate  v.  Bod- 
field,  3  Dowl.  Pr.  Cas.  218. 

6.  Meech  v.  Calkins,  4  Hill  (N.  Y.) 
534;  Seymour  v.  Strong,  19  Wend. 
(N.  Y.)  98;  Warner  z/.  Harvey,  9  Wend. 
(N.  Y.)  444- 

6.  Appleby  v.  Elkins,  2  Sandf.  (N. 
Y.)  673,  2  Code  Rep.  (N.  Y.)  80;  Har- 
low V.  Hamilton,  6  How.  Pr.  (N.  Y. 
Super.  Ct.)  475. 

7.  On  such  a  motion  an  affidavit  of 
merits  is  required,  but  a  general  affi- 
davit is  sufficient  where  there  is  no 
intricacy  in  the  plea  interposed.  Bow- 
en  V.  Bissell,  6  Wend.  (N.  Y.)  511. 

8.  On  a  Motion  for  a   Continuance  a 


356 


At  What  Time  Made.  AFFIDA  VI TS  OF  MERITS.  At  What  Time  Made. 

filed  or  served  and  the  defendant  has  not  had  a  chance  to  examine 
into  the  nature  of  the  cause  of  action,  it  has  been  held  not  neces- 
sary on  any  motion  relating  to  the  complaint.* 

V.  At  What  Time  Made.— An  affidavit  of  merits  is  not  required 
to  be  made  until  after  the  plaintiff  has  filed  or  served  his  declara- 
tion or  complaint.*  One  made  before  that  time  is  premature  and 
of  no  effect.^  It  is  usually  required  to  be  made  on  or  before  the 
time  of  joining  issue,'*  or  before  trial,*  but  should  be  made  before 
if  defendant  takes  proceedings  before  joinder  of  issue.® 

One  Affidavit  of  merits  is  usually  sufficient  ;''  and  if  a  second  one  is 


general  affidavit  of  merits  made  by  the 
defendant,  and  swearing  to  the  advice 
of  counsel  as  to  a  meritorious  defense, 
was  held  a  sufficient  affidavit  of  merits 
to  support  such  motion.  Sutton  v. 
Wegner,  72  Wis.  294;  Engs  ».  Overing, 
2  Code  Rep.  (N.  Y.)  79. 

1.  Engs  V.  Overing,  2  Code  Rep. 
<N.  Y.)  79- 

2.  Engs  V.  Overing,  2  Code  Rep. 
(N.  Y.)  79;  Laws  of  Illinois,  1877, 
Hurd  Rev.  Sts.  1891,  1047,  §  37;  Laws 
oi  Pennsylvania  1887,  P.  L.,  271;  Cali- 
fornia Code  of  Civil  Procedure,  §  396; 

Mississippi  Code  of  1892,  §  697;  John- 
ston V.  Beard,  7  Smed.  &  M.  (Miss.) 
214. 

3.  An  affidavit  of  merits  made  before 
the  filing  or  service  of  the  complaint  is 
not  sufficient  to  warrant  the  setting 
aside  of  an  inquest.  A  defendant  can- 
not swearto  merits  until  he  knows  what 
the  claim  of  plaintiff  is.  Geib  v.  Icard, 
II  Johns.  (N.  Y.)  82.  And  see  Nicall 
-v.  Nicall,  4  West  Coast  Rep.  (Cal.)  219. 

4.  Laws  of  Illinois,  1877,  Hurd  Rev. 
Sts.  1047,  §  37;  Pennsylvania  Laws 
1887,  P.  L.,  271;  Code  of  Civ.  Proc. 
California,  §  396;  Mississippi  Code 
1892,  §  396. 

Under  the  Pennsylvania  act  of  May 
25,  1889,  such  affidavit  should  be  filed 
on  or  before  the  return  day  of  the  writ, 
or  within  fifteen  days  after  notice  of 
the  filing  of  plaintiff's  statement.  New- 
told  V.  Pennock,  154  Pa.  St.  591. 
Under  the  former  statute  it  was  held 
that  it  might  be  filed  at  any  time  be- 
fore motion  for  judgment,  Gillespie 
■V.  Smith,  13  Pa.  St.  65;  or  even  after 
such  motion.  West  v.  Simmons,  2 
Whart.  (Pa.)  261. 

Under  §  396  of  the  California  Code 
requiring  the  filing  of  an  affidavit  of 
merits  with  the  appearance  of  defend- 
ant, or  when  he  joins  issue  on  a  motion 
to  change  the  venue,  held,  that  it 
must  be  filed  when  issue  is  joined,  and 


that  one  filed  before  was  of  no  effect. 
Nicall  V.  Nicall,  4  West  Coast  Rep. 
(Cal.)  219. 

5.  Although  the  statute  of  Illinois 
requires  defendant  to  file  an  affidavit  of 
merits  with  his  plea  in  certain  cases,  it 
has  been  held  sufficient  if  he  files  it 
before  the  case  is  reached  for  trial. 
Barnes  v.  Sisson,  44  111.  App.  327.  So, 
on  appeal  from  a  justice  court,  it  was 
held  that  the  affidavit  of  merits  need 
not  be  filed  until  the  action  is  reached 
for  trial.  Martin  v.  Hochstadter,  27 
111.  App.  166;  World's  Soap  Mfg.  Co. 
V.  Woltz,  27  111.  App.  302.  To  prevent 
an  inquest  such  an  affidavit  should  be 
made  and  served  before  the  first  day 
of  the  term.  Rule  28,  New  York  Su- 
preme Court;  Rule  99,  Michigan  Su- 
preme Court;  Brainard  v.  Hanford,  6 
Hill  (N.  Y.)  368. 

6.  Rule  23,  New  York  Supreme  Court ; 
Bingham  v.  Bingham,  i  Civ.  Pro.  Rep. 
(N.  Y.)  166. 

7.  More  than  one  Affidavit. — Rule  23, 
New  York  Supreme  Court, provides  that 
when  an  affidavit  of  merits  has  once 
been  filed  and  served,  no  other  shall 
be  necessary,  but  that  on  making  a 
motion  such  service  and  filing  shall 
be  shown  by  affidavit.  Prior  to  the 
making  of  such  a  rule  it  had  been  held 
that  an  affidavit  of  merits  made  for  one 
purpose  could  not  be  used  for  another 
purpose.  Cutler  v.  Biggs,  2  Hill  (N.  Y.) 
409;  Popham  V.  Baker,  i  How.  Pr. 
(N.Y.)  166;  Colegate  v.  Marsh,  2  How. 
Pr.  (N.  Y.)  137.  But  an  affidavit  of 
meritsmadefor  one  purposewas  always 
held  sufficient  for  that  purpose,  and 
no  second  affidavit  was  required. 
Prescott  V.  Roberts,  6  Cow.  (N.  Y.) 
45;  Van  Rensselaer  v.  Hamilton,  4 
Cow.  (N.Y.)  539;  Colver  z/.  Van  Walen, 
6  How.  Pr.  (N.  Y.  Supreme  Ct.)  102. 
Changing  the  place  of  trial  does  not 
affect  the  validity  of  an  affidavit  of 
merits  once   made  and  filed,  or  make 


357 


By  Whom  Made. 


AFFIDA  VI TS  OF  MERITS. 


By  Whom  Hade, 


made,  the  first  is  considered  abandoned.* 

VI.  By  Whom  Made— Defendant.— The  affidavit  of  merits  should 
in  general  be  made  by  the  defendant  in  the  action,  unless  his 
failure  to  make  it  is  properly  excused.* 

Real  Party  in  Interest. — It  may  be  made  by  the  real  party  in  interest, 
although  he  is  not  a  defendant  on  the  record.^ 


a  second  one  necessary.  Prescott  v. 
Roberts,  6  Cow.  (N.  Y.)  46.  Nor  is  it 
necessary  to  note  the  filing  thereof 
upon  each  calendar  or  docket  of  the 
court  in  order  to  protect  defendant's 
rights.  Worthington  v.  Pierson,  3 
Edw.  Ch.  (N.  Y.)  297. 

1.  Where,  on  objection  to  his  first 
affidavit  of  merits,  the  defendant  files 
a  second  one,  it  has  been  held  that  he 
thereby  abandons  the  first  one,  and 
that  the  court  cannot  consider  the  first, 
but  must  determine  defendant's  de- 
fense solely  on  the  second  affidavit. 
Stuber  v.  Schack,  83  111.  191;  Hays  v. 
Loomis,   84  111.  18;  Eberhart  v.   Page, 

89  111.     550;     Culver     V.      Johnson, 

90  111.  gi.  But  in  Pennsylvatiia  it 
seems  that  the  first  and  second,  or 
supplemental,  affidavits  are  both  con- 
sidered by  the  court.  Callan  v.  Lu- 
kens,  7  W.  N.  C.  (Pa.)  28;  Hill  v.  Gaw, 
4  Pa.  St.  495;  West  V.  Simmons,  2 
Whart.  (Pa.)  261. 

2.  Morris,  v.  Hunt,  i  Chit.  Rep.  97, 
18  E.  C.  L.  37;  Neesom  v.  Whytock,  3 
Taunt.  403;  Rowbotham  v.  Dupree,  5 
Dovvl.  Pr.  Cas.  557;  Roosevelt  v.  Dale, 
2  Cow.  (N.  Y.)  581;  Johnson  v.  Lynch, 
15  How.Pr.(N.Y.Super.Ct.)i99;  Mason 
z-.Bidleman,!  How.  Pr.  (N.Y.)62;  Phil- 
ips r'.Blagge,3  Johns. (N.Y.)  141;  Bailey 
V.  Taaffe,  29  Cal.  422;  Bernstien  v. 
Brown,  23  Neb.  64;  Bank  of  Michi- 
gan V.  Williams,  Harr.  (Mich.)  219; 
Griel  v.  Buckins,  114  Pa.  St.  187; 
Reisky  v.  Oilman,  13  W.  N.  C.  (Pa.) 
2S2:  Cowperthwait  z'.  Roney,  10  W.  N. 
C.  (Pa.)  482;  Krauer  v.  Cameron,  17 
W.  N.  C.  (Pa.)  223;  Clymer  v.  Fitler, 
I  W.  N.  C.  (Pa.)626;  Sleeper  v.  Dough- 
erty, 2  Whart.  (Pa.)  177;  Philadelphia 
V.  Peterson,  3  W.  N.  C.  (Pa.)  292; 
Cumberland  B'ld'g,  etc.,  Assoc,  v. 
Brown,  4  W.  N.  C.  (Pa.)  494;  Burk- 
hart  V.  Parker,  6  W.  &  S.  (Pa.)  480; 
James  v.  Young,  i  Dall.  (Pa.)  248; 
Evans  v.  Boon,  27  W.  N.  C.  (Pa.)  574; 
Wilkinson  v.  Brice,  30  W.  N.  C.  (Pa.) 
30. 

Illinois. — The  statute  of  Illinois  pro- 
vides that  the  affidavit  may  be  filed 
by  the  defendant  or  his  agent  or  at- 


torney. Hurd  Rev.  Sts.  1047,  §  37^  ed. 
of  1891;  Bancroft  v.  Eastman,  7  III. 
259- 

Marriage  Pending  Action. — One  who 
marries  &  feme  sole  during  the  penden- 
cy of  an  action  is  substantially  a  party 
to  the  record,  and  can  make  an  affidavit 
of  merits.  Roosevelt  v.  Dale,  2  Cow. 
(N.  Y.)  581. 

Corporations  Defendant.  —  Where  a 
corporation  is  defendant,  the  affidavit 
of  merits  may  be  made  by  an  officer  of 
the  corporation.  Billington  v.  Gautier 
Steel  Co.,  19  W.  N.  C.  (Pa.)  339.  But 
should  not  be  made  by  a  mere  stock- 
holder unless  good  reason  is  shown 
why  it  is  not  made  by  an  officer  or  di- 
rector. .Erie  Boot,  etc.,  Co.  v.  Eichen- 
laub,  127  Pa.  St.  169. 

3.  Roosevelt  v.  Dale,  2  Cow.  (N.  Y.) 
581;  Miller  v.  Hooker,  2  How.  Pr.  (N. 
Y.)  124;  Sleeper  v.  Dougherty,  2 
Whart.  (Pa.)  177;  Fraley  v.  Steinmetz, 
22  Pa.  St.  437;  Hunter  v.  Reilly,  36  Pa. 
St.  509. 

Guarantor. — One  who  has  bound 
himself  to  pay  a  judgment  which  may 
be  recovered  on  a  claim  against  an- 
other is  entitled  to  file  an  affidavit  of 
defense  in  a  suit  against  his  principal. 
Urich  V.  Zern,  2  Pa.  Dist.  Rep.  55. 

Stranger. — But  a  mere  stranger  to 
the  contest,  who  shows  no  interest  in 
it,  cannot  make  an  affidavit  of  defense, 
and  one  made  by  him  will  be  disre- 
garded. Bancroft  v.  Sterr,  i  W.  N.  C. 
(Pa.)  132;  Gross  v.  Painter,  i  W.  N.  C. 
(Pa.)  154;  Stallaker  v.  Lardner,  i  W. 
N.  C.  (Pa.)  169;  Philadelphia  v.  De- 
vine,  I  W.  N.  C.  (Pa.)  358;  Russell  v. 
Foran,  i  W.  N.  C.  (Pa.)  470;  Phila- 
delphia V.  Gross,  2  W.  N.  C.  (Pa.) 
429. 

Where,  in  an  action  brought  against 
the  endorsers  of  a  note,  an  affidavit  of 
defense  was  made  by  the  maker  of 
the  note  (not  a  party  to  the  suit)  aver- 
ring on  information  and  belief  failure 
to  give  notice  of  nonpayment,  held, 
that  it  should  be  disregarded,  as  the 
maker  showed  no  interest  in  the 
action.  Blew  v.  Shock,  i  W.  N.  C, 
(Pa.)  612. 


358 


By  Whom  Made. 


AFFIDA  VI TS  OF  MERITS. 


By  Whom  Made. 


Several  Defendants. — Where  several  defendants  have  the  same  de- 
fense, the  affidavit  of  merits  may  be  made  by  one  of  them,  and 
has  been  held  sufficient  for  them  all.*  Where  joint  defendants 
plead  jointly,  one  affidavit  of  merits  accompanying  the  plea  has 
been  held  sufficient.*  But  where  they  sever  in  pleading,  each 
plea  has  been  required  to  be  supported  by  an  affidavit  of  merits.* 

Agent  or  Attorney. — An  affidavit  of  merits  may  be  made  also  by 
the  defendant's  agent  or  attorney  in  fact,*  the  attorney  or  coun- 
sel of  a  party,*  or  the  attorney's  clerk.**     In  such  cases  an  excuse 


L 


1.  Ontario  Bank  v.  Baxter,  6  Cow. 
(N.  Y.)  395;  Clark  v.  Parker,  ig  Wend. 
(N.  Y.)  125;  Rowland  v.  Coyne,  55 
Cal.  i;  People  v.  Larne,  66  Cal.  235. 
But  it  must  be  made  clearly  to  appear 
that  the  defense  of  the  other  defend- 
ants is  the  same  as  that  of  the  de- 
fendant making  the  affidavit,  or  it 
will  not  be  sufficient.  Clark  v.  Parker, 
19  Wend.  (N.  Y.)  125. 

Maker  and  Endorsers. — Where  several 
suits  were  brought  against  the  maker 
and  endorsers  of  a  note,  they  being 
sued  in  separate  actions,  an  affidavit 
of  merits  made  by  the  maker  in  all 
the  suits  was  held  sufficient  to  open 
the  defaults  therein,  he  swearing  that 
he  was  acquainted  with  the  facts,  and 
that  the  defense  was  the  same  in  all 
the  actions.  It  was  objected  that  the 
maker  was  only  a  party  to  the  record 
of  one  of  the  suits,  but  his  affidavit 
was  sustained  by  reason  of  his  being 
a  party  to  the  instrument  sued  on, 
and  acquainted  with  the  facts  and  the 
identity  of  the  defenses  in  each  action. 
Ontario  Bank  v.  Baxter,  6  Cow.  (N.  Y.) 

395- 

Submission  of  Controversy. — The  Re- 
vised Statute  of  Indiana,  1S81,  t^  553, 
relating  to  the  submission  of  contro- 
versies in  an  agreed  statement  of 
facts,  provides  that  it  must  appear  by 
affidavit  that  the  controversy  is  real, 
and  that  the  proceedings  are  brought 
in  good  faith.  Under  this  statute  it 
was  held  that  it  was  not  necessary  that 
such  an  affidavit  should  be  made  by 
both  parties,  and  that  an  affidavit  by 
one  was  sufficient.  Booth  v.  Cotting- 
ham,  i26Ind.  431.     See  Agreed  Case. 

Sheriff  and  Sureties. — In  an  action 
brought  against  a  sheriff  and  his  sure- 
ties, it  was  held  that  an  affidavit  of 
merits  made  by  the  sheriff  was  suffi- 
cient for  all  the  defendants,  on  a 
motion  to  change  the  venue.'  Row- 
land V.  Coyne,  55  Cal.  4. 

2.  Hurd  V.  Burr,  22*111.  29;  Smith 
V.  Bateman,  79  111.  531. 

359 


3.  Whiting  v.  Fuller,  22  111.  33. 

4.  Morris  v.  Hunt,  i  Chit.  Rep.  97, 
18  E.  C.  L.  37;  Rowbotham  v.  Dupree, 
5  Dowl.  Pr.  Cas.  577;  Schofield  v. 
Huggins,  3  Dowl.  Pr.  Cas.  427;  Rei- 
sky  V.  Gilman,  13  W.  N.  C.  (Pa.)  282; 
Cowperthwait  v.  Roney,  10  W.  N.  C. 
(Pa.)  482;  Krauer  v.  Cameron,  17  W. 
N.  C.  (Pa.)  223;  Mason  v.  Bidleman, 
I  How.  Pr.  (N.  Y.)  62;  Johnson  v. 
Lynch, 15  How.Pr.(N.Y.Super.Ct.)  199. 
An  agent  in  London  of  the  defendant's 
attorney  in  the  country  has  been  al- 
lowed to  make  an  affidavit  of  merits. 
Schofield  V.  Huggins,  3  Dowl.  Pr.  Cas. 
427.  So  a  person  so  connected  with  the 
matter  as  to  be  fully  acquainted  with 
the  facts  of  the  case  has  been  allowed 
to  make  the  affidavit  of  merits.  Row- 
botham V.  Dupree,  5  Dowl.  Pr.  Cas. 
577;  James  v.  Young,  i  Dall.  (Pa.)  248. 
It  must  be  made  on  behalf  of  defend- 
ant. Marshall  v.  Whitte,  i  Phila.  (Pa.) 
117. — Contra. — Such  an  affidavit  cannot 
be  made  by  an  attorney  on  informa- 
tion derived  from  his  client.  Crine  v. 
Wallace,  i  W.  N.  C.  (Pa.)  292. 

5.  Morris  v.  Hunt,  i  Chit.  Rep.  97, 
18  E.  C.  L.  37;  Neesom  v.  Whytock,  3 
Taunt.  403;  Frankoviz  v.  Smith,  35 
Minn.  27S;  Bailey  v.  Taaffe,  29  Cal. 
422;  Geib  V.  Icard,  11  Johns.  (N.  Y.) 
82;  Philips  V.  Blagge,  3  Johns.  (N.  Y.) 
144;  Banks  z/.  Walker,  i  Barb.  Ch.  (N. 
Y.)  74;  Johnson  v.  Lynch,  15  How. 
Pr.  (N.  Y.  Super.  Ct.)  199.  An  affida- 
vit of  merits  may  be  made  by  the  attor- 
ney if  he  have  personal  knowledge  of 
the  facts.  Frankoviz  v.  Smith,  35 
Minn.  278.  It  is  no  objection  that  the 
knowledge  of  the  attorney  is  derived 
from  the  defendant,  as  this  is  usually 
all  the  information  the  attorney  can 
have.  Philips  v.  Blagge,  3  Johns. 
(N.  Y.)  141;  Johnson  v.  Lynch,  15 
How.  Pr.  (N.  Y.  Super.  Ct.)  199. 

6.  Neesom  z/.  Whytock,  3  Taunt.  403; 
Morris  v.  Hunt,  i  Chit.  Rep.  97,  18  E. 
C.  L.  37;  Nash  V.  Swinburn,  4  Scott 
N.   R.  326,  3  M.  &  G.  630;  Doe  v.  Mc- 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


for  defendant's  failure  to  make  it  should  usually  be  shown.*  When 
such  an  excuse  has  been  attempted,  plaintiff  has  been  allowed  to 
controvert  it  by  affidavits,  in  order  to  show  that  the  substituted 
affidavit  should  not  be  received.* 

VII.  Contents  of  Affidavit  of  Meeits — 1.  In  General — a.  The 
Usual  Affidavit — ordinary  Form.— The  form  of  the  affidavit  of 
merits  usually  required  to  be  made  by  a  defendant  and  which 
should  generally  be  strictly  followed  is  "  that  defendant  has  fully 
and  fairly  stated  the  case  to  his  counsel,  and  that  he  has  a  good 
and  substantial  defense  upon  the  merits  in  the  action,  as  he  is 
advised  by  his  counsel  and  verily  believes."  ^ 

Every  Part  of  this  Form  is  Material,  and  any  departure  from  it  should 
be  avoided.*     The  affidavit  should  state  that  defendant  has  fully 

Donnell,  8  Dowl.  Pr.  Cas.  508,  4  Jur. 
57S;  Bromley  v.  Gerish,  7  Scott  N. 
R.  516,  6  M.  &  G.  750.  If  made  by 
the  attorney's  clerk  it  should  show 
that  he  has  had  the  management  of 
the  case  and  is  acquainted  with  the 
facts  fully.  Doe  v.  McDonnell,  4  Jur. 
578;  Morris  v.  Hunt,  i  Chit.  Rep.  97, 
18  E.  C.  L.  37. 

1.  Roosevelt  v.  Dale,  2  Cow.  (N.  Y.) 
5S1;  Mason  v.  Bidleman,  i  How.  Pr. 
(N.  Y.)  62;  Johnson z/.  Lynch,  15  How. 
Pr.  (N.  Y.  Super.  Ct.)  199;  Geib  v. 
Icard,  II  Johns.  (N.  Y.)  82;  Philips  v. 
Blagge,  3  Johns.  (N.  Y.)  141;  Bailey 
V.  Taaffe,  29  Cal.  422;  Nicholl  v.  Nich- 
oll,  66  Cal.  36;  People  v.  Spalding,  2 
Paige  (N.  Y.)  326;  Bank  of  Michigan 
V.  Williams,  Harr.  (Mich.)  219;  Griel 
V.  Buckins,  114  Pa.  St.  187;  Reisky 
V.  Gilman,  13  W.  N.  C.  (Pa.)  2S2; 
Cowperthwait  v.  Roney,  10  W.  N.  C. 
(Pa.)  482;  Krauer  v.  Cameron,  17  W. 
N.  C.  (Pa.)  223;  Clymer  v.  Fitler,  i  W. 
N.  C.  (Pa.)  626;  Sleeper  v.  Dougherty, 
2  Whart.  (Pa.)  177. 

Sufficient  Excuse. — The  absence  of 
the  defendant  from  the  state  or  be- 
yond seas  will  usually  be  a  sufficient 
excuse  for  his  not  making  the  affidavit 
of  merits.  Reisky  v.  Gilman,  13  W. 
N.  C.  (Pa.)  282;  Krauer  v.  Cameron, 
17  W.  N.  C.  (Pa.)  223;  Philips  v. 
Blagge,  3  Johns.  (N.  Y.)  141;  Geib  v. 
Icard,  II  Johns.  (N.  Y.)  82;  Johnson 
■V.  Lynch,  15  How.  Pr.  (N.  Y.  Super. 
Ct.)  199.  So  also  the  severe  sickness 
of  the  defendant,  incapacitating  him 
from  making  the  affidavit,  is  a  suffi- 
cient excuse  for  his  not  making  it. 
James  v.  Young,  i  Dall.  (Pa.)  248; 
Sleeper  v.  Dougherty,  2  Whart.  (Pa.) 
177;  Clymer  v.  Fitler,  i  W.  N.  C.  (Pa.) 
626;  Mason  v.  Bidleman,  i  How.  Pr. 
(N.  Y.)  62.     But  that  the  facts  are  pe- 


culiarly within  the  knowledge  of  some 
other  person  is  no  excuse  for  defend- 
ant's not  making  the  affidavit.  In 
such  case  the  defendant  should  make 
it  on  information  and  belief.  Phila- 
delphia V.  Peterson,  3  W.  N.  C.  (Pa.) 
292;  Cumberland  B'ld'g,  etc.,  Assoc. 
V.  Bunn,  4  W.  N.  C.  (Pa.)  494.  So 
too  if  defendant's  affidavit  could  have 
been  obtained  at  any  time  before  the 
circuit,  the  affidavit  of  another  person 
is  insufficient.  Philips  v.  Blagge,  3 
Johns.  (N.  Y.)  141;  Johnson  v.  Lvnch, 
15  How.  Pr.  (N.  Y.  Super.  Ct.)  19'9. 

When  the  defendant  puts  in  an  affi- 
davit of  defense,  made  by  another 
than  himself,  it  must  show  upon  its 
face  sufficient  reason  why  it  is  not 
made  by  the  defendant  himself,  that 
a  real  disability  exists  which  pre- 
vented him  from  making  it,  and  the 
circumstances  giving  rise  to  the  dis- 
ability. Griel  v.  Buckins,  114  Pa.  St. 
187. 

2.  Johnson  v.  Lynch,  15  How.  Pr. 
(N.  Y.  Super.  Ct.)  199;  Quin  v.  Riley, 
3  Johns.  (N.  Y.)  249.  And  see  Doug- 
lass V.  Todd,  96  Cal.  655. 

3.  Brown  v.  St.  John,  19  Wend.  (N. 
Y.)  617;  Mosher  v.  Heydrick,  45  Barb. 
(N.  Y.)  549;  Brittain  v.  Peabody,  4  Hill 
(N.  Y.)  61;  State  Bank  v.  Gill,  4  Hill 
(N.  Y.)  535;  Tate  v.  Bodfield  3  Dowl. 
Pr.  Cas.  218;  Page  v.  Smith,  7  Dowl. 
Pr.  Cas.  412;  Hazelrigg  t/,  Wainwright, 
17  Ind.  218;  Woodward  v.  Backus,  20 
Cal.  137;  Nickerson  v.  California 
Raisin  Co.,  61  Cal.  268;  Burnham  v. 
Smith,  II  Wis.  258;  Sutton  v.  Weg- 
ner,  72  Wis.  294;  Bernstien  v.  Brown, 
23  Neb.  64;  Home  v.  Caldren,  4  Neb. 
171;  Lecompte  v.  Wash,  4  Mo.  557; 
Treftz  V.  Stahl,  46  111.  App.  462. 

4.  Brown  v.  St.  John,  19  Wend.  (N. 
Y.)6i7. 


360 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


and  fairly   stated  *    the   case;^    a  statement    of   the  defendant's 


1.  Alleging  "Statement"  of  Case. — 
Bleecker  v.  Storms,  2  How.  Pr.  (N.  Y.) 
i6i;  Brown  v.  St.  John,  19  Wend.  (N. 
Y.)  617;  Gary  v.  Livermore,  2  How. 
Pr.  (N.  Y.)  170;  Hazelrigg  v.  Wain- 
wright,  17  Ind.  218.  It  should  state 
that  defendant  has  fully  and  fairly 
stated,  etc.  Equivalent  words  will  not 
answer  unless  some  good  excuse  for 
the  failure  to  follow  the  rule  is  shown, 
and  where  the  words  used  were  "  that 
defendant  has  made  a  full  and  fair 
statement  of  all  the  facts  of  the  case 
so  far  as  they  had  come  to  his  knowl- 
edge, and  believed  them  to  exist," 
held,  defective.  Brown  v.  St.  John,  19 
Wend.  (N.  Y.)  617. 

So  where  the  affidavit  was  that  de- 
fendant had  fully  stated,  etc.,  the 
word  "fairly"  being  omitted,  it  was 
held  bad.  Bleecker  v.  Storms,  2  How. 
Pr.  (N.  Y.)  160.  So  where  the  words 
"fully  and  fairly  stated,"  etc.,  were 
omitted,  it  was  held  defective.  Gary 
V.  Livermore,  2  How.  Pr.  (N.  Y.)  170. 

But  an  affidavit  stating  "  that  the 
case  had  been  fully  and  fairly  repre- 
sented to  counsel,"  etc.,  was  held  suf- 
ficient. Francis  v.  Cox,  33  Cal.  323; 
Woodward  v.  Backus,  20  Cal.  137. 

Where  an  affidavit 'by  an  attorney 
stated  that  from  representations  made 
to  him  by  defendant  and  the  papers  he 
had  examined  he  verily  believed  de- 
fendant had  a  legal  defense,  held 
sufficient.  Philips  v.  Blagge,  3  Johns. 
(N.  Y.)  141. 

2.  Alleging  Statement  of  "the  Case." 
—Ellis  V.  Jones,  6  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  296;  Richmond  v.  Cowles, 
2  Hill  (N.  Y.)  359;  Fitzhugh  v.  Truax, 
I  Hill  (N.  Y.)  644;  Tompkins  v.  Acer, 
10  How.  Pr.  (N.  Y.  Supreme  Ct.)  309. 

Where  it  was  alleged  that  defendant 
had  fully  and  fairly  stated  his  case,  or 
the  facts  of  his  case,  held  defective, 
as  not  equivalent  to  the  case.  It  im- 
plies that  but  one  side  of  the  case  has 
been  stated,  viz.,  that  of  the  defend- 
ant. Fitzhugh  V.  Truax,  i  Hill  (N. 
Y.)  644;  Ellis  V.  Jones,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)  296;  Mosher  v.  Hey- 
drick.  45  Barb.  (N.  Y.)  549- 

"This"  or  "His"  Case. — Where  it  was 
alleged  that  defendant  had  stated  this 
case  or  his  case,  it  was  held  sufficient, 
as  fairly  implying  that  he  had  stated 
the  whole  case.  Brownell  v.  Marsh, 
22  Wend.  (N.  Y.)  636;  Brown  v.  Mas- 
ter, 2  How.  Pr.  (N.  Y.)  195.     An  alle- 


gation that  defendant  has  stated  this 
case  held  equivalent  to  a  statement  of 
the  case.  Jordan  v.  Garrison,  6  How. 
Pr.  (N.  Y.  Supreme  Ct.)  6. 

Facts  to  His  Knowledge. — An  alle- 
gation that  defendant  has  stated  all 
the  facts  of  the  case,  "so  far  as  the 
facts  have  come  to  his  knowledge," 
etc.,  was  held  defective,  as  not  imply- 
ing a  statement  of  the  who'e  case. 
Brown  v.  St.  John,  19  Wend.  (N.  Y.) 
617. 

"His  Defense." — An  allegation  that 
defendant  has  stated  his  defense,  in- 
stead of  the  case,  is  bad.  Richmond  v. 
Cowles,  2  Hill  (N.  Y.)  359;  Tompkins 
V.  Acer,  10  How.  Pr.  (N.  Y.  Supreme 
Ct.)  309;  Rickards  v.  Swetzer,  3  How. 
Pr.  (N.  Y.  Supreme  Ct.)  413;  McMur- 
ray  v.  Gifford,  5  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  14;  Nickerson  v.  California 
Raisin  Co.,  61  Cal.  268;  Brownell  v. 
Marsh,  22  Wend.  (N.  Y.)  636;  Burn- 
ham  V.  Smith,  II  Wis.  258.  Contra, 
see  Bernstien  v.  Brown,  23  Neb.  64. 

Facts  of  the  Case. — But  held  that  there 
is  no  substantial  difference  between  an 
affidavit  "  that  defendant  has  fully  and 
fairly  stated  the  case  in  this  action" 
and  one  "that  he  has  fully  and  fairly 
stated  the  facts  of  the  case  in  this  ac- 
tion." Reidy  v.  Scott,  53  Cal.  69; 
Rathgeb  v.  Tiscornia,  66  Cal.  96;  Buell 
V.  Dodge,  63  Cal.  553. 

No  Statement  of  Facts. — And  where 
an  affidavit  made  by  a  defendant  con- 
tained no  allegation  of  a  statement  of 
facts,  but  was  "that  defendant  has  a 
good  defense  on  the  merits,  as  he  is 
advised  and  believes,"  it  was  held  suf- 
ficient. Crosby  v.  Innes,  5  Dowl.  Pr. 
Cas.  566. 

"His  Case  in  this  Canse." — An  allega- 
tion that  defendant  had  stated  his  case 
in  this  cause  "  held  bad,  as  not  equiv- 
alent to  a  statement  that  he  had  stated 
his  case  generally.  Ellis  v.  Jones,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  296. 
But  such  an  allegation  was  held  good 
in  California,  viz.,  "that  I  have  fully 
and  fairly  stated  the  case  in  this  ac- 
tion." Watkins  v.  Degener,  65  Cal.  500. 

Proper  Form. — "That  defendant  has 
fully  and  fairly  stated  the  case  to  his 
counsel"  is  proper  in  form,  and  suffi- 
cient. Brown  v.  St.  John,  19  Wend. 
(N.  Y.)  617;  Jordan  v.  Garrison,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  6;  Buell 
V.  Dodge,  63  Cal.  553;  Woodward  v. 
Backus,  20  Cal.  138. 


361 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


defense  is  not  sufficient. ^  The  statement  should  be  alleged  to- 
have  been  made  to  the  defendant' s  counsel.'^  It  must  be  alleged 
that  defendant  has  a  good  and  substantial  defense^  and  that  such 


1.  Defendant's  Defense. — An  affidavit 
"  that  defendant  has  fully  and  fairly 
stated  the  said  defendant's  defense  in 
this  action  to  his  counsel  "  is  not  suf- 
ficient. It  must  clearly  appear  that 
defendant  has  fully  and  fairly  stated 
the  facts  of  the  case  to  his  counsel, 
before  the  advice  of  counsel  can 
amount  to  a  prirtia-facie  showing  of  a 
meritorious  defense,  and  a  statement 
of  defendant's  defense  is  only  a  partial 
statement  of  the  facts  of  the  case. 
Nickerson  v.  California  Raisin  Co., 
6i  Cal.  26S.  An  affidavit  "that  de- 
fendant has  fully  and  fairly  stated  his 
case  and  the  facts  constituting  his  de- 
fense," etc.,  held  bad.  People  v.  Larne, 
66  Cal.  235.  Semble,  that  a  statement  of 
the  grounds  of  defense  would  be  suffi- 
cient. Bernstien  v.  Brown,  23  Neb. 
64. 

An  affidavit  of  merits  stating  "that 
the  defendant  has  fully  and  fairly 
stated  to  his  attorneys  (naming  them) 
all  the  facts  of  said  case,  and  they 
have  informed  him  that  he  has  a  good 
and, perfect  defense  to  said  action,  and 
affiant  therefore  states  that  he  has  a 
good  defense  to  said  action,"  was  held 
sufficient.     Reidy  v.   Scott,  53  Cal.  69. 

On  a  motion  to  open  a  default,  de- 
fendant's affidavit  of  merits  stated 
"  that  defendant  had  employed  an  at- 
torney and  stated  his  defense  to  him, 
and  through  the  attorney's  neglect  the 
default  had  been  taken,  and  since  then 
he  had  employed  another  attorney,  by 
whom  he  was  advised  that  he  had  a 
good  defense  on  the  merits,  and  he  be- 
lieved the  same  to  be  true."  Held  in- 
sufficient,  and  motion  denied.  San- 
born V.  Centralia  Furniture  Mfg.  Co., 
5  Wash.  150. 

On  a  motion  to  open  a  default,  de- 
fendant's affidavit  of  merits  stated 
"  that  defendant  had  a  good  and  valid 
defense  upon  the  merits  to  the  whole 
of  said  plaintiff's  claim  in  this  action, 
and  that  he  is  not  indebted  to  the 
plaintiff  in  the  amount  claimed  in  the 
complaint,  or  in  any  sum  whatsoever." 
Held  insufficient  as  an  affidavit  of 
merits;  but  the  default  was  opened  on 
terms  on  the  ground  that  it  was  the 
policy  of  the  court  to  open  all  de- 
faults not  caused  by  gross  neglect. 
Duch6  V.  Voisin,  18  Abb.  N.  Cas.  (N. 
Y.)  358. 

36 


2.  State  Bank  v.  Gill,  23  Hun  (N.  Y.) 
406:  Bernstien  v.  Brown,  23  Neb.  64; 
Treftz  V.  Stahl,  46  111.  App.  462;  Hazel- 
rigg  V.  Wainwright,  17  Ind.  218.  It 
must  appear  that  the  statement  was 
made  to  the  counsel  of  defendant,  in 
order  that  the  advice  thereon  should 
be  effectual.  Nickerson  v.  California 
Raisin  Co.,  61  Cal.  268;  Brown  v.  St. 
John,  19  Wend.  (N.  Y.)  617;  and  that 
the  counsel  was  the  counsel  of  the 
defendant  in  the  action.  State  Bank  v. 
Gill,  23  Hun  (N.  Y.)  406.  Where  it 
was  alleged  "  that  defendant  had  fully 
and  fairly  stated  the  case  in  this  ac- 
tion to  his  attorney  and  counsel,"  it 
was  held  sufficient.  Watkins  v.  De- 
gener,    63  Cal.  500. 

3.  State  Bank  v.  Gill,  23  Hun  (N.  Y.) 
406;  Bank  of  Utica  v.  Root,  4  Hill 
(N.  Y.)  535;  Tate  v.  Bodfield,  3  Dowl. 
Pr.  Cas.  218;  Lane  v.  Isaacs,  3  Dowl. 
Pr.  Cas.  652;  Reidy  v.  Scott,  53  Cal. 
69;  Woodward  v.  Backus,  20  Cal.  138; 
Rowland  v.  Coyne,  55  Cal.  i;  Page  v. 
Smith,  7  Dowl.  Pr.  Cas.  412;  Lynch  v. 
Mosher,  4  How.  Pr.  (N.  Y.  Supreme 
Ct.)  86;  Wharton  v.  Barry,  i  How. 
Pr.  (N.  Y.)  62;  Brittain  v.  Peabody,  4 
Hill  (N.  Y.)  61;  Bernstien  v.  Brown, 
23  Neb.  64;  Bower  v.  Kemp,  i  C.  &  J. 
288;  Westerley  v.  Kemp,  i  Tyr.  261. 
The  affidavit  should  state  that  de- 
fendant has  "a  good  and  substantial 
defense;"  any  departure  from  this  form 
has  been  held  bad.  Bower  v  Kemp, 
I  C.  &  J.  288;  Westerley  z-.  Kemp,  i 
Tyr.  261;  Lane  v.  Isaacs,  3  Dowl.  Pr. 
Cas.  652;  Pringle  v.  Marsack,  i  D.  & 
R.  155;  Kenney  1'.  Hutchinson,  4 
Jur.  106;  Lvnch  v.  Mosher,  4  How. 
Pr.  (N.  Y.  Supreme  Ct.)  86;  Brittan 
V.  Peabody,  4  Hill  (N.  Y.)  61;  Warton 
V.  Barry,  i  How.  Pr.  (N.  Y.)  62;  Bern- 
stien V.  Brown,  23  Neb.  64. 

"Full  and  Substantial." — That  de- 
fendant has  "a  full  and  substantial 
defense,"  held  not  equivalent  to  "a 
good  and  substantial  defense."  Bank 
of  Utica  V.  Root,  4  Hill  (N.  Y.)  535. 

"  Good  and  Lawful." — "  That  defend- 
ants have  a  good,  lawful,  and  suffi- 
cient defense,"  /leld  not  equivalent 
to  "a  good  and  substantial  defense." 
Bernstien  v.  Brown,  23  Neb.  64. 

"  Good  Cause  of  Defense." — "  That  de- 
fendant has  merits,  and  a  good 
cause    of   defense,"    held    insufficient^ 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  GeneraU 


defense  is  upon  the  merits  ^ 

Lane  v.  Isaacs,  3  Dowl.  Pr.  Cas. 
652. 

"Good  and  Perfect."  —  But  "that 
defendant  has  a  good  and  perfect 
defense,"  held  suflScient.  Reidy  v. 
Scott,  53  Cal.  69.  So,  that  "defend- 
ant has  a  good,  full,  and  perfect  de- 
fense," has  been  held  sufficient.  Wood- 
ward V.  Backus,  20  Cal.  137;  Francis 
V.  Cox,  33  Cal.  323. 

"  Good  and  Valid. " — "  That  defendant 
has  a  good  and  valid  defense"  has 
been  held  sufficient.  Rowland  v. 
Coyne,  55  Cal.  4. 

1.  Bower  v.  Kemp,  i  C.  &  J.  287; 
Pringle  v.  Marsack,  i  Dowl.  Pr.  Cas. 
155;  Page  V.  Smith,  7JDowl.  Pr.  Cas. 
412;  Meech  v.  Calkins,  4  Hill  (N.  Y.) 
534;  Tompkins  v.  Acer,  10  How.  Pr. 
(N.  Y.  Supreme  Ct.)  309;  State  Bank 
V.  Gill,  23  Hun  (N.  Y.)  406;  Lane  v. 
Isaacs,  3  Dowl.  Pr.  Cas.  652.  "That 
defendant  has  a  good  defense  to  the 
action,"  without  stating  on  the  merits, 
is  bad.  Grottick  v.  Bailey,  5  B.  & 
Aid.  703,  7  E.  C.  L.  235;  Pringle  v. 
Marsack,  i  D.  &  R.  155;  Page  v. 
South,  7  Dowl.  Pr.  Cas.  412;  Jackson 
V.  Stiles,  3  Cai.  (N.  Y.)  93 ;  Tompkins  v. 
Acer,  10  How.  Pr.  (N.  Y.  Supreme 
Ct.)  309. 

Good  and  Meritorious  Defense. — "  That 
defendant  has  a  good  and  meritorious 
defense,"  is  bad,  and  not  equivalent 
to  a  defense  on  the  merits.  Westerley 
V.  Kemp,  I  Tyr.  260;  Bower  v.  Kemp, 
I  C.  &  J.  287.  "  That  defendant  hath 
merits,  and  a  good  defense,"  is  also 
bad.  Lane  v.  Isaacs,  3  Dowl.  Pr.  Cas. 
652.  But  where  the  allegation  was 
"that  defendant  has  a  good  and  sub- 
stantial defense  in  the  cause,"  it  was 
held  sufficient,  as  being  equivalent  to 
a  defense  on  the  merits.  Briggs  v. 
Briggs,  3  Johns.  (N.  Y.)  258;  Worthing- 
ton  V.  Pierson,  3  Edw.  Ch.  (N.  Y.) 
297. 

Defense  to  Plaintiffs  Claim. — To  al- 
lege a  defense  to  the  particular  claim 
made  by  plaintiff  is  held  not  to  be  al- 
leging a  defense  on  the  merits.  "  That 
defendants  have  a  good  and  substan- 
tial defense  upon  the  merits  in  the 
above-entitled  cause  to  the  promissory 
note  on  which  this  action  is  brought, 
as  they  are  advised  by  their  counsel," 
held  defective,  as  not  stating  a  de- 
fense on  the  merits.  Durant  v.  Cook, 
I  How.  Pr.  (N.  Y.)  45;  Mason  v. 
Moore,  2  How.  Pr  (N.  Y.)  70.      "  That 


defendant  has  a  good  defense  to  plain- 
tiff's declaration  filed  in  this  suit," 
held  bad,  for  the  same  reason.  Howe 
V.  Hasbrouck,  i  How.  Pr.  (N.  Y.)  68. 
"  That  defendant  has  a  good  and  sub- 
stantial defense  to  the  bond  on  which 
the  action  is  brought,"  is  bad,  as  not 
on  the  merits.  Meech  v.  Calkins,  4 
Hill  (N.  Y.)  534.  "That  defendant 
has  a  good  and  valid  defense  to  the 
whole  of  plaintiff's  claim,  as  set  forth 
in  said  complaint,  upon  the  merits 
thereof,"  held  insufficient,  as  being^ 
to  the  claim  alleged,  and  not  on  the 
merits.  State  Bank  v.  Gill,  23  Hun 
(N.  Y.)  406. 

' '  That  defendant  has  a  good  and  valid- 
defense  upon  the  merits  to  the  whole 
of  said  plaintiff's  claim  in  this  action," 
held  bad,  for  the  same  reason.  Diich6 
V.  Voisin,  18  Abb.  N.  Cas.  (N.  Y.)  358. 

The  Proper  Form  is,  "  that  defendant 
has  a  good  and  substantial  defense 
upon  the  merits  in  this  cause."  State 
Bank  v.  Gill,  23  Hun  (N.  Y.)  406." 

Must  be  to  the  Whole  Action, — It  must 
be  a  defense  to  the  whole  action,  hence 
it  was  held  bad  where  it  alleged  "  that 
defendant  has  a  good  and  substantial 
defense  on  the  merits  to  the  whole 
or  some  part  of  plaintiff's  demand." 
Chemung  Canal  Bank  v.  Chemung 
County,  I  How.  Pr.  (N.  Y.)  162. 

But  to  obtain  an  extension  of  time  to 
plead,  an  affidavit  "  that  defendant 
has  a  good  and  substantial  defense 
upon  the  merits  to  the  cause  of  action 
set  forth  in  the  complaint,  or  to  some 
part  thereof,"  is  made  sufficient  by 
rule  24  of  New  York  Supreme  Court. 

Where  defendant's  affidavit  of  merits 
on  a  motion  to  open  a  default  also 
stated  that  the  verdict  was  taken  for 
more  than  was  due  plaintiff,  and 
that  plaintiff  offered  to  relinquish  the 
surplus,  defendant  was  allowed  to 
present  another  affidavit  to  show 
whether  the  excess  of  the  verdict  was 
the  sole  basis  of  his  affidavit  of 
merits;  and  on  the  second  affidavit 
the  default  was  opened.  Fink  v.  Bry- 
den,  3  Johns.  (N.  Y.)  245.  There  is  no 
indication  in  the  case  as  to  what  the 
result  would  have  been  had  the  excess 
of  the  verdict  been  the  sole  basis  of 
the  affidavit  of  merits. 

In  Illinois  and  Pennsylvania  an  affi- 
davit of  merits  or  defense  may  go  to 
only  a  part  of  the  claim  of  plaintiff, 
and  plaintiff  may  have  judgment  for 


7y(il 


<7onteiits  of. 


AFFIDA  VI TS  OF  MERITS. 


In  General. 


and  ///  Ji:  actioji^  as  he   is  advised  by  his  counsel?' 

Advict  of  Counsel.— The  better  practice  is  to  have  it  appear  that 
the  counsjl  whose  advice  is  sworn  to  is  the  counsel  of  the  de- 
fendant in  the  action,*  and  that  the  advice  was  given  after  a 
statement  of  the    case   to   him,'*    and    to  state   the  name  of  the 


the  balance  thereon  ;  but  this  does 
not  seem  to  be  the  general  rule.  The 
affidavit  of  merits  must  go  to  the 
whole  claim.  Chemung  Canal  Bank 
V.  Chemung  County,  i  How.  Pr. 
(N.  Y.)  162.  And  the  court  will  not 
determine  the  sufficiency  of  the  de- 
fense if  put  in  in  good  faith.  Excise 
Com'rs.  V.  Hollister,  2  Hilt.  (N.  Y.)  588. 

1.  Tate  V.  Bodfield,  3  Dowl,  Pr.  Cas. 
218;  Johnson  v.  Nevison,  2  Dowl.  Pr. 
Cas.  260.  It  should  appear  from  the 
affidavit  that  the  defense  is  to  the 
particular  action  in  which  it  is  made; 
"to  this  action"  is  a  proper  form. 
Johnson  v.  Nevison,  2  Dowl.  Pr.  Cas. 
260.  Where  the  allegation  was  "  that 
defendant  has  a  good  and  substantial 
defense  on  the  merits,"  without  stat- 
ing to  the  action,  it  was  held  bad,  as 
not  connecting  the  defense  with  the 
action  in  which  the  affidavit  was 
made.  Tate  v.  Bodfield,  3  Dowl.  Pr. 
Cas.  218.  An  affidavit  "  that  defend- 
ant has  a  good,  legal,  and  meritorious 
defense  "  is  not  sufficient.  Howe  v. 
Coldren,  4  Nev.  171. 

2.  Cannon  v.  Titus,  5  Johns.  (N.  Y.) 
355;  Wilkes  V.  Hotchkiss,  5  Johns. 
(N.  Y.)  360;  Swartwout  v.  Hooge,  16 
Johns.  (N.  Y.)3;  Bruen  v.  Adams,  3 
Cai.  (N.  Y.)  97;  Cromwell  v.  Van 
Rensselaer, 3  Cow.  (N.Y.)  346;  Johnson 
V.  Rogers,  3  Cow.  (N.  Y.)  14;  Anony- 
mous, 3  Wend.  (N.  Y.)  425;  Howe  v. 
Coldren,  4  Nev.  171.  "That  defend- 
ant has  been  advised  and  believes  he 
has  a  good  defense,"  without  stating 
advised  by  counsel,  is  insufficient.  Le- 
compte  V.  Wash,  4  Mo.  557.  Where 
the  affidavit  was  "that  defendant  is 
advised  by  said  counsel  that  defend- 
ants have  a  good  and  substantial  de- 
fenseto  said  suit  uponthemerits, which 
advice  deponent  believes  to  be  true," 
held  defective,  as  swearing  to  belief 
in  advice,  rather  than  to  merits,  and 
that  it  should  have  been,  "  they  have 
a  defense,  as  they  are  advised  by 
counsel,"  etc.  Brittan  v.  Peabody,  4 
Hill  (N.  Y.)  61.  "  That  defendant,  as 
informed,  believes  he  has  a  good  de- 
fense," etc.,  is  insufficient.  Page  v. 
South,  7  Dowl.  Pr.  Cas.  412.  But  an 
affidavit  "that  defendant  has  a  good 


defense  on  the  merits,  as  he  is  advised 
and  believes,"  was  held  sufficient. 
Crosby  v.  Innes,  5  Dowl.  Pr.  Cas.  566. 

3.  Where  only  a  general  statement 
was  made  as  to  advice  of  counsel, 
without  specifying  that  he  was  de- 
fendant's counsel  in  the  action,  it  was 
considered  insufficient  for  that  reason. 
State  Bank  v.  Gill,  23  Hun  (N.  Y.) 
406.  But  the  case  did  not  necessarily 
turn  on  this  point,  as  there  was  an- 
other defect  in  the  affidavit  ;  and  the 
allegation,  "advised  by  my  counsel," 
or  equivalent  words,  seems  to  have 
been  considered  as  equivalent  to  an 
allegation  of  "my  counsel  in  this 
cause."  Rowland  v.  Coyne,  55  Cal.  i; 
Watkins  v.  Degener,  63  Cal.  500;  Howe 
V.  Coldren.  4  Nev.  171;  Butler  v. 
Mitchell,  17  Wis.  52;  Brown  v.  St. 
John,  19  Wend.  (N.  Y.)  617. 

Attorney  or  Counsel. — On  a  motion 
for  a  commissioner  to  examine  wit- 
nesses, an  affidavit  of  merits  made  by 
an  attorney,  without  swearing  to  ad- 
vice of  counsel,  was  held  sufficient, 
the  court  saying  that  the  advice  of  an 
attorney  was  equivalent  to  that  of 
counsel  within  the  rules  of  prac- 
tice. Beall  V.  Dey,  7  Wend.  (N.  Y.) 
513.  But  in  a  subsequent  case,  on  a 
motion  to  open  a  default,  it  was  shown 
that  the  advice  sworn  to  in  an  affidavit 
of  merits  was  that  of  an  attorney,  not 
of  a  counsellor,  and  on  that  ground  the 
affidavit  was  held  defective;  that  the 
advice  of  an  attorney  was  not  that  of 
a  counsel  within  the  rules,  and  that 
the  parties  had  been  misled.  Beall 
V.  Dey,  7  Wend.  (N.  Y.)  513;  McGarry 
V.  Hart,  7  Hill  (N.  Y.)  176,  i  How.  Pr. 
(N.  Y.)  74- 

4.  Advice  "After"  Statement.  —  It 
need  not  be  expressly  stated  that  the 
advice  of  counsel  was  given  after  the 
statement  of  the  case  to  him,  particu- 
larly where  the  affidavit  imports  this. 
Brown  v.  Seys,  2  How.  Pr.  (N.  Y.) 
276.  Contra,  Lansing  v.  Mickles,  i 
How.  Pr.  (N.  Y.)  248.  But  the  advice 
of  counsel  is  of  no  avail  unless  it  ap- 
pears that  the  case  has  been  stated  to 
him.  Nickerson  v.  California  Raisin 
Co.,  61  Cal.  268.  And  the  better  form 
is  to  allege  that  the  advice  was  given 


364 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General, 


counsel.*     Where  the  facts  are  stated  or  the  affiant  is  a  counsellor 
the  advice  of  counsel  need  not  be  alleged.* 

Defendant's  Belief. — It  should  appear  that  defendant  believes  his 
defense  to  be  good,'  and  such  belief  should  generally  be  founded 
on  knowledge,  not  information.* 


after  the  statement.  Watkins  v.  Deg- 
ener,  63  Cal.  500;  Sutton  v.  Wegner, 
72  Wis.  294. 

1.  Name  of  Counsel.  —  Rule  23  of 
New  York  Supreme  Court  provides 
that,  whenever  it  is  necessary  to 
swear  to  advice  of  counsel,  the  name 
and  place  of  residence  of  counsel  shall 
be  stated.  Where  the  affidavit  to  open 
a  default  was,  "  that  defendant  had 
fully  stated  his  case  to  his  attorney, 
who  had  advised  him  that  he  had  a 
good  defense  on  the  merits  of  plain- 
tiff's action,"  held  defective  in  not 
stating  who  the  attorney  was,  and  the 
facts  of  the  defense.  Treftz  z/.  Stahl, 
46  111.  App.  462.  In  other  states  it 
seems  also  to  be  the  practice  to  state 
the  counsel's  name.  Reidy  v.  Scott, 
53  Cal.  69;  Butler  v.  Mitchell,  17  Wis. 
52;  Sutton  V.  Wegner,  72  Wis.  294; 
Nash  V.  Swinburn,  4  Scott  N.  R.  326, 
3  M.  &  G.  630. 

2.  Where  the  facts  of  the  defense  are 
stated,  so  that  the  court  can  judge  for 
itself  whether  there  are  merits  or  not, 
the  advice  of  counsel  need  not  be  al- 
leged. Wilkes  V.  Hotchkiss,  5  Johns. 
(N.  Y.)  360;  Johnson  v.  Nevison,  2 
Dowl.  Pr.  Cas.  260.  Where  the  party 
making  the  affidavit  is  a  counsellor,  he 
need  not  swear  to  advice  of  counsel. 
The  court  will  take  judicial  notice 
that  he  is  a  counsellor  of  that  court. 
Cromwell  v.  Van  Rensselaer,  3  Cow. 
(N.  Y.)  346;  Worthington  v.  Price,  5 
Tyr.  1029,  2  C.  M.  &  R.  315. 

3.  Nash  V.  Swinburn,  4  Scott  N.  R. 
326  ;  Wharton  v.  Barry,  i  How.  Pr. 
(N.  Y.)  62  ;  Brittan  v.  Peabody,  4  Hill 
(N.  Y.)  61,  3  Chitty  Genl.  Pr.  543  ; 
Schofield  V.  Huggins,  3  Dowl.  Pr.  Cas. 
427;  Worthington  v.  Price,  5  Tyr.  1029, 
2  C.  M.  &  R.   315. 

"  Believed." — Where  the  affidavit  was 
"that  defendant  has  a  good  and  sub- 
stantial defense  upon  the  merits,  as  he 
is  advised  by  the  counsel  above- 
named,  and  verily  believed,"  Jield  in- 
sufficient, because  it  imported  a  past 
but  not  a  present  belief,  and  that  it 
should  have  been,  "and  verily  be- 
lieves." Wharton  v.  Barry,  i  How. 
Pr.  (N.  Y.)  60. 

Belief  in  Truth  of  Advice. — Where  the 


affidavit  was,  "that  deponent  is  ad- 
vised by  his  said  counsel  that  said  de- 
fendants have  a  good  and  substantial 
defense  upon  the  merits,  which  advice 
this  deponent  believes  to  be  true," 
held  insufficient,  as  swearing  to  belief 
in  the  truth  of  the  advice,  instead  of 
in  the  truth  of  his  defense.  Brittan  v. 
Peabody,  4  Hill  (N.  Y.)  61.  But  where 
the  affidavit  was,  "  I  have  fully  and 
fairly  stated  the  facts  in  this  case  to 
my  counsel,  and  after  said  statement 
they  informed  me  I  had  a  good  and 
valid  defense  upon  the  merits  to  said 
action  and  to  all  of  it,  all  of  which  I 
verily  believe  to  be  true,"  it  was  held 
sufficient.     Rowland  v.  Coyne,  55  Cal. 

4- 

"Ashe  is  Advised  and  Believes." — It  i& 
sufficient  that  the  defendant  swears  to 
merits  "  as  he  is  advised  and  believes." 
Crosby  v.  Innes,  5  Dowl.  Pr.  Cas.  566. 

An  affidavit  of  merits  by  defendant, 
"that  defendant  has  fully  and  fairly 
stated  the  case  in  this  cause  to  his 
counsel  (naming  him),  and  that  he  has 
a  good  and  substantial  defense  on  the 
merits  to  the  whole  of  the  plaintiff's 
demand  on  which  this  action  is 
brought,  as  he  is  advised  by  his  said 
counsel  and  verily  believes  to  be  true," 
held  proper  and  sufficient.  Butler  v. 
Mitchell,  17  Wis.  61. 

An  affidavit  of  merits  by  defendant 
in  support  of  a  motion  for  a  contin- 
uance of  the  action  stated  "  that  de- 
fendant has  fully  and  fairly  stated  the 
case  herein  to  his  counsel  (giving  his 
name  and  residence),  and  from  such 
statement  so  made  he  is  advised  by  his 
said  counsel  and  verily  believes  that 
he  has  a  good,  valid,  and  substantial 
defense  in  this  action  upon  the  merits 
thereof,  and  to  the  whole  and  every 
part  thereof."  Held  z.  proper  and  suf- 
ficient affidavit  of  merits.  Sutton  v. 
Wegner,  72  Wis.  294. 

4.  The  statement  of  the  defense  on  the 
merits  should  be  positive  and  without 
qualification.  Crowell  v.  Van  Rens- 
selaer, 3  Cow.  (N.  Y.)  346.  The  affi- 
ant should  swear  to  a  defense  on  the 
merits  from  his  own  knowledge  of  the 
facts,  and  not  on  information  and  be- 
lief.    Brown  v.  Cowee,  2  Dougl.  (Mich.). 


365 


Contents  of. 


AFFIDA  VI TS  OF  xMERITS. 


In  General. 


b.  Where  Facts  are  Stated. — Where  the  affidavit  states 
facts  constituting  a  good  defense,  an  affidavit  in  the  usual  form 
of  an  aflfidavit  of  merits  is  not  necessary  and  any  defects  therein 
are  immaterial.* 

In  chancery  an  affidavit  of  merits  is  required  to  state  the  facts 
of  the  defense,  and  in  that  case  the  usual  form  need  not  be  fol- 
lowed.*    This   is   also   the   rule  at  law  in  some  jurisdictions  on 


432.  An  affidavit  of  merits  stating 
facts  on  information  and  belief  is  in- 
sufficient and  improper,  as  being  hear- 
say. Jenkins  v.  Gamevvell  Fire  Alarm, 
etc.,  Co.  (Cal.,  1S92),  31  Pac.  Rep.  570  ; 
Adamson  v.  Wood,  5  Blackf.  (Ind.) 
448.  Where  an  attorney  is  a  defend- 
ant, he  should  swear  positively  to  his 
belief  of  a  defense  on  the  merits,  and 
not  that  he  is  instructed  and  believes, 
as  a  client  might.  Worthington  v. 
Price,  5  Tyr.  1029,  2  C.  M.  &  R.  315. 
An  affidavit  by  defendant's  attorney 
"that  he  was  informed  and  believed 
defendant  had  a  substantial  defense 
on  the  merits,"  was  held  insufficient. 
Briggs  V.  Briggs,  3  Johns.  (N.  Y.)  258. 
An  affidavit  by  an  attorney,  upon  mere 
information  and  belief,  that  there  is  a 
defense,  without  stating  the  facts  or 
giving  an  excuse  for  not  stating  facts 
also  on  information  and  belief,  held  in- 
sufficient. Hitchcock  V.  Herzer,  90 
111.  543.  But  an  affidavit  by  an  attor- 
ney, "  that,  from  representations  made 
to  him  by  defendant,  and  papers  he 
had  examined,  he  verily  believed  de- 
fendant had  a  legal  defense,"  was  held 
sufficient.  Philips  v.  Blagge,  3  Johns. 
(N,  Y.)  141.  Where  the  agent  of  a 
country  attorney  swore  "  that  he  was 
informed  and  verily  believed  it  to  be 
true  that  the  defendant  had  a  good  de- 
fense to  the  action  on  the  merits,"  it 
was  held  sufficient.  Johnson  v.  Pop- 
plewell,  2  Tyr.  718.  To  the  same  effect 
is  Schofield  v.  Huggins,  3  Dowl.  Pr. 
Cas.  427. 

In  Pennsylvania  an  affidavit  of  de- 
fense on  information  and  belief  is  held 
proper.  Philadelphia  v.  Peterson,  3 
W.  N.  C.  (Pa.)  292;  Cumberland  B'ld'g. 
etc.,  Assoc.  V.  Brown,  4  W.  N.  C.  (Pa.) 
494. 

1.  Johnson  v.  Beresford.  2  C.  &  M. 
222;  In  re  King,  i  Ad.  &  El.  560,  28  E. 
C.  L.  154;  Johnson  v.  Nevison,  2  Dowl. 
Pr.  Cas.  260;  Atty.  Genl.  v.  Hall,  2 
Dowl. Pr.Cas. Ill;  Wilkes  v.  Hotchkiss, 
5  Johns.  (N.  Y.)  360;  Shaw  v.  Brown, 
42  Miss.  309.  Where  the  statute  re- 
ouired  an  affidavit  of  merits  on  over- 


ruling a  demurrer,  held,  that  a  plea 
stating  a  good  defense,  with  an  affida- 
vit that  the  plea  was  true,  was  suffi- 
cient. Johnston  v.  Beard,  7  Smed.  & 
M.  (Miss.)  214. 

On  motion  to  open  a  default,  an  un- 
verified answer  was  presented,  and 
also  an  affidavit  by  defendant,  "that 
she  believed  she  had  a  good  defense 
to  the  action,"  but  she  did  not  swear 
that  the  answer  was  true.  Held  in- 
sufficient; that  the  court  should  not 
only  be  advised  of  the  defense  pre- 
sented, but  also  assured  by  affidavit 
or  other  testimony  that  such  defense 
is  at  least  believed  to  be  true.  Mc- 
Pherson  v.  Kingsbaker,  22  Kan.  646. 

On  motion  to  open  a  default  an  affi- 
davit by  defendant  stated  "that  he 
believed  the  endorsement  of  his  name 
on  the  note  on  which  judgment  had 
been  taken  against  him  was  a  forgery, 
which  belief  was  derived  from  infor- 
mation obtained  since  the  judgment 
was  entered,  and  that  plaintiff's  coun- 
sel refused  him  an  inspection  of  said 
note."  Held  sufficient,  and  default 
opened.  Bell  v.  Kelly,  17  N.  J.  L. 
270. 

On  motion  to  open  default  made  by 
one  of  several  joint  defendants,  his 
affidavit  stated  "that  he  had  never 
been  served  with  process,  that  only 
one  of  the  defendants  had  been  served, 
and  that  he  did  not  know  until  the  day 
before  what  the  claim  of  the  plaintiff 
was,  but  that  having  discovered  it  he 
was  perfectly  satisfied  that  the  de- 
fendants owed  nothing,  and  had  a 
good  and  full  defense."  Held,  that  the 
affidavit  was  to  be  favorably  consid- 
ered under  the  circumstances,  and  was 
sufficient,  and  motion  granted.  Gulick 
V.  Thompson,  4  N.  J.  L.  294. 

2.  I  Barb.  Ch.  Pr.  (N.  Y.)  602,  ed. 
1843;  Hunt  V.  Wallis,  6  Paige  (N.  Y.) 
371;  Wells  V.  Cruger,  5  Paige  (N.  Y.) 
164;  Meach  v.  Chappel,  8  Paige 
(N.  Y.)  155:  Sea  Ins.  Co.  v.  Stebbins, 
8  Paige  (N.  Y.)  565;  Winship  v.  Jew- 
ett,  I  Barb.  Ch.  (N.  Y.)  173;  Mowry 
V.  Hill,  II  Wis.  146;  Thayer  v.  Swift, 


366 


Contents  of. 


AFFIDA  VI TS  OF  MERITS. 


In  General. 


motions  to  open  defaults.* 

c.  The  Illinois  Rule. — The  statute  of  Illinois  requires  a 
defendant  in  certain  cases,  in  order  to  prevent  a  judgment  by 
default,  to  file  with  his  plea  an  af^davit  stating  "  that  he  verily 
believes  he  has  a  good  defense  to  said  suit  upon  the  merits  to 
the  whole  or  a  portion  of  the  plaintiff's  demand,  and  if  a  portion 
specifying  the  amount  according  to  the  best  of  his  judgment  and 
belief."  2 

Formal  Defects. — The  form  specified  in  the  statute  is  not  in  prac- 
tice required  to  be  strictly  followed,'  nor  do  mere  formal  defects 
vitiate  the  affidavit.* 

Facts  Constituting  Defense. — The  facts  constituting  the  defense  need 
not  be  stated  ;  ^  but  if  an  attempt  is  made  to  state  them,  a  good 
defense  must  be  set  out.® 


\ 


Walk.  (Mich.)  384.     And  see  Setting 
Aside  Judgments  by  Default,  supra. 

1.  See  Opening  Judgments  or  In- 
quests, supra. 

2.  Hurd's    Revd.    Stat.     1891,   1047, 

§37. 

3.  Wilborn  v.  Blackstone,  41  111. 
264;  Bell  V.  Nims,  51  111.  171.  An  afS- 
davit  which  states  that  the  defendant 
•has  a  defense  on  the  merits,  in  the 
language  of  the  statute,  is  sufficient. 
McCormick  v.  Wells,  83  111.  239.  So 
one  is  sufficient  which  meets  all  the 
requirements  of  the  statute,  although 
not  in  the  precise  language  of  the  stat- 
ute. Harrison  v.  Willett,  79  111.  482; 
Castle  V.  Judson,  17  111.  381.  The 
affidavit  need  not  describe  the  defense 
as  good;  the  statute  only  intends  it  in 
the  sense  of  bona  fide.  McDonnell  v. 
Olwell,  17  111.  375;  Castle  v.  Judson, 
17  111.  381.  Such  affidavit  should  be 
positive  and  direct,  and  not  on  infor- 
mation and  belief.  King  v.  Haines, 
23  111.  280. 

4.  An  affidavit  will  not  be  held  de- 
fective because  not  entitled  of  the 
court  or  term,  if  properly  entitled  in 
the  cause  and  regularly  filed,  so  that" 
it  can  readily  be  seen  to  what  cause  it 
relates.  Wilborn  v.  Blackstone,  41 
111.  264.  Nor  need  it  even  be  entitled 
in  the  cause.  Harris  v.  Lester,  80  111. 
307;  McCormick  v.  Wells,  83  111.  239; 
Hays  V.  Loomis,  84  111.  18;  Beardsley 
V.  Gosling,  86  111.  58.  Where  entitled 
C.  D.  V.  A.  B.,  where  A.  B.  is  plaintiff 
and  C.  D.  defendant,  it  is  entitled  in 
the  cause,  especially  where  written  on 
the  same  paper  as  the  plea  which  was 
properly  entitled.  Bowen  v.  Wilcox, 
etc.,  Sewing  Machine  Co.,  86  111.  11. 
Interlineations  made  before  it  is  sworn 


to  do  not  vitiate  it.  Garrity  v.  Wilcox, 
83  111.  159.     See  also  Affidavits. 

Substantial  Compliances. — An  affidavit 
"that  defendant  verily  believes  he 
has  a  good  defense  to  the  suit  upon 
the  merits  to  the  whole  of  the  plain- 
tiff's demand "  I's  sufficient.  Eber- 
hart  V.  Page,  89  111.  550;  Fisher  v. 
National  Bank,  73  111.  34. 

An  affidavit  "that  defendant  be- 
lieves he  has  a  good  defense  to  the 
action  upon  the  merits,"  is  a  substan- 
tial compliance  with  the  statute,  being 
equivalent  to  a  statement  of  a  defense 
to  the  whole  of  the  demand.  Wads- 
worth  V.  .(Etna  Nat.  Bank,  84  111. 
272. 

An  affidavit  "  that  defendant  has  a 
good  and  valid  defense  to  the  whole 
of  the  suit  upon  the  merits,"  is  suffi- 
cient, for  if  a  defense  to  the  whole  suit, 
it  is  also  a  defense  to  the  suit  for  the 
whole  demand.  Harrison  v.  Willett, 
79  111.  482. 

An  affidavit  that  a  plea  of  non  est 
factum  to  an  action  on  an  appeal  bond 
is  true,  has  been  held  a  sufficient  affi- 
davit of  merits.  Kimbark  v.  Blundin, 
6  111.  App.  542. 

So,  where  several  were  sued  as  part- 
ners, a  plea  denying  joint  liability, 
and  verified  by  affidavit,  has  been  held 
a  sufficient  affidavit  of  merits.  Fe^gus 
V.  \;ieveland  Paper  Co.,  3  111,  App. 
629. 

5.  Hays  w.  Loomis,  84  111.  18;  Beards- 
ley  V.  Gosling,  86  111.  58. 

6.  Stuber  v.  Schack,  83  111.  191. 

Facts  Not  Provable.  —  So,  if  1  de- 
fendant sets  out  facts  which  the  law 
would  not  allow  him  to  prove,  it  is  not 
an  affidavit  of  defense  made  in  good 
faith,  and  is  insufficient.      Wallbaum 


367 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


A  Partial  Defense  is  allowed  by  the  statute.* 

d.  The  Pennsylvania  Rule. — The  statute  of  Pemisylvania 
requires  a  defendant  to  make  an  affidavit  of  defense  in  certain 
cases  to  prevent  judgment  by  default.'-* 

Form— statement  of  Facts.— Such  statute  does  not  prescribe  the  form 
or  contents  of  such  affidavit,  but  it  has  been  construed  to  require 
the  affidavit  to  state  facts  showing  a  good  defense  to  the  action.* 
Every  fact  necessary  to  a  defense  should  be  stated.*  It  should  be 


V.  Haskin,  49  111.  313;  Frank  v.  Morris, 
57  111.  138,  II  Am.  Rep.  4. 

Court  Compelling  Facts  to  be  Stated. — 
If  defendant's  affidavit  is  defective, 
and  defendant  asks  leave  to  amend, 
the  court  may  impose  as  terms  that  he 
state  the  facts  of  his  defense.  Mc- 
Kichan  v.  Follett,  87  111.  103;  Wilder 
V.  Arwedsoe,  80  111.  435.  So,  where 
defendant  has  filed  a  sufficient  affida- 
vit, but  the  court  rules  to  the  contrary, 
and  directs  him  to  file  an  affidavit  dis- 
closing his  defense,  while  defendant 
need  not  obey,  yet  if  he  files  another 
affidavit  he  must  state  therein  facts 
showing  a  meritorious  defense.  Stuber 
V.  Schack,  83  111.  191;  McCormick  v. 
Wells,  83  111.  239;  Hays  v.  Loomis 
84  111.  18;  Eberhart  v.  Page,  89  111. 
550. 

Testing  Sufficiency  of  Affidavit. — If  de- 
fendant desires  to  test  the  question  of 
the  sufficiency  of  his  first  affidavit,  he 
should  except  to  the  ruling  of  the 
court  thereon,  and  raise  the  question 
on  appeal.  Hays  v.  Loomis,  84  111. 
18;  McKichan  v.  Follett,  87  111.  103. 

1.  The  statute  allows  defendant's 
affidavit  to  state  that  he  has  a  defense 
to  a  portion  of  plaintiff's  demand,  if 
he  specifies  the  amount  thereof  to  the 
best  of  his  judgment  and  belief.  In 
such  a  case  the  putting  in  a  defense  to 
only  a  portion  of  the  demand  is  a  con- 
fession of  liability  for  the  balance  of 
plaintiff's  demand,  and  judgment  may 
be  rendered  for  plaintiff  therefor. 
Allen  V.  Watt,  69  111.  655;  Haggard  v. 
Smith,  71  111.  226;  Mayberry  v.  Van 
Horn,  83  111.  289. 

Good  Defense  to  Part  of  Damage. — An 
affidavit  "that  defendant  hada  good  de- 
fense to  a  part  of  the  damages  claimed 
by  plaintiff"  was  held  bad,  the  court 
saying  that  it  might  have  been  held 
good  if  the  nature  of  the  defense  had 
been  specified,  and  it  had  been  stated  to 
what  part  of  the  damages  it  extended. 
McDonnell  v.  Murphy,  20  111.  347.  But 
in  a  subsequent  case  this  ruling  was 
reconsidered,  and  an  affidavit  of  defend- 
ant,  "that  defendant  had  a  good  de- 


fense to  said  suit  or  a  portion  of  the 
same  upon  the  merits,"  was  held  suffi- 
cient, the  court  ruling  that  such  an 
affidavit  would  be  considered  suffi- 
cient in  the  first  instance,  and  that 
plaintiff  should  then  limit  his  claim  to 
its  actual  extent,  and  if  he  does  so  and 
defendant  fails  to  make  a  further  affi- 
davit, plaintiff  may  take  judgment. 
Hurd  V.  Burr,  22  111.  29. 

2.  Act  of  May  25,  1887,  P.  L.  271. 

3.  Erie  Boot,  etc.,  Co.  v.  Eichenlaub, 
127  Pa.  St.  164;  Clarke  v.  Allen,  132 
Pa.  St.  40;  Kilpatrick  v.  Home  Bldg., 
etc.,  Assoc,  179  Pa.  St.  30.  It  is 
sufficient  if  the  affidavit  states  facts 
showing  z.  prima-facie  defense.  Sixth 
Nat.  Bank  v.  Harkness,  6  W.  N.  C. 
(Pa.)  108;  Lerch  Hardware  Co.  v.  First 
Nat.  Bank,  109  Pa.  St.  240;  Lieber- 
sperger  v.  Reading  Sav.  Bank,  30  Pa. 
St.  531;  Christy  v.  Bohlen,  5  Pa.  St.  38. 
It  is  sufficient  if  it  sets  forth  in  words 
or  by  necessary  inference  the  necessary 
elements  of  a  good  defense.  Selden  v. 
Neemes,  43  Pa.  St.  421;  Twitchell  v. 
McMurtrie,  77  Pa.  St.  383;  Oberle  v. 
Schmidt,  86  Pa.  St.  221. 

4.  Ogden  z'..Offerman,  2  Miles  (Pa.) 
40;  Bruner  v.  Wallace,  4  W.  N.  C.  (Pa.) 
53;  Gaskill  V.  Lynch,  4  W.  N.  C.  (Pa.) 
542;  Brick  V.  Coster,  4  W.  &  S.  (Pa.) 
494;  Moore  v.  Somerset,  6  W.  &  S. 
(Pa.)  262;  Peck  V.  Jones,  70  Pa.  St.  83. 
And  the  facts  on  which  the  defense 
turns  must  be  specifically  and  dis- 
tinctly stated,  and  be  such  as  to  war- 
rant a  legal  inference  of  a  full  defense. 
Dows  V.  White,  2  Miles  (Pa.)  140; 
Bryan  v.  Harrison,  37  Pa.  St.  233;  Ris- 
ing V.  Patterson,  5  Whart.  (Pa.)  316; 
Black  V.  Halstead,  39  Pa.  St.  64;  Camly 
V.  Bryan,  5  Whart.  (Pa.)  261;  Woods 
V.  Watkins,  40  Pa.  St.  45S;  Blackburn 
V.  Ormsby,  41  Pa.  St.  97;  Anspack  v. 
Bast,  52  Pa.  St.  356;  Reed  v.  Raymond, 
37  Fed.  Rep.  186.  But  if  the  defense 
is  stated  in  the  affidavit  with  certainty 
to  a  common  intent,  it  is  sufficient. 
Hugg  V.  Scott,  6  Whart.  (Pa.)  274; 
Thompson  v.  Clark,  56  Pa.  St.  33. 

Where  the  affidavit  states  facts  which 


368 


Contents  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


a  statement  of  facts,  not  of  conclusions  of  law,'  and  they  should  be 
clearly  and  not  evasively  stated.* 

Information  and  Belief.— Facts  may  be  alleged  on  information  and 
belief,  but  in  such  case  the  sources  of  the  information  should  be 
stated,  or  it  should  be  averred  that  defendant  expects  to  be  able 
to  prove  them.^ 


do  not  constitute  a  defense,  and  which 
would  entitle  plaintiff  to  judgment, 
but  which  defendant  avers  as  matter 
of  law  constitute  a  defense,  plaintiff 
is  entitled  to  judgment.  Clapier  v. 
Manpay,  2  Miles  (Pa.)  136;  West  v. 
Simmons,  2  Whart.  (Pa.)  261;  Knox  v. 
Reeside,  i  Miles  (Pa.)  294. 

Action  on  Bond. — In  an  action  on  a 
bond  an  affidavit  of  defense,  "  that  de- 
fendant believes  he  never  signed  said 
bond,  nor  authorized  any  one  to  do 
so,"  is  too  general  to  prevent  judg- 
ment for  plaintiff.  Pennock  v.  Ken- 
nedy, 153  Pa.  St.  577. 

Foreign  Judgment. — To  an  action  on 
a  foreign  judgment  which  recites  the 
appearance  of  defendant  by  attorney, 
an  affidavit  of  defense,  "that  if  there 
was  an  appearance  for  defendant  he 
had  no  knowledge  of  it,"  without  deny- 
ing that  he  authorized  such  an  appear- 
ance, is  not  sufficient  to  prevent  judg- 
ment for  plaintiff.  Moore  v.  Phillips, 
154  Pa.  St.  204. 

Not  Real  Party. — So  also  in  an  action 
on  a  note  an  affidavit  averring  "  that 
the  suit  was  brought  in  the  name  of 
one  not  the  real  holder  for  the  purpose 
of  shutting  out  a  set-off,"  is  sufficient 
to  put  plaintiff  to  prove  that  he  is  a 
bona-fide  holder.  Eyre  v.  Yohe,  67  Pa. 
St.  477. 

Goods  Sold. — To  an  action  for  goods 
sold,  an  affidavit  of  defense  denying 
delivery  by  the  knowledge,  consent, 
or  direction  of  the  defendant,  is  suffi- 
cient to  put  plaintiff  to  the  proof  of  it. 
Pittsburg,  etc.,  R.  Co.  v.  Harbaugh,  4 
Brews.  (Pa.)  115. 

Mechanic's  Lien. — To  an  action  to  en- 
force a  mechanic's  lien,  an  affidavit  of 
defense,  "that  defendant  never  con- 
tracted with  the  plaintiff  in  any  way," 
was  held  insufficient  to  show  any  de- 
fense. Hill  V.  Bramall,  i  Miles  (Pa.) 
352. 

Defendant  not  Conscious,  Etc.  —  An 
affidavit  of  defense,  "that  defendant 
is  not  conscious  of  and  does  not  believe 
he  executed  an  instrument,"  is  not 
a  sufficient  affidavit  of  defense  to  an 
action  thereon.  Harris  v.  Mason,  2 
Miles  (Pa. )  270. 


Action  on  Note. — In  an  action  on  a 
note,  an  affidavit  of  defense,  "  denying 
the  holder's  title,  to  the  best  of  de- 
fendant's knowledge  and  belief,"  is  not 
sufficient.  First  Nat.  Bank  v.  Greggs, 
79  Pa.  St.  384.  Nor  is  an  averment, 
"  that,  as  defendant  believes,  the  note 
was  held  by  the  payee  (not  plaintiff)  at 
maturity."  Brown  v.  Street,  6  W.  & 
S.  (Pa.)  222.  But  in  an  action  on  a 
note  having  a  special  endorsement,  an 
affidavit  "  alleging  fraud,  and  denying 
plaintiff's  title,"  is  sufficient  to  put 
plaintiff  to  proof  that  he  is  a  bona-fide 
holder.  Reamer  v.  Bell,  79  Pa.  St. 
292. 

1.  Erie  v.  Brady,  127  Pa.  St.  169; 
Eshleman  v.  Balemius,  8  Lancaster 
Law  Rev.  (Pa.)  9.  Contra,  Erie  v. 
Brady,  127  Pa.  St.  169,  24  W.  N.  C. 
(Pa.)  252,  46  Leg.  Int.  (Pa.)  392,  20  Pitts. 
L.J.N.S.  loi.  Anaffidavit  setting  forth 
no  particular  or  specific  facts,  and  em- 
bodying conclusions  of  law,  is  bad  and 
insufficient.  Superior  Nat.  Bank  v. 
Stadelman,  153  Pa.  St.  634;  Flagg  v. 
Taylor  (Del.,  1888),  14  Atl.  Rep.  26. 

2.  Eraser  v.  Behee,  i  Kulp  (Pa.)  37; 
Lehman  v.  Jaquett,  5  W.  N.  C.  (Pa.) 
183;  Coulstonz/.  Bertolet(Pa.,  1888),  12 
Atl.  Rep.  255;  McBrier  v.  Marshall,  126 
Pa.  St.  390.  Facts,  and  not  the  evidence 
or  manner  in  which  they  are  to  be 
proved,  are  what  is  required  to  be 
stated  in  the  affidavit.  Bronson  v.  Sil- 
verman,77  Pa.  St.  94;  Kauffman  v.  Min- 
ing Co.,  105  Pa.  St.  541.  The  affidavit 
will  be  reasonably  construed  in  favor 
of  the  defendant.  Twitchell  v.  McMur- 
trie,  77  Pa.  St.  383. 

3.  Harman  v.  Ramsey,  5  W.  N.  C. 
(Pa.)  188;  Black  v.  Halstead,  39  Pa. 
St.  64;  Ball  V.  Monagan,  i  W.  N.  C. 
(Pa.)  188;  Salter  v.  Askin,  i  W.  N.  C. 
(Pa.)  388;  Brown  v.  Street,  6  W.  &.  S. 
(Pa.)  222;  Moore  v.  Sumnerset,  6  W. 
N.  C.  (Pa.)  263;  Thompson  v.  Clark, 
56  Pa.  St.  33;  Kidd  v.  Koch,  2  Pa.  Co. 
Ct.  Rep.  285;  Black  v.  Garrett,  2  Le- 
gal Record  Rep.  (Pa.)  251;  Phillips  v. 
Dryfoos,  3  Kulp  (Pa.)  525;  Winson  v. 
Farmers',  etc..  Bank,  81  Pa.  St.  304; 
Newbold  v.  Pennock,  154  Pa.  St.  598. 
Where  facts  are  alleged  on  informa- 


I  Encyc.  PI.  &  Pr. — 24. 


369 


Cont3::t3  of. 


AFFIDAVITS  OF  MERITS. 


In  General. 


Written  Instruments.— If  the  defense  consists  of  or  embraces  a  writ- 
ten contract  or  record,  a  copy  thereof  should  be  set  out  in  the 
aflfidavit.^ 

Partial  Defense— Supplemental  Affidavit.— A  partial  defense  is  allowed,* 
and  defenda«nt  is  usually  allowed  to  file  a  supplemental  affidavit  if 
the  original  is  considered  defective.* 


tion,  a  belief  in  their  truth  should  be 
alleged.  Cook  v.  Com.  (Pa.,  1887),  11 
Atl.  Rep.  574;  Coke  v.  Stidfale,  i 
Walk.  (Pa.)  95.  Contra,  Foster  v. 
Kline,  i  Woodward  (Pa.)  457. 

When  facts  are  averred  on  informa- 
tion and  belief,  the  grounds  of  belief 
should  be  stated.  Wolverton  v.  Smith, 
4  W.  N.  C.  (Pa.)  442;  Gowen  v.  Mc- 
Pherson,  10  Phila.  (Pa.)  35S.  Contra — 
Where  facts  are  alleged  on  informa- 
tion and  belief,  it  is  sufficient  to  allege 
an  expectation  of  ability  to  prove 
them.  Lewis  v.  Broadbent,  21  W.  N. 
C.  (Pa.)  31. 

Where  the  facts  are  not  within  the 
knowledge  of  defendant,  an  averment 
"  that  defendant  is  informed  and  be- 
lieves an  allegation  to  be  a  fact,  and 
expects  to  be  able  to  prove  it,"  is  suf- 
ficient. Bank  v.  Broadhead,  2  Kulp 
(Pa.)  285;  Lewis  v.  Broadbent,  21  W. 
N.  C.  (Pa.)  31;  Reznor  v.  Supplee,  81 
Pa.  St.  180;  Moeck  v.  Littell,  82  Pa.  St. 
354;  Thompson  v.  Clark,  56  Pa.  St.  33; 
Newbold  v.  Pennock,  154  Pa.  St.  591. 

The  proper  form  of  such  an  aver- 
ment is  "that  he  is  informed  and  be- 
lief and  expects  to  be  able  to  prove 
them."  Where  it  is  averred  "  that  he 
has  abundant  reason  to  believe  them," 
it  is  not  sufficient,  and  the  affidavit  is 
bad.     Newbold  v.  Pennock,  154  Pa.  St. 

598. 

But  where  facts  are  positively 
averred,  no  allegation  of  defendant's 
ability  to  prove  thera  is  necessary,  es- 
pecially where  the  defendant  is  a  com- 
petent witness  for  himself.  Eyre  v. 
Yohe,  67  Pa.  St.  477. 

1.  Richards  v.  Risler,  3  W.  N.  C. 
(Pa.)  485;  Birkey  v.  Whitaker,  4  \V. 
N.  C.  (Pa.)  137;  Potts  V.  Erst.  4  W. 
N.  C.  (Pa.)  542. 

Where  the  defense  set  forth  in  an 
affidavit  of  defense  is  based  on  a  writ- 
ten agreement,  such  agreement  should 
be  set  forth  in  full  therein.  Hence, 
where  the  defendant,  being  sued  in 
assumpsit,  set  forth  in  his  affidavit  of 
defense  that  by  a  written  agreement 
duly  made  (the  substance  of  which 
was  alleged)  a  third  party  had  been 


substituted  for  defendant  as  plaintiff's 
debtor,  and  plaintiff  had  consented 
thereto,  held  defective  in  not  setting 
forth  fully  the  alleged  contract,  and 
giving  no  reason  why  it  was  not  set 
forth.  Lucas  Coal  Co.  v.  Hunt  (Pa., 
1887),  8  Atl.  Rep.  860.  Where  an  affi- 
davit of  defense  does  not  deny  the 
contract  alleged  in  plaintiff's  state- 
ment, but  sets  up  a  different  and  sub- 
sequent contract  between  the  parties, 
if  such  contract  is  in  writing  it  should 
be  annexed  to  the  affidavit  of  de- 
fense, and  if  not  in  writing  its  terms 
should  be  stated  with  particularity,  so 
that  the  court  can  determine  whether 
defendant's  construction  of  it  is  war- 
ranted or  not.  If  this  is  not  done,  and 
plaintiff's  statement  presents  a  prima- 
facie  case,  the  plaintiff  is  entitled  to  a 
summary  judgment.  Willard  v.  Reed, 
132  Pa.  St.  58,  25  W.  N.  C.  (Pa.)  268, 
48  Leg.  Int.  (Pa.)  132,  20  Pitts.  L.  J. 
N.  S.  368. 

Referring  to  Paper  Without  Annexing 
Copy. — It  is  a  fatal  defect  in  an  affi- 
davit of  defense  to  refer  therein  to  a 
material  paper  which  is  accessible, 
without  annexing  a  copy  thereof,  so 
that  the  court  may  judge  of  its  terms 
and  sufficiency.  Erie  v.  Butler,  120  Pa. 
St.  374.  And  see  Pittsburg  v.  Mac- 
Connell,  130  Pa.  St.  463. 

2.  If  the  affidavit  of  defense  pre- 
sents only  a  partial  defense,  it  should 
be  so  precise  that  plaintiff  can  take 
judgment  for  the  amount  admitted  to 
be  due.  Gould  v.  Bush,  13  W.  N.  C. 
(Pa.)  29.  An  affidavit  of  defense 
stating  generally  "  that  plaintiff's 
claim  is  in  excess  of  the  amount 
agreed  upon,"  is  too  vague;  it  should 
state  the  precise  amount  admitted  to 
be  due.  Griel  v.  Buckius,  114  Pa.  St. 
187. 

3.  If  the  court  deems  the  defense 
good,  but  defectively  stated,  or  so 
generally  stated  that  it  cannot  be  de- 
termined whether  a  defense  exists,  it 
is  usual  to  allow  a  supplemental  af- 
fidavit of  defense  to  be  filed.  Callan 
V.  Lukens,  7  W.  N.  C.  (Pa.)  28. 

Under  a  former  statute  it  was  held 


570 


Contents  of. 


AFFIDA  VI rS  OF  MERITS.      By  Agent  or  Clerk. 


2.  By  Codefendant. — An  affidavit  of  merits  made  by  a  defendant 
has  been  held  sufficient  for  his  codefendants.^  But  in  such  case 
it  should  appear  that  the  defense  of  all  is  the  same  ;*  but  this  has 
not  always  been  required.' 

3.  By  Agent,  Attorney,  or  Clerk. — When  an  agent  or  attorney 
makes  an  affidavit  of  merits,  he  should  swear  to  his  belief  of  a 
defense  on  the  merits,"*  and  to  his  knowledge  of  the  defense  and 


that  the  court  could  not  disregard  a 
supplemental  affidavit,  although  filed 
after  a  rule  for  judgment.  West  v. 
Simmons,  2  Whart.  (Pa.)  26.  If  a  sup- 
plemental affidavit  is  ordered  by  the 
court,  and  none  is  filed,  judgment  does 
not  follow  as  of  course  for  plaintiff, 
but  the  case  must  be  again  called 
up,  and  the  court  will  re-examine  the 
original  affidavit,  and  no  inference 
should  be  drawn  against  defendant 
from  his  failure  to  file  a  supplemental 
affidavit.  Hill  v.  Gaw,  4  Pa.  St.  495. 
In  one  case  it  was  said,  "  it  seems  as 
though  the  legislature  intended  the 
propriety  of  entering  judgment  to  be 
tested  not  so  much  by  plaintiff's  claim 
as  by  the  defendant's  affidavit.  Opin- 
ion of  Sargeant,  J.,  in  Dewey  v.  Du- 
puy,  2  W.  &  S.  (Pa.)  556.  Judgment 
for  want  of  a  proper  affidavit  of  de- 
fense is  final,  not  interlocutory.  Mc- 
Clung  V.  Murphy,  2  Miles  (Pa.)  177. 

As  Evidence. — An  affidavit  of  de- 
fense may  be  read  on  the  trial  of  an 
action  as  an  admission  of  the  facts 
stated  in  it,  but  if  so  used  the  whole 
of  it  must  be  taken  together.  Bowen 
V.  DeLattre,  6  Whart.  (Pa.)  430. 

1.  Ontario  Bank  v.  Baxter,  6  Cow. 
(N.  Y.)  395;  Clark  v.  Parker,  19  Wend. 
(N.  Y.)  125;  Woodward  v.  Backus,  20 
Cal.  137;  Rowland  z/.  Coyne,  55  Cal.  i; 
Watkins  v.  Degener,  63  Cal.  500. 

2.  Where  several  separate  actions 
were  brought  against  the  maker  and 
endorsers  of  a  note,  an  affidavit  of 
merits  by  the  maker  in  all  the  actions 
was  held  sufficient,  although  he  was 
not  a  nominal  defendant  in  all  the 
cases,  on  the  ground  that  he  was  a 
party  to  the  instrument,  asserted  fa- 
miliarity with  all  the  facts,  and  that 
the  defense  was  the  same  in  all  the 
actions.  Ontario  Bank  v.  Baxter,  6 
Cow.  (N.  Y.)  395. 

But  where  several  parties  to  a  note 
were  sued  in  one  action,  an  affidavit  of 
merits  by  one  defendant  was  held  not 
sufficient  for  the  others  in  the  absence 
of  a  statement  that  the  defense  of  all 


the  defendants  was  the  same.     Clark 
V.  Parker,  19  Wend.  (N.  Y.)  125. 

3.  In  California  this  does  not  seem  to 
be  required.  Woodward  v.  Backus,  20 
Cal.  137;  Rowland  v.  Coyne,  55  Cal.  i; 
Watkins  v.  Degener,  63  Cal.  500.  On 
a  motion  to  open  a  default  the  affidavit 
of  one  of  two  defendants  was  "  that  he 
had  fully  and  fairly  stated  the  case  to 
his  counsel,  and  that  he  is  advised  by 
such  counsel,  after  such  statement 
made  as  aforesaid,  and  verily  believes 
that  he  and  said  defendant  Harris 
have  a  good,  full,  and  perfect  defense 
to  said  action  on  the  merits."  Held 
sufficient.  Woodward  v.  Backus,  20 
Cal.  137. 

Sheriff  and  Sureties. — In  an  action 
against  a  sheriff  and  his  sureties,  an 
affidavit  by  the  sheriff,  "  that  he  had 
fully  and  fairly  stated  the  facts  of  the 
case  to  his  counsel  (naming  them),  and 
after  such  statement  they  informed 
him  that  he  had  a  good  and  valid  de- 
fense upon  the  merits  to  said  action, 
and  to  all  of  it,  all  of  which  he  verily 
believed  to  be  true,"  was  held  to  be  a 
sufficient  affidavit  of  merits  for  all  the 
defendants  on  a  motion  to  change  the 
venue.     Rowland  v.  Coyne,  55  Cal.  4. 

Partners. — An  affidavit  by  one  of  de- 
fendants sued  as  partners,  "that  he 
had  fully  and  fairly  stated  the  case  in 
the  action  to  his  attorney  and  counsel, 
and  that,  after  such  statement,  was  ad- 
vised by  said  counsel  and  verily  be- 
lieved that  the  defendants  and  each  of 
them  had  a  good  and  substantial  de- 
fense to  the  action  upon  the  merits," 
held  sufficient  for  the  defendants  on  a 
motion  to  change  the  venue.  Watkins 
V.  Degener,  63  Cal.  500. 

4.  Worthington  z/.  Price,  5  Tyr.  1029; 
Mason  v.  Bidleman,  i  How.  Pr.  (N.Y.) 
62;  Johnson  v.  Lynch,  15  How.  Pr. 
(N.  Y.  Super.  Ct.)  195;  Schofield  v. 
Huggins,  3  Dowl.   Pr.  Cas.  427. 

When  the  affidavit  is  made  by  an  at- 
torney, he  should  swear  positively  to 
his  belief  of  a  defense  upon  the  merits, 
not  that  he  is  instructed  and  advised, 


371 


Contents  of. 


AFFJDA  VI TS  OF  MERITS.      By  Agent  or  Clerk. 


from  whom  he  derived  it.*  It  is  no  objection  that  such  knowl- 
edge has  been  derived  from  his  cHent.*  When  made  by  a  man- 
aging clerk,  he  should  swear  that  he  has  the  management  of  the 
case  in  which  it  is  made.* 


as  a  client  might.  Worthington  v. 
Price,  5  Tyr.  1029,  2  C.  M.  &  R.  315. 

An  afl5davit  of  an  agent  of  a  country 
attorney  "that  he  was  informed  and 
verily  believed  it  to  be  true  that  the 
defendant  had  a  good  defense  to  the 
action  upon  the  merits,"  was  held  suf- 
ficient. Johnson  z/.  Popplewell,  2  Tyr. 
718.  But  an  afl5davit  by  an  attorney, 
"  that  from  the  examination  of  defend- 
ant's case,  so  far  as  he  had  made  such 
examination,  he  verily  believed  that  it 
was  better  than  the  plaintiff's,"  was 
he!d  insufficient,  as  not  showing  a 
meritorious  defense.  Bailey  w.  Taaffe, 
29  Cal.  422. 

An  affidavit  by  an  attorney,  "that 
from  representations  made  to  him  by 
the  defendant,  and  from  the  papers 
which  he  had  examined,  he  verily  be- 
lieved the  defendant  had  a  legal  de- 
fense," was  held  sufficient.  Philips  z/. 
Blagge,  3  Johns.  (N.  Y.)  141. 

1.  Johnson  v.  Lynch,  15  How.  Pr. 
(N.  Y.  Super.  Ct.)  199;  Philips  v. 
Blagge,  3  Johns.  (N.  Y.)  141;  Briggs  v. 
Briggs,  3  Johns.  (N.  Y.)  258;  Hitch- 
cock V.  Herzer,  90  111.  543.  An  affi- 
davit by  an  attorney,  "  that  he  was  in- 
formed and  verily  believed  defendant 
had  a  substantial  defense  on  the 
merits,"  held  insufficient.  Briggs  v. 
Briggs,  3  Johns.  (N.  Y.)  258. 

An  affidavit  by  an  attorney  upon 
mere  information  and  belief,  but  not 
stating  the  facts,  held  insufficient. 
Hitchcock  V.  Herzer,  90  111.  543. 

An  affidavit  by  an  agent  of  a  country 
attorney,  "that  from  instructions  re- 
ceived by  deponent  from  the  attorney 
for  defendant,  for  whom  deponent  is 
agent  in  this  cause,  and  which  instruc- 
tions deponent  believes  to  be  true,  de- 
ponent verily  believes  that  said  de- 
fendant hath  a  good  defense  to  this 
action  on  the  merits,"  /i^/i(/ sufficient. 
Schofield  V.  Huggins,3  Dowl,  Pr.  Cas. 
427. 

Attorney  in  Fact. — An  agent  or  attor- 
ney in  fact  should  swear  to  advice  of 
counsel.  Johnson  v.  Lynch,  15  How. 
Pr.  (N.  Y.  Super.  Ct.)  199. 

In  Admiralty. — Although  a  defendant 
should,  in  general,  make  an  affidavit 
of  merits,  this  rule  is  not  inflexible  in 
admiralty,    and   the    affidavit    of   the 


proctor  is  sufficient  on  incidental  mo- 
tions, where  the  facts  cannot  be  sup- 
posed to  rest  particularly  in  the  knowl- 
edge of  the  defendant.  Brig  Harriet, 
Olc.  Adm.  222.  To  open  default  in  ad- 
miralty a  meritorious  defense  should 
be  shown;  an  affidavit  of  a  proctor, 
"that  he  believes  a  good  defense  ex- 
ists," is  not  sufficient;  the  facts  of  de- 
fense should  be  stated.  Scott  v.  The 
Young  America,  Newb.  Adm.  no. 

2.  Philips  V.  Blagge,  3  Johns.  (N.Y.) 
141;  Johnson  v.  Lynch,  15  How.  Pr. 
(N.  Y.  Super.  Ct.)  199.  Contra,  Crine 
V.  Wallace,  i  W.  N.  C.  (Pa.)  292. 

AfB^davit  Not  Showing  Whole  Case 
Stated. — An  affidavit  by  an  attorney, 
"  that,  from  the  examination  of  the 
testimony  given  before  the  justice  and 
the  statement  of  facts  made  to  him  by 
defendant,  he  verily  believed  that  said 
defendant  had  a  valid  defense  to  said 
action  upon  the  merits,  held  not  suf- 
ficient; that  it  did  not  show  that  the 
whole  case  had  been  stated  to  the  at- 
torney, or  that  the  statement  was  true, 
and  did  not  show  merits.  Pinger  v. 
Vanclick,  36  Wis.  145. 

Affidavit  "from  Client's  Statement." — 
An  affidavit  by  an  attorney,  ' '  that  from 
his  client's  statement  of  the  case  to  him, 
he  believes  that  his  client  has  a  good 
and  substantial  defense  upon  the 
merits,"  held  insufficient.  Stilson  v. 
Rankin,  40  Wis.  527. 

3.  Clerk's  Affidavit.— Doe  v.  McDon- 
nell, 8  Dowl.  Pr.  Cas.  501,  4  Jur.  578. 
The  managing  clerk  should  have  had 
the  entire  management  of  the  case,  and 
shouH  swear  that  he  is  fully  ac- 
quainted with  the  facts  relating  to  the 
action.  Morris  v.  Hunt,  i  Chit.  Rep. 
97,  18  E.  C.  L.  37.  An  affidavit  by  an 
attorney's  clerk,  "that  there  was  a 
good  and  substantial  defense,"  held  \n- 
sufficient;  it  only  tended  to  show  that 
there  was  a  defense,  and  was  no  evi- 
dence of  merits.  Russell  v.  Stiles,  3 
Cai.  (N.  Y.)  93. 

An  affidavit  of  an  attorney's  clerk, 
"that  defendant  had  been  advised  by 
counsel  that  he  had  a  good  defense  to 
the  action  on  the  merits,  which  the  de- 
ponent verily  believed  to  be  \.TViC,"  held 
insufficient,  on  the  grounds  that  it  did 
not  allege  any  statement  of  the  case  to 


372 


Contents  of. 


AFFIDAVITS  OF  MERITS.       Change  of  Venue. 


4.  To  Obtain  Change  of  Venue. — On  a  motion  to  change  the 
venue,  defendant  must  swear  to  a  meritorious  defense,  as  he  is 
advised  by  his  counsel  ;*  also  that  he  has  disclosed  to  his  counsel 
the  facts  he  expects  to  prove  by  each  of  his  witnesses  ;*  that  each 
and  every  of  such  witnesses  is  material  to  his  defense,  as  he  is 
advised  by  counsel ;'  and  that  without  the  testimony  of  each  and 
every  witness  he  cannot  safely  proceed  to  trial,  as  he  is  advised 
by  his   counsel.'*     This  applies   to   a  plaintiff   opposing   such  a 


\ 


counsel,  or  who  the  counsel  was,  or 
that  the  clerk  had  the  management  of 
the  case,  and  did  not  even  allege  the 
belief  of  the  clerk  as  to  merits.  Nash 
V.  Swinburn,  4  Scott  N.  R.  326,  3  M. 
&  G.  630. 

An  aflSdavit  by  a  clerk  having  the 
management  of  the  case,  "that  he  was 
apprised  and  believed  that  the  defend- 
ant had  good  grounds  of  defense  upon 
the  merits,"  ,^fW  insuflScient;  it  should 
have  been,  a  good  defense  to  this  ac- 
tion on  the  merits,  as  he  is  informed 
and  verily  believes.  Bromley  v. 
Gerish,  7  Scott  N.  R.  516,  6  M.  &  G. 
750. 

1.  Swartwout  v.  Hooge,  16  Johns. 
(N.  Y.)  3;  Brownell  v.  Marsh,  22  Wend. 
(N.  Y.)  636;  Brittan  v.  Peabody,  4  Hill 
(N.  Y.)  61;  Mills  V.  Adsit,  2  How.  Pr. 
(N.  Y.)  83;  California  Code  of  Civ. 
Proc,  §396;  People  v.  Larue,  66  Cal. 
236;  and  that  he  believes  his  defense 
to  be  true.  Wharton  v.  Barry,  i  How. 
Pr.  (N.  Y.)  62. 

2.  Constantine  v.  Dunham,  9  Wend. 
(N.  Y.)43i;  Young  f.  Arndt,  i  How. 
Pr.  (N.  Y.)  227;  Harris  v.  Clark,  2 
How.  Pr.  (N.  Y.)82;  Dimon  v.  Dimon, 
2  How.  Pr.  (N.  Y.)  91.  Where  the 
affidavit  failed  to  allege  any  statement 
of  the  facts  expected  to  be  proved  by 
the  witnesses,  or  any  advice  of  coun- 
sel, or  any  reason  for  the  belief  of  af- 
fiant that  the  witnesses  would  testify 
as  stated,  held  entirely  defective,  and 
judgment  granting  a  change  of  venue 

'  reversed  on  that  ground.  Chapin  v. 
Overin,  55  N.  Y.  St.  Rep.  139.  The 
affidavit  should  allege  that  defendant 
has  fully  and  fairly  stated  the  case  to 
his  counsel,  and  has  disclosed  to  him 
the  facts  which  he  expects  to  prove 
by  each  and  every  of  his  witnesses. 
Onondaga  County  Bank  v.  Shepherd 
19  Wend.  (N.  Y.)  10.  The  words 
"  fully  and  fairly"  apply  to  the  case, 
not  to  the  disclosure  of  facts  which  the 
witnesses  will  swear  to;  and  an  affi- 
davit, "  that  defendant  had  stated  to 
his  counsel  the  facts  which  he  expects 


to  prove  by  each  and  every  of  his  wit- 
nesses," was  held  sufficient.  "  Stated  " 
was  held  equivalent  to  "disclosed" 
in  such  connection.  Anonymous,  i 
Hill  (N.  Y.)  668. 

3.  Johnson  v.  Rogers,  3  Cow.  (N.  Y.) 
14;  Noys  Mfg.  Co.  V,  Whitmore,  23 
N.  Y.  Wkly.  Dig.  424;  Lansing  v. 
Mickles,  i  How.  Pr.  (N.  Y.)  248;  Car- 
penter w.  Continental  Ins.  Co.,  31  Hun 
(N.  Y.);8. 

Materiality  of  Witnesses.  — The  ad- 
vice of  counsel  as  to  the  materiality 
of  the  witnesses  must  be  clearly  stated. 
Johnson  v.  Rogers,  3  Cow,  (N.  Y.)  14; 
Carpenter  v.  Continental  Ins.  Co.,  31 
Hun  (N.  Y.)  78. 

Advice  of  Counsel  After  Statement. — 
It  should  appear  that  the  advice  was 
given  after  the  statement  to  counsel. 
Lansing  v.  Mickles,  i  How.  Pr.  (N. 
Y.)  248. 

Witnesses  "for  Defendant." — An  affi- 
davit stating  "  that  each  and  every 
witness  is  a  material  witness  for  de- 
fendant," instead  of  "  for  his  defense," 
was  held  sufficient,  the  words  "for 
defendant  "  being  held  equivalent  to 
"for  his  defense."  Anonymous,  i 
Hill  (N.  Y.)668. 

4.  Satterlee  v.  Groot,  6  Cow.  (N.  Y.) 
33;  Onondaga  County  Bank  v.  Shep- 
herd, 19  Wend.  (N.  Y.)  10;  Brittan  v. 
Peabody,  4  Hill  (N.  Y.)  61;  Porter  v. 
Munn  4,  Hill  (N.  Y.)  540;  Carpenter 
z/.  Continental  Ins.  Co.,  31  Hun(N.  Y.) 
78.  The  affidavit  should  allege  "  that 
each  and  every  of  the  witnesses  is  ma- 
terial and  necessary,  and  that  without 
the  testimony  of  each  and  every  wit- 
ness defendant  cannot  safely  proceed 
to  trial,  as  he  is  advised  by  his  coun- 
sel, etc."  Carpenter  v.  Continental 
Ins.  Co.,  31  Hun  (N.  Y.)  78. 

A  proper  form  of  affidavit  should  al- 
lege "  that  defendant  has  stated  to  his 
counsel  the  facts  which  he  expects  to 
prove  by  his  witnesses,  and  that  his 
counsel  has  advised  him  that  his  wit- 
nesses are  necessary  and  material,  and 
that  without  the  testimony  of  each  and 


373 


Contents  of. 


AFFIDA  VI TS  OF  MERITS.        Title.  Jurat,  etc. 


motion.* 

5.  Title,  Jurat,  etc. — An  affidavit  of  merits  ought  to  be  properly 
entitled  in  the  action,  and  when  not  so  entitled  it  has  been  held 


void.'-*     Proper  venue  is  essential  to  it  ;* 
See  also  Affidavits,  ante,  p.  311. 


also 


a  proper   jurat. 


every  one  of  them  he  cannot  safely 
proceed  to  the  trial  of  the  action." 
Chapin  v.  Overin,  55  N.  Y.  St.  Rep. 
130;  State  Bank  v.  Gill,  23  Hun  (N.Y.) 
406. 

The  Term  "Each  and  Every"  may  be 
omitted  where  there  is  only  one  wit- 
ness, but  not  where  there  is  more  than 
one.  Brown  v.  Peck,  10  Wend.  (N.  Y.) 
569. 

What  Counsel.  —  It  should  appear 
that  the  counsel  whose  advice  is  sworn 
to  is  the  counsel  of  defendant  in  the 
action  in  which  the  advice  is  alleged. 
State  Bank  v.  Gill,  23  Hun  (N.  Y.) 
406. 

Where  Defendant  is  Himself  a  Coun- 
sellor, the  advice  of  counsel  need  not 
be  alleged.  Cromwell  v.  Van  Rens- 
selaer, 3  Cow.  (N.  Y.)  346;  Ackerman 
V.  Delude,  29  Hun  (N.  Y.)  137. 

1.  When  a  Plaintiff  Opposes  a  Motion 
to  change  the  venue,  he  must  make  a 
similar  affidavit,  although  the  term 
"affidavit  of  merits  "  does  not  prop- 
erly apply  to  a  plaintiff.  '  Onondaga 
County  Bank  v.  Shepherd,  19  Wend. 
(N.  Y.)  no. 

California. — §  396  of  the  California 
Code  of  Civil  Procedure  requires  an 
affidavit  of  merits  to  be  filed  with  the 
answer  or  demurrer  as  a  condition  of 
a  motion  by  defendant  to  change  the 
venue.  Buell  v.  Dodge,  63  Cal.  553; 
Watkins  v.  Degener,  63  Cal.  500.  Such 
affidavit  should  be  a  proper  affidavit 
of  merits,  and  where  the  affidavit 
stated  "that  affiant  had  fully  and 
fairly  stated  his  case  and  the  facts 
constituting  his  defense  to  his  coun- 
sel, etc.,"  it  was  held  insufficient,  as 
showing  only  a  partial  statement  of 
the  case,  viz.,  defendant's  part  of  it, 
and  failing  to  show  merits.  People  v. 
Larue,  66  Cal.  236.  But  no  allegations 
as  to  the  statements  of  facts  to  be 
proved  by  the  witnesses,  or  as  to  the 
materiality  of  the  witnesses,  is  re- 
quired, a  general  affidavit  of  merits 
being  sufficient.  Rowland  v.  Coyne, 
55  Cal.  i;  Degener  z/.  Watkins,  63  Cal. 
500;  Buell  V.  Dodge,  63  Cal.  553. 

2.  Baxter  v.  Seaman,  i  How.  Pr, 
(N.  Y)5i;  Higham  v.  Hayes,  2  How. 
Pr.  (N.Y.)  27. 


Improper  Title. — Where  the  title  is 
improper,  the  affidavit  is  of  no  effect; 
hence  where  the  title  of  the  action  was 
Sandland  v.  Adams,  and  an  affidavit 
of  merits  was  served,  entitled  Adams 
ads.  Sunderland,  held,  plaintiff  was 
regular  in  taking  an  inquest,  as  no 
affidavit  of  merits  in  that  action  had 
been  served.  Sandland  v.  Adams,  2 
How.  Pr.  (N.  Y.)  98. 

It  should  be  entitled  in  the  proper 
court,  for  an  affidavit  made  in  one 
court  cannot  properly  be  used  in  an- 
other court.  Clickman  v.  Clickman, 
I  N.  Y.  611. 

But  where  an  affidavit  of  merits  was 
entitled  only  "  State  of  Nevada,  Storey 
County,"  but  the  affidavit  referred  in- 
telligently to  the  action  in  which  it 
was  used,  the  defect  in  the  title  was 
held  immaterial.  State  v.  Consoli- 
dated, etc.,  Min.  Co.,  13  Nev.  202. 

So  where  an  affidavit  of  merits  was 
not  entitled  of  the  court  or  term,  but 
was  entitled  in  the  cause,  and  regu- 
larly filed,  so  that  it  could  readily  be 
seen  to  what  cause  it  applied,  it  was 
held  sufficient.  Wilborn  v.  Blackstone, 
41  111.  264. 

Caption. — In  Illinois  it  has  been  held 
not  indispensable  that  it  should  have 
a  caption,  or  be  entitled  in  the  cause. 
Harris  v.  Lester,  80  111.  307;  McCor- 
mick  V.  Wells,  83  111.  239;  Hays  v. 
Loomis,  84  111.  18;  Beardsley  v.  Gos- 
ling, 86  111.  58. 

An  affidavit  of  merits  entitled  C.  D. 
ads.  A.  B.,  in  an  action  where  A.  B. 
is  plaintiff  and  C.  D.  defendant,  is 
entitled  in  the  cause,  especially  where 
written  on  the  same  paper  as  the  plea, 
which  is  properly  entitled.  Bowen  v. 
Wilson,  etc..  Sewing  Mach.  Co.,  86 
111.  II.  As  to  title  of  affidavits  gener- 
ally, see  Affidavits,  ante,  p.  311. 

3.  If  the  Venue  is  Omitted,  the  affida- 
vit is  a  nullity,  although  sworn  to  be- 
fore the  officer  named  in  it.  Cook  v. 
Staats,  18  Barb.  (N.  Y.)  407.  See 
Affidavits,  ante,  p.  313. 

4.  A  Proper  Jurat  is  essential.  And 
where  the  affidavit  is  made  by  an  illit- 
erate person,  the  jurat  should  state 
that  the  affidavit  was  read  over  to 
him,  and  that  he  appeared  to  under- 


374 


Service  and  Filing.      AFFIDA  VI TS  OF  MERITS. 


Controverting. 


6.  Amendments. — Where  there  is  a  good  defense,  it  is  usual  to 
allow  defendant  to  amend  any  tectinical  defects  in  an  affidavit  of 
merits,*  unless  there  has  been  great  delay,  or  the  circumstances 
are  suspicious.* 

VIII.  Seevice  and  Filing.— An  affidavit  of  merits  should  be 
served  or  filed  within  the  time  required  by  the  rules  and  statutes.* 
To  prevent  an  inquest  it  should  be  served  and  filed  before  the 
first  day  of  the  circuit,*  otherwise  defendant  is  compelled  to  show 
service  to  the  knowledge  of  plaintiff's  attorney  before  the  inquest 
is  taken.* 

IX.  Controverting  the  Affidavit.— Where  a  proper  affidavit 
of  merits  has  been  made,  it  is  the  usual  rule  that  the  allegations 
therein  relating  to  merits  cannot  be  controverted,  but  must  be 
considered  as  true  for  the  purpose  for  which  the  affidavit  is  used.* 


stand  it.  Haynes  v.  Powell,  3  Dowl. 
Pr.  Cas.  599.  See  also  Affidavits, 
ante,  p.  316. 

Foreign  Language. — But  where  the 
affidavit  purports  to  be  signed  by  a 
defendant,  it  is  no  valid  objection  to 
it  that  it  is  signed  in  a  foreign  char- 
acter, and  that  there  is  no  statement 
in  the  jurat  to  show  the  defendant  to 
be  a  foreigner  and  that  it  is  his  sig- 
nature. Nathan  v.  Cohen,  3  Dowl. 
Pr.  Cas.  373. 

1.  Cary  v.  Livermore,  2  How.  Pr. 
(N.  Y.)  170;  Ellis  V.  Jones,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  298;  Tomkins  v. 
Acer,  10  How.  Pr.  (N.  Y.  Supreme  Ct.) 
310;  Brown  v.  St.  John,  19  Wend. 
(N.  Y.)  619.  If  the  court  deem  the 
defense  good,  but  defectively  stated, 
or  stated  so  generally  that  it  cannot 
be  determined  whether  a  defense  ex- 
ists, it  is  usual  to  allow  defendant  to 
file  a  supplemental  affidavit  of  de- 
fense. Callan  v.  Lukens,  7  W.  N.  C. 
(Pa.)  28. 

2.  Rickards  v.  Swetzer,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  414;  Johnson  v. 
Lynch.  15  How.  Pr.  (N.  Y.  Super.  Ct.) 
203. 

3.  In  Illinois  it  should  be  filed  with 
the  plea.  Mestling  v.  Hughes,  89  111. 
389;  Hurd  Rev.  Sts.  1891,  1047,  §  37. 
But  an  extension  of  plaintiff's  time  to 
file  his  claim  extends  defendant's  time 
to  file  the  affidavit.  Healy  v.  Charnley, 

79  111-  592. 

In  Pennsylvania  it  should  be  filed 
on  the  return  day  of  the  writ,  or  fif- 
teen days  after  the  service  of  plain- 
tiff's statement.  Act  of  May  25,  1887, 
P.  L.  271.  Under  the  former  statute 
it  was  held  that  it  might  be  filed  even 
on  a  motion  for  judgment.     West  v. 


Simmons,  2  Whart.  (Pa.)  261;  Gillespie 
V.  Smith,  13  Pa.  St.  65.  It  may  be 
served  anywhere  within  the  state. 
Cochran  v.  Pyle.io  Pa.Co.  Ct.Rep.  198. 

In  New  York  it  should  be  filed  with 
the  clerk  of  the  circuit.  3  Wait's  Pr. 
50.  And  a  copy  (with  notice  of  filing 
the  original)  should  be  served  on 
plaintiff's  attorney.  Cannon  v.  Titus, 
5  Johns.  (N.  Y.)  355;  Baker z/.  Ashley, 
15  Johns.  (N.  Y.)  536. 

Filing  Affidavit  after  Denial  of  Motion. 
— The  filing  of  an  affidavit  of  merits 
after  the  denial  of  a  motion  to  set 
aside  a  default  does  not  cure  the  de- 
fect of  the  want  of  it  in  the  original 
papers.  Thompson  v.  Savage,  43 
Iowa  398. 

4.  Baker  t/.  Ashley,  15  Johns.  (N.Y.) 
536;  Brainard  v.  Hanford,  6  Hill  (N.Y.) 
368;  Rule  (j(), Michigan  Supreme  Court. 

Filing  will  not  take  the  place  of  ser- 
vice; it  must  be  both  filed  and  served. 
Baker  v.  Ashley,  15  Johns.  (N.  Y.)  536. 

6.  Brainard  v.  Hanford,  6  Hill  (N. 
Y.)  368;  Anonymous,  6  Abb.  Pr.  (N. 
Y.)  512;  Smith  V.  Aylesworth,  24  How. 
Pr.  (N.  Y.  Supreme  Ct.)  37. 

Service  by  leaving  at  the  office 
of  plaintiff's  attorney  when  the  office 
was  vacant,  and  the  inquest  was 
taken  before  the  attorney's  return, 
held  not  a  sufficient  service.  Brain- 
ard V.  Hanford,  6  Hill  (N.  Y.)  368. 
But  service  on  a  clerk  of  plaintiff's 
attorney  in  time  for  the  clerk  to  have 
notified  the  attorney  before  the  in- 
quest, was  held  a  sufficient  service. 
Smith  V.  Aylesworth,  24  How.  Pr.  (N. 
Y.  Supreme  Ct.)  33. 

6.  Heane  v.  Batterby,  3  Dowl.  Pr. 
Cas.  213;  Blewitt  v.  Gordon,  i  Dowl. 
N.  S.  815,  6Jur.  825;  Philips  7).  Blagge, 


375 


Controverting. 


AFFIDAVITS  OF  MERITS. 


Controverting. 


The  facts  involving  merits  alleged  in  such   an  affidavit  cannot 
be  contradicted,  even  by  matter  of  record.* 


3  Johns.  (N.  Y.)  141;  Hanford  v.  Mc- 
Nair,  2  Wend.  (N.  Y.)  286;  Roosevelt 
V.  Kemper,  2  Cai.  (N.  Y.)  30;  Fran- 
cis V.  Cox,  33  Cal.  325;  Gracier  v. 
Wier,  45  Cal.  54;  Reclamation  Dist.  v. 
Coghill,  56  Cal.  607;  Douglass  v. 
Todd,  96  Cal.  655;  Mendall  v.  Kim- 
ball, 85  111.  582;  Thelin  v.  Thelin,  8 
111.  App.  421;  Kalkaska  Mfg.  Co.  v. 
Thomas,  17  111.  App.  235;  Serafield 
V.  Sheeler,  18  111.  App.  507;  Bristor 
V.  Galvin,  62  Ind.  352;  Buck  v.  Ha- 
vens, 40  Ind.  221;  Lake  v.  Innes,  49 
Ind.  297;  Beatty  z'.  O'Connor,  106  Ind. 
81;  Hill  V.  Crump,  24  Ind.  291;  Alle- 
gheny V.  McCaffrey,  131  Pa.  St. 
142. 

1.   Feust  V.   Fell,  6  W.   N.   C.   (Pa.) 

43- 

The    Court    Cannot    Take    Testimony 

as  to  the  truth  of  the  facts  of  de- 
fense, but  must  determine  the  ques- 
tion on  the  affidavit  of  the  defendant. 
Worth  V.  Wetmore  (Iowa,  1893),  54  N. 
W.  Rep.  56.  In  this  case  the  court 
said:  "  In  this  case  the  court  proceeded 
to  take  testimony  as  to  the  merits  of 
the  defense.  This  it  had  no  right  to 
do,  under  an  application  to  set  aside  a 
default  by  motion.  We  have  hereto- 
fore held  that,  if  the  affidavit  of  merits 
shows  a  good  defense,  there  can  be  no 
further  inquiry  as  to  the  truth  of  the 
defense.  Joerns  v.  La  Nicca,  75  Iowa, 
709.  In  other  words,  when  the  appli- 
cation is  by  motion,  and  the  applicant 
shows  a  reasonable  excuse  for  having 


made  default,  and  also  shows  by  aflS- 
davit  that  he  has  a  meritorious  defense 
to  the  plaintiff's  claim,  or  some  part  of 
it,  and  presents  his  answer,  the  court 
must  pass  on  the  question  of  setting 
aside  the  default  on  the  showing  thus 
made.  It  cannot  take  testimony  to 
establish  the  truth  of  the  facts  alleged 
in  the  affidavit  of  merits.  To  take 
testimony  as  to  the  matters  set  out  in 
the  affidavit,  as  was  done  in  this  case, 
is  in  effect  trying  the  defense  before 
the  court  has  determined,  by  setting 
aside  the  default,  that  the  defendant 
shall  be  heard  to  make  a  defense." 

But  Counter-Affidavits  controverting 
the  merits  were  considered  by  the 
court  in  Pitts  v.  Magie,  24  111.  610; 
Whiteside  v.  Logan,  7  Mont.  373; 
Houston,  etc.,  R.  Co.  v.  Burke,  55 
Tex.  336,  40  Am.  Rep.  808;  and  in  the 
two  cases  last  cited  the  merits  were 
apparently  weighed  by  the  court  on 
the  conflicting  affidavits. 

Where,  on  a  Motion  to  Open  a  Default, 
defendant  presented  an  affidavit  of  mer- 
its and  an  excuse  for  the  default,  and 
plaintiff  opposed  the  motion  by  an  affi- 
davit that  defendant  had  admitted 
the  claim  alleged  in  the  complaint, 
held,  that  the  affidavit  of  defendant 
was  overbalanced  by  that  of  plain- 
tiff, and  that  the  motion  was  properly 
denied.  Henry  Prouse  Cooper  Co. 
V.  Findlay,  53  N.  Y.  Super.  Ct.  524. 
See  also  Johnson  v.  Lynch,  15  How. 
Pr.  (N.  Y.)  191. 


376 


AFFIRMATION. 


By  Ward  B-    Zoe. 


I.  Definition,  377- 

n.  HisTOEY— English  Statute  Law,  377. 
m.  American  Statute  Law,  378. 

rV.    FOEM,  380. 

V.  Effect,  380. 

I.  Definition. — An  affirmation  is  a  solemn  religious  assevera- 
tion in  the  nature  of  an  oath.'  It  is  a  solemn  declaration  made 
before  a  court,  judge,  or  other  authorized  officer,  and  having  the 
force  of  an  oath  ;  an  indulgence  allowed  by  law  to  persons  pro- 
fessing to  have  conscientious  scruples  against  taking  an  oath.''* 

II.  HiSTOEY— English  Statute  Law. — An  oath  was  the  only 
method  known  to  the  common  law  for  insuring  the  undertaking 
of  a  witness  that  he  would  speak  the  truth,  and  difficulty  was 
experienced  upon  his  refusal  to  comply  with  religious  forms — in 
other  words,  to  guarantee  the  truth  of  his  testimony  by  the  sanc- 
tion of  an  oath  in  any  shape.^  Relief  was  afforded  by  allowing 
the  party  so  refusing  to  make  a  solemn  affirmation  in  lieu  of  an 
oath.  An  affirmation,  therefore,  had  no  existence  at  common 
law,  but  is  entirely  the  product  of  statute.* 

going  so  far  even  as  to  define  an 
oath  as  the  "  assurance  of  the  truth  of 
an  assertion  by  an  appeal  to  a  superior 
sanction, — that  is,  the  '  superior  sanc- 
tion '  of  the  moral  sense," — thus  mak- 
ing his  definition  of  an  oath  include  the 
affirmations  of  atheists.  Whar.  Cr. 
Ev.  §  353. 

3.  Best  Prin.  Ev.  §  i66. 

4.  The  Origin  of  the  Practice  of  affirm- 
ing is  to  be  found  among  the  tenets  of 
the  Quakers,  who  held  that  taking  an 
oath  was  unlawful  and  contrary  to  the 
Word  of  God.  Before  the  revolution 
in  England  in  1688  the  Quakers  were 
subjected  to  severe  penalties  for  refus- 
ing to  take  a  legal  oath.  Anonymous, 
I  Ch.  Cas.  237;  2  Freem.  27.  These 
hardships  were  in  great  measure  re- 
moved by  the  Toleration  Act,  i  Wm. 
&  M.,  c.  18,  §  13,  which  first  allowed 
them  to  make  a  declaration  of  their 
fidelity  to  the  state,  instead  of  taking 


1.  Black  L.  Diet.,  Affirmation;  Bouv. 
L.  Diet.,  ib.;  i  Green  Ev.  §  371. 

2.  Burrill  L.  Diet.,  Affirmation. 
Appeal    to     Supreme    Being. — These 

definitions  are  doubtless  too  narrow. 
An  affirmation  does  not,  in  strictness, 
it  is  conceived,  involve  an  appeal  to  a 
Supreme  Being.  Abb.  L.  Diet.,  Affir- 
mation; And.  L.  Diet.,  Affirmation. 
Although  in  the  forms  prescribed  in 
some  of  the  earlier  English  statutes 
allowing  the  practice  of  affirming  to 
certain  sects  who  were  conscientiously 
scrupulous  of  taking  an  oath,  an  ac- 
knowledgment, express  or  implied,  of 
a  belief  in  a  Higher  Power  is  apparent. 
I  Geo.  I,  Stat.  2,  c.  6;  9  Geo.  IV,  c.  32. 
See  also  Atcheson  v.  Everitt,  Cowp. 
382.  The  term  "  affirmation  "  can  also 
properly  be  applied  to  the  solemn 
declaration  made  by  atheists  in  those 
jurisdictions  where,  by  statute,  athe- 
ists are  permitted  to  testify,  Wharton 


377 


American  Statute  Law. 


AFFIRM  A  TION. 


American  Statute  Law. 


III.  Ameeican  Statute  Law. — The  United  States  have,  like 
England,  recognized  the  necessity  of  dealing  tenderly  with  the 
consciences  of  those  opposed  to  the  taking  of  an  oath,  and  have, 
without  exception,  allowed  such  witnesses  to  afifirm  in  both  civil 
and  criminal  proceedings.  This  privilege  has  generally  been  ex- 
tended also  to  grand  and  petit  jurors,  as  well  as  to  all  officers  from 
whom  an  oath  is  required  by  law.* 


the  oath  of  allegiance.  In  1696,  by  the 
temporary  act  of  7  &  8  Wm.  Ill,  c. 
34,  Quakers  were  allowed  in  civil 
cases,  instead  of  giving  oath,  to  affirm, 
said  act  being  afterward  continued 
by  13  Wm.  Ill,  c.  4,  and  made  per- 
petual by  I  Geo.  I,  stat.  2,  c.  6. 
Further  relief  was  given  by  the  statute 
of  8  Geo.  I,  c.  6.  By  the  statute  of  \i 
Geo.  II,  c.  13,  Quakers  are  allowed  to 
be  enrolled  as  attorneys  or  solicitors 
on  their  affirmation.  Their  privileges 
were  further  extended  by  22  Geo.  II, 
c.  46,  sec.  36,  which,  construing  pre- 
vious statutes,  permits  them  to  affirm 
in  all  cases  where  an  oath  is  required 
by  act  of  Parliament,  although  still  ex- 
pressly excluding  them  from  giving 
evidence  in  criminal  cases,  serving  on 
juries,  or  bearing  any  office  or  place 
of  profit  under  the  government.  lb., 
sec.  37.  But  these  actions  must  be 
both  technically  and  in  substance 
criminal  to  exclude  the  testimony  of  a 
Quaker.  Atcheson  v.  Everitt,  Cowp. 
382.  See  also  on  this  point  Hilton  v, 
Byron,  3  Salk.  248:  Robins  v.  Say- 
ward,  I  Strange  441;  Rex  v.  Green,  i 
Strange  527;  Wood  v.  Story,  i  P.  Wms. 
781  ;  Castell  v.  Bambridge,  2  Strange 
854 ;  Rex  V.  Wych,  2  Strange  872  ; 
Cowell  z/.  Waller,  2  Kely.  66;  Oliver  z/. 
Lawrence,  2  Strange  946;  Rex  v.  Bell, 
Andr.  200;  Ex  p.  Gumbleton,  9  Mod. 
232,  2  Atk.  70;  Rex  V.  Turner,  2 
Strange  1219;  Rex  v.  Bridges,  Say.  72; 
Rex  V.  Bow,  Say.  75;  Rex  v.  Gardner, 

2  Bur.  1117.  The  statute  9  Geo.  IV,  c. 
32,  however,  was  passed,  allowing  both 
Quakers  and  Moravians  to  give  evi- 
dence on  simple  affirmation  in  both 
civil  and  criminal  cases.  This  was 
followed  by  an  act  allowing  both  of 
said  sects  to  affirm  in  all  cases  where 
by  law  an  oath  is  required.  3  &  4 
Wm.  IV,  c.  49.  A  similar  statute  was 
passed  for  the  relief  of  the  Separatists. 

3  &  4  Wm.  IV,  c.  82.  The  Common  Law 
Procedure  Act,  17  &  18  Vic,  c.  125, 
sec.  20,  enacts,  with  respect  to  civil 
cases,  that  any  person  called  as  a  wit- 
ness who  should  sincerely  object  to  be 


sworn  might  be  permitted  to  affirm. 
This  enactment  was  extended  to  civil 
cases  by  24  &  25  Vic,  c  66. 

Atheists. — The  case  of  an  atheist  was 
first  provided  for  in  England  by  the 
Evidence  Further  Amendment  Act,  32 
&33  Vic.,c.  68,  s.  4,  which  provided  that 
every  person  called  to  give  evidence  in 
a  court  of  justice,  whether  in  a  civil  or 
criminal  proceeding,  who  should  ob- 
ject to  take  an  oath,  or  who  should  be 
objected  to  as  incompetent  to  take  an 
oath,  should,  if  the  presiding  judge  be 
satisfied  that  the  taking  of  an  oath 
would  have  no  binding  effect  on  his 
conscience,  declare  as  follows:  "  I  sol- 
emnly promise  and  declare  that  the 
evidence  given  by  me  to  the  court 
shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth."  This  act, 
however,  not  applying  to  the  promis- 
sory oath  of  allegiance  appointed  to 
be  taken  by  members  of  Parliament 
before  taking  their  seats,  an  atheist 
elected  to  a  seat  in  that  body  would  be 
in  an  unfortunate  and  difficult  posi- 
tion. He  could  not  affirm,  as  he  did 
not  come  within  the  statutes  allowing 
the  use  of  affirmations  to  Quakers  and 
other  sects;  and  he  could  not  take  an 
oath,  since  this  was  impossible  for  an 
atheist.  The  controversy  between 
the  House  of  Commons  and  Mr.  Brad- 
laugh,  who  found  himself  in  this  situ- 
ation (Clarke  v.  Bradlaugh,  7  Q.  B. 
Div.  38,  8  App.  Cas.  354),  was  termin- 
ated by  the  passage  of  the  General 
Oaths  Act  of  1888,  51  &  52  Vic,  c  46, 
which  authorized  any  person  to  affirm 
wherever  an  oath  is  required.  Under 
sec.  3  of  the  same  act,  where  a  witness 
has  been  duly  sworn,  the  fact  that  at 
the  time  of  taking  the  oath  he  had  no 
religious  belief  in  nowise  affects  the 
validity  of  the  oath.  But  where  a 
witness  does  not  state  either  of  above 
circumstances,  and  is  yet  allowed  to 
affirm,  this  will  be  error,  sufficient  for 
reversal.  Rex  v.  Moore,  6  L.  J.  M.  C. 
80,  40  W.  R.  304. 

1.  The  provisions  are  various  in 
form,  but  have  the  same  general  ef- 


378 


American  Statute  Law. 


AFFIRM  A  TION. 


American  Statute  Law. 


Children.— Although  it  is  a  general  rule  that  a  child  must  be  ex- 
amined upon  oath,  yet  one  brought  up  by  those  conscientiously 
scrupulous  of  taking  an  oath  will  doubtless  be  allowed  to  affirm.^ 

strict  Construction. — But  these  statutes  are  in  general  strictly  con- 
strued, at  least  as  to  the  bare  privilege  of  affirming.* 


feet,  the  most  common  being  simply 
that  the  word  "oath,"  whenever 
used,  shall  include  affirmation,  and 
the  word  "swear"  shall  include  the 
word  "affirm"  wherever  by  law  an 
affirmation  may  be  substituted  for  an 
oath;  i.e.,  a  person  who  declares  con- 
scientious scruples  against  taking 
any  form  of  oath  may  satisfy  any 
statute  requiring  an  oath  by  making 
a  solemn  affirmation  in'  lieu  thereof. 
Abb.  L.   Diet.,  Oath. 

United  States. — ^  i  of  the  Rev.  Sts. 
of  the  United  States  provides  that  a  re- 
quirement of  an  oath  shall  be  deemed 
complied  with  by  making  affirmation 
in  judicial  form.  See  also  Cons.  U.  S., 
Art.  I,  §  3;  II,  i;  VI;  and  Amend. 
Art.  IV. 

New  England  States. — It  is  'generally 
provided  in  the  New  England  states, 
and  in  one  or  two  others  which  seem 
to  have  followed  in  their  lead,  that  in 
substituting  an  affirmation  for  an  oath 
the  usual  closing  words  of  an  oath, 
"so  help  me  God,"  shall  be  omitted, 
and  the  words,  "this  I  do  under  the 
pains  and  penalties  of  perjury,"  in- 
serted in  their  stead.  But  this,  of 
course,  is  not  necessary  to  make  the 
affirmant  liable  to  perjury  if  his  testi- 
mony is  false.  Maine  Rev.  Stat.  ch.  i, 
sec.  7;  New  Hampshire  Pub.  Stat.  ch. 
ig,  sec.  5;  Vermont  Rev.  Laws,  sec. 
4552;  Massachusetts  Pub.  Stat.  ch.  169, 
sec.  17;  Rhode  Island  Cons.  Art.  IX, 
sec.  3;  Connecticut  Gen.  Stat.  sec.  3262; 
Ohio  Rev.  Stat.  sec.  7282;  IVisconsin 
Stat.  sec.  4692. 

Atheists. — Many  states  have,  like 
England,  either  by  their  constitutions 
or  by  statutes,  abrogated  the  rule  of 
the  common  law  which  (since  the  es- 
sence of  an  oath  is  the  recognition  of 
a  belief  in  a  Supreme  Being)  rendered 
atheists  incompetent  as  witnesses,  and 
unable  to  fill  any  office  to  the  legal  as- 
sumption of  which  an  oath  is  neces- 
sary. In  more  than  half  of  the  states 
the  privilege  of  affirming  in  lieu  of  mak- 
ing oath  is  now  given  to  atheists,  either 
by  provisions  expressly  doing  away 
with  incompetency  on  account  of  re- 
ligious belief,  or  by  general  provisions 
declaring  complete  equality  of  civil 
rights,     privileges,     and     capacities. 


which  latter,  perhaps,  are  sufficiently 
broad  to  accomplish  the  same  pur- 
pose. Cooley  Const.  Lim.  586;  Perry's 
Case,  3  Gratt.  (Va.)  632;  Bush  v.  Com. 
80  Ky.  244.  It  is  observable  that, 
generally  speaking,  these  changes  are 
accomplished  in  the  older  states  by 
statute,  in  those  of  newer  growth  by 
constitutional  provision.  They  affect 
sometimes  merely  the  competency  of 
atheists  as  witnesses;  sometimes  the 
provision  has  for  its  object  the  protec- 
tion of  all  their  civil  capacities. 

United  States. — "  The  laws  of  the 
state  in  which  the  court  is  held  shall 
be  the  rules  of  decision  as  to  the  com- 
petency of  witnesses  in  the  courts  of 
the  United  States  in  trials  at  common 
law,  and  in  equity  and  admiralty." 
Rev.  Sts.  sec.  858. 

Massachusetts.  —  Atheists  are  com- 
petent witnesses,  but  evidence  of  un- 
belief may  be  received  to  affect  their 
credibility.  Pub.  Stat.  ch.  213,  sec. 
6. 

Georgia. — Religious  belief  goes  only 
to  the  credit  of  the  witness.  Rev. 
Code,  sec.  3853. 

Other  States. — In  the  following 
states  constitutional  or  legislative 
provisions  are  found  dealing  more  or 
less  thoroughly  with  this  question  : 
Maine,  Vermont,  Massachusetts,  Con- 
necticut, New  York,  Georgia,  Florida, 
Mississippi,  Louisiana,  Texas,  Arkan- 
sas, Missouri,  Ohio,  Indiana,  Michigan, 
Minnesota,  Wisconsin,  Kansas,  Ne- 
braska, Arizona,  Nevada,  Colorado, 
Wyoming,  Washington,  Oregon,  Iowa, 
and  California. 

1.  Phil.  Evid.  II.  See  also  William- 
son V.  Carroll,  16  N.  J.  L.  217. 

2.  Privilege  of  Affirming. — Where  one 
who  was  not  a  Quaker  was  called  to 
affirm,  and  refused  to  do  so  on  the 
ground  of  conscientious  scruples,  he 
was  committed  for  contempt,  the 
liberty  of  affirming  being  strictly  con- 
fined to  Quakers  under  the  [then]  laws 
and  practice  of  Massachusetts.  U.  S. 
V.  Coolidge,  2  Gall.  (U.  S.)  364.  And 
where  a  material  witness  before  a 
grand  jury  is  not  sworn,  he  not  being 
a  Quaker,  the  indictment  will  be 
quashed.  U.  S.  v.  Coolidge,  2  GalL 
(U.  S.)  364. 


379 


Form. 


AFFIRM  A  TION. 


Effect 


Witness  Not  Objecting  to  Oath.— A  witness  who  has  no  objection  to  be 
sworn  cannot  be  affirmed  to  give  evidence.* 

rV.  FOBM. — The  form  of  affirmations  does  not  vary  greatly  in 
the  different  jurisdictions.*  It  is  regulated  sometimes  by  statute, 
sometimes  by  usage  ;  but  even  where  it  is  prescribed  by  statute,  a 
slight  variance  is  not  fatal. ^ 

V.  Effect. — The  legal  effect    of  an  affirmation   is,  in    all  re- 

the  words,  "  AfBrmed  before  me,  one 
of  the  justices  of  the  county,  Samuel 
Clarke,"  it  was  held  valid  in  spite  of 
its  irregularity,  the  word  "swear" 
being  mere  surplusage.  State  v. 
Shreve,  4  N.  J.  L.  297. 

Presumption  as  to  Regulations  of  Stat- 
ute being  Complied  with. — In  general, 
the  court,  in  the  absence  of  any  fact  to 
the  contrary,  will  presume  that  the  of- 
ficer administering  the  affirmation  was 
satisfied  that  the  party  making  it  was 
conscientiously  scrupulous  of  taking  an 
oath.  It  need  not  state  this  fact,  nor 
need  a  statement  of  all  forms  gone 
through  with  appear  on  the  face  of  the 
document.  The  affidavit  will  be  as- 
sumed to  be  properly  made.  Loney  v. 
Bailey,  43  Md.  10;  Wolseleyz/.  Worth- 
ington,  14  Ir.  Ch.  369. 

Rule  in  Criminal  Cases. — A  distinction 
has,  however,  been  taken  in  this  regard 
between  civil  and  criminal  cases.  Coxe 
V.  Field,  13  N.  J.  L.  215,  where  the 
court  said:  "The  manner  of  admin- 
istering the  oath  or  affirmation  in  a 
court  of  record,  proceeding  according 
to  the  common  law,  is  presumed  to  be 
correct  and  legal  unless  it  appears  to 
be  otherwise  on  the  face  of  the  record. 
In  criminal  cases  no  such  presumption 
is  allowed,  and  therefore  in  them  the 
manner  is  required  to  be  set  out;  but 
there  is  no  case  or  even  dictum  for  it  in 
a  civil  cause."  See  also  Clark  v.  Col- 
lins, 15  N.  J.  L.  473;  State  v.  Fox,  9 
N.  J.  L.  244;  State  v.  Harris,  7  N.  J.  L. 
361;  State  V.  Sharp,  6  N.  J.  L.  341; 
State  v.  Putnam,  i  N.  J.  L.  260;  State 
V.  Davis,  69  N.  Car.  383,  where  the 
court  uttered  the  following  dictum  in 
a  criminal  case  :  "  If  the  usual  form 
of  oaths  upon  the  Holy  Evangely  of 
Almighty  God  is  dispensed  with,  and 
an  '  appeal '  or  '  affirmation  '  is  substi- 
tuted, it  must  appear  that  the  person 
sworn  had  conscientious  scruples;  else 
the  'appeal'  or  'affirmation'  is  in- 
valid." It  is  not  necessary  in  a  civil 
case  to  ask  an  affirming  juror  if  he  be 
conscientiously  scrupulous  of  taking 
an  oath.  Anonymous,  3  N.  J.  L. 
930. 


1.  Whar.  Crim.  Ev.  §  355  ;  Will- 
iamson V.  Carroll,  16  N.  J.  L.  217, 
where  a  witness  was  affirmed  without 
alleging  or  even  having  any  con- 
scientious scruples  against  taking  an 
oath,  the  court  saying:  '^  Prima  facie, 
every  witness  is  to  be  sworn,  and  all 
evidence  is  to  be  given  under  oath. 
But  the  legislature,  with  becoming  re- 
spect and  deference  to  the  religious 
sentiments  of  a  numerous  and  highly 
respectable  portion  of  the  community, 
has  provided  a  substitute  for  the  sacra- 
mental or  corporal  oath,  for  such  as 
are  conscientiously  scrupulous  of  sub- 
mitting to  that  ceremony.  But  this 
privilege,  by  the  very  terms  of  the 
statute,  is  to  be  extended  only  to  such 
as  'shall  allege'  themselves  'con- 
scientiously scrupulous  of  taking  an 
oath;'  and  we  have  no  right  to  extend 
it  to  any  others  or  upon  any  other 
terms."  See  also  Wilson  Bryan's  Case, 
I  Cranch  (C.  C.)  151,  where  a  Metho- 
dist who  objected  to  be  sworn  as  a 
petit  juror,  but  could  not  say  that  it 
was  contrary  to  the  principles  of  his 
religious  society  to  take  an  oath,  was 
ordered  into  the  custody  of  the  mar- 
shal for  persisting  in  his  refusal.  But 
a  special  juror  who  stated  that  he  had 
the  persuasions  of  a  Quaker,  but  was 
not  a  member  of  the  Society  of  Friends, 
was  allowed  to  affirm.  Emmett  v.  Nor- 
ton, 8  C.  &  P.  506. 

2.  The  most  common  form  is,  "  You 
do  solemnly,  sincerely,  and  truly  de- 
clare and  affirm  that  you  will  state  the 
truth,"  etc.  And.  L.  Diet.,  Affirm. 
This  is  sometimes  followed  by  the 
words,  "  this  I  do  under  the  pains  and 
penalties  of  perjury,"  as  in  the  New 
England  states,  supra. 

3.  Variance  from  Statute. — Thus,  an 
official  affirmation  in  the  words  "de- 
clare and  affirm,"  instead  of  "  promise 
and  affirm,"  as  required  by  statute, 
was  deemed  sufficient.  Bassett  v. 
Denn,  17  N.  J.  L.  432.  So,  where  an 
oath  was  administered  in  the  follow- 
ing form:  "  I,  J.  B.,  do  solemnly  and 
sincerely  promise  and  swear  (or  affirm) 
that   I   will,"  etc.,  and  at  the   bottom 


380 


Effect. 


AFFIRM  A  TION. 


Effect. 


spects  and  for  all  purposes,  the  same  as  that  of  an  oath,  the 
aflfirmant  being  under  the  same  obligation  to  speak  the  truth, 
and  therefore  liable  to  the  penalties  of  perjury  if  he  affirm  falsely,* 
the  general  doctrine  being  that  what  is  materially  an  oath  in  its 
administration  is  also  so  in  its  effect.^ 


1.  Bouv.  L.  Diet.,  Ferjury ;  Steph. 
Cr.  93,  94;  Whar.  Cr.  Ev.  §  555;  Am. 
&  Eng.  Ency.  Law,  Perjury,  p.  303; 
Bishop  Cr.  Law,  vol.  2,  §  1018  (4); 
And.  L.  Diet.,  Affirmation;  Abb.  L. 
Diet.,  Affirm. 

2.  Omichund  v.  Barker,  Willes  538, 
I  Atk.  21,  where  Willes,  L.C.J. ,  said: 
"Though  Quakers  and  fanatics,  devi- 
ating from  the  common  sentiments  of 
mankind,  refuse  to  give  a  formal  oath, 
if  they  do  that  which  is  materially  the 
same,  it  is  materially  an  oath." 


Pretending  to  be  Quaker. — Where  one 
who  affirms  as  being  a  Quaker  is  not 
of  that  sect,  he  yet  undertakes  that  he 
is  a  Quaker,  and  his  affirmation  cannot 
be  impugned  on  that  ground.  His 
affirmation,  if  false,  will  subject  him 
to  the  penalties  of  perjury.  Marsh  v. 
Robinson,  2  Anstr.  479. 

Irregularity  in  an  Affirmation  will  prob- 
ably not  prevent  an  indictment  for 
perjury  from  lying.  State  v.  Shreve, 
4  N.  J.  L.  397. 


381 


AFFRAY. 

I.  Definition,  382. 
n.  The  Indictment,  382. 

1.  The  Form,  382. 

2.  Allegation  of  Affray,  382. 

3.  Allegation  of  Place,  383. 

ni.  The  Teial,  383. 

1.  Definition. — An  affray  is  the  fighting  together  of  two  or 
more  persons,  either  by  mutual  consent  or  otherwise,  in  some 
pubhc  place,  to  the  terror  of  the  people.^ 

II.  The  Indictment — 1.  The  Form.— The  indictment  for  an 
affray  need  only  follow  the  language  of  the  statute  defining  a 
crime.* 

2.  Allegation  of  an  Affray. — The  authorities  are  conflicting  as  to 
whether  the  defendants  may  be  charged  merely  with  having 
"  made  an  affray,"  without  further  allegation  of  fighting.** 


1.  Am.  &  Eng.  Ency.  Law,  tit. 
Affray. 

2.  Com.  V.  Barrett,  io8  Mass.  302; 
State  V.  Sumner,  5  Strobh.  (S.  Car.)  53; 
Com.  V.  Welsh,  7  Gray  (Mass.)  324. 

The  above  authorities  are  cases  of 
prize-fighting. 

A  Good  Indictment. — An  indictment 
which  charges  that  the  defendants  on, 
etc.,  at,  etc.,  with  force  and  arms,  in 
a  certain  county,  were  unlawfully  as- 
sembled together  in  a  certain  public 
street  or  highway,  in  a  certain  town, 
and  then  and  there  being  so  unlaw- 
fully assembled  together,  and  arrayed 
in  a  warlike  manner,  then  and  there 
did  make  an  affray,  to  the  great  terror 
of  divers  good  citizens  of  the  State, 
then  and  being,  contrary,  etc.,  is  a 
good  indictment  for  an  aflfray.  State 
V.  Washington,  19  Tex.  128,  70  Am. 
Dec.  323.  And  an  indictment  is  suf- 
ficient if  it  charges  that  the  parties 
did,  at  a  time  and  a  public  place  desig- 
nated, "  unlawfully  and  willingly  fight 
together."  State  v.  Billingsley,  43  Tex. 
93.  See  also  form  of  indictment  given 
in  Arch.  Crim.  PI.  &  Ev.  599. 


Assault  and  Battery. — Care  must  be 
taken  not  to  allege  the  affray  as  a 
mere  assault  and  battery.  Champer 
V.  State,  14  Ohio  St.  437. 

3.  In  State  v.  Washington,  19  Tex. 
128,  70  Am.  Dec.  323,  such  an  indict- 
ment was  held  to  be  good.  In  State 
V.  Benthal,  5  Humph.  (Tenn.)  519, 
an  allegation  that  defendants  made 
an  affray  "by  fighting"  was  held  to 
be  good.  But  in  State  v.  Priddy,  4 
Humph.  (Tenn.)  429,  an  indictment 
charging  only  that  defendants  "  made 
an  affray  "  was  held  to  be  bad.  The 
court  held  that  the  facts  which  con- 
stitute the  affray  must  be  alleged,  and 
not  merely  the  technical  designation 
thereof.  State  v.  Priddy,  4  Humph. 
(Tenn.)  429;  and  Simpson  v.  State,  5 
Yerg.  (Tenn.)  356;  State  v.  Woody,  2 
Jones  (N.  Car.)  335,  are  to  the  same 
effect.  See  also  State  v.  Vanloan,  8 
Ind.  182.  Where  the  information 
stated  that  defendants  fought  in  a 
public  place,  but  whom  or  what  they 
fought  was  not  stated,  the  court  held 
that  the  information  was  correctly 
quashed. 


38^ 


Tlie  Trial. 


AFFKA  Y. 


The  Trial. 


3.  Allegation  of  Place. — The  indictment  must  charge  the  fight- 
ing to  have  been  in  a  pubHc  place.* 

But  the  place  need  not  be  described  further  than  by  alleging 
that  it  was  a  public  one.* 

III.  The  TeiaL— Both  Must  Be  Convicted.— Where  two  defendants 
are  jointly  indicted  for  an  affray,  both  must  be  convicted,  or 
neither.* 

Including  Assault  and  Battery. — An  indictment  for  an  affray  includes 
a  charge  of  an  assault  and  battery,"*  and  the  acquittal  for  an 
affray  bars  an  indictment  for  assault.* 

The  Verdict.— The  verdict  may  be  special  instead  of  general.  The 
jury  may  find  the  facts  and  the  court  may  draw  the  inference  of 
guilt  from  it.® 


1.  State  z'.  Heflin,  8  Humph.  (Tenn.) 
84;  Shelton  v.  State,  30  Tex.  432. 

2.  Shelton  v.  State,  30  Tex.  432, 
where  the  court  said:  "  It  is  true  the 
statute  does  define  what  is  intended  to 
be  a  public  place  within  the  meaning 
of  the  law.  But  this  is  altogether  a 
matter  of  evidence,  and  the  state  must 
show  in  sustaining  the  charge  that  the 
fighting  was  in  a  public  place.  The 
appellant,  in  pleading  guilty,  furnished 
the  proof  to  the  state  in  this  case."  But 
see  State  v.  Heflin,  8  Humph.  (Tenn.) 
84,  where  it  was  held  that  an  allega- 
tion that  the  affray  took  place  in  the 
town  of  Clarksville  did  not  sufficiently 
describe  the  place. 

3.  Hawkins  v.  State,  13  Ga.  322,  50 
Am.  Dec.  517. 

Contra. — One  may  be   found  guilty 


and    the    other    acquitted.      Cash    v. 
State,  2  Overt.  (Tenn.)  198. 

4.  McClellan  v.  State,  53  A'a.  640; 
Bishop  Crim.  Proc.  §  25. 

Ignored  Against  One  Defendant. — An 
indictment  charging  that  the  defend- 
ant and  another  "did  commit  an 
affray  by  fighting  together  by  mutual 
and  common  consent,  in  public  view," 
includes  a  charge  of  a  mutual  assault 
and  battery,  and  the  defendant  may  be 
convicted  under  it,  though  the  grand 
jury  indorsed  not  a  true  bill  as  to  the 
other.  State  v.  Wilson,  Phil.  (N.  Car.) 
237.  See  State  v.  Allen,  4  Hawks  (N. 
Car.)  356. 

5.  State  V.  Stanly,  4  Jones  (N.  Car.) 
290. 

6. 
143- 


Curlin  v.  State,  4  Yerg.  (Tenn.) 


383 


AGREED     CASE. 

By  William  A.  McQuaid. 

I.  Definition,  385. 
II.  Natuee  of  Agreed  Case,  385. 

1.  Purpose,  385. 

2.  Contents,  385. 

3.  Mode  of  Stating,  386. 

4.  Like  a  Special  Verdict,  386. 

5.  Judgment,  387. 

6.  What  is  Not  an  Agreed  Case,  387. 

ni.  Nature  of  the  Controversy,  388. 

1.  Generally,  388. 

2.  Affidavit  of  Reality,  388. 

IV.  Office  of  the  Stipulation,  389- 

1.  Extent  of  Control  by  Parties,  389. 

2.  Effect  as  an  Estoppel,  390. 

3.  Effect  as  a  Waiver,  y)\. 

4.  Rescission,  393. 

"V.  Function  of  the  Court,  393- 

1.  Power  of  Inference,  2,9Z. 

2.  Abstract  Questions,  394. 

3.  Power  to  Amend,  395. 

4.  Power  to  Discharge,  396. 

5.  Miscellaneous  Powers,  397. 

"VX  Practice,  398. 

1.  Parties,  398. 

2.  Costs,  399. 

3.  Miscellaneous,  400. 

VII.  Pleadings,  401. 

1 .  Relation  to  the  Agreed  Case,  401.  * 

2.  Question  of  Sufficiency,  402, 

VIII.  Use  in  Evidence  of  Agreed  Case  upon  a  Subsequent  Trial, 
402.  ^ 

IX.  Appeals,  403. 

1.  Finality  of  Judgment,  ^02,. 

2.  Whether  an  Appeal  or  Writ  of  Error  Lies,  ip'^, 

3.  Necessity  for  Bill  of  Exceptio7is,  403. 

4.  Relation  of  Appellate  to  Inferior  Court,  404. 

5.  Right  to  Appeal  Reserved  by  Stipulation,  405. 

X.  Statutory  Provisions,  406. 

Case  Made  or  Stated  upon  Appeal,  see  CASE  MADE. 
Case  Certified  or  Reported,  see  that  title. 

384 


ITatore  of. 


AGREED  CASE. 


Contents. 


1.  Definition. — An  agreed  case  is  a  formal  written  statement 
of  all  the  material  facts  of  a  real  controversy  which  might  be  the 
subject  of  a  civil  action  between  two  or  more  parties,  signed  by 
them  for  the  purpose  of  submission  to  a  court  to  obtain  rulings  of 
law  thereon  enforceable  by  judgment.  The  proceeding  is  wholly 
the  creation  of  statute. 

II.  Nature  or  the  Agreed  Case — 1.  Purpose. — The  purpose  of 
an  agreed  case  i?  to  save  the  expense  of  a  trial  and  dispense  with 
a  jury.'  The  parties  perform  the  function  of  a  jury  and  deter- 
mine the  facts.  There  is  no  dispute  about  the  facts,  but  there  is 
as  to  the  propositions  of  law  to  be  deduced  therefrom.*-* 

2.  Contents. — An  agreed  case  must  contain  all  the  material  facts 
that  are  necessary  for  a  determination  of  the  questions  of  law 
arising  out  of  the  controversy.^ 


I 


1.  McKethan  v.  Ray,  71  N.  Car. 
165;  1  Bouv.  Law  Diet.  288;  i  Troubat 
&  Haly's  Prac.  (Pa.)  §  752;  Fuller  v. 
Trevoir,  8  S.  &  R.  (Pa.)  529;  Diehl  v. 
Ihrie,  3  Whart.  (Pa.)  143;  Whitesides 
V.  Russell,  8  W.  &  S.  (Pa.)  44. 

2.  McLughan  v.  Bovard,  4  Watts 
(Pa.)  308;  Diehl  z/.  Ihrie,  3  Whart.  (Pa.) 
143;  Williams  v.  Rochester,  2  Lans. 
(N.  Y.)  169. 

As  a  Substitute  for  an  Action. — "  This 
mode  of  procedure  is  not  intended  to 
provide  for  the  submission  of  ques- 
tions of  law  for  the  opinion  of  the 
court  merely,  without  a  case  in  which 
a  judgment  might  be  rendered,  in 
accordance  with  its  opinion,  legally 
determining  the  rights  of  the  parties. 
It  does  not  authorize  a  submission  of 
questions  in  cases  that  are  merely  an- 
ticipated, nor  of  cases  where  the  facts 
are  disputed,  nor  is  such  submission 
intended  to  be  merely  advisory  as  to 
the  rights  of  the  parties.  It  is  rather 
a  substitute  for  an  action,  and  its 
effect  upon  the  rights  of  the  parties  is 
the  same  as  that  of  an  action.  It  is 
a  short  and  convenient  mode  for  the 
final  adjudication  of  the  case  submit- 
ted." Newark  R.  Co.  v.  Perry  County, 
30  Ohio  St.  120. 

As  Commencement  of  a  Snit. — The 
filing  of  the  agreed  case  is  the  com- 
mencement of  the  suit  within  a  rule 
fixing  the  legal  rights  of  the  parties 
to  a  suit  at  the  time  of  its  commence- 
njent.  Nashville  Trust  Co.  v.  Nash- 
ville Fourth  Nat.  Bank  (Tenn.),  18  S.W. 
Rep.  822,  15  L.  R.  A.  710. 

3.  Sargent  Invalid  Furniture  Co. 
V.  Sargent,  65  N.  H.  672.  All  facts 
material  to  a  final  and  complete  deter- 
mination of  the  controversy,  with  no- 


thing further  to  be  done  except  to 
carry  the  judgment  into  effect.  Moore 
V.  Hinnant,  87  N  .  Car.  505;  Piedmont 
R.  Co.  V.  Reidsville,  loi  N.  Car.  404; 
Kneller  v,  Lang,  137  N.  Y.  589;  Levy 
V.  Sheehan,  3  Wash.  420.  See  also 
post,  V,  Functioft  of  the  Court. 

Facts  Pertinent  to  the  Particular  Issue. 
— See  Royall  v.  Eppes,  2  Munf.  (Va.) 
479,  to  the  effect  that  parties  do  not 
need  to  state  all  the  facts  of  the  case, 
but  only  those  pertinent  to  a  particu- 
lar question  of  law,  providing  that 
judgment  may  be  entered  for  or 
against  the  plaintiff  according  as  the 
decision  of  such  question  is  for  or 
against  him. 

Kind  of  Action. — In  Pennsylvania  an 
agreed  case  should  contain  the  kind 
of  action  as  well  as  the  cause  of  action. 
It  should  appear  whether  the  action  is 
in  debt,  assumpsit,  or  trespass.  Berks 
County  V.  Jones,  21  Pa.  St.  413. 

Must  Show  a  Cause  of  Action. — An 
agreed  case  should  show  a  cause  of 
action  in  favor  of  one  party  against 
another.  Gregory  v.  Perdue,  29  Ind. 
66. 

Facts  Regarded  as  True. — Judgment 
on  the  agreed  case  must  be  rendered 
in  favor  of  the  party  entitled  thereto, 
taking  the  facts  recited  therein  to  be 
true;  but  if  the  facts  so  recited  fail  to 
show  a  cause  of  action  in  the  party  in 
whose  favor  the  judgment  is  rendered 
by  the  trial  court,  it  will  not  be  upheld 
by  the  appellate  court.  Day  v.  Day, 
100  Ind.  460;  Manning  v.  Coogan,  49 
N.  H.  331;  but  see  Taunton  z/.  Taylor, 
116  Mass.  254. 

Signature. — An  agreed  case  must  be 
signed  by  each  of  the  parties,  or  by 
their  attorneys,  in  order  that  it  may 


I  Encyc.  PI.  &  Pr.— 25. 


385 


Kature  of. 


AGREED   CASE. 


Like  a  Special  Verdict. 


Not  Evidence,  but  Facts- — The  agreed  case  must  contain  the  ultimate 
facts  and  should  not  be  a  mere  recital  of  the  evidence  or  circum- 
stances which  may  tend  to  prove  the  ultimate  facts  or  from 
which  they  may  be  inferred.*  Whatever  is  not  distinctly  stated 
must  be  taken  not  to  exist.* 

3.  Mode  of  Stating. — An  agreed  case  should  be  something  more 
than  a  mere  narrative  of  facts.^  It  should  give  the  subject-mat- 
ter of  contention  and  state  the  conflicting  claims. 

4.  Like  a  Special  Verdict. — An  agreed  case  is  not  a  mere  stipula- 
tion concerning  evidence  from  which  inferences  of  fact  may  be 
drawn,  but  it  is  equivalent  to  a  finding  of  facts  by  a  court  or  the 
special  verdict  of  a  jury  in  which  every  fact  necessary  to  a  re- 
covery must  be  expressly  found  in  a  conclusive  and  unambiguous 
form.* 


be  heard.  Farrand  v.  Bentley,  6  Mich. 
280;  Branchardiere  v.  Elvery,  18  L.  J. 
Exch.  383. 

1.  Either  a  statement  of  facts  by  the 
parties  ora  finding  of  facts  by  the  court 
is  strictlyanalogoustoa  special  verdict, 
and  must  state  the  ultimate  facts  of 
the  case,  presenting  questions  of  law 
only,  and  must  not  be  a  recital  of  evi- 
dence or  of  circumstances  which  may 
tend  to  prove  the  ultimate  facts, or  from 
which  they  may  be  inferred.  Rai- 
mond  V.  Terrebonne  Parish,  132  U.  S. 
192;  Burr  V.  Des  Moines  R.,  etc.,  Co., 
I  Wall.  (U.  S.)  99;  Norris  v.  Jackson, 
9  Wall.  (U.  S.)  125;  Martinton  v.  Fair- 
banks, 112  U.  S.  670;  Glenn  v.  Fant, 
134  U.  S.  398;  U.  S.  V.  Eliason,  16  Pet. 
(U.  S.)  291;  Powers  v.  Provident  Sav. 
Inst.,  122  Mass.  443;  Lewis  v.  Hoblit- 
zell,  6  Gill  &  J.  (Md.)  259;  Diehl  v. 
Ihrie,  3  Whart.  (Pa.)  143;  Com.  v. 
Baum,  I  Lehigh  Valley  Rep.  (Pa.)  187; 
Kinsley  J/.  Coyle,  58  Pa.  St.  461;  Union 
Sav.  Bank  v.  Fife,  loi  Pa.  St.  388; 
Ament  v.  Sarver,  2  Grant's  Cas.  (Pa.) 
34;  Holmes  v.  Wallace,  46  Pa.  St.  266; 
Luzerne  County  v.  Glennon,  109  Pa. 
St.  564;  Parker  v.  Urie,  21  Pa.  St.  305; 
Melick  V.  Smith,  i  Leg.  Opin.  (Pa.) 
157;  Fisher  v.  Purdue,  48  Ind.  323; 
Sawyer  v.  Corse,  17  Gratt.  (Va.)  230, 
94  Am,  Dec.  445;  Ramsey  v.  McCue, 
21  Gratt.  (Va.)  349. 

2.  Berks  County  v.  Jones,  21  Pa. 
St.  413;  Berks  County  v.  Pile,  18  Pa. 
St.  493  ;  Canonsburg  Iron  Co.  v. 
Union  Nat.  Bank  (Pa.,  1886),  6  Atl. 
Rep.  574;  Holmes  v.  Wallace,  46  Pa. 
St.  268;  Ford  V.  Buchanan,  iii  Pa.  St. 
31;  Seiple  V.  Seiple,  133  Pa.  St.  460; 
Com.  V.  Howard,  149  Pa,  St.  302; 
Philadelphia,  etc.,   R.  Co.  v.   Water- 


man, 54  Pa.  St.  337;  Diehl  v.  Ihrie,  3 
Whart.  (Pa.)  143. 

Beference  for  Determination  of  Facts. — 
The  court  has  no  power  to  refer  the 
determination  of  the  facts  of  a  cause 
submitted  upon  an  agreed  case  to  a 
referee,  and  a  judgment  entered  upon 
his  report  will  be  reversed  and  the 
agreed  case  quashed.  Frailey  v. 
Legion  of  Honor,  132  Pa.  St.  578; 
Phelps  V.  Phelps,  145  Mass.  416. 

3.  The  controversy  arising  on  the 
facts,  and  the  rulings  to  be  made  ac- 
cording to  the  opinion  of  the  court  of 
their  legal  operation,  should  be  specifi- 
cally described.  Overman  v.  Sims,  96 
N.  Car.  451;  McKethan  v.  Ray,  71 
N.  Car.  165;  Moore  v.  Hinnant,  87  N. 
Car.  505.  But  see,  contra,  Haeger  v. 
Nixon,  69  N.  Car,  108;  Lewis  v.  Wake 
County,  74  N.  Car.  194. 

4.  Goodrich  v.  Detroit,  12  Mich. 
279;  Brinkley  v.  Hambleton,  67  Md. 
169;  Keller  v.  State,  12  Md.  322,  71  Am. 
Dec.  596;  Hartman  v.  Smith,  7  Mont. 
19;  Crane  z/.  Whittemore,  4  Mo.  App. 
510;  Fisher  v.  Purdue,  48  Ind.  323; 
James  v,  McWilliams,6  Munf.(Va.)  301. 

An  agreed  statement  of  facts,  strictly 
speaking,  corresponds  to  a  special  ver- 
dict. It  presupposes  that  the  issues 
have  been  settled  and  that  the  evi- 
dence has  been  passed  upon,  and  it 
contains  therefore  no  questions  aris- 
ing on  the  pleadings  or  any  matter  of 
evidence,  but  results  in  the  form  of 
ascertained  facts.  It  is  the  business 
of  the  court  to  deduce  from  them  the 
proper  legal  conclusions.  Barden  v. 
St.  Louis  Mut.  L.  Ins.  Co.,  3  Mo.  App. 
248. 

There    Must  Be  No    Ambiguity. — An 
agreed  case  stands  in  lieu  of  a  special 
86 


ITatare  of. 


AGREED   CASE. 


What  is  not. 


5.  Judgment. — The  judgment  must  be  provided  for  in  the  agreed 
case,  and  such  a  judgment  must  be  demanded  as  can  be  rendered 
upon  the  facts  stated.*  The  agreed  case  must  contain  facts  upon 
^vhich  an  effectual  judgment  can  be  rendered.* 

6.  What  is  Not  an  Agreed  Case. — Agreements  as  to  evidence  must 
not  be  mistaken  for  agreed  cases.  There  is  an  essential  difference 
between  an  agreed  case  and  a  case  where  the  trial  takes  place 
before  the  court  or  jury  upon  an  agreed  statement  of  facts.' 


verdict,  and  all  the  facts  necessary  to 
a  determination  of  the  case  must  be 
definitely  ascertained.  If  there  be  any 
ambiguity,  any  omission  of  facts  nec- 
essary to  a  recovery,  any  lack  of  clear- 
ness and  certainty  on  material  points, 
the  judgment  will  not  be  allowed  to 
stand.  Munford  v.  Wilson,  15  Mo. 
540;  White  V.  Walker,  22  Mo.  433; 
Gage  V.  Gates,  62  Mo.  412;  Shaw  v. 
Padley,  64  Mo.  519;  Carrz/.  Lewis  Coal 
Co.,  96  Mo.  149,  9  Am.  St.  Rep.  328; 
Hughes  V.  Moore,  17  Mo.  App.  148; 
Moore  v.  Henry,  18  Mo.  App.  35;  Ford 
V.  Cameron,  19  Mo.  App.  467;  State  v. 
Hannibal,  etc.,  R.  Co.,  34  Mo.  App. 
591;  Berks  County  v.  Pile,  18  Pa.  St. 
493;  Holmes  v.  Wallace,  46  Pa.  St. 
266;  Kinsley  v.  Coyle,  58  Pa.  St.  461; 
Union  Sav.  Bank  v.  Fife,  loi  Pa.  St. 
388;  Whitesides  v.  Russell,  8  W.  &  S. 
(Pa.)  44;  Washburn  v.  Baldwin,  10 
Phila.  (Pa.)  472;  Clark  v.  Halberstat, 
I  Miles  (Pa.)  26;  Norris  v.  Jackson,  9 
Wall.  (U.  S.)  125;  Glen  v.  Fant,  134 
U.  S.  398;  Raimond  v.  Terrebonne 
Parish,  132  U.  S.  192;  Brewer  v.  Opie, 
I  Call  (Va.)  212;  Sawyer  v.  Corse,  17 
Gratt.  (Va.)  230,  94  Am.  Dec.  445;  Real 
Estate  Bank  v.  Rawdon,  5  Ark.  558; 
Keller  v.  State,  12  Md.  322,  71  Am. 
Dec.  596;  Old  Colony  R.  Co.  v.  Wil- 
der, 137  Mass.  537;  Hovey  v.  Crane, 
10  Pick.  (Mass.)  440;  Gillett  v.  Detroit, 
46  Mich.  309;  Newark,  etc.,  R.  Co.  v. 
Perry  County,  30  Ohio  St.  120;  Stock- 
ton V.  Copeland,  23  W.  Va.  696. 

1.  Williams  v.  Rochester,  2  Lans. 
<N.  Y.)  169. 

Judgment  for  Nominal  Sum — If  the 
case  does  not  fix  the  damages  or  pro- 
vide for  the  assessment  thereof,  judg- 
ment for  the  plaintiff  will  be  for  nomi- 
nal damages  only.  McAneany  v.  Jew- 
ett,  10  Allen  (Mass.)  151;  Marine  Bank 
V.  Merchants'  Bank,  12  Gill  &  J.  (Md.) 
498;  Burgess  z/.  Pue,  2  Gill  (Md.)  254; 
Jackson  v.  Salisbury,  66  Md.  459;  Ty- 
son V.  Western  Nat.  Bank,  77  Md.  412; 
Kraft  V.  James,  64  Iowa  159;  Central 
City  Water  Co.  v.  Kimber,  i  Colo. 
475;  Hobart  College  v.    Fitzhugh,  27 


N.  Y.  130.     See  also  post,  V,  4,  Power 
to  Discharge. 

2.  Williams  v.  Rochester,  2  Lans. 
(N.  Y.)  169;  Weed  v.  Calkins,  24  Hun 
(N.  Y.)  582;  Graves  v.  Brinkerhoff, 
4  Hun  (N.  Y.)  308;  Cunard  S.  S.  Co. 
V.  Voorhis,  104  N.  Y.  525;  Whitesides 
V.  Russell,  8  W.  &  S.  (Pa.)  44;  Berks 
County  V.  Pile,  18  Pa.  St.  493;  State  v. 
Sias,  17  N.  H.  558;  Keith  v.  Rucker, 
16  111.  389. 

An  agreed  case  must  contain  a  full 
and  certain  statement  of  all  the  facts 
belonging  to  the  case,  so  that,  when 
a  judgment  is  entered  thereon,  it  will 
be  capable  of  enforcement  to  the  same 
extent  as  though  reached  by  the  ver- 
dict of  a  jury.  Washburn  v.  Baldwin, 
10  Phila.  (Pa.)  472;  Dunn  v.  Meixell,  i 
Lehigh  Valley  Rep.  (Pa.)  168;  Pitts- 
burgh V.  Alleghany,  i  Pitts.  (Pa.)  97. 

Recovery  of  Statutory  Penalty.  — 
Where  a  suit  was  brought  to  recover 
a  statutory  penalty,  and  the  cause  was 
submitted  to  the  court  on  a  case  stated, 
which  failed  to  show  whether  the  acts 
relied  on  to  establish  the  defendant's 
liability  took  place  within  the  two 
years  provided  by  law  for  the  prose- 
cution of  such  actions,  or  in  what  state 
they  took  place,  such  case  is  not  suflS- 
cient  to  sustain  a  judgment.  Com.  v. 
Howard,  149  Pa.  St.  302. 

Agreed  Case  Without  Parties. — Where 
an  agreed  case  is  submitted  without 
plaintiff  or  defendant,  and  upon  the 
facts  in  such  case  neither  party  is  en- 
titled to  judgment,  the  district  court 
should  dismiss  the  matter.  Frazer  v. 
Miller,  12  Kan.  459. 

Judgment  upon  an  Agreed  Case  as  a 
Bar. — A  judgment  dismissing  a  suit 
agreed  is  a  bar  to  any  other  action  for 
the  same  cause.  If  the  dismissal  was 
ordered,  without  actual  satisfaction, 
upon  some  new  agreement  not  com- 
plied with,  an  action  upon  the  new 
agreement  is  the  only  remedy.  Jar- 
boe  V.  Smith,  u  B.  Mon.  (Ky.)  257, 
52  Am.  Dec.  541;  Bank  of  Common- 
wealth V.  Hopkins,  2  Dana  (Ky.)  395. 
3.  Citizens'  Ins.  Co.  v.  Harris,  108  Ind. 


387 


Ila tare  of  the  Controversy.        AGREED   CASE. 


Affidavit  of  Reality. 


III.  Nattjee  of  the  Contkoversy— 1.  Generally.— The  contro- 
versy which  it  is  sought  to  submit  as  an  agreed  case  must  be  one 
that  might  be  the  subject  of  a  civil  action  -^  the  court  will  not 
entertain  a  made-up  case  the  parties  to  which  are  not  opposed 
ill  interest.* 

2.  Affidavit  of  Reality. — Wherever  provision  is  made  by  statute 
for  the  submission  of  a  controversy  upon  an  agreed  case,  an  affi- 
davit must  be  filed  to  show  that  the  question  submitted  is  a  real 
controversy.' 


392;  Oppenheim  v.  Pittsburgh,  etc.R. 
Co.,  85  Ind.  477;  Pennsylvania  Co.  z'. 
Niblack,  99  Ind.  149.  An  agreed  case 
is  a  mere  agreement  as  to  what  the 
evidence  would  establish.  Slessman  v. 
Crozier,  80  Ind.  487;  Downey  z/.  Wash- 
burn, 79  Ind.  242;  Martin  v.  Martin, 
74  Ind.  207;  Witz  V.  Dale,  129  Ind.  120; 
Hodge  V.  First  Nat.  Bank,  22  Gratt. 
(Va.)  51;  Dearing  v.  Rucker,  18  Gratt. 
(Va.)  426;  Wickham  v.  Martin,  13 
Gratt  (Va.)  446;  Martinton  v.  Fair- 
banks, 112  U.  S.  670. 

No  agreed  case  where  facts,  if  found 
for  defendant,  to  be  taken  as  true;  but 
if  for  plaintiff,  cause  to  be  sent  to  jury. 
Stockton  V.  Copeland,  23  W.  Va.  696. 

Competency  of  Evidence.  —  Should 
there  be  any  question  as  to  the  effect 
or  competency  of  evidence,  or  as  to 
any  rulings  of  the  court  below  on  evi- 
dence examined,  the  case  is  not  an 
agreed  case.  Burr  z/.  Des  Moines  R., 
etc.,  Co.,  I  Wall.  (U.  S.)  99;  Pomeroy 
V.  State  Bank,  i  Wall.  (U.  S.)  592. 

Agreed  Cases  by  Contestants  in  Dis- 
puted Elections. — When  A.  claims  to 
have  been  elected  the  successor  to  B. 
to  an  office,  which  claim  B.  disputes, 
such  a  question  arises  as  might  be  the 
subject  of  a  civil  action,  and  as  maybe 
submitted  upon  an  agreed  case.  Frazer 
T'.  Miller,  12  Kan.  459;  Alexander  v. 
McKenzie,  2  S.  Car.  86.  But  in  Buf- 
falo V.  Mackay,  15  Hun  (N.  Y.)  204,  it 
was  held  that  such  action  could  not  be 
tried  upon  an  agreed  case  because  the 
state  must  be  made  a  party.  See  also 
Kennedy  v.  New  York,  79  N.  Y.  361. 

Contingent  Rights. — Courts  will  not 
upon  a  case  submitted  upon  an  agreed 
case  determine  rights  dependent  upon 
a  contingency  until  the  happening  of 
the  event.  Hobart  College  v.  Fitz- 
hugh,  27  N.  Y.  130. 

1.  See  post,  2,  Affidavit  of  Reality,  V, 
2,  Abstract  Questions. 

Enforcement  of  Lien. — If  the  plain- 
tiff's remedy  is  solely  by  the  enforce- 
ment of  a  lien,  and   not  by  action,  he 


cannot  recover.  West  Roxbury  v. 
Minot,  114  Mass.  526. 

Injunctions.  —  New  York. — An  in- 
junction is  expressly  prohibited  in 
New  York.  Paterson  v.  Mutual  L. 
Assoc,  19  Civ.  Pro.  Rep.  (N.  Y.  Super. 
Ct.)  262;  People  V.  Binghamton 
Trust  Co.  (Supreme  Ct.),  20  N.  Y. 
Supp.  179;  Cunard  S.  S.  Co.  v.  Voor- 
his,  104  N.  Y.  528. 

Mandamus  and  Prohibition. —  Soutk 
Carolina. — Under  the  statutes  of  South 
Carolina  proceedings  by  mandamus 
and  prohibition  cannot  be  maintained 
on  an  agreed  case.  South  Carolina 
Soc.  V.  Gurney,  3  S.  Car.  51. 

Fleas  in  Abatement. — It  is  improper 
to  bring  a  matter  which,  if  there  is 
any  question  upon  it,  is  proper  for  a 
plea  in  abatement  to  the  writ,  before 
the  court  in  the  form  of  a  case  stated. 
Colby  V.  Dillingham,  7  Mass.  475; 
Libbey  v.  Hodgdon,  etc.,  Stage  Co.,  ^ 
N.  H.  394;  Morse  v.  Calley,  5  N.  H. 
222. 

Submission  of  Actions. — No  authority- 
is  contained  in  §  372  in  the  New  York 
Code  of  Procedure  for  the  submission 
of  actions;  it  relates  solfely  to  the  sub- 
mission of  questions  of  difference 
without  action.  Van  Sickle  v.  Van 
Sickle,  8  How.  Pr.  (N.  Y.  Supreme 
Ct.)  265. 

Question  as  to  Right  to  Serve  Process. 
— Where  the  question  was  whether  a 
coroner  who  was  also  a  deputy  sheriff 
could  serve  process  upon  another 
deputy  sheriff,  it  was  held  an  im- 
proper matter  to  submit  upon  an 
agreed  case.  Colby  v.  Dillingham,  7 
Mass.  475. 

2.  As  for  the  purpose  of  determin- 
ing the  validity  of  a  grand  jury. 
People  V.  Wallace,  91  Cal.  535. 

3.  Affidavit  of  Reality  Jurisdictional. 
— Without  the  affidavit  as  to  reality  of 
controversy,  where  it  is  required,  the 
court  has  no  jurisdiction.  Myers  v. 
Lawyer,  99  Ind.  237;  Sharpe  v. 
Sharpe,  27  Ind.  507;  Witz  v.  Dale,  129 


38S 


Office  of  Stipulation. 


AGREED  CASE.  Extent  of  Control  by  Parties. 


rv.  Office  of  Stipulation — 1.  Extent  of  Control  by  Parties. — 
The  court  cannot  acquire  jurisdiction  by  the  mere  agreement  of 
the  parties  to  grant  it.  To  enable  the  court  to  decide  an  action 
upon  agreed  facts,  the  statement  must  have  been  made  in  a  case 
legally  before  the  court  for  its  decision.  Parties  by  their  agree- 
ment cannot  present  a  case  to  the  court  in  a  manner  not  author- 
ized by  lavv.^ 


Ind.  i2o;  Manchester  v.  Dodge,  57 
Ind.  584;  Godfrey  v.  Wilson,  70  Ind. 
50;  Slessman  v.  Crozier,  80  Ind.  487; 
Downey  v.  Washburn,  79  Ind.  242; 
Western  Union  Tel.  Co.  v.  Frank,  85 
Ind.  480;  Reeder  v.  Workman,  37  S. 
•Car.  413;  M'Carson  v.  Richardson,  i 
Dev.  &  B.  (N.  Car.)  561;  Aycock  v. 
Harrison,  65  N.  Car.  8;  Hervey  v. 
Edmunds,  68  N.  Car.  243;  Grant 
V.  Newsom,  81  N.  Car.  36;  Keeline 
V.  Council  Bluffs,  62  Iowa  450;  Bank 
of  Commonwealth  v.  Hopkins,  2  Dana 
{Ky.)  395;  Jones  v.  Hoffman,  18  B. 
Mon.  (Ky.)  656;  Plainfield  v.  Plain- 
field,  67  Wis.  525;  Molandin  v.  Colo- 
rado Cent.  R.  Co.,  3  Colo.  173;  People 
'v.  Mutual  Endowment,  etc.,  Assoc, 
•92  N.  Y.  622. 

Effect  of  Omission  of  Affidavit. — With- 
out such  affidavit  the  decision  of  the 
court  is  not  a  judgment  and  not  ap- 
pealable. At  most  it  is  a  mere  award, 
as  in  a  common-law  arbitration.  Plain- 
field  V.  Plainfield,  67  Wis.  525. 

By  Whom  Affidavit  Should  Be  Hade. — 
It  is  sufficient  if  made  by  one  only  of 
the  parties.  Booth  v.  Cottingham, 
126  Ind.  431.  The  affidavit  must  be 
made  by  one  of  the  parties,  and  an 
affidavit  by  an  attorney  for  one  of  the 
parties  is  not  a  compliance  with  the 
statute  where  there  is  a  natural  party 
by  whom  it  may  be  made.  Bloomfield 
V.  Ketcham,  5  Civ.  Pro.  Rep.  (N.  Y. 
Ct.  of  App.)  407,  95  N.  Y.  657. 

Same  Attorney  for  Both  Parties. — 
Where  the  same  attorney  prepared  the 
agreed  case  and  also  the  briefs  of 
both  parties,  it  will  be  discharged  not- 
withstanding an  affidavit  of  reality. 
Wood  V.  Nesbitt  (Supreme  Ct.),  19  N. 
Y.  Supp.  423. 

Statement  as  to  Affidavit  in  Record. — 
The  record  showed  only  the  allegation 
in  the  agreed  statement  on  appeal, 
that  the  cause  was  heard  in  the  jus- 
tice's court  on  an  agreed  statement  of 
facts.  The  statement  that  there  was 
an  affidavit  cannot  be  taken  as  equiva- 
lent to  the  affidavit.  Mellois  v.  Chaine, 
20  Cal.  679. 


1.  "  The  case  is  before  us  on  agreed 
facts;  but  that  circumstance  does  not 
give  the  court  jurisdiction.  It  is  sug- 
gested that  the  defendant  has  waived 
the  point  by  the  form  of  the  argument, 
that  if  the  'trustees  were  not  liable' 
for  the  tax,  etc.,  judgment  should  be 
entered  for  the  plaintiffs.  We  are 
satisfied  that  the  defendant  did  not 
use  the  language  with  that  meaning, 
and  therefore,  if  necessary,  should 
discharge  the  agreement  rather  than 
enter  judgment  for  the  plaintiffs. 
Agreed  facts  are  not  to  be  dealt  with 
on  quite  the  same  principles  as  con- 
tracts. But  as  the  plaintiffs  expressed 
no  wish  that  the  agreement  should  be 
discharged  if  their  construction  was 
not  adopted,  and  as  we  do  not  perceive 
how  they  could  better  their  case,  we 
construe  the  agreement  as  meaning, 
simply,  if  the  plaintiffs  are  not  liable 
although  assessed  as  above  stated  and 
although  they  had  brought  no  petition 
for  abatement,  or  if  the  plaintiffs  were 
entitled  to  recover."  Richardson  v. 
Boston,  148  Mass.  513. 

A  party  is  not,  by  his  having  joined 
in  a  case  stated  in  a  court  of  equity, 
precluded  from  objecting  to  the  want 
of  jurisdiction.  The  consent  of  the 
parties  cannot  give  jurisdiction  if 
otherwise  it  does  not  exist.  Beeson  v. 
Elliott,  I  Del.  Ch.  369. 

Action  Against  Creditor  of  Corporation. 
— No  action  at  law  can  now  be  main- 
tained by  a  creditor  of  a  corporation 
against  its  officers  to  enforce  liabilities 
imposed  by  the  statutes  relating  to 
corporations.  This  objection  to  the 
form  of  action  is  not  waived  or  ren' 
dered  immaterial  by  the  submission 
upon  an  agreed  statement  of  facts. 
McRae  v.  Locke,  114  Mass.  96. 

Parties  Cannot  Give  Court  Jurisdiction 
Over  Others. — Parties  cannot  bind 
others  by  the  agreement  made  be- 
tween themselves.  Hobart  College  v. 
Fitzhugh,  27  N.  Y.  130;  Union  Nat. 
Bank  v.  Kupper,  63  N.  Y.  617.  See 
also  subdivision  of  this  article  entitled 
VI,  Practice,  i.     Parties. 


1^9 


Office  of  Stipulation. 


AGREED  CASE. 


Effect  as  an  EstoppeU 


2.  Effect  as  an  Estoppel. — The  parties  to  a  controversy  submitted 
upon  an  agreed  case  are  estopped  from  denying  the  truth,  com- 
petency, or  sufficiency  of  any  admissions  contained  therein.* 


Specified  Points  of  Law. — Parties  may 
rest  the  decision  of  the  controversy 
upon  certain  specified  points  of  law,  to 
the  exclusion  of  all  extraneous  facts 
or  circumstances.  Royall  v.  Eppes,  2 
Munf.  (Va.)  479;  Stockton  v.  Cope- 
land,  23  W.  Va.  6g6. 

If  the  stipulation  contains  a  clause 
which  indicates  the  question  submit- 
ted for  decision,  a  determination  of 
that  question  determines  the  case. 
Crane  v.  Whittemore,  4  Mo.  App.  510. 

Bight  to  Except  Reserved. — It  is  in- 
consistent for  parties  to  agree  to  state 
the  facts  and  then  reserve  the  right  to 
except.  Bixler  v.  Kunkle,  17  S.  &  R. 
(Pa.)  310. 

What  Necessary  to  Make  Agreed  Case 
Part  of  Judgment  Roll. — If  the  parties 
agree  to  a  statement  of  facts  and  stipu- 
late that  it  may  be  used  by  either 
party  in  any  and  all  proceedings  in 
the  action,  the  statement  of  facts  be- 
comes a  part  of  the  judgment  roll. 
Burnett  v.  Pacheco,  27  Cal.  411. 

Judgment  of  Respondeat  Ouster. — The 
court  will  not  render  judgment  of 
7-espondeat  ouster  even  though  parties 
stipulate  to  that  effect.  The  very 
object  of  a  case  stated,  to  end  the 
controversy  by  a  judgment  in  chief  on 
certain  ascertained  points,  would  be 
'  defeated  by  permitting  the  facts  to  be 
re-examined.  Darlington  v.  Gray,  5 
Whart.  (Pa.)  502. 

When  State  Concluded. — When  the 
state  by  its  proper  officers  enters  into 
an  agreed  case,  if  it  is  not  bound  by 
the  agreement,  it  is  in  any  event  con- 
cluded by  a  judgment  and  decision  to 
which  it  has  not  excepted.  State  v. 
Porter,  86  Ind.  404. 

As  to  the  control  by  stipulation  of 
the  discretion  of  the  court  in  the  mat- 
ter of  costs,  see  post,  VI.  Practice,  i. 
Costs.  See  post,  V.  Function  of  the  Court, 
on  the  point  of  power  of  inferring  facts 
granted  by  stipulation;  see  also  post. 
Pleadings  ;  3.  Effect  as  a  Waiver;  IX. 
Appeals. 

1.  Upon  an  agreed  case  facts  stated 
are  taken  to  be  true.  Manning  v. 
Coogan,  49  N.  H.  331 ;  Day  v.  Day,  100 
Ind.  460. 

A  Solemn  Judicial  Admission.  —  The 
effect  of  the  admission  is  to  conclude 
the  parties.     This  admission  belongs 


to  the  class  of  solemn  judicial  admis- 
sions which  are  made  as  a  substitute 
for  proof  of  the  fact  admitted.  They 
dispense  with  proof  as  to  such  fact,  and, 
although  there  may  appear  in  the  case 
evidence  casting  doubt  on  the  truth  of 
the  matter  admitted,  it  is  to  be  pre- 
sumed that  there  is  other  evidence  not 
produced,  or  other  reasons  which  in- 
duce the  admission.  If  the  admission 
were  improvidently  made,  the  injured 
party  has  his  remedy,  by  motion  to 
strike  out  or  amend  the  admission;  but 
while  it  exists  in  the  case  it  would  ap- 
pear to  be  conclusive.  Fearing  v.  Irwin, 
4  Daly  (N.  Y.)  385,  affirmed  in  55  N. 
Y.  486;  Lathers  v.  Fish,  4  Lans.  (N.Y.) 
213. 

Parties  are  Bound  by  their  Theory  of 
the  Case. — "  The  parties  assert  that  this 
is  an  agreed  case.  Accepting  without 
investigation  or  decision  the  statement 
of  both  parties  that  this  is  an  agreed 
case  under  the  statute,  and  taking  as 
our  guide  that  parties  are  bound  by 
the  theory  which  they  assume  to  be 
the  correct  one,  we  shall  test  this  case 
as  an  agreed  one."  Booth  v.  Cotting- 
ham,  126  Ind.  431. 

Objection  that  Proof  was  not  in  Writ- 
ing.— A  party  cannot  agree  upon  a 
case  stated  which  admits  a  certain 
fact,  and  then  insist  that  the  proof  of 
the  fact  is  not  competent,  as  that  it 
was  not  in  writing.  Swatara  R.  Co. 
V.  Brune,  6  Gill  (Md.)  41. 

Statement  as  to  Demand. — A  state- 
ment in  a  case  that  a  demand  was 
made  means  a  demand  in  accordance 
with  the  statute,  if  there  is  such  a 
statute.  Jennison  v.  Roxbury,  9  Gray 
(Mass.)  32. 

Officer's  Return. — Where  parties  in  an 
agreed  statement  of  facts  agree  to  a 
fact  decisive  of  the  title,  the  officer's 
return,  which  would  have  been  con- 
clusive evidence  upon  a  trial  between 
them,  is  not  to  be  regarded.  Agreeing 
in  a  case  stated  to  a  fact,  which  a  party 
could  have  been  estopped  to  allege  or 
deny,  is  a  waiver  of  the  estoppel. 
Wolcott  V.  Ely,  2  Allen  (Mass.)  338; 
Wheelock  v.  Henshaw,  19  Pick.  (Mass.) 
341;  Boston  V.  Tileston,  11  Mass.  468; 
Com.  V.  Greene,  13  Allen  (Mass.)  251. 
But  see  Lowrey  v.  Caldwell,  139  Mass. 
88,  to   the   effect   that,  where  a   case 


390 


Office  of  Stipulation. 


AGREED  CASE. 


Effect  as  a  Waiver. 


3.  Effect  as  a  Waiver. — By  submitting  to  the  court  a  cause  upon 
an  agreed  case,  the  parties  to  the  submission  are  held  to  waive 
all  defects  of  pleading  and  form  of  action,  and  the  cause  will  be 
determined    strictly   upon   the   merits.*      The   sole   question   is 


k 


stated  set  forth  an  officer's  return  and 
facts  inconsistent  therewith,  it  was 
held  that  the  conclusiveness  of  the 
return  was  not  waived  by  the  matters 
so  stated.  See  also  Collins  v.  Doug- 
lass, I  Gray  (Mass.)  167. 

Agreed  Case  in  Ejectment. — A  case 
agreed  in  ejectment,  finding  the  lease, 
entry,  and  ouster  in  the  declaration 
mentioned,  sufficiently  admits  that  all 
the  defendants,  who  agreed  upon  the 
case,  are  in  possession  of  the  land  in 
controversy.  Mooberry  v.  Marye,  2 
Munf.  (Va.)  453. 

In  an  action  of  ejectment,  a  recital, 
in  an  agreed  case,  that  plaintiff's 
grantor  "  died  in  1871  intestate,  and 
her  husband  in  1864  intestate,"  is  not 
such  a  precise  affirmation  that  plain- 
tiff's grantor  was  a  feme  covert  at  the 
time  of  the  death  of  her  husband  as  to 
estop  defendants,  in  a  subsequent  par- 
tition of  the  same  land,  from  showing 
that  she  had  been  divorced  in  i860, 
before  she  executed  a  deed  in  trust  of 
the  land  to  defendant.  Sutton  v. 
Dameron,  100  Mo.  141. 

Statute  Passed  Subsequent  to  Filing 
Case. — A  stipulation  that  a  cause  shall 
be  heard  and  determined  on  the  plead- 
ings and  agreed  statement  of  facts 
does  not  preclude  either  party  from 
taking  advantage  of  a  statute  enacted 
between  the  time  of  the  settlement  of 
the  statement  and  the  time  of  the  hear- 
ing. Such  stipulation  governs  only 
the  facts,  not  the  law.  Huff  v.  Cook, 
44  Iowa  639. 

Admission  Must  Be  in  Certain  Terms. — 
An  agreed  case,  containing  the  state- 
ment that  when  a  certain  county  offi- 
cer entered  on  his  official  duties  the 
population  of  the  county  "was  over 
150,000  and  less  than  300,000,  based 
upon  reasons  incorporated  in  the  fol- 
lowing paragraph,"  is  not  in  such  an 
admission  of  the  fact  as  will  warrant 
a  judgment  based  upon  it.  Luzerne 
County  V.  Glennon,  log  Pa.  St.  564  ; 
Robidoux  V.  Casseleggi,  81  Mo.  459. 

What  is  Sufficient  Assent. — Where  one 
of  several  parties  to  a  case  made  was 
in  court  when  the  statement  of  facts 
'agreed  upon  was  read  without  his 
objection,  he  cannot  in  the  Supreme 
Court  object  to  its  admission  in  evi- 


dence as  error.  Whitehall  v.  Craw- 
ford, 37  Ind.  147. 

How  Agreed  Case  Construed.  —  The 
agreed  case  must  be  read  and  inter- 
preted in  the  light  of  the  rule  that  the 
burden  of  excusing  non-delivery  is 
upon  the  carrier.  It  follows  that  it  is 
to  be  taken  most  strongly  against  the 
defendant,  just  as  any  affirmative 
pleading  is  to  be  taken  most  strongly 
against  the  pleader.  Isenberg  v.  St. 
Louis,  etc..  Anchor  Line,  13  Mo.  App. 
415. 

1.  Hess  V.  Bolinger,  48  Cal.  349 ; 
Merrill  v.  Bullock,  105- Mass.  486;  Fish 
V.  Fiske,  154  Mass.  302;  Reynolds  v. 
Reynolds,  30  Kan.  95.  By  the  agreed 
facts  the  parties  are  held  to  have 
waived  all  matters  of  form  and  of  pro- 
cess, and  the  question  is  to  be  decided 
irrespective  of  the  mode  of  proceeding. 
Boxford  V.  Harriman,  125  Mass.  321; 
Brettun  v.  Fox,  100  Mass.  234;  Chap- 
pel  V.  Mclntyre,  9  Tex.  161;  Bates  v. 
Republic,  2  Tex.  616;  Parker  v.  Portis, 
14  Tex.  166;  American  Co?,l  Co.  v. 
Alleghany  County,  59  Md.  185;  Bostick 
V.  Blades,  59  Md.  231,  43  Am.  Rep.  548; 
Knight  V.  Ft.  Fairfield,  70  Me.  500; 
Bixler  v.  Kunkle,  17  S.  &  R.  (Pa.)  310. 
See  post,  VII.  Pleadings.  Machias 
Hotel  Co.  V.  Fisher,  56  Me.  321. 

Question  of  Infancy  Waived. — Where 
an  infant  plaintiff  sues  without  the  in- 
tervention of  a  prochein  ami,  and  the 
facts  are  stated  in  an  agreed  case,  the 
defect  is  waived  by  defendant.  Smith 
Co.  V.  Carney,  127  Mass.  179. 

Legal  or  Equitable  Belief. — A  claim 
was  filed  calling  upon  the  Circuit  Court 
to  exercise  its  powers  as  a  probate 
court.  Subsequently  a  pleading  was 
filed  calling  for  equity  jurisdiction. 
Then  the  case  was  submitted  upon  an 
agreed  statement  of  facts  without 
objection  to  the  form  of  procedure. 
The  objection  if  properly  taken  on  the 
pleadings  would  have  led  to  a  sever- 
ance of  the  causes  of  action.  But  the 
submission  was  a  waiver  of  all  objec- 
tions to  matters  of  form  of  proceeding, 
and  as  the  court  had  both  jurisdictions, 
it  had  power  to  grant  the  full  measure 
of  relief  demanded,  irrespective  of  the 
form,  Baugh  v.  Barrett,  69  Iowa  495; 
and  an  objection  that  the  plaintiff  has 


391 


Office  of  Stipulation. 


AGREED  CASE. 


Effect  as  a  Waiver. 


whether  the  plaintiff  can  recover  upon  any  form  of  declaration  or 
in  any  form  of  action.* 

Reserving  Objections  by  Stipulation.— Objections  to  the  form  of  plead- 
ings and  proceedings  may,  however,  be  expressly  reserved  by 
stipulation.* 


a  plain,  adequate,  and  complete  remedy 
at  law  cannot  be  raised  for  the  first 
time  on  the  final  hearing  of  a  suit  in 
equity,  on  facts  agreed,  when  not 
stated  in  any  of  the  pleadings.  Rus- 
sell V.  Loring,  3  Allen  (Mass.)  121.  So 
a  case  stated  whereby  it  is  agreed  that 
judgment  shall  be  for  the  plaintiff  if 
an  action  can  be  maintained  in  any 
form,  either  at  law  or  in  equity,  waives 
all  questions  of  form  and  process. 
Second  Religious  Soc.  v.  Harriman, 
125  Mass.  321;  Graves  v.  Brinkerhoff, 
4  Hun  (N.  Y.)  305;  Logan  v.  Hall,  19 
Iowa  491;  Draught  v.  Griffith,  16  Iowa 

35- 

1.  Upon  an  agreed  case  the  only 
question  open  is  whether  the  plaintiff 
can  recover  upon  any  form  of  declara- 
tion or  in  any  form  of  action.  The 
defendant  waives  all  technical  objec- 
tions to  the  pleadings  and  form  of  ac- 
tion,but  notthequestionwhether  in  any 
form  of  action  the  plaintiff  can  recover. 
Manchester  v.  Dodge,  57  Ind.  584; 
Pennsylvania  Co.  v.  Niblack,  99  Ind. 
149;  Merrill  v.  Bullock,  105  Mass.  486; 
Folger  V.  Columbian  Ins.  Co.,  99 
Mass.  277,  96  Am.  Dec.  747;  West  Rox- 
bury  V.  Minot,  114  Mass.  546;  Gushing 
V.  Kenfield,  5  Allen  (Mass.)  307;  Cleve- 
land V.  Boston  Sav.  Bank,  129  Mass. 
27;  Haven  v.  Foster,  9  Pick.  (Mass.) 
112,  19  Am.  Dec  353;  Ellsworth  v. 
Brewer,  11  Pick.  (Mass.)  316;  Rogers 
V.  Daniell,  8  Allen  (Mass.)  343;  Moore 
V.  Philbrick,  32  Me.  102,  52  Am.  Dec. 
642;  Gardiner  v.  Nutting,  5  Me.  140, 
17  Am.  Dec.  211;  Machias  Hotel  Co. 
V.  Fisher,  56  Me.  323;  Pillsbury  v. 
Brown,  82  Me.  451. 

When  Defendant  Entitled  to  Judgment. 
— Where  there  is  a  declaration  but  no 
plea,  and  the  cause  of  action  is  stated  in 
an  agreed  case  without  reference  to  any 
particular  form  of  defense,  the  defend- 
ant is  entitled  to  judgment  if  the  facts 
stated  afford  him  a  defense  of  which 
he  might  have  availed  himself  under 
any  form  of  pleading.  Sawyer  v. 
Corse,  17  Gratt.  (Va.)  230,  94  Am.  Dec. 

445- 

2.  Objections  to  the  form  of  the 
pleadings  and  proceedings  are  waived 
unless  expressly  reserved  for  the  con- 


sideration of  the  tribunal  to  which  the 
submission  is  made.  Snow  v.  Miles,  3 
Cliff.  (U.  S.)  608;  Bixler  v.  Kunkle,  17 
S.  &  R.  (Pa.)  310.  See  subdivision 
VII.  Pleadings.  Russell  v.  Lowry,  3 
Allen  (Mass.)  121;  Haven  v.  Foster,  9 
Pick.  (Mass.)  112,  19  Am.  Dec.  353; 
Ellsworth  V.  Brewer,  11  Pick.  (Mass.) 
316;  Rogers  v.  Daniell,  8  Allen  (Mass.) 
343;  Smith  V.  Carney,  127  Mass.  179; 
Kimball  v.  Preston,  2  Gray  (Mass.)  567; 
Fay  V.  Duggan,  135  Mass.  242;  Esty  v. 
Currier,  98  Mass.  500;  Scudder  v. 
Worster,  11  Cush.  (Mass.)  573;  Folger 
V.  Columbian  Ins.  Co.,  99  Mass.  267, 
96  Am.  Dec.  747;  Gushing  jy.  Kenfield, 
5  Allen  (Mass.)  307;  Hamilton  v.  Cook 
County,  5   111.   519. 

This  rule  is  not  varied  by  the  fact 
that  the  pleadings  are  made  a  part  of 
the  agreed  case.  Kimball  v.  Preston, 
2  Gray  (Mass.)  567;  Esty  v.  Currier, 
98  Mass.  500. 

When  Plaintiff's  Right  Limited  to 
Pleadings. — Where,  however,  by  the 
terms  of  the  agreed  case,  the  plaintiff's 
right  to  recover  is  limited  to  the  plead- 
ings, the  defendant  must  have  judg- 
ment unless  the  plaintiff  can  recover 
upon  the  particular  declaration.  Com. 
V.  Worcester,  etc.,  R.  Co.,  124  Mass. 
561. 

The  cause  being  submitted  upon  an 
agreed  case,  the  decision  is  made  with- 
out reference  to  the  pleadings.  Miner 
V.  Coburn,  4  Allen  (Mass.)  136. 

Defect  of  Parties,  when  Waived.  — 
One  of  several  sureties  became  insol- 
vent, and  the  debt  was  paid  by  another. 
Where  the  latter  sought  to  obtain  con- 
tribution from  the  other  solvent  sure- 
ties, it  was  agreed  to  submit  the  con- 
troversy upon  a  case  stated,  admitting 
the  insolvency  of  a  surety  who  was 
not  made  a  party  to  the  controversy. 
Although  the  insolvent  surety  was  a 
necessary  party,  still  he  was  so  solely 
for  the  purpose  of  determining  his  sol- 
vency. Inasmuch  as  that  was  admit- 
ted, the  reason  for  his  being  m^ade  a 
party  was  removed  and  the  defect 
waived.  Weed  v.  Calkins,  24  Hun 
(N.  Y.)  582. 

Effect  of  Submission  on  an  Action  Pre- 
viously C*mmenced. — If  the  submission 


392 


Tanction  of  the  Court. 


AGREED  CASE. 


Power  of  Inference. 


4.  Rescission. — An  agreed  case  may  be  abandoned  or  rescinded 
like  any  contract. * 

V.  Function  of  the  Coitet — 1.  Power  of  Inference. — It  is  the  sole 
duty  of  the  court  to  apply  the  law  to  the  undisputed  facts  stated 
in  the  agreed  case,  and  it  has  no  power  to  draw  inferences  of 
fact,*  although  there  is  considerable  divergence  among  the  de- 


i 


of  the  case  does  not  of  itself  work  a  dis- 
continuance of  the  action,  it  must  do 
so  when  followed  by  a  judgment  and 
meanwhile  suspend  it.  Van  Sickle  v. 
Van  Sickle,  8  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  265. 

Effect  when  Fact  of  Submission  Omitted. 
— Where  an  agreed  statement  of  facts 
is  of  doubtful  interpretation  and  does 
not  contain  the  statement  that  the  case 
is  submitted  to  the  court  upon  the  facts 
so  agreed,  and  one  of  the  parties  there- 
to and  the  trial  court  interpret  it  as 
permitting  the  introduction  of  evi- 
dence to  establish  some  facts  in  issue 
by  the  pleadings,  the  only  material 
error  made  in  taking  evidence  was  the 
placing  of  the  party  who  thought  the 
submission  conclusive  at  a  disadvan- 
tage because  he  did  not  expect  to  have 
to  prove  his  case.  Kansas  City,  etc., 
R.  Co.  V.  Hines,  29  Kan.  695. 

Controverting  Facts  in  Argument. — 
Where  a  case  is  presented  to  the  court 
upon  an  agreed  statement  which  as- 
sumes without  objection  the  existence 
of  certain  facts,  such  facts  cannot  be 
controverted  in  argument  before  the 
court.  Alden  v.  Goddard,  73  Me.  345; 
Day  V.  Day,  100  Ind.  460. 

1.  An  agreed  case  may  be  aban- 
doned either  by  tacit  or  express  con- 
sent, and  subsequently  pleading  to 
the  issue  is  satisfactory  proof  of  such 
abandonment.  McLughan  v.  Bovard, 
4  Watts  (Pa.)  308;  Hart's  Appeal,  8  Pa. 
St.  32;  Darlington  v.  Gray,  5  Whart. 
(Pa.)  502. 

Leave  of  Court. — An  agreed  case  can- 
not be  withdrawn  or  the  agreement 
retracted  by  either  party  except  by 
leave  of  court  or  cause  shown.  A 
party  may  apply  for  leave  to  with- 
draw from  the  files  an  agreed  case  or 
Siuch  part  of  an  agreed  case  filed  under 
mistake  or  misapprehension.  Ish  v. 
Crane,  13  Ohio  St.  574. 

In  Vermont  an  agreed  statement  of 
facts  filed  in  the  court  is  subject  to 
the  control  of  the  court,  the  same  as 
the  pleadings,  and  the  court  may  in 
its  discretion  allow  the  same  to  be 
withdrawn.  Fayston  v.  Richmond,  25 
Vt.  446. 


2.  To  balance  evidence,  weigh  prob- 
abilities, determine  the  credibility  of 
witnesses,  or  draw  inferences  and 
thereby  determine  controverted  ques- 
tions of  fact,  are  not  among  the  pre- 
rogatives of  the  court  in  an  agreed 
case.  Pray  v.  Burbank,  11  N.  H.  290; 
Henniker  v.  Hopkinton,  18  N.  H.  loi; 
Howard  v.  Farr,  18  N.  H.  459;  Wood- 
man V.  Eastman,  10  N.  H.  359;  Sawyer 
V.  Corse,  17  Gratt.  (Va.),  248,  94  Am. 
Dec.  445;  Trafton  v.  Hill,  80  Me.  503; 
Binney  v.  Chesapeake,  etc..  Canal  Co., 
8  Pet.  (U.  S.)  216;  Byam  v.  BuUard, 

1  Curt.  (U.  S.)  104;  Pomeroy  v.  State 
Bank,  i  Wall.  (U.  S.)  592;  Beer  v. 
Simpson,  22  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  351,  where  the  residences 
of  the  parties  and  plaintiff's  assignor 
were  omitted;  Rogers  v.  Gould,  20 
Tex.  437;  Barden  T/.  St.  Louis  Mut.  L. 
Ins.  Co.,  3  Mo.  App.  248;  Ford  v. 
Cameron,  19  Mo.  App.  467;  White  v. 
Walker,  22  Mo.  433;  Henri  v.  Grand 
Lodge,  59  Mo.  581;  Shaw  v.  Padley, 
64  Mo.  519;  Lippencott  v.  Ledyard,  8 
Phila.  (Pa.)  18;  Kinsley  v.  Coyle,  58 
Pa.  St.  461;  Seiple  v.  Seiple,  133  Pa. 
St.  460;  Hazelbaker  v.  Clipper  Coal 
Co.,  158  Pa.  St.  393;  Clark  v.  Wise,  46 
N.  Y.  612,  reversing  57  Barb.  (N.  Y.) 
416;  Fearing  v.  Irwin,  55  N.  Y.  486; 
Brown  v.  Evans,  15  Kan.  88;  Gray  v. 
Crockett,  30  Kan.  148;  Crandall  v. 
Amador  County,  20  Cal.  72;  Fisher  v. 
Purdue,  48  Ind.  323;  Frazier  v.  Spear, 

2  Bibb  (Ky.)  385;  Goodrich  v.  Detroit, 
12  Mich.  279;  Engstron  v.  Brightman, 
5  C.  B.  419,  57  E.  C.  L.  418.  The  court 
is  restricted  to  the  facts  admitted. 
Green  v.  Fresno  County,  95  Cal.  329. 

Judge's  or  Special-Term  Order. — When 
an  agreed  case  stated  that  an  order  of 
publication  had  been  made  at  a  Special 
Term  when  it  should  have  been  made 
by  a  judge,  the  court  held  that  it  could 
not  under  the  agreed  case  disregard 
the  caption  and  consider  the  order  a 
judge's  order.  Crosby  v.  Thedford, 
7  Civ.  Pro.  Rep.  (N.  Y.  C.  PI.)  245. 

Only  Questions  of  Law  can  be  Con- 
sidered.— The  court  can  only  respond 
to  the  questions  of  law  arising  upon 
the  admitted  facts.     The  inference  of 


393 


Function  of  the  Court. 


AGREED  CASE. 


Abstract  Questions. 


cisions  as  to  the  right  of  the  parties  to  grant  that  power  to  the 
court  by  stipulation.^ 

2.  Abstract  Questions. — The  court  will  not  consider  mere  specu- 
lative or  fictitious  questions  if  submitted  upon  an  agreed  case.* 


one  fact  from  another  is  a  question  of 
fact  and  not  of  law,  and  this  inference 
must  be  drawn  by  a  jury;  and  it 
would  be  travelling  out  of  th'e  prov- 
ince of  the  court  as  well  as  the  agree- 
ment in  this  case  if  the  court  were  to 
infer  another  fact,  and  pronounce 
the  law  arising  thereon.  Bott  v.  Mc- 
Coy, 20  Ala.  578,  56  Am.  Dec.  223; 
Crandall  v.  Amador  County,  2oCal.  73. 

Necessary  Inferences. — No  inferences 
of  fact  can  be  drawn  unless,  as  matter 
of  law,  they  are  necessary  inferences. 
Mayhew  v.  Durfee,  138  Mass.  584. 
The  court  must  give  effect  to  pre- 
sumptions that  of  necessity  arise  from 
conceded  facts.  Hovey  v.  Chisholm, 
56  Hun  (N.  Y.(  328;  Sawyer  v.  Corse, 
17  Gratt.  (Va.)  230,  94  Am.  Dec.  445; 
Ramsey  v.  McCue,  21  Gratt.  (Va.)  349. 

The  court  can  make  no  inferences, 
unless  of  law,  or  such  as  are  unde- 
niable consequences  resulting  from 
the  facts  agreed  upon.  Vansant  v. 
Roberts,  3  Md.  119;  Hysinger  v.  Balt- 
zell,  3  Gill  &  J.  (Md.)  159;  Van  Brunt 
V.  Pike,  4  Gill  (Md.)  270,  45  Am.  Dec. 
126;  Wright  V.  Wright,  2  Md.  430,  56 
Am.  Dec.  723;  McTavish  v.  Carroll,  7 
Md.  352,  61  Am.  Dec.  353;  McColgan 
V.  Hopkins,  17  Md.  395;  Stewart  v. 
State,^2  Har.  &  G.  (Md.)  114;  Reeside 
V.  Fischer,  2  Har.  &  G.  (Md.)  320. 
But  no  material  fact  should  be  left 
for  inference  when  the  fact  is  suscep- 
tible of  definite  statement.  Kneller  v. 
Lang,  137  N.  Y.  589. 

It  could  never  have  been  the  intent 
of  the  statute  to  provide  expressly  for 
a  mere  stipulation  concerning  evi- 
dence, which  should  allow  the  court 
to  draw  inferences  from  inconclusive 
facts,  without  the  power  of  removing 
doubt  by  further  proof.  Goodrich  v. 
Detroit,  12  Mich.  279.  But  see  Spring 
V.  Davis,  36  Me.  399,  to  the  effect  that 
the  court  has  power  to  infer  facts 
dehors  the  agreed  case,  although  such 
power  be  not  expressly  given. 

1.  The  power  which  the  jury  has  of 
inferring  is  often  preserved  to  the 
court  by  a  clause  to  the  effect  that  the 
court  may  make  such  inferences  from 
the  facts  agreed  upon  as  a  jury  might 
reasonably  make.  Crane  v.  Whitte- 
more,  4  Mo.  App.  510;  Tyson  v.  West- 


ern Nat.  Bank,  77  Md.  412;  Jackson  zr. 
Salisbury,  66  Md.  459;  Doe  v.  Crisp, 
I  P.  &  D.  37;  Latter  v.  White,  5  H. 
L.  Cas.  587;  but  the  court  may  decline 
to  pass  upon  a  question  of  fraud, 
Whitmore  v.  Claridge,  10  W.  R.  1057; 
Bullen  V.  Sharp,  L.  R.  i  C.  P.  86. 
And  see  Spring  v.  Davis,  36  Me.  399; 
but  see,  contra.  Pray  v.  Burbank,  11 
N.  H.  290,  to  the  effect  that  the  assent 
and  request  of  the  parties  can  impose 
no  duty  upon  the  court  to  make  infer- 
ences of  fact;  and  see  Rand  v.  Hanson, 
154  Mass.  87. 

2.  Campbell  v.  Talbot,  132  Mass. 
174;  Capen  v.  Washington  Ins.  Co.,  12 
Cush.  (Mass.)  517;  McKethan  v.  Ray, 
71  N.  Car.  165;  Newark  R.  Co.  v. 
Perry  County,  30  Ohio  St.  120;  People 
V.  Mutual  Endowment  Assoc,  92  N.  Y. 
622;  Troy  Waste  Mfg.  Co.  v.  Harri- 
son, 73  Hun  (N.  Y.)  528;  Williams  v. 
Rochester,  2  Lans.  (N.  Y.)  169;  Wash- 
burn V.  Baldwin,  10  Phila.  (Pa.)  472; 
Com.  V.  Cleveland,  etc.,  R.  Co.,  29 
Pa.  St.  370;  Witz  V.  Dale,  129  Ind.  120; 
Wellesley  v.  Withers,  4  El.  &  Bl.  750, 
82  E.  C.  L.  750. 

No  Hypothetical  Case  Can  Be  Submitted. 
— Something  more  substantial  than  a 
hypothetical  case  must  be  presented, 
and  it  must  appear  that  some  practical 
result  in  the  case  will  follow  the  de- 
cision. Sceva  V.  True,  53  N.  H.  627; 
Scheer  v.  Bedford,  62  N.  H.  691;  State 
V.  Stevens,  36  N.  H.  59;  Wood  v. 
Squire,  60  N.  Y.  191,  where  it  is  stated 
that  it  is  not  within  the  purview  of 
section  372  of  the  N.  Y.  Code  of  Pro- 
cedure that  certain  legal  interrogato- 
ries should  be  propounded  to  the  court, 
not  decisive  of  the  proper  judgment 
to  be  rendered  on  the  facts  stated, 
with  the  intention  Jhat  the  event  of  the 
answer  should  determine  a  judgment 
previously  agreed  upon  by  the  parties. 

Court  Will  Not  Decide  Preliminary 
Questions. — The  court  will  not  act 
upon  a  stated  case  by  which  only  a 
preliminary  question,  not  the  merits, 
will  be  decided.  Austin  v.  Wilson,  7 
Mass.  205. 

A  Fraud  Upon  the  Court. — An  agreed 
case  gotten  up  without  any  foundation 
in  fact  would  be  a  fraud  upon  the 
court,    and  Would   be  treated  accord- 


394 


Fnnction  of  the  Court. 


AGREED  CASE. 


Amendment* 


The  submission  must  be  made  in  good  faith.* 

3.  Power  to  Amend. — The  court  having  no  power  to  amend  aa 
agreed  case,  because  of  the  solemnity  of  the  agreement  entered 
into  between  the  parties,*  it  will  not  direct  an  amendment  on  the 
application  of  one  of  the  parties.'  In  some  cases,  however,  the 
court  will  grant  relief  from  the  consequences  of  an  omission  of 
facts  by  mistake.* 


ingly  at  any  stage  of  the  cause.     State 
V.  Wilson,  2  Lea  (Tenn.)  204. 

1.  The  court  refused  to  give  judg- 
ment in  a  special  case  stated  under  3 
4  Wm.  IV,  ch.  42,  §  25,  it  appear- 
ing that  the  action  was  not  brought 
in  good  faith  to  try  a  question  really 
in  contest  between  the  parties  to  the 
cause.  Doe  v.  Duntze,  6  C.  B.  100,  60 
E.  C.  L.  99. 

2.  In  an  action  submitted  upon  an 
agreed  case,  judgment  was  ordered  for 
the  plaintiff  according  to  the  agree- 
ment which  defined  the  relief  to  which 
the  plaintiff,  if  successful,  would  be  en- 
titled. A  motion  made  to  change  the 
nature  of  the  relief  in  accordance  with 
a  later  decision  of  the  Court  of  Appeals 
was  denied,  on  the  ground  that  the 
court  had  no  authority  to  change  the 
nature  of  the  relief  agreed  upon. 
Kingsland  v.  New  York,  42  Hun  (N.Y.) 

599- 

The  court  will  not  amend  by  insert- 
ing a  fact  known  when  the  agreed  case 
was  drawn,  nor  will  it  insert  a  new  fact 
if  the  fact  would  not  change  the  judg- 
ment. Ganthony  v.  Witten,  16  W.  R. 
61,  17  L.  T.  N.  S.  117;  Hills  V.  Hunt, 
15  C.  B.  I,  80  E.  C.  L.  I. 

3.  The  parties  to  an  agreed  case 
make  their  own  agreements,  and  the 
court  cannot  alter  them  on  the  motion 
of  one  of  them.  Bell  v.  Twilight,  17 
N.  H.  528,  45  Am.  Dec.  367;  Pennington 
V.  Cardale,  10  W.  R.  544;  Mersey  Dock, 
etc.,  Com'rs  v.  Jones,  6  Jur.  N.  S.  960, 
29  L.  J.  C.  P.  239,  8  C.  B.  N.  S.  124,  98 
E.  C.  L.  114. 

4.  The  court  may  grant  relief  when 
a  case  was  agreed  to  under  a  mistake. 
Levy  V.  Sheehan,  3  Wash.  420;  State  v. 
Porter,  86  Ind.  404;  Bell  v.  Twilight, 
17  N.  H.  528,  45  Am.  Dec.  367. 

A  party  may  apply  to  the  court  for 
leave  to  withdraw  from  the  files  an 
agreed  case,  or  such  part  thereof  as 
was,  in  fact,  untrue,  and  had  been 
assented  to  under  mistake  or  misappre- 
hension. Ish  V.  Crane,  13  Ohio  St. 
574.  580. 

When  Injustice  Will   Be   Done.  —  No 


amendment  will  be  allowed  unless  it  is 
made  clear  that  without  it  the  rights  of 
a  party  will  be  sacrificed  or  plain  in- 
justice done.  Wiswell  v.  First  Cong. 
Church,  14  Ohio  St.  31. 

Instances  of  Allowance  of  Amendment. 
— Where  an  action  is  submitted  upon 
a  case  stated  by  the  parties,  but  the 
agreement  does  not  limit  the  plaintiff's 
right  of  recovery  to  the  particular 
form  in  which  the  action  is  brought, 
the  writ  may  be  amended  in  the  court 
into  another  form  of  action,  of  which 
that  court  has  original  jurisdiction, 
although  it  has  no  jurisdiction  of  the 
action  in  the  form  in  which  it  was  first 
brought.  A  landlord-and-tenant  pro- 
cess maybe  amended  into  an  action  of 
ejectment  when  the  agreed  case  would 
support  such  an  action.  Merrill  v. 
Bullock,  105  Mass.  486;  Folger  v.  Co- 
lumbian Ins.  Co.,  99  Mass.  267,  96  Am. 
Dec.  747.  An  amendment  was  allowed 
so  as  to  set  forth  truly  the  date  of  the 
judgment.  Hervey  v.  Edmunds,  6S 
N.  Car.  243;  Grant  v.  Newsom,  81  N. 
Car.  36.  Where  it  appeared  that  some 
of  the  facts  were  recited  in  exhibits 
which  were  not  attached,  and  that 
leave  was  given  to  the  parties  to  add 
other  matters,  the  cause  was  remanded 
to  be  completed.  Piedmont  R.  Co.  v. 
Reidsville,  loi  N.  Car.  404. 

When  Application  to  Amend  an  Agreed 
Case  Must  Be  Made. — If  the  parties  de- 
sire the  case  to  be  amended  or  dis- 
charged, steps  must  be  taken  to  effect 
the  object  before  the  decision  is  an- 
nounced. Osgood  V.  Blake,  21  N.  H. 
570;  Goodrich  v.  Eastern  R.  Co.,  38 
N.  H.  390. 

How  to  Proceed  to  Amend. — If  the  ad- 
mission were  improvidently  made,  the 
injured  party  has  his  remedy  by  mo- 
tion to  strike  out  or  amend  the  admis- 
sion; but  while  it  exists  in  the  case  it 
would  appear  to  be  conclusive.  Fear- 
ing V.  Irwin,  4  Daly  (N.  Y.)  385,  af- 
firmed 55  N.  Y.  486. 

Where  there  is  a  clear  and  palpable 
mistake  in  an  agreed  case  and  in  the 
judgment  thereon,  the  court  at  special 


395 


Tunction  of  the  Court. 


AGREED  CASE. 


Power  te  Bischarge. 


4.  Power  to  Discharge. — The  court  has  power  to  discharge  an 
agreed  case  when  the  facts  are  insufficiently  stated,^  when  there 
is  a  defect  of  parties,''*  when  a  valid  judgment  cannot  be  rendered 
upon  the  facts  stated,^  and  when  material  facts  have  been  omitted 
or  are  disputed."* 


term  is  authorized,  upon  motion  of  the 
aggrieved  party,  to  correct  such  mis- 
take.    State  V.  Porter,  86  Ind.  404. 

1.  When  Facts  Insufficiently  Stated. — 
If  through  inadvertence  the  facts  are 
not  sufficiently  stated,  the  agreed  case 
will  be  discharged,  and  the  case  re- 
manded to  the  court  below  for  further 
proceedings.  Old  Colony  R.  Co.  v. 
Wilder,  137  Mass.  536;  Phelps  v. 
Phelps,  145  Mass.  416;  Smith  v.  Cud- 
worth,  24  Pick.  (Mass.)  196;  Gregory 
V  Pierce,  4  Met.  (Mass.)  478;  Merriam 
^.  Merriam,  6  Cush.  (Mass.)  91;  Morse 
Tj.  Mason,  103  Mass.  560;  Meserve  v. 
Andrews,  104  Mass.  360;  Powers  v. 
Provident  Sav.  Inst.,  122  Mass.  443; 
Richardson  v.  Boston,  148  Mass.  513; 
Gage  V.  Gates,  62  Mo.  412;  Carr  v. 
Lewis  Coal  Co.,  96  Mo.  149,  9  Am.  St. 
Rep.  328;  James  v.  Mc Williams,  6 
Munf.  (Va.)2i2;  Brewer z/.  Opie,  i  Call. 
(Va.)  222;  Ford  v.  Buchanan,  in  Pa. 
St.  31. 

2.  Plaintiff  and  one  C.  were  both 
appointed  to  the  same  office.  Agreed 
case  discharged  because  C.  was  not 
made  a  party  with  the  city.  Kennedy 
V.  New  York,  79  N.  Y.  361. 

When  Each  Has  Claim  Against  Third 
Party. — Likewise  when  each  party  has 
no  claim  against  the  other,  though  they 
have  against  a  third  party.  Bates  v. 
Lilly,  60  N.  Car.  232.  Likewise  if  the 
judgment  properly  demanded  would 
be  rendered  nugatory  by  a  defect  of 
parties.  Wood  v.  Squires,  60  N.  Y. 
191,  reversing  i  Hun  (N.  Y.)  481; 
Wavle  V.  Tuttle,  11  N.  Y.  Wkly.  Dig. 
186;  Dickinson  v.  Dickey,  76  N.  Y.  602; 
Hodgdon  v.  Darling,  61  N.  H.  582. 
■  3.  If  no  judgment  can  be  rendered 
upon  the  facts  in  the  agreed  case,  it 
will  be  discharged.  Cunard  S.  S.  Co. 
V.  Voorhis,  104  N.  Y.  528;  Paterson  v. 
Mutual  L.  Assoc,  of  America,  19  Civ. 
Pro.  Rep.  (N.  Y.  Super.  Ct.)262;  Frazer 
V.  Miller,  12  Kan.  459;  Whitesides  v. 
Russell,  8  W.  &.  S.  (Pa.)  44;  Holmes  v. 
Wallace,  46  Pa.  St.  268;  Union  Sav. 
Bank  v.  Fife,  loi  Pa.  St.  388;  Kinsley 
V.  Coyle,  58  Pa.  St.  461;  Clark  v.  Hal- 
berstadt,  i  Miles  (Pa.)  26;  Holmes  v. 
Wallace,  46  Pa.  St.  266. 

Injunction  the    Only   Belief. — Where 


an  injunction  is  the  only  relief  that  can 
be  awarded,  the  agreed  case  must  be 
discharged.  Paterson  v.  Mutual  L. 
Assoc.  (Super.  Ct.),  33  N.  Y.  St.  Rep. 
703;  People  V.  Binghamton  Trust  Co. 
(Supreme  Ct.),  20  N.  Y.  Supp.  179. 
And  likewise  where  the  judgment  to 
be  entered  is  not  provided  for  in  the 
agreed  case.  Marine  Bank  v.  Mer- 
chants' Bank,  12  Gill  &  J.  (Md.)  498; 
Burgess  v.  Pue,  2  Gill  (Md.)  254. 

4.  Some  Misapprehension  Must  Be 
Shown. — Upon  an  application  to  dis- 
charge a  case,  it  must  appear  that  the 
agreement  was  entered  into  under 
some  misapprehension  of  the  facts,  or 
that  material  facts  have  subsequently 
been  discovered,  that  due  diligence  was 
used  in  the  preparation  of  the  agreed 
case,  and  due  caution  exercised  in 
entering  into  the  agreement.  Wells  v. 
Jackson  Iron  Mfg.  Co.,  48  N.  H.  526; 
Heywood  v.  Wingate,  14  N.  H.  73; 
Gregory  v.  Pierce,  4  Met.  (Mass.)  480; 
Piatt  V.  Superior  Ct.,  124  Mass.  353; 
Old  Colony  R.  Co.  v.  Wilder,  137  Mass. 
537;  Com.  V.  Gloucester,  no  Mass.  491; 
Shannon  v.  Shannon,  10  Allen  (Mass.) 
249;  Bryan  v.  Bates,  12  Allen  (Mass.) 
205;  Com.  V.  Scott,  123  Mass.  418; 
Davila  v.  Herring,  i  Str.  300;  Hankey 
V.  Smith,  3  T.  R.  507;  Wheldon  v. 
Matthews,  2  Chit.  Rep.  399,  18  E.  C.  L. 
378,  2  Tidd  Pr.  899  ;  Cook  v.  Shrauder, 
25  Pa.  St.  312;  Com.  V.  Howard,  149 
Pa.  St.  302;  Odell  v.  Cromwell,  10 
N.  Y.  Wkly.  Dig.  273;  Matter  of  Smith, 
9  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.)452. 

Court  will  Not  Act  as  a  Jury. — The 
court  will  not  assume  the  office  of  a 
jury  in  deciding  upon  a  special  case 
submitted  byagreement  of  the  parties, 
when  the  principal  questions  are  ques- 
tions of  fact,  to  be  decided  upon  the 
conflicting  testimony  of  witnesses 
whose  credibility  is  a  matter  of  ques- 
tion. Brockbank  z'.  Anderson,  7  Scott 
N.  R.  813,  13  L.  J.  C.  P.  102;  Burr  v. 
Des  Moines  R.,  etc.,  Co.,  i  Wall.  (U.S.) 
99;  Pomeroy  v.  State  Bank,  i  Wall. 
(U.  S.)  592;  Brown  v.  Rogers,  61  Ind. 
449;  Old  Colony  R.  Co.  v.  Wilder,  137 
Mass.  537;  Gregory  v.  Pierce,  4  Met. 
(Mass.)  478;  Lefavour  v.  Homan,  3 
Allen   (Mass.)  354;    Morse  v.  Mason, 


596 


Function  of  the  Court. 


AGREED  CASE. 


Miscellaneous  Powers. 


5.  Miscellaneous  Powers. — It  is  the  function  of  the  court  to 
deduce  the  proper  legal  conclusions  from  the  facts  ascertained  by 
the  parties.*  It  must  pass  upon  the  case  as  stated,  and  cannot  go 
outside  of  it.     Neither  can  counsel  in  argument.* 


103  Mass.   560;  Meserve  v.    Andrews, 

104  Mass.  360. 

Where  there  is  an  essential  fact  in 
dispute,  as,  for  example,  whether  nat- 
ural gas  is  a  volatile  substance  or  not, 
the  Supreme  Court  will  quash  a  case. 
Ford  V.  Buchanan,  iii  Pa.  St.  31. 

Must  Contain  All  Essential  Facts. — If 
the  agreed  case  does  not  contain  every 
fact  essential  to  the  recovery  by  the 
plaintiff  on  the  cause  of  action  alleged 
in  the  petition,  such  omission  is  fatal 
to  his  right  of  recovery.  Field  v.  Chi- 
cago, etc.,  R.  Co.,  21  Mo.  App.  600. 

Miscellaneous.  —  Subsequent  bank- 
ruptcy insufficient  to  discharge.  Hey- 
wood  V.  Wingate,  14N.  H.  73.  Where 
the  agreed  case  sets  forth  testimony 
in  place  of  facts,  it  will  be  discharged. 
Powers  V.  Provident  Sav.  Inst.,  122 
Mass.  443.  But  it  will  not  be  dis- 
charged for  failure  to  set  out  a  foreign 
law  as  a  fact.  Chase  v.  Alliance  Ins. 
Co.,  9  Allen  (Mass.)  311.  Where  the 
same  attorney  prepared  the  agreed 
case  and  the  briefs  of  both  parties,  it 
will  be  discharged.  Wood  v.  Nesbitt 
(Supreme  Ct.),  19  N.  Y.  Supp.  423. 
And  where  the  Attorney-General 
moved  to  discharge  an  agreed  case, 
motion  was  denied  because  he  was  not 
a  party.  Berlin  Iron  Bridge  Co.  v. 
Wagner  (Supreme  Ct.),  32  N.  Y.  St. 
Rep.  119.  But  there  will  be  no  dis- 
charge upon  a  technicality,  Jennison 
V.  Roxbury,  9  Gray  (Mass.)  32;  though 
it  will  be  discharged  if  the  court  is 
called  upon  to  decide  collaterally  a 
question  of  public  right,  Loring  v. 
Bridge,  9  Mass.  124.  Case  will  not  be 
discharged  when  it  will  work  injustice. 
Bell  V.  Twilight,  17  N.  H.  528,  45  Am. 
Dec.  367.  Where  a  cause  is  submitted 
upon  an  agreed  case,  a  judgment  en- 
tered upon  the  report  of  a  master  ap- 
pointed to  hear  and  determine  the  facts 
of  the  cause  will  be  reversed  and  the 
agreed  case  quashed.  Frailey  v.  Le- 
gion of  Honor,  132  Pa.  St.  578;  Phelps 
V.  Phelps,  145  Mass.  416. 

When  the  Agreed  Case  May  Be  Dis- 
missed.— Even  after  judgment  for  de- 
fendant at  Common  Pleas  and  an  ap- 
peal to  the  Supreme  Court,  the  agreed 
case  may  be  discharged.  Lowell  v. 
Merrimac  Mfg.  Co.,  11  Gray  (Mass.) 
382;  West  V.  Piatt,  124  Mass.  353;  Morse 


V.  Mason,  103  Mass.  560;  Perkins  v. 
Langmaid,  36  N.  H.  501;  Cook  v. 
Shrauder,  25  Pa.  St.  312.  But  if  party 
seeking  discharge  is  guilty  of  laches, 
the  agreed  case  will  not  be  discharged. 
Page  V.  Brewsters,  54  N.  H.  1S7.  A 
motion  to  discharge  a  case  agreed  must 
be  made  before  the  decision  is  an- 
nounced. Osgood  V.  Blake,  21  N.  H. 
570;  Goodrich  v.  Eastern  R.  Co.,  38 
N.  H.  390. 

An  agreed  case  is  under  the  control 
of  the  court  after  it  is  filed,  and  leave 
of  the  court  must  be  obtained  to  with- 
draw it.  Ish  V.  Crane,  13  Ohio  St.  574; 
Fayston  v.  Richmond,  25  Vt.  446. 

Beference  for  Facts  to  Annexed  Affi- 
davits.— A  case  stated  that  is  not  clear" 
and  explicit  in  itself,  but  refers  to  affi- 
davits appended  thereto  for  the  facts, 
may  be  quashed  on  account  of  the  in- 
artificial form  in  which  it  is  drawn. 
Hemphill  v.  Yerkes,  132  Pa.  St.  545. 
But  see  Piedmont  R.  Co.  v.  Reidsville, 
loi  N.  Car.  404,  where  it  appeared 
that  some  of  the  facts  were  recited  in 
exhibits  which  were  not  attached,  and 
that  leave  was  given  to  the  parties  to 
add  other  matters,  the  case  was  re- 
manded to  be  completed. 

Keceiver's  Powers  as  to  Agreed  Cases.. 
— Can  a  receiver  submit  a  controversy, 
quaere.  Waring  v.  O'Neill,  15  Hun 
(N.  Y.)  105.  It  is  a  serious  matter  to 
disturb  a  carefully-drawn  agreed  state- 
ment of  facts  upon  which  a  cause  has 
been  tried,  and  it  would  not  be  done 
between  private  litigants  in  the  ab- 
sence of  any  unfairness;  yet  such  an 
agreement  between  a  receiver  and 
another  party  to  a  suit  may  be  set 
aside  and  a  rehearing  had,  upon  al- 
legation of  mistake  on  the  part  of  the 
receiver,  he  being  an  officer  of  the 
court  and  representing  many  claimants 
to  a  fund.  Matter  of  Smith,  9  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  452. 

Vacating  Submission. — The  court  has 
no  power  to  vacate  the  submission,  or 
to  refer  the  facts  to  the  determination 
of  a  jury.  Neilson  v.  Com.mercial 
Mut.  Ins.  Co.,  3  Duer  (N.  Y.)  444. 

1.  Barden  v.  St.  Louis  L.  Ins.  Co.,  3 
Mo.  App.  248. 

2.  Doe  V.  Lewis,  i  Burr.  617;  Pike  v. 
Carter,  3  Bing.  835,  11  E.  C.  L.  41. 

When  Court  Will  Declare  Agreed  Case; 


397 


Practice. 


AGREED  CASE. 


FartiM. 


VI.  Peactice — 1.  Parties. — The  parties  to  the  question  of  differ- 
ence are  all  those  who  have  any  interest  therein  and  whose  rights 
may  be  affected  by  the  judgment.*  An  agreed  case  will  be  dis- 
missed if  the  necessary  parties  are  not  voluntarily  before  the 
court.* 


Void. — "  The  submission  of  a  contro- 
versy upon  an  agreed  case  is  a  con- 
tract of  a  high  and  solemn  nature, 
and  it  is  only  upon  the  fullest  evi- 
dence of  fraud  or  mutual  error  that 
a  court  of  equity  would  ever  adjudge 
it  to  be  void;  and  then  only  in  a  form 
in  which  their  decision  might  be  re- 
viewed and,  if  erroneous,  reversed. 
"What  we  are  therefore  asked  to  do  is 
not  merely  to  vacate  the  judgment 
and  order  a  new  trial,  but  to  vacate 
the  submission  and  annul  the  case  to 
which  the  parties  have  agreed,  so  as 
to  enable  the  plaintiff  to  contest  be- 
fore a  jury  the  facts  she  has  admitted 
to  exist.  It  is  exceedingly  clear,  how- 
ever, that  we  have  no  such  power,  and 
that  were  the  submission  and  case  set 
aside  our  jurisdiction  would  cease.  It 
was  the  consent  of  the  parties  in  the 
form  prescribed  by  the  Code  that 
alone  gave  us  jurisdiction."  Lang  v. 
Ropke,  I  Duer  (N.  Y.)  701;  Neilson  v. 
Commercial  Mut.  Ins.  Co.,  3  Duer 
(N.  Y.)455. 

Agreed  Case  Obtained  by  Fraud. — The 
court  has  the  right  to  ascertain  wheth- 
er an  agreed  case  has  been  obtained 
through  fraud.  Keith  v.  Rucker,  16 
111.  389. 

Nature  of  Relief  to  be  Granted. — The 
court  is  bound  to  give  such  judgment 
as  the  facts  require,  whether  the  relief 
be  legal  or  equitable.  Graves  v. 
Brinkerhoff,  4  Hun  (N.  Y.)  305;  Logan 
V.  Hall,  19  Iowa  491;  Braught  v.  Grif- 
fith, 16  Iowa  35;  Baugh  v.  Barrett,  69 
Iowa  495;  Russell  v.  Loring,  3  Allen 
(Mass.)  121;  Second  Religious  Soc.  v. 
Harriman,  125  Mass.  321. 

Not  Necessary  for  Court  to  Hake  Find- 
ings.— It  would  be  unreasonably  tech- 
nical to  hold  that  the  court  below 
erred  in  not  mechanically  transcribing 
what  already  sufficiently  appeared  in 
the  record  of  the  case.  Frush  v.  East 
Portland,  6  Oregon  281;  White  v. 
Walker,  22  Mo.  433. 

Receiver's  Application. — On  applica- 
tion of  a  receiver  the  court  may  direct 
a  referee  to  ascertain  the  facts  with- 
out regard  to  an  agreed  statement  be- 
tween the  original  parties;  but  in  case 
of  laches  the  court  will  impose  terms. 


Matter  of  Smith,  9  Abb.   N.  Cas.  (N, 
Y.  Supreme  Ct.)  452. 

1.  Effect  of  Defect  of  Parties. — A  por- 
tion of  them  cannot  agree  upon  a  case 
and  submit  it  to  the  court,  and  so  give 
the  court  jurisdiction  to  cause  the 
others  to  be  brought  in.  No  one  can 
be  made  a  party  to  the  agreed  case 
without  his  consent.  Nor  is  it  a  case 
where  the  court  may  determine  the 
controversy  between  the  parties  be- 
fore it  without  prejudice  to  the  rights 
of  others  by  saving  their  rights.  Ho- 
bart  College  v.  Fitzhugh,  27  N.  Y.  130; 
Union  Nat.  Bank  v.  Kupper,  63  N.  Y. 
617;  Buffalo  V.  Mackay,  15  Hun  (N.  Y.) 
204. 

No  Action  Without  a  Defendant. — In- 
asmuch as  section  1280  provides  that 
upon  filing  the  papers  in  the  sub- 
mission the  controversy  becomes  an 
action,  and  judgment  is  to  be  ren- 
dered as  in  an  action,  there  can  be  no 
action  without  two  parties,  and  no 
judgment  without  a  defendant.  Dick- 
inson V.  Dickey,  76  N.  Y.  602. 

Where  the  Attorney-General  moved  to 
discharge  an  agreed  case  to  which  he 
was  not  a  party,  his  motion  was  de- 
nied. Berlin  Iron  Bridge  Co.  z/.  Wagner 
(Supreme  Ct.),  32  N.  Y.  St.  Rep.  119. 

2.  Wavle  v.  Tuttle,  11  N.  Y.  Wkly. 
Dig.  186;  Kennedy  v.  New  York,  79 
N.  Y.  361;  Wood  V.  Squires,  60  N.  Y. 
191,  reversing  i  Hun  (N.  Y.)  481; 
Bates  V.  Lilly,  65  N.  Car.  232. 

Defendant  Without  Interest.  —  An 
agreed  case  in  which  the  defendant 
has  no  interest  does  not  authorize  a 
decision  of  a  controversy  between  the 
plaintiff  and  other  persons  who  are 
not  parties  to  the  suit.  Hodgdon  v. 
Darling,  61  N.  H.  582. 

Parties  Must  Be  Voluntarily  Before  the 
Court. — The  court  will  decline  to  ac- 
cept the  submission  of  a  cause  against 
the  wishes  of  those  collaterally  inter- 
ested. St.  Louis  Smelting,  etc.,  Co. 
V.  Kemp,  103  U.  S.  666. 

Heirs-at-Law. — An  action  in  the  na- 
ture of  a  suit  by  an  executor,  for  in- 
structions as  to  his  duty,  was  sub- 
mitted by  a  widow  and  an  adminis- 
trator. Where  it  appeared  that  a  de- 
cision  in    favor  of   the  widow  would 


398 


Practice. 


AGREED  CASE. 


Costs. 


2.  Costs. — The  hearing  of  a  controversy  submitted  upon  an 
agreed  statement  of  facts  is  a  trial  of  the  issues  of  law  arising  upon 
the  admitted  facts.*  In  such  cases  costs  are  taxable,  and  an 
extra  allowance  may  be  granted  in  a  proper  case.'-* 

olina  to  be  that  the  agreed  case  must 
be  signed  by  the  parties  as  well  as  by 
the  attorneys.  See  also  for  the  rule  in 
/nt/tana, Booth  v.  Cottingham,  126  Ind. 
431,  to  the  effect  that  it  will  be  suf- 
ficient if  signed  by  one  of  the  parties, 
and  by  the  attorney  for  the  other. 

When  Trustee  Need  Not  Sign. — In  a 
trustee  process  an  agreed  case  upon 
the  question  whether  a  claimant  has 
a  valid  assignment  of  the  funds  in  the 
hands  of  the  trustee  need  not  be 
signed  by  the  trustee.  Segee  v. 
Downes,  143  Mass.  240,  distinguishing 
Massachusetts  Nat.  Bank  v.  Bullock, 
120  Mass.  86. 

1.  Richards  v.  James,  16  L.  T.  N. 
S.  672;  Neilson  v.  Mutual  Ins.  Co.,  3 
Duer  (N.  Y.)  683. 

An  Agreed  Case  an  Action. — A  con- 
troversy submitted  upon  an  agreed 
case  is,  when  the  affidavit  of  reality 
and  the  agreed  case  are  filed,  an  ac- 
tion in  which  a  defense  is  interposed; 
and  the  hearing  upon  such  a  submis- 
sion is  practically  the  trial  of  an  issue 
of  law.  Kingsland  v.  New  York,  16 
Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.) 
323,  52  Hun  (N.  Y.)  98.  When  a  con- 
troversy is  submitted  upon  an  agreed 
case,  it  carries  with  it  the  idea  of  a 
claim  of  some  kind  on  one  side,  which 
is  opposed  and  defended  on  the  other, 
and  it  is  a  defense  within  the  meaning 
of  §  3253  of  the  Code  of  Civil  Proce- 
dure. People  V.  Fitchburg  R.  Co.  (Su- 
preme Ct.),  44  N.  Y.  St.  Rep.  229. 

2.  Costs  Controlled  by  Stipulation. — 
In  Neti'  York  the  court  at  Genera! 
Term  held  that  the  stipulation  of  the 
parties  determined  whether  costs 
should  be  awarded.  Held,  in  People  v. 
Fitchburg  R.  Co.  (Supreme  Ct.),  44  N. 
Y.  St.  Rep.  229,  that  where  the  parties 
stipulated  that  the  prevailing  party 
should  have  costs,  they  abridged  or 
restricted  the  exercise  by  the  court  of 
the  discretion  vested  in  it.  The  stipu- 
lation must  be  substituted  for  the  ex- 
ercise of  any  discretion  by  the  court. 
In  Fish  V.  Coster,  28  Hun  (N.  Y.)  64, 
there  was  a  stipulation  that  judgment 
be  given  in  favor  ot  the  prevailing 
party  with  costs  and  disbursements, 
and  in  that  case  it  was  held  that  the 
stipulation    controlled,    and    that   no 


charge  the  decedent's  debts  upon  the 
real  estate  and  involve  a  consideration 
of  what  purported  to  be  a  release  of 
dower,  made  in  the  lifetime  of  the 
husband,  it  was  held  that  the  heirs-at- 
law  were  necessary  parties.  Wavle  v. 
Tuttle,  II  N.  Y.  Wkly.  Dig.  186. 

Defect  of  Parties  May  Be  Waived. — 
See  Weed  v.  Calkins,  24  Hun  (N.  Y.) 
582,  under  subdivision  of  this  article 
entitled  "  Waiver." 

Infants  as  Parties. — An  infant  cannot 
sign  on  agreed  case,  because  incapa- 
ble of  binding  himself  by  contract, 
and  there  is  no  statute  that  author- 
izes the  appointment  of  a  guardian 
for  an  infant  to  appear  for  him  in  a 
controversy  without  action.  Fisher  v. 
Stilson,  9  Abb.  Pr.  (N.Y.  Supreme  Ct.) 
33.  An  agreed  case  is  in  effect  an 
admission  of  the  truth  of  certain  facts, 
substantially  in  the  same  manner  as  if 
they  were  admitted  in  pleadings  in  an 
action.  It  is  a  well-known  principle 
that  no  guardian  ad  litem  can  make 
an  admission  in  behalf  of  infants. 
Lathers  v.  Fish,  4  Lans.  (N.  Y.)  213; 
Baumgrass  v.  Brickell  (Supreme  Ct.), 
7  N.  Y.  St.  Rep.  685;  but  see  Smith 
■V.  Carney,  127  Mass.  179,  to  the  ef- 
fect that  if  an  infant  plaintiff  sue 
without  the  intervention  of  a  pro- 
chein  ami,  and  the  facts  are  stated 
in  an  agreed  case,  the  defect  is  waived 
by  defendant.  If  the  defect  had  been 
pleaded  in  abatement,  the  writ  or  dec- 
laration could  have  been  amended  in 
any  way  necessary  to  put  his  case  in 
proper  form  to  support  the  judgment 
to  which   the  facts  entitled  him. 

An  Executor  or  Administrator  has  no 
power  to  submit  a  claim  against  the 
estate  upon  an  agreed  statement  of 
facts  under  Ind.  Rev.  Sts.  1881,  §  553, 
giving  parties  the  right  so  to  submit 
any  controversy.        Henes   v.   Henes, 

5  Ind.  App.  100. 

By  Whom  Agreed  Case  Must  Be  Signed. 
— An  agreed  case,  under  §  3421  of  the 
Compiled  Laws  of  the  State  of  Michi- 
gan, must  be  signed  by  the  parties  or 
their  attorneys.     Farrand  v.  Bentley, 

6  Mich.  280.  But  see  Bradford  v.  Bu- 
chanan (S.  Car.,  1893),  17  S.  E.  Rep. 
501,  and  Reeder  v.  Workman,  37  S.  Car. 
413,  which  states  the  rule  in  South  Car- 


k 


399 


Practice. 


AGREED  CASE. 


Miscellaneous^ 


3.  Miscellaneous. — The  practice  of  bringing  on  for  hearing  ac- 
tions submitted  on  agreed  cases  differs  in  Maine  and  New  Hamp- 
shire from  that  of  most  of  the  states.  The  action  is  regularly 
placed  upon  the  jury-term  calendar,  and  is  transferred  to  the  law 
side.* 


extra  allowance  could  be  granted  under 
it;  afterwards  affirmed  in  92  N.  Y. 
627,  without  passing  upon  the  point 
whether  an  extra  allowance  could  be 
granted.  McDonald  v.  Ross-Lewin, 
29  Hun  (N.  Y.)  93. 

No  Agreement  as  to  Costs.  —  Where 
there  is  no  agreement  as  to  costs,  a 
plaintiff  who  has  obtained  judgment 
for  part  of  his  claim  is  entitled  to 
tax  his  costs,  less  costs  incurred  by  de- 
fendant in  the  portion  on  which  he  has 
succeeded.  Elliott  z*.  Bishop,  10  Exch. 
522. 

Additional  Allowance. — The  court  has 
power  to  grant  an  additional  allow- 
ance upon  the  decision  of  a  contro- 
versy submitted  upon  an  agreed  case. 
Kingsland  v.  New  York,  16  Civ.  Pro. 
Rep.  (N.  Y.  Supreme  Ct.)  323.  But 
see,  contra.  People  t/.  Fitchburg  R.  Co., 
133  N.  Y.  239.  The  Court  of  Ap- 
peals held  ihat  the  stipulation  of 
the  parties  has  no  effect  upon  the  dis- 
cretion of  the  court  as  to  costs  or  ex- 
tra allowance. 

An  extra  allowance  cannot  be  grant- 
ed in  a  controversy  submitted  to  the 
court  by  agreement,  and  which  first 
appears  in  the  form  of  an  action  upon 
the  calendar  of  the  general  term.  The 
provision  as  to  granting  an  extra  al- 
lowance for  a  difficult  and  extraordi- 
nary case  was  intended  to  apply  only  to 
actions  commenced  in  the  ordinary  way 
and  in  which  an  answer  or  demurrer 
was  interposed;  and  see  Landon  v. 
Walmuth,  76  Hun  (N.  Y.)  271,  where 
Van  Brunt,  P.  J.,  says  :  "  We  know  of 
no  power  in  the  parties  to  take  away 
the  discretion  which  the  Code  abso- 
lutely gives  the  court  in  agreed  cases." 
But  see  contrary  opinion  by  Parker,  J. 

Where  the  Agreed  Case  is  Dismissed. 
— Costs  must  be  divided.  Frazer  v. 
Miller,  12  Kan.  459.  No  costs  to  either 
side.  People  v.  Mutual  Endowment, 
etc.,  Assoc,  92  N.  Y.  622;  Bloomfield 
V.  Ketcham,  5  Civ.  Pro.  Rep.  (N.  Y. 
Ct.  of  App.)  409,  95  N.  Y.  657;  Patter- 
son V.  Mutual  L.  Assoc.  (Super.  Ct.), 
33  N.  Y.  St.  Rep.  703. 

Costs  on  Second  Trial.  —  Where  for 
any  reason  a  second  trial  is  ordered, 
costs  may  include  both  trials.     In  fa- 


vor of  that  proposition  is  Davila  v. 
Herring,  i  Str.  300,  2  Tidd's  Prac.  900; 
Booth  V.  Atherton,  6  T.  R.  144;  Gar- 
land V.  Jekyll,  9  Moore  620;  Rober- 
ston  V.  Liddell,  10  East  416;  Holey  v. 
Botfield,  4  D.  &  L.  328.  Opposed, 
Hankey  v.  Smith,  3  T.  R.  507. 

1.  There  must  be  an  order  of  trans- 
fer, and  it  must  also  appear  that  some 
proceeding  was  had  or  moved  at  the 
trial  term  to  which  the  conclusion  of 
law  upon  the  agreed  facts  may  be  ap- 
plied by  an  order  from  the  Supreme 
Court.     State  v.  Stevens,  36  N.  H.  59. 

Parties  by  their  agreement  cannot 
bring  a  case  before  the  court  in  a  man- 
ner not  authorized  by  law.  Hatch  v. 
Allen,  27  Me.  85. 

An  entry  must  be  made  of  record 
submitting  the  case  to  the  decision  of 
the  court  upon  the  agreed  case.  State 
V.  Brookover,  22  W.  Va.  214. 

"When  Agreed  Case  is  Lost. — If  a  case 
stated  is  lost,  and  if  the  parties  cannot 
agree  upon  a  new  one,  it  cannot  be  re- 
produced from  the  testimony  of  wit- 
nesses who  saw  it,  but  the  cause  goes 
to  the  jury  as  if  the  agreed  case  had 
never  been  made,  for  it  is  important 
that  the  case  should  be  submitted  to 
the  court  in  the  very  form  and  shape 
the  parties  chose  to  give  it.  Cook  v. 
Shrauder,  25  Pa.  St.  312. 

New  York  Bnle. — According  to  rule 
41  of  New  York  General  Rules  of  Prac- 
tice, the  plaintiff  must  furnish  the 
necessary  papers  for  argument,  duly 
printed,  as  in  cases  of  appeal,  and 
rule  38  determines  an  agreed  case  an 
enumerated  motion. 

An  agreed  case  cannot  be  heard  by 
a  single  justice,  but  is  within  the  exclu- 
sive jurisdiction  of  the  full  court.  Mas- 
sachusetts Nat.  Bank  v.  Bullock,  120 
Mass.  86;  Tufts  v.  Newton,  119  Mass. 
476;  Waring  v.  O'Neil,  15  Hun  (N.  Y.) 
105. 

New  Hampshire  —  When  Court  will 
Take  Cognizance  of  Submission  of  Ques- 
tion Raised  in  Cause  Pending  at  Trial 
Term. — The  court  will  not  ordinarily 
take  cognizance  of  questions  raised  by 
the  parties  in  a  cause  pending  at  a  trial 
term,  upon  an  agreed  statement  of 
facts,  unless  there  is  appended  to  the 


400 


Pleadings. 


AGREED  CASE. 


Relation  to. 


VII.  Pleadings— 1.  Relation  to  the  Agreed  Case. — The  purpose  of 
an  agreed  case  is  the  determination  of  controversies  without  the 
formalities  and  technicalities  of  pleadings.* 


agreement  an  order,  signed  by  the 
presiding  judge  or  attested  by  the 
clerk,  renewing  the  question  for  the 
consideration  of  the  whole  court;  nor 
unless  it  appears,  upon  the  case  re- 
served, that  some  proceedings  were 
had  or  moved  at  trial  term,  to  which 
the  conclusion  of  law  upon  the  agreed 
facts  may  be  applied  by  an  order  from 
the  court.     State  v.  Stevens,  36  N.  H. 

59- 

Practice  in  U.  S.  Courts. — In  the  Dis- 
trict Court  in  a  suit  otherwise  triable 
by  a  jury,  the  parties  may  by  stipula- 
tion waive  a  jury  and  agree  on  a  state- 
ment of  facts,  and  submit  the  case  to 
the  court  thereon  for  its  decision  as  to 
the  law  thereon.  Lyons  ^/.  Lyons  Nat. 
Bank,  19  Blatchf.  (U.  S.)  283.  This  they 
may  do  in  the  Circuit  Court  also  with- 
out any  statute  to  that  effect.  Hender- 
son's Distilled  Spirits,  14  Wall.  (U.  S.) 
53;    Campbell    v.    Boyreau,    21    How. 

lU.   S.)226. 

When  Case  May  Be  Submitted. — Even 
after  issues  are  joined  parties  may 
submit  an  agreed  case.  Hervey  v. 
Edmunds,  63  N.  Car.  243. 

Effect  of  Submission  upon  Case  Pre- 
viously Commenced. — "  If  the  submis- 
sion of  the  case  did  not  of  itself  work 
a  discontinuance  of  the  action,  it  must 
do  so  when  followed  by  a  judgment, 
and  meanwhile  suspend  it."  Van 
Sickle  V.  Van  Sickle,  8  How.  Pr.  (N.Y. 
Supreme  Ct.)  265. 

I.  McKethan  v.  Ray,  71  N.  Car.  165. 

The  agreed  case  takes  the  place  of 
the  pleadings.  They  are  unnecessary, 
and  if  filed  will  be  disregarded.  Day 
V.  Day,  100  Ind.  460;  Sharpe  v.  Sharpe, 
27  Ind.  507;  Manchester  v.  Dodge,  57 
Ind.  584;  Warrick  Bldg.,  etc.,  Assoc,  v. 
Hougland,  90  Ind.  195;  Donald  v.  St. 
Louis,  etc.,  R.  Co.,  52  Iowa  411;  Saw- 
yer V.  Corse,  17  Gratt.  (Va.)  230,  94 
Am.  Dec.  445.  (See  subdivision  of  this 
article,  Effect  as  a  Waiver,  ante  p.  391.) 
However,  as  a  general  rule,  a  declara- 
tion is  previously  filed,  but  in  such  case 
is  not  to  be  considered.  Bixler  v.  Kun- 
kle,  17  S.  &  R.  (Pa.)  310,  where  Tod, 
J.,  in  delivering  the  opinion  of  the 
court,  said:  "The  declaration  is  not 
before  us;  it  is  waived  and  super- 
seded. The  parties  have  agreed  to 
put  and  actually  have  put  before  us 
the  facts  of  the  case.     True,  the  coun- 


sel did  reserve  their  exceptions;  but  it 
is  a  reservation  incompatible  with  the 
agreement.  They  cannot,  at  the  very 
time  they  are  placing  the  facts  specifi- 
cally upon  the  record,  object  because 
the  facts  are  not  specifically  upon  the 
record.  It  is  an  attempt  to  mix  a  spe- 
cial demurrer  with  a  case  stated.  It 
is  without  a  precedent;  and  can  be 
subservient  to  no  one  purpose  of  jus- 
tice or  law,  nor  productive  of  any- 
thing but  vexation  and  delay,  thus  to 
entangle  the  merits  of  a  cause  with 
points  of  form  relative  to  the  wording 
of  a  declaration  which  both  parties 
have  agreed  to  set  aside."  But  see, 
contra  :  where  parties  submit  a  case 
upon  an  agreed  statement  of  facts 
with  a  stipulation  that  the  statement 
was  submitted  subject  to  all  objec- 
tions for  incompetency,  a  fact  which 
is  not  in  issue  under  the  pleadings, 
although  admitted  in  the  statement, 
will  be  ignored  because  not  a  fact  in 
issue.  Marion  County  v.  Harvey 
County,  26  Kan.  181,  202. 

When  Facts  Not  Pleaded. — Where  a 
case  is  submitted  on  the  pleadings 
and  certain  agreed  facts,  such  facts 
must  be  considered  by  the  court,  and 
the  case  determined  upon  the  whole 
record,  although  some  of  the  facts 
were  not  pleaded.  Perry  v.  Murray, 
55  Iowa  416. 

Agreement  on  Pleadings  Alone. — An 
agreement  by  parties  to  submit  a  case 
upon  the  facts  agreed  upon  by  the 
pleadings  alone  is  a  binding  one.  Mc- 
Cann  v.  McLellan,  3  Neb.  25. 

Issue  as  Made  Up. — The  court  cannot 
go  beyond  the  issue  as  made  up. 
Philadelphia,  etc.,  R.  Co.  v.  Water- 
man, 54  Pa.  St.  337;  Sawyer  v.  Corse, 
17  Gratt.  (Va.)  230,  94  Am.  Dec.  445. 

When  Eight  to  Becover  Limited  to 
Pleadings. — If,  by  the  terms  of  a  case 
stated,  the  plaintiff's  right  to  recover 
is  limited  to  the  pleadings,  he  must 
establish  his  position  on  the  case 
made  out  by  the  complaint.  Com.  v. 
Worcester,  etc.,  R.  Co.,  124  Mass.  561. 

Amendment  of  Pleadings. — Where  an 
action  is  submitted  upon  a  case  stated, 
but  the  agreement  does  not  limit  plain- 
tiff's right  of  recovery  to  the  particular 
form  in  which  the  action  is  brought, 
the  writ  may  be  amended  in  court  into 
another  form  of  action,  of  which  that 


I  Encyc.  PI.  &  Pr.— 26. 


401 


Use  in  Evidence 


AGREED  CASE. 


Upon  a  Subsequent  Trial. 


2.  Question  of  Sufficiency. — The  sufficiency  of  the  pleadings  is 
not  under  consideration  by  the  court  in  an  agreed  case.* 

VIII.  Use  in  Evidence  of  the  Agreed  Case  upon  a  Subsequent 
Trial. — An  agreed  case,  after  it  is  withdrawn,  cannot  be  read  in 
evidence  on  a  subsequent  trial  by  jury.* 


court  has  original  jurisdiction,  al- 
though it  has  no  jurisdiction  of  the 
action  in  the  form  in  which  it  was  first 
brought.  Merrill  v.  Bullock,  105  Mass. 
486. 

After  a  case  is  reserved  to  this  court 
upon  issues  joined  and  an  agreed 
statement  of  facts,  no  change  in  the 
pleadings  will  be  allowed,  unless  it  is 
made  clear  that  without  it  the  rights 
of  a  party  will  be  sacrificed  or  plain 
injustice  done.  Wiswell  v.  First 
Cong.  Church,  14  Ohio  St.  31. 

1.  American  Coal  Co.  v.  Alleghany 
County,  59  Md.  185;  Bostick  v.  Blades, 
59  Md.  231,  43  Am.  Rep.  548;  Day  v. 
Day,  100  Ind.  460;  Warrick  Bldg., 
etc.,  Assoc.  V.  Hougland,  go  Ind.  115. 

Effect  of  Filing  an  Agreed  Case  Subse- 
quent to  the  Pleadings. — A  cause  was 
submitted  upon  an  agreed  case  after 
petition,  answer,  and  reply  were 
filed.  There  was  no  dismissal  of 
the  action,  and  the  stipulation  does 
not  purport  to  supersede  the  plead- 
ings. In  this  situation  the  court 
and  the  parties  must  be  held  to 
have  looked  upon  the  agreed  case 
as  made  in  the  case  already  pending, 
and  as  simply  dispensing  with  further 
or  other  evidence  in  the  case.  Blake 
V.  Johnson  County,  18  Kan.  266.  But 
see  supra,  Bixler  z/.  Kunkle,  17  S.  &  R. 
(Pa.)  310,  to  the  effect  that  the  declara- 
tion previously  filed  is  to  be  disre- 
garded; and  see  also  ante  p.  391,  Ef- 
fect as  a  Waiver. 

Equity  Case. — In  an  equity  cause, 
upon  a  case  stated,  the  answer  will  be 
taken  as  true  only  so  far  as  it  is  sup- 
ported by  the  facts  stated  in  the  case. 
Taunton  v.  Taylor,  116  Mass.  254. 

Manner  of  Alleging  Facts. — The  rule 
of  pleading  facts  prescribed  by  section 
532  of  the  N.  Y.  Code  of  Civil  Proce- 
dure may  with  propriety  be  applied  to 
the  agreed  case  required  by  section 
1279;  and  whatever  is  a  sufficient 
statement  of  facts,  according  to  the 
former,  to  impliedly  allege  jurisdic- 
tion, is  a  sufficient  statement  of  facts, 
according  to  the  latter,  that  jurisdic- 
tion existed.  There  is  no  reason  for 
greater  particularity  in  admitting  facts 
for  the  submission  of   a   controversy 

402 


than  in  alleging  them  in  a  pleading. 
Brownell  v.  Greenwich,  114  N.  Y.  518, 
affirming  44  Hun  (N.  Y.)  611. 

Plea  in  Abatement. — It  is  improper  to 
bring  before  the  court,  in  the  form  of 
a  case  stated,  a  matter  which,  if  there 
is  any  question  upon  it,  is  proper  for 
a  plea  in  abatement  to  the  writ.  Mat- 
ters which  can  be  raised  only  by  a 
plea  in  abatement  are  not  open  in  an 
agreed  case  unless  specially  reserved. 
Haven  v.  Foster,  9  Pick.  (Mass.)  112, 
19  Am.  Dec.  353;  Ellsworth  z'.Brewer, 
II  Pick.  (Mass.)  316. 

Form  of  Action. — Where  an  action  of 
assumpsit  was  brought,  and  an  agreed 
case  filed,  the  objection  that  the  title 
to  land  was  drawn  in  question  in  an 
action  of  assumpsit  was  held  invalid. 
Haven  v.  Foster,  g  Pick.  (Mass.)  112, 
ig  Am.  Dec.  353. 

A  case  stated  should  show  whether 
the  action  is  in  debt,  assumpsit,  or 
trespass.  Berks  County  v.  Jones,  21 
Pa.  St.  413. 

2.  McLughan  v.  Bovard,  4  Watts 
(Pa.)  308;  Hart's  Appeal,  8  Pa.  St.  32. 
If  it  is  read,  it  is  competent  to  show 
that  the  attorney's  signature  was  ob- 
tained by  artifice,  or  that  the  assent  of 
the  client  was  not  obtained.  McLughan 
V.  Bovard,  and  Hart's  Appeal,  supra. 
But  see  Ex  parte  Hayes,  92  Ala.  120,  to 
the  effect  that  when  an  agreed  state- 
ment of  facts  is  reduced  to  writing, 
signed  by  the  attorneys  of  the  respec- 
tive parties,  and  not  limited  to  use  on 
one  trial  only,  a  party  cannot  be  re- 
lieved from  an  admission  therein  con- 
tained, on  a  subsequent  trial  after  a 
reversal  and  remandment  of  the  cause, 
expect  for  some  cause  which  would 
authorize  a  rescission  of  a  contract; 
and  neither  the  attorney's  understand- 
ing that  the  agreement  was  for  the 
purpose  of  one  trial  only  nor  his 
opinion  that  the  admitted  fact  was  im- 
material is  a  sufficient  cause  to  set  it 
aside.  If  the  court  refuses  to  receive 
the  admission  contained  in  the  agreed 
case  as  evidence  on  a  second  trial,  an 
exception  may  be  reversed  and  the 
ruling  revised  on  appeal;  but  a  writ  of 
mandamus  will  not  lie  to  compel  its 
admission. 


Appeals. 


AGREED  CASE. 


Bill  of  Exceptions. 


IX.  Appeals— 1.  Finality  of  Judgment. — The  judgment  rendered 
upon  the  submission  of  a  controversy  upon  an  agreed  case  is  final 
unless  appealed  from.*  According  to  the  English  practice  the 
agreed  case  was  no  part  of  the  record,  hence  a  writ  of  error  did 
not  lie.*  Generally  speaking  the  practice  in  the  United  States 
permits  an  appeal  or  writ  of  error. 

2.  Whether  an  Appeal  or  Writ  of  Error  Lies. — In  general  an  appeal, 
not  a  writ  of  error,  lies  to  review  a  judgment  upon  a  case  stated.* 

3.  Necessity  for  Bill  of  Exceptions. — A  bill  of  exceptions  is  neces- 
sary to  spread  an  agreed  case  upon  the  record.* 


1.  Bank  of  Commonwealth  v.  Hop- 
kins, 2  Dana  (Ky.)  395;  Jarboe  v. 
Smith,  ID  B.  Mon.  (Ky.)  257,  15  Am. 
Dec.  541. 

2.  Courtauld  v.  Leigh,  20  L.  T.  N.  S. 
496;  Burr  V.  Des  Moines  R.,  etc.,  Co., 
I  Wall.  (U.  S.)  99. 

3.  Decisions  of  the  U.  S.  Supreme 
Court  established  the  rule  that  writs 
of  error  will  lie  where  the  judgment 
of  the  court  below  was  founded  upon 
an  agreed  statement  of  facts,  as  well 
as  when  founded  upon  the  verdict  of  a 
jury.  U.  S.  V.  Eliason,  16  Pet.  (U.  S.) 
291;  Stimpson  v.  Baltimore,  etc.,  R. 
Co.,  10  How.  (U.  S.)  329;  Graham  v. 
Bayne,  18  How.  (U.  S.)  60;  Old  Colony 
R.  Co.  V.  Wilder,  137  Mass.  537. 

4.  Alfred  v.  Saco,  7  Mass.  380;  Car- 
roll V.  Richardson,  9  Mass.  329;  Gray 
V.  Storer,  10  Mass.  163;  Wellington  v. 
Stratton,  11  Mass.  394;  Furlong  v. 
Leary,  8  Cush.  (Mass.)  409;  Hovey  v. 
Crane,  10  Pick.  (Mass.)  440. 

As  to  the  right  to  appeal  to  the  Su- 
preme Court,  the  agreed  case  was  in- 
tended to  present  the  question  of  law 
whether,  upon  the  facts  stated,  the 
process  would  lie.  The  appeal  was 
properly  taken.  White  v.  Clapp, 
8  Allen  (Mass.)  283. 

Rule  in  Massachusetts. — It  has  always 
been  the  law  in  Massachusetts  that 
parties  could  submit  to  an  inferior 
court  upon  an  agreed  case,  and  that 
an  appeal  lay  from  the  judgment 
thereon  of  such  court  to  the  Supreme 
Judicial  Court.  The  case  stated  be- 
comes a  part  of  the  record,  somewhat 
in  the  nature  of  a  special  verdict. 
Gen.  Sts.  Mass.,  chap.  112,  §§  11,  15; 
chap.  114,  ^§  10-12;  chap.  115,  §§  7, 
12.  The  statutes  of  1817,  chap.  185, 
and  the  statutes  of  1820,  chap.  79,  es- 
tablishing the  Court  of  Common 
Pleas,  recognized  and  saved  the  right 
of  appeal  upon  an  agreed  case.  The 
Revised  Statutes  directly  provided 
that,  "  when  an  action  is  submitted 
to  the  determination  of  the  Court  of 


Common  Pleas  upon  a  case  stated  by 
the  parties,  either  party  may  appeal 
from  the  judgment,  unless  it  is  agreed 
that  the  judgment  of  the  Court  of 
Common  Pleas  shall  be  final."  Rev. 
Sts.,  chap.  82,  §  II.  The  statutes  of 
1840,  chap.  87,  provide  that  either 
party  may  appeal  from  any  judgment 
founded  upon  matter  of  law  apparent 
on  the  record.  A  case  stated  is  not 
directly  mentioned  in  that  statute,  but 
it  is  clear  that  it  was  not  intended  to 
take  away  the  right  of  appeal  from  a 
judgment  upon  a  case  stated,  and  such 
right  is  recognized  in  the  General 
Statutes  and  in  the  Public  Statutes. 
General  Statutes,  chap.  112,  §  5;  Pub- 
lic Statutes,  chap.  150,  §  7.  It  has 
therefore  constantly  been  held  that 
either  party  had  the  right  to  appeal 
from  judgments  of  the  Court  of  Com- 
mon Pleas  and  Superior  Court  to  Su- 
preme Court  upon  a  proper  case 
stated.  Old  Colony  R.  Co.  v.  Wilder, 
137  Mass.  537. 

Writ  of  Error. — A  writ  of  error  will 
lie.  In  trials  at  law,  where  agreed 
cases  have  been  made,  they  have  been 
signed  by  the  counsel  as  representing 
their  clients,  and  spread  at  large  upon 
the  record  as  a  part  thereof,  and  as 
constituting  the  only  legitimate 
ground  for  the  action  of  the  court, 
and  as  furnishing  the  regular  and 
proper  test  to  be  applied  by  an  appel- 
late or  revising  tribunal  to  this  action. 
U.  S.  V.  Eliason,  16  Pet.  (U.  S.)  301; 
Faw  V.  Roberdeau,  3  Cranch.  (U.  S.) 
174;  Tucker  v.  Oxley,  5  Cranch.  (U.  S.) 
34;  Kennedy  v.  Brent,  6  Cranch.  (U. 
S.)  187;  Brent  v.  Chapman,  5  Cranch. 
(U.  S.)  358;  Shankland  v.  Washington, 
5  Pet.  (U.  S.)  390;  Inglee  v.  Coolidge, 
2  Wheat.  (U.  S.)  363;  Miller  v.  Nicholls, 
4Wheat.  (IT.  S.)3ii;  Graham  v.  Bayne, 
18  How.  U.  S.)  60;  Real  Estate  Bank 
V.  Rawdon,  5  Ark.  558;  Johnson  v. 
Reed,  8  Ark.  202.  But  see  State 
Bank  v.  Conway,  13  Ark.  348. 

5.    Lofton  V.   Moore,   83  Ind.   112; 


403 


Appeals. 


AGREED  CASE. 


Belation  of  Appellate. 


4.  Relation  of  Appellate  to  Inferior  Court. — On  appeal  from  a  judg- 
ment given  on  an  agreed  case,  the  appellate  court  will  always 
indulge  the  presumption  that  the  decision  of  the  inferior  court 
was  riorht.* 


Real  Estate  Bank  v.  Rawdon,  5  Ark. 
558;  Pomeroy  v.  State  Bank,  i  Wall. 
(U.  S.)  592;  2  Tidd's  Practice,  896; 
Seward  v.  Jackson,  8  Cow.  (N.  Y.)  406. 

"The  agreed  case  must  in  some 
manner,  in  the  court  below,  be  made 
a  part  of  the  record  of  the  case. 
Blackstone  and  Stephens  held  that 
error  did  not  lie  on  such  a  statement. 
The  court,  however,  said  that  the  rea- 
son for  this  was  that  in  the  English 
practice  the  agreed  statement  was  not, 
like  a  special  verdict,  entered  on  the 
record,  and  the  appellate  court  could 
not  therefore  notice  it;  but  that  in 
the  practice  of  our  courts  such  agree- 
ments are  signed  '  by  the  counsel,  and 
spread  upon  the  record  at  large  as 
part  thereof.'  And  thus  they  become 
technically  a  part  of  the  record,  into 
which  the  appellate  court  will  look,  with 
the  other  part  of.  it,  to  ascertain  if 
there  be  error."  Burr  v.  Des  Moines 
R.,  etc.,  Co.,  I  Wall.  (U.  S.)  99;  Gra- 
ham V.  Bayne,  18  How.  (U.  S.)  60. 

Effect  of  Absence  of  Bill  of  Exceptions. 
— Where  there  is  no  bill  of  exceptions 
the  agreed  case  constitutes  no  part  of 
the  record.  King  v.  Little  Rock,  26 
Ark.  479;  Ashley  v.  Stoddard,  26  Ark. 
653;  Boyd  V.  Carroll,  30  Ark.  527; 
Lawson  v.  Hayden,  13  Ark.  316;  Note- 
ware  V.  Sterns,  i  Mont.  311;  Black- 
burn V.  Wagner,  83  Ind.  325;  Fisher  z/. 
Purdue,  48  Ind.  323;  Carlton  v.  Cum- 
mins, 51  Ind.  478;  Manchester  v. 
Dodge,  57  Ind.  584;  State  v.  Newton 
County,  66  Ind.  216;  Martin  v.  Martin, 
74  Ind.  207;  Slessman  v.  Crozier,  80 
Ind.  487;  Western  Union  Tel.  Co.  v. 
Frank,  85  Ind.  480;  Zeller  v.  Craw- 
fordsville,  90  Ind.  262;  Hall  v.  Penn- 
sylvania Co.,  90  Ind.  459;  Thatcher  v. 
Ireland,  77  Ind.  486;  Warwick  BIdg., 
etc.,  Assoc.  V.  Hougland,  90  Ind.  114; 
U.  S.  Bank  v.  Schultz,  3  Ohio  61; 
Wellington  v.  Stratton,  11  Mass.  394; 
Cochran  v.  Boston,  i  Allen  (Mass.) 
480;  Lefavour  v.  Homan,  3  Allen 
(Mass.)  354;  Charlton  v.  Donnell,  100 
Mass.  229;  Rand  v.  Hanson,  154  Mass. 
87:  Tyson  v.  Western  Nat.  Bank,  77 
Md.  412.  Contra,  see  McGonnigle  v. 
Arthur,  27  Ohio  St.  251,  to  the  effect 
that  where  a  case  agreed  is  submitted, 
the  court  will  not  dismiss  the  case  for 
want  of  a  formal  bill  of  exceptions, 


embodying  the  agreed  case.  Penn- 
sylvania Co.  V.  Niblack,  99  Ind.  149; 
Suydam  v.  Williamson,  20  How.  (U. 
S.)  434;  Old  Colony  R.  Co.  v.  Wilder, 
137  Mass.  537;  Brown  v.  Mott,  22 
Ohio  St.  149;  Ottawa  v.  La  Salle  Coun- 
ty, 12  111.  339;  Clayton  v.  Smith,  i 
Colo.  95. 

Motion  for  New  Trial. — Not  neces- 
sary. Brown  v.  Mott,  22  Ohio  St. 
149;  Fisher  v.  Purdue,  48  Ind.  323; 
Martin  v.  Martin,  74  Ind.  207;  Clay- 
ton V.  Smith,  I  Colo.  95.  Contra,  see 
Slessman  v.  Crozier,  80  Ind.  487;  Dow- 
ney V.  Washburn,  79  Ind.  242;  Myers  v. 
Sawyer,  99  Ind.  237;  Witz  v.  Dale,  129 
Ind.  120;  Manchester  v.  Dodge,  57 
Ind.  584;  Godfrey  v.  Wilson,  70  Ind.  50. 

Question  of  Law  if  the  Agreed  State- 
ment Will  Warrant  a  Particular  Infer- 
ence.— "We  find  nothing  in  the  case 
to  make  the  stipulation  in  the  agreed 
case,  that  the  court  may  draw  infer- 
ences of  fact,  of  any  importance  jupon 
the  material  point.  There  is  nothing 
but  the  question  w^hat  is  the  true  legal 
construction  of  a  record,  which  is  al- 
ways a  question  of  law  for  the  court. 
We  therefore  have  no  occasion  to  de- 
termine whether  we  should  further 
approve  the  practice  which  has  some- 
times been  permitted  of  presenting  to 
the  court  certain  agreed  facts  as  a  case 
stated,  accompanied  by  a  stipulation 
that  the  court  may  draw  any  proper  in- 
ference of  fact,  and  the  asking  the  full 
court  to  treat,  as  a  question  apparent 
on  the  record,  the  question  whether 
the  facts  agreed  will  warrant  an  in- 
ference of  fact  that  will  support  the 
judgment  appealed  from,  on  the  as- 
sumption,without  proof,  that  the  court 
below  drew  the  strongest  inference 
of  fact  possible  in  favor  of  the  re- 
sult reached.  It  is  clear  that  such  a 
statement  is  not  like  a  special  verdict, 
and  is  not  a  proper  case  stated  be- 
cause it  can  never  be  known  from  the 
record  whether  the  court  below  drew 
any  inference  of  fact  or  not.  If  it  is 
desired  to  present  to  the  full  court  the 
question  of  law  whether  the  facts 
agreed  will  warrant  a  particular  in- 
ference of  fact,  it  can  best  be  done  by 
an  exception  taken  at  the  hearing." 
Rand  v.  Hanson,  154  Mass.  87. 

1.   Henri    v.    Grand   Lodge,   59   Mc. 


404 


Appeals. 


AGREED  CASE. 


Bight  to  AppeaL 


5.  Right  to  Appeal  Reserved  by  Stipulation. — It  is  usual  for 
both  sides  to  reserve  the  right  of  appeal.  This  is  a  notification  to 
the  trial  court  that  its  decision  may  be  reviewed.* 


582;  Old  Colony  R.  Co.  ».  Wilder,  137 
Mass.  537;  Keegan  v.  Cox,  116  Mass. 
2S9;  West  V.  Piatt,  120  Mass.  421;  Fox 
V.  Adams  Express  Co.,  116  Mass.  292; 
Atlantic  Nat.  Bank  v.  Harris,  118 
Mass.  152;  Charlton  v.  Donnell,  100 
Mass.  229;  Hecht  v.  Batcheller,  147 
Mass.  339,  9  Am.  St.  Rep.  708;  Martz 
V.  Newton,  29  Kan.  331 ;  State  v.  Wood- 
bury, 76  Me.  457.  See  contra.  Day  v. 
Day,  100  Ind.  460;  Indianapolis,  etc., 
R.  Co.  V.  Kinney,  8  Ind.  402;  Hannum 
V.  State,  38  Ind.  32;  Warrick  Bldg., 
etc.,  Assoc.  V.  Hougland,  90  Ind.  115, 
to  the  effect  that  the  court  will  in- 
dulge in  no  presumption  in  favor  of 
judgment  of  the  court  below,  because 
the  appellate  court  has  the  same 
means  as  the  court  below  had  of 
reaching  a  correct  conclusion  of  law 
upon  the  agreed  facts  of  the  case, 
which  it  will  consider  the  same  as  if 
it  were  trying  the  case  originally.  Kan- 
sas Pac.  R.  Co.  V.  Butts,  7  Kan.  308. 

When  Court  Below  Makes  Findings 
Different  from  Agreed  Case. — In  such  a 
case  the  appellate  court  will-ignore  the 
findings  of  the  Superior  Court  and  de- 
cide the  case  upon  the  agreed  state- 
ment of  facts.  Brown  v.  Evans,  15 
Kan.   88;  Olathe   v.    Adams,   15  Kan. 

391- 

Not  Until  After  Judgment  Has  Been 
Bendered  by  the  court  below  can  an 
agreed  case  be  brought  into  the  ap- 
pellate court.  Aldrich  v.  Pickard,  12 
Lea  (Tenn.)657;  Memphis  Freight  Co. 
V.  Memphis,  3  Coldw.  (Tenn.)  249; 
Crull  V.  Keener,  17  111.  246;  Plumleigh 
V.  White,  9  111.  387. 

Action  Originating  Before  a  Magistrate. 
— Such  an  action  cannot  be  brought  on 
appeal  from  District  Colirt  to  the  Su- 
preme Court  of  Maine.  English  v. 
Sprague,  32  Me.  243;  Giles  v.  Viger- 
eaux,  32  Me.  565. 

Point  Not  Baised  in  Court  Below. — A 
point  which  does  not  appear  to  have 
been  intended  to  be  raised  in  the  Su- 
perior Court,  upon  an  agreed  state- 
ment of  facts,  cannot  be  raised  on  ap- 
peal. Johnson  v.  Stewart,  11  Gray 
(Mass.)  181;  Fitzsimmons  v.  Carroll, 
128  Mass.  401. 

1.  Jackson  v.  Salisbury,  66  Md.  459. 

Necessity  for  Stipulation. — In  Penn- 
sylvania the  Supreme  Court  will  not 
lake  cognizance  of  a  case  stated  unless 


the  parties  stipulate  that  the  decision 
of  the  Common  Pleas  shall  be  subject 
to  a  writ  of  error.  Fuller  v.  Trevor, 
8  S.  &  R.  (Pa.)  528;  Washburn  v.  Bald- 
win, ID  Phila.  (Pa.)  472. 

But  see  Hovey  v.  Crane,  10  Pick. 
(Mass.)  440,  to  the  effect  that  a  party 
aggrieved  by  the  opinion  or  judgment 
of  the  Court  of  Common  Pleas  ren- 
dered upon  any  issue  of  law  or  any  case 
stated  by  the  parties,  where  it  is  not 
agreed  that  the  decision  of  that  court 
shall  be  final,  may  bring  the  action 
before  the  Supreme  Court  by  appeal, 
whether  the  ad  damnum  be  laid  at 
more  or  less  than  $100,  and  whether 
the  parties  do  or  do  not  reserve  a  right 
to  waive  in  the  appellate  court  the 
pleadings  joined  or  the  statement  of 
the  case  made  in  the  court  below. 
Upon  an  appeal  from  a  judgment  of 
the  Court  of  Common  Pleas  upon  a 
case  stated,  the  form  of  bringing  up 
the  action  may  be  by  entering  the 
agreed  statement  upon  the  record, 
somewhat  in  the  manner  of  a  special 
verdict  and  the  judgment  of  the  court 
thereon.  Hovey  v.  Crane,  10  Pick. 
(Mass.)  440;  Furlong  v.  Leary,  8  Cush. 
(Mass.)  409;  Parker  v.  Framingham, 
8   Met.  (Mass.). 260. 

Effect  of  Stipulation. — If  the  attorneys 
stipulate  as  to  what  are  the  facts  in  the 
case,  and  that  the  stipulation  shall 
form  a  part  of  the  judgment-roll,  the 
facts  therein  admitted  stand  in  place 
of  a  finding  of  facts  by  the  court,  and  so 
constitute  a  part  of  the  judgment-roll; 
and  no  specification  of  the  errors  relied 
on  appeal  need  be  made  in  the  tran- 
script, nor  is  a  statement  necessary. 
Brewster  v.  Hartley,  37  Cal.  15,  99 
Am.  Dec.  237. 

New  Trial. — Upon  reversal  of  the 
judgment  rendered  upon  an  agreed 
case,  no  new  trial  will  be  granted. 
Harrington  v.  Hilliard,  27  Mich.  271. 
But  see  Com.  v.  Howard,  149  Pa.  St. 
302,  holding  that  when  a  case  stated  is 
quashed  and  a  new  trial  granted,  on  the 
ground  that  a  necessary  fact  is  omitted, 
the  action  stands  precisely  as  if  no  case 
stated  had  been  agreed  upon;  and  such 
a  judgment  is  not  a  final  judgment 
from  which  an  appeal  will  lie. 

Agreed  Case  a  Part  of  the  Becord  on 
Appeal. — To  give  the  Supreme  Court 
jurisdiction  on  appeal  from  a  judgment 


405 


Statutory  Provisions. 


AGREED  CASE. 


Statutory  Provisions. 


X.  Stattjtoey  Provisions. — A  large  number  of  the  United  States 
have  statutes  providing  for  the  submission  [of  controversies  upon 
agreed  cases.  Sections  1279,  1280,  and  1281  of  the  New  York 
Code  of  Civil  Procedure  have  served  as  a  model  in  most  states.* 

enable  the  court  to  render  judgment, 
an  order  must  be  made  dismissing  the 
submission,  without  costs  to  either 
party  unless  the  court  permits  the 
parties,  or,  in  a  proper  case,  their  rep- 
resentatives, to  file  an  additional  state- 
ment, which  it  may  do  in  its  discretion, 
without  prejudice  to  the  original  state- 
ment. 

For  the  statutory  provisions  in  other 
states  see, 

Alabama,  ^  866,  Code. 

Arkansas,  §§  5218,  5219,  5220,  at  pp. 
1008,  1009  of  the  digest  of  the  statutes 
of  Arkansas  (ed.  1884). 

California,  §  475  of  the  Code  of  Civil 
Procedure. 

Colorado,  §§  276,  277,  278  of  the  Code 
of  Civil  Procedure. 

Connecticut ,  %  1200  on  page  279  of  the 
General  Statutes  of  1888. 

Illinois,  chap,  no,  J;^  75,  76  of  the 
Revised  Statutes  of  1874. 

Indiana,  %%  553,  554,  555  of  the  Prac- 
tice Code. 

Iowa,  t;§  3408,  3409,  3410,  341 1,  3412, 
3413,  3414,  3415  of  Revised  Statutes. 

Kentucky,  ^  705  Civil  Code. 

Massachusetts,  §  13  of  chap.  81  of  Re- 
vised Statutes;  ij  5  of  chap.  112,  §64 
of  chap.  129,  and  ^  6  of  chap.  113,  of 
General  Statutes;  §  23  of  chap.  312  of 
Laws  of  1852;  ^  I  of  chap.  237  of  Laws 
of  1859;  chap.  438  of  Laws  of  1869. 

Michigan,  ^  3421,  4346  of  Compiled 
Laws. 

Maine,  %  42  of  chap.  77  of  the  Re- 
vised Statutes  of  1883. 

Montana,  ^  323  Civil  Code. 

Nebraska,  §§  567,  568,  569,  at  page 
932  of  Compiled  Statutes. 

North  Carolina,  §  315  (old  number) 
Code  Civil  Procedure. 

Ohio,  §  495  of  the  Code. 

Oregon,  §§  257,  258,  259,  at  page  337 
Hill's  Annotated  Laws. 

South  Carolina,  §§  374,  375,  376  of 
Code  of  Procedure. 

Tennessee,  %  9,  chap.  126,  Act  of  1809; 
§§4229,  4236,  4303,  4497,  2924  Code; 
chap.  97  Act  of  1877. 

Texas,  art.  1293,  chap.  11,  tit.  xxix, 
Revised  Statutes  of  Texas,  1879. 

Washington,  §  421,  chap,  xii,  tit.  vii, 
Code  of  Procedure  (Hill's,  1891). 

England,  cap.  42,  3  &  4  Wm.  IV;  §  46, 
cap.  76,  15  &  16  Vic. 


rendered  upon  an  agreed  case,  the 
agreed  case  must  be  made  a  part  of  the 
record.  Mayo  v.  Dickens,  6  Yerg. 
iTenn.)  490. 

Was  Judgment  Authorized  on  the 
Agreed  Facts. — This  question  may  be 
raised  in  the  appellate  court.  Reed  v. 
Bernal,  40  Cal.  628. 

Appeal  in  Criminal  Case. — Where  a 
criminal  case  is  submitted  to  the  lower 
court  upon  an  agreed  statement  of 
facts,  and  the  court  finds  for  the  de- 
fendant, that  is  equivalent  to  a  verdict 
of  not  guilty  and  cannot  be  set  aside 
on  appeal.     Olathe  v.  Adams,  15  Kan. 

391- 

1.  New  York,  §  1279  Code  Civ. 
Proc  :  "  The  parties  to  a  question  in 
difference,  which  might  be  the  subject 
of  an  action,  being  of  full  age,  may 
agree  upon  a  case  containing  a  state- 
ment of  the  facts  upon  which  the  con- 
troversy depends  ;  and  may  present  a 
written  submission  thereof  to  a  court 
of  record,  which  would  have  jurisdic- 
tion of  an  action  brought  for  the  same 
cause.  The  case  must  be  accompanied 
with  the  affidavit  of  one  of  the  parties, 
to  the.  effect  that  the  controversy  is 
real,  and  that  the  submission  is  made 
in  good  faith  for  the  purpose  of  de- 
termining the  rights  of  the  parties. 
The  submission  must  be  acknowledged 
or  proved,  and  certified  in  like  manner 
as  a  deed,  to  be  recorded  in  the  county 
where  it  is  filed." 

^5  1280  relates  to  the  filing  of  the 
case. 

§  1281.  "An  order  of  arrest,  an  in- 
junction, or  a  warrant  of  attachment 
cannot  be  granted  in  such  an  action; 
the  costs  thereof  are  always  in  the 
discretion  of  the  court,  but  costs 
cannot  be  taxed  for  any  proceedings 
before  notice  of  trial;  the  action  must 
be  tried  by  the  court,  upon  the  case 
alone;  and  the  case,  submission,  affi- 
davit, and  a  certified  copy  of  the  judg- 
ment, and  of  any  order  or  paper,  neces- 
sarily affecting  the  judgment,  consti- 
tute the  judgment-roll.  If  the  action 
is  in  the  Supreme  Court,  a  superior  city 
court,  or  the  Marine  Court  of  the  city 
of  New  York,  it  must  be  tried,  and 
judgment  rendered  at  the  general 
term.  If  the  statement  of  facts  con- 
tained in  the  case  is  not  sufficient  to 


406 


ALIMONY. 

By  Ward  B.  Coe. 

I.  Geneeal  Observations  on  Alimony,  408. 

1.  As  an  htdependent  Right,  408. 

a.  Generally,  408. 

b.  Jurisdiction  and  Procedure,  409. 

c.  Decree,  410. 

2.  As  Incident  to  Some  Other  Proceeding,  i^\l, 

n.  JUEISDICTION,  4' 2. 

1.  Divorce  Courts, /^12. 

2.  Domicil,  412. 

3.  Appearance  of  Defendant, /^it,. 

4.  Defendant  Domiciled  in  State,  413. 

5.  Application  after  Dissolution  of  Marriage,  414. 

6.  Where  Cause  Is  Still  Open,  415. 

7.  Divorce  Ex  Parte,  41 5. 

8.  Enforcing  Decree  in  Another  State,  416. 

in.  Procedure,  417. 

1.  Generally,  417. 

2.  Pleadings,  417. 

a.  Prayer  for  Alimony,  \\T. 

b.  When  Temporary  Alimony  Asked  and  Granted,  \\Z. 

c.  Permanent  Alimony,  420. 

d.  Divorce  and  Alimony  Separately  Considered,  420. 

e.  What  to  be  Shown  to  Warrant  Alimony  Pendente  Lite, 

f.  Hearing  of  Husband,  ^iz.  [421. 

g.  Parties,  423, 

h.  How   Wife  Sues,  423. 

3.  Evidence,  424. 

4.  Decree,  427. 

a.  Fortn,  427. 

b.  Modification,  430.  . 

c.  Enforcing  Decree,  432. 

5.  Securing  Atimony  and  Defeating  Frauds  Thereon,  440. 

a.  Securing  Alimony,  440. 

1.  Writ  of  Ne  Exeat,  440. 

2.  Writ  of  Injunction,  442. 

3.  Decree  as  Lien  on  Land,  443. 

4.  Requiring  Security,  445. 
^.  Fraudulent  Assignments,  445. 

6.  Appeals.  446. 

IV.  Suit  Money,  Counsel  Fees,  and  Costs,  450- 

1.  Definitions,  450. 

2.  5«z'/  Money,  451. 

3.  Counsel  Fees,  453. 

4.  CcJj/j,  455. 

407 


General  Observations. 


ALIMONY. 


As  an  Independent  Bight. 


I.  Genekal  Observations  on  Alimony— 1.  As  an  Independent 
Eight — a.  Generally. — The  right  to  ahmony,  by  the  English 
doctrine  and  that  of  most  of  the  states  in  this  country,  has  no  in- 
dependent existence,  but  is  ancillary  to  some  other  proceeding.* 
But  some  of  the  courts  in  this  country  have  unreasonably  exer- 
cised the  authority  of  decreeing  alimony  without  divorce, 
invoking,  to  enable  them  to  do  this,  the  aid  of  their  ordinary 
equity  powers.* 


1.  Rees  V.  Waters,  9  Watts  (Pa.)  93; 
Lawson  v.  Shotwell,  27  Miss.  630; 
Bankston  v.  Bankston,  27  Miss.  692; 
Jones  V.  Jones,  18  Me.  311,  36  Am. 
Dec.  723;  Peltier  v.  Peltier,  Harr. 
(Mich.)  19;  Carroll  v.  Carroll,  42  La. 
Ann.  1071;  Head  v.  Head,  3  Atk.  547; 
Ball  V.  Montgomery,  2  Ves.  Jr.  191. 

In  Louisiana  a  wife  has  no  right  of 
action  during  marriage  against  her 
husband  for  alimony  unless  a  demand 
is  made  either  for  a  separation  or  a 
divorce.  Carroll  v.  Carroll,  42  La. 
Ann.  1072. 

And  see  Clark  v.  Clark,  78  Ga.  79; 
Legard  v.  Johnson,  3  Ves.  Jr.  352. 
For  a  full  treatment  of  the  right  to 
alimony  and  the  amount  grantable, 
see  Am.  &  Eng.  Ency.  Law,  tit.  Ali- 
mony. 

2.  I  Bish.  on  M.,  D.,  &  S.  §§  1393- 
1401. 

Alabama. — Glover  v.  Glover,  16  Ala. 
440;  Kinsey  v.  Kinsey,  37  Ala.  393; 
Wray  v.  Wray,  33  Ala.  187;  Hinds  v. 
Hinds,  80  Ala.  225;  Murray  v.  Murray, 
84  Ala.  363. 

Arkansas. — Wood  v.  Wood,  54  Ark. 
172. 

California. — Civil  Code,  §  136;  Gal- 
land  V.  Galland,  38  Cal.  265;  Hagle  v. 
Hagle,  68  Cal.  588;  Poole  v.  Wilber, 
95  Cal.  339. 

Iowa. — Graves  v.  Graves,  36  Iowa 
310,  14  Am.  Rep.  525,  where,  admitting 
that  the  great  weight  of  authority  is 
the  other  way,  the  jurisdiction  is 
nevertheless  entertained  on  the 
ground  of  preventing  multiplicity  of 
suits,  and  of  there  being  no  adequate 
relief  at  law.  Finn  v.  Finn,  62  Iowa 
482. 

Kentucky. — Butler  v.  Butler,  4  Litt. 
(Ky.)  201;  Griffin  v.  Griffin,  8  B.  Mon. 
(Ky.)  120;  Gaines  v.  Gaines,  9  B.  Mon. 
(Ky.)  295,  48  Am.  Dec.  425;  Logan  v. 
Logan,  2  B.  Mon.  (Ky.)  142;  Lockridge 
V.  Lockridge,  3  Dana(Ky.)  28,  28  Am. 
Dec.  52;  Boggess  v.  Boggess,  4  Dana 
(Ky.)  307. 


Mississippi. — Garland  v.  Garland,  50 
Miss.  694,  a  decision  which  is  in  con- 
flict with  Lawson  v.  Shotwell,  27  Miss. 
630.  See  also  McFarland  v.  McFar- 
land,  64  Miss.  449;  Verner  v.  Verner, 
62  Miss.  260. 

Maryland. — Wallingsford  v.  Wall- 
ingsford,  6  Har.  &  J.  (Md.)  485,  where 
the  court  said:  "There  can  be  no 
doubt  the  courts  of  equity  in  this 
state  have  jurisdiction  in  such  cases 
[applications  for  alimony  without  di- 
vorce], and  will  decree  relief  where  a 
proper  foundation  is  laid  for  it.  Their 
authority  depends  not  merely  on  the 
constructive  powers  given  to  our 
courts  of  chancery,  but  is  expressly 
delegated  by  the  act  of  1777,  ch.  12." 

The  following  cases  may  also  be 
consulted:  Helms  v.  Franciscus,  2 
Bland  (Md.)544;  Fornshill  w.  Murray. 
I  Bland  (Md.)  479,  18  Am.  Dec.  344; 
McNamara's  Case,  2  Bland  (Md.)  566, 
note;  Scott's  Case,  2  Bland  (Md.)  568, 
note;  Govane's  Case,  2  Bland  (Md.) 
570,  note;  Jamison  v.  Jamison,  4  Md. 
Ch.  289;  Hewitt  v.  Hewitt,  i  Bland 
(Md.)  loi;  Crane  v.  Meginnis,  i  Gill  & 
J.  (Md.)  463;  Wright  v.  Wright,  2  Md. 
429,  46  Am.  Dec.  723;  Wilkes  v.  Wilkes, 
3  Md.  i;  Dunnock  v.  Dunnock,  3  Md. 
Ch.  140;  Galwith  v.  Galwith,  4  Har.  & 
M.  (Md.)  477;  Keerl  v.  Keerl,  34  Md. 
25;  Tayman  v.  Tayman,  2  Md.  Ch. 
398;  Coles  V.  Coles,  2  Md.  Ch.  347; 
Ricketts  v.  Ricketts,  4  Gill  (Md.)  109; 
Wiles  V.  Wiles,  3  Md.  7;  Feigley  v. 
Feigley,  7  Md.  563,  61  Am.  Dec.  375; 
Schindel  v.  Schindel,  12  Md.  294;  J.  G. 
V.  H.  G.,  33  Md.  401,  3  Am.  Rep.  183. 

North  Carolina.  —  Anonymous,  i 
Hayw.  (N.  Car.)  347;  Spiller  r/.  Spiller, 

1  Hayw.  (N.  Car.)  482. 

Ohio. — Bascom  v.  Bascom,  Wright 
(Ohio)  632;  Questel  v.  Questel,  Wright 
(Ohio)  491;  D'Arnsmont  v.  D'Arns- 
mont,  4  Law  Rep.  321. 

South  Carolina. — Jelineau  v.  Jelineau, 

2  Desaus.    Eq.   (S.   Car.)   45;   Anony- 
mous, 2    Desaus.    Eq.    (S.    Car.)   198; 


408 


General  Observations. 


ALIMONY. 


As  an  Independent  Bight. 


In  many  states  also  the  power  of  granting  alimony  without 
divorce  has  been  given  by  statute,  so  that  in  one  way  or  another 
this  jurisdiction  widely  prevails.* 

b.  Jurisdiction  and  Procedure. — In  cases  where  alimony  is 
granted  ^s  an  independent  right  and  not  as  a  mere  incident  to 
divorce,  jurisdiction  usually  belongs  to  the  chancery  courts  of  the 
state  where  the  parties,  or  one  of  them  at  least,  are  domiciled.* 

And  in  general  the  practice  and  procedure  are  similar,  or 
analogous,  to  that  of  suits  for  alimony  with  divorce.^ 


Prather  v.  Prather,  4  Desaus.  Eq.  (S. 
Car.)  33;  Mattison  v.  Mattison,  i  Strob. 
Eq.  (S.  Car.)  387,  47  Am.  Dec.  541: 
Prince  v.  Prince,  i  Rich.  Eq.  (S.  Car.) 
282;  Rhame  v.  Rhame,  i  McCord  Eq. 
(S.  Car.)  197,  16  Am.  Dec.  597,  where- 
in it  is  said:  "That  the  courts  of 
equity  in  this  state  have  jurisdiction 
in  cases  of  alimony  is  now  settled  by 
the  long  practice  of  this  court.  From 
necessity,  such  jurisdiction  must  exist 
somewhere;  and  there  is  no  tribunal  in 
the  state  where  it  can  be  so  well  exer- 
cised as  in  that  court.  It  belongs  to 
the  ecclesiastical  court  in  England,  but 
we  have  no  such  court  in  this  state. 
And  even  in  England,  during  the  Revo- 
lution, when  the  ecclesiastical  courts 
were  shut  up,  equity  took  cog- 
nizance of  such  cases,  i  Madd.  Ch. 
386.  ...  In  England  it  appears 
that  alimony  is  allowed  only  where  a 
separation  is  decreed.  And  although 
our  courts  of  equity  have  not  the 
power  to  grant  divorce,  yet,  as  the  two 
subjects,  divorce  and  alimony,  are  in- 
separable companions  in  England,  we 
must  look  to  the  causes  of  divorce 
to  ascertain  the  grounds  on  which  ali- 
mony will  be  allowed."  Converse  v. 
Converse,  9  Rich.  Eq.  (S.  Car.)  535; 
Hair  v.  Hair,  10  Rich.  Eq.  (S.  Car.) 
163;  Threewitsz/.  Threewits,  4  Desaus. 
Eq.  (S.  Car.)  560;  Briggs  v.  Briggs,  24 
S.  Car.  377. 

Texas. — Walker  v.  Stringfellow,  30 
Tex.  570. 

Virginia. — Almond  v.  Almond,  4 
Rand.  (Va.)  662,  15  Am.  Dec.  781; 
Purcell  V.  Purcell,  4  Hen.  &  M.  (Va.) 
507. 

1.  See  Am.  &  Eng.  Ency.  Law,  tit. 
Alimony. 

Allowance  where  Divorce  Refused. — 
An  allowance  under  statute  may 
sometimes  be  granted  where  a  divorce 
is  refused.  Wis.  Ann.  Sts.  §  2366; 
Cray  v.  Cray,  32  N.  J.  Eq.  25.  And 
an  appeal  will  lie  from  the  judgment 


refusing  such  allowance.  Graves  v. 
Graves,  50  Ohio  St.  196.  And  so  a 
petition  for  injunction,  divorce,  and 
alimony  may  be  amended  by  striking 
out  the  prayer  for  divorce.  Price  v. 
Price,  90  Ga.  244. 

Alimony  After  Legislative  Divorces  has 
been  sometimes  granted  by  the  courts, 
as  where  the  act  of  divorce  reserves  the 
right  to  the  judicial  tribunal  to  grant 
alimony,  Richardson  v.  Wilson,  8 
Yerg.  (Tenn.)67;  or  where  the  divorce 
is  a  mensa  et  thoro.  Crane  v.  Megin- 
nis,  I  Gill  &  J.  (Md.)  463.  See  also 
Gaines  v.  Gaines,  9  B.  Mon.  (Ky.)  295, 
48  Am.  Dec   425. 

A  legislative  divorce  act  cannot  give 
the  wife  alimony.  To  do  so  would  be 
an  exercise  of  judicial  authority  and 
therefore  void.  Crane  v.  Meginnis,  I 
Gill  &  J.  (Md.)463. 

2.  See  Am.  &  Eng.  Ency.  Law,  tit. 
Alimony.  Babbitt  v.  Babbitt,  69  111. 
277,  where  it  was  held  that  one  of 
the  parties  must  reside  in  the  county 
where  the  suit  is  brought.  Jami- 
son V.  Jamison,  4  Md.  Ch.  289 ; 
Glover  v.  Glover,  16  Ala.  440 ; 
Keerl  v.  Keerl,  34  Md.  21,  where, 
neither  party  having  domicil  in  the 
state,  though  the  husband  owned  prop- 
erty there,  the  court  said:  "  To  give 
jurisdiction  to  our  courts  in  such 
cases,  one  or  other  of  the  parties 
must  be  domiciled  within  the  state." 
But  see  Litowich  v.  Litowich,  19  Kan. 
451,  27  Am.  Rep.  145. 

3.  I  Bish.  on  M.,  D.,  &  S.  ^§  1412- 
1421  ;  Stewart  on  M.  &  D.  gg  179,  367: 
Miller  v.  Miller,  i  N.  J.  Eq.  386; 
Almond  v.  Almond,  4  Rand.  (Va.)  662, 
15  Am.  Dec.  781. 

Florida. — "  Proceedings  against  ab- 
sent defendants  in  suits  for  alimony 
shall  be  the  same  as  in  other  chancery 
cases."     Rev.  Sts.  i;  14SS. 

Circumstances  under  which  Bight 
Granted. — In  those  states  in  which 
stNtutes  give  this  right,  they  usually 


409 


Genefal  Observations. 


ALIMONY. 


As  an  Independent  Bight. 


c.  Decree. — The  decree  cannot  be  for  a  separation  which  the 
court  has  not  the  power  to  grant  ;*  nor  can  it  be  for  specific  prop- 
erty, unless  under  statutes,  but  merely  for  a  periodical  allowance.*-* 

Conditions. — Usually  the  decree  is  that  the  husband  pay  alimony 
until  reconciliation,  or  until  he  will  take  back  his  wifd  and  treat 
her  properly,^ 


define  the  circumstances  under  which 
it  is  granted.  But  where  courts  as- 
sume jurisdiction  in  these  cases  with- 
out statutory  aid,  the  conditions  of 
their  doing  so  are  not  clearly  to  be 
deduced  from  the  cases.  Stewart  on 
M.  &  D.  §  179. 

Temporary  Alimony,  by  the  weight  of 
authority,  may  be  granted,  an  allow- 
ance which  Mr.  Bishop  says  there  is 
no  just  ground  to  dispute,  i  Bish.  on 
M.,  D.,  &S.  §  1411;  Am.  &  Eng.  Ency. 
Law,  tit.  Alimony;  Verner  v.  Verner, 
62  Miss.  260;  McFarland  v.  McFar- 
land,  64  Miss.  449;  Daniels  v.  Daniels, 
9  Colo.  133;  Johnson  v.  Johnson, 
20  111.  App.  495,  overruling  Foss 
V.  Foss,  2  111.  App.  411;  Holleman 
V.  Holleman,  6g  Ga.  676;  Vreeland 
V.  Vreeland,  18  N.  J.  Eq.  43.  But 
see  Finn  v.  Finn,  62  Iowa  482,  where 
an  order  of  the  lower  court  that  de- 
fendant pay  money  to  enable  plaintiff 
to  carry  on  the  action,  but  denying  a 
motion  for  temporary  alimony,  was 
affirmed. 

As  well  as  costs  and  counsel  fees. 
Finn  v.  Finn,  62  Iowa  482  ;  Harding 
V.  Harding,  144  111.  588  ;  cases  supra. 

And  additional  counsel  fees  on  ap- 
peal.    Ex  p.  Winter,  70  Cal.  291. 

But  the  petition  should  make  out  a 
prima-facie  case  and  be  supported  by 
verification  and  aflSdavit.  Daniels  v. 
Daniels,  9  Colo.  133. 

And  oral  testimony  may  be  taken 
by  the  chancellor  to  assist  him  in  de- 
termining the  amount  of  alimony /^«- 
dente  lite,  where  proof  by  deposition 
would  have  caused  unnecessary  delay. 
McFarland  v.  McFarland,  64  Miss. 
449.  See  Lochnane  v.  Lochnane,  78 
Ky.  467. 

Relief. — But  the  writ  ne  exeat  (Yule 
V.  Yule,  10  N.  J.  Eq.  138  ;  Anshutz  v. 
Anshutz.  16  N.  J.  Eq.  162  ;  Peltier  v. 
Peltier,  Harr.  (Mich.)  19;  Anonymous, 
1  Hayw.  (N.  Car.)  347  ;  Prather  v. 
Prather,  4  Desaus.  Eq.  (S.  Car.)  33) 
ana  an  Injunction  will  be  granted. 
Greenland  v.  Brown,  i  Desaus.  Eq. 
(S.  Car.)  196  ;  Anshutz  v.  Anshutz,  16 
N.  J.  Eq.  166;  Peltier  v.  Peltier,  Harr. 
(Mich.)  19. 

410 


And  the  affidavit  of  the  wife  is  alone 
sufficient  to  support  the  order.  Yule 
V.  Yule,  10  N.  J.  Eq.  138. 

It  is  not  necessary  in  these  suits 
for  the  wife  to  sue  by  prochein  ami. 
Knight  V.  Knight,  2  Hayw.  (N.  Car.) 
loi.  But  see  Peltier  v.  Peltier,  Harr. 
(Mich.)  19. 

And  it  is  held  in  Georgia  that,  in 
proceedings  for  alimony  under  the 
Code,  where  there  is  no  divorce  pend- 
ing, relief  may  be  granted  by  injunc- 
tion or  the  appointment  of  a  receiver 
or  otherwise,  and  that  to  this  end  all 
necessary  parties  may  be  joined  as 
defendants.  Price  v.  Price,  90  Ga. 
244. 

And  it  is  provided  by  statute  in 
Indiana  that  creditors  must  be  joined 
as  parties  in  this  suit.  Rev.  Sts.  § 
5132. 

Where  Answer  Alleges  Insanity  of 
plaintiff,  temporary  alimony  and  coun- 
sel fees  may  yet  be  granted  without 
awaiting  the  determination  of  this 
issue  or  praying  the  appointment  of  a 
guardian  ad  litem  for  her.  Storke  v. 
Storke,  99  Cal.  621. 

1.  Jelineau  v.  Jelineau,  2  Desaus. 
Eq.  (S.  Car.)  45;  Anonymous,  2  De- 
saus. Eq.  (S.  Car.)  198. 

2.  Almond  v.  Almond,  4  Rand.  (Va.) 
662,  15  Am.  Dec.  781;  Purcell  v.  Pur- 
cell,  4  Hen.  &  M.  (Va.)  507;  Lock- 
ridge  V.  Lockridge,  3  Dana  (Ky.)  28, 
28  Am.  Dec.  52;  Wallingsford  v.  Wal- 
lingsford,  6  Har.  &  J.  (Md.)  485; 
Hewitt  V.  Hewitt,  i  Bland  (Md.)  loi. 
See  also  i  Bish.  on  M.,  D.,  &  S.  §  1415. 

The  court  deals  only  with  the  in- 
come of  the  husband's  property,  and 
not  divesting  the  title  to  any  part  of 
it  or  permanently  depriving  him  of 
its  use.      Murray  v.  Murray,   84  Ala. 

363- 

3.  I  Bish.  on  M.  D.  &S.  8  1417;  Anon- 
ymous, 2  Desaus.  Eq.  (S.  Car.)  19S; 
Hewitt  V.  Hewitt,  i  Bland  (Md.)  loi; 
Prather  v.  Prather,  4  Desaus.  Eq.  (S. 
Car. )  33;  Rhame  v.  Rhame,  i  McCord 
Eq.  (S.  Car.)  209,  16  Am.  Dec.  597; 
Purcell  V.  Purcell,  4  Hen.  &  M.  (Va.) 
507. 

Pennsylvania. — In    this    state   a  di- 


General  Observations. 


ALIMONY. 


As  an  Independent  Bight. 


Duration  of  Payment. — And  the  payment  cannot  be  ordered  for  the 
term  of  the  wife's  life,  but  only  during  the  joint  lives  of  wife  and 
husband.^ 


vorce  a  mensa  et  thoro  and  alimony  may 
be  decree  in  certain  cases,  "which 
shall  continue  until  a  reconciliation 
shall  take  place,  or  until  the  husband 
shall,  by  his  petition  or  libel,  offer  to 
receive  and  cohabit  with  her  again, 
and  to  use  her  as  a  good  husband 
ought  to  do;  and  then  in  such  case 
the  court  may  either  suspend  the 
aforesaid  sentence  or  decree,  or  in 
case  of  her  refusal  to  return  and  co- 
habit, under  the  protection  of  the 
court,  discharge  and  annul  the  same 
according  to  their  discretion;  and  if 
he  fail  in  performing  said  offers  and 
engagements,  the  former  sentence  or 
decree  may  be  revived  and  enforced, 
and  the  arrears  of  alimony  ordered  to 
be  paid."     Bright.   Pur.   Dig.  p.    688, 

§31. 

Temporary  Decree. — A  decree  in  these 
cases  is  therefore  in  its  nature  tem- 
porary; and  when  obtained  in  a  state 
where  the  parties  had  only  a  tempora- 
ry residence,  it  will  probably  have 
force  only  so  long  as  this  residence 
continues,  or  at  least  until  a  decree  of 
divorce  is  granted  in  the  state  in  which 
the  parties  have  their  permanent  resi- 
dence. Harrison  v.  Harrison,  20  Ala. 
629,  56  Am.  Dec.  227;  2  Bish.  on  M., 
D.,  &  S.  §§  70,  71. 

Decree  in  Another  State. — But  a  de- 
cree for  alimony  without  divorce  ob- 
tained in  one  state  will  be  enforced  in 
another,  which  does  not  recognize 
this  doctrine,  by  comity.  Stewart  v. 
Stewart,  27  W.  Va.  167. 

1.  Briggs  V.  Briggs,  24  S.  Car.  377; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  52. 

Revision. — The  decree  is  usually  sub- 
ject to  revision  or  amendment,  as  cir- 
cumstances may  require.  Wade  v. 
Wade  (Cal.,  1892).  31  Pac.  Rep.  258; 
Anonymous,  i  Desaus.  Eq.  (S.  Car.) 
113;  Thomas  v.  Thomas,  44  111.  App. 
604;  Whorwood  v.  Whorwood,  i  Rep. 
Ch.  223;  Purcell  v.  Purcell,  4  Hen.  & 
M.  (Va.)  507;  Murray  v.  Murray,  84 
Ala.  363;  Hewitt  v.  Hewitt,  i  Bland 
(Md.)  loi;  Lockridge  v.  Lockridge,  3 
Dana  (Ky.)  28,  28  Am.  Dec.  52;  Logan 
V.  Logan,  2  B.  Mon.  (Ky.)  142.  And 
an  original  bill  may  be  maintained  to 
set  the  decree  aside.  Whorwood  v. 
Whorwood,  Rep.  Ch.  223. 


Bonds  to  Keep  the  Peace  have  been  re- 
quired of  the  husband  as  a  part  of  the 
decree.  Threewits  v.  Threewits,  4 
Desaus.  Eq.  (S.  Car.)  560. 

Enforcing  Decree. — This  is  done  by 
sequestration.  Anonymous,  i  Hayw. 
(N.  Car.)  347;  Spiller  v.  Spiller,  i 
Ilayw.  (N.  Car.)  482;  attachment  for 
contempt, Davis'Appeal,  90  Pa.  St.  131; 
Com.  V.  Jones,  90  Pa.  St.  431 ;  Purcell  v. 
Purcell,  4  Hen.  &  M.  (Va.)  507;  making 
decree  a  lien  on  real  estate,  Questel 
V.  Questel,  Wright  (Ohio)  491;  plac- 
ing husband's  property  in  the  hands 
of  a  receiver  or  trustee,  Murray  v, 
Murray,  84  Ala.  363;  or  by^.  fa.,  pre- 
ceded by  petition  for  same,  as  each 
instalment  becomes  due,  Hewitt  v. 
Hewitt,  I  Bland  (Md.)  loi.  And  se- 
curity of  some  sort  is  generally  re- 
quired.    Cases  supra. 

Ih  Pennsylvania  it  has  been  held 
that  the  surety  of  one  ordered  to  pay 
alimony  may  surrender  the  body  of 
the  defendant  to  custody  and  be  him- 
self released  from  his  recognizance. 
Com.  V.  Jones,  90  Pa.  St.  431. 

Avoidance  of  Decree. — The  decree  is 
avoided  by  a  renewal  of  cohabitation. 
Wallingsford  v.  Wallingsford,  6  Har. 
&  J.  (Md.)  485;  Hewitt  v.  Hewitt,  i 
Bland  (Md.)  loi;  Prather  v.  Prather, 
4  Desaus.  Eq.  (S.  Car.)  33;  Purcell  v, 
Purcell,  4  Hen.  &  M.  (Va.)  507;  Wade 
V.  Wade  (Cal.,  1892),  31  Pac.  Rep.  258. 
And  is  probably  barred  by  promise  of 
good  conduct,  if  the  court  is  con- 
vinced it  is  made  in  good  faith.  Ken- 
ley  V.  Kenley,  2  How.  (Miss.)  751. 
And  see  Almond  v.  Almond,  4  Rand. 
(Va.)  662,  15  Am.  Dec.  781:  i  Bish.  ou 

M.,D.,&S.  §§1538,  1539- 

Abatement. — Suit  for  independent  ali- 
mony abates  on  the  death  of  one  of  the 
parties,  i  Bish.  on  M.,  D.,  &  S.  §  1420. 
And  if  the  wife  did  not  bring  suit  dur- 
ing the  husband's  life  she  has  no 
rights  which  she  can  enforce  against 
his  estate.  Anonymous,  2  Desaus. 
Eq.  (S.  Car.)  198;  Gaines  v.  Gaines,  9 
B.  Mon.  (Ky.)  295,  48  Am.  Dec.  425; 
Glenn  v.  Glenn,  7  T.  B.  Mon.  (Ky.) 
285,  where  the  court  said  :  "  A  bill, 
after  the  death  of  the  husband,  for 
alimony  from  the  time  of  abandon- 
ment to  her  husband's  death  is  a  new 
species  of  suit,  without  precedent,  and 


411 


Jurisdiction. 


ALIMONY. 


Divorce  Courts — Domicil. 


2.  As  Incident  to  Some  Other  Proceeding.  — But,  as  stated  above, 
the  right  to  alimony  is,  according  to  the  better  view,  merely  inci- 
dent to  some  other  proceeding,^  commonly  that  of  divorce  ;'-*  and 
it  is  in  this  regard  that  we  shall  hereafter  consider  it. 

II.  JUKISDICTION — 1.  Divorce  Courts. — Alimony  being  in  general 
granted  as  an  incident  of  divorce,  the  jurisdiction  is  therefore  a 
part  of  the  jurisdiction  of  divorce  suits,  and  belongs  to  the  divorce 
courts,  whether  courts  of  law  or  equity.^ 

2.  Domicil. — The  plaintiff  must  generally  be  domiciled*  within 
the  state,  in  order  to  give  the  courts  of  the  state  jurisdiction,* 


against  the  principles  upon  which  a 
suit  for  alimony  is  sustained."  See 
also  Wallingsford  v.  Wallingsford,  6 
Har.  &.  J.  (Md.)  485;  Lawson  v.  Shot- 
well,  27  Miss.  630;  Sackett  v.  Giles,  3 
Barb.  Ch.  (N.  Y.)  204. 

But  a  decree  dismissing  a  bill  for 
alimony  is  no  bar  to  another  suit 
founded  upon  subsequently  accruing 
causes.  Griffin  v.  Griffin,  8  B.  Mon. 
(Ky.)  120. 

Appeal  from  Order. — An  order  allow- 
ing temporary  alimony  and  counsel 
fees  is  such  a  final  order  as  is  appeal- 
able under  the  Code  of  Colorado. 
Daniels  v.  Daniels,  9  Colo.  133. 

1.  4nte,  I,  I  a.  p.  408. 

2.  2  Bish.  on  M.,  D.,&S.§  852;  Bow- 
man V.  Worthington,  24  Ark.  537; 
Foss  V.  Foss,  2  111.  App.  413;  Adams 
V.  Adams,  100  Mass.  365,  i  Am.  Rep. 
iii;  McGee  v.  McGee,  10  Ga.  486; 
Fischli  V.  Fischli,  i  Blackf.  (Ind.)  360. 
12  Am.  Dec.  251;  Damon  v.  Damon, 
28  Wis.  514;  Prosser  z^.  Warner,  47  Vt. 
667,  19  Am.  Rep.  132;  Parsons  v.  Par- 
sons, 9  N.  H.  309,  32  Am.  Dec.  362; 
Lamy  v.  Catron  (N.  Mex.,  1890),  23 
Pac.  Rep.  773;  Harshberger  v.  Harsh- 
berger,  26  Iowa  503. 

Supplicavit  for  Security  of  Peace. — It 
is  doubtful  whether  permanent  ali- 
mony can  be  granted  to  a  wife  upon  a 
supplicavit  for  security  of  the  peace, 
against  her  husband,  i  Bish.  on  M., 
D.,  &  S.  §  1389  and  note  3.  It  seems, 
indeed,  questionable  whether  the  writ 
of  supplicavit  can  now  be  granted  at 
all,  the  remedy  at  law  being  adequate. 
In  a  recent  Massachusetts  case  it  was 
refused.  Adams  v.  Adams,  100  Mass. 
365,  I  Am.  Rep.  iii.  See  also  Ball  v. 
Montgomery,  2  Ves.  Jr.  191;  Duncan 
V.  Duncan,  19  Ves.  Jr.  394;  Lambert 
V.  Lambert,  2  Bro.  Pari.  R.  (Tomlins' 
ed.)  18;  Prather  v.  Prather,  4  Desaus. 
Eq.  (S.  Car.)  33:  Codd  v.  Codd,  2 
Johns.  Ch.  (N.  Y.)  141. 


Nullity  Suits.^ — No  alimony  can  be 
granted  with,  or  as  supplementary  to, 
a  decree  pronouncing  an  alleged  mar- 
riage void  for  a  cause  existing  at  the 
time  of  the  marriage.  Am.  &  Eng. 
Ency.  Law,  tit.  Alimony. 

3.  Chaires  v.  Chaires,  10  Fla.  308; 
Fischli  V.  Fischli,  i  Blackf.  (Ind.)  360, 
12  Am.  Dec.  251;  Taylor  z/.  Gladwin, 
40  Mich.  232;  Lawson  v.  Shotwell,  27 
Miss.  630,  Phelps  v.  Baker,  60  Barb. 
(N.  Y.)  107;  McGee  v.  McGee,  10  Ga. 
477;  Stewart  on  M.  &  D.  §366. 

Removal  of  Cause. — The  court  whence 
a  case  by  motion  is  being  removed 
has  yet  authority,  pending  the  motion, 
to  decree  temporary  alimony  and  suit 
money.     Moe  v.  Moe,  39  Wis.  308. 

4.  "The  rule  is,"  says  Swayne,  J., 
"  that  she  [a  wife]  may  acquire  a  sepa- 
rate domicil  whenever  it  is  necessary 
or  proper  for  her  to  do  so.  The  right 
springs  from  the  necessity  for  its  ex- 
ercise, and  endures  as  long  as  the 
necessity  continues.  The  proceedings 
for  divorce  may  be  instituted  where 
the  wife  has  her  domicil.  The  place 
of  the  marriage,  of  the  offense,  and 
the  domicil  of  the  husband  are  of  no 
consequence."  Cheever  v.  Wilson,  9 
Wall.  (U.  S.)  108. 

Again,  in  Gould  v.  Crow,  57  Mo.  200, 
it  is  said:  "Some  courts  hold  that  a 
wife  cannot  have  a  separate  domicil 
from  her  husband;  but  this  doctrine 
has  been  exploded,  and  the  current  of 
authority  is  that  she  may  have  a  sepa- 
rate domicil  for  the  purposes  of  di- 
vorce." See  also  Dutcher  v.  Dutcher, 
39  Wis.  651;  Am.  &  Eng.  Ency.  Law, 
tit.  Domicil. 

5.  Cook  v.  Cook,  56  Wis.  195,  43  Am. 
Rep.  706;  Thompson  v.  State,  28  Ala. 
12;  Wilcox  V.  Wilcox,  10  Ind.  436; 
Leith  V.  Leith,  39  N.  H.  20.  So  in 
House  V.  House,  25  Ga.  473,  it  was 
held  that,  "  where  neither  party  was 
in  the  state,  or  was  a  citizen  in,  or  a 


412 


Jurisdiction. 


ALIMONY.        Defendant  Domiciled  in  State. 


3.  Appearance  of  Defendant. — And  although  a  divorce  ex  parte 
may  be  obtained  on  constructive  service,  yet  no  alimony  can  be 
decreed  unless  the  defendant  appears  to  the  action  in  person 
or  by  attorney,^  or  has  been  duly  served  with  process  within  the 
jurisdiction  of  the  court.* 

4.  Defendant  Domiciled  in  State. — But  it  seems  that  if  the  defend- 
ant is  domiciled  within  the  state,  aUmony  may  be  decreed  against 
him  on  constructive  service,  at  least  if  the  statutes  of  the  state 
allow  it.^ 


resident  of,  the  state,  or,  as  far  as  it 
appeared,  had  property  in  the  state," 
it  was  "  a  case  over  which  no  court  of 
the  state  had,  or  could  have,  any 
jurisdiction — a  case  to  which  no  law 
of  the  state  could  possibly  extend." 

Under  the  laws  of  Wisconsin  a  non- 
resident plaintiff  cannot  maintain  an 
action  for  divorce  in  that  state,  even 
though  the  defendant  be  a  resident 
there.  Dutcher  v.  Butcher,  39  Wis. 
651. 

1.  Sanford  v.  Sanford,  5  Day  (Conn.) 
53,  the  court  saying  :  "  In  the  present 
case  the  respondent  was  not  merely 
nominally  in  court;  he  was  actually  in 
court,  like  any  other  suitor  with  his 
counsel,  an  officer  of  the  court,  duly 
retained  in  the  cause.  This  gave  the 
court  jurisdiction,  as  a  court  of  chan- 
cery, to  pass  a  decree  in  personam." 
But  the  defendant  may  disprove  the 
authority  of  the  attorney  to  appear 
for  him.  Nichols  v.  Nichols,  25  N. 
J.  Eq.  60.  See  also  Gould  v.  Crow,  57 
Mo.  200.     See  Appearances. 

2.  Cooley  Const.  Lim.  499;  Harding 
V.  Alden,  g  Me.  i4o;Prosser  z/.  Warner, 
47  Vt.  667,  19  Am.  Rep.  132;  Lytle  v. 
Lytle,  48  Ind.  200;  Middleworth  v, 
McDowell,  49  Ind.  386;  Turner  v. 
Turner,  44  Ala.  437;  Beard  v.  Beard, 
21  Ind.  321;  Madden  v.  Fielding,  19 
La.  Ann.  505;  Ellison  v.  Martin,  53 
Mo.  575;  Gould  V.  Crow,  57  Mo.  200; 
Leith  V.  Leith,  39  N.  H.  20;  Nichols 
V.  Nichols,  25  N.  J.  Eq.  60;  Maguire 
V.  Maguire,  7  Dana  (Ky.)  181;  Bun- 
nell V.  Bunnell,  25  Fed.  Rep.  214. 
See  also  State  v.  Hennepin  County  Ct., 
42  Minn.  40.  But  see  Doughty  v. 
Doughty,  27  N.  J.  Eq.  315,  affirmed  in 
28  N.  J.  Eq.  581.  Where  defendant  is 
served  but  does  not  appear,  alimony 
may  be  decreed  against  him  without 
further  notice.  Park  v.  Park,  80  N.  Y. 
156,  affirftiing  18  Hun  (N.  Y.)  466. 

Alimony  Decree  in  Personam.  —  The 
reason  for  this    rule   is    that     a    de- 


cree for  alimony  is  a  decree  in  per- 
sonam, and  is  void  without  personal 
service  on  the  defendant  or  his  ap- 
pearance. Campbell  v.  Campbell,  37 
Wis.  206;  Russell  v.  Russell,  4  Greene 
(Iowa)  26,  61  Am.  Dec.  112;  Maguire 
V.  Maguire,  7  Dana  (Ky.)  181;  Miller 
V.  Miller.  75  N.  Car.  70;  Beard  v. 
Beard,  21  Ind.  321;  Pennoyer  v.  Neff, 
95  U.  S.  714;  Turner  v.  Turner,  44 
Ala.  437;iOdom  v.  Odom,  36  Ga.  286; 
Wallingsford  v.  Wallingsford,  jC  Har. 
&J.  (Md.)485;  Garner  v.  Garner,  56 
Md.  127,  where  it  was  also  held  that 
so  much  of  the  decree  as  prevents  a 
non-resident  defendant  from  marrying 
again  is  in  personam  and  therefore 
void.  Hunt  v.  Hunt,  72  N.  Y. 
217,  28  Am.  Rep.  129.  And  see 
People  V.  Baker,  76  N.  Y.  78,  32  Am. 
Rep.  274;  Stewart  on  M.  &  D.  §  217a; 
Bish.  on  M.,  D.,  &  S.  §  79. 

Where  Land  Within  Jurisdiction  of 
Court. — And  the  rule  is  not  otherwise 
even  when  there  is  land  within  the 
jurisdiction  of  the  court,  Bunnell  v. 
Bunnell,  25  Fed.  Rep.  214;  and  cer- 
tainly not  where  neither  party  is  domi- 
ciled within  the  state,  Keerl  v.  Keerl, 
34  Ind.  21.  But  see  Stewart  on  M.  & 
D.  §  366;  Johnson  v.  Johnson,  31  Neb. 
385;  Ellison  V.  Martin,  53  Mo.  575, 
where  it  was  doubted  whether,  in  a 
divorce  suit  by  publication,  not  fol- 
lowed by  appearance,  property  could 
be  brought  before  the  court  by  de- 
scribing it  in  the  petition,  and  a  judg- 
ment in  rem  for  alimony  be  demanded 
thereupon. 

The  court  of  a  county  in  which  an  ali- 
mony suit  is  brought  is  without  juris- 
diction to  order  the  sale  of  land  in 
another  county.  Wilmot  v.  Cole,  23 
Wkly.  Law  Bull.  (Ohio)  339;  Bunch  v. 
Bunch,  26  Ind.  400. 

3.  Beard  v.  Beard,  21  Ind.  321; 
Phelps  V.  Baker,  60  Barb.  (N,  Y.)  107; 
Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121, 
8  Am.  Dec.  225. 


413 


Jorisdiction. 


ALIMONY. 


Dissolution  of  Marriage. 


5.  Application  after  Dissolution  of  Marriage. — The  grant  of  ali- 
mony being  a  mere  incident  to  a  suit  for  divorce,^  it  follows  that 
if  the  application  *  for  alimony  is  made  after  the  marriage  has  been 
wholly  dissolved*  it  will  be  denied,*  a  final  judgment  being  held 
to  settle  all  property  rights  between  the  parties.*  The  rule  is 
that  where  by  leave  of  court  a  suit  has  been  once  dismissed,*  or 
a  final  decree  entered,  the  court  has  no  longer  jurisdiction  over 
the  subject-matter  of  the  action,  or  over  the  parties,''  unless  this 
right  has  been  reserved  to  itself  by  the  decree  ®  or  by  statute.® 


Service  on  Solicitor. — And  where  an 
order  requiring  defendant  to  pay  ali- 
mony and  counsel  fees  cannot  be 
served  on  him  personally  because  he 
absents  himself  from  the  state,  service 
upon  his  solicitor  is  sufficient  to  make 
the  former  guilty  of  contempt  if  he 
disobeys  the  order.  Fairchild  v.  Fair- 
child  (N.  J.,  1888),  13  Atl.  Rep.  599. 

Property  in  Jurisdiction. — And  where 
the  wife  obtained  by  publication  a  de- 
cree for  divorce  and  alimony  against 
her  husband,  and  the  latter's  property 
was  within  the  jurisdiction  of  the 
court,  and  the  wife  brought  suit  to 
have  said  property  subjected  to  the 
payment  of  the  alimony  decree,  and 
the  husband  was  served,  and  appeared 
and  answered  to  said  suit,  it  was  held 
that,  in  spite  of  the  general  rule  that 
an  alimony  decree  obtained  solely  by 
publication  is  void,  yet,  since  the  prop- 
erty was  in  the  jurisdiction  of  the 
court,  and  the  husband  had  been 
served  and  had  answered,  and  it  was 
apparent  that  alimony  should  be 
granted,  the  decree  for  alimony  would 
be  sustained.  Johnson  v.  Johnson, 
31  Neb.  385. 

Temporary  Alimony. — An  order  for 
temporary  alimony  made  ex  parte 
where  husband  has  no  chance  to  be 
heard  will  be  set  aside;  and  an  order 
of  attachment  for  contempt  based 
thereon  is  void.  Sanchez  v.  Sanchez, 
21  Fla.  346.  But  see  Park  v.  Park, 
80  N.  Y.  156. 

Fraud.  —  Where  a  woman  fraudu- 
lently leaves  a  state  to  obtain  a  di- 
vorce with  alimony  in  another  state, 
the  husband  appearing  in  the  latter, 
the  decree  of  alimony,  at  least,  will 
not  be  enforced  in  the  courts  of  the 
state  that  she  fraudulently  left.  Jack- 
son V.  Jackson,  1  Johns.  (N.  Y.)  424. 

1.  And  the  general  doctrine  is  that 
a  decree  of  divorce  valid  by  the  laws 
of  the  state  where  granted  is  valid 
everywhere.  Cheever  v.  Wilson,  9 
Wall.  (U.  S.)  108.     But  not  where  the 


court  granting  the  same  had  no  juris- 
diction. Wright  V.  Wright,  24  Slich. 
181;  though  see  Doughty  v.  Doughty, 
27  N.  J.  Eq.  315. 

2.  And  it  does  not  matter  whether 
the  application  is  made  in  the  same 
— Wilde  V.  Wilde,  36  Iowa  319 — or  in 
a  different  court  from  that  in  which 
the  divorce  was  granted.  Fischli  v. 
Fischli,  I  Blackf.  (Ind.)  360,  12  Am. 
Dec.  254 

3.  And  this  may  be  by  death  as  well 
as  by  divorce.  O'Hagan  v.  O'Hagan, 
4  Iowa  509. 

4.  McQuien  v.  McQuien,  61  How. 
Pr.  (N.  Y.  C.  PI.)  280;  Wilde  v.  Wilde. 
36  Iowa  319  ;  Blythe  v.  Blythe,  25 
Iowa  266;  Holbrook  v.  Holbrook,  32 
La.  Ann.  13;  Kirrigan  v.  Kirrigan,  15 
N.  J.  Eq.  146;  Fischli  v.  Fischli,  i 
Blackf.  (Ind.)  360,  12  Am.  Dec.  251, 
where  the  court  said:  "Whenever  a 
matter  is  adjudicated  and  finally  de- 
termined by  a  competent  tribunal,  it 
is  considered  as  forever  at  rest.  This 
is  a  principle  upon  which  the  repose 
of  society  materially  depends,  and  it 
therefore  prevails,  with  a  very  few 
exceptions,  throughout  the  civilized 
world.  The  principle  not  only  em- 
braces what  actually  was  determined, 
but  also  extends  to  every  other  mat- 
ter which  the  parties  have  litigated  in 
the  case."  Jones  v.  Jones,  95  Ala. 
443;  Downey  v.  Downey,  98  Ala.  373; 
Harrison  v,  Harrison,  20  Ala.  649,  56 
Am.  Dec.  227. 

5.  Roe  V.  Roe,  52  Kan.  724. 

6.  Thompson  v.  Thompson,  3  Head 
(Tenn.)  527;  Chestnut  v.  Chestnut,  77 
111.  346. 

7.  Kamp  v.  Kamp,  59  N.  Y.  212  ; 
Johnson  v,  Johnson,  12  Daly  (N.  Y.) 
232. 

8.  Cooledge  v.  Cooledge,  i  Barb. 
Ch.  (N.  Y.)  77.  And  see  Petersine  v. 
Thomas,  28  Ohio  St.  599. 

9.  Stewart  on  M.  &  D.  §  370;  Mass. 
Pub.  Sts.  ch.  146,  §  36.  See  also  the 
case  of  a  legislative  divorce  where  the 


414 


Jorisdiction. 


ALIMONY. 


Divorce  Ex  Parte. 


6.  Where  Cause  Is  Still  Open. — But  if  the  divorce  is  a  7nensa 
et  thoro,  the  cause  is  regarded  as  still  being  open,  and  alimony 
may  be  granted  at  any  subsequent  time  or  term/  and  in  some 
cases  even  where  the  divorce  is  a  vinculo?' 

7.  Divorce  Ex  Parte. — So  also,  in  general,  it  may  be  said  that  if 
the  divorce  is  ex  parte,  a  decree  for  alimony  may  be  subsequently 
rendered  on  the  wife's  application  to  the  courts  of  her  husband's 
jurisdiction,  or  those  of  her  own,  if  he  can  be  found  there  and  per- 
sonally served.* 


act  granting  the  divorce  reserves  the 
right  to  the  judicial  tribunal  to  grant 
alimony.  Richardson  v.  Wilson,  8 
Yerg.  (Tenn.)  67. 

1.  2  Bish.  on  M.,  D.,  &  S.  g§  839-844; 
Stewart  on  M.  &  D.  §  370;  Covell  v. 
Covell,  L.  R.  2  P.  &  M.  411;  West- 
meath  v.  Westmeath,  3  Knapp  42; 
Cooke  V.  Cooke,  2  Phillim.  40;  Mc- 
Karracher  v.  McKarracher,  3  Yeates 
(Pa.)  56. 

But  in  Erkenbrach  v.  Erkenbrach, 
63  How.  Pr.  (N.  Y.  C.  PI.)  194,  ali- 
mony was  refused  in  the  case  of  a  di- 
vorce a  mensa  et  thoro,  where  applied 
for  by  motion  after  judgment.  This 
case  was  affirmed  in  12  Daly  (N.  Y.) 
258  and  96  N.  Y.  456,  and  followed  in 
Cullen  V.  Cullen,  55  N.  Y.  Super.  Ct. 
346,  and  Anderson  v.  Cullen  (C.  PI.), 
8  N.  Y.  Supp.  643. 

2.  Crugom  v.  Crugom,  64  Wis.  253; 
Wilde  V.  Wilde,  36  Iowa  319.  The  re- 
lief in  the  latter  case  was  granted  in  a 
subsequent  supplementary  proceeding 
which  set  forth  a  change  of  circum- 
stances. The  court  said:  "  An  action 
for  alimony  cannot  be  maintained  as 
an  independent  proceeding  after  a  di- 
vorce of  the  parties.  The  relation  of 
husband  and  wife  must  exist  to  justify 
a  judgment  for  an  allowance  of  this 
character  to  the  wife.  Blythez/.  Blythe, 
25  Iowa  266.  But  regarding  the  case 
as  presented  by  this  amended  petition 
as  a  proceeding  supplementary  to  the 
action  for  divorce  for  the  purpose  of 
modifying  the  decree  therein  rendered, 
affecting  the  property  of  the  defend- 
ant, that  pleading  is  defective  and  the 
demurrer  was  properly  sustained." 

And  in  Shotwell  v.  Shotwell,  i 
Smed.  &  M.  Ch.  (Miss.)  51,  the  court 
held  that  equity  had  jurisdiction  of  a 
bill  by  a  divorced  wife  for  alimony,  de- 
claring that  "the  right  to  alimony  is 
a  separate  and  distinct  right  resulting 
from  a  decree  for  a  divorce,  but  not 
identical  with  it."     See  also  Jordan  v. 


Jordan,  53  Mich;  550;  Lawson  v.  Shot- 
well,  27  Miss.  630. 

3.  Cook  V.  Cook,  56  Wis.  195,  43  Am. 
Rep.  706;  Rogers  v.  Rogers,  15  B.  Mon. 
(Ky.)364;  Stilphen  v.  Stilphen,  58  Me, 
508,  4  Am.  Rep.  305;  Nichols  v.  Nich- 
ols, 25  N.  J.  Eq.  60;  Wright  v.  Wright, 
24  Mich.  180;  Cox  V.  Cox,  19  Ohio  St.  ; 
502,  2  Am.  Rep.  415,  where  the  court 
said:  "The  question,  therefore,  is 
whether  the  ex-parte  divorce  can  be 
made  available,  not  merely  to  effect  a 
dissolution  of  the  marriage,  but  to  de- 
feat the  right  of  the  petitioner  to  the 
alimony  which  the  statute,  upon  the 
facts  as  they  exist  in  regard  to  the 
husband's  desertion,  intended  to  pro- 
vide for  her.  We  think  the  decree 
ought  not  to  have  such  an  effect.  In 
arriving  at  this  conclusion  we  make  no 
distinction  between  a  decree  rendered, 
under  the  circumstances  of  this  case, 
in  a  foreign  and  one  rendered  in  a  do- 
mestic forum."  And  see  Itt  re  James 
Estate,  99  Cal.  374;  Golden  v.  Golden 
(Ala.,  1894),  14  So.  Rep.  638. 

But  it  seems  this  rule  will  only  apply 
to  property  owned  in  the  state  in  which 
application  is  made  at  the  time  of  the 
divorce,  not  that  which  is  subsequently 
acquired.  Van  Orsdal  v.  Van  Orsdal, 
67  Iowa  35.  See  Am.  &  Eng.  Ency. 
Law,  tit.  Alimony. 

Dismissal  Without  Prejudice. — Where 
the  court  granting  the  divorce  has  dis- 
missed without  prejudice  the  wife's 
application  for  alimony  because  per- 
sonal service  could  not  be  obtained  on 
the  husband,  the  court  of  another  state 
may  take  jurisdiction  of  another  appli- 
cation. Woods  V.  Waddle,  44  Ohio  St. 
449. 

Two  Suits  at  Same  Time. — Where  a 
divorce  suit  has  been  commenced  by  a 
wife  in  the  courts  of  one  state,  herself 
a  resident  there,  and  the  husband  sub- 
sequently commences  a  divorce  suit  in 
another  state  and  obtains  a  decree 
there  before  the  first  suit  is  brought  to 


415 


Jurisdiction. 


ALIMONY. 


Enforcing  Decred. 


8.  Enforcing  Decree  in  Another  State. — The  alimony  decree  is 
within  the  "  full  faith  and  credit  "  clause  of  the  constitution  of 
the  United  States;  and  the  better  opinion  is  that  if,  after  the  de- 
cree, the  husband  removes  to  another  jurisdiction,  it  may  be 
enforced  in  the  courts  of  the  latter,'  or  on  the  equity  side  of  the 
proper  United  States  courts.* 


trial,  the  first  suit  is  not  tliereby  af- 
fected ;  but  the  jurisdiction  of  the  court 
therein,  having  once  attached,  will  be 
exercised  to  the  end,  in  order  to  do 
complete  justice  between  the  parties. 
Turner  v.  Turner,  44  Ala.  437. 

Fraud. — So  temporary  alimony  may 
be  granted  pending  a  suit  to  impeach 
a  divorce  on  the  ground  of  fraud.  Ex 
p.  Smith,  34  Ala.  455. 

And  a  decree  of  divorce  obtained  by 
fraud  will  not  operate  as  a  bar  to  ali- 
mony previously  and  properly  decreed 
in  another  state.  Barber  v.  Barber,  21 
How.  (U.  S.)  582. 

So  where  a  wife  was  not  notified  of 
the  proceedings  for  divorce,  being  im- 
prisoned at  the  instigation  of  her  hus- 
band, she  may  subsequently  have  the 
decree  set  aside  and  alimony  granted. 
Golden  v.  Golden  (Ala.,  1894),  14  So. 
Rep.  638. 

Laches. — But  where  the  decree  of  di- 
vorce has  been  acquiesced  in  for  sev- 
eral years,  a  court  will  not  permit  it  to 
be  disturbed  for  the  purpose  of  giving 
alimony,  Nichols  v.  Nichols,  25  N.  J. 
Eq.  60;  Roe  v.  Roe,  52  Kan.  724;  or  for 
any  other  purpose,  especially  where  a 
third  party  has  acquired  rights  by 
marriage.  Singer  v.  Singer,  41  Barb. 
(N.  Y.)  139.  And  reasons  which 
would,  in  the  first  instance,  have 
caused  the  decree  to  be  withheld  may 
not  be  sufficient  to  warrant  setting  it 
aside  after  a  long  space  of  time.  Hub- 
bard V.  Hubbard  (Colo.,  1893),  34  Pac. 
Rep.  170.  See  also  Chester  v.  Chester, 
17  Mo.  App.  657. 

1  Borden  v.  Fitch,  15  Johns.  (N.  Y.) 
121;  Rogers  v.  Rogers,  15  B.  Mon. 
(Ky.)  364;  Harrison  v.  Harrison,  20 
Ala.  629.  56  Am.  Dec.  227;  Nunn  v. 
Nunn,  8  L.  R.  Ir.  298;  Allen  v.  Allen, 
100  Mass.  373;  Stewart  v.  Stewart,  27 
W.  Va.  167;  Rigney  v.  Rigney  (Su- 
reme  Ct.),  6  N.  Y.  Supp.  141.  See  Am. 
&  Eng.  Ency.  Law,  tit.  Alimony. 

See  particularly  the  late  case  of 
Dow  V.  Blake,  148  111.  76,  where  Ma- 
gruder,  J.,  speaking  for  the  court,  says: 
"  It  is  urged  that  an  action  will  not 
lie  in  one  state  upon  a  judgment  for 

4 


alimony  rendered  in  another  state. 
There  are  some  authorities  which 
seem  to  support  this  contention. 
Such  are  Van  Buskirk  v.  Mulock,  18 
N.  J.  L.  184;  Barber  v.  Barber,  2  Pin. 
(Wis.)  297;  Elliott  V.  Ray,  2  Blackf. 
(Ind.)  31.  These  cases  proceed  upon 
the  ground  either  that  at  common  law 
an  action  of  debt  will  not  lie  upon  a 
decree  in  equity,  or  that  the  decree  for 
alimony  sued  upon  was  not  final  in  its 
character  and  was  subject  to  modifica- 
tion, or  that  the  decree  did  not  have 
the  force  and  effect  of  a  judgment  in 
the  state  where  it  was  rendered.  But 
we  see  no  reason  why  a  final  decree 
which  directs  the  payment  of  a  specific 
sum  of  money  should  not  have  the  same 
force  and  effect  as  a  judgment  at  law; 
and  it  has  not  been  here  shown  that  it 
does  not  have  such  force  and  effect  in 
the  state  of  Wisconsin.  Where  such  a 
final  decree  is  rendered  in  a  court  of 
competent  jurisdiction  in  one  state,  the 
constitution  of  the  United  States  re- 
quires that  full  faith  and  credit  be  given 
to  it  in  every  other  state.  It  makes  no 
difference,  so  far  as  the  duty  of  the 
courts  in  another  state  to  enforce  it  is 
concerned,  that  the  specific  sum  re- 
quired to  be  paid  by  such  final  decree 
is  for  alimony."  And  see  Howard  v. 
Howard,  15  Mass.  196.  But  see,  contra. 
Barber  v.  Barber,  i  Chand.  (Wis.)  280, 
and  cases  cited  in  opinion  quoted 
supra.  And  where  a  divorce  was  ob- 
tained in  Ohio,  neither  party  residing 
in  that  state,  the  decree,  at  least  so  far 
as  the  alimony  therein  granted  was 
concerned,  was  held  void  in  New 
York.  Phelps  v.  Baker,  60  Barb. 
(N.  Y.)  107. 

2.  Barber  v.  Barber,  21  How.  (U.  S.) 
582,  where  the  court,  speaking  through 
Swayne,  J.,  said:  "The  parties  to  a 
cause  for  a  divorce  and  for  alimony 
are  as  much  bound  by  a  decree  for 
both,  which  has  been  given  by  one  of 
our  state  courts  having  jurisdiction  of 
the  subject-matter  and  over  the  par- 
ties, as  the  same  parties  would  be  if 
the  decree  had  been  given  in  the 
ecclesiastical  courts  of  England.    The 

16 


Procedure. 


ALIMONY. 


Pleadings. 


Ill  Pkoceduee — 1.  Generally. — In  obtaining  alimony  in  divorce 
cases  the  practice  is  similar  to  that  of  the  ecclesiastical  or  the 
chancery  courts,  except  where  modified  by  statutes  or  rules  ;*  and 
in  minor  matters  the  ordinary  methods  of  the  court  wherein  the 
cause  is  being  tri^d  are  followed.'-* 

2.  Pleadings — a.  Prayer  for  Alimony. — Alimony,  being 
an  incident  of  divorce,*  has  been  granted  by  the  court,  although 
not  specifically  prayed  either  in  the  original  bill  or  in  the  peti- 
tion;^ or  even  although  it  is  not  prayed  until  after  tlie  decree  of 
divorce  and  in  a  subsequent  term,  provided  the  libel  is  still  pend- 
ing ;*  but  the  necessary  facts  must  be  before  the  court  to  enable 
it  to  decree  alimony  under  such  circumstances.*  Generally,  how- 
ever, alimony  should  be  prayed,''  as  well  as  all  other  relief  which 
may  be  sought.® 

The  proceeding  is,  according  to  the  better  doctrine,  ancillary,® 
and  therefore  neither  the  original  bill  nor  the  answer,  as  the  case 
may  be,  usually  petitions  alimony,  or  alleges  the  husband's  facul- 
ties. This  at  least  is  the  English,^**  and,  according  to  a  standard 
authority,  the  better  American  practice.** 


decree  in  both  is  a  judgment  of  record, 
and  will  be  received  as  such  by  other 
courts.  And  such  a  judgment  or  de- 
cree rendered  in  any  state  of  the 
United  States,  the  court  having  juris- 
dication,  will  be  carried  into  judgment 
in  another  state,  to  have  there  the 
same  binding  force  that  it  has  in  the 
state  in  which  it  was  originally  given. 
For  such  a  purpose  both  the  equity 
courts  of  the  United  States  and  the 
same  courts  of  the  states  have  jurisdic- 
tion." See  also  Cheever  v.  Wilson,  9 
Wall.  (U.  S.)  108,  and  Bennett  v.  Ben- 
nett, Deady  (U.  S.)  299. 

1.  Sparhawk  v.  Sparhawk,  120 
Mass.  390;  Stewart  on  M.  &  D.  § 
367.  See  Fla.  Rev.  Sts.  §  1488;  Bau- 
man  v.  Bauman,  18  Ark.  320;  68  Am. 
Dec.  171;  Lyon  v.  Lyon,  21  Conn.  186; 
State  V.  St.  Louis  Ct.,  99  Mo.  222. 

2.  Gernon  v.  Hickey,  18  La.  Ann. 
454.  But  the  entire  divorce  practice 
is  very  loose  in  many  states.  2  Bish. 
on  M.,  D.,  &  S.  §  644;  Vance  v.  Vance, 
17  Me.  203;  Brown  v.  Brown,  37  N.  H. 
535,  75  Am.  Dec.  174.  "In  fact 
divorce  is  not  a  common-law  or  chan- 
cery proceeding,  but  a  proceeding  sui 
generis."  Mangels  v.  Mangels,  6  Mo. 
App.  481. 

3.  Ante,   pp.  408,  412, 

4.  Jackson  v.  Jackson,  i  McArth. 
(D.  C.)  34;  McEwen  v.  McEwen,  26 
Iowa  375;  Darrow  v.  Darrow,  43  Iowa 
411. 


5.  Prescott  v.  Prescott,  59  Me.  146; 
Sheafe  v.  Laighton,  36  N.  H.  240. 

6.  Weishaupt  v.  Weishaupt,  27  Wis. 
621;  Wallingsford  v.  Wallingsford,  6 
Har.  &  J.  (Md.)485;  Lishey  v.  Lishey, 
2  Tenn.  Ch.  i. 

7.  Chandler  v.  Chandler,  13  Ind. 
492;  Damon  v.  Damon,  28  Wis.  510; 
Prescott  V.  Prescott,  59  Me.  146;  Clay- 
ton V.  Clayton,  i  Ashm.  (Pa.)  52. 

To  What  Court  Application  Made. — 
And  the  application  must  be  made  to 
the  court  in  which  the  divorce  case  is 
being  conducted,  not  to  any  other. 
Bennett  v.  Southard,  35  Cal.  688. 

8.  Stewart  on  M.  &  D.  t;  332. 
Bemedy  Where  Alimony  Not  Prayed  or 

Decreed. — Where  the  divorce  bill  does 
not  ask  alimony,  and  the  decree  does 
not  award  it,  a  motion  to  amend  the 
decree  by  adding  a  reference  to  a 
commissioner  to  take  testimony  as  to 
alimony  will  be  denied.  The  proper 
remedy,  if  any,  is  by  supplementary 
bill  in  the  nature  of  a  bill  of  review. 
Jordan  v.  Jordan,  53  Mich.  550. 

9.  Ante,  pp.  408,  412. 

10.  Rees  v.  Rees,  3  Phillim.  387;  Cox 
V.  Cox,  3  Add.  Ecc.  276. 

11.  2Bish.on  M.,D.,&S.  §1067;  Lev- 
ett  V.  Lovett,  ri  Ala.  763.  Though  see, 
for  a  different  opinion  on  the  latter 
point,  Prescott  v.  Prescott,  59  Me.  146, 
And  even  though  this  is  the  proper 
practice,  yet  it  is  too  late  to  object  that 
this  has  not  been  done  after  the  court 


I  Encyc.  PI.  &  Pr.— 27. 


417 


Procedure. 


ALIMONY. 


Pleadings. 


The  Methods  of  Praying  Alimony  in  this  country  are  various,  as  by  the 
original  bill  or  libel, ^  by  motion  supported  by  affidavits,-  or  by 
petition  alleging  the  faculties.* 

b.  When  Temporary  Alimony  Asked  and  Granted. — A 
decree  for  alimony  cannot  be  made  unless  the  defendant  has  been 
personally  served,*  or  has  appeared  in  the  action  ;*  nor  can  it  be 
made  after  final  decree.®  These  general  principles  apply,  of  course, 
to  temporary  as  well  as  permanent  alimony.'  Therefore,  alimony 
pendente  lite  should  not  be  prayed  before  the  suit  is  pending,*  that 


refers  the  matter  to  a  master  to  inquire 
into  the  estate  of  the  husband.  Lovett 
V.  Lovett,  II  Ala.  763. 

1.  Prescott  V.  Prescott.  59  Me.  146; 
Sheafe  v.  Laighton,  36  N.  H.  243; 
Damon  v.  Damon,  28  Wis.  510;  Countz 
V.  Countz,  30  Ark.  73;  Wright  v. 
Wright,  3  Tex.  168. 

2.  Weishaupt  v.  Weishaupt,  27  Wis. 
621,  where  it  is  said:  "It  is  objected 
that  the  application  should  have  been 
made  on  petition,  and  not  by  motion. 
Of  course  the  moving  papers  should 
show  that  an  action  for  a  divorce  has 
been  actually  commenced  and  that  a 
meritorious  cause  for  dissolving  the 
marriage  exists.  But  whether  this  ap- 
pears by  petition  or  by  affidavits  seems 
to  us  quite  unimportant."  Becker  v. 
Becker,  15  III.  App.  247;  Pain  v.  Pain, 
80  N.  Car.  322;  McGee  v.  McGee,  10 
Ga.  477;  Curtis  v.  Curtis,  54  Mo.  351; 
Vandegrift  v.  Vandegrift,  30  N.  J.  Eq. 
76;  Wright  V.  Wright,  3  Tex.  168;  Lito- 
wich  V.  Litowich,  19  Kan.  451,  27  Am. 
Rep.  145;  Reeves  z/.  Reeves,  82  N.  Car. 
348;  Swearingen  z'.  Swearingen,  19  Ga. 
265;  and  the  late  case  of  Kirsch  v. 
Kirsch     (C.     PI.),     18    N.     Y.     Supp. 

447- 

No  Notice  of  Motion  Beqnired. — And 
no  notice  of  the  motion  is  required  to 
be  given  to  the  opposite  party.  Becker 
V.  Becker,  15  111.  App.  247.  But  see 
Covell  V.  Covell,  L.  R.  2  P.  &  M.  411; 
Goss  V.  Goss,  29  Ga.  109.  Where 
notice  is  required  by  statute  it  need 
not  specify  time  and  place  of  hearing. 
Zimmerman  v.  Zimmerman,  113  N.  Car. 
432.   . 

3.  Becker  z/.  Becker,  15  111.  App.  247; 
Sheafe  v.  Laighton,  36  N.  H.  243; 
Longfellow  v.  Longfellow,  Clarke  Ch. 
(N.  Y.)  344;  Mix  V.  Mix,  i  Johns.  Ch. 
(N.  Y.)io8;  Culverz'.  Culver,  8  B.  Mon. 
(Ky.)  12S;  Osgood  V.  Osgood,  2  Paige 
(N.  Y.)  621;  Bray  v.  Bray,  6  N.  J.  Eq. 
27;  Lewis  V.  Lewis,  3  Johns.  Ch. 
(N.  Y  )  519.     And  this  is  also  the  Eng- 


lish practice.  Rees  7^  Rees,  3  Phillim. 
387;  Cox  V.  Cox,  3  Add.  Ecc.  276. 

"  Under  our  practice  affidavits  in 
support  of  a  motion  on  the  wife's  part 
may  take  the  place  of  allegations  of 
faculties  in  showing  the  husband's 
ability;  and  then  the  matter  is  in  the 
sound  discretion  of  the  chancellor." 
Glenn  v.  Glenn,  44  Ark.  46. 

Reference  to  Master. — And  wh^re  the 
husband's  faculties  are  not  at  all,  or 
not  sufficiently,  set  out,  a  reference  to 
the  master  will  be  directed  to  inquire 
into  the  estate  of  the  husband.  Lovett 
V.  Lovett,  II  Ala.  763;  Story  v.  Story, 
Walk.  (Mich.)  421. 

Notice  of  Applicatioh. — And  where,  on 
such  an  application  for  alimony  pen- 
dente lite,  the  court  passes  an  order 
requiring  the  husband  to  appear  and 
show  cause  why  the  same  should  not 
be  granted,  no  notice  of  said  applica- 
tion is  required  previous  to  said  order, 
Mudd  V.  Mudd,  98  Cal.  320;  the 
notice  of  the  divorce  suit,  to  which 
alimony  is  but  incident,  being  suf- 
ficient knowledge  of  the  petition, 
McEwen  v.  McEwen,  26  Iowa  375; 
Curtis  V.  Curtis,  54  Mo.  351;  Sanchez 
V.  Sanchez,  21  Fla.  346.  See  Zimmer- 
man V.  Zimmerman,  113  N.  Car.  432; 
Lochnane  v.  Lochnane,  78  Ky.  467, 
where  it  was  said:  "  No  notice  of  the 
application  for  an  allowance  is  now 
required  by  the  statute,  especially 
where,  as  in  this  case,  the  petition 
specifically  seeks  such  an  allowance. 
For  all  purposes  sought  to  be  accom- 
plished by  the  allegations  and  the 
prayer  of  the  petition,  the  defendant 
must  be  presumed  to  be  in  court  at  all 
times  after  the  service  of  process  on 
him  for  the  period  specified  in  the 
Code." 

4.  Ante,  p.  413. 

5.  Ante,  p.  413. 

6.  Ante,  pp.  414. 

7.  Cases  cited  ante,  pp.  412-414. 

8.  Langan  v.  Langan,  91  Cal.  654. 


418 


Trocedore. 


ALIMONY. 


Pleadings. 


is,  until  the  defendant  is  in  court,  either  by  service  or  appearance.* 
So,  likewise,  temporary  alimony  and  counsel  fees  will  not  be 
granted  after  final  decree,*  even  although  the  motion  therefor 
may  have  been  made  before;*  nor  after  bill   dismissed,*  for,  the 


1.  Russell  V.  Russell,  69  Me.  336; 
Weishaupt  v.  Weishaupt,  27  Wis.  621, 
where  the  court  said:  "  The  moving 
papers  should  show  that  an  action  for 
divorce  has  actually  been  commenced," 
although  in  the  same  case  it  was  held 
that  where  a  motion  for  suit  money 
was  heard  after  the  service  of  com- 
plaint on  defendant,  the  fact  that  the 
motion  and  the  affidavit  in  support 
thereof  was  made  before  such  service 
was  immaterial. 

Informal  Personal  Appearance  Not  Suf- 
ficient.— Where  defendant  in  petition 
for  divorce  and  alimony,  not  having 
been  served  with  process,  was  present, 
however,  in  court  at  the  term  when 
the  petition  was  filed,  and  made  ob- 
jection personally  to  an  order  grant- 
ing alimony,  it  was  held  that  such 
appearance  and  action  did  not  give  the 
cause  the  character  of  a  lis  pendens, 
and  therefore  that  at  such  stage  no 
order  for  temporary  alimony  could  be 
made.  Simmons  v.  Simmons,  Phil. 
Eq.  (N.  Car.)  63.  See  Scragg  v. 
Scragg,  63  Hun  (N.  Y.)  633,  18  N.  Y. 
Supp.  487. 

Until  there  is  a  "  proceeding  by  bill 
or  petition,"  the  judge  at  chambers 
has  no  jurisdiction  over  the  matter  of 
granting  alimony  under  the  Georgia 
Code.  And  no  such  proceeding  exists 
until  the  bill  or  petition  is  filed  in  the  of- 
fice of  the  clerk  of  court.  The  statute 
contemplates  a  suit  with  subpoena,  or 
process  duly  issued.  Yoemans  z/.  Yoe- 
mans,  77  Ga.  124.  So  under  the  loiva 
Code,  providing  that  "  the  court  "  may 
order  temporary  alimony,  the  judge  in 
vacation  has  no  power  to  grant  it. 
Prosser  v.  Prosser,  64  Iowa  378. 

Application  before  Term  to  which 
Summons  Beturnable. — An  application 
for  temporary  alimony  is  not  admis- 
sible on  a  rule  to  show  cause  before 
the  term  to  which  the  summons  for 
appearance  is  returnable.  Holland  v. 
Holland,  4  Houst.  (Del.)  86.  But  see 
Russell  V.  Russell,  69  Me.  336,  where 
it  was  held  that  after  service  a  justice 
in  vaction  might,  on  giving  notice  to 
defendant,  grant  temporary  alimony, 
though  before  the  return  day  of  the 
writ. 

English  Cases. — In  Deane  v.  Deane, 

4 


28  L.  J.  Mat.  Cas.  23,  it  was  held  that 
where  a  citation  for  appearance  had 
been  served  on  the  husband,  but  he 
had  not  in  fact  appeared,  there  could 
be  no  temporary  alimony  granted,  the 
court  suggesting  as  a  reason  that  the 
cause  would  be,  in  the  case  of  the  hus- 
band's non-appearance,  more  quickly 
disposed  of,  and  there  would  therefore 
be  no  need  of  granting  a  temporary 
allowance  to  the  wife.  The  force  of 
this  reasoning  may  well  be  doubted. 
See  also  Tomkins  v.  Tomkins,  i  Swab. 
&  T.  163. 

2.  Newman   v.  Newman,  69  111.  167. 

3.  Wilde  V.  Wilde,  2  Nev.  306.  And 
it  seems  that  it  does  not  matter  that  the 
court  in  its  order  dismissing  the  action 
reserved  to  the  plaintiff  the  right  to 
make  application  for  an  additional  al- 
lowance. Wagner  v.  Wagner,  34 
Minn.  441. 

After  Cause  Continued. — Court  may 
hear  motion  for  alimony  pendente  lite 
after  a  continuance  of  the  cause  and 
on  the  day  of  the  filing  of  the  motion. 
Curtis  V.  Curtis,  54  Mo.  351. 

In  Suit  to  Enforce  Alimony. — Alimony 
pendente  lite  will  not  be  granted  in  a 
suit  by  a  divorced  wife  to  enforce  a 
decree  for  alimony  against  her  former 
husband.  McQuien  v.  McQuien,  61 
How.  Pr.  (N.Y.  C.  Pl.)28o.  Norinasuit 
to  set  aside  a  decree  altogether.  Wil- 
son V.  Wilson,  49  Iowa  546.  But  see 
Quelin  v.  Quelin,  11  Pa.  Co.  Ct.  Rep. 
265. 

4.  McCulloch  V.  Murphy,  45  111.  256; 
Persons  v.  Persons,  7  Humph.  (Tenn.) 
183;  Wagner  v.  Wagner,  34  Minn.  441. 
See  also  Rolt  v.  Rolt,  3  Swab.  &  T. 
604;  Twisleton  v.  Twisleton,  L.  R.  2 
P.  &  M.  339;  Anonymous,  i  Abb.  Pr. 
N.  S.  (N.  Y.  Supreme  Ct.)  307. 

Suit  Dismissed  by  Husband. — But  the 
dismissal  of  the  suit  by  the  husband 
while  the  application  for  temporary 
alimony  is  under  the  consideration  of 
the  court  will  not  defeat  the  claim,  al- 
though it  may  diminish  the  amount. 
Waters  v.  Waters,  49  Mo.  385;  al- 
though the  application  must  be 
promptly  made,  Twisleton  v.  Twisle- 
ton, L.  R.  2  P.  &  M.  339.  But  see 
Hart  V.  Hart,  11  Ind.  384. 

Attorney's  Fees  also  will  be  allowed 

19 


Procedure. 


ALIMONY 


Pleadings. 


suit  being  no  longer  pending,  the  jurisdiction  of  the  court  over 
the  subject-matter  and  over  the  parties  has  ceased.  So  the  ah- 
Xi\ox\y  pendente  lite  already  granted  will  cease.* 

But  at  any  stage  of  the  cause  between  suit  pending  and  final 
decree  temporary  alimony  may  be  asked  and  granted  ;'-*  and  it 
may  be  granted  by  order  on  the  final  hearing.' 

c.  Permanent  Alimony  may  be  prayed  at  any  time  before  final 
decree  ;*  but  where  the  divorce  is  a  mefisa  et  thoro,  it  may  be 
prayed  after  the  decree,^  though  not  if  the  divorce  is  a  vinculo.^ 

d.  Divorce  and  Alimony  Separately  Considered. — It  is 
settled  that,  within  the  discretion  of  the  court,  the  question  of 
divorce  and  that  of  alimony  may  be  separately  considered,  and  the 
consideration  of  the  latter  deferred  until  it  is  found  that  there  is  to 
be  a  divorce ;''  and  it  seems  that  this  is  the  better  practice,  avoid- 


after  reconciliation,  and  suit  with- 
drawn. Burgess  v.  Burgess,  i  Duv. 
(Ky.)  287. 

1.  Langan  v.  Langan,  91  Cal.  654; 
Chestnut  v.  Chestnut,  77  111.  346; 
Wood  V.  Wood,  7  Lans.  (N.  Y.)  205. 
See  Dunn  v.  Dunn,  L.  R.   13  P.  &  M. 

91 

But  the  verdict  of  a  jury  refusing 
permanent  alimony  does  not  affect 
temporary  alimony  previously  granted 
by  the  judge.  Gibson  z/.  Patterson,  75 
Ga.  549. 

2.  Stewart  on  M.  &  D.  §  385,  and 
cases  cited  ante  and  post  in  this  sec- 
tion. 

3.  Dinet  v.  Pfirshing,  86  111.  83; 
Pritchard  v.  Pritchard,  4  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  298;  Shy  v. 
Shy,  7  Heisk.  (Tenn.)  125;  Jeter  v. 
Jeter,  36  Ala.  391;  Kirk  v.  Kirk,  3 
Scotch  Sess.  Cas.,  4th  Ser.  128;  Frank- 
fort V.  Frankfort,  3  Curt.  Ecc.  715; 
Melizet  v.  Melizet,  I  Pars.  Eq.  Cas. 
(Pa.)  78. 

Summary. — The  whole  matter  is  thus 
accurately  summarized  by  Mr.  Bish- 
op; "  The  rule,  in  the  absence  of 
adverse  terms  in  the  statute  or  an  ad- 
verse interpretation  of  its  effect,  is 
that,  while  the  wise  and  matter-of- 
course  time  to  make  the  application 
for  temporary  alimony  is  immediately 
on  the  case  being  ripe  therefor,  it  is 
permissible  at  any  stage  of  the  pro- 
ceeding, either  before  or  after  a  ver- 
dict or  an  appeal."  Citing  the  follow- 
ing cases:  Helden  v.  Helden,  11  Wis. 
554;  Blake  v.  Blake,  70  111.  618;  Call 
V.  Call,  65  Me.  407;  Stanford  v.  Stan- 
ford, I  Edw.  Ch.  (N.  Y.)  317;  Moe  v. 
Moe,  39  Wis.  308;  Anonymous,  15 
Abb.   Pr.   N.   S.   (N.  Y.   Supreme  Ct.) 


307;  Jenkins  v.  Jenkins,  91  111.  167; 
Strong  V.  Strong,  5  Robt.  (N.  Y.)  612; 
Goldsmith  v.  Goldsmith,  6  Mich.  285; 
Leslie  v.  Leslie,  11  Abb.  Pr.  N.  S. 
(N.  Y.  C.  PI.)  311;  Nicholson  z/.  Nichol- 
son,  3  Swab.  &  T.  214;  Jones  v.  Jones, 
L.  R.  2  P.  &  M.  333;  Pullen  v.  PuUen 
(N.  J.,  1889),  17  Atl.  Rep.  310. 

Marriage  Pending  Appeal.  —  But  it 
will  not  be  granted  where  a  woman 
marries  pending  an  appeal.  Coad  v. 
Coad,  40  Wis.  392. 

Suit  Money  and  Counsel  Fees.  —  The 
rules  stated  in  this  section  and  the 
cases  cited  thereunder  apply,  gener- 
ally, as  well  to  suit  money  and  coun- 
sel fees  as  to  temporary  alimony. 
2  Bish.  on  M.,  D.,  &  S.  §  955. 

4.  Prescott  v.  Prescott,  59  Me.  146; 
Galusha  v.  Galusha,  138  N.  Y.  272. 

5.  Cooke  V.  Cooke,  2  Phillim. 
40;  Westmeath  v.  Westmeath,  3 
Knapp  42;  McKarracher  v.  Mc- 
Karracher,  3  Yeates  (Pa.)  56;  2 
Bish.  onM.,  D.,&  S.  §§  839,  844.  But 
see  Erkenbrach  v.  Erkenbrach,  63 
How.  Pr.  (N.  Y.  C.  pi.)  194,  12  Daly 
(N.  Y.)  258,  96  N.  Y.  456;  Cullen  v. 
Cullen,  55  N.  Y.  Super.  Ct.  346;  An- 
derson V.  Cullen  (C.  PL),  8  N.  Y.  Supp. 

643- 

Notice. — But  the  husband  should  be 
served  with  notice  of  the  petition  or 
motion.  Covell  v.  Covell,  L.  R.  2  P. 
&  M.  411. 

6.  Wilde  w  Wilde,  36  Iowa  319.  For 
a  full  discussion  of  this  question,  see 
ante,  pp.  50-63. 

7.  Pauly  V.  Pauly,  69  Wis.  419;  Call 
V.  Call,  65  Me.  407;  Sheafe  v.  Laigh- 
ton,  36  N.  H.  240;  Gregory  v.  Gregory, 
32  N.  J.  Eq.  424;  Prescott  v.  Prescott, 
59  Me.   146;    Ex  p.    Ambrose,  72  Cal. 


420 


Procedure. 


ALIMONY. 


Pleadings. 


ing,  as  it  does,  much  labor  and  time  should  the  divorce  be  finally 
refused.*  And  the  grant  of  alimony  may  be  included  in  the 
decree  of  divorce,  or  in  a  subsequent  and  separate  judgment.* 

e.  What  to  be  Shown  to  Warrant  Alimony  Pendente 
Lite. — In  order  that  alimony  pendente  lite  may  be  granted,  it 
must  appear  to  the  satisfaction  of  the  court  that  there  has 
been  a  marriage  between  the  parties,*  that  they  are  at  the 
time  of  the  application  living  separately  *  that  a  suit  is  pending 
for  divorce,*  that  the  wife  is  in  need  of  an  allowance,*  and  that 


398;  Rea    V.    Rea,   53    Mich.  40;    Co- 
veil  V.  Covell,  L.  R.  2  P.  &  M.  411. 

1.  Pauly  V.  Pauly,  6g  Wis.  419; 
Rea  V.  Rea,  53  Mich.  40;  Galusha  v. 
Galusha,  138  N.  Y.  272;  Cooledge  v. 
Cooledge,  i  Barb.  Ch.  (N.  Y.)  77,  2 
Bish.  on  M.,  D.,  &  S.  §§  871,  1069. 

It  appears  even  to  have  been  thought 
that  until  the  court  finds  there  is  to  be 
a  divorce,  it  has  no  jurisdiction  over 
the  question  of  permanent  alimony. 
Bradley  v.  Bradley,  L.  R.  3  P.  &  D.  50; 
Sidney  v.  Sidney,  36  L.  J.  N.  S.  Mat. 
Cas.  73,  the  House  of  Lords  overrul- 
ing L.  R.  I.  P.  &  M.  78.  See  also 
Charles  v.  Charles,  L.  R.  i  P.  &  M. 
260. 

2.  Mangels  v.  Mangels,  6  Mo.  App. 
481;  Campbell  v.  Campbell,  37  Wis. 
206,  citing  Forrest  v.  Forrest,  6  Duer 
(N.  Y.)  102,  3  Bosw.  (N.  Y.)  661,  25 
N.  Y.  501;  Cook  V.  Cook,  i  Barb. 
Ch.  (N.  Y.)  639,  43  Am.  Rep.  706; 
Prescott  V.  Prescott,  59  Me.  146;  Will- 
iams V.  Williams,  29  Wis.  517,  36  Wis. 
362. 

3.  Swearingen  v.  Swearingen,  19 
Ga.  265;  Frith  v.  Frith,  18  Ga.  272,  63 
Am.  Dec.  289;  McGee  v.  McGee,  10 
Ga.  477;  Vreeland  v.  Vreeland,  18  N. 
J.  Eq.  43;  McFarlapd  v.  McFarland, 
51  Iowa  565;  Smith  v.  Smith,  61  Iowa 
138;  York  V.  York,  34  Iowa  530;  North 
V.  North.  I  Barb.  Ch.  (N.  Y.)  241,  43 
Am.  Dec.  778;  Humphreys  v.  Hum- 
phreys, 49  How.  Pr.  (N.  Y.  Super.  Ct.) 
140;  Methvin  v.  Methvin,  15  Ga.  97, 
60  Am.  Dec.  664;  Smyth  v.  Smyth,  2 
Add.  Ecc.  254;  Mitchell  v.  Mitchell,  i 
Spinks  Ecc.  102;  Brinkley  v.  Brink- 
ley,  50  N.  Y.  184;  Wilson  V.  Wilson, 
49  Iowa  544;  Stewart  on  M.  &  D.  § 
368;  Vincent  v.  Vincent,  16  Daly  (N. 
Y.  534;  Collins  V.  Collins,  71  N.  Y.  269; 
Roseberry  v.   Roseberry,   17  Ga.   139. 

"  Alimony  is  a  right  which  results 
front  the  marital  relation,  and  the  fact 
of  marriage  must  be  admitted  or 
proved  before  there  can  be  a  decree 


for  it  even  pendente  lite."  York  v, 
York,  34  Iowa  530. 

But  where  a  bill  is  brought  by  hus- 
band for  divorce  on  the  ground  of  a 
former  marriage,  temporary  alimony 
and  counsel  fees  will  not  be  refused 
on  ex  parte  aflSdavits  contradicting  the 
denials  in  the  wife's  answer.  Vande- 
grift  V.  Vandegrift,  30  N.  J.  Eq.  76, 
the  court  saying:  "To  adjudge  in  li' 
mine  upon  ex  parte  affidavits  that  the 
complainant  will  probably  succeed,  and 
therefore  to  withhold  from  the  de- 
fendant the  means  of  resisting  the 
attack,  would  be  substantially,  to  a  cer- 
tain extent,  a  pre-judgment  adverse 
to  her  on  the  merits,  without  lawful 
evidence,  the  consideration  of  which 
might,  and  probably  would,  be  that 
she  would  be  unable  to  defend  her- 
self." See  also  Kline  v.  Kline,  i  Phila. 
(Pa.)  383. 

4.  McGee  v.  McGee,  10  Ga.  477; 
Battey  v.  Battey,  i  R.  I.  212;  Anshutz 
V.  Anshutz,  16  N.  J.  Eq.  162;  Tayman 
V.  Tayman,  2  Md.  Ch.  393;  Daiger  v. 
Daiger,  2  Md.  Ch.  335. 

Beason  of  Kule. — The  reason  of  this 
rule  is,  of  course,  that  while  a  wife  is 
living  with  her  husband  she  can 
pledge  his  credit  for  her  support. 
Debenham  v.  Mellon,  5  Q.  B.  Div. 
394;  Stewart  on  M.  &  D.  ^  384. 

And  an  allowance  of  temporary  ali- 
mony would  be  improper;  but  the  rule 
does  not  seem  so  clear  in  the  case  of 
counsel  fees  and  suit  money.  Tay- 
man V,  Tayman,  2  Md.  Ch.  398. 

6.  McGee  v.  McGee,  10  Ga.  477; 
Weishaupht  v.  Weishaupht,  27  Wis. 
621;  Stewart  on  M.  &  D.  §  385  and 
cases  there  cited;  ante,  418,  note  8, 
419,  note  I,  and  cases  cited  supra  and 
infra. 

6.  Story  v.  Story,  Walk.  Ch.  (Mich.) 
421;  Mix  V.  Mix,  I  Johns.  Ch.  (N.  Y.) 
108;  Denton  v.  Denton,  i  Johns.  Ch. 
(N.  Y.)  364;  Wood  V.  Wood,  2  Paige 
(N.  Y.)  109;  Vreeland  v.  Vreeland,  18 


421 


/rocedare. 


ALIMONY. 


Pleadings. 


the  husband  has  property  out  of  which  such  an  allowance  can  be 
granted.^ 

These  allegations  must  therefore  be  made  somewhere  in  the 
pleadings  in  the  cause,*  either  in  the  original  bill  or  libel,  the  pe- 
tition alleging  the  faculties,  or  the  affidavits  supporting  the 
motion,  according  to  the  method  adopted  of  praying  alimony. 
Of  course  the  bill  must  present  a  case  for  relief,  and  be  good 
upon  its  face  ;'  and  if  it  appears  that  the  wife  cannot  succeed,*  or 
that  the  bill  is  demurrable,*  no  temporary  alimony  will  be  granted. 
But  it  is  only  necessary  to  make  out  a  prinia-facie  case,**  on  which 
an  allowance  will  be  made  almost  as  a  matter  of  course,''  in  spite 
of  a  plea  to  the  merits®  or  even  to  the  jurisdiction  of  the  court.* 

/.  Hearing  of  Husband. — The  husband  should  be  allowed  to 


N.  J.  Eq.  43;  McFarland  v.  McFar- 
land,  51  Iowa  565;  Coles  v.  Coles,  2 
Md.  Ch.  341;  Daiger  v.  Daiger,  2  Md. 
Ch.  335;  Methvin  v.  Methvin,  15  Ga. 
97,  60  Am.  Dec.  664;  Ross  v.  Ross,  47 
Miih.  185;  Coad  v.  Coad,  40  Wis.  392; 
Porter  v.  Porter,  41  Miss.  116;  Kene- 
mer  v.  Kenemer,  26  Ind.  330;  Eaton  v. 
Eaton,  L.  R.  2  P.  &  M.  51;  Rawson  v. 
Rawson,  37  111.  App.  491;  Glasscock  v, 
Glasscock,  94  Ind.  163 ;  Farwell  v. 
Farwell,  31  Me.  591;  Chaffee  7/.  Chaffee, 
14  Mich.  463. 

1.  Ross  V.  Ross,  47  Mich.  185;  Por- 
ter V.  Porter,  41  Miss.  116;  Lovett  v. 
Lovett,  II  Ala.  763;  Weishaupt  v. 
Weishaupt,  27  Wis.  621  ;  Story  v. 
Story,  Walk.  Ch.  (Mich.)  421;  Mit- 
chell V.  Mitchell,  i  Spinks  Ecc.  103; 
Worden  v.  Worden,  3  Edw.  Ch.  (N. 
Y.)  387  ;  Glasscock  v.  Glasscock,  94 
Ind.  163;  Becker  v.  Becker,  15  111. 
App.  247;  Schmidt  v.  Schmidt,  26  Mo. 
235;  Wright  V.  Wright,  3  Tex.  168; 
Sheafe  v.  Sheafe,  36  N.  H.  155;  Beavan 
V.  Beavan,  2  Swab.  &  T.  652. 

2.  Glasscock  v.  Glasscock,  94  Ind, 
163;  I  Bish.  on  M.  D.  &  S.  ^  1069; 
Stewart  on  M.  &  D.  §  386;  and  cases 
supra,  p.  421,  notes  3-6,  p.  422,  note  i. 

3.  Porter  v.  Porter,  41  Miss.  116, 
Rose  V.  Rose,  11  Paige  (N.  Y.)  166; 
Wood  V.  Wood,  2  Paige  (N.  Y.)  454; 
Rawson  v.  Rawson,  37  111.  App.  491; 
Harding  v.  Harding,  40  111.  App.  202; 
Collins  V.  Collins,  71  N.  Y.  269;  Mar- 
tin V.  Martin,  8  N.  J.  Eq.  563;  Phelan 
V.  Phelan,  12  Fla.  449. 

4.  Harding  v.  Harding,  40  111.  App. 
202;  Jones  V.  Jones,  2  Barb.  Ch.  (N. 
Y.)  146. 

6.  Rose  V.  Rose,  11  Paige  (N.  Y.) 
166;  Wood  V.  Wood,  2  Paige  (N.  Y.) 
454;  Langan  v.  Langan,  91  Cal.  654. 


But  see  Mix  v.  Mix,  i  Johns.  Ch.  (N. 
Y.)  108;  Chaffee  v.  Chaffee,   14  Mich. 

463- 

6.  Coles  V.  Coles,  2  Md.  Ch.  341  ; 
Daiger  v.  Daiger,  2  Md.  Ch.  335;  Mc- 
Curley  v.  McCurley,  60  Md.  189,  45 
Am.  Rep.  717;  Little  v.  Little,  63  N. 
Car.  22;  Porter  v.  Porter,  41  Miss. 
116;  Brinkley  v.  Brinkley,  50  N.  Y. 
184;  McGee  v.  McGee,  10  Ga.  477; 
Vandegrift  v.  Vandegrift,  30  N.  J.  Eq, 
76;  cases  cited  supra,  notes  3-5;  Stew- 
art on  M.  &  D.  §  386,  and  cases  there 
cited  ;  Gray  v.  Gray  (Supreme  Ct.), 
28  N.  Y.  Supp.  856;  Newsome  z'.  New- 
some  (Ky.,  1894),  25  S.  W.  Rep.  878; 
Daniels  v.  Daniels,  9  Colo.  133. 

7.  Wright  V.  Wright,  i  Edw.  Ch. 
(N.  Y.)  62;  Tayman  v.  Tayman,  2  Md. 
Ch.  393;  cases  supra,  pp.  97,. 98;  Am, 
&  Eng.  Ency.  Law,  tit.  Alimony. 

8.  McGee  v.  McGee,  10  Ga.  478  ; 
Story  V,  Story,  Walk.  Ch.  (Mich.) 
421. 

9.  Coles  V.  Coles,  2  Md.  Ch.  341  ; 
Brinkley  v.  Brinkley,  50  N.  Y.  184; 
Moe  V.  Moe,  39  Wis.  308.  See  Brad- 
street  V.  Bradstreet,  6  Mackey  (D.  C.) 
502,  where  it  was  held  that,  although 
as  a  general  rule  temporary  alimony 
could  be  allowed  before  a  plea  to  the 
jurisdiction  was  disposed  of,  yet  where 
it  appeared  that  the  suit  was  brought 
at  the  instigation  of  the  plaintiff's 
relatives,  who  promised  to  provide 
means  therefor,  it  would  be  refused. 

Next  Friend  Sesponsible. — The  grant 
of  temporary  alimony  and  suit  money 
is  not  entirely  a  matter  of  course,  for 
the  wife  sues  by  next  friend.  He  is 
responsible  until  it  is  found  that  she 
has  a  meritorious  cause  of  action. 
Worden  v.  Worden,  3  Edw.  Ch.  (N. 
Y.)  387. 


422 


Procedure. 


ALIMONY. 


ricadinrx 


be  heard,  but  only,  it  seems,  in  order  that  the  court  may  form 
some  idea  of  the  amount  to  be  granted,*  and  he  may  be  in  de- 
fault. But  if  he  is  complainant,  temporary  alimony  will  be 
awarded,  whether  he  has  means  or  not ;  and  if  he  does  not  pay, 
he  will  not  be  allowed  to  prosecute  his  suit.* 

g.  Parties. — The  wife's  bill  may  join  as  parties  those  to  whom 
in  fraud  of  her  rights  the  husband  has  conveyed  his  property  ;* 
and  even  7iX\vi\o\\y  pendente  lite  may  be  decreed  against  them.* 

h.  How  Wife  Sues. — Generally  in  a  divorce  suit  a  wife  sues 
and  defends  as  feme  sole.%  and  the  application  for  alimony  must 
be  made  in  the  name  of  the  wife,  not  that  of  counsel.'' 


1.  Story  V.  Story,  Walk.  Ch.  (Mich.) 
421;  Wright  V.  Wright,  i  Edw.  Ch. 
(N.  Y.)  62;  Jenkins  v.  Jenkins,  69  Ga. 
483;  Smith  V.  Smith,  i  Edw.  Ch.  (N. 
Y.)  255;  Goss  V.  Goss,  29  Ga. 
log. 

2.  Park  v.  Park,  80  N.  Y.  156,  18 
Hun  466;  Hicks  v.  Hicks,  9  Ir.  Rep. 
Eq.  175;  Constable  v.  Constable,  L. 
R.  2  P.  &  M.  17,  39  L.  J.  Mat.  Cas.  17; 
Graves  v.  Graves,  2  Paige  (N.  Y.)  62, 
where  it  was  held  that  if  husband 
makes  default  and  suffers  wife's  bill 
to  be  taken  as  confessed  and  a  divorce 
is  granted,  he  cannot  afterwards  set 
up  in  opposition  to  wife's  claim  for 
costs  and  alimony  any  matter  which,  if 
set  up  in  the  answer,  would  have  been 
a  sufficient  ground  for  refusing  a  di- 
vorce. See  also  Pullen  v.  PuUen  (N. 
J.,  1889),  17  Atl.  Rep.  310. 

3.  Mangels  v.  Mangels,  6  Mo.  App. 
481;  Thayer  v.  Thayer,  9  R.  I.  377; 
Purcell  V.  Purcell,  3  Edw.  Ch.  (N.  Y.) 
194;  Bird  V.  Bird,  i  Lee  572,  5  Eng. 
Ecc.  455;  Bruere  v.  Bruere,  i  Curt. 
Ecc.  566,  6  Eng.  Ecc.  391;  Moss  v. 
Moss,  15  W.  R.  532;  Rublinsky  v. 
Rublinsky  (Super.  Ct.),  24  N.  Y.  Supp. 
920.  But  see  Kock  v.  Kock,  42  Barb. 
(N.  Y.)  515;  Jenkins  v.  Jenkins,  69 
Ga.  483;  Sanchez  v.  Sanchez,  21  Fla. 
346,  where,  in  a  suit  for  divorce 
brought  by  the  husband,  an  order  for 
temporary  alimony  and  suit  money 
was  set  aside,  it  not  appearing  in  the 
record  that  the  husband  had  notice  of 
the  motion  or  an  opportunity  to  be 
heard. 

4.  Damon  v.  Damon,  28  Wis.  510. 
And  the  bill  will  not  be  multifarious 
because  such  grantees  claim  under 
several  conveyances  executed  with 
the  same  common  intent.  Hinds  v. 
Hinds.  80  Ala.  225. 

Intervening  Party  — A  woman  who 
intervenes  in  an  action  on  the  ground 


of  having  contracted  marriage  with 
one  of  the  parties  thereto,  the  valid- 
ity of  which  marriage  may  be  affected 
by  a  judgment  in  the  case,  may  be  al- 
lowed alimony  and  counsel  fees. 
Anonymous,  i  Abb.  Pr.  N.  S.  (N.  Y. 
Supreme  Ct.)  307. 

6.   Black  V.  Black,  5  Mont.  15. 

Order  Void  Against  One  Not  a  Party. — 
In  the  case  of  a  divorce  for  insanity, 
where  the  court  orders  the  guardian 
to  pay  alimony,  the  order  will  be  void 
where  he  has  not  been  made  a  party 
to  the  suit.  Tiffany  v.  Tiffany,  84 
Iowa  122. 

6.  2  Bish.  on  M.,  D.,  &  S.  §  513; 
Stewart  on  M.  &  D.  §  322;  Wright 
V.  Wright,  3  Tex,  168.  But  not  where 
the  proceeding  is  in  equity,  2  Bish. 
on  M.,  D.,  &  S.  §  513;  or  the  bill  is  for 
a  separation,  Wood  v.  Wood,  2  Paige 
(N.  Y.)  454;  or  the  wife  is  an  infant. 
Wood  V.  Wood,  2  Paige  (N.  Y.)  108. 
But  see  Jones  v.  Jones,  18  Me.  308, 
36  Am'.  Dec.  723;  Besore  v.  Besore,  49 
Ga.  37S;  also  Beavan  v.  Beavan,  2 
Swab.  &  T.  652. 

7.  Tayman  v.  Tayman,  2  Md.  Ch. 
393.  See  also  Creamer  v.  Creamer, 
36  Ga.  618;  Kelly  v.  Kelly,  32  L.  J. 
Mat.  Cas.  181;  McCuUoch  v.  Murphy, 
45  111.  256. 

Conditions. — Usually  temporary  ali- 
mony is  not  granted  on  conditions,  as 
that  of  a  consent  to  a  reference, 
Strong  V.  Strong,  5  Robt.  (N.  Y.)  612; 
or  waiving  a  jury  trial,  Lowenthal  v. 
Lowenthal,  68  Hun  (N.  Y.)  366,  <//j«/- 
proviftg  Siegelv.  Siegel  (Super.  Ct.),  19 
N.  Y.  Supp.  906,  wherein  the  plaintiff, 
by  insisting  on  her  constitutional  right 
to  trial  by  jury  and  thereby  postpon- 
ing the  case  for  a  year,  the  defendant 
being  ready,  was  deprived,  by  order, 
of  alimony  already  granted. 

Amendment. — A  bill  for  divorce  cr- 
mensa  et  thoro  may  be  amended  by  in- 


423 


Procedure. 


ALIMONY. 


Evidence. 


3.  Evidence — Wife's  Affidavit. — The  wife's  prayer  for  alimony  must, 
in  general,  be  supported  by  her  own  affidavit,*  and  should  also 
be  supported  by  those  of  other  parties.* 

The  Husband's  Answer  ought  also  to  be  under  oath,^  but  there  is 
no  uniform  rule  of  practice  in  this  country.'* 

And  Affidavits  and  Depositions  are  commonly  filed  on  both  sid©6,*  as 


serting  a  viniculo.     Turner  v.  Turner, 
44  Ala.  437. 

1.  Glenn  v.  Glenn,  44  Ark.  46; 
Schonwald  v.  Schonwald,  Phillips 
Eq.  (N.  Car.)  215;  Bayly  v.  Bayly, 
2  Md.  Ch.  326;  Countz  v.  Countz, 
30  Ark.  73;  McGee  v.  McGee,  8  Ga. 
295,  52  Am.  Dec.  407;  Daniels  v. 
Daniels,  9  Colo.  133;  Vandegrift  v. 
Vandegrift,  30  N.  J.  Eq.  76;  Glasser  v. 
Glasser,  28  N.  J.  Eq.  22;  Wright  v. 
Wright,  I  Edw.  Ch.  (N.  Y.)  62;  Ed- 
wards V.  Edwards,  Wright  (Ohio)  308; 
and  Wright  v.  Wright,  3  Tex.  168, 
where  the  court  said:  "  As  a  rule  of 
practice  the  courts  should  require  ap- 
plications for  alimony  to  be  sustained 
by  the  oath  of  the  party  or  evidence 
aliutide,  otherwise  they  cannot  act 
advisedly  in  determining  upon  the 
amount  which,  under  all  the  circum- 
stances, the  husband  should  contrib- 
ute to  the  support  of  the  wife." 

North  Carolina. — In  this  state  it  is  re- 
quired by  statute.   Code,  vol.  i,  §  1287. 

New  York. — It  has  been  held  in  this 
state  that  where  adultery  is  charged 
in  the  husband's  bill,  the  wife  will  be 
required  to  deny  this  charge  under 
oath  before  she  can  obtain  an  award 
of  temporary  alimony  and  suit  money; 
but  such  denial  under  oath  is  con- 
clusive when  made  so  far  as  the  tem- 
porary allowance  is  concerned.  Wood 
r/.Wood,  2  Paige  (N.  Y.)  108;  Osgood  z/. 
Osgood,  2  Paige  (N.  Y.)  621;  Williams 
V.  Williams,  3  Barb.  Ch.  (N.  Y.)  628; 
Rublinskyz/.  Rublinsky  (Super.  Ct.),24 
N.Y.Supp.  920.  See  also  Clark  z/.Clark, 
7  Robt.  (N.  Y.)  284,  and  Rawson  v. 
Rawson,  37  111.  App.  491,  where  depo- 
sitions to  prove  such  adultery  were 
allowed  to  be  read  in  evidence. 

2.  Brinkley  v.  Brinkley,  50  N.  Y.  184; 
McGee  v.  McGee,  8  Ga.  295,  52  Am. 
Dec.  407;  Bayly  v.  Bayly,  2  Md.  Ch. 
326.     See  Daniels  v.  Daniels,  9  Colo. 

133- 

Though  Not  Indispensable. — For 
where  she  swears  absolutely,  even  the 
writ  of  ne  exeat  may  be  granted.  Mc- 
Gee V.  McGee,  8  Ga.  295,  52  Am.  Dec. 
407;  Bayly  v.  Bayly,  2  Md.  Ch.  326. 


It  is  curious  to  note  that  at  one  time 
it  was  doubted  whether  the  wife  could 
make  affidavit  in  such  a  case.  See 
Bayly  v.  Bayly,  2  Md.  Ch.  326;  Denton 
V.  Denton,  i  Johns.  Ch.  (N.  Y.)  441; 
Shaftoe  v.  Shaftoe,  7  Ves.  Jr.  171; 
Sedgwick  v.  Walkins,  i  Ves.  Jr.  49. 

3.  Wright  V.  Wright,  3  Tex.  168. 

4.  2  Bish.  on  M.,  D.,  &  S.  §  1081. 

English  Practice. — Under  the  eccle- 
siastical practice,  as  under  that  of  the 
later  divorce  court,  the  husband's  an- 
swer to  the  wife's  petition  for  alimony 
was  required  to  be  under  oath.  Con- 
stable V.  Constable,  L.  R.  2  P.  &  M. 
17;  Mumby  v.  Mumby,  L.  R.  i  P.  & 
M.  701;    Snowdon  v.   Snowdon,   L.  R. 

2  P.  &  M.  200.  And,  by  rule  of  court, 
the  wife  is  allowed  to  force  the  hus- 
band to  a  fuller  disclosure  of  his  fac- 
ulties, or  even  to  examine  him  as  a  wit- 
ness. Anderson  v.  Anderson,  L.  R.  i 
P.  &  M.  512;  Jennings  v.  Jennings,  L. 
R.  I  P.  &  M.  35;  Nokes  v.  Nokes,  3 
Swab.  &  T.  529;  Williams  v.  Williams, 
L.  R.  I  P.  &  M.  370. 

Vermont  has  a  similar  provision  in 
her  statutes.      Rev.  Laws,  §  2381. 

Where  a  husband  has  not  filed  his 
answer  under  oath,  he  cannot  cross- 
examine  witnesses  on  a  motion  for  an 
allotment  of  temporary  alimony  or 
contradict  their  evidence.  Constable 
V.  Constable,  L.  R.  2  P.  &  M.  17. 

The  wife  need  in  no  case  accept  the 
answer,  but  may  furnish  additional 
testimony  if  she  desires.  Brisco  v. 
Brisco,  2  Hag.  Con.  199;  Higgs  v. 
Higgs,  3  Hag.  Ecc.  472,  5  Eng.  Ecc. 
186;  Durant  v.  Durant,  i  Hag.  Ecc. 
528,  3  Eng.  Ecc.  231;  Westmeath  v. 
Westmeath,  3  Knapp  42. 

The  answer  is  always  construed 
most  strongly  against  the  husband. 
Robinson  v.  Robinson,  2  Lee  593,  6 
Eng.  Ecc.  255.  And  he  will  be  pre- 
sumed "  to  have  made  every  possible 
deduction  in  his  favor."    Rees  v.  Rees, 

3  Phillim.  387. 

5.  Dougherty  v.  Dougherty,  8  N.  J. 
Eq.  540;  Cray  v.  Cray,  32  N.  J.  Eq. 
25;  Wooley  V.  Wooley,  24  111.  App. 
431;  Rawson  v.  Rawson,  37  111.  App. 


424 


Procedure. 


ALIMONY. 


Evidence. 


well  as  other  evidence  adduced.* 

The  Burden  of  Proving  facts  necessary  in  order  to  authorize  a  de- 
cree for  alimony  is  upon  the  wife,®  and  it  is  error  to  exclude  the 
testimony  offered  by  the  husband  in  rebuttal  of  the  same*'  but 
the  wife  need  only  make  out  a  prima-facie  case,*  which,  when 


491;    Simonds   v.    Simonds,    10  N.  Y. 
Supp.  606. 

1.  Martin  v.  Martin,  8  N.  J.  Eq. 
563;  Wright  V.  Wright,  3  Tex.  168; 
Jenkins  v.  Jenkins,  69  Ga.  483;  Jan- 
vrin  V.  Janvrin,  59  N.  H.  23;  Bardin 
V.  Bardin  (S.  Dak.,  1893),  56  N.  W. 
Rep.  1069. 

Oral  Testimony. — So  the  court  does 
not  err  in  hearing  oral  testimony  in 
support  of  an  application  for  tempo- 
rary alimony.  Lochnane  f.  Lochnane, 
78  Ky.  467;  McFarland  v.  McFarland, 
64  Miss.  449. 

Accessions  of  Property. — So  on  the 
hearing  of  a  petition  for  alimony  filed 
after  the  husband  has  procured  an  ex 
parte  divorce  in  another  state,  the  wife 
may  introduce  evidence  to  show  that 
he  has  received  large  accessions  of 
property  since  the  date  of  the  decree, 
and  the  court  may  consider  the  same 
in  making  its  award.  Cox  v.  Cox,  20 
Ohio  St.  439. 

2.  Collins  V.  Collins,  71  N.  Y.  274; 
Countz  V.  Countz,  30  Ark.  73;  Glasser 
V.  Glasser,  28  N.  J.  Eq.  22;  Wright  v. 
Wright,  I  Edw.  Ch.  (N.  Y.)  62;  Carpen- 
ter V.  Carpenter,  19  How.  Pr.  (N.  Y. 
Supreme  Ct.)  539;  McGee  v.  McGee,  8 
Ga.  295,  52  Am.  Dec.  407;  Worden  v. 
Worden,  3  Edw.  Ch.  (N.  Y.)  387;  Free- 
man V.  Freeman,  49  N.  J.  Eq.  102; 
Vincent  v.  Vincent,  16  Daly  (N.  Y.) 
534;  Glasscock  v.  Glasscock,  94  Ind. 
163;  Cray  v.  Cray,  32  N.  J.  Eq.  25; 
Becker  v.  Becker,  15  111.  App.  247. 

General  Admissions. — An  affidavit  of 
the  plaintiff  showing  general  admis- 
sions made  to  her  by  the  defendant 
husband,  coupled  with  a  denial  of  the 
specific  act  charged  in  the  bill  of  com- 
plaint, will  not  be  sufficient  to  supply 
the  defect  in  a  bill  unsupported  by  affi- 
davits and  denied  under  oath  in  the 
answer.  Quare,  whether  the  intro- 
duction into  an  affidavit  of  such  ad- 
missions of  the  husband  does  not  con- 
travene the  rule  forbidding  the  wife 
to  divulge  private  communications. 
Monk  V.  Monk,  7  Robt.  (N.  Y.)  153. 
And  a  general  assertion,  in  the  mov- 
ing papers,  of  adultery  "  on  informa- 
tion and  belief"  is  not  sufficient  where 


the  husband  denies  the  charge.  Mori- 
arty  V.  Moriarty  (Super.  Ct.),  10  N.  Y. 
Supp,  228.  See  also  Clark  v.  Clark,  7 
Robt.  (N.  Y.)  284. 

Divorce  in  Another  State. — Where  an 
answer  sets  up  a  prior  divorce  in  an- 
other state  and  issue  is  joined,  no 
temporaty  alimony  can  be  granted 
until  the  determination  of  this  issue. 
Kiefer  v.  Kiefer  (Colo.  App.,  1894),  36 
Pac.  Rep.  621. 

3.  Jenkins  v.  Jenkins  69  Ga.  483; 
Wright  V.  Wright,  i  Edw.  Ch.  (N.  Y.) 
62;  Story  V.  Story,  Walk.  Ch.  (Mich.) 
421;  Roseberry  v.  Roseberry,  17  Ga. 
139- 

Where,  on  a  motion  for  alimony 
pending  a  bill  for  divorce,  the  husband 
moved  to  continue,  showing  that  a 
material  witness  was  absent  without 
his  consent,  that  he  had  been  sub- 
poenaed, etc.,  it  was  error  to  re- 
fuse the  continuance  on  the  ground 
that  the  granting  of  sAimony  petidejite 
lite  was  wholly  in  the  discretion  of  the 
court,  and  that  there  was  no  necessity 
for  the  presence  of  all  the  witnesses. 
Wardlaw  v.  Wardlaw,  39  Ga.  53. 

Where  Husband  Complainant.  —  It 
seems  he  will  not  be  heard  as  to  wife's 
means  or  his  own.  Mangels  v.  Man- 
gels, 6  Mo.  App.  481;  Thayer  v. 
Thayer,  9  R.  I.  377;  Bird  v.  Bird,  i 
Lee  572.  But  see  Jenkins  v.  Jenkins. 
69  Ga.  483. 

Affidavits  Taken  Before  Husband's  So- 
licitor.— Where  affidavits  in  support 
of  the  defense  set  up  to  an  application 
for  temporary  alimony  are  sworn  to 
before  the  solicitor  of  the  party  offer- 
ing them,  they  cannot  be  read  in  evi- 
dence. Pullen  V.  Pullen  (N.  J.,  1889), 
17  Atl.  Rep.  310. 

4.  Finkelstein  z/.  Finkelstein  (Mont.. 
1894),  34  Pac.  Rep.  1090;  Bardin  v. 
Bardin  (S.  Dak.,  i893)_,  56  N.  W.  Rep. 
io6g;  Vandegrift  v.  Vandegrift.  30  N. 
J.  Eq.  76 ;  and  cases  cited  ante,  p. 
422,  notes  6-9. 

It  was  held  in  Walsh  v.  Walsh  (Buf- 
falo Super.  Ct.),  24  N.  Y.  Supp.  335, 
that  where  the  marriage  was  denied, 
but  there  was  yet  sufficient  evidence 
for   a  jury  to  find  it   if   it   had  been 


425 


Procedure. 


ALIMONY. 


Evidence. 


done,  shifts  the  burden  of  proof  onto  the  husband  to  establish  any 
affirmative  defense  he  may  have,  as  that  she  has  separate  prop- 
erty,* or  that  there  was  no  marriage.* 

Only  Legal  Evidence  is,  of  course,  resorted  to,  not  hearsay.* 

Decision  on  Affidavits. — The  Case  cannot  be  decided  on  its  merits 
on  mere  affidavits."* 

Unaided  Admissions. — The  doctrine  which  makes  mere  unaided  ad- 
missions of  a  party  to  a  divorce  suit  inadmissible  as  evidence  does 
not  apply  to  statements  relating  to  the  property  of  the  parties.* 

Keference. — Where  the  question  of  the  husband's  faculties  is  re- 
ferred to  an  officer  to  determine  the  facts,  the  reference  is  in 
equity  to  a  master  ;®    at  law,  generally  to  a  commissioner  or  ref- 


submitted  to  them,  temporary  alimony 
would  not  be  refused.  So  an  affidavit 
denying  the  marriage  does  not  over- 
come the  presumption  of  its  validity. 
Vincent  v.  Vincent,   i6  Daly  (N.  Y.) 

534- 

1.  Glenn  v.  Glenn,  44  Ark.  46. 

2.  Vincent  v.  Vincent,  16  Daly  (N. 

Y.)534. 

Where  the  testimony  as  to  the  mar- 
riage is  in  equipoise,  and  a  disinter- 
ested witness  swears  that  he  knows 
the  parties  and  was  present  at  the 
ceremony,  this  is  sufficient  evidence 
on  which  to  base  an  order  for  a  tem- 
porary allowance.  Smith  v.  Smith,  61 
Iowa  138. 

3.  Freeman  z'.  Freeman,  49  N.  J.  Eq. 
102. 

Authority  to  Sue. — But  the  cour*.  "n 
its  inquiry  as  to  the  authority  of  coiin- 
sel  to  bring  suit  will  not  be  restricted 
to  strictly  legal  testimony,  but  may 
satisfy  its  conscience  by  the  state- 
ments of  even  interested  parties. 
Swearingen  v.  Swearingen,  19  Ga.  265. 

Motion  to  Vacate  a  Decree. — On  a  mo- 
tion to  vacate  a  decree  for  divorce  and 
alimony,  all  relevant  evidence,  includ- 
ing evidence  used  on  the  original  trial 
and  evidence  not  so  used,  but  which 
might  have  been  then  presented  by 
the  exercise  of  due  diligence,  is  to  be 
received.     Ela  v.  Ela,  63  N.  H.  116. 

Modification  of  Decree. — When  an  im- 
portant modification  of  a  judgment 
for  alimony  is  asked  and  resisted,  it  is 
error  to  decide  the  matter  on  petition, 
answer,  and  papers,  instead  of  a  ref- 
erence to  take  testimony,  or  a  hearing, 
if  either  party  desires  to  introduce 
further  evidence  or  to  cross-examine 
witnesses.     Bacon  v.   Bacon,  34  Wis. 

594- 
Appeal. — Where,    if    wrongly    ad- 

426 


mitted  evidence  is  eliminated  and 
what  remains  is  sufficient  to  uphold 
the  order  for  alimony,  it  will  not  be 
disturbed  on  appeal  because  such  evi- 
dence was  received.  Walsh  v.  Walsh 
(Buffalo  Super.  Ct.),  24  N.  Y.  Supp. 
335- 

4.  Wooleyz/.  Wooley,  24  111.  App.  431; 
Gruhl  V.  Gruhl,  123  Ind.  86,  where  it 
was  said  thajt  "the  court  could  deter- 
mine no  question  relating  to  the  mer- 
its of  the  controversy  except  on  the 
final  trial,  when  ample  opportunity 
would  be  afforded  to  examine  and 
cross-examine  witnesses.  The  affi- 
davits were  mere  ex  parte  statements 
limited  in  their  compass." 

6.  I  Bish.  on  M. ,  D. ,  &  S.  §  1080.  The 
reason  ceasing,  the  rule  also  ceases; 
and  this  is  probably  true  as  regards 
all  facts  which  the  wife  must  show  in 
order  to  entitle  her  to  temporary  ali- 
mony, so  far,  of  course,  only  as  the 
grant  itself  is  concerned.  Atite,  p. 
422,  notes  1-9. 

Se<i  Wright  v.  Wright,  3  Tex.  168, 
where  the  court  said:  "The  provis- 
ions of  the  statute  exempting  defend- 
ants in  suits  for  divorce  from  answer- 
ing on  oath  and  rendering  the  admis- 
sions of  the  parties  incompetent  as 
proof  have  reference  only  to  the  main 
object  of  the  suit — the  dissolution  of 
the  marriage.  They  do  not  apply  to 
such  statements  in  the  pleadings  as  re- 
late to  the  property  of  the  parties  and 
upon  which  the  restraining  order  of 
the  court  is  to  be  grounded.  These 
must  be  verified  by  the  affidavit  of  the 
party." 

6.  Mulock  V.  Mulock,  i  Edw.  Ch. 
(N.  Y.)  14;  Gerard  v.  Gerard,  2  Barb. 
Ch.  (N.  Y.)  73;  Forrest  v.  Forrest,  6 
Duer  (N.  Y.)  102;  Peckford  v.  Peck- 
ford,  I   Paiga  (N.  Y.)  274;  Barrere  v. 


Procedure. 


ALIMONY. 


Decree. 


cree  of  the  court.* 

4.  Decree — a.  FORM — Allowance  in  Instalments — Under  the  ecclesi- 
astical practice,  the  decree  for  alimony,  whether  temporary  or  per- 
manent, always  took  the  form  of  an  allowance  payable  in  instal- 
ments at  fixed  periods.*  This  is  true  also  under  the  unwritten 
law  of  the  United  States,  where  the  decree  for  alimony  does  not 
award  specific  property^  or  a  sum  in  gross  ;*  though  this  may  be 
done  by  consent  of  parties  ;*  and  a  fair  and  bona-fide  agreement 
the  court  will  adopt  as  its  decree.® 

Sum  in  Gross— Specific  Property. — But  the  old  rule  is  not  now  of  gen- 
eral application,  and  in  many  of  the  United  States,  under  statutes,' 


Barrere,  4  Johns.  Ch.  (N.  Y.)  187; 
Amos  V.  Amos,  4N.  J.  Eq.  171;  Snover 
V.  Snover,  10  N.  J.  Eq.  261;  Miller  v. 
Miller,  i  N.  J.  Eq.  386;  Richmond  v. 
Richmond,  2  N.  J.  Eq.  294;  Bray  v. 
Bray,  6  N.  J.  Eq.  27;  Soules  v.  Soules, 
3  Grant's  Ch.  (U.  C.)  121. 

1.  Brotherton  v.  Brotherton,  12  Neb. 
75;  Forrest  v.  Forrest,  8  Bosw.  (N.  Y.) 
640;  Forrest  v.  Forrest,  3  Bosw.  (N.Y.) 
661;  Forrest  v.  Forrest,  25  N.  Y.  501; 
Shaw  V.  Shaw,  9  Mich.  164;  Hoffman 
V.  Hoffman,  55  Barb.  (N.  Y.)  269. 

2.  I  Stewart  on  M.  &  D.  §  374; 
Cooke  V.  Cooke,  2  Phillim.  40,  I  Eng. 
Ecc.  178;  Miller  v.  Clark,  23  Ind.  370; 
Calame  v.  Calame,  24  N.  J.  Eq.  440; 
Hyde  v.  Hyde,  4  Swab.  &  T.  So; 
Bacon  v.  Bacon,  43  Wis.  197. 

3.  Shaw  V.  Shaw,  114  111.  586;  Doe 
V.  Doe,  52  Hun  (N.  Y.)  405;  Russell  v. 
Russell,  4  Greene  (Iowa)  26,  61  Am. 
Dec.  112;  Maguire  v.  Maguire,  7  Dana 
(Ky.)  181;  Phelan  v.  Phelan,  12  Fla. 
449. 

4.  Calame  v.  Calame,  26  N.  J.  Eq. 
548,  24  N.  J.  Eq.  440;  Phelan  v.  Phe- 
lan, 12  Fla.  449.  Though  see  Doole 
V.  Doole,  144  Mass.  278;  Burrz/.  Burr, 
10  Paige  (N.  Y.)  20,  where  the  propo- 
sition in  the  text  seems  to  be  ques- 
tioned. 

Maintenance.  —  And  this  rule  also 
holds  good  in  cases  of  maintenance. 
Almond  v.  Almond,  4  Rand.  (Va.)  662, 
15  Am.  Dec.  781;  Purcell  v.  Purcell,  4 
Hen.  &  M.  (Va.)5o7;  Wallingsford  v. 
Wallingsford,  6  Har.  &  J.  (Md.)485; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  52. 

5.  Doole  V.  Doole,  144  Mass.  278; 
Crews  V.  Mooney,  74  Mo.  26. 

6.  Storey  v.  Storey,  125  111.  608,  8 
Am.  St.  Rep.  417,  overruling  23  111. 
App.  558;  Calame  v.  Calame,  24  N.  J. 
Eq.  440.     "If  the  parties  have  made 


an  agreement,  that  should  be  the 
standard;  if  not,  I  would  take  the 
practice  of  the  court  in  analogous 
cases."  Almond  v.  Almond,  4  Rand. 
(Va.)62,  15  Am.  Dec.  781. 

Execution  cannot  be  ordered  on  a 
mere  agreement  to  pay  alimony  pend- 
ing suit,  where  there  has  been  no 
order  or  decree  therefor.  Brigham  v. 
Brigham,  147  Mass.  159. 

Temporary  Alimony. — The  making  of 
a  consent  order  for  temporary  ali- 
mony does  not  conclude  the  court 
from  making  an  order  for  further  ali- 
mony. Grant  v.  Grant  (S.  Dakota, 
1894),  57  N.  W.  Rep.  948. 

Ante-Nnptial  Agreement  that  wife 
shall  have  a  certain  sum  out  of  hus- 
band's estate  after  his  death  in  lieu  of 
all  claim  against  same  is  no  bar  to  the 
granting  of  alimony.  Janvrin  v.  Jan- 
vrin,  59  N.H.  23.  See  Stearns  v.  Stearns 
(Vt.,  1894),  28  Atl.  Rep.  875.  See  fur- 
ther on  the  question  of  agreement, 
Fletcher  z/.  Holmes,  25  Ind.  458;  Miller 
V.  Miller,  64  Me.  484;  Allison  v.  Alli- 
son (S.  Dak.,  1894),  58  N.  W.  Rep. 
563;  Stratton  v.  Stratton,  77  Me.  377, 
52  Am.  Rep.  779;  Buck 
111.  242;  Carson  v.  Murray, 
(N.  Y.)483;  2  Bish.  on  M. 
§§  882-886. 

A  decree  consented  to  by  the  solici- 
tor of  the  defendant  is  valid  unless 
impeached  for  fraud  or  mistake. 
Brick  V.  Brick,  65  Mich.  230. 

7.  Statutes. — This  whole  matter  is 
one  of  statutory  provision  or  construc- 
tion, and  the  statutes  themselves  must 
be  consulted.  These  may  be  found 
collected  in  Stewart  on  M.  &  D.  §  364; 
and  see  Am.  &  Eng.  Ency.  Law,  vol.  i, 
tit.  Alimony. 

In  a  Texas  Case  it  was  held  that  cer- 
tain lots  owned  in  common  by  the 
parties  to  a  divorce  suit   might  by  de- 


Buck,  60 
3  Paige 
D.,  &  S. 


427 


Procedure. 


ALIMONY. 


Decree. 


both  a  sum  in  gross*  and  specific  property  of  any  description* 
may  be  awarded,  as  will  best  meet  the  necessities  of  the  case.^ 
Alimony,  though  granted  in  gross,  may  be  made  payable  in  in- 
stalments.* 

The  Order  for  Temporary  Alimony  is,  of  course,  in  form,  pendeflte  Hte.^ 
In  the  Case  of  Permanent  Alimony,  where    the    divorce  is  a  fjtensa  et 


cree  be  adjudged  to  one  party  in  satis- 
faction of  her  interest  in  the  entire 
estate,  in  spite  of  art.  2864  of  the  Rev. 
Sts.,  which  provides  that  neither 
party  to  a  divorce  proceeding  shall  be 
compelled  to  divest  himself  or  herself 
of  the  title  to  real  estate.  Young  v. 
Young  (Tex.  Civ.  App.,  1893),  23  S.  W. 
Rep.  83. 

1.  Robinson  v.  Robinson,  79  Cal. 
511;  Ifert  V.  Ifert,  29  Ind.  473;  Wine- 
miller  V.  Winemiller,  114  Ind.  540; 
Taylor  t/.  Gladwin,  40 Mich.  232;  Bene- 
dict V.  Benedict,  58  Conn.  326;  Camp- 
bell V.  Campbell,  37  Wis.  206. 

Gross  Sum  in  Lieu  of  Dower. — But  the 
court  has  no  power  in  its  decree  to 
make  a  woman  accept  a  gross  sum  in 
lieu  of  dower.  Crain  v.  Cavana,  62 
Barb.  (N.  Y.)  109,  36  Barb.  (N.  Y.)4io; 
Russell  V.  Russell,  Smith  (Ind.)  356. 
See  Madison  v.  Madison,  i  Wash.  T«r. 
60.  And  the  dower  interest,  which, 
under  Gen.  Sts.  1878,  ch.  62,  §  24,  is 
allowed  to  a  woman  who  has  obtained 
a  divorce  for  her  husband's  adultery, 
cannot  be  set  off  in  a  divorce  suit. 
Holmes  v.  Holmes,  54  Minn.  352. 

Where  a  statute  allows  the  court  to 
set  off  part  of  husband's  estate  as  ali- 
mony, and  he  owns  only  realty  that 
cannot  be  divided,  a  gross  sum  of 
money  may  be  decreed.  Benedict  v. 
Benedict,  58  Conn.  326. 

2.  Simpson  v.  Simpson,  80  Cal.  237; 
Powell  V.  Campbell,  20  Nev.  232,  19 
Am.  St.  Rep.  350;  Brick  v.  Brick,  65 
Mich.  230;  Halleman  v.  Halleman,  65 
Ga.  476;  Jolly  V.  Jolly,  i  Iowa  g;  Wig- 
gin  V.  Smith,  54  N.  H.  213;  Dinet  v. 
Eigenmann,  80  111.  275;  Blankenship 
V.  Blankenship,  19  Kan.  159;  Broad- 
well  V.  Broadwell,  21  Ohio  St.  657; 
Donovan  v.  Donovan,  20  Wis.  586; 
Bacon  z/.  Bacon,  43  Wis.  197;  Hopkins 
V.  Hopkins,  40  Wis.  462;  Williams  v. 
Williams,  36  Wis.  367;  Damon  v.  Da- 
mon, 28  Wis.  510;  Wilke  v.  Wilke,  28 
Wis.  296;  Webster  z/.  Webster,  64  Wis. 

438- 

Temporary  alimony  may  include 
the  use  of  a  house.  Cowan  v.  Cowan 
(Colo.,  1893),  35  Pac.  Rep.  547. 


The  decree  which  sets  off  land  to 
one  of  the  parties  must  sufficiently  de- 
scribe it.  Young  V.  Young  (Tex.  Civ. 
App.  1893),  23  S.  W.  Rep.  83. 

3.  Discretion. — Where  the  court  has  a 
discretion  in  the  matter,  it  seems  to  be 
deemed  the  better  plan  to  award  an 
allowance,  and  not  either  a  sum  in 
grosser  specific  property,  unless  there 
are  special  reasons  why  the  latter 
should  be  done,  as  to  avoid  further 
litigation,  or  where  there  is  danger 
of  the  husband's  delaying  payments. 
McClung  V.  McClung,  40  Mich.  494; 
Williams  v.  Williams,  36  Wis.  362; 
Ross  V.  Ross,  78  111.  402. 

The  following  cases  on  this  point 
may  also  be  consulted:  Wheeler  v. 
Wheeler,  18  111.  39;  Miller  v.  Clark, 
23  Ind.  370;  Ross  V.  Ross,  78111.  402; 
Armstrong  v.  Armstrong,  35  III.  109; 
Jolliff  V.  Jolliff,  32  111.  527;  Blue  v. 
Blue,  38  111.  9,  87  Am.  Dec.  267;  Daily 
V.  Daily,  64  111.  329;  Von  Glahn  v.  Von 
Glahn,  46  III.  134;  Graves  v.  Graves, 
108  Mass.  314;  Burrows  v.  Purple,  107 
Mass.  428;  Prescott  v.  Prescott,  59  Me. 
146;  Petersine  v.  Thomas,  28  Ohio  St. 
596;  Taylor  v.  Taylor,  93  N.  Car.  418, 
53  Am.  Rep.  460;  Bacon  v.  Bacon,  43 
Wis.  197;  Thomas  v.  Thomas,  41  Wis. 
229;  Coad  V.  Coad,  41  Wis.  23;  Che- 
nault  V.  Chenault,  5  Sneed  (Tenn.) 
248;  Gholston  V.  Gholston,  31  Ga.  265; 
Close  V.  Close,  25  N.  J.  Eq.  434; 
Boggess  z'.Boggess,6  Baxt.  (Tenn.)299. 

4.  Taylor  v.  Gladwin,  40  Mich.  493; 
Ifert  V.  Ifert,  29  Ind.  473;  Winemiller 
V.  Winemiller,  114  Ind.  540.  See  Will- 
iams V.  Williams,  36  Wis.  362. 

5.  Order  must  be  as  Prayed. — Where 
respondent  petitioned  for  alimony 
pendente  lite,  it  was  error  to  decree  ali- 
mony "  until  the  further  order  of  the 
court."  Heilbron  v.  Heilbron,  158  Pa, 
St.  297.  But  an  order  to  pay  tempo- 
rary alimony  is  not  erroneous  because 
not  expressly  limited  to  such  time  as 
the  action  should  be  pending.  By 
necessary  implication  the  order  ceases 
to  have  any  operation  after  the  entry 
of  judgment.  Langan  v.  Langan,  91 
Cal.  654. 


428 


Procedure. 


ALIMONY. 


Decree. 


thoro,  the  decree  is  usually  in  terms  until  the  reconciliation  of  the 
parties,*  or  until  they  are  completely  divorced.^ 

Award  During  Joint  Lives. — And  whether  the  divorce  is  a  mensa  et 
thoro  or  a  vinailo,  the  award  of  alimony  should  only  be  made 
during  the  joint  lives  of  the  parties.^ 

When  Allowance  Commences. — Where  permanent  alimony  takes  the 
form  of  a  periodic  allowance,  the  decree  usually  directs  that  it 
shall  run  from  the  date  of  the  final  decree,*  though  sometimes 
it  runs  from  the  filing  of  the  bill,  when  this  is  just  under  the 
circumstances.* 


1.  Rogers  v.  Vines,  6  Ired.  (N.  Car.) 
293;  Tiffin  V.  Tiffin,  2  Binn.  (Pa.)  202; 
Lockwood  V.  Krum,  34  Ohio  St.  2. 

Maintenance. — In  this  connection  the 
cases  on  maintenance  may  be  referred 
to  where  the  practice  in  making  the  de- 
cree is  the  same.  Wallingsford  v.  Wal- 
lingsford,  6  Har.  &  J.  (Md.)  485;  Lock- 
ridge  V.  Lockridge,  3  Dana  (Ky.)  28, 
28  Am.  Dec.  52;  ante,  p.  410,  note  3. 

2.  Blaker  v.  Cooper,  7  S.  &  R.  (Pa.) 
500;  Smith  V.  Smith,  3  S.  &  R.  (Pa.) 
250. 

3.  Pearce  z'.Pearce  (Ky.,  1891),  16  S. 
W.  Rep.  ^z^l\  Francis  v.  Francis,  31 
Gratt.  (Va.)  283;  Gaines  v.  Gaines,  9 
B.  Mon.  (Ky.)  299,  48  Am.  Dec.  425; 
Rogers  v.  Vines,  6  Ired.  (N.  Car.)  293; 
Casteel  v.  Casteel,  38  Ark.  477 ;  Dewees 
V.  Dewees,  55  Miss.  315,  where  it  was 
said  that  alimony  should  be  decreed, 
not  "during  the  natural  life  of  the 
wife,"  but  until  the  dissolution  of  the 
marriage  by  the  death  of  either  party; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  52  ;  Wallingsford  v. 
Wallingsford,  6  Har.  &  J.  (Md.)485; 
Knapp  V.  Knapp,  134  Mass.  353.  In 
Lennahan  v.  O'Keefe,  107  111.  620,  it 
was  said  :  "  In  the  absence  of  lan- 
guage showing  unequivocally  that  the 
intention  was  to  bind  the  heir  by  such 
a  decree,  we  are  of  opinion  that  it  does 
not  dg  so,  but  that  its  life  terminates 
with  the  death  of  the  defendant." 

Presumption. — The  decree  is  pre- 
sumed to  be  for  the  joint  lives  of  the 
parties.  Field  v.  Field,  66  How.  Pr. 
(N.  Y.  Supreme  Ct.)  346,  15  Abb.  N. 
Cas.  (N.  Y.)  434,  disapproving  Burr  v. 
Burr,  10  Paige  (N.  Y.)  20. 

Contra. — But  where  the  decree  ex- 
pressly awards  alimony  to  continue 
during  the  natural  life  of  wife,  it  seems 
the  award  will  be  sustained.  Stratton 
V.  Stratton,  77  Me.  373,  52  Am.  Rep. 
779;  Miller  v.  Miller,  64  Me.  489;  Burr 
V.  Burr,  10  Paige  (N.  Y.)  20,  7  Hill 
(N.  Y.)  207;  Carson  v.  Murray,  3  Paige 


(N.  Y.)483;  Lennahan  v.  O'Keefe,  107 
111.  620:  Storey  v.  Storey,  125  111.  60S, 
8  Am.  St.  Rep.  417,  reversing  23  111. 
App.  558;  ^JT/.  Hart,  94Cal.  254.  And, 
of  course,  it  may  be  so  under  a  statute. 
Smythe  v.  Banks,  73  Ga.  303. 

No  Period  Specified. — A  decree  award- 
ing alimony  is  not  void  where  no  period 
is  specified  during  which  it  shall  be 
paid.     Ex  p.  Hart,  94  Cal.  254. 

4.  Durantf.  Durant,  i  Hagg.  Ecc.  528, 
3  Eng.  Ecc.  231;  Kempe  v.  Kempe,  i 
Hagg.  Ecc.  532,  3  Eng.  Ecc.  233;  Cooke 
V.  Cooke,  2  Phillim.  40 ;  Soules  v. 
Soules,  3  Grant's  Ch.  (U.  C.)  113  ; 
Ricketts  v.  Ricketts,  4  Gill  (Md.)  105; 
Holmes  v.  Holmes,  29  N.  J.  Eq.  9. 

6.  Forrest  v.  Forrest,  25  N.  Y.  501,  6 
Duer  (N.  Y.)  102  ;  Burr  v.  Burr,  10 
Paige  (N.  Y.)  20,  7  Hill  (N.  Y.)  207. 

Where  the  wife  was  adjudged  en- 
titled to  a  divorce,  but  the  question  of 
alimony  was  reserved,  it  was  held  that 
the  husband's  liability  for  temporary 
alimony,  which  had  previously  been 
granted,  continued  until  the  decision 
as  to  permanent  alimony.  Ex  p.  Am- 
brose, 72  Cal.  398. 

Conditions. — Under  the  English  prac- 
tice alimony  is  sometimes  decreed  to  a 
wife  to  continue  durn  casta  et  sola  vixerit. 
But  this  practice  is  said  not  to  obtain 
in  the  United  States.  2  Bish.  on  M., 
D.,  &  S.  §  1057.  But  see  Pearce  v. 
Pearce  (Ky.,  1891),  16  S.  W.  Rep.  271, 
where  the  allowance  was  made  for  as 
long  as  plaintiff  remained  a  single 
woman.  And  see  Storey  v.  Storey, 
125  111.  608,  8  Am.  St.  Rep.  417,  a  case 
of  decree  for  alimony  entered  upon 
consent,  allowance  to  continue  while 
plaintiff  remained  single. 

In  Middleton  v.  Middleton,  18  111. 
App.  472,  it  was  said  that  where  there 
were  articles  of  separation,  alimony 
should  be  granted,  conditioned  upon 
the  husband's  failure  to  pay  the 
amount  agreed  upon  under  such  arti- 
cles. 


429 


Procedure. 


ALIMONY. 


Decree. 


b.  Modification. — Decrees  for  alimony  are,  and,  on  principle, 
should  be,  subject  to  change  or  modification  as  circumstances  may 
require.* 

Temporary  Alimony  may  be  increased  or  diminished  at  any  time 
during  the  pendency  of  the  suit.* 

Permanent  Alimony. — And  this  is  SQ  also  in  the  case  of  permanent 
alimony,  where  the  divorce  granted  is  a  mensa  et  thoro^ 
or  the  decree  is  alimony  without  divorce  ;*  but  not,  it  seems, 
where  the  divorce  is  a  'vinculo,^  unless  this  right  has  been  re- 
served by  the  court  in  the  decree  itself®  or  is  given  by  statute, 
which  it  generally  is.'' 


Maintenance  for  Child. — A  divorce  de- 
cree which  gives  the  wife  alimony  and 
the  custody  of  a  child  will  not  be  re- 
versed because  it  does  not  specify  the 
amount  intended  for  the  wife  and 
child  respectively,  although  it  is  proper 
to  do  so.  Johnson  v.  Johnson,  36  111. 
App.  152,  affirmed  \n  125  111.  510. 

Arrears  of  Alimony. — A  decree  of  di- 
vorce should  not  direct  payment  by 
the  defendant  of  arrears  of  alimony 
previously  ordered.  They  should  be 
enforced  by  plaintiff  in  the  ordinary 
way.  Hoffman  v.  Hoffman,  55  Barb. 
(N.  Y.)  269.  As  to  arrears  of  alimony 
generally,  see  Am.  &  Eng.  Ency.  Law, 
tit.  Alimony. 

1.  By  alimony  is,  of  course,  here 
meant  the  alimony  of  the  unwritten 
law,  not  the  statutory  alimony  granted 
on  total  dissolution  of  the  marriage 
bond.     Smith  v.  Smith,  45  Ala.  264. 

2.  Cox  V.  Cox,  3  Add.  Ecc.  276,  2 
Eng.  Ecc.  531;  McGee  v.  McGee,  10 
Ga.  477;  Amos  v.  Amos,  4  N.  J.  Eq. 
171;  Sigel  V.  Sigel,  28  Abb.  N.  Cas. 
(N.  Y.  Super.  Ct.)  308;  King  v.  King, 
38  Ohio  St.  370;  Moe  v.  Moe,  39  Wis. 
30S;  Simonds  v.  Simonds  (Supreme 
Ct.)  10  N.  Y.  Supp.  606;  Williams  v. 
Williams,  29  Wis.  517;  Waters  v. 
Waters,  49  Mo.  385. 

3.  Rogers  v.  Vines,  6  Ired.  (N.  Car.) 
293;  Taylor  v.  Taylor,  93  N.  Car.  418, 
53  Am.  Rep.  460;  Smith  v.  Smith,  45 
Ala.  264;  Miller  v.  Miller,  6  Johns.  Ch. 
(N.  Y.)  93;  Sloan  v.  Cox,  4  Hayw. 
(Tenn.)  75;  Otway  v.  Otway,  2  Phil- 
lim.  109,  I  Eng.  Ecc.  203;  De  Blaquiere 
V.  De  Blaquiere,  3  Hagg.  Ecc.  322,  5 
Eng.  Ecc.  126;  Saunders  v.  Saunders, 
I  Swab.  &  T.  72;  Bursler  v.  Bursler,  5 
Pick.  (Mass.)  427;  Holmes  v.  Holmes, 
4  Barb.  (N.  Y.)  295;  Barber  v.  Barber, 
I  Chand.  (Wis.)  280. 

4.  Beck  V.  Beck,  43  N.  J.  Eq.  668; 
cases  cited  attte,  p.  411,  note  i. 

Lien  on  Land. — Where  a   decree  for 


maintenance  is  made  a  lien  on  more 
land  than  is  necessary  to  secure  pay- 
ment, it  will  be  modified  on  application. 
Thomas  v.  Thomas,  44  111.  App.  604. 

6.  Sampson  v.  Sampson,  16  R.  I. 
456;  Sammis  v.  Medbury,  14  R.  I.  214; 
Mitchell  V.  Mitchell,  20  Kan.  665; 
Stratton  v.  Stratton,  73  Me.  481;  Smith 
V.  Smith,  45  Ala.  264;  Fries  v.  Fries, 
I  McArthur(D.  C.)  291;  Kerr  v.  Kerr, 
59  How.  Pr.  (N.  Y.  C.  PI.)  255;  Shep- 
herd V.  Shepherd,  i  Hun  (N.  Y.)  240; 
Pertersine  z/.  Thomas,  28  Ohio  St.  596; 
Hardin  v.  Hardin,  38  Tex.  616;  Park 
V.  Park,  80  N.  Y.  156,  affirming  18  Hun 
(N.  Y.)466. 

Principle. — The  principle  on  which 
this  doctrine  rests  is  the  same  that 
prevents  the  granting  of  alimony  after 
final  decree  in  an  action  completely 
divorcing  the  parties.  Kamp  z/.  Kamp, 
59  N.  Y.  212;  ante,  p.  414,  and  cases 
there  cited. 

6.  Olney  v.  Watts,  43  Ohio  St.  499; 
Pearce  v.  Pearce  (Ky. ,  1891),  16  S.  W. 
Rep.  271;  Beck  v.  Beck,  43  N.  J.  Eq. 
668  ;  Fries  v.  Fries,  i  McArthur 
(D.  C.)  291;  Petersine  v.  Thomas,  28 
Ohio  St.  596;  Williams  v.  Williams,  29 
Wis.  517;  Severn  v.  Severn,  7  Grant's 
Ch.  (U.  C.)  109;  Bennett  v.  Bennett, 
Deady  (U.  S.)  299.  See  also  Lockridge 
V.  Lockridge,  3  Dana  (Ky.)*28,  28 
Am.  Dec.  52;  Sampson  v.  Sampson, 
16  R.  I.  456. 

Yet  it  was  held  in  Cullen  v.  Cullen. 
55  N.  Y.  Super.  Ct.  346,  that  even 
where  a  decree  refusing  alimony  was 
only  a  mensa  et  thoro,  and  expressly 
reserved  the  right  to  the  court  to  make 
future  modifications  of  it  for  the  sup- 
port of  the  wife  as  circumstances 
should  require,  this  could  not  be  done; 
though  it  is  different  where  the  defend- 
ant consents.  Stahl  v.  Stahl,  59  Hun 
(N.  Y.)  621,  12  N.  Y.  Supp.  854. 

7.  Kempster  v.  Evans,  81  Wis.  247  ; 
Bacon  v.  Bacon,  43  Wis.  197;  Hopkins 


430 


Procedure. 


ALIMONY. 


Decree. 


When  Power  Exercised. — But  this  power  will  only  be  exercised  where 
a  change  of  circumstances  in  the  parties  is  clearly  shown/  or  on 
the  presentation  of  newly  discovered  evidence  of  which  the  peti- 
tioner was  excusably  ignorant.* 


V.  Hopkins,  40  Wis.  462;  Campbell  v. 
Campbell,  37  Wis.  206;  Blake  v.  Blake, 
75  Wis.  339,  68  Wis.  303  ;  Coad  v.  Coad, 
41  Wis.  23  ;  Williams  v.  Williams,  29 
Wis.  517;  Thomas  v.  Thomas,  41  Wis. 
229;  Bennett  v.  Bennett,  Deady  (U.  S.) 
299;  Robbins  v.  Robbins,  loi  111.  416; 
Lennahan  v.  O'Keefe,  107  111.  620; 
Stillman  v.  Stillman,  99  111.  196,  39 
Am.  Rep.  21;  Cole  v.  Cole,  142  111.  19, 
affirming  35  111.  App.  544;  Foote  v. 
Foote,  22  111.  425;  Wheeler  v.  Wheeler, 
18  111.  39;  Alderson  v.  Alderson.  84 
Iowa  198;  Galusha  v.  Galusha,  138  N. 
Y.  272;  Richmond  v.  Richmond,  2  N. 
J.  Eq.  90;  Amos  v.  Amos,  4  N.  J.  Eq. 
171;  Sheafe  v.  Sheafe,  36  N.  H.  155; 
Sparhawk  v.  Sparhawk,  120  Mass. 
390;  Graves  v.  Graves,  108  Mass.  314; 
Albee  v.  Wyman,  10  Gray  (Mass.)  222; 
Waters  v.  Waters,  49  Mo.  385;  Olney 
V.  Watts,  43  Ohio  St.  499;  Ellis  v. 
Ellis,  13  Neb.  91;  Bauman  v.  Bauman, 
18  Ark.  320,  68  Am.  Dec.  171 ;  Bowman 
z/.  Worthington,  24  Ark.  522;  Perkins 
V.  Perkins,  12  Mich.  456;  Goodman  !>. 
Goodman.  26  Mich.  417;  McGee  v. 
McGee,  10  Ga.  477;  Wilde  v.  Wilde, 
36  Iowa  319;  Shaw  v.  McHenry,  52 
Iowa  182;  Fisher  v.  Fisher,  32  Iowa 
20;  Blythe  v.  Blythe,  25  Iowa  266; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  52;  Call  v.  Call,  65 
Me.  407;  Weld  v.  Weld,  28  Minn.  33; 
Semrow  v.  Semrow,  23  Minn.  214; 
Sheafe  v.  Sheafe,  36  N.  H.  155;  Buck- 
minster  V.  Buckminster,  38  Vt.  248,  88 
Am.  Dec.  652. 

In  Campbell  v.  Campbell,  37  Wis. 
206,  it  was  held  that  the  court  could 
not  by  any  form  of  judgment  divest 
itself  of  the  authority  given  it  by 
statute  to  revise  such  judgment.  So 
also  in  Thomas  v.  Thomas,  41  Wis. 
229.  And  an  annual  allowance  is  not 
a  final  distribution  of  the  estate  of  the 
parties,  although  the  decree  may  de- 
clare it  to  be  so.  Kempster  v.  Evans, 
81  Wis.  247,  15  L.  R.  A.  391.  See 
Blake  v.  Blake,  75  Wis.  339,  68  Wis.  303. 
But  a  decree,  in  so  far  as  it  vests  title 
to  real  estate  in  the  wife,  is  final  and 
cannot  be  modified  after  the  term  of 
court  in  which  it  was  given  has  closed. 
Webster  v.  Webster,  64  Wis.  438.  See 
Shepherd  v.  Shepherd,  i  Hun  (N.  Y.) 


240,  affirmed  ifi  58  N.  Y.  644;  Forrest 
V.  Forrest,  3  Bosw.  (N.  Y.)66i. 

Presumption. — But  a  decree  for  ali- 
mony is  not  temporary  in  its  character, 
and  the  presumption  that  it  remains 
unchanged  can  only  be  overcome  by 
record  evidence.  Bennett  v.  Bennett, 
Deady  (U.  S.)  299. 

Agreement. — And  an  agreement  is  no 
bar  to  the  modification  of  a  judgment. 
Blake  v.  Blake,  75  Wis.  339,68  Wis.  303. 
See  Galusha  z/.  Galusha,  138  N.Y.  272. 

1.  Rogers  z/.  Vines,  6  Ired.  (N.  Car.) 
293;  Graves  v.  Graves,  108  Mass.  314; 
Simonds  v.  Simonds  (Supreme  Ct.),  10 
N.  Y.  Supp.  606;  Blake  v.  Blake,  75 
Wis.  339,  68  Wis.  303;  Cole  v.  Cole, 
142  111.  19,  35  111.  App.  544;  Rich- 
mond V.  Richmond,  2  N.  J.  Eq.  90; 
Wilde  V.  Wilde,  36  Iowa  319;  Semron 
V.  Semron,  23  Minn.  214;  Perkins  v, 
Perkins,  12  Mich.  456;  Goodman  v. 
Goodman,  26  Mich.  417;  Petersine  v. 
Thomas,  28  Ohio  St.  596;  De  Blaquiere 
V.  De  Blaquiere,  3  Hagg.  Ecc.  322,  5 
Eng.  Ecc.  126;  Fisher  v.  Fisher,  32  Iowa 
20;  Halsted  v.  Halsted,  5  Duer(N.  Y). 
659;  Holmes  v.  Holmes,  4  Barb.  (N.Y.) 
295;  Buckminster  v.  Buckminster,  38 
Vt.  248,  88  Am.  Dec.  652;  Bowman  v. 
Worthington,  24  Ark.  522;  Stillman  v. 
Stillman,  99  111.  196,  39  Am.  Rep.  21; 
Albee  v.  Wyman,  10  Gray  (Mass.)  222; 
Fisher  v.  Fisher,  2  Swab.  &  T.  411; 
Sidney  v.  Sidney,  4  Swab.  &  T.  180. 
See  also  Sloan  v.  Cox,  4  Hayw.  (Tenn.) 
75;  Forrest  v.  Forrest,  3  Bosw.  (N.  Y.) 
661.  And  a  petition  to  modify  a  decree 
which  does  not  show  this  change  is 
demurrable.   Reid  v.  Reid,  74  Iowa  681. 

Agreement. — A  petition  may  be  modi- 
fied by  agreement,  and  the  agreement 
upheld.  Allison  v.  Allison  (S.  Dak., 
1894),  58  N.  W.  Rep.  563. 

Death  of  Child. — A  decree  for  per- 
manent alimony  for  the  support  of 
wife  and  child  will  not  be  reformed 
and  the  amount  reduced  on  the  death 
of  the  child,  where  the  necessities  of 
the  wife  remain  the  same  as  before 
the  death  of  the  child;  and  in  such 
case  she  will  be  allowed  a  counsel  fee 
in  resisting  the  application  for  such 
reformation.  Thurston  v.  Thurston, 
38  111.  App.  464. 

2.  Straus  v.  Straus  (Supreme  Ct.), 


431 


Procedure. 


ALIMONY. 


Decree. 


Application  for  Modification. — Generally  an  application  for  the  modifi- 
cation of  a  decree  for  alimony  should  not  be  made  by  a  new  bill,* 
but  by  summary  motion  or  petition,*  or  an  application  for  an 
order  to  show  cause,  filed  in  the  original  cause;*  and  it  must  set 
out  fully  the  facts  relied  on.* 

c.  Enforcing  Decree — By  what  Tribunal.— A  decree  for  alimony 


14  N.  Y.  Supp.  671;   Semron   v.   Sem- 
ron,  23  Minn.  214. 

Where  Husband  is  Unable  to  Fay  the 
decree  should  be  modified.  State  v. 
Second  Judicial  Dist.  (Mont.,  1894),  36 
Pac.  Rep.  757.  Or  where  a  divorced 
wife  marries  again.  McCracken  v. 
Swartz,  5  Oregon  62. 

1.  Snover  v.  Snover,  13  N.  J.  Eq. 
261;  Paflf  V.  Faff,  Hopk.  (N.  Y.)  584, 
where  the  court  said:  "When  any 
difficult  question  arises  upon  such  an 
application,  the  court  may  direct  that 
a  bill  be  filed,  or  may  award  an  issue 
for  a  more  complete  investigation  of 
the  case.  But  it  cannot  be  tolerated 
that  either  party  should,  of  course, 
and  without  leave  of  the  court,  insti- 
tute a  new  suit  in  full  form  for  the 
purpose  of  varying  a  final  decree  of 
this  nature.  If  such  bills  were  per- 
mitted upon  every  change  in  the  cir- 
cumstance of  a  party,  they  might  be- 
come very  oppressive;  and  such  a 
practice  is  wholly  unnecessary.  Ap- 
plications to  vary  allowances  have 
hitherto  been  made  to  this  court  by 
motion  or  petition,  and  this  practice 
must  be  enforced."  But  it  was  said 
in  Jordan  v.  Jordan,  53  Mich.  550,  a 
case  in  which  neither  the  libel  nor  the 
decree  made  any  mention  of  alimony, 
that  the  decree  could  not  be  amended 
by  adding  a  reference  to  take  proofs 
concerning  alimony,  but  that  the 
proper  remedy,  if  there  was  any,  was 
i)y  supplemental  bill  in  the  nature  of 
a  bill  of  review. 

Where  Allowance  Inadequate  when 
granted,  the  remedy  is  by  appeal,  not 
by  bill  of  review.  Bauman  v.  Bauman, 
18  Ark.  320,  68  Am.  Dec.  171. 

2.  McPike  v.  McPike,  10  111.  App. 
332;  Neil  V.  Neil,  4  Hagg.  Ecc.  273, 
Cox  V.  Cox,  3  Add.  Ecc.  276;  Perkins 
V.  Perkins,  12  Mich.  456;  Snover  v. 
Snover,  13  N.  J.  Eq.  261;  Paff  v.  Paff, 
Hopk.  (N.  Y.)  584;  Rogers  v.  Rogers 
(Ohio,  i8q4K  36  N.  E.  Rep.  310;  Bau- 
man V.  Biuman,  18  Ark.  320,  68  Am. 
Dec.  171. 

Upon  a  petition  to  make  absolute  a 


divorce  from  bed  and  board,  the  court 
may  increase  the  alimony  originally 
granted  without  a  distinct  petition 
therefor.  Graves  v.  Graves,  108  Mass. 
314;  Sparhawk  v.  Sparhawk,  120  Mass. 

390- 

3.  Wade  v.  Wade  (Cal.,  1892),  31 
Pac.  Rep.  258. 

4.  Perkins  v.  Perkins,  12  Mich.  456; 
Saunders  v.  Saunders,  i  Swab.  &  T. 
72;  Shirley  v.  Wardropp,  i  Swab.  &  T. 
317-  , 

Evidence. — Facts  proved  in  evidence 
but  not  made  ground  for  relief  in  the 
petition  cannot  be  considered  by  the 
court  in  reaching  its  conclusion.  Per- 
kins V.  Perkins,  12  Mich.  456. 

Where  the  wife  did  not  oppose  the 
reduction  of  alimony,  it  has  been  made 
on  motion  founded  on  the  mere  affi- 
davit of  the  husband.  Cox  v.  Cox,  3 
Add.  Ecc.  276.  But  where  an  impor- 
tant modification  of  a  judgment  is 
asked  and  resisted,  it  is  error  to  decide 
the  matter  upon  petition,  answer,  and 
accompanying  papers,  instead  of  a 
reference  to  take  testimony  or  a  hear- 
ing in  court,  if  either  party  wishes  to 
introduce  further  evidence  or  to  cross- 
examine  the  witnesses.  Bacon  v. 
Bacon,  34  Wis.  594. 

Venue. — A  petition  for  a  change  of 
alimony  is  a  "  suit "  within  the  mean- 
ing of  a  statute  which  provides  for  a 
change  of  venue;  and  there  is  no  force 
in  the  objeetion  that  this  proceeding 
is  a  mere  adjunct  of  divorce,  and  that 
the  court  to  which  it  may  be  removed 
will  have  nothing  on  which  to  base  its 
action,  as  records  in  divorce  cases  are 
not  removable;  since  if  any  records 
are  needed,  transcripts  are  obtainable 
under  statutory  provisions.  McPike 
V.  McPike,  10  111.  App.  332.  Contra, 
Hopkins  v.  Hopkins,  40  Wis.  462; 
Bacon  v.  Bacon,  34  Wis.  594. 

When  Power  to  Alter  Exercised. — The 
statutory  power  of  a  court  to  alter  an 
allowance  of  alimony  "from  time  to 
time  "  may  be  exercised  after  the  terra 
at  which  the  decree  for  alimony  was 
rendered.     Cole  v.  Cole,  142  111.  19. 


432 


Procedure. 


ALIMONY. 


Deeree. 


can  be  enforced  within  the  state  in  which  it  is  granted  only  by 
the  tribunal  which  granted  it.* 

In  Other  States. — But  we  have  seen  before  that  such  a  decree  is 
within  the  "  full  faith  and  credit "  clause  of  the  Constitution  of 
the  United  States,  and  can  be  enforced  in  a  state  other  than  that 
in  which  it  was  passed,*  by  a  suit  in  equity  '  or  an  ordinary  action 


1.  Allen  V.  Allen,  loo  Mass.  373; 
Van  Buskirk  v.  Mulock.  18  N.  J.  L. 
184;  Barber  v.  Barber,  i  Chand.  (Wis.) 
280;  Guenther  z/.  Jacobs,  44  Wis.  354. 
See  also  Hansford  v.  Van  Auken,  79 
Ind.  302. 

No  other  court,  without  leave  of  the 
court  which  has  granted  the  divorce, 
can  take  jurisdiction  of  an  action  on 
the  bond  given  to  secure  the  payment 
of  alimony  awarded  by  the  divorce 
court.  Guentherz'.  Jacobs,44  Wis.  354. 
The  general  question  of  jurisdiction 
is  somewhat  fully  discussed  in  this 
case,  the  court  concluding  as  follows: 
"  In  all  ordinary  circumstances,  there- 
fore, the  remedy  to  enforce  the  pay- 
ment of  alimony  is  exclusively  in  the 
court  which  grants  it.  The  cases, 
with  rare  exceptions,  recognize  the  ex- 
clusive jurisdiction  of  the  court  grant- 
ing a  divorce  to  enforce  its  own 
judgment  for  alimony.  Campbell  v. 
Campbell,  37  Wis.  206;  Bacon  z/.  Bacon, 
43  Wis.  197;  Barber  v.  Barber.  2  Pin. 
(Wis.)  297;  Allen  v.  Allen,  100  Mass. 
373;  Fisclili  V.  Fischli,  i  Blackf.  (Ind.) 
360,  12  Am.  Dec.  251;  De  Blaquiere  v. 
De  Blaquiere,  3  Hagg.  Ecc.  322;  Van- 
dergucht  v.  De  Blaquiere,  8  Sim.  315. 
This  doctrine  is  too  well  settled  in 
this  court  to  admit  of  question  here." 

Beason  of  Bole. — The  reasons  on 
which  this  principle  is  sustained  seem 
to  be  the  general  doctrine  that  an 
action  at  law  will  not  lie  for  the  recov- 
ery of  money  directed  to  be  paid  by 
the  decree  of  a  court  of  equity,  Hugh 
V.  Higgs,  8  Wheat.  (U.  S.)  697;  Van 
Buskirk  v.  Mulock,  18  N.  J.  L.  184;  or 
that  an  alimony  decree  has  not  the 
force  of  a  judgment  and  cannot  there- 
fore be  the  subject  of  an  action  at  law, 
Barber  v.  Barber,  i  Chand.  (Wis.)  280; 
or  that  a  decree  for  alimony  is  not 
final  in  its  character,  Guenther  v, 
Jacobs,  44  Wis.  354:  Allen  v.  Allen,  joo 
Mass.  373. 

But  an  action  may  be  maintained  in 
one  county  upon  a  judgment  rendered 
in  another.  Darrow  v.  Darrow,  43 
Iowa  411. 

2.  Ante,  p.  416,  notes  i,  2;  Borden  v. 
Fitch,  15  Johns.  (N.  Y.)   121;  Rogers 


V.  Rogers,  15  B.  Mon.  (Ky.)  364;  Har- 
rison V.  Harrison,  20  Ala.  629,  56  Am. 
Dec.  227;  Nunn  v.  Nunn,  8  L.  R.  Ir. 
298;  Allen  V.  Allen,  100  Mass.  373; 
Stewart  v.  Stewart,  27  W.  Va.  167; 
Rigney  v.  Rigney  (Supreme  Ct.),  6 
N.  Y.  Supp.  141;  Wood  V.  Wood  (C. 
PL),  28  N.  Y.  Supp.  154;  and  particu- 
larly Dow  V.  Blake,  148  111.  76. 

The  reasons  offered  in  support  of 
the  rule  that  a  decree  for  alimony, 
within  the  state  in  which  it  was  grant- 
ed, can  only  be  enforced  by  the  court 
awarding  it  would,  of  course,  in  strict 
logic,  apply  with  equal  force  to  suits 
brought  for  the  purpose  of  enforcing 
foreign  judgments  or  decrees,  and 
have,  in  fact,  been  so  applied.  Van 
Buskirk  v.  Mulock,  18  N.  J.  L.  184; 
Barber  v.  Barber,  i  Chand.  (Wis.)  280. 
But,  by  the  great  weight  of  authority, 
the  rule  is  not  generally  observed  in 
the  latter  class  of  cases,  probably  on 
the  ground  of  preventing  a  failure  of 
justice  which  would  otherwise  fre- 
quently occur.  See  Allen  v.  Allen, 
100  Mass.  373,  where  the  court  said: 
"  It  is  manifest  that  a  foreign  and  a 
domestic  decree  stand  on  a  very  dif- 
ferent footing  in  respect  to  the  appro- 
priate measures  for  their  enforcement. 
It  may  be  that,  within  the  jurisdiction 
of  a  chancery  or  ecclesiastical  court, 
its  powers  and  processes  to  compel 
obedience  to  its  own  decrees  are  so 
ample  and  potent  that  other  tribunals 
will  not  entertain  independent  suits 
for  that  purpose;  while,  in  the  case  of 
a  foreign  court  or  one  in  another  state, 
the  remedy  of  a  suit  to  enforce  such 
a  decree  may  be  necessary  to  prevent 
failure  of  justice." 

What  Belief  Granted. — But  in  an  ac- 
tion on  a  foreign  judgment  no  other 
relief  can  be  had  than  a  recovery  for 
past-due  alimony.  In  such  an  action 
there  is  no  jurisdiction  in  equity  to 
sequestrate  defendant's  property  or 
compel  him  to  give  security  for  future 
payments.  Wood  v.  Wood  (C.  PI.), 
28  N.  Y.  Supp.  154. 

3.  Rogers  v.  Rogers,  15  B.  Mon. 
(Ky.)  364;  Stewart  v.  Stewart,  27  W. 
Va.  167. 


I  Encyc.  PI.  &  Pr,— 28. 


433 


Procedure. 


ALIMONY. 


Decree. 


at  law.i 

United  States  Courts. — It  can  also  be  enforced  on  the  equity  side  of 
the  United  States  courts  where  the  parties  reside  in  different 
states.* 

The  Methods  Employed  to  enforce  the  alimony  decree  or  order  vary 
in  the  different  states  according  as  statutes  provide  or  the  usual 
practice  of  the  court  authorizes.^  If  the  action  is  in  chancery, 
then  as  an  ordinary  decree,  or  by  other  modes  consistent  with 
chancery  practice,'*  or  by  supplemental  proceedings.*  And  the 
court  often  has  the  right  of  election  between  different  methods.* 
In  some  states  an  action  of  assumpsit  has  been  sustained  -^  in 
some,  debt,®  or  an  ordinary  suit  on  a  judgment,®  or  other  similar 
action.*® 

The  following  are  the  methods  principally  in  use  in  this  coun- 
try :  the  writ  of  scire  facias ^'^  which  method  is  sometimes  preferred 


1.  Traylor  v.  Richardson,  2  Ind. 
App.  452;  Allen  v.  Allen,  100  Mass. 
373.  In  the  following  cases  debt  was 
sustained:  Harrison  v.  Harrison,  20 
Ala.  629,  56  Am.  Dec.  227;  Dow  v. 
Blake,  148  111.  76.  Compare  Stewart 
V.  Stewart,  27  W.  Va.  167;  Rigney  v. 
Rigney  (Supreme  Ct.),  6  N.  Y.  Supp. 
141. 

The  Terms  of  the  Decree,  and  whether 
the  court  is  one  of  law  or  equity,  may 
perhaps  affect  the  question.  Chestnut 
V.  Chestnut,  77  111.  346. 

2.  Barber  v.  Barber,  21  How.  (U. 
S.)  582.  See  also  Cheever  v.  Wilson, 
9  Wall.  (U.  S.)  108;  Bennett  v.  Ben- 
nett, Deady  (U.  S.)  299,  aiite,  p.  416. 

3.  Prescott  v.  Prescott,  59  Me.  146; 
Coughlin  V.  Ehlert,  39  Mo.  285;  Bar- 
ker V.  Dayton,  28  Wis.  367;  Damon  v. 
Damon,  28  Wis.  510. 

4.  Becker  v.  Becker,  15  111.  App. 
247;  Blake  v.  People,  80  111.  11; 
Coughlin  V.  Ehlert,  39  Mo.  285;  Da- 
mon V.  Damon,  28  Wis.  510;  Casteel  f. 
Casteel,  38  Ark.  477;  Burrows  v.  Pur- 
ple, 107  Mass.  428;  Slade  v.  Slade,  106 
Mass.  499;  Lockridge  v.  Lockridge,  3 
Dana  (Ky.)  28,  28  Am.  Dec.  52;  Spar- 
hawk  V.  Sparhawk,  120  Mass.  390. 

5.  Barker  v.  Dayton,  28  Wis.  367. 

Temporary  Alimony  in  a  suit  by  di- 
vorced wife  to  enforce  a  decree  for 
alimony  cannot  be  granted.  McQuien 
V.  McQuien,  61  How.  Pr.  (N.  Y.  C.  PI.) 
280.  So  also  it  will  be  refused  in  a 
suit  to  set  aside  a  decree  altogether. 
Wilson  V.  Wilson,  49  Iowa  544. 

6.  Becker  v.  Becker,  15  111.  App. 
247;  Blake  v.  People,  80  111.  11;  Waters 
V.  Waters,  49  Mo.  385;  Bouslough  v. 


Bouslough,  68  Pa.  St.  495;  Shcafe  v. 
Laighton,  36  N.  H.  240;  Sheafe  v. 
Sheafe,  36  N.  H.  155;  Staples  v.  Sta- 
ples, 87  Wis.  592;  Wightman  z/.  Wight- 
man,  45  111.  167. 

7.  Wheeler  v.  Wheeler,  i  Dane  Ab. 
(Mass.)  358;  Davol  v.  Davol,  13  Mass. 
264. 

8.  Stratton  v.  Stratton,  77  Me.  373, 
52  Am.  Rep.  779;  Clark  v,  Clark,  6  W. 
&  S.  (Pa.)  85;  to  which  non-assumpsit 
is  not  a  proper  plea.  Lancaster  v. 
Lancaster,  29  111.  App.  510;  Howard 
V.  Howard,  15  Mass.  196,  overruled 
together  with  Wheeler  v.  Wheeler,  i 
Dane  Ab.  (Mass.)  358,  and  Davol  v. 
Davol,  13  Mass.  264,  by  Allen  v.  Allen, 
100  Mass.  373. 

9.  Hansford  v.  Van  Auken,  79  Ind. 
302;  Blecknell  v.  Blecknell,  no  Ind. 
42;  where  it  was  said  that  a  judgment 
for  alimony  was  a  debt  of  record  and 
sufficient  to  support  an  action  in  the 
same  or  a  different  court  from  that  in 
which  it  was  rendered,  even  though 
execution  would  collect  the  same. 

10.  Bates  v.  Bates,  74  Ga.  105. 
Sequestration  is  sometimes  resorted 

to.  Clinton  v.  Clinton,  L.  R.  i  P.  & 
M.  215;  Dent  v.  Dent,  L.  R.  i  P.  &  M. 
366;  Sansom  v.  Sansom,  4  P.  D.  69. 
And  where  the  husband  is  complain- 
ant the  payment  of  temporary  alimony 
is  often  enforced  by  refusing  to  hear 
the  cause  until  alimony  is  paid.  Bird 
V.  Bird,  I  Lee  572,  5  Eng.  Ecc.  455; 
or  by  denying  the  husband  a  decree 
absolute,  Latham  v.  Latham,  2  Swab. 
&  T.  299. 

11.  Morton  z/. Morton,  4  Cush. (Mass.) 
518;  Chestnut  v.  Chestnut,  77  111.  346; 


434 


Procedure. 


ALIMONY. 


Decree, 


to  any  other,*  fiere  facias^  attachment  of  property,^  or  exe- 
cution generally."* 


McCracken  v.  Swartz,  5  Oregon  62; 
Slade  V.  Slade,  106  Mass.  499;  Knapp 
V.  Knapp,  134  Mass.  353. 

See  for  what  is  necessary  to  be  set 
out  in  the  declaration  or  verified 
petition  in  a  proceeding  in  the  nature 
of  scire  facias,  McCracken  v.  Swartz, 
5  Oregon  62. 

1.  As  where  execution  is  desired 
against  the  estate  of  a  deceased  per- 
son for  arrears  of  alimony.  Knapp  v. 
Knapp,  134  Mass.  353. 

Massachusetts. — This  method  seems 
to  be  popular  in  this  state.  See  for 
an  elaborate  discussion  of  the  reasons 
therefor,  Morton  v.  Morton,  4  Cush. 
(Mass.)  51S.  But  it  is  not  the  exclu- 
sive remedy,  the  court  saying  in  Slade 
V.  Slade,  106  Mass.  499,  that  "a 
petition  is  usually  preferable  to  a  sci. 
fa.  because  the  proceeding  is  more 
speedy  and  flexible."  See  Downs  v. 
Flanders,  150  Mass.  92. 

Amount  Must  Be  Certain. — But  a  sci. 
fa.  will  not  lie  upon  the  record  of  an 
order  for  the  payment  of  alimony 
pending  a  suit  for  divorce  when  a  re- 
sort to  evidence  dehors  the  record 
would  be  necessary  to  ascertain  the 
amount  due.  Chestnut  v.  Chestnut, 
77  111.  346. 

2.  Bouslough  V.  Bouslough,  68  Pa. 
St.  495;  Gibson  v.  Patterson,  75  Ga. 
549;  preceded  by  an  order  to  show 
cause,  Hewitt  v.  Hewitt,  i  Bland 
(Md.)  loi;  and  the  petition  for  the 
writ  need  not  state  the  amount  of  ali- 
mony due.  An  allegation  that  none 
has  been  paid  is  sufficient.  It  is  also 
said  that  there  is  no  authority  for  the 
issuance  of  a  ca.  sa.  Elmer  v.  Elmer, 
150  Pa.  St.  205.  But  seeGossz/.  Goss, 
29  Ga.  109. 

3.  Whartonz/.  Wharton,  57  Iowa  696; 
Goss  V.  Goss,  29  Ga.  log;  Bouslough 
V.  Bouslough,  68  Pa.  St.  495;  Daniels 
V.  Lindley,  44  Iowa  567;  Waters  v. 
Waters,  49  Mo.  385.  But  where  an 
attachment  has  been  laid  by  the  wife 
on  property  of  the  husband  before  the 
decree  of  divorce,  the  decree  cannot 
direct  it  should  date  back  and  become 
a  lien  on  said  property  from  the  date 
of  the  attachment,  to  the  exclusion  of 
the  rights  of  intervening  judgment 
creditors.  Daniels  v.  Lindley,  44 
Iowa  467. 

4.  Illinois. — Becker  v.  Becker,  15 
111.  App.  247,  Blake  v.  People,  80  111. 


11;  Dinet  v.  Eigenmann,  80  111.  274; 
Yelton  V.  Handley,  28  111.  App.  640; 
Blake  v.  Blake,  80  111.  523. 

Massachusetts. — Foster  v.  Foster,  130 
Mass.  189;  Newcomb  v.  Newcomb,  12 
Gray  (Mass.)  28;  Orrok  v.  Orrok,  i 
Mass.  341;  Burrows  v.  Purple,  107 
Mass.  428;  French  v.  French,  4  Mass. 
587;  Chase  v.  Chase,  105  Mass.  385; 
Downs  z/. Flanders,  150  Mass.  92;  Slade 
V.  Slade,  106  Mass.  499. 

Missouri. — Waters  v.  Waters,  49  Mo. 
385;  State  V.  St.  Louis  Court,  99  Mo. 
216;  Coughlin  V.  Ehlert,  39  Mo.  285; 
Schmidt  v.  Schmidt,  26  Mo.  235. 

Iowa. — Daniels  v.  Lindley,  44  Iowa 
367;  Allen  V.  Allen,  72  Iowa  502. 

Ohio. — Wooley  v.  Wooley,  Wright 
(Ohio)  245;  Piatt  v.  Piatt,  9  Ohio  37; 
Olin  V.  Hungerford,  10  Ohio  268. 

California. — Robinson  v.  Robinson, 
79  Cal.  511;  Van  Cleave  v.  Bucher,  79 
Cal.  600. 

Michigan. — Taylor  v.  Gladwin,  40 
Mich.  232;  Haines  v.  Haines,  35  Mich. 
138;  North  z/.  North,  39  Mich.  67. 

Maine. — Call  v.  Call,  65  Me.  407; 
Russell  V.  Russell,  69  Me.  336;  Pres- 
cott  V.  Prescott,  59  Me.  146. 

New  Hampshire. — Sheafe  v.  Laigh- 
ton,  36  N.  H.  240;  Sheafe  v.  Sheafe,  36 
N.  H.155. 

Other  States. — Fletcher  z'.  Henley,  13 
La.  Ann.  150;  Casteel  v.  Casteel,  38 
Ark.  477;  Bouslough  v.  Bouslough,  68 
Pa.  St.  495;  Gibson  v.  Patterson,  75 
Ga.  549;  Weaver  v.  Weaver,  7  Utah 
296;  Andrew  v.  Andrew,  62  Vt.  495; 
Staples  V.  Staples,  87  Wis.  592.  But  see 
Groves's  Appeal,  68  Pa.  St.  143,  where 
it  was  held  that  an  order  for  tempo- 
rary alimony  was  not  such  a  judgment 
that  execution  could  issue,  nor  a  "de- 
cree in  equity  for  the  payment  of 
money,"  within  the  meaning  of  a 
statute  making  such  decrees  liens 
upon  real  estate,  the  court  saying  that 
the  remedy  for  enforcement  was  by 
attachment. 

In  Whose  Name  Execution  Issues. — 
Execution  can  be  issued  in  the  name  of 
the  plaintiff  alone.  Robinson  z/.  Robin- 
son, 79  Cal.  511. 

Order  to  Show  Cause. — Execution  is 
not  void  because  issued  without  an 
order  to  show  cause  why  defendant 
had  not  obeyed  the  order  of  court. 
Van  Cleave  v.  Bucher,  79  Cal.  600. 
But  see  Slade  v.  Slade,  106  Mass.  499; 


435 


Procedure. 


ALIMONY. 


Decree. 


The  decree  may  also  be  enforced  by  sequestration  of  the  hus- 
band's property,*  or  by  the  appointment  of  a  receiver*-*  or 
trustee.^  Another  method  frequently  employed,  at  least  in  the 
case  of  temporary  alimony,  to  enforce  payment  of  the  order  or 
decree,  is  that  of  taking  away  the  privileges  in  a  cause  *  by  dis- 
missing the  plaintiff's  bill,®  or  refusing  to  proceed  with  the  trial,® 
or  striking  the  answer  of  the  defendant  from  the  files  and  pro- 
ceeding with  the  case  ex  parted  if  the  order  or  decree  is  not  com- 


Newcomb  v.  Newcomb,  12  Gray 
(Mass.)  28. 

Agreement. — The  court  cannot  order 
execution  unless  there  is  a  decree  for 
alimony.  It  cannot  issue  on  a  mere 
agreement.  Brigham  v.  Brigham,  147 
Mass.  159. 

1.  Becker  v.  Becker,  15  III.  App.  247; 
Blake  v.  People,  80  111.  11  ;  Blake  v. 
Blake,  80  111.  523  ;  Isaacs  v.  Isaacs,  61 
How.  Pr.  (N.  Y.  C.  PI.)  369;  Wight- 
man  V.  Wightman,  45  111.  167 ;  Mc- 
Quien  v.  McQuien,  61  How.  Pr.  (N.  Y. 
C.  PI.)  280;  Gane  v.  Gane,  45  N.  Y. 
Super.  Ct.  355  ;  Lockridge  v.  Lock- 
ridge,  3  Dana  (Ky.)  28,  28  Am.  Dec. 
52  ;  Guenther  v.  Jacobs,  44  W^is.  354  ; 
Coughlin  V.  Ehlert,  39  Mo.  285  ;  For- 
rest V.  Forrest,  9  Bosw.  (N.  Y.)  686; 
Stratton  v.  Stratton,  77  Me.  373,  52 
Am.  Rep.  779  ;  Hills  v.  Hills,  76  Me. 
486;  Donnelly!'.  Shaw,  7  Abb.  N.  Gas. 
(N.  Y.  Supreme  Ct.)  264;  State  v.  St. 
Louis  Court,  99  Mo.  216. 

Does  Not  Supersede  Contempt. — Seques- 
tration does  not  supersede  contempt 
proceedings,  the  court  saying  in  O'Cal- 
laghan  v.  O'Callaghan,  69  111.  552: 
"But  the  sequestration  of  property 
was  not  intended  to  supersede  pro- 
ceedings by  contempt,  but,  on  the 
contrary,  it  was  in  aid  of  it  \sic\,  and 
resorted  to  either  where  the  contemner 
could  not  be  arrested  upon  process,  or 
where^  having  been  arrested,  he  re- 
mained in  prison,  without  paying  obe- 
dience to  the  court."  Citing  2  Dan. 
Ch.  Prac.  1046.  But  see  Isaacs  v. 
Isaacs,   61    How.    Pr.   (N.   Y.   C.    PI.) 

369- 

Impounding  Income. — Where  a  de- 
fendant who  has  been  decreed  to  pay 
alimony  in  annual  instalments  leaves 
the  state,  so  that  the  decree  cannot  be 
enforced  by  any  statutory  remedy,  the 
court,  in  the  exercise  of  its  ordinary 
equitable  jurisdiction,  may  compel  the 
trustee  of  a  fund  held  in  the  state  for 
the  benefit  of  the  defendant  to  apply 
the  income  thereof  to  the  satisfaction 
of  the  decree.     Wetmore  v,  Wetmore 


(Supreme   Ct.),    28    N.    Y.    Supp.    377, 
affirmed  in  29  N.  Y.  Supp.  440. 

2.  Murray  v.  Murray,  84  Ala.  363  ; 
Barker  v.  Dayton,  28  Wis.  367;  Holmes 
V.  Holmes,  29  N.  J.  Eq.  9 ;  Bergen  v. 
Bergen,  22  111.  187;  Carey  v.  Carey,  2 
Daly  (N.  Y.)  424;  Questel  v.  Questel, 
Wright  (Ohio)  492  ;  Stillman  v.  Still- 
man,  7  Baxt.  (Tenn.)  186. 

3.  Ricketts  v.  Ricketts,  4  Gill  (Md.) 
105;  Murray  v.  Murray,  84  Ala.  363. 
And  see  Greenland  v.  Brown,  i  Desaus. 
Eq.  (S.  Car.)  196. 

4.  2  Bish.  on  M.,  D.,  &  S.  §  1095  ; 
McClung  V.  McClung,  40  Mich.  293. 

5.  Casteel  v.  Casteel,  38  Ark.  477  ; 
Peel  V.  Peel,  50  Iowa  521;  Mangels  v. 
Mangels,  6  Mo.  App.  481. 

But  the  husband's  suit  will  not  be 
dismissed  where  he  gives  a  good  ex- 
cuse for  his  default.  Newhouse  v. 
Newhouse,  14  Oregon  290.  And  this 
remedy  will  not  be  employed  save  in 
extreme  cases.  Peel  v.  Peel,  50  Iowa 
521. 

6.  Waters  v.  Waters,  49  Mo.  385  ; 
Winter  v.  San  Francisco,  70  Cal.  295  ; 
State  V.  St.  Louis  Court,  99  Mo.  216  ; 
Bird  V.  Bird,  i  Lee  572,  5  Eng.  Ecc. 
455;  Latham  v.  Latham,  2  Swab.  &  T. 
299. 

7.  Zimmerman  v.  Zimmerman,  7 
Mont.  114;  Quigley  v.  Quigley,  45 
Hun  (N.  Y.)  23;  Brisbane  v.  Brisbane, 
67  How.  Pr.  (N.  Y.  Supreme  Ct.)  184; 
Walker  v.  Walker,  82  N.  Y.  260,  59 
How.  Pr.  (N.  Y.)  476  {affirmitig  20 
Hun  (N.  Y.)  400),  where  the  court 
said:  "  We  are  brought  to  the  conclu- 
sion that  there  has  long  been  exerted 
by  the  Court  of  Chancery  in  England 
the  power  to  refuse  to  hear  the  de- 
fendant when  he  was  in  contempt  of 
the  court  by  disobeying  its  orders,  and 
that  that  power  was  in  the  courts  of 
chancery  of  this  country."  But  see 
contra,  McCrea  v.  McCrea,  58  How.  Pr. 
(N.  Y.  Supreme  Ct.)  220  ;  Gordon  v. 
Gordon,  141  111.  160;  Baily  v.  Baily,  69 
Iowa  77.  See  Shaw  v.  Shaw,  114  III- 
586. 


436 


Procedure. 


ALIMONY. 


Decree. 


plied  with.* 

Attachment  for  Contempt. —  Another  and  by  far  the  most  common 
method  of  enforcing  orders  or  decrees  for  alimony  is  that  of 
attachment  for  contempt.*  This  proceeding  being  criminal  in  its 
nature,^  the  attachment,  therefore,  is  not  granted  as  of  course,  but 
only  on  proof  that  the  defendant  has  been  duly  served  with 
notice  of  the  judgment  or  award,*  and  that  payment  has  been 


1.  But  this  will  not  be  done  where 
the  defendant  can  show  a  good  ex- 
cuse for  being  in  default.  Allen  v. 
Allen,  72  Iowa  502;  Baily  v.  Baily,  6g 
Iowa  77;  Cason  v.  Cason,  15  Ga.  405. 
And  see  Johnson  v.  San  Francisco,  63 
Cal.  578. 

It  is  only  used  in  extreme  cases. 
Peel  V.  Peel,  50  Iowa  521. 

Notice  to  the  defendant's  attorney  is 
notice  to  the  defendant,  where  the  de- 
fendant had  personal  notice  of  the 
original  order  for  alimony,  and  the 
modified  order  was  made  at  the  insti- 
gation of  the  attorney.  Zimmerman 
V.  Zimmerman,  7  Mont.  114. 

2.  New  York. — Gerard  v.  Gerard,  2 
Barb.  Ch.  (N.  Y.)  73;  Lansing  v.  Lan- 
sing, 4  Lans.  (N.  Y.)  377,  41  How.  Pr. 
(N.  Y.)  248;  Grimm  v.  Grimm,  i  E.  D. 
Smith  (N.  Y.)  190;  Strobridge  v.  Stro- 
bridge,  21  Hun  (N.  Y.)  288;  Pritchard 
V.  Pritchard,  4  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.)  298;  Ford  v.  Ford,  10 
Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  74, 
41  How.  Pr.  (N.  Y.)  169;  Ryer  v.  Ryer, 
67  How.  Pr.  (N.  Y.  Supreme  Ct.)  369; 
Allen  V.  Allen,  8  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.)  175,  58  How.  Pr.  (N.  Y.) 
381;  In  re  Clark,  20  Hun  (N.  Y.)  551; 
Ryckman  v.  Ryckman,  34  Hun  (N.  Y.) 
235;  Isaacs  V.  Isaacs,  61  How.  Pr.  (N. 
Y.  C.  PI.)  369;  Park  v.  Park,  80  N.  Y. 
156,  affirming  18  Hun  (N.  Y.)  466;  Mc- 
Quien  v.  McQuien,  61  How.  Pr.  (N.  Y. 
C.  PI.)  280;  In  re  Sims,  57  Hun  (N.  Y.) 
433;  Winton  v.  Winton,  117  N.  Y.  623; 
Holtham  v.  Holtham  (Brooklyn  City 
Ct.),  26  N.  Y.  Supp.  762;  Carey  v. 
Carey,  2  Daly  (N.  Y.)  424. 

Illinois. — Wightman  v.  Wightman, 
45  111.  167;  Errissman  v.  Errissman,  25 
111.  136;  Buck  V.  Buck,  60  111.  105; 
Blake  v.  Blake,  80  111.  523;  Andrews 
V.  Andrews,  69  111.  609;  O'Callaghan 
V.  O'Callaghan,  69  111.  552;  Becker  v. 
Becker,  15  111.  App.  247;  Blake  v. 
People,  80  111.  11;  Petrie  v.  People,  40 

111.  334- 

California. — Galland  v.  Galland,  44 
Cal.  475,  13  Am.  Rep.  167;  Ex  p.  Wil- 
son, 73  Cal.  97;  Ex  p.  Perkins,  18  Cal. 


60;  Ex  p.  Hart,  94  Cal.  254;  Ex  p. 
Cottrell,  59  Cal.  417;  Ex  p.  Cottrell, 
59  Cal.  420;  Spencer  v.  Lawler,  79  Cal. 
215. 

Georgia. — Pinkard  v.  Pinkard,  23 
Ga.  286;  Cason  v.  Cason,  15  Ga.  405; 
Bates  V.  Bates,  74  Ga.  105;  Carlton  v. 
Carlton,  44  Ga.  216;  Lewis  v.  Lewis, 
80  Ga.  706,  12  Am.  St.  Rep.  281;  Gib- 
son V.  Patterson,  75  Ga.  549. 

Michigan. — Potts  v.  Potts,  68  Mich. 
492;  Steller  v.  Steller,  25  Mich.  159; 
Haines  v.  Haines,  35  Mich.  138;  North 
V.  North,  39  Mich.  67;  In  re  Bissell,  40 
Mich.  63;  Brown  v.  Brown,  22  Mich. 
299;  Ross  V.  Griffin,  53  Mich.  5;  Filer 
V.  Filer,  77  Mich.  469. 

Pennsylania. — Elmer  v.  Elmer,  150 
Pa.  St.  205;  Groves's  Appeal,  68  Pa. 
St.  143;  Ormsby  v.  Ormsby,  i  Phila. 
(Pa.)  578;  Waldron  v.  Waldron,  55  Pa. 
St.  231;  Wallen  v.  Wallen,  11  Pa.  Co. 
Ct.  Rep.  41. 

Ohio. — Stewart  v.  Stewart,  23  Wkly. 
L.  Bull.  (Ohio)  38;  Hand  v.  Hand,  25 
Wkly.  L.  Bull.  (Ohio)  214. 

Massachusetts. — Foster  v.  Foster,  130 
Mass.  189;  Chase  v.  Ingalls,  97  Mass. 
524- 

North  Carolina. — Wood  v.  Wood, 
Phil.  (N.  Car.)  538  ;  Zimmerman  v. 
Zimmerman,  113  N.  Car.  432. 

New  Hampshire. — Sheaf e  v.  Laigh- 
ton,  36  N.  H.  240;  Sheafe  v.  Sheafe, 
36  N.  H.  155. 

Maine. — Dwelly  v.  Dwelly,  46  Me. 
.377;  Russell  V.  Russell,  69  Me.  336. 

Vermotit. — Andrew  v.  Andrew,  62 
Vt.  495;  Curtis  V.  Gordon,  62  Vt.  340. 

Other  States. — Murray  v.  Murray,  84 
Ala.  363;  Casteel  v.  Casteel,  38  Ark 
477;  Lyon  V.  Lyon,  21  Conn.  185; 
Twing  V.  O'Meara,  59  Iowa  326;  In  re 
Fanning,  40  Minn.  4;  Lockridge  v. 
Lockridge,  3  Dana  (Ky.)  28,  28  Am. 
Dec.  52;  O'Haley  v.  O'Haley,  31  Tex. 
502;  Purcell  V.  Purcell,  4  Hen.  &  M. 
(Va.)  507;  Staples  v.  Staples,  87  Wis. 
592;  State  V.  Second  Judicial  Dist.  Ct. 
(Mont.,  1894),  36  Pac.  Rep.  757. 

3.  State  V.  Dent,  29  Kan.  416. 

4.  Ryckman  v.   Ryckman,   32    Hun 


437 


Procedure. 


ALIMONY. 


Decree, 


specifically  demanded  and  refused ;  *  unless  there  has  been  a  prior 
refusal  to  pay,  which  renders  a  formal  demand  unnecessary.*  But 
the  refusal  must  be  wilful,  ^  amounting  to  "  contemptuous  dis- 
obedience;" ■*  and  there  will  be  no  contempt  and  the  attachment 
will  not  be  granted  where  the  defendant  is  bona  fide  unable  to 
pay,  ^  unless  he  is  otherwise  in  fault. ^  The  question  of  ability  is 
one  of  fact,  to  be  determined  by  the  court  on  the  evidence  before 
it ;  ''  and  it  seems  that  the  burden  of  proof  lies  on  the  defendant 
to  establish  his  poverty.® 

Application  for  Attachment. — The  attachment  cannot  issue  on  an  ex- 
parte  application,  even  though  the  decree  provides  for  it,*  as  the 
defendant  is  generally  entitled  to  notice  of  some  kind,  commonly 
an  order  to  show  cause.** 


(N.  Y.)  193;  Park  v.  Park,  80  N.  Y.  156, 
affirmittg  18  Hun  (N.  Y.)  466;  Edison 
V.  Edison,  56  Mich.  185. 

And  it  has  been  held  that  where 
husband,  even  though  he  is  complain- 
ant, has  no  notice  of  the  motion  for 
temporary  alimony,  an  order  for  the 
same  will  be  set  aside,  and  that  all  sub- 
sequent proceedings  based  thereon  are 
void.   Sanchez  v.  Sanchez,  21  Fla.  346. 

Service  of  Order. — Mere  delivery  to 
defaulting  husband  in  another  state 
of  a  certified  copy  of  the  order  is  not 
sufficient.  Johnson  v.  San  Francisco, 
63  Cal.  578. 

Yet  an  order  for  alimony  is  not  such 
original  process  as  need  be  served 
within  the  territorial  limits  over  which 
a  municipal  court  has  jurisdiction. 
Edison  v.  Edison,  56  Mich.  185. 

And  where  no  copy  of  the  order  for 
alimony  was  served,  but  the  husband 
was  present  in  court  when  it  was 
made,  and  afterwards  refused  to  obey 
it,  this  is  sufficient.  Ex  p.  Cottrell, 
59  Cal.  417;  Ex. p.  Cottrell,  59  Cal.  420. 

1.  Ryckman  v.  Ryckman,  32  Hun 
(N.  Y.)  193;  Gane  v.  Gane,  45  N.  Y. 
Super.  Ct.  355;  Noland  v.  Noland,  29 
Hun  (N.  Y.)  630;  Park  v.  Park,  80  N. 
Y.  156,  affirining  18  Hun  (N.  Y.)  466; 
Edison  v.  Edison,  56  Mich.   185. 

2.  Potts  V.  Potts,  68  Mich.  492.  But 
see  Slade  v.  Slade,  106  Mass.  499. 

3.  Blake  v.  Blake,  80  111.  523;  Blake 
V.  People,  80  111.  11;  State  v.  Dent,  29 
Kan.  416:  Hand  v.  Hand,  25  Wkly. 
L.  Bull.  (Ohio)  214;  Stewart  v.  Stew- 
art, 23  N.  Y.  Wkly.  L.  Bull.   38. 

4.  Slade  v.  Slade,  106  Mass.  499. 

5.  Lewis  V.  Lewis,  80  Ga.  706,  12 
Am.  St.  Rep.  281;  Spencer  v.  Lawler, 
79  Cal.  215;  Russell  v.  Russell,  69  Me. 
336;  State  V.  Dent,  29  Kan.  416;  No 


land  V.  Noland,  29  Hun  (N.  Y.)  630; 
Park  V.  Park,  80  N.  Y.  156,  affirming 
18  Hun  466;  Staples  v.  Staples,  87  Wis. 
592;  Blake  v.  People,  80  111.  11; 
Newhouse  v.  Newhouse,  14  Oregon 
290. 

6.  Rydr  v.  Ryer,  33  Hun  (N.  Y.)  116. 

7.  Ex  p.  Cottrell,  59  Cal.  417. 

8.  Holtham  v.  Holtham  (Brooklyn 
City  Ct.),  26  N.  Y.  Supp.  762;  West  v. 
West,  II  Pa.  Co.  Ct.  Rep.  254.  But  see 
Lewis  V.  Lewis,  80  Ga.  706,  12  Am.  St. 
Rep.  281. 

The  petition  for  the  writ  of  attach- 
ment need  not  allege  husband's  ability 
to  pay.  Andrew  v.  Andrew,  62  Vt, 
495;  Curtis  V.  Gordon,  62  Vt.  340. 

Mandamus. — Where  the  defendant  is 
adjudged  to  be  in  contempt  after  an 
examination  into  his  ability,  a  man- 
damus will  not  lie  to  compel  the  judge 
of  the  lower  court  to  re-examine  the 
case,  where  he  replies  to  the  petition 
for  a  mandamus  that  he  would,  if  the 
application  had  been  renewed,  have 
made  another  examination  at  the  ex- 
piration of  ten  days.  Spencer  v.  Law- 
ler, 79  Cal.  215. 

9.  Stahl  V.  Stahl,  59  Hun  (N.  Y.) 
621,  12  N.  Y.  Supp.  854. 

10.  Isaacs  v.  Isaacs,  61  How.  Pr.  (N. 
Y.  C.  PI.)  369;  Slade  v.  Slade,  106 
Mass.  499;  French  v.  French,  4  Mass. 
587;  Edison  v.  Edison,  56  Mich.  185; 
In  re  Sims,  57  Hun  (N.  Y.)  433.  But 
see,  contra,  O'Callaghan  v.  O'Cal- 
laghan,  69  III.  552;  Ex  p.  Petrie,  38  III. 
498,  and  Petrie  z:  People,  40  111.  334, 
where  the  court  said  :  "While  in  the 
English  courts  the  practice  requires 
notice  to  be  given  to  the  opposite 
party,  to  his  attorney  or  some  officer 
of  the  court  on  his  behalf,  before  any 
step  is  taken,  and   while  in  cases  of 


438 


Procedure. 


ALIMONY. 


Decree. 


When  Kemedy  by  Attachment.— It  is  a  remedy  only  used  in  extreme 
cases,*  and  in  some  jurisdictions  it  should  not  be  employed  where 
the  wife  has  already  ample  security,*  or  unless  it  has  been  pre- 
viously determined  by  the  court  that  other  methods  will  not  be 
effective.*  The  attachment  issues  by  a  court  of  chancery  in  the 
exercise  of  its  ordinary  powers.*  Numerous  conditions  contribute 
to  the  election  of  this  remedy  in  preference  to,  or  its  rejection 
in  favor  of,  some  other.* 

Imprisonment  for  Debt.— A  decree  for  alimony,  by  the  great  weight 
of  authority,  is  not  a  debt  within  the  meaning  of  statutes  or  con- 
stitutions which  prohibit  imprisonment  for  debt.® 


this  character  it  is  perhaps, the  better 
practice,  yet  it  has  not  been  regarded 
as  indispensable  in  our  practice.  After 
a  party  has  been  once  brought  into 
court,  the  presumption  is  that  he  is 
present  and  cognizant  of  every  step 
taken  in  the  cause  until  it  is  termi- 
nated, unless  there  has  considerable 
time  elapsed  without  taking  any  steps 
in  the  case." 

"What  Service  Necessary.  —  Regular 
service  of  the  petition  for  attachment 
is  not  necessary,  only  such  as  the 
rules  of  court  require.  Lyon  v.  Lyon, 
21  Conn.  185.  See  a\so  Ex  p.  Cottrell, 
59  Cal.  417. 

It  is  sufficient  if  served  on  attorney 
where  the  party  appears  by  attorney. 
Mahon  v.  Mahon,  50  N.  Y.  Super.  Ct. 
92. 

New  York. — In  this  state  the  order 
to  show  cause  must  adjudicate  in 
terms  that  the  defendant  has  commit- 
ted the  offense  charged,  and  that  that 
offense  was  calculated  to,  or  actually 
did,  injure  the  rights  of  the  plaintiff. 
Code  Civ.  Proc.  §  2281.  And  it  must 
also  further  appear  in  said  order  that 
the  payment  of  the  alimony  awarded 
cannot  be  enforced  by  execution, 
sequestration,  or  resorting  to  the  se- 
curity of  the  party  who  is  the  subject 
of  the  order.  Code  Civ.  Proc,  §  1773; 
see  also  Stahl  v.  Stahl,  59  Hun  (N. 
Y.)62i,  12  N.  Y.  Supp.  854;  Whitney 
V.  Whitney,  58  N.  Y.  Super.  Ct.  335, 
II  N.  Y.  Supp.  582;  In  re  Sims,  57 
Hun  (N.  Y.)  433;  Mahon  v.  Mahon,  50 
N.  Y.  Super.  Ct.  92. 

1.  Haines  v.  Haines,  35  Mich.  138. 

2.  Andrews  v.  Andrews,  69  111.  609; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  53. 

3.  Cockefair  v.  Cockefair  (Supreme 
Ct.),  7  N.  Y.  Supp,  170,  23  Abb.  N. 
Cas.  (N.  Y.)  219;  Isaacs  v.  Isaacs,  10 
Daly  (N.  Y.)    306,  affirming  61  How. 


Pr.  (N.  Y.)  369,  where  the  court  said: 
"  The  intention  of  the  legislature  was 
to  prevent  the  imprisonment  of  a 
party  disobeying  an  order  directing 
the  payment  of  temporary  alimony, 
until  proceedings  against  property 
had  failed,  or  the  court  was  satisfied, 
from  facts,  of  the  inutility  of  a  di- 
rection for  such  proceeding."  See  pre- 
ceding col.  "New  York."  But  see 
Park  V.  Park,  80  N.  Y.  156,  affirming 
18  Hun  (N.  Y.)  466;  Andrew  v.  An- 
drew, 62  Vt.  495. 

4.  O'Callaghan  v.  O'Callaghan,  69 
111.  552. 

5.  Hand  v.  Hand,  25  Wkly.  L.  Bull. 
(Ohio)  214 ;  Allen  v.  Allen,  72  Iowa 
502;  Gane  v.  Gane,  45  N.  Y.  Super. 
Ct.  355;  Isaacs  v.  Isaacs,  10  Daly  (N. 
Y.)  306,  affirming  t\  How.  Pr.  (N.  Y.) 
369;  Jacquin  v.  Jacquin,  36  Hun  (N. 
Y.)  378,  2  How.  Pr.  N.  S.  (N.  Y.)  206. 

In  Traylor  v.  Richardson,  2  Ind. 
App.  452,  it  was  said:  "  The  statute 
provides  that  such  an  order  may  be 
enforced  by  attachment  by  the  court 
or  judge  making  it.  A  person  having 
a  right  to  enforce  payment  of  money 
by  proceedings  in  contempt  may 
waive,  if  he  sees  proper,  such  sum- 
mary mode  of  enforcing  his  claim, 
and  afford  the  defendant  the  common- 
law  rights  of  defense  by  an  action." 

After  Final  Verdict. — The  failure  to 
enforce  the  payment  of  temporary  ali- 
mony during  the  pendency  of  the  suit 
cannot  deprive  plaintiff  of  the  right  to 
sue  for  the  same  after  final  verdict 
disallowing  permanent  alimony.  Gib- 
son V.  Patterson,  75  Ga.  5.^9. 

6.  Lewis  V.  Lewis,  80  Ga.  706,  12 
Am.  St.  Rep.  281;  Chase  v.  Ingalls, 
97  Mass.  524;  Ex  p.  Perkins,  18  Cal. 
60;  Lyon  V.  Lyon,  21  Conn.  185; 
Andrew  v.  Andrew,  62  Vt.  495;  Curtis 
V.  Gordon,  62  Vt.  340;  Hand  v.  Hand, 
25  Wkly.  L.  Bull.  (Ohio)  214;  Haines 


439 


Procedure. 


ALIMONY. 


Securing  Alimoiiy. 


How  Application  Made.— The  application  for  an  attachment  is  usually 
made  by  motion*  or  petition.'-*  The  application  for  a  remedy 
to  enforce  an  alimony  decree  or  order  should  be  made  in  the 
original  suit,  and  not  take  the  form  of  a  new  proceeding.^ 

5.  Securing  Alimony  and  Defeating  Frauds  Thereon — a.  Securing 
Alimony. — There  are  four  methods  of  securing  the  wife's  claim 
for  alimony  commonly  in  vogue,  the  writ  of  ne  exeats  the  writ  of 
injunction,  making  the  alimony  granted  a  lien  on  the  real  estate 
of  the  husband,  and  requiring  security  for  its  payment. 

(1)  Writ  of  Ke  Exeat. — In  England  the  writ  of  ne  exeat  regno 
was  issued  out  of  the  chancery  courts  on  the  application  of  the 
wife,  supported  by  her  affidavit  that  her  husband  was  about  to 
leave  the  country  to  avoid  payment  of  the  order  or  decree  for 
alimony.*     This  writ  was  granted  in  aid  of  the  decree  of  the 


V.  Haines,  35  Mich.  138;  Pain  z/.  Pain, 
80  N.  Car.  322;  Musser  v.  Stewart,  21 
Ohio  St.  353;  Dwelly  v.  Dwelly,  46 
Mo.  378.  Contra,  Coughlin  v.  Ehlert, 
39  Mo.  285;  and  see  Goodwillie  v. 
Millimann,  56  111.  523. 

Reasons. — The  grounds  on  which 
this  doctrine  rests  are  that  the  obliga- 
tion to  pay  alimony  is  more  of  a  duty 
than  a  debt.  Ex  p.  Perkins,  18  Cal. 
60;  Pain  V.  Pain,  80  N.  Car.  322;  Carl- 
ton V.  Carlton,  44  Ga.  216;  Menzie  v. 
Anderson,  65  Ind.  239;  Daniels  v. 
Lindley,  44  Iowa  567;  and  that  the  ac- 
tion of  the  court  is  based  upon  the 
contemptuous  refusal  to  pay  rather 
than  the  default.  O'Callahan  v. 
O'Callahan,  69  111.  552;  Coughlin  v. 
Ehlert,  39  Mo.  285;  Slade  z'.  Slade,  106 
Mass.  499. 

Temporary  Alimony. — A  very  ques- 
tionable distinction  has  been  taken  in 
this  connection  between  temporary 
and  permanent  alimony.  Stewart  v. 
Stewart,  23  Wkly.  L.  Bull.  (Ohio)  38, 
citing  Coughlin  v.  Ehlert,  39  Mo.  285. 

1.  Petrie  v.  People,  40  111.  334.  See 
Newcomb  v.  Newcomb,  12  Gray 
(Mass.)  28;  cases  cited  ante,  p.  437, 
note  2. 

2.  Lyon  v.  Lyon,  21  Conn.  185; 
Andrew  v.  Andrew,  62  Vt.  495;  Curtis 
V.  Gordon,  62  Vt.  340;  cases  cited  a«/^, 
p.  437,  note  2. 

Attachment  Cannot  Be  Collaterally  At- 
tacked — ^The  action  of  the  court  in 
committing  for  contempt  cannot  be 
reviewed  on  certiorari  from  contempt 
proceedings  or  habeas  corpus,  the 
allowance  of  alimony  being  an  appeal- 
able order.  Such  methods  are  an 
indirect  attack  upon  the  action  of  the 


court.     State  v.  Second  Judicial  Dist. 
Ct.,  (Mont.,   1891),  36  Pac.   Rep.   757. 

3.  Lyon  v.  Lyon,  21  Conn.  185;  Bau- 
man  v.  Bauman,  18  Ark.  320,  68  Am. 
Dec.  171. 

Subsequent  Term  of  Court. — Where  a 
commissioner,  appointed  by  a  decree 
of  divorce  and  alimony  to  ascertain 
the  financial  condition  of  the  husband, 
reported  him  insolvent,  and  the  wife 
brought  a  bill  some  years  later  to  en- 
force the  original  decree,  suggesting 
that  the  husband  had  acquired  certain 
property  since  the  decree  was  made, 
it  was  held  that  the  bill  was  properly 
dismissed,  as  the  decree  was  not  final, 
and  that  the  wife  should  have  pro- 
ceeded in  the  original  cause,  which  was 
still  pending.  Bankston  v.  Bankston, 
27  Miss.  692. 

So  a  petition  for  an  attachment  for 
contempt  brought  at  a  term  subse- 
quent to  the  one  in  which  the  decree 
was  made  should  be  treated  as  a  pro- 
ceeding in  the  original  suit.  Andrew 
V.  Andrew,  62  Vt.  495. 

Restitution. — It  has  been  held  that 
on  good  cause  shown  a  writ  of  restitu- 
tion may  be  awarded  for  alimony  that 
has  been  already  granted  in  a  divorce 
suit.     Mullin  v.  MuUin,  60  N.  H.  16. 

4.  This  writ  has  almost  entirely  dis- 
appeared from  modern  practice,  being 
superseded  by  more  flexible  and  effect- 
ive methods.  But  see  Vandergucht  v. 
De  Blaquiere,  8  Sim.  315;  Head  v. 
Head.  3  Atk.  295;  Anonymous,  2  Atk. 
210;  Pearne  v.  Lisle,  Amb.  75  ;  Smith- 
son's  Case,  2  Vent.  345;  Howden  v. 
Rogers,  i  Ves.  &  B.  129;  Read  v.  Read, 
I  Cas.  Ch.,  2  Ch.  R.  19;  Ex  p.  Whit- 
more,  I  Dick.  143;  Haffey  v.  Haffey,  14 


440 


Trocedxire. 


ALIMONY. 


Securing  Alimony. 


•ecclesiastical  courts,  and  only  after  the  decree  had  been  made.* 
But  the  writ  of  ne  exeat  republica — the  corresponding  writ  in  this 
<:ountry — may  be  asked  simultaneously  with  the  filing  of  the  bill,'-* 
and  may  be  granted  even  before  the  decree,^  in  fact  at  any  time 
after  the  suit  is  pending.*  It  is  issued  on  the  petition  of  the  wife, 
supported  by  her  own  affidavit  and  usually  those  of  other  parties;^ 
but  the  affidavit  of  the  wife  alone  is  sufficient,®  though  the  allega- 
tion that  the  husband  is  going  to  leave  the  state  must  be  definite.'' 
The  writ  will,  in  general,  be  discharged  on  the  husband's  giving 
security.® 


Ves.  Jr.  261;  Oldham  v.  Oldham,  7 
Ves.  Jr.  410;  Dawson  v.  Dawson,  7  Ves. 
Jr.  173;  Shaftoe  v.  Shaftoe,  7  Ves.  Jr. 
171;  Cock  V.  Ravie,  6  Ves.  Jr.  283; 
Anonymous,  2  Ves.  jr.  489;  Coglar  v. 
Coglar,  I  Ves.  Jr.  94;  Street  v.  Street, 
T.  &  R.  322. 

1.  Shaftoe  v.  Shaftoe,  7  Ves.  Jr. 
172;  Coglar  V.  Coglar,  i  Ves.  Jr.  94; 
Newton  v.  Newton,  L.  R.  i  P.  D.  Ii. 

2.  Harper  v.  Rooker,  52  111.  370. 
Not  Before  Suit  Pending. — But  it  must 

not  be  asked  before  the  suit  is  begun, 
the  court  saying  that  "the  proper 
course"  is  "to  file  the  bill  or  petition 
for  divorce,  and  after  that  to  file  a  pe- 
tition for  the  ne  exeat,  supported  by  the 
necessary  affidavit,  sworn  subsequently 
to  the  filing  of  the  bill."  Bylandt  v. 
Bylandt,  6  N.  J.  Eq.  28. 

3.  McGee  v.  McGee,  8  Ga.  295,  52 
Am.  Dec.  407.  See  this  case  for  a  full 
discussion  of  this  writ;  also  Bayly  v. 
Bayly,  2  Md.  Ch.  326,  where  the  court 
said  :  "  It  would  seem  to  be  settled  in 
England  that  the  court  of  chancery 
will  not  issue  the  writ  of  ne  exeat  regno 
in  cases  of  alimony  unless  there  has 
been  an  actual  decree  for  alimony  by 
the  spiritual  courts  ;  that  it  will  not 
be  granted,  even  where  there  has  been 
such  decree,  pending  an  appeal  from  it 
by  the  husband,  nor  for  interim  ali-. 
mony  ^xz.n\.&A^  pendetite  lite,  before  a  de- 
cree, nor  for  any  other  sum  than  that 
which  is  actually  due  for  alimony  and 
costs.  Daniell  Ch.  Pr.  1926,  1927  ;  2 
Story  Com.  on  Equity,  §55  1471,  1472. 
In  Ne^v  York,  however,  Mr.  Chancel- 
lor Kent,  in  Denton  v.  Denton,  i  Johns. 
Ch.  (N.  Y.)  441,  did  grant  the  writ 
upon  the  petition  of  the  wife  pendente 
Jite.  It  is  possible  that  the  difference 
in  regard  to  the  stage  of  the  cause  at 
which  this  remedy  will  be  granted  in 
England  a.n6.  in  A'e7u  York  arises  from 
the  fact  that  in  N'ewYork  the  Court  of 
•Chancery   has    jurisdiction    over    the 


question  of  divorce  and  alimonj",  which 
in  Englandhe\ox\.^%  to  the  ecclesiastical 
courts,  the  Court  of  Chancery  there 
only  coming  to  its  aid  to  prevent  its 
decree  from  being  defeated,  which  the 
former  court  might  be  unable  to  do." 

4.  Harper  v.  Rooker,  52  111.  370; 
Bylandt  v.  Bylandt,  6  N.  J.  Eq.  28. 

The  writ  may  be  granted  even  while 
proceedings  are  being  had  to  enforce 
the  payment  of  alimony  already  de- 
creed.    Lyon  V.  Lyon,  21  Conn.  185. 

5.  Lyon  v.  Lyon,  21  Conn.  185;  Mc- 
Gee V.  McGee,  8  Ga.  295,  52  Am.  Dec. 
407;  Harper  v.  Rooker,  52  111.  370; 
Bayly  v.  Bayly,  2  Md.  Ch.  326;  Yule  v. 
Yule,  10  N.  J.  Eq.  138;  Bylandt  v.  By- 
landt, 6  N.  J.  Eq.  28;  Kirby  v.  Kirby, 
I  Paige  (N.  Y.)26i;  Denton  v.  Denton, 
1  Johns.  Ch.  (N.  Y.)  364;  Hammond  v. 
Hammond,  Clarke  Ch.  (N.  Y.)  151; 
Boucicault  v.  Boucicault,  59  How.  Pr. 
(N.  Y.  Supreme  Ct.)  131;  Prather  v. 
Prather,  4  Desaus.-  Eq.  (S.  Car.)  33; 
Devall  V.  Devall,  4  Desaus.  Eq.  (S. 
Car.)  79. 

6.  McGee  v.  McGee,  8  Ga.  295,  52 
Am.  Dec.  407;  Bayly  v.  Bayly,  2  Md. 
Ch.  326;  Yule  V.  Yule,  10  N.  J.  Eq.  138; 
Kirby  v.  Kirby,  i  Paige  (N.  Y.) 
261. 

7.  McGee  v.  McGee,  8  Ga.  295,  52 
Am.  Dec.  407. 

The  writ  should  not  be  issued  in  a 
doubtful  case,  although  under  some 
circumstances  an  affidavit  on  informa- 
tion and  belief  will  be  sufficient.  The 
debt  or  duty  at  least  should  be  certain. 
Yule  V.  Yule,  10  N.  J.  Eq.  138. 

8.  Prather  v.  Prather,  4  Desaus.  Eq. 
(S.  Car.)  33;  Devall  v.  Devall,  4 
Desaus.  Eq.  (S.  Car.)  79;  McGee  v. 
McGee,  8  Ga.  295,  52  Am.  Dec.  407. 

Neither  an  injunction  nor  a  ne 
exeat  will  be  discharged  upon  the  mere 
allegation  by  the  husband  in  his 
answer  that  he  has  no  intention  of 
selling   his    property   or   leaving   the 


441 


Procedure. 


ALIMONY. 


Securing  Alimony. 


(2)  Writ  of  Injunction. — This  writ  may  be  granted  by  any  equity 
court  in  the  exercise  of  its  ordinary  powers,^  but  by  a  common- 
law  court  only  under  statute.  Its  use  in  protecting  and  secur- 
ing the  wife's  claim  to  alimony  is  to  restrain  any  disposition  by 
the  husband  of  his  property  which  is  likely  or  intended  to  impair 
or  defeat  such  claim;  and  it  is  commonly  issued  on  the  petition 
and  affidavit  of  the  wife.*  This  is  done  even  though  no  decree 
or  award  has  yet  been  made  ;'  but  there  must  be  a  proper  show- 
ing^ that  the  property  is  in  peril,**  the  allegations  in  the 
petition  being  required  to  set  out  not  only  the  fears  of  the  wife 
but  the  facts  on  which  they  are  grounded.*  The  mere  denial 
in  the  answer  of  the  husband  will  not  prevail  to  dissolve  the 
injunction.'' 


state.   Hammond  v.  Hammond,  Clarke 
Ch.  (N.  Y.)  151. 

1.  Gardner  v.  Gardner,  87  N.  Y. 
114.  See  Black  v.  Black,  5  Mont. 
15- 

New  Hampshire. — It  is  held  in  this 
state  that  its  equity  courts,  having  no 
jurisdiction  over  the  subject  of  ali- 
mony without  divorce,  cannot,  by 
virtue  of  their  ordinary  power  to  issue 
injunctions,  restrain  a  husband  from 
getting  possession  of  his  wife's  estate, 
where  he  is  not  asking  the  aid  of  the 
court,  either  at  law  or  in  equity,  for 
that  purpose.  Parsons  v.  Parsons,  9 
N.  H.  309,  32  Am.  Dec.  362. 

2.  Alabama. — Goodrich  v.  Goodrich, 
44  Ala.  670;  Norris  v.  Norris,  27  Ala. 

519- 

New  York. — Gardner  v.  Gardner,  87 
N.  Y.  14;  Hammond  v.  Hammond, 
Clarke  Ch.  (N.  Y.)  151;  Carey  v.  Carejs 
2  Daly  (N.  Y.)  424;  Rose  v.  Rose,  11 
Paige  (N.  Y.)  166;  Laurie  v.  Laurie,  9 
Paige  (N.  Y.)  234;  Kirby  v.  Kirby,  i 
Paige  (N.  Y.)  261. 

Illinois. — Springfield  Marine,  etc., 
Ins.  Co.  V.  Peck,  102  111.  265;  Bergen 
V.  Bergen,  22  111.  187;  Vanzant  w.  Van- 
zant,  23  111.  536;  Errissman  v.  Erriss- 
man,  25  111.  136;  Draper  z'.  Draper,  68 
111.  17. 

Ohio. — Wilson  v.  Wilson,  Wright 
(Ohio)  128;  Questel  v.  Questel,  Wright 
(Ohio)  492  ;  Tolerton  v.  Willard,  30 
Ohio  St.  579. 

Georgia. — Gray  v.  Gray,  65  Ga.  193; 
Lamar  v.  Jennings,  69  Ga.  392;  John- 
son V.  Johnson,  59  Ga.  613. 

Maryland. — Ricketts  v.  Ricketts,  4 
Gill  (Md.)  105;  Gechter  v.  Gechter,  51 
Md.  187. 

South  Carolina.  —  Greenland  v. 
Brown,   i  Desaus.   Eq.  (S.  Car.)  196; 


Wilson  V.  Wilson,  i  Desaus.  Eq.  (S. 
Car.)  219. 

Tennessee. — Boils  v.  Boils,  i  Coldw. 
(Tenn.)  284;  Stillman  v.  Stillman,  7 
Baxt.  (Tenn.)  169. 

Other  States. — Remington  v.  San 
Francisco,  69  Cal.  633;  Frakes  v. 
Brown,  2  Blackf.  (Ind.)  295;  Wharton 
V.  Wharton,  57  Iowa  696;  Fishli  v. 
Fishli,  2  Litt.  (Ky.)  337;  Morrison  v. 
Morrison,  49  N.  H.  69;  Gilmore  v. 
Gilmore,  5  Jones  Eq.  (N.  Car.)  284; 
Weaver  v.  Pickard,  7  Utah  296. 

3.  2  Bish.  on  M.,  D.,  &  S.  §  1107,  and 
note  2;  Wilson  v.  Wilson,  Wright 
(Ohio)  128;  cases  cited,  note  2  supra. 
Contra,  Newton  v.  Newton,  L.  R.  11 
P.  D.  II. 

So  an  injunction  will  be  granted 
where  the  proof  fails  and  the  cause  is 
continued.  Wilson  v.  Wilson,  Wright 
(Ohio)  128. 

4.  Wharton  «/. Wharton,  57  Iowa  696. 

5.  Johnson  v.  Johnson,  59  Ga.  613. 
Texas. — But  it  seems  that  in  Texas, 

under  the  statute,  an  injunction  is 
granted  almost  as  a  matter  of  course, 
the  court  having  little  discretion  in  the 
matter.    Wright  v.  Wright,  3  Tex.  168. 

6.  Norris  v.  Norris,  27  Ala.  519. 
See  Johnson  v.  Johnson,  59  Ga.  613. 

Bill  Demurrable. — If  the  bill  is  bad 
on  demurrer,  even  in  point  of  form 
merely,  the  injunction  will  not  be 
granted.  Rose  v.  Rose,  11  Paige  (N.Y.) 
166.  See  Remington  v.  San  Francisco, 
69  Cal.  633.  But  where  the  allegations 
are  not  sufficient  to  sustain  an  injunc- 
tion, one  that  has  already  been  granted 
may  be  dissolved,  but  the  bill  retained 
for  further  relief.  Norris  v.  Norris. 
27  Ala.  519. 

7.  Hammond  v.  Hammond,  Clarke 
Ch.  (N.  Y.)i5i. 


442 


Procedure. 


ALIMONY. 


Securing  Alimony. 


Operation  of  Injunction. — An  injunction  operates  to  prevent  incum- 
brances as  well  as  conveyances,*  but  should  not  have  the  effect  of 
breaking  up  the  husband's  trade.* 

Against  Whom  Granted. — It  may  be  granted  against  the  husband 
and  against  all  who  cooperate  with  him,  and  the  bill  may  join 
all  such  persons  as  parties  ;  ^  but  a  bona-fide  purchaser  from  the 
husband  will  not  be  affected  unless  he  has  notice  of  the  injunc- 
tion.* 

The  Terms  of  the  injunction  should  be  clear  and  explicit.* 

Eeceiver. — In  addition  to  this  method  of  securing  the  wife's  ali- 
mony, and  sometimes  as  supplementary  thereto,  a  receiver  of  the 
husband's  property  may  be  appointed.® 

(3)  Decree  as  Lien  on  Land. — A  divorce  suit  is  not  in  itself  a 
lien  on  the  real  estate  of  the  husband,''  the  doctrine  of  lis  pen- 
dens having  reference  only  to  proceedings  directly  involving  the 
thing  or  property  in  question  ;  ®  and  even  the  decree,  being  in 


1.  Vanzant  v.  Vanzant,  23  111.  536. 

Where  an  injunction  has  been  grant- 
ed to  restrain  defendant  from  mortgag- 
ing his  property,  it  seems  that  does 
not  restrain  him  from  mortgaging  his 
property,  other  than  the  homestead, 
to  raise  money  to  pay  alimony.  Fro- 
man  v.  Froman,  53  Mich.  581. 

2.  Rose  V.  Rose,  11  Paige  (N.  Y.) 
166. 

In  some  cases  the  wife  has  even 
been  required  to  give  bond.  Boils  v. 
Boils,  I  Coldw.  (Tenn.)  284. 

3.  Gray  t^.  Gray,  65  Ga.  193;  Ricketts 
V.  Ricketts,  4  Gill  (Md.)  105;  Draper 
V.  Draper,  68  111.  17;  Wetmore  v.  Wet- 
more,  5  Oregon  469;  Gibson  v.  Gibson, 
46  Wis.  449.  See  also  Bamford  v.  Bam- 
ford,  4  Oregon  30;  Monroy  z/.  Monroy, 
I  Edw.  Ch.  (N.  Y.)  382;  Stewart  on  M. 
&  D.  §  326. 

4.  Frakes  v.  Brown,  2  Blackf.  (Ind.) 
295. 

A  bona-fide  assignee  of  choses  in  ac- 
tion cannot  be  restrained  from  collect- 
ing them.  Gilmore  v.  Gilmore,  5  Jones 
Eq.  (N.  Car.)  284. 

6.  Laurie  v.  Laurie,  9  Paige  (N.  Y.) 
234,  where  the  court  said:  "The  lan- 
guage of  the  injunction  should  in  all 
cases  be  so  clear  and  explicit  that  an 
unlearned  man  can  understand  its 
meaning  without  the  necessity  of  em- 
ploying counsel  to  advise  him  what  he 
iias  a  right  to  do  to  save  him  from  sub- 
jecting himself  to  punishment  for  a 
breach  of  the  injunction.  And  the  lan- 
guage of  the  writ  should  at  the  same 
time  be  so  restricted  as  not  to  deprive 
him  of  any  right  which  the  case  made 
by  the  bill  does  not    require  that  he 

443 


should    be    restrained    from    exercis- 
ing." 

When  It  Ceases  to  Be  Operative. — A 
temporary  injunction  which  in  terms 
is  to  continue  in  force  until  further 
order  of  court  ceases  on  a  final  judg- 
ment in  favor  of  plaintiff  which 
makes  no  provision  for  its  continu- 
ance; and  the  fact  that  defendant  has 
appealed  does  not  modify  the  legal 
effect  in  any  particular.  Gardner  v. 
Gardner,  87  N.  Y.  14. 

6.  Holmes  v.  Holmes,  29  N.  J.  Eq.  9; 
Bergen  v.  Bergen,  22  111.  187;  Carey 
V.  Carey,  2  Daly  (N.  Y.)  424;  Questel 
V.  Questel,  Wright  (Ohio)  492;  Still- 
man  V.  Stillman,  7  Baxt.  (Tenn.)  169; 
Barker  v.  Dayton,  28  Wis.  367;  Kirby 
V.  Kirby,  i  Paige  (N.  Y.)  261.  See 
Gray  v.  Gray,  65  Ga.  193. 

7.  Feigley  v.  Feigley,  7  Md.  537,  61 
Am.  Dec.  375;  Daniel  v.  Hodges,  87 
N.  Car.  95;  Sapp  v.  Wightman,  loj 
111.  150;  Gilmore  v.  Gilmore,  5  Jones 
Eq.  (N.  Car.)  284;  Hamlin  v.  Bevans, 
7  Ohio  161.  Contra,  Vanzant  v.  Van- 
zant, 23  111.  536. 

8.  Scott  V.  Rogers,  77  Iowa  483; 
Feigley  v.  Feigley,  7  Md.  537,  61  Am. 
Dec.  375;  Freeman  on  Judgments,  § 
196.  This  general  doctrine  is  sus- 
tained in  Daniel  v.  Hodges,  87  N. 
Car.  95;  but  it  is  there  held  that  special 
circumstances  may  vary  the  rule,  and 
that  where  a  proceeding  incidental- 
ly draws  property  in  question,  this 
is  such  a  lis  pendens  as  affects  with 
notice  a  purchaser  pendente  lite;  and 
that  this  result  is  not  destroyed  by  a. 
reversal  of  an  order  in  the  cause. 

Property  Specifically  Oesoribed. — But 


Trocednre. 


ALIMONY, 


Secnring  Alimony. 


J)ersonam^  is  not  alien  on  the  husband's  property;*  but  it  maybe 
made  so  by  especially  charging  it  on  particular  property,  as  is  fre- 
quently done.^ 

To  What  Lien  Attaches.— But  the  decree  cannot  be  a  lien  on  per- 
sonal property,*  nor  on  real  estate  outside  of  the  jurisdiction  of 
the  court  granting  it;**  but  it  may  be  on  husband's  remainder  in 
real  or  personal  property,  vested  in  interest,  though  contingent  in 
amount.® 

Order  to  Convey  Property  to  Trustee. — The  decree  may  also  order  the 
husband  to  convey  certain  property  to  a  trustee  for  the  wife's 
benefit.''' 


where  the  petition  for  divorce  and  ali- 
mony specifically  describes  certain 
property,  charging  it  with  equities  of 
the  wife,  and  the  court  in  its  decree 
acted  on  and  favorably  to  those  equi- 
ties, the  proceeding  is  a  lis  pendens,  and 
the  decree  a  lien  on  said  property  pref- 
erable to  that  of  a  mortgagor  who  be- 
came so,  with  notice,  pending  such 
proceeding.  Tolerton  v.  Williard,  30 
Ohio  St.  579.  See  also  Draper  v. 
Draper,  68  111.  17;  Sapp  v.  Wightman, 
103  111.  150;  Harshberger  v.  Harsh- 
berger,  26  Iowa  503. 

1.  Ante,  p.  413,  note  2.  See  Ellison 
V.  Martin,  53  Mo.  575,  where  it  was 
doubted  whether  or  not  the  court  would 
have  power  to  enter  up  a  judgment 
in  rem  against  the  husband's  property 
if  specifically  described  in  the  petition 
for  divorce  and  alimony. 

2.  Lawton's  Petition,  12  R.  I.  210, 
in  which  case  the  decree  awarded  ali- 
mony "  to  be  paid"  by  the  husband 
"out  of  his  real  and  personal  estate." 

3.  Rhode  Island. — Lawton's  Petition, 
12  R.  I.  210. 

Illinois. — Storey  v.  Storey,  125  111. 
■608,  8  Am.  St.  Rep.  417;  Wightman  v. 
Wightman,  45  111.  167;  Andrews  v. 
Andrews,  69  111.  609;  O'Callaghan  v. 
O'Callaghan,  69  111.  552;  Thomas  v. 
Thomas,  44  111.  App.  604. 

Iowa. — Daniels  v.  Lindley,  44  Iowa 
567;  Sesterhen  v.  Sesterhen,  60  Iowa 
301;  Russell  z*.  Russell,  4  Greene  (Iowa) 
26,  61  Am.  Dec.  112;  Harshberger  v. 
Harshberger,  26  Iowa  503. 

Ohio. — Hamlin  v.  Bevans,  7  Ohio 
161;  Olin  V.  Hungerford,  10  Ohio  268. 

New  Jersey. — Stoy  v.  Stoy,  41  N.  J. 
Eq.  370,  and  note;  Holmes  v.  Holmes, 
29  N.  J.  Eq.  9. 

Other  States. — Bauman  v.  Bauman, 
18  Ark.  320,  68  Am.  Dec.  171;  Robin- 
son V.  Robinson,  79  Cal.  511;  Blanken- 
ship    V.    Blankenship,    ig    Kan.    159; 


Lamy  v.  Catron  (N.  Mex.,  1890),  23 
Pac.  Rep.  773;  Galusha  v.  Galusha, 
108  N.  Y.  114;  Stillman  v.  Stillman,  7 
Baxt.  (Tenn.)  169;  Foster  v.  Foster, 
56  Vt.  540;  Keyes  v.  Scanlan,  63  Wis. 
345.  Contra. — This  general  doctrine 
is  well  established,  but  the  reverse 
has  been  sometimes  held.  Kurtz 
V.  Kurtz,  38  Ark.  119;  Swansen  v. 
Swansen,  12  Neb.  210;  Brotherton  v. 
Brotherton,  14  Neb.  186;  Casteel  v. 
Casteel,  38  Ark.  477,  in  which  case  the 
court  said  :  "  The  alimony  should  not 
have  been  made  a  lien  upon  the  lands 
of  the  complainant.  This  is  equivalent 
to  charging  them  with  an  annuity, 
which  the  owner  might  do  voluntarily, 
but  the  court  should  not  do  ininvitum, 
as  it  embarrasses  alienation.  If  the 
objection  had  been  made  or  were  now 
insisted  on  the  court  might  have  se- 
cured the  payment  of  the  alimony  by 
sequestration  or  by  exacting  sureties." 
Description  of  Property  Must  Be  Defi- 
nite.— Sufficiently  so  to  identify  the 
particular  estate  designated,  Stratton 
V.  Stratton,   77  Me.  373,  52  Am.  Rep. 

779- 

A  decree  which,  in  terms,  orders 
that  defendant's  real  estate  be  se- 
questered to  secure  allowances,  unless 
otherwise  secured,  does  not  create  a 
lien.     Hills  v.  Hills,  76  Me.  488. 

4.  Yelton  v.  Handley,  28  111.  App. 
640. 

5.  It  cannot,  therefore,  extend  to 
lands  situated  in  another  county,  and 
the  court  cannot  make  it  so  extend. 
Sapp  V.  Wightman,  103  111.  150.  Con- 
tra, Harshberger  v.  Harshberger,  26 
Iowa  503. 

6.  Min  Young  v.  Min  Young,  47 
Ohio  St.  501. 

7.  Madison  v.  Madison,  i  Wash. 
Ter.  60;  Ricketts  v.  Ricketts,  4  Gill 
(Md.)  105;  or  for  the  joint  use  of  both, 
Greenland  v.  Brown,  i  Desaus.  Eq.  (S. 


444 


Procedure. 


ALIMONY. 


Securing  Alimony^ 


(4)  Requiring  Security. — The  courts  in  most  of  our  states  have 
the  power  of  requiring  bond  with  approved  security  to  ensure  the 
payment  of  alimony.  It  is,  perhaps,  the  most  usual  method.*  It 
maybe  enforced  by  attachment  for  contempt,*  by  sequestration,^ 
by  the  writ  of  ne  exeat,'^  or  by  the  writ  of  injunction.*  Where  an 
alimony  judgment  which  makes  no  provision  for  security  is  sub- 
ject to  the  continuing  power  of  the  court,  security  may  never- 
theless be  required  at  a  time  after  the  entry  of  such  judg- 
ment.® 

A  Bond  for  Alimony  is  not  assignable,''  nor  suable  without  leave 
in  a  court  other  than  the  one  having  jurisdiction  over  the  case.* 

b.  Fraudulent  Assignments. — The  wife's  right  to  alimony 
is  within  the  protection  of  statutes  dealing  with  fraudulent  con- 
veyances. Assignments  of  the  husband's  property,  if  fraudu- 
lently made  for  the  purpose  of  defeating  the  wife's  claim,  will  be 


Car.)  ig6;  or  compel  the  execution  of 
a  bond  and  trust  deed  as  security, 
Storey  v.  Storey,  125  111.  608,  8  Am. 
St.  Rep.  417. 

So  a  mortgage  on  real  estate  has 
been  required  in  order  to  stay  execu- 
tion pending  an  appeal.  Galusha  v. 
Galusha,  108  N.  Y.  114. 

1.  Nearly  all  of  the  state  statutes 
have  provisions  dealing  with  this  sub- 
ject, and  reference  must  be  made  to 
them.  Consult  also  the  following 
cases:  Prather  v.  Prather,  4  Desaus. 
Eq.  (S.  Car.)  33;  Harper  v.  Rooker,  52 
111.  370;  Gane  v.  Gane,  46  N.  Y.  Super. 
Ct.  218,  45  N.  Y.  Super.  Ct.  355; 
Gardner  v.  Gardner,  87  N-  Y.  14; 
Guenther  v.  Jacobs,  44  Wis.  354; 
Wright  V.  Wright,  74  Wis.  439;  Day- 
ton V.  Drake,  64  Iowa  714;  Hills  v. 
Hills,  76  Me.  488;  Lockridge  v.  Lock- 
ridge,  3  Dana(Ky.)  28,  28  Am.  Dec. 
52;  Slade  V.  Slade,  106  Mass.  499.  See 
also  Rice  v.  Rice,  13  Ind.  562;  Bur- 
nett V.  Paine,  62  Me.  122;  Galusha  v. 
Galusha,  108  N.  Y.  114. 

2.  Gibson  v.  Patterson,  75  Ga.  549; 
Isaacs  V.  Isaacs,  61  How.  Pr.  (N.  Y. 
C.  PI.)  369;  Park  V.  Park,  80  N.  Y. 
156,  affirming  18  Hun  (N.  Y.)  466; 
Slade  V.  Slade,  106  Mass.  499;  Wright 
V.  Wright,  74  Wis.  439.  See  Gane  v. 
Gane,  46  N.  Y.  Super.  Ct.  218,  45  N. 
Y.  Super.  Ct.  355- 

3.  Guenther  v.  Jacobs,  44  Wis.  354; 
Lockridge  v.  Lockridge,  3  Dana  (Ky.) 
28,  28  Am.  Dec.  52,  where  it  was  said: 
"The  more  approved  and  provident 
decree  is  to  require  a  bond,  with  ap- 
proved security,  for  such  an  annuity 
as  shall  be  fixed  by  the  court,  payable 


in  prescribed  instalments,  reserving 
the  power  to  compel  payment  from 
time  to  time  by  attachment,  seques- 
tration, or  otherwise." 

4.  McGee  v.  McGee,  8  Ga.  295,  52- 
Am.  Dec.  407;  Prather  v.  Prather,  4 
Desaus.  Eq.  (S.  Car.)  33;  Devall  v. 
Devall,  4  Desaus.  Eq.  (S.  Car.)  79. 

5.  Questelz/.  Questel,  Wright  (Ohio> 
492. 

6.  Wright  V.  Wright,  74  Wis,  439. 
But  no  security  can  be  required  in  the 
case  of  alimony  granted  during  a  pro- 
ceeding to  modify  a  judgment,  the 
Code  not  providing  for  the  exercise  of 
such  power.  Blake  v.  Blake,  70  Wis. 
238. 

7.  The  reasons  given  are  that  such 
an  assignment  is  contrary  to  public 
policy,  and  tends  to  lessen  the  chances 
of  reconciliation.  Reiffenstein  z/.  Hoop- 
er, 36  U.  C.  Q.  B.  295. 

8.  Guenther  v.  Jacobs,  44  Wis.  354. 
By  What  Proceeding. — A  surety  can 

only  be  proceeded  against  by  regular 
action  on  the  bond,  not  by  order  in  the 
divorce  suit  or  other  summary  pro- 
ceeding.     Guenther's  Appeal,  40  Wis. 

115- 

Where  an  alimony  judgment  was 
rendered  for  $200  and  one-third  of  the 
hbsband's  real  estate,  and  the  appel- 
late court  modified  the  judgment  by 
giving  the  wife  $3200  in  money  and  no 
real  estate,  it  was  held,  in  a  suit  on  the 
appeal  bond,  that  the  bond  was  security 
only  for  $200  in  money.  Rice  v.. 
Rice,  13  Ind.  562. 

An  Instalment  of  Alimony  is   not   as- 
signable   before    due.      Kempster   v 
Evans,  81  Wis.  247. 


445 


Procedure. 


ALIMONY. 


Appeals. 


set  aside  ;  but  if  good  when  made,  they  cannot  be  subsequently 
attacked.* 

6.  Appeals.* — Appeals  are  regulated  largely  by  statutes  in  the 
different  states.  It  may  be  stated  generally  that  whether  alimony 
shall  be  granted  at  all  is  a  matter  of  law.^  An  appeal  will  there- 
fore lie  from  the  action  of  the  lower  court  for  refusing*  or  grant, 
jng  an  allowance  of  alimony,^  whether  temporary  or  permanent. 6 

Discretion  as  to  Amount. — But  the  amount  to  be  granted  is  said  to 
be  a  matter  of  discretion,  and  rests  largely  with  the  trial  court.'' 

lo  Heisk.  (Tenn.)  546;  Boils  v.  Boils, 
I  Coldw.(Tenn.)  284. 

England. — Brown  v.  Brown,  2  Hagg. 
Ecc.  5,  4  Eng.  Ecc.  11. 

2.  The  cases  cited  in  this  section 
touching  appeals  in  the  matter  of  tem- 
porary alimony  refer  frequently  also, 
and  sometimes  exclusively,  to  counsel 
fees  and  suit  money,  the  principles 
and  doctrines  applying  to  the  three 
subjects  being  much  the  same. 

3.  Schonwald  v.  Schonwald,  Phil. 
Eq.  (N.  Car.)  215 ;  Whitsell  v.  Whitsell, 
8  B.  Mon.  (Ky.)  50;  Collins  v.  Collins, 
71  N.  Y.  269;  Wagner  v.  Wagner,  34 
Minn.  441.  It  is  said,  for  instance,  in 
Wagner  v.  Wagner,  34  Minn.  441,  that 
any  order  which  "determines  the 
strict  legal  rights  of  the  parties  "  is 
appealable,  as  an  order  granting  an 
allowance  fe^idente  lite. 

4.  Whitsell  v.  Whitsell,  8  B.  Mon. 
(Ky.)  50;  Schonwald  v.  Schonwald, 
Phil.  Eq.  (N.  Car.)  215;  Taylor  v. 
Taylor,  i  Jones  (N.  Car.)  528;  Chaires 
V.  Chaires,  10  Fla.  308;  Blair  v.  Blair, 
74  Iowa  311;  Boggess  v.  Boggess,  4 
Dana  (Ky.)  307;  Reynolds  v.  Rey- 
nolds, 92  Mich.  104;  Dickerson  v. 
Dickerson,  26  Neb.  318. 

Alabama. — It  seems  that  under  Civ. 
Code  of  1886,  vol.  i.,  §  2331,  the  right 
to  temporary  alimony  is  absolute,  and 
not  in  any  sense  a  matter  of  judicial 
discretion.  Edwards  v.  Edwards,  80 
Ala.  97. 

5.  Leslie  v.  Leslie,  6  Abb.  Pr.  N.  S. 
(N.  Y.  C.  PI.)  193;  Jenkins  v.  Jenkins, 
91  111.  167;  Blair  z/.  Blair,  74  Iowa  311; 
Chaires  v.  Chaires,  10  Fla.  308;  Bog- 
gess V.  Boggess,  4  Dana  (Ky.)  307; 
Mangels  v.  Mangels,  6  Mo.  App.  481. 

A  reversal  of  a  decree  of  divorce 
does  not  necessarily  reverse  a  decree 
for  alimony,  although  both  may  be 
part  of  one  entry  in  the  trial  court. 
Mangels  v.  Mangels,  6  Mo.  App.  481; 
Jenkins  v.  Jenkins,  91  111.  167. 

6.  Cases  cited  supra,  notes  3-5. 

7.  Cases  ittfra,  p.  447,  notes  ^-4. 


1.  See  Am.  &  Eng.  Ency,  Law,  tit. 
Alimony. 

This  subject  is  not  properly  within 
the  scope  of  this  article.  The  follow- 
ing cases,  however,  are  added  for  ref- 
erence: 

Indiana. — Barrow  v.  Barrow,  108 
Ind.  345;  Plunkett  v.  Plunkett,  114 
Ind.  484;  Frakes  v.  Brown,  2  Blackf. 
(Ind.)  295;  Metzler  w.  Metzler,  99  Ind. 

384. 

Massachusetts. — Burrows  v.  Purple, 
107  Mass.  428;  Chase  v.  Chase,  105 
Mass.  385;  Allen  v.  Allen,  100  Mass. 
373;  Livermore  v.  Boutelle,  11  Gray 
(Mass.)  217,  71  Am.  Dec.  708;  Porter 
V.  Wakefield,  146  Mass.  25;  Stuart  v. 
Stuart,  123  Mass.  370. 

Illinois. — Springfield  Marine,  etc., 
Ins.  Co.  V.  Peck,  102  111.  265;  Tyler  t^. 
Tyler,  126  111.  525,  9  Am.  St.  Rep.  642; 
Draper  v.  Draper,  68  111.  17;  Bear  v. 
Bear,  145  111.  21. 

New  Hampshire. — Janvrin  v.  Curtis, 
63  N.  H.  312;  Janvrin  v.  Janvrin,  60 
N.  H.  169;  Morrison  v.  Morrison,  49 
N.  H.  69. 

Iowa. — Picket  v.  Garrison,  76  Iowa 
347;  Boog  V.  Boog,  78  Iowa  524;  Ses- 
terhen  v.  Sesterhen,  60  Iowa  301. 

Vermont. — Green  v.  Adams,  59  Vt. 
602,  59  Am.  Rep.  761;  Foster  v.  Foster, 
56  Vt.  540. 

Georgia. — Odom  v.  Odom,  36  Ga.  286; 
Halleman  v.  Halleman,  65  Ga.  476. 

Texas. — Lott  v.  Kaiser,  61  Tex.  665; 
Berg  V.  Ingalls,  79  Tex.  522. 

Wisconsin. — Damon  v.  Damon,  28 
Wis.  510;  Way  v.  Way.  67  Wis. 
662. 

Other  States. — Goodrich  v.  Goodrich, 
44  Ala.  670;  Gregory  v.  Filbeck,  12 
Colo.  379;  Feigley  v.  Feigley,  7  Md. 
537,  61  Am.  Dec.  375;  Reeg  v.  Burn- 
ham,  55  Mich.  39;  Atkins  v.  Atkins,  18 
Neb.  474;  Powell  v.  Campbell,  20  Nev. 
232,  19  Am.  St.  Rep.  350;  Tolerton  v. 
Williard,  30  Ohio  St.  579;  Wetmore  v, 
Wetmore,  5  Oregon  469;  Bouslough  v. 
Bouslough,  68  Pa.  St.  495;  Nix  v.  Nix, 


446 


Procedure. 


ALIMONY. 


Appeals. 


This  discretion,  however,  is  judicial,  not  arbitrary.* 

Abuse  of  Discretion. — And  appeals  from  all  orders  or  decrees,  either 
for  permanent  *  or  for  temporary  alimony,  will  be  allowed  where 
an  abuse  of  discretion  in  the  trial  court  can  be  clearly  shown,^ 

Alimony  Pendente  Lite.— Yet  it  has  been  held  in  some  jurisdictions 
that  an  order  for  2iX\vciOX\y  pendente  lite  is  not  final,  but  interlocu- 
tory, and  therefore  not  appealable,*  the  amount  to  be  awarded 


1.  Foss  V.  Foss,  loo  111.  576;  Countz 
V.  Countz,  30  Ark.  73  ;  Rossman  v. 
Rossman,  62  Mich.  429;  De  Llamosas 
V.  De  Llamosas,  62  N.  Y.  618;  Stillman 
V.  Stillman,  gg  111.  ig6,  3g  Am.  Rep.  21; 
Foote  V.  Foote,  22  III.  425;  Wooley  v. 
Wooley,  24  111.  App.  431  ;  Jones  v. 
Jones,  L.  R.  2  P.  &  M.  333  ;  Burr  v. 
Burr,  7  Hill  (N.  Y.)  207  ;  Cooke  v. 
Cooke,  2  Phillim.  40,  wherein  Sir  John 
NichoU  said  :  "  Now,  although  ali- 
mony— that  is,  the  allowance  to  be 
made  to  a  wife  for  her  maintenance, 
cither  during  a  matrimonial  suit  or 
when  she  has  proved  herself  entitled 
to  a  separate  maintenance — is  said  to 
be  discretionary  with  the  court;  but  it 
is  a  judicial,  not  an  arbitrary,  dis- 
cretion which  is  to  be  exercised;  and 
therefore  it  is  clearly  a  subject  of  ap- 
peal :  at  the  same  time,  upon  a  point 
where  there  is  no  other  rule  or  crite- 
rion to  guide  than  the  boni  viri  arbit- 
rium,  it  is  only  upon  a  strong  differ- 

L,  ence  of  opinion  where  the  court  of 
appeal  would  be  disposed  to  disturb 
[the  sentence."  This  case  was  referred 
|to  and  affirmed  in  Street  v.  Street,  2 
lAdd.  Ecc.  I.  See  also  Brinkley  v. 
iBrinkley,  50  N.  Y.  203. 

2.  Chaires  v.  Chaires,  10  Fla.  308  ; 
[Peck  V.  Peck,  113  Ind.  168;  Cox  v.  Cox, 
;  19  Ohio  St.  502;  Street  v.  Street,  2  Add. 
(Ecc.  i;  Powell  v.  Powell,  53  Ind.  513; 
[Stillman  v.  Stillman,  gg  111.  ig6  ;  39 
[Am.  Rep.  21;  Andrews  v,  Andrews,  6g 

111.  6og;  Ressor  v.  Ressor,  82  111.  442; 

Varney  v.  Varney,  58  Wis.  ig;  Taylor 
Xv.  Gladwin,  40  Mich.  232;  Maguire  v. 
jMaguire,  7  Dana  (Ky.)  181;  Vinson  7). 

Vinson  (Ga.  i8g4),  ig  S.  E.  Rep.  8g8; 
[  J^ake  V.  Lake,    17   Nev.   230 ;    Burr  v. 

Burr,  7  Hill  (N.  Y.)  207;  Jeter  v.  Jeter. 
136  Ala.  3gi. 

Yet  it  has  been  held  that  a  decree 
I  lor  permanent  alimony,  as  well  as  one 

providing  for  ihe  support  of  a  child,  is 
[■entirely  within  the  discretion  of  the 
[trial  court,  and  that  exceptions  will  not 

lie  thereto.  Call  v.  Call,  65  Me.  407  ; 
[Sparhawk  v,  Sparhawk,  120  Mass. 
[390.     So  an  order  for  the  support  of 


children  is  but  an  incident  of  divorce, 
and  no  appeal  will  lie  from  that  order 
alone.  Thompson  v.  Thompson,  5 
Utah  401. 

3.  Illinois. — Wooley  v.  Wooley,  24 
111.  App.  431;  Lane  v.  Lane,  22  111. 
App.  52g  ;  Burgess  v.  Burgess,  25  111. 
App.  525;  Lind  v.  Lind,  37  111.  App. 
178;  Jenlfins  v.  Jenkins,  gi  111.  167; 
Stillman  v.  Stillman,  gg  111.  ig6,  39 
Am.  Rep.  21. 

California. — Sharon  v.  Sharon,  68 
Cal.  326;  Sharon  v.  Sharon,  75  Cal.  i; 
Turner  v.  Turner,  80  Cal.  141;  Langan 
V.  Langan,  91  Cal.  654;  Bohnert  v. 
Bohnert,  91  Cal.  428. 

New  York. — Brinkley  v.  Brinkley, 
50  N.  Y.  184;  De  Llamosas  v.  De  Lla- 
mosas, 62  N.  Y.  618;  Aldrich  v.  Aldrich 
(Supreme  Ct.),26  N.  Y.  Supp.  344. 

Georgia. — McGee  v.  McGee,  10  Ga. 
477;  Glenn  v.  Hill,  50  Ga.  94. 

Arkansas. — Hecht  z/.  Hecht,  28  Ark. 
g2  ;  Glenn  v.  Glenn,  44  Ark.  46. 

Minnesota. — Wagner  v.  Wagner,  34 
Minn.  441;  Wagner  v.  Wagner,  3g 
Minn.  3g4. 

Michigan. — Froman  v.  Froman,  53 
Mich.  581;  Rose  v.  Rose,  53  Mich.  585. 

Other  States. — Dickerson  v.  Dicker- 
son,  26  Neb.  318;  Miller  v.  Miller,  43 
Iowa,  325;  State  v.  Seddon,  g3  Mo.  520; 
Bardin  v.  Bardin  (S.  Dak.,  i8g3),  56  N. 
W.  Rep.  io6g;  Grant  v.  Grant  (S.  Dak., 
i8g4),  57  N.  W,  Rep.  g48. 

England. — Cooke  v.  Cooke,  2  Phil- 
lim. 40;  Street  v.  Street,  2  Add.  EcC. i  ; 
Jones  V.  Jones,  L.  R.  2  P.  &  M.  333. 

See  Rossman  v.  Rossman,  62  JVIich. 
42g,  where  the  court  said  :  "  The  mak- 
ing of  these  allowances,  in  matters  of 
divorce,  is  placed  by  the  statute  with 
the  circuit  judge.  The  amount  to  be 
allowed  and  the  time  and  manner  of 
payment  are  to  be  governed  by  his 
discretion,  and  we  should  hesitate  to 
override  his  action  without  a  strong 
and  positive  showing  of  an  abuse  of 
judicial  discretion."  See  also  Brink- 
ley  V.  Erinkley,  50  N.  Y.  203. 

4.  Lapham  v.  Lapham,  40  Mich. 
527;  Cooper  V.  Mayhew,  40  Mich,  528. 


447 


Procedure. 


ALIMONY. 


Appeals.. 


being  entirely  within  the  discretion  of  the  trial  court  ;^  but  the 
weight  of  authority  is  clearly  to  the  effect  that  such  an  order  or 
decree  is  sufficiently  final  to  permit  an  appeal  therefrom.*  It  is 
abundantly  well  established,  as  a  general  rule,*  that  pending 
an  appeal  a  wife  is  entitled  to  alimony  and  counsel  fees  whether 
she  was  complainant  or  defendant  below,*  or  whether  she  is  appel- 
lant* or  appellee  above  *  provided  the  wife  has  no  means  ''  and  the 


See  the  opinion    of   Walker,    C.J.,   in 
Jeter  v.  Jeter,  36  Ala.  391. 

1.  Taylor  z/.  Taylor,  25  Ohio  St.  71; 
Earp  V.  Earp,  l  Jones  Eq.  (N.  Car.) 
120;  Taylor  v.  Taylor,  i  Jones  (N. 
Car.)  52S;  Schonwald  v.  Schonwald, 
Phil.  Eq.  (N.  Car.)  215;  Webber  v. 
Webber,  79  N.  Car.  572;' Gordon  v. 
Gordon,  88  N.  Car.  45,  43  Am.  Rep. 
729;  Collins  V.  Collins,  71  N.  Y.  269; 
Call  V.  Call,  65  Me.  407,  where  it  was 
said:  "Obviously  the  object  of  this 
provision  is  to  provide  for  the  imme- 
diate wants  of  the  wife.  The  allow- 
ance of  exceptions  to  such  an  order, 
and  the  delay  that  would  be  thereby 
occasioned,  would  in  many  cases  leave 
the  wife  to  starve,  or  force  her  to  be- 
come a  public  charge,  or  to  accept  sup- 
port at  the  hand  of  charity.  Such 
could  never  have  been  the  intention  of 
the  legislature.  The  court  is,  there- 
fore, of  the  opinion  that  exceptions  to 
such  an  order  do  not  lie;  and  that  the 
exceptions  in  this  case  should  not  have 
been  allowed." 

Order  Committing  for  Contempt. — But 
although  an  order  awarding  tempo- 
rary alimony  is  not  appealable,  an 
order  based  thereon,  committing  de- 
fendant for  contempt  for  refusal  to 
pay  the  same,  may  be  reviewed  in  the 
court  above.  Ross  v.  Ross,  47  Mich. 
185. 

2.  Glenn  v.  Glenn,  44  Ark.  46;  Hecht 
V.  Hecht,  28  Ark.  92;  Countzz'.  Countz, 
30  Ark.  73;  In  re  Finkelstein  (Mont., 
1893),  34  Pac.  Rep.  847;  State  z/.  Second 
Judicial  District  Court  (Mont.,  1894), 
36  Pac.  Rep.  757;  State  v.  Seddon,  93 
Mo.  520;  Daniels  v.  Daniels,  9  Colo. 
133;  Sharon  v.  Sharon,  67  Cal.  185; 
Lochnane  v.  Lochnane.  78  Ky.  467, 
where  the  court  said  :  "That  an  ap- 
peal may  be  taken  from  a  decree  mak- 
ing an  allowance  to  support  the  wife 
pending  a  suit  for  divorce  cannot  now 
be  questioned.  It  possesses  all  the 
essential  elements  of  a  final  judgment. 
It  may  be  enforced  by  rule  or  execu- 
tion, and  is  in  every  respect  indepen- 
dent of  the  final  determination  of  the 


court  as  to  the  rights  o'f  the  party  in 
regard  to  the  question  of  divorce." 
So  it  was  held  in  Leslie  v.  Leslie,  6 
Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.)  193,  that 
an  order  which  imposes  the  payment 
of  money  absolutely,  as  an  order  for 
temporary  alimony,  is  one  which 
affects  a  "substantial  right,"  and  was 
therefore  appealable  under  the  terms 
of  the  statute.  Abbey  v.  Abbey,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  340, 
note;  Moncrief  v.  Moncrief,  10  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  315,  and  Grif- 
fin V.  Griffin,  23  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  189,  apparently  overruled. 

An  appeal  lies  from  an  order  award- 
ing counsel  fees  without  waiting  for 
final  judgment.  Traylor  v.  Richard- 
son, 2  Ind.  App.  452.  Or  from  an 
order  awarding  costs  and  counsel 
fees,  even  when  asked  for  appeal. 
Rohrback  v.  Rohrback,  75  Md.  317. 

But  an  order  for  temporary  alimony 
and  counsel  fees  cannot  be  reviewed 
on  an  appeal  from  a  judgment  decree- 
ing a  divorce.  Sharon  v.  Sharon,  67 
Cal.  185. 

3.  See  cases  in  the  notes  infra. 

4.  Whitmore  v.  Whitmore,  49  Mich. 
417;  Disborough  v.  Disborough  (N.  J., 
1893),  28  Atl.  Rep.  3,  where  the  court 
said  :  "When  an  appeal  is  taken  in 
good  faith  by  a  wife,  whether  she  was 
complainant  or  defendant  below,  the 
expense  must  be  borne  by  the  hus- 
band when  it  appears  that  the  appel- 
lant is  otherwise  without  the  means 
to  prosecute  her  appeal." 

But  the  wife  must  make  a  fresh  ap- 
plication for  this  allowance.  Wood  v. 
Wood,  7  Lans.  (N.  Y.)  205. 

5.  Van  Voorhis  v.  Van  Voorhis,  90 
Mich.  276;  Chaffee  v.  Chaffee,  14  Mich. 
463;  Whitmore  v.  Whitmore,  49  Mich. 
417;  Holthoefer  v.  Holthoefer,  47 
Mich.  643;  Pleyte  v.  Pleyte,  15  Colo. 
125. 

6.  Rohrback  v.  Rohrback,  75  Md. 
317;  McBride  v.  McBride,  119  N.  Y. 
519,  55  Hun.  (N.  Y.)40i. 

7.  Disborough  v.  Disborough  (N.  J., 
1893),   28   Atl.    Rep.    3;    Clarkson   v.. 


448 


Procedure. 


ALIMONY. 


Appeals. 


appeal  is  made  in  good  faith*  and  its  merits  are  at  least  doubtful.* 
But  where  the  appeal  is  obviously  without  merits,^  or  appears 
frivolous  or  \'exatious,'*  or  the  wife  has  been  guilty  of  laches,*  or 
the  court  is  ieft  in  doubt  as  to  the  ability  of  the  husband  to  pay 
any  greater  «imount,®  no  extra  allowance  will  be  made. 

Grant  by  Appellate  Court.— Temporary  alimony  and  counsel  fees 
may  be  granted  by  the  appellate  court  pending  an  appeal,''  but 
the  usual  practice  is  that  this  shall  be  done  by  the  trial  court,* 
which  is  deemed  still  to  have  sufficient  jurisdiction  for  this  pur- 
pose as  long  as  the  action  is  pending,^  i.  e.,  while  the  appeal  is 


I 


Clarkson,  20  Mo.  App.  94;  Pleyte  v. 
Pleyte,  15  Colo.  125.  See  Grant  v. 
Grant  (S.  Dak.,  1894),  57  N.  W.  Rep. 
1130;  Becker  v.  Becker,  15  111.  App. 
247. 

1.  Zeigenfuss  v.  Zeigenfuss,  21 
Mich.  414;  Goldsmith  v.  Goldsmith,  6 
Mich.  285;  Holthoefer  v.  Holthoefer, 
47  Mich.  643;  Van  Voorhis  v.  Van 
Voorhis,  90  Mich.  276. 

Certificate  of  Counsel. — It  seems  that 
there  should  be  a  certificate  of  coun- 
sel, being  members  of  the  bar  in  good 
standing,  or  other  showing  made  by 
them  to  this  effect.  Van  Voorhis  v. 
Van  Voorhis,  90  Mich.  276;  Holthoefer 
V.  Holthoefer,  47  Mich.  643. 

Good  Conduct  of  Wife  Fending  Appeal. 
— But  an  allowance  of  alimony  already 
granted  has  been  rescinded  on  proof 
by  affidavits  that  the  wife  has  been 
guilty  of  repeated  acts  of  adultery 
pending  appeal.  Goldsmith  v.  Gold- 
smith, 6  Mich.  285. 

2.  Clarkson  v.  Clarkson,  20  Mo. 
App.  94;  Pleyte  v.  Pleyte,  15  Colo. 
125. 

3.  Friend  v.  Friend,  65  Wis.  412; 
Krause  v.  Krause,  23  Wis.  354. 

4.  Jones  v.  Jones,  L.   R.  2  P.  &  M. 

333- 

5.  Jones  v.  Jones,  L.  R.  2  P.  &  M. 
333;  Loveden  v.  Loveden,  i  Phillim. 
208. 

6.  Grant  v.  Grant  (S.  Dak.,  1894).  57 
N.  W.  Rep.  1130. 

7.  Chaffee  v.  Chaffee,  14  Mich.  463; 
Krause  v.  Krause,  23  Wis.  354;  Gold- 
smith V.  Goldsmith,  6  Mich.  2S5;  Zei- 
genfuss V.  Zeigenfuss,  21  Mich.  417; 
Holthoefer  v.  Holthoefer,  47  Mich. 
643;  Whitmore  v.  Whitmore,  49  Mich. 
417;  Grant  v.  Grant  (S.  Dak.,  1894), 
57  N.  W.  Rep.  1130  ;  Clarkson  v. 
Clarkson,  20  Mo.  App.  94;  Pleyte  v. 
Pleyte,  15  Colo.  125;  Van  Voorhis  v. 
Van  Voorhis,  90  Mich.  276;  Lake  v. 
Lake,  16  Nev.  363;  Lake  v.  Lake,  17 
Nev.  230. 


In  Discretion  of  Court. — Though  in 
such  case  the  award  seems  to  be  en- 
tirely within  the  discretion  of  the 
court,  even  where  there  is  a  certificate 
or  other  showing  of  counsel  that  the 
appeal  is  taken  in  good  faith.  Holt- 
hoefer V.  Holthoefer,  47  Mich.  643. 
And  it  will  not  be  granted  before  the 
return  of  the  appeal  bond  where  the 
wife  is  defendant  and  the  decree  is 
against  her.  Whitmore  v.  Whitmore, 
49  Mich.  417. 

8.  Exp.  King,  27  Ala.  387;  Jones  v. 
Jones,  L.  R.  2  P.  &  M.  333;  Rohrback 
V.  Rohrback,  75  Md.  317;  Bohnert  v. 
Bohnert,  91  Cal.  428;  Storke  v.  Storke, 
99  Cal.  621;  Razor  v.  Razor,  42  111. 
App.  504;  State  V.  St.  Louis  Court,  99 
Mo.  216;  State  v.  St.  Louis  Court,  88 
Mo.  135;  State  v.  Seddon,  93  Mo.  520; 
Peavey  v.  Peavey,  76  Iowa  443;  Miller 
V.  Miller,  43  Iowa  325  ;  Jenkins  v. 
Jenkins,  91  111.  167.  See  also  Butler 
V.  Butler,  15  P.  D.  13. 

After  Appeal  Perfected. — Though  pos- 
sibly the  trial  court  does  not  have  this 
right  after  the  appeal  has  been  per- 
fected. Lake  v.  Lake,  17  Nev.  238; 
State  V.  Seddon,  93  Mo.  522;  Cralle  v. 
Cralle,  81  Va.  773.  And  where  an  ad- 
ditional allowance  had  been  made  by 
the  trial  court  to  meet  the  expenses  of 
appeal,  but  the  appeal  had  not  been 
perfected,  it  was  held  that  the  appeal 
had  been  abandoned,  and  that  the  al- 
lowance should  be  set  aside.  Peavey 
V.  Peavey,  76  Iowa  443. 

9.  Reilly  v.  Reilly,  60  Cal.  624. 

It  was  held  in  Ross  v.  Griffin,  53 
Mich.  5,  that,  pending  an  appeal  from 
an  order  of  commitment  for  contempt, 
the  trial  court  still  had  sufficient  juris- 
diction over  the  parties  to  make  a 
further  order  of  the  same  kind  upon 
the  defendant's  subsequent  refusal  to 
pay  alimony  after  the  appeal  had  been 
taken. 

Contra.-^CraUe  v.  Cralle,  81  Va.  773, 
where  it  was  held  that,  pending  an  ap» 


I  Encyc.  PI.  &  Pr.— 29. 


449 


Snit  Money,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


undetermined  ;  *  and  it  has  been  held  in  several  jurisdictions  that 
where  no  application  for  temporary  alimony  has  been  made  in 
the  trial  court,  it  cannot  for  the  first  time  be  made  in  the  higher 
tribunal  on  appeal.^ 

An  Order  Modifying  a  Decree  for  permanent  alimony  is  appealable.^ 
Collateral  Attack.— An   allowance  of  alimony  should  be  appealed 
from  and  not  attacked  collaterally.* 

IV. — Suit  Money,  Counsel  Fees,  and  Costs— 1.  Definitions.— At 
the  time  of  granting  alimony  pendente  lite  the  court  frequently 
awards,  on  the  application  of  the  wife,  in  addition  to  that  allow- 
ance, a  certain  sum  to  enable  the  wife  to  employ  counsel — counsel 
fees  * — and  a  further  amount  to  be  used  in  meeting  the  necessary 
expenses  of  the  litigation.*     This  latter  is  called  suit  money  in 


peal  which  had  been  perfected  by  giv- 
ing bond,  the  trial  court  could  not  de- 
cree temporary  alimony;  that  the  only 
orders  it  had  power  to  make  during 
such  time  were  those  necessary  to 
preserve  the  rem  in  litigation,  and 
that  where  the  amount  thus  erro- 
neously decreed  was  less  than  the  mini- 
mum jurisdictional  sum  of  the  appel- 
late court,  the  remedy  was  by  writ  of 
prohibition  from  the  appellate  court 
to  the  execution  of  the  decree.  See 
also  State  v.  Seddon,  93  Mo.  520. 

1.  McBride  v.  McBride,  55  Hun  (N. 
Y.)  401,  affirmed  in  119  N.  Y.  519,  the 
court  citing  and  relying  on  Beadleston 
V.  Beadleston,  103  N.  Y.  402,  and  over- 
ruling Winton  v.  Winton,  31  Hun  (N. 
Y.)  290. 

2.  Hunter  v.  Hunter,  100  111.  477; 
Reilly  v.  Reilly,  60  Cal.  624;  State  v.  St. 
Louis  Court,  99  Mo.  216;  State  v.  St. 
Louis  Court,  88  Mo.  135;  State  «/.  Sed- 
don, 93  Mo.  520,  where  the  court  said: 
"The  decree  having  been  appealed 
from,  the  suit  is  still  pending,  and  the 
Circuit  Court  had  power  to  make  the 
order  allowing  alimony  pending  the 
suit  in  the  appellate  court,  pending 
the  application  for  an  appeal  in  the 
divorce  suit,  and  before  such  appeal 
was  perfected.  It  was  the  only  court 
having  juridiction  to  make  such  order, 
and  it  would  have  had  no  such  juris- 
diction after  the  appeal  had  been  per- 
fected." State  z/.  Seddon,  93  Mo.  522. 
See  Cralle  v.  Cralle,  81  Va.  773. 

3.  Stillman  v.  Stillman,  99  111.  196, 
39  Am.  Rep.  21. 

4.  Taylor  v.  Gladwin,  40  Mich.  232. 

Minor  Points  connected  with  the  sub- 
ject of  appeals  will  be  found  decided 
in  the  following  list  of  cases.  They 
will  not  admit  of  separate  amplifica- 


tion. Edwards  v.  Edwards,  80  Ala. 
97;  Chaffee  v.  Chaffee,  14  Mich.  463; 
Ex  p.  King,  27  Ala.  387;  Froman  v. 
Froman,  53  Mich.  581  ;  Walsh  v. 
Walsh  (Buffalo  Super.  Ct.),  24  N.  Y. 
Supp.  335;  Jenkins  v.  Jenkins,  91  111, 
167;  Mullin  V.  Mullin,  60  N.  H.  16: 
Mclntire  v.  Mclntire,  80  Mo.  470;  Moe 
V.  Moe,  39  Wis.  308;  Ex  p.  Cottrell, 
59  Cal.  417;  Ex  p.  Cottrell,  59  Cal. 
420;  Dow  V.  Blake,  148  111.  76;  Galusha 
V.  Galusha,  108  N.  Y.  114;  Robertson 
V.  Robertson,  i  Edw.  Ch.  (N.  Y.)  360; 
Collins  V.  Collins,  71  N.  Y.  269. 

5.  Cooke  V.  Newell,  40  Conn.  596; 
Sprayberry  v.  Merk,  30  Ga.  81,  76  Am. 
Dec.  637;  Glenn  v.  Hill,  50  Ga.  94; 
Dow  V.  Eyster,  79  111.  254;  Petrie  v. 
People,  40  111.  334;  Ray  v.  Adden,  50 
N.  H.  82,  9  Am.  Rep.  175;  Dorsey  v. 
Goodenow,  Wright  (Ohio)  120;  Wing  v. 
Hurlburt,  15  Vt.  607,  40  Am.  Dec.  695; 
Sumner  v.  Sumner,  54  Wis.  642. 

6.  D'Aiguilar  v.  D'Aigular,  i  Hagg. 
Ecc.  773,  3  Eng.  Ecc.  338;  Belcher  v. 
Belcher,  i  Curt.  Ecc.  444,  6  Eng.  Ecc. 
372;  Holmes  v.  Holmes,  2  Lee  90,  6 
Eng.  Ecc.  49;  Fitzgerald  v.  Fitzgerald, 
I  Lee  649,  5  Eng.  Ecc.  472;  Bird  v. 
Bird,  I  Lee  572,  5  Eng.  Ecc.  455;  Cook 
V.  Walton,  38  Ind.  228;  Call  v.  Call,  65 
Me.  407;  Daiger  v.  Daiger,  2  Md.  Ch. 
335;  Coles  V.  Coles,  2  Md.  Ch.  341; 
Tayman  v.  Tayman,  2  Md.  Ch.  393; 
Goldsmith  v.  Goldsmith,  6  Mich.  285; 
Mix  V.  Mix,  I  Johns.  Ch.  (N.  Y.)  108: 
North  V.  North,  i  Barb.  Ch.  (N.  Y.) 
241,  43  Am.  Dec.  778;  Kendall  v.  Ken- 
dall, I  Barb.  Ch.  (N.  Y.)  610;  Smith  v. 
Smith,  3  Oregon  363;  Graves  v.  Cole, 
19  Pa.  St.  171;  Waldron  v.  Waldron, 
55  Pa.  St.  231;  Thompson  v.  Thomp- 
son, 3  Head  (Tenn.)  527;  Moe  v.  Moe, 
39  Wis.  308. 


450 


Suit  Money,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


this  country,  though  in  England  It  is  usually  termed  costs.*  But 
the  word  "costs"  with  us  is  commonly  and  properly  applied  to 
the  necessary  and  legitimate  charges  of  the  suit  which  are  taxed 
by  the  proper  officer  of  the  court,  and  which  one  or  both  of  the 
parties  must  settle.*  Costs  in  this,  the  ordinary  American  sense, 
bear,  therefore,  a  character  entirely  different  from  that  of  suit 
money. 

2.  Suit  Money. — Suit  money  and  counsel  fees  are  awarded  on 
the  same  principles  as  those  which  govern  the  granting  of  alimony 
pendente  lite^  and  so  it  has  been  universally  held  by  the  English 
courts,*  as  well  as  by  most  of  those  in  our  own  country,'  that  this 
allowance  to  a  wife  is  a  common-law  right  and  grantable  without 
statutory  aid.  ® 


The  term  "alimony"  (temporary)  in 
this  country  is  frequently  but  incor- 
rectly used  to  designate  the  whole  al- 
lowance granted  to  a  wife,  meaning 
thereby  both  suit  money  and  counsel 
fees,  as  well  as  the  award  for  her  sup- 
port, which  latter  is  alone  alimony  in 
the  proper  sense.  2  Bish.  on  M.,  D.,  & 
S.  §  907.  The  terms  will  be  correctly 
applied,  so  far  as  possible,  in  the  fol- 
lowing sections. 

1.  2  Bish.  on  M.,  D.,  &  S.  §§  810,  907, 
973;  Bird  V.  Bird,  i  Lee  572,  5  Eng. 
Ecc.  455;  Fitzgerald  v.  Fitzgerald,  i 
Lee  649,  5  Eng.  Ecc.  472;  Furst  v. 
Furst,  Poynter  on  M.  &  D.  260,  note; 
Davis  V.  Davis,  Poynter  on  M.  &  D. 
261,  note;  Weber  v.  Weber,  i  Swab.  & 
T.  219. 

The  term  costs,  as  used  in  England, 
seems  to  designate  sometimes  suit 
money,  sometimes  what  is  termed 
costs  with  us.     See  cases  supra. 

2.  2  Bish.  on  M.,  D.,  &  S.  §§  810-820; 
Stewart  on  M.  &  D.  §  39S. 

3.  Dorsey  v.  Goodenow,  Wright 
(Ohio)  120;  North  v.  North,  i  Barb. 
Ch.  (N.  Y.)  241,  43  Am.  Dec.  778; 
Tayman  v.  Tayman,  2  Md.  Ch.  393; 
Am.  &  Eng.  Ency.  Law,  tit.  Alimony. 

Bhode  Island. — But  suit  money  has 
been  refused  in  this  state,  there  being 
no  precedent  f  jr  an  application  of  the 
kind,  although  it  appears  that  tempo- 
rary alimony  would  be  allowable. 
Sanford  v.  Sanford,  2  R.  I.  64. 

A  statute  subsequently  gave  power 
to  award  suit  money.  Thayer  v. 
Thayer,  9  R.  I.  377. 

4.  D'Aguilar  v.  D'Aguilar,  i  Hagg. 
Ecc.  773,  3  Eng.  Ecc.  329;  Belcher  v. 
Belcher,  i  Curt.  Ecc.  444,  6  Eng.  Ecc. 
372;  Holmes  v.  Holmes,  2  Lee  90,  6 
Eng.  Ecc.  49;  Fitzgerald  v.  Fitzgerald, 


I   Lee  649,   5   Eng.    Ecc.  472;  Bird  v. 
Bird,  I  Lee  572,  5  Eng.  Ecc.  455. 

5.  Story  v.  Story,  Walk.  (Mich.)  421; 
Daiger  v.  Daiger,  2  Md.  Ch.  335;  Coles 
V.  Coles,  2  Md.  Ch.  341;  Tayman  v. 
Tayman,  2  Md.  Ch.  393;  Waldron  v. 
Waldron,  55  Pa.  St.  231;  Thompson  v. 
Thompson,  3  Head  (Tenn.)  527;  State 
V.  St.  Louis  Court,  88  Mo.  135;  Wes- 
terfield  v.  Westerfield,  36  N.  J.  Eq.  195; 
Powers'  Appeal,  120  Pa.  St.  320;  Wag- 
ner V.  Wagner,  36  Minn.  239;  Larkin 
V.  Larkin,  71  Cal.  330;  Collins  v.  Col- 
lins, 80  N.  Y.  i;  McCurley  v.  Mc- 
Curley,  60  Md.  185,  45  Am.  Rep. 
717  ;  Black  v.  Black,  5  Mont.  15  ; 
Dawson  v.  Dawson,  37  Mo.  App. 
207  ;  Wuest  V.  Wuest,  17  Nev.  217 ; 
Lake  v.  Lake,  17  Nev.  230;  Lake 
V.  Lake,  16  Nev.  367,  where  the  court 
said  :  "At  common  law  a  wife  desti- 
tute of  means  was  entitled  to  an  allow- 
ance sufficient  to  enable  her  to  defray 
the  expenses  in  the  suit.  The  power 
to  make  such  allowance  was  considered 
incident  to  divorce  suits,  and  the  allow- 
ance appears  to  have  been  made  as 
frequently  as  circumstances-required." 
Citing  Graves  v.  Cole,  19  Pa.  St.  173. 

6.  Conflicting  Decisions. — There  are  a 
few  cases  which  hold  that  an  allow- 
ance for  temporary  alimony  and  suit 
money  cannot  be  granted  without 
statutory  authority.  Wilson  v.  Wil- 
son, 2  Dev.  &  B.  (N.  Car.)  377;  Har- 
rington V.  Harrington,  10  Vt.  505; 
Hazen  v.  Hazen,  19  Vt.  603;  Shar)non 
V.  Shannon,  2  Gray  (Mass.)  285.  But 
legislation  has  in  nearly  all  such  cases 
subsequently  conferred  the  jurisdic- 
tion. 

Extension  of  Doctrine. — The  doctrine 
of  suit  money  has  sometimes  obtained 
in  suits  other  than  for  divorce,  as  in 


451 


Suit  Money,  Counsel  Fees, 


ALIMONY. 


and  Co8t», 


Of  What  it  Consists. — It  is  usually  a  sum  in  gross  designed  to  meet 
all  expenses,  usual  or  unusual,*  to  which  the  wife  may  be  put  in 
prosecuting  or  defending  the  suit,*  including  therein  the  fees  of 
witnesses,'  and  even  a  reasonable  amount  for  investigating  and 
acquiring  information  as  to  the  circumstances  of  the  case.* 

When  Made. — Like  temporary  alimony,*  this  allowance  will  only 
be  made  where  the  wife  is  in  need ;  ®  and  it  will  not  be  granted 
where  she  has  a  separate  estate/  at  least  until  that  is  exhausted,** 
the  husband  being  required  to  make  up  the  deficiency.* 

The  Entire  Object  is  to  do  justice  to  both  parties,  and  in  one  way  or 
another  to  adjust  expenses  and  costs  so  as  to  accomplish  this 
end.»» 

On  Final  Hearing. — And  where  allowances  for  suit  money  are  not 
made  pending  the  suit,**  they  may  be  allowed  on  final  hearing  and 
subsequently  taxed  in  the  bill  of  costs,**  generally  even  where  the 
wife  fails,*'  although  sometimes  in  such  case  they  will  not  be  aU 
lowed.** 


the  case  of  a  bill  filed  by  wife  to  en- 
force her  husband's  agreement  to  make 
a  marriage  settlement.  Wilson  v. 
Wilson,  I  Desaus.  Eq.  (S.  Car.) 
225. 

1.  So,  where  a  decree  was  reopened 
and  wife  allowed  to  defend,  it  appear- 
ing that  husband  had  induced  his  wife 
to  go  into  another  state  so  that  he 
might  obtain  a  divorce  in  her  absence, 
an  order  was  entered  requiring  him  to 
provide  the  expenses  of  her  return, 
though  the  order  was  required  to  con- 
tain provisions  against  diverting  the 
money  to  any  other  purpose.  Smith 
V.  Smith,  3  Oregon  363. 

2.  Cook  V.  Walton,  38  Ind.  228; 
Dorsey  v.  Goodenow,  Wright  (Ohio) 
120;  Smith  V.  Smith,  3  Oregon  363; 
Waldron  v.  Waldron,  55  Pa.  St.  231; 
Sumner  v.  Sumner,  54  Wis.  642. 

3.  Graves  v.  Cole,  19  Pa.  St.  171; 
Allen  V.  Allen,  2  Swab.  &  T.  107.  But 
see  Dent  z/.  Dent,  L.  R.  i  P.  &  M.  125. 

4.  Allen  v.  Allen,  2  Swab.  &  T.  iii. 
See  Sumner  v.  Sumner,  54  Wis. 
642. 

5.  Ante,  p.  421,  note  6. 

6.  Kenemer  t/.  Kenemer,  26  Ind.  330; 
Goad  V.  Coad,  40  Wis.  392;  Campbell 
V.  Campbell,  73  Iowa  482;  Tayman  v. 
Tayman,  2  Md.  Ch.  393. 

7.  Thompson  v.  Thompson,  3  Head 
(Tenn.)  527;  Westerfield  v.  Wester- 
field,  36  N.  J.  Eq.  195;  Maxwell  v. 
Maxwell,  28  Hun  (N.  Y.)  566;  Fyler  v. 
Fyler,  Deane  &  S.  175;  Daiger  v. 
Daiger,  2  Md.  Ch.  335;  Coles  v.  Coles, 
2  Md.  Ch.  341. 


8.  Porter  v.  Porter,  41  Miss.  116; 
Eaton  V.  Eaton,  L.  R.  2  P.  &  M.  51. 

9.  Belcher  v.  Belcher,  i  Curt.  Ecc. 
444,  6  Eng.  Ecc.  372;  Logan  v.  Logan, 
2  B.  Mon.  (Ky.)  142;  Collins  v.  Col- 
lins, 2  Paige  (N.  Y.)  9;  Rose  v.  Rose, 
II  Paige  (N.  Y.)  166. 

10.  Phillips  V.  Phillips,  27  Wis.  252; 
Weaver  v.  Weaver,  33  Ga.  172;  Kittle 
V.  Kittle,  8  Daly  (N.  Y.)  72;  Clark  v. 
Clark,  4  Swab.  &  T.  iii;  Nicholson 
V.  Nicholson,  3  Swab.  &  T.  214;  Pow- 
ell V.  Powell,  L.  R.  3  P.  &  M.  186; 
Ling  V.  Ling,  i  Swab.  &  T.  180;  Milne 
V.  Milne,  L.  R.  2  P.  &  M.  202;  Whit- 
more  V.  Whitmore,  L.  R.  i  P.  &  M. 
96;  Dent  V.  Dent,  L.  R.  i  P.  &  M.  125; 
Carstairs  v.  Carstairs,  3  Swab.  &  T. 
538;  Heal  V.  Heal,  L.  R.  i  P.  &  M. 
300. 

11.  Weber  v.  Weber,  i  Swab.  &  T. 
219. 

12.  Griffin  v.  Griffin,  47  N.  Y.  134; 
Williams  v.  Monroe,  18  B.  Mon.  (Ky.) 
514;  Ricketts  v.  Rickel^ts,  4  Gill  (Md.) 
105;  Ellaytt  V.  Ellaytt,  3  Swab.  &  T. 
504;  Hall  V.  Hall,  3  Swab.  &  T.  390. 

13.  Post,   p.  456,  note  I. 

14.  Fyler  v.  Fyler,  Deane  &  S.  175; 
Keats  V.  Keats,  i  Swab.  &  T.  334; 
Heal  V.  Heal,  L.  R.  i  P.  &  M.  300. 
And  it  was  held  in  Wagner  v.  Wagner, 
34  Minn.  441,  that  no  counsel  fees  or 
expenses  could  be  granted  to  wife 
after  termination  of  the  suit  by  judg- 
ment against  her  on  the  merits,  even 
though  there  were  an  agreement  that 
this  question  should  be  heard  and  de- 
termined after  judgment. 


452 


Salt  Honey,  Coansel  Fees, 


ALIMONY. 


and  Costs. 


Discretion  of  Court. — But  the  whole  matter  is  within  the  discretion 
of  the  court,  which  will  not  be  reviewed  unless  an  abuse  thereof 
is  shown.* 

3.  Counsel  Fees. — Since  a  wife  can  neither  bind  herself  nor  her 
husband  to  pay  for  her  legal  assistance,'^  she  would,  unless  she 
had  means  of  her  own,  be  utterly  unable  to  prosecute  or  defend 
her  rights  in  a  divorce  suit  without  the  assistance  of  the  court. 
Of  necessity,  therefore,  the  court  will  award  her  a  suitable  sum  to 
enable  her  to  employ  counsel.'  This  is  granted  on  her  applica- 
tion,* generally  at  the  time  of  awarding  temporary  alimony,* 
although  it  may  be  done  on  final  decree,  in  which  case  the  allow- 
ance is  more  in  the  nature  of  costs,  and  is  usually  taxed  there- 
with.® 


I 


1.  Campbell  v.  Campbell,  73  Iowa 
482;  Sharon  v.  Sharon,  75  Cal.  i; 
Small  V.  Small,  42  Iowa  in;  Harrison 
V.  Harrison,  49  Mich.  240;  Sumner  v. 
Sumner,  54  Miss.  642.  But  see  Call  v. 
Call,  65  Me.  407. 

To  Whom  Suit  Money  Paid. — Suit 
money  must  be  directed  to  be  paid  to 
the  wife  alone;  the  court  has  no  power 
to  order  it  paid  to  her  attorneys. 
Sharon  v.  Sharon,  75  Cal.  i;  Parker  v. 
Parker  (Miss.,  1893),  14  So.  Rep.  459. 

Various  Doctrines  of  minor  impor- 
tance obtain  with  regard  to  suit  money, 
but  they  have  been  discussed  in  con- 
nection with  temporary  alimony  under 
their  proper  headings,  such  as  Juris- 
diction, Pleadings,  Appeals,  etc.,  to 
which  reference  must  be  made. 

2.  Am.  &  Eng.  Ency.  Law,  tit.  Ali- 
mony. 

3.  Waldron  v.  Waldron,  55  Pa.  St. 
231. 

4.  Creamer  v.  Creamer,  36  Ga.  618; 
Tayman  v.  Tayman,  2  Md.  Ch.  393; 
Mercer  v.  Mercer  (Supreme  Ct.)  25 
N.  Y.  Supp.  867.- 

In  Illinois  the  application  may  be 
made  by  counsel.  McCuUoch  v.  Mur- 
phy, 45  111.  256. 

5.  Cooke  V.  Newell,  40  Conn.  596; 
Sprayberry  v.  Merk,  30  Ga.  81,  76  Am. 
Dec.  637;  Glenn  v.  Hill,  50  Ga.  94; 
Dow  V.  Eyster,  79  111.  254;  Petrie  v. 
People,  40  111.  334;  Ray  v.  Adden,  50 
N.  H.  82,  9  Am.  Rep.  175;  Dorsey  v. 
<joodenow,  Wright  (Ohio)  120;  Sum- 
ner V.  Sumner,  54  Wis.  642. 

Where  the  order  allowing  temporary 
alimony  is  silent  on  the  point,  it  will 
be  presumed  that  an  allowance  for 
counsel  fees  was  included  in  the 
amount.  Bauman  v.  Bauman,  18  Ark. 
320,  68  Am.  Dec.  171.  See  Waters  v. 
Waters,  49  Mo.  385. 


To  Whom  Paid. — But  the  allowance 
should  be  directed  to  be  paid  to  wife, 
not  counsel.  Parker  v.  Parker  (Miss., 
1893),  14  So.  Rep.  459;  Sharon  v. 
Sharon,  75  Cal.  i;  Tayman  v.  Tayman, 
2  Md.  Ch.  393.  And  the  court  has  no 
authority  to  decree  to  counsel  a  tract 
of  land  in  payment  of  his  counsel  fees. 
Firman  v.  Firman,  109  111.  63. 

6.  Williams  v.  Monroe,  18  B.  Mon. 
(Ky.)  514;  Thorndike  v.  Thorndike, 
I  Wash.  Ter.  175;  Ricketts  v.  Ricketts, 
4  Gill  (Md.)  105;  Graves  v.  Graves,  2 
Paige  (N.  Y.)  62.  Lowell  v.  Lowell,  55 
Cal.  316;  Meyar  z/.  Meyar,  3  Mete.  (Ky.) 
298;  Weaver  v.  Weaver,  33  Ga.  172; 
Harrell  v.  Harrell,  39  Ind.  185;  Dugan 
V.  Dugan,  i  Duv.  (Ky.)  289.  See 
Thompson  v.  Thompson,  3  Head 
(Tenn.)  527;  Waters  v.  Waters,  49  Mo. 
385.  Contra,  Mercer  v.  Mercer  (Su- 
preme Ct.),  25  N.  Y.  Supp.  867. 

Dismissal  of  Divorce  Suit  During  Va- 
cation.— Notwithstanding  a  dismissal 
of  a  suit  for  divorce  by  the  plaintiff  in 
person  during  vacation,  under  Ind. 
Rev.  Sts.  1881,  §  334,  the  court  re- 
tains a  general  power  over  the  case 
until  final  judgment  sufficient  to  com- 
pel the  husband  to  pay  the  wife's  at- 
torney's fees.  Courtney  v.  Courtney 
(Ind.  App.),  30  N.  E.  Rep.  914. 

New  York. — But  it  seems  that  in  this 
state  an  allowance  for  counsel  fees 
and  expenses  cannot  be  made  on  final 
judgment — certainly  not  for  past  ex- 
penses. Beadleston  v.  Beadleston,  103 
N.  Y.  402;  Straus  v.  Straus,  67  Hun 
(N.  Y.)  491;  McCarthy  v.  McCarthy, 
137  N.  Y.  500;  Pountney  v.  Pountney 
(Supreme  Ct.),   10  N.  Y.  Supp.  192. 

So  an  allowance  for  past  services  of 
counsel  will  not  be  granted,  although 
it  is  shown  that  counsel  are  unwilling 
to  act  further  without  it,  as  such  state- 


453 


Suit  Money,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


The  Amount  allowed  should  be  reasonable,*  depending  somewhat 
on  the  wealth  of  the  husband,*  the  character  of  the  services  to  be 
performed, 3  and  the  practice  of  the  court.* 

The  Number  of  Attorneys  permitted  will  depend  on  the  character  of 
the  case^  and  the  practice  of  the  court;®  the  wife  not  having 
power  to  employ  as  many  as  she  pleases  and  make  the  husband 
pay  for  them,'' 

No  Proof  is  Necessary  to  help  the  court  fix  the  amount  of  counsel 
fees.® 

When  Allowance  Refused. — The  allowance  will  not  be  made  where 
the  woman  admits  her  guilt,®  where  the  bill  is  not  good  upon  its 
face,**  or  where  her  counsel  are  faithfully  acting  on  a  contingent 
fee.** 


ment  does  not  show  that  payment  is 
necessary  in  order  that  plaintiff  may 
further  maintain  and  prosecute  her 
rights.  Emerson  v.  Emerson  (Su- 
preme Ct.),  26  N.  Y.  Supp.  292.  But 
see  McBridez/.  McBride,  53  Hun  (N.Y.) 
448. 

1.  Parker  v.  Parker  (Miss.,  1893),  14 
So.  Rep.  459;  Baldwin  v.  Baldwin,  6 
Gray  (Mass.)  341;  Dugan  v.  Dugan.  i 
Duv.  (Ky.)289;  Blake  v.  Blake,  70  111. 
628;  Chaffee  v.  Chaffee,  14  Mich.  463; 
Graves  v.  Graves,  2  Paige  (N.  Y.)  62; 
Jeter  v.  Jeter,  36  Ala.  391;  Sharon  v. 
Sharon,  75  Cal.  i. 

2.  Blair  v.  Blair,  74  Iowa  311.  But 
the  court  may  base  its  allowance 
solely  on  the  husband's  ability  to  earn 
money.     Peyre  v.  Peyre,  79  Cal.  336. 

3.  Blair  v.  Blair,  74  Iowa  311;  Bald- 
win V.  Baldwin,  6  Gray  (Mass.)  341; 
Williams  v.  Williams,  29  Wis.  517; 
Jeter  v.  Jeter,  36  Ala.  391;  Collins  v. 
Collins,  29  Ga.  517,  where,  the  wife 
having  been  charged  with  adultery, 
the  court  said:  "As  nothing  can  be 
dearer  to  a  lady  than  her  character  for 
chastity,  so  nothing  could  justify 
greater  expense  in  its  defense." 

4.  Sopwith  V.  Sopwith,  2  Swab.  & 
T.  105;  Pearson  v.  Darrington,  32  Ala. 
227;  Lowell  V.  Lowell,  55  Cal.  316; 
Collins  V.  Collins,  29  Ga.  517;  Weaver 
V.  Weaver,  33  Ga.  172;  Blake  v.  Blake, 
70  111.  618;  Meyar  v,  Meyar,  3  Mete. 
(Ky.)  298;  Dugan  v.  Dugan,  i  Duv. 
(Ky.)  289;  Prescott  v.  Prescott,  59  Me. 
146;  Chaffee  v.  Chaffee,  14  Mich.  463; 
Waters  v.  Waters,  49  Mo.  385;  De 
Llamosas  v.  De  Llamosas,  62  N.  Y. 
618;  Thompson  v.  Thompson,  3  Head 
(Tenn.)  527;  Williams  v.  Williams,  29 
Wis.  517;  Coffin  v.  Dunham,  8  Cush. 
(Mass.)  404,  54  Am.  Dec.  769. 


5.  Blake  z/.  Blake,  70  111.  618. 

6.  Money  v.  Money,  i  Spinks  117; 
Suggate  V.  Suggate,  i  Swab  &  T.  497. 

7.  Dugan  v.  Dugan,  i  Duv.  (Ky.) 
289;  Sharon  v.  Sharon,  75  Cal.  i;  Wil- 
liams V.  Williams,  29  Wis.  517.  So 
two  counsel  will  not  be  allowed  for 
unless  it  is  affirmatively  shown  that 
both  are  necessary;  but  where  they 
have  been  already  paid  the  court  will 
not  direct  a  restitution  of  the  money, 
nor  order  the  same  applied  to  their 
future  services.  Uhlman  v.  Uhlman, 
51  N.  Y.  Super.  Ct.  361. 

8.  Peyre  v.  Peyre,  79  Cal.  336;  De 
Llamosas  v.  De  Llamosas,  62  N.  Y. 
618.  But  see  Jeter  v.  Jeter,  36  Ala. 
391;  Blair  v.  Blair,  74  Iowa  311. 

Where  a  decree  dissolving  marriage 
adjudged  the  wife  $1500  alimony,  upon 
which  counsel  filed  lien  for  their  fees, 
the  court  has  power  to  summon  the 
attorneys  to  determine  what  lien  they 
may  have  and  what  would  be  a  reason- 
able fee  for  their  services.  State  z>. 
Sachs,  3  Wash.  371. 

9.  Newman  v.  Newman,  69  111,  167. 

10.  Phelan  v.  Phelan,  12  Fla.  449.  So 
they  will  not  be  granted  to  a  plain- 
tiff who,  five  years  after  she  has 
procured  a  divorce  in  another  state, 
brings  another  suit  against  the  same 
person,  alleging  that  the  former  di- 
vorce is  void.  Ober  v.  Ober  (Supreme 
Ct.),  7  N.  Y.  Supp.  843. 

But  the  wife  need  not  establish  that 
she  is  entitled  to  a  divorce.  If  she 
shows  probable  grounds  and  her  own 
need,  that  is  all  that  is  necessary. 
Jenkins  v.  Jenkins,  91  111.  167;  De 
Llamosas  v.  De  Llamosas,  62  N.  Y. 
618. 

11.  Sharon  v.  Sharon,  75  Cal.  i.  But 
the  fact  that  one  of  the  wife's  attor- 


454 


Suit  Uoney,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


Discretion  of  Court. — Counsel  fees,  like  temporary  alimony  and 
suit  money,  are  largely  within  the  discretion  of  the  trial  court, 
and  are  not  reviewable  unless  this  discretion  is  abused.* 

On  Appeal. — They  are  allowable  on  appeal  by  the  trial,*  or  by 
the  appellate  court ;  ^  and  may  be  granted  to  enable  a  wife  to 
resist  a  motion  to  reduce  alimony.* 

statutes. — This  allowance  is  grantable  without  statutory  aid,* 
but  statutes  generally  provide  for  it.® 

4.  Costs. — Costs  in  the  ordinary  American  sense  were  unknown 
to  the  common  law.''  They  are  entirely  statutory  in  origin,  and 
are  given  to  the  prevailing  party  in  a  common-law  suit,  and  gen- 
erally also  in  an  equity  suit,  in  reimbursement  to  him  of  certain 
ordinary  and  necessary  expenses.  This  is  so  also  in  the  divorce 
suit,  wherein  costs,  in  the  American  sense,  may  be  given  to  the 
prevailing  party.** 

Costs  Against  Wife. — Costs  are  usually  taxed  against  the  husband,* 


neys  has  an  arrangement  for  a  con- 
tingent fee  does  not  prevent  an  allow- 
ance by  the  court  for  the  others. 
White  V.  White,  86  Cal.  216. 

1.  White  z/.  White,  86  Cal.  212;  Still- 
man  V.  Stillman,  99  111.  196,  39  Am. 
Rep.  21;  Sharon  v.  Sharon,  75  Cal.  i; 
Van  Wormer  v.  Van  Wormer,  57  Hun 
(N.  Y.)  496;  Ex  p.  Winter,  70  Cal.  291; 
Thorndike  v.  Thorndike,  i  Wash.  Ter. 
175;  Traylor  v.  Richardson,  2  Ind. 
App.  452;  Jenkins  v.  Jenkins,  91  111. 
167.  See  Jeter  z'.  Jeter,  36  Ala.  391; 
De  Llamosas  v.  De  Llamosas,  62  N.  Y. 
618. 

2.  Shy  J/.  Shy,  7Heisk.  (Tenn.)  125; 
Larkin  v.  Larkin,  71  Cal.  330;  Ex  p. 
Winter,  70  Cal.  291. 

3.  Blair  v.  Blair,  74  Iowa  311. 

4.  Stillman  v.  Stillman,  99  111.  196, 
39  Am.  Rep.  21. 

5.  McGee  v.  McGee,  10  Ga.  477; 
Petrie  v.  People,  40  111.  334;  the  prin- 
ciple being  the  same  that  governs  the 
grant  of  temporary  alimony  or  suit- 
money,  viz.:  that  the  allowance  is  in- 
cident to  divorce  and  part  of  the  com- 
mon-law jurisdiction.  Dow  v.  Eyster, 
79  111.  254- 

6.  Jenkins  v.  Jenkins,  91  111.  167. 

7.  Am.  &  Eng.  Ency.  of  Law,  tit. 
Costs;  Turnham  v.  Shouse,  8  Dana 
(Ky.)  3,  33  Am.  Dec.  473;  State  v. 
Kinne,  41  N.  H.  238;  Hart  v.  Skin- 
ner, 16  Vt.  138,  42  Am.  Dec.  500. 

In  the  ecclesiastical  practice  the 
word  was  used  to  designate  suit 
money.  It  seems  also  to  have  been 
used  to  designate  costs  in  the  proper 
sense.     Symons  v.  Symons,  2  Swab.  & 


T.  435;  Kaye  v.  Kaye,  4  Swab.  &  T. 
239;  Beavan  v.  Beavan,  2  Swab.  &  T. 
652;  Ellayatt  v.  Ellaytt,  3  Swab.  &  T. 
504. 

8.  Williamson  v.  Williamson,  i 
Johns.  Ch.  (N.  Y.)  488;  Black  v.  Black, 
5  Mont.  15;  Thornberry  v.  Thornberry, 
2  J.  J.  Marsh.  (Ky.)  322;  Graves  v. 
Graves,  2  Paige  (N.  Y.)  62;  Germond 
V.  Germond,  i  Paige  (N.  Y.)  83; 
Stevens  v.  Stevens,  i  Met.  (Mass.)  279; 
Thorndike  v.  Thorndike,  i  Wash.  Ter. 
175;  Kendall  v.  Kendall,  i  Barb.  Ch. 
(N.  Y.)  610;  Robinson  v.  Robinson, 
79  Cal.  511. 

But  the  word  "costs,"  even  in  this 
country,  is  often  inaccurately  used, 
and  is  sometimes  intended  to  include 
both  counsel  fees  and  suit  money, 
which  are  frequently  allowed  on  final 
decree.  Stewart  on  M.  &  D.  §  398; 
Dugan  V.  Dugan,  i  Duv.  (Ky.)  289, 
where  it  was  held  that  the  word 
"costs,"  as  used  in  the  statute,  in- 
cluded compensation  to  counsel.  See 
also  Kendall  v.  Kendall,  i  Barb.  Ch. 
(N.  Y.)  610;  Germond  v.  Germond,  i 
Paige  (N.  Y.)  83;  Meyar  v.  Meyar,  3 
Mete.  (Ky.)  298;  White  v.  White  (Cal., 
1893),  33  Pac.  Rep.  399.  But  compare 
Prescott  V.  Prescott,  59  Me.  146. 

9.  Word  V.  Word,  29  Ga.  281,  where 
it  was  said:  "The  common  law  puts 
alimony,  fees  to  the  wife's  counsel, 
and  costs  all  on  the  same  footing,  and 
makes  the  question  who  is  to  pay 
them  depend  on  the  ability  to  pay 
them  of  the  parties  respectively.  As, 
however,  marriage  bestows  the  wife's 
property   on  the   husband   in  the  ab- 


455 


Suit  Honey,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


even  where  he  prevails,"  unless  the  wife  has  a  separate  estate,* 
or  sues  by  next  friend.' 

Discretion  of  Court.— But  costs  are  largely  within  the  discretion  of 
the  court,  and  are  given  to  or  withheld  from  the  wife  or  divided 
between  the  parties  as  circumstances  may  require,'*  though  they 


seiice  of  a  marriage  contract,  the  pre- 
sumption prima  facie  is  that  the  hus- 
band is  the  only  party  able  to  pay 
Ihem,  and  consequently  the  husband 
is  prima  facie  liable  to  pay  them.  This 
he  may  rebut  by  showing  that  the 
wife  is  able  to  them." 

Increase  of  Alimony. — Where  the  wife 
applies  for  an  increase  of  alimony 
and  obtains  it,  she  may  have  her 
costs  in  that  proceeding.  Bursler  v. 
Bursler,  5  Pick.  (Mass.)  427. 

1.  Richardson  v.  Richardson,  4  Port. 
(Ala.)  467,  30  Am.  Dec.  538;  DeRose  v. 
DeRose,  Hopk.  (N.  Y.)  100;  Finley  v. 
Finley,  9  Dana  (Ky.)  52;  Wood  v. 
Wood,  2  Paige  (N.  Y.)  454;  Reavis  v. 
Reavis,  2  111.  242;  Thatcher  v.  Thatch- 
er, 17  111.  66;  Sumner  v.  Sumner,  54 
Wis.  642;  Newton  v.  Newton,  L.  R.  11 
P.  D.  11;  McKay  v.  McKay,  6  Grant's 
Ch.  (U.  C.)  380.  Contra,  Keats  v. 
Keats,  I  Swab.  &  T.  334. 

Yet  the  husband  will  not  be  com- 
pelled to  pay  the  wife's  costs  where 
she  is  plainly  in  fault,  Dugan  v.  Du- 
gan,  I  Duv.  (Ky.)  289;  Meyar  v.  Meyar, 
3  Mete.  (Ky.)  298;  or  where  it  appears 
on  the  face  of  the  bill  that  it  is  im- 
properly filed,  Wood  V.  Wood,  2 
Paige  (N.  Y.)  454.  See  also  Shoop's 
Appeal,  34  Pa.  St.  233;  De  Camp  v. 
De  Camp,  2  N.  J.  Eq.  294;  Warren  v. 
Clemence,  44  Conn.  308;  Nikirk  v. 
Nikirk,  3  Mete.  (Ky.)  432;  Dugan  v. 
Dugan,  I  Duv.  (Ky.)  289;  Errissman 
V.  Errissman,  25  111.  136;  Whipp  v. 
Whipp,  54  N.  H.  580;  Miller  v.  Miller, 
L.  R.  2  P.  &  M.  13;  Eldred  v.  Eldred, 
2  Curt.  Ecc.  376. 

Where  Probable  Cause. — But  they  may 
be  allowed  where  there  was  probable 
cause  for  instituting  the  suit.  Rich- 
ardson V.  Richardson,  4  Port.  (Ala.) 
467,  30  Am.  Dec.  538.  So  where  an 
injunction  that  had  been  granted  was 
dissolved,  costs  were  allowed  the  wife 
on  the  ground  of  the  reasonableness 
of  the  application.  Newton  v.  New- 
ton, L.  R.  II  P.  D.  II. 

2.  Balkum  v.  Kellum,  83  Ala.  449; 
Dugan  V.  Dugan,  i  Duv.  (Ky.)  289; 
Meyar  v.  Meyar,  3  Mete.  (Ky.)  298; 
Fyler  v.   Fyler,  Deane  &   S.   175.     Of 


which  there  must  be  evidence.    Wood 
V.  Wood,  2  Paige  (N.  Y.)  454. 

3.  Jones  v.  Fawcett,  2  Ph.  278; 
Mosser  z*.  Mosser,  29  Ala.  313;  Corne- 
lius V.  Cornelius,  31  Ala.  479;  Hughes 
V.  Hughes,  44  Ala.  698;  Gray  v.  Gray, 
15  Ala.  779;  Ward  v.  Ward,  2  Dev.  Eq. 
(N.  Car.)553;  Balkumw.  Kellum, 83  Ala. 
449;  Rose  V,  Rose,  11  Paige  (N.  Y.) 
166;  Lawrence  v.  Lawrence,  3  Paige 
(N.  Y.)  267;  Jones  v.  Jones,  2  Barb. 
Ch.  (N.  Y.)  146;  Richardson  v.  Rich- 
ardson, 4  Port.  (Ala.)  467,  30  Am.  Dec. 
538.  See  also  Worden  v.  Worden,  3 
Edw.  Ch.  (N.  Y.)  387. 

Where  Next  Friend  Insolvent — The 
court  can  stay  proceedings  until  se- 
curity is  given  or  a  responsible  person 
is  substituted,  and  if  this  is  not  done 
within  a  reasonable  time  the  bill  will 
be  dismissed.  Lawrence  v.  Lawrence, 
3  Paige  (N.  Y.)  267.  But  see  Jones  v. 
Fawcett,  2  Ph.  278;  Dowden  v.  Hook, 
3  Beav.  399.  And  the  wife's  applica- 
tion to  change  her  next  friend  will  not 
be  granted  if  there  is  reason  to  believe 
that  the  husband's  security  for  costs 
will  thereby  be  diminished.  Jones  v. 
Fawcett,  2  Ph.  278.  See  Ward  v. 
Ward,  2  Dev.  Eq.  (N.  Car.)  553. 

Intruder  Taxed  with  Costs. — Where 
one,  not  a  party  to  the  suit,  intru- 
sively petitions  the  court  to  set  aside 
a  decree  of  divorce  on  the  ground  of 
fraud,  he  may  be  charged  with  the 
proper  costs,  Simmons  v.  Simmons, 
32  Hun  (N.  Y.)  551;  and  even  ex- 
penses and  counsel  fees,  Black  v. 
Black,  5  Mont.  15. 

But  Legal  Discretion. — Though  it  is 
said  to  be  a  legal  discretion  to  be  exer- 
cised in  accordance  with  general  rules 
and  former  precedents.  Gray  v.  Gray, 
15  Ala.  779;  and  will  be  reversed  in  a 
clear  case  of  abuse,  Dickerson  v.  Dick- 
erson,  26  Neb.  318.  But  see  contra, 
Prescott  V.  Prescott,  59  Me.  146. 

4.  Dickerson  v.  Dickerson,  26  Neb. 
318;  Jones  V.  Jones,  L.  R.  2  P.  &  M. 
333;  Prescott  V.  Prescott,  39  Me.  146; 
Firman  v.  Firman,  109  111.  63;  Black 
V.  Black,  5  Mont.  15;  Wilson  v.  Wil- 
son, I  Desaus.  Eq.  (S.  Car.)  225;  Gray 
V.  Gray,  15  Ala.  779;  Mosser  v.  MoS' 


4.«;6 


Suit  Money,  Counsel  Fees, 


ALIMONY. 


and  Costs. 


cannot  be  awarded  against  the  wife's  solicitor,*  and  it  seems  that 
the  costs  of  the  husband  cannot  in  any  case  be  awarded  against 
the  wife.* 

Motion  and  Decree.— A  motion  for  costs  may  be  made  after  the 
decree  of  divorce  and  alimony.'  Costs  may  be  collected  by 
proceedings  for  contempt.* 


ser,  29  Ala.  313;  Cornelius  v.  Cor- 
nelius, 31  Ala.  479;  Hughes  v.  Hughes, 
44  Ala.  698;  Soper  v.  Soper,  29  Mich. 
305;  Cox  V.  Cox,  35  Mich.  461;  Lap- 
ham  V.  Lapham,  40  Mich.  527;  Welch 
V.  Welch,  33  Wis.  534;  Word  v.  Word, 
29  Ga.  281;  Eckhar'd  v.  Eckhard,  29 
Neb.  457;  Beadleston  v.  Beadleston, 
(Supreme  Ct.)  2  N.  Y.  Supp.  809; 
Whitmore  v.  Whitmore,  49  Mich.  417. 

1.  Wood  V.  Wood,  2  Paige  (N.  Y.) 

454- 

2.  Richardson  v.  Richardson,  4 
Port.  (Ala.)  467,  30  Am.  Dec.  538, 
where  the  court  said:  "It  was  mani- 
festly improper  to  render  any  decree 
against  her  for  costs  in  a  suit   prose- 


cuted against  her  husband,  under  any 
circumstances." 

3.  Melizet  v.  Melizet,  i  Pars.  Eq. 
Cas.  (Pa.)  68.  But  a  rule  of  court 
requiring  a  petitioner  to  pay  costs  be- 
fore entry  of  the  decree  is  unauthor- 
ized and  void.  State  v.  Bates,  5  Ohio 
Cir.  Ct.  Rep.  18. 

4.  Only  it  seems,  however,  if  it  ap- 
pears that  payment  cannot  be  enforced 
by  means  of  the  security  given,  or  by 
sequestration  or  execution.  Cocke- 
fair  V.  Cockefair,  23  Abb.  N.  Cas.  (N. 
Y.  C.  PI.)  219.  And  the  husband,  by 
attachment,  may  be  made  to  give  se- 
curity for  his  wife's  costs.  Hepworth 
V.  Hepworth,  2  Swab.  &  T.  414. 


457 


ALLOCUTION. 

See  SENTENCE. 


ALTERNATIVE    PLEADINGS. 

See  DEFINITENESS  AND  CERTAINTY  IN  PLEADINGS. 


AMBIGUITY    IN    PLEADINGS. 

See  DEFINITENESS  AND  CERTAINTY  IN  PLEADINGS. 


AMENDMENTS. 

By  Charles  C.  Moore. 

I.  Definition,  462. 
II.  Of  Pleadings  and  Pkoceedings  in  Equity,  463. 

1 .  The  Carditial  Rule,  463 

a.  Amendments  Discretionary,  463, 

b.  Review  of  Exercise  of  Discretion,  464. 

2.  Of  Bills,  466. 

a.  In  Respect  of  Parties,  466. 

b.  In  Respect  of  Matter,  468. 

(i)  In  General,  468. 

(2)  Matter  Occurring  Pending  Suit,  471, 

(3)  Jurisdictional  Averments,  472, 

(4)  Makim;  a  New  Case,  472. 

{a)   The  Rule  Stated,  472 

{b)   Tests,  473. 

ic)  Objection,  How  Taken,  476. 

(5)  Inconsistent  or  Repugnant  Amendtnettts,  476^ 

(6)  Of  Sworn  Bills,  478. 

C.  At  What  Stage  of  Proceedings,  ^jZ. 
(i)  Before  Issue,  478. 

(2)  After  Demurrer,  479. 

(3)  After  Plea,  ^Z\. 

(4)  After  Replication,  482. 

(5)  After  Witnesses  Examined,  482. 

(6)  After  Reference  or  Master  s  Report,  4U3. 

(7)  At  the  Hearing,  484, 

(8)  After  Decree,  487. 

(9)  In  Appellate  Court,  488. 

45« 


AMENDMENTS. 

(10)  Remand  with  Leave  to  Amend,  488. 

(11)  After  Remand  from  Appellate  Court,  489. 
d.  JEffect  of  Amendtnent,  490. 

(i)  Right  of  Defendant  to  Plead  Anew,  490. 

(2)  Retroactive  Effect,  491. 

(3)  Without  Prejudice  to  Injunction,  493. 

(4)  Waiver  of  Default,  493. 

(5)  Obviating  Multifariousness,  494. 

(6)  New  Process  upon  Amendment,  494. 

3.  Of  Demurrers,  494. 

4.  Of  Pleas,  495. 

5.  Of  Replications,  495. 

6.  Of  Answers,  495. 

a.  In  General,  495. 

<^.  Facts  Occurring  Subsequent  to  Answer,  499. 

c.  Making  a  New  Defense,  499. 

d.  Unconscionable  Defenses,  499. 

e.  At  and  After  Hearing,  500. 

7.  Of  Master's  Report,  501. 

8.  Of  Process,  501. 

9.  Leave  to  Amend,  502. 

«.    When  Necessary,  502. 

^.  Applicatiofi,  503. 
10.  ^icw  Amendments  are  Made,  504. 

a.  Of  Bills,  504. 

^.  (?/■  Answers,  505. 
ir.   Terms,  506. 

in.  Of  Pleadings  and  Proceedings  at  Common  Law  and  Undek 
Codes  and  Statutes,  508. 

1.  Paiuer  to  Amend,  508. 

a.  Inherent,  508, 

^.  Something  to  Amend  or  Amend  by,  509, 

c.  Relation  between  Federal  and  State  Practice,  510. 

d.  Amendment  of  Jurisdictional  Averments,  511. 

2.  Amendments  by  Referee,  5 1 3. 

a.  Power  Wholly  Statutory,  513. 

^.  Code  Provisions,  ^\% 

c.    The  Power  Concurrent,  514. 

^.  New  Cause  of  Action,  514. 

^.  A'^  Defense,  514. 

y.    7<;  Conform  to  Proof,  515. 

^.  Power  to  Impose  Tertns,  515. 

^.  Review  of  Referee's  Ruling,  515. 

3.  In  Furtherance  of  Justice,  515. 

a.  Principle  Pervades  all  Amendments,  5 1 5. 

b.  Amendtnent s  Favored,  516. 

£■.    The  Defettdant  Favored,  518 

</.  Amendments  Barred  by  Limitatiofi,  518. 

^.  "  Further  Amendtnents,"  519. 

y.  Amendment  of  Plea  in  Abatement,  519. 

^.   Unconscionable  Defenses,  520. 

^,  Laches  of  Applicant,  522. 

/.   Immaterial,    Unnecessary,  or  Unavailing  Amendments^ 

523. 

4.  Amendments  Discretionary,  524. 

a.  Review  of  Discretion;  ^2^. 
(1)  (9«  What  Grounds,  524. 

459 


AMENDMENTS. 

(2)  For  Want  of  Power,  531. 

(3)  Presumptions  in  Favor  of  Trial  Court,  532. 

(4)  Harmless  Error,  533. 

(5)  Objectiofi  and  Exception,  533. 

(6)  Method  of  Review,  534. 

5.  In  Respect  of  Parties,  535. 

a.  Misnomer,  535. 

b.  Misdescription  of  Plai7iiiffs — Changing  Nominal  Plain- 

tiffs 537. 

c.  Misdescriptto7i    of    Defendant  —  Changing   Nominal 

Defendant,  540. 

d.  Addifig  Plaifitiffs,  541. 

e.  Adding  Defendants,  542. 

f.  Striking  Out  Plaintiff's,  543. 

g.  Striking  Out  Defendants,  544. 
//.  Entire  Change  of  Parties,  545. 

6.  Introducing  a  New  Cause  of  Action  or  Defense,  547. 

a.  Prevalence  and  Extent  of  the  Rule  Forbidding,  547. 

b.  General  Tests,  556. 

c.  What  Atneftd?nents  are  Allowed,  557. 

(1)  Amplified  Statements,  557. 

(2)  Correcting  Misdescriptions,  558. 

(3)  Making  Allegations  more  Formal  or  Precise,  560. 

(4)  Saine  Allegations  in  Different  Forfn,  562. 

(5)  In  Actions  for  Negligence,  563. 

(6)  In  Actions  for  Slander,  563. 

(7)  Suimnary  Statement  of  the  Rule,  564. 

d.  what  Amendments  are  not  Allowed,  567, 

(i)   Changing  Contract  to  Tort  and  Vice  Versa,  567. 

(2)  Changing  Legal  to  Equitable  Action  and  Vice  Versa, 

568. 

(3)  Changing  Common  -  law  Action  to  Statutory  and 

Vice  Versa,  569. 

(4)  Libel,  Slander,  Malicious  Prosecution,  False  Impris- 

onment,  etc.,  570. 

e.  Objection  How  Taken,  571. 

f.  Waiver  of  Objection,  573. 

g.  Method  of  Determining  the  Question,  574. 
h.  Review  of  Decision  of  Trial  fudge,  574. 

7.  Changing  the  Form  of  Action,  574. 

8.  Matter  Arising  Pendente  Lite,  576. 

9.  To  Obviate  a  Variatice  or  Conform  to  Proof,  577. 

a.  To  Obviate  a  Variance,  577. 

b.  To  Conform  to  Proof,  578. 

( 1 )  The  Rule  Stated — Power  How  Derived,  578. 

(2)  At  What  Stage  of  Proceedi?7gs.  581. 

(3)  Confined  to  Original  Cause  of  Action,  583. 

(4)  Only  in  Furtherance  of  fust  ice,  584. 

(5)  Where  the  Evidence  was  Objected  to,  585. 

(6)  Failure  of  Proof,  586. 

10.  Ameftdme?it  of  the  Ad  Damnum,  586. 

a.  Not  a  New  Cause  of  Action,  586. 

b.  Before  Trial,  587. 

c.  On  the  Trial,  588. 

d.  After  Verdict  or  Referee  s  Report,  589. 

e.  After  Judgment,  590, 

11.  At  What  Stage  of  Proceedings,  590. 

a.  Before  Trial,  591. 
(i)  1)1  General,  590. 

460  ' 


AMENDMENTS. 


\ 


(2)  After  Demurrer,  591. 

(3)  After  Issue  foined,  596. 

(4)  Before  Afittoiinctng  Ready  for  Trial,  597. 

(5)  On  the  Eve  of  Trial,  598. 

b.  On  the  Trial,  598. 

(1)  In  General,  598. 

(2)  At  What  Stage  of  the  Trial,  602. 

c.  After  Report  of  Referee,  603. 

d.  After  Verdict,  604. 

e.  After  Judgment,  605. 

f.  In  Appellate  Courts,  607. 
(i)    Where  the  Cause  is  Tried  upon  the  Record,  607^ 
(2)    Where  the  Trial  is  De  Novo,  611. 

g.  Remand  with  Directions  to  Amend,  617. 
h.  After  Remand,  618. 

(i)    Where  Remand  is  General,  618. 

(2)    Where  Remand  is  Limited,  620. 

12.  Effect  of  Amendments,  621. 

a.  Retroactive  Effect,  621. 
(i)  In  General,  621. 
(2)  Statute  of  Limitations,  621, 

b.  Effect  tipon  Injunction,  624. 

c.  As  a  Waiver  of  Error  in  Previous  Rulings^  624.. 

d.  Original  Pleading  Superseded,  625. 

e.  Right  to  Plead  De  Novo,  627. 

13,  Leave  to  Amend,  629. 

a.  Amendments  of  Course,  629. 
(i)  Statutory  Provisions — Absolute  Right,  629^ 

(2)  Waiver  of  Right,  631. 

(3)  What  Amendments  may  be  Made,  631. 

(4)  What  Pleadings  may  be  Amended,  633. 

(5)  Once  Only,  633. 

(6)  For  the  Purpose  of  Delay,  634. 

(7)  Remedy  for  Unauthorised  Amendment,  634.. 

b.  When  Leave  is  Necessary — Implied  Leave,  634. 

c.  Application  for  Leave,  636. 

d.  Notice  of  Motion,  639. 

e.  Orders  Granting  Leave,  640. 
Method  of  Making  Amendments,  640. 

a.  Actual  and  Implied  Amendments,  640. 

b.  By  Interlineatioft,  642. 

c.  By  a  Separate  Pleading,  643. 

d.  Form  of  Amended  Pleading,  643. 
Service  of  Amended  Pleadings,  645. 
Terms,  646. 

a.  Poiuer  to  Impose  or  Dispense  with,  646. 

b.  Discretionary — Reviei.u  for  Abuse,  647. 

c.  Proper  Terms.  648. 
Amendments  in  Miscellaneous  Proceedings,  654. 

a.  Great  Latitude  Allowed,  654. 

b.  Affidavits,  654. 

c.  Petitions,  655. 

d.  Miscellaneous,  656. 

Of  Process,  658. 

I.  Of  Writ  or  Sum7nons,(i'^Z. 

a.  In  General,  658. 

b.  Federal,  How  Far  Cofttrolled  by  State  Practice,  660^ 

c.  Title,  Caption,  Indorsement,  (>()\. 

461 


14, 


17 


Definition.  AMENDMENTS,  Definition. 

d.  The  Direction,  662. 

e.  Misnomer ,  663. 

/.  In  Respect  of  Parties,  665. 

g.   The  Return  Tifne  or  Place,  666. 

//.   The  Ad  Damnum,  668. 

/.    The  Teste,  668. 

j.  By  Affixing  a  Seal,  670. 

k.  Amendment  of  Scire  Faeias,  670. 

/.  Application  and  Leave  to  Amend,  671. 
2.  Of  Executions,  672. 

V.  In  Attachment  Proceedings,  675. 

1.  In  General,  675. 

2.  Of  the  Declaration  or  Complaint,  676. 

3.  Of  Affidavits,  680. 

4.  Of  Bonds,  683. 

5.  Of  the  Writ,  685. 

VI.  In  Ckiminal  Pkoceedings,  688. 

1.  Of  Indictments,  (iZ%. 

a.  At  Common  Law,  688. 
(i)  In  Substance,  688. 

(2)  In  Matters  of  Fonti,  689. 

(3)  The  Caption,  690. 

(4)  What  Constitutes  Substance,  690. 

(5)  What  Constitutes  Form,  692. 
b.  By  Statute,  692. 

(1)  Constitutionality  of  Acts,  692. 

(2)  Names,  Dates,  Descriptions,  etc.,  693.  * 

2.  Of  Informations,  696. 

3.  Complaints,  Warrants,  etc.,  699. 

As  to  Amendments  of  Bills  of  Exceptio7is,  see  BILLS  OF  EXCEPTIONS. 

of  Bills  of  Particulars,  see  BILLS  OF  PAR  TICULARS. 

of  Judgments,  s&e  JUDGMENTS. 

of  Verdicts,  see  VERDICTS. 

of  Records,  st&  RECORDS. 

of  Motions,  see  MOTIONS. 

of  Applications  for  New  Trial,  see  NE  W  TRIAL. 

of  Officers  Returns,  see  OFFICERS'  RETURNS. 

of  Orders,  see  ORDERS. 

of  Decrees,  see  DECREES. 

of  Appellate  Proceedings,  see  APPEALS,  APPEAL  BONDS. 
Defects  Cured  by  Judgment  and  Verdict, s^^  JUDGMENTS,  VERDICTS. 

I.  Definition. — An  amendment  is  the  correction  of  an  error 
committed  in  any  process,  pleading  or  proceeding,  at  law  or  in 
equity.* 

1.   Burrill    Law    Diet.;   Black    Law  language  from  the  French  'amender,' 

Diet.  the  root  or  parent  word  being  tnenda, 

"Amendment,  in   procedure,  is   the  a  fault,  and  means  m  its  most  compre- 

alteration  of  a  pleading,  writ,  petition,  hensivri    sense  '  to  better.'      It    is    so 

or  the  like,  to  make  it  accord  with  the  defined  by  all   the    leading    lexicogra- 

rules  of  practice."     Sweet  Law  Diet. ;  phers.    Thus  in  Phillip's  New  World  of 

Rapalje  &  Lawrence  Law  Diet.  Words,  and   in  Kersey  and  in  Bailey, 

*' Correction  of  a  fault,  the  curing  of  one  of  the    definitions    is    'to    make 

a  defect,  alteration  for  the  better;  im-  better';    by  Johnson,  '  to  change  from 

provement."     Anderson  Law  Diet.  bad  for   the  better';  by  Webster,   'to 

"The  act    of    improving."     Abbott  change    in    any    way    for    the    better 

Law  Diet.  *  *  *  by  substituting  something  else 

"  The  word  '  amend'  came  into  our  in  the  place  of  what  is  removed.'     As 

462 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


11.  Of  Pleadings  and  Peoceedings  in  Equity— 1.  The  Cardinal 
Rule— ^.  Amendments  Discretionary. — In  reference  to  amend- 
ments of  equity  pleadings,  the  courts  have  found  it  impracticable 
to  lay  down  a  rule  that  will  govern  all  cases.  The  allowance  of 
amendment  must  at  every  stage  of  the  case  rest  in  the  discretion 
of  the  court,  and  that  discretion  must  depend  largely  on  the 
special  circumstances  of  each  case.* 

a  law  term  the  simple  definition  of 
amendment  given  by  Rastall,  Cowell, 
or  Blount,  our  earliest  expositors  of 
law  terms,  is  the  espying  out  of  some 
error  in  the  proceedings  and  the  cor- 
recting of  it  before  judgment  and  after, 
if  the  error  be  not  in  the  giving  of  the 
judgment,  the  remedy  in  that  case 
being  by  writ  of  error."  Daly,  C.J. ,  in 
Diamond  v.  Williamsburgh  Ins.  Co.,  4 
Daly  (N.  Y.)  494,  500.  Compare'V^ ood- 
ruff  V.  Dickie,  31  How.  Pr.  (N.  Y.)  164. 

1.  Per  Harlan,  J.,  in  Hardin  v. 
Boyd,  113  U.  S.  761,  quoted  with  ap- 
proval in  Richmond  v.  Irons,  121  U.  S. 
47.  Livingston  v.  Hayes,  43  Mich.  129; 
Huffman  v.  Hummer,  17  N.  J.  Eq.  269; 
Prescott  V.  Hubbell,  i  Hill  Eq.  (S.  Car.) 
210;  Tanner  v.  Hicks,  4  Smed.  &  M. 
(Miss.)  294;  Miller  v.  Mississippi 
Northern  Bank,  34  Miss.  412;  March 
-v.  Mayers,  85  111.  177;  Gordon  v.  Rey- 
nolds, 114  111.  118;  Gregg  V.  Brower, 
67  111.  525;  Hewitt  V.  Dement,  57  111. 
500;  Mason  v.  Bair,  33  111.  194; 
Bowen  v.  Cross,  4  Johns.  Ch.  (N.  Y.) 
375;  Warren  v.  Twilley,  10  Md.  39; 
Calvert  v.  Carter,  18  Md.  73;  Ellicott 
V.  Eustace,  6  Md.  Ch.  506. 

Restatement. — "  The  limit  to  amend- 
ments is  this  :  they  must  not  be  al- 
lowed to  prejudice  the  substantial 
rights  of  the  defendant;  but,  observ- 
ing due  caution  in  that  regard,  the 
time  and  the  extent  of  each  are  in  the 
discretion  of  the  court.  Hewitt  v.  De- 
ment, 57  111.  500;  Munch  V.  Shabel,  37 
Mich.  166;  Codington  v.  Mott,  14  N. 
J.  Eq.  430,  82  Am.  Dec.  258;  Camp  v. 
Waring,  25  Conn.  520."  Church  v. 
Holcomb,  45  Mich.  40. 

Injunction  Bills. — Perhaps  less  strict- 
ness should  be  allowed  in  amending  a 
bill  where  no  injunction  is  in  force  or 
necessary  to  be  sustained.  Coster  v. 
Griswold,  4  Edw.  Ch.  (N.  Y.)  364. 

In  the  Federal  Courts. — It  was  said  in 
Neale  v.  Neale,  9  Wall.  (U.  S.)  i,  that 
in  the  federal  courts  amendments  upon 
the  hearing  are  discretionary,  but 
that  at  an  earlier  stage  the  discretion 
is  controlled  by  the  rules  in  equity 
adopted  by  the  court. 


In  Alabama,  prior  to  the  Code,  amend- 
ments in  equity  were  largely  discre- 
tionary. Lanier  v.  Driver,  24  Ala. 
149;  Michan  v.  Wyatt,  21  Ala.  813; 
Cummings  v.  Gill,  6  Ala.  562;  Pink- 
ston  V.  Taliaferro,  9  Ala.  547;  Bryant 
V.  Peters,  3  Ala.  160.  See  also  Rapier 
V.  Gulf  City  Paper  Co.,  69  Ala.  476; 
Adams  v.  Phillips,  75  Ala.  461. 

But  the  Code  provides  that  "  amend- 
ments must  be  allowed  at  any  time 
before  final  decree."  See  Hinton  v. 
Citizens'  Mut.  Ins.  Co.,  63  Ala.  488; 
Pitts  z/,  Powledge,  56  Ala.  147;  Martin 
V.  Mohr,  56  Ala.  221;  Bishop  v.  Wood, 
59  Ala.  253;  Stoudenmire  v.  De 
Bardelaben,  72  Ala.  300;  Smith  v. 
Coleman,  59  Ala.  260;  Kingsbury  v. 
Milner,  69  Ala.  502;  Beatty  v.  Brown, 

85  Ala.  209;  Shackelford  v.  Bankhead, 
72  Ala.  476;  Prickett  v.  Sibert,  75  Ala. 
315;  Conner  v.  Smith,  74  Ala.  115; 
Harland  v.  Person,  93  Ala.  273  (error 
without  prejudice);  Olds  v.  Marshall, 
93  Ala.  138. 

Nevertheless  amendments  introduc- 
ing an  entirely  new  cause  of  action 
will  not  be  allowed.  Rapier  v.  Gulf 
City  Paper  Co.,  69  Ala.  476;  King  v. 
Avery,  37  Ala.  169;  Marshall  v.  Olds, 

86  Ala.  296,  where  the  decision  of  the 
lower  court  was  reversed  on  that  ac- 
count.     See  infra  2,  h,  (4). 

In  Georgia  the  Act  of  1854  provided 
that  plaintiffs  or  defendants  might 
amend  at  any  stage  of  the  case  "  as 
matter  of  right."  Prior  to  the  statute 
amendments  were  discretionary  and 
subject  to  review  only  for  abuse. 
Georgia  R.,  etc.,  Co.  v.  Milnor,  8  Ga. 
313;  Martin  v.  Atkinson,  5  Ga.  390; 
Molyneaux  v.  Collier,  13  Ga.  406;  Gar- 
ner V.  Keaton,  i3Ga.  431;  McDougald 
V.  Williford,  14  Ga.  665. 

See, for  cases  subsequent  to  the  stat- 
ute and  enforcing  it,  Canant  v.  Map- 
pin,  20  Ga.  730;  Chambless  v.  Taber, 
26  Ga.  167;  Oliver  v.  Persons,  29  Ga. 
568;  Burneyz'.  Ball,  24  Ga.  505;  Brown 
V.  R-edwyne,  16  Ga.  67;  Gress  Lumber 
Co.  V.  Rogers,  85  Ga.  587;  Pool  v. 
Morris,  29  Ga.  374,  74  Am.  Dec.  68; 
Camp  V.   Bancroft,  25  Ga.  74;  King  v. 


463 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


In  Furtherance  of  Justice. — It  may  be  said  generally  that,  in  passing 
upon  applications  to  amend,  the  ends  of  justice  should  never  be 
sacrificed  to  mere  form  or  by  too  rigid  an  adherence  to  technical 
rules  of  practice.* 

The  Practice  Liberal. — Amendments  are  allowed  with  great  liber- 
ality when  the  pleading  is  not  under  oath.® 

Verified  Pleadings. — But  greater  caution  is  exercised  in  regard  to 
amendments  of  pleadings  that  are  sworn  to.* 

Special  Indulgenc©  in  the  way  of  amendment  will  be  granted  to 
infants,  who  are  considered  as  particularly  under  the  protection  of 
the  court."* 

b.  Review  of  Exercise  of  Discretion. — In  reviewing  the 
exercise  of  discretion  in  granting  or  refusing  leave  to  amend,  an 
appellate  court  will  not  reverse  the  action  of  the  court  below  un- 
less it  affirmatively  appears  that  there  was  a  plain  abuse  of  dis- 
cretion— that  the  appellant  was  put  to  serious  disadvantage  or 
materially  prejudiced  thereby,^  or  that  some  statutory  provision 

King,  45  Ga.  195;  Hook  v.  Brooks,  24  McMann,  v.   Westcott,  47  Mich.   177; 

Ga.    175;  Jordan    v.  Gaulden,    73  Ga.  Livingston   v.    Hayes,    43   Mich.    129; 

igi.  Church    v.     Holcomb,    45     Mich.     29; 

Legislative  Power  to  Change  Practice.  Buckley   v.    Corse,    i   N.    J.  Eq.    509; 

— The  legislature  has  power  to  amend  Byers  v.  Franklin  Coal  Co.,  106  Mass. 

the  practice  in  relation  to  pleadings  in  131;  Miller  v.  Miller,  40  N.  J.  Eq.  475; 

chancery  so  as  to  permit  amendments  Codington  v.  Mott,  14  N.   J.    Eq.  430, 

which  before  were  not  allowed.    Brink  82  Am.  Dec.  258;  Marble  v.  Bonhotel, 


V.  Morton,  2  Iowa  411. 

Election  Contest. — In  Illinois  a  pro- 
ceeding to  contest  an  election  under 
the  Act  of  1872  is  to  all  intents  and 
purposes  a  chancery  proceeding,  and 


35   111.  240;  Gregg   V.    Brower,  67  111. 
525;    Burlew    v.   Quarrier,    16  W.   Va. 
108;  Moss  V.   Davidson,  9  Miss.    112; 
Hunt  V.  Walker,  40  Miss.  590. 
Compared  with  English  Practice. — The 


it  is  proper  to  allow  an  amendment  of  practice    in    this    country  in  allowing 

the   petition.     Dale    v.    Irwin,    78    111.  amendments  is  said  to  be  much  more 

171.  liberal    than    in  England.       Belton   v. 

Federal  Not  AflFected  by  State  Practice.  Apperson,  26  Gratt.  (Va.)  207;  Gregg 

— The  general  practice  of  the  federal  v.  Brower,  67  111.  525. 

courts  in  equity  is  not  affected  by  the  3.   Gregg    v.     Brower,    67    111.    525; 

laws  of   a    state    in    which  they    sit.  Jones  v.  Kennicott,  83  111.  489,  an  ap- 

See  United  States  Courts.    And  pro-  plication  for  leave  to  amend  a  petition 

visions    in    state    statutes  relating    to  for  a  ne  exeat. 


amendments  do  not  apply  to  the  equity 
side  of  the  federal  courts.  Phelps  v. 
Elliott,  26  Fed.  Rep.  881. 

1.  Per  Harlan,  J.,  in  Hardin  z/.  Boyd, 
113  U.  S.  761,  where  it  was  also  said 
that      "undoubtedly      great      caution 


Amendment  without  Proper  Showing. 
— It  was  reversible  error  to  allow  an 
amended  answer  contradictory  of  and 
inconsistent  with  the  original  answer 
in  material  matters  without  showing 
by  affidavit  that  the  original  was  filed 


should  be  exercised  where  the  appli-  under  a  mistake  of  the  facts.  Rev- 
cation  comes  after  the  litigation  has  nolds  z/.  West,  32  Ark.  244,  a  case  much 
continued  for  some  time,  or  when  the  like  Graham  v.  Skinner,  4  Jones  Eq. 
granting  of  it  would  cause  serious  in-  (N.  Car.)  94. 


convenience  or  expense  to  the  opposite 
party."  Approved  in  Richmond  v. 
Irons,  121  U.  S.  47. 

2.  McDougald   v.  Williford,  14  Ga. 
665;    Droullard   v.  Baxter,  2  111.   192; 


4.  Serle  v.  St.  Eloy.  2  P.  Wms.  3S6; 
Plunket  V.  Joice,  2  Sch.  &  Lef.  159; 
Pritchard  v.  Quinchant,  Ambl.  147, 
148. 

6.  United  States. — Richmond  z/.  Irons, 


Belton   V.   Apperson,    26  Gratt.   (Va.)     121  U.  S.  46;  Mercantile  Nat.  Bank  v. 
207;  Morrison  v.  Mayer,  63  Mich.  238;     Carpenter,  loi  U.  S.  567;  Chicago,  etc., 

464 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


or  established  rule  of  practice  was  violated.*     And  the  allowance 


I 


R.  Co.  V.  Chicago  Third  Nat.  Bank, 
134  U.  S.  276;  U.  S.  V.  Atherton,  102 
U.  S.  375;  Hardin  v.  Boyd,  113  U.  S. 

756- 

Michigan. — Livingston  v.  Hayes,  43 
Mich.  129;  Slater  v.  Breese,  36  Mich. 
77;  Briggs  V.  Briggs,  20  Mich.  34. 

Iowa.  —  Hall  v.  Doran,  6  Iowa  433. 

Kentucky. — Coffman  v.  AUin,  Litt. 
Sel.  Cas.  (Ky.)  201  ;  Dunn  v.  Dunn, 
I  J.  J.  Marsh.  (Ky.)  585;  Honore  v. 
Colmesnil,  i  J.  J.  Marsh.  (Ky.)5o6. 

South    Carolina. — Prescott   v.    Hub-' 
bell,  I  Hill  Eq.  (S.  Car.)  210. 

Arkansas. — Miller  v.  Fraley,  23  Ark. 
735- 

Delaware. — Thompson  v.  Thomp- 
son, 6  Houst.  (Del.)  225. 

Pennsylvania. — Leach  v.  Ansbacher, 
55  Pa.  St.  85. 

Illinois. — Jones  v.  Kennicott,  83  111. 
484;  Booth  V.  Wiley,  102  111.  89;  Saw- 
yer V.  Campbell,  130  111.  186;  Gordon 
V.  Reynolds,  114  111.  118;  Campbell  v. 
Powers,  139  111.  128;  Sawyer  z/.  Camp- 
bell, 130  111.  186  ;  Craig  v.  People,  47 
111.  487;  Wylder  v.  Crane,  53  111.  490; 
Hoyt  V.  Tuxbury,  70  111.  331;  Barm  v. 
Bragg.  70  111.  283;  Gregg  v.  Brower, 
67  111.  525;  Goodbody  v.  Goodbody, 
95  111.  456;  Hewitt  V.  Dement,  57  111. 
500;  Higgins  V.  Curtiss,  82  111.  28; 
Heacock  v.  Durand,  42  111.  230;  Curtis 
V.  Sage,  35  111.  22. 

Texas. — Hollis  v.  Border,  10  Tex. 
360:  Taylor  v.  Gillean,  23  Tex.  508. 

West  Virginia. — Burlewz/.  Quarrier, 
16  W.  Va.  108;  Pickens  v.  Knisely,  36 
W.  Va.  794. 

Mississippi.  —  Tanner  v.  Hicks,  4 
Smed.  &  M.  (Miss.)  294;  Miller  v. 
Misssisippi  Northern  Bank,  34  Miss. 
412;  Sharman  v.  Staten  (Miss.,  1891), 
8  So.  Rep.  851. 

North  Carolina. — Graham  v.  Skin- 
ner, 4  Jones  Eq.  (N.  Car.)  94. 

Fruitless  Amendment. — It  is  not  error 
to  refuse  an  amendment  to  a  bill  which 
does  not  cure  the  defect.  Sharman  v. 
Staten  (Miss.,  1891),  8  So.  Rep.  851; 
Curtis  V.  Leavitt,  11  Paige  (N.  Y.) 
386;  Rose  V.  Rose,  11  Paige  (N.  Y.) 
186. 

Immaterial  Amendment. — Nor  was  it 
error  to  rescind  an  order  granting 
leave  to  file  an  amendment  which  was 
not  material,  although  the  reasons 
given  by  the  chancellor  w^ere  not  al- 
together accurate.  Garner  z/.  Keaton, 
13  Ga.  431. 


Inserting  Substantial  Equity. — It  was 
reversible  error  to  refuse  to  allow 
plaintiff  to  amend  by  bringing  forward 
an  equity  which  by  mistake  had  been 
left  out,  which  equity  defendant  must 
have  known  was  the  real  cause  of  ac- 
tion. McMann  v.  Westcott,  47  Mich. 
177- 

Verifying  Answer. — It  was  held  re- 
versible error  not  to  allow  defendant 
to  verify  his  answer,  Wheeler  v. 
Wales,  3  Bush  (Ky.)  225;  or  to  verify 
a  proposed  amendment  to  the  answer. 
Grace  v.  Newbre,  31  Wis.  19. 

Explaining  Laches. — Upon  sustain- 
ing a  demurrer  for  laches  it  was  error 
to  dismiss  the  bill  without  giving 
plaintiff  an  opportunity  to  amend  by 
fully  explaining  everything  savorirg 
of  laches.  Cottrell  v.  Watkins,  89X3. 
801. 

Curing  a  Variance. — Also  reversible 
error  not  to  permit  plaintiff  to  amend 
to  cure  a  variance  in  setting  up  a 
written  instrument  which  was  the 
foundation  of  the  suit.  Fery  v. 
Pfeiffer,  18  Wis.  510. 

Under  the  Mississippi  Code  of  i£8i, 
declaring  that  "  Amendments  shall  be 
allowed  on  liberal  terms  to  prevent 
delay  and  injustice,"  it  was  held  error 
to  refuse  to  allow  plaintiff  to  amend 
to  cure  a  variance  which  was  first  dis- 
closed by  a  deposition  filed  less  than  a 
week  before  the  court  met.  Jeffries 
V.  Jeffries,  66  Miss.  216. 

Amendment  to  Answer. — Refusal  to 
allovT  an  amendm  nt  to  an  answer  was 
held  erroneous  in  Kanson  v.  Michel- 
son,  19  Wis.  498. 

To  Conform  to  Troofs. — Reversible 
error  not  to  allow  plaintiff  to  amend  to 
conform  to  proofs,  the  evidence  show- 
ing that  he  was  entitled  to  relief  in  a 
bill  properly  framed.  Connalley  v. 
Peck,  3  Cal.  75. 

In  Maryland  if  the  court  had  power 
to  allow  an  amendment,  the  manner  of 
exercising  the  discretion  is  not  a  sub- 
ject of  appeal.  Calvert  v.  Carter,  18 
Md.  73;  Warren  v.  Twilley,  10  Md.  39; 
Ellicott  V.  Eustace,  6  Md.  Ch.  506. 
Such  is  the  rule  in  that  state  in  respect 
of  amendments  at  law.  See  infra, 
III,  4,  a,  (i). 

In  Maine,  likewise,  the  same  rule  is 
applied  in  equity.  Gilpatrick  v.  Glid- 
den,  82  Me.  201,  and  at  law.  Seeinfra, 
III,  4,  a,  (i). 

1.  Making  a  New  Case. — It  is  error  to. 


I  Encyc.  PI.  &  Pr.— 30. 


465 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


of  an  amendment  will  not  be  deemed  erroneous  if  no  objection 
was  made  thereto  at  the  time.* 

2.  Of  Bills— a.  In  Respect  of  Parties — change  of  Parties. — It  is 
the  constant  practice  of  courts  of  chancery  to  allow  amendments 
of  bills  by  the  introduction  of  new  plaintiffs  or  new  defendants 
when  the  interests  of  justice  require  it,  *  or  by  transposing  the 


allow  amendments  making  a  new  case. 
Ogden  V.  Moore,  95  Mich.  290;  Green 
V.  Green,  26  Mich.  437;  Marshall  v. 
Olds,  86  Ala.  296.  See  infra.  III,  6, 
0> 

Before  Answer. — Reversible  error  to 
refuse  leave  to  plaintiff  to  amend  be- 
fare  answer.  DrouUard  v.  Baxter,  2 
111.  192. 

Injunction  Bond. — It  is  error  to  dis- 
solve an  injunction  for  want  of  a  good 
and  sufficient  bond  without  giving  the 
plaintiff  time  to  perfect  the  bond, 
where  the  statute  provides  for  it. 
Smith  V.  Harrington,  49  Miss.  771. 

1.  Pass  V.  McRea,  36  Miss.  143. 

2.  Coffman  v.  Sangston,  21  Gratt. 
(Va.)  263;  Belton  v.  Apperson,  26 
Gratt.  (Va.)  207;  Henry  v.  Brown,  8 
N.  J.  Eq.  245;  Mclntyre  v.  Easton,  etc., 
R.  Co.  26  N.  J.  Eq.  425;  Livingston  v. 
Marshall,  82  Ga.  281,  a  case  of  a 
sworn  bill  where  a  co-plaintiff  was 
added  and  without  swearing  to  the 
amendment;  Gress  Lumber  Co.  v.  Rog- 
ers, 85  Ga.  587;  McDougald  v.  Dough- 
erty, II  Ga.  570;  Hutchinson  v.  Reed. 
Hoff.  Ch.  (N.  Y.)  316;  Folkerts  v. 
Power,  42  Mich.  283;  Douglas  v.  But- 
ler, 6  Fed.  Rep.  228;  Frese  v.  Bachof, 
14  Blatchf.  (U.  S.)432;  Fisher  v.  Ruth- 
erford, Baldw.  (U.  S.)  188;  Maynard  v. 
Tilden,  28  Fed.  Rep.  688;  Patterson  r/. 
Stapler,  7  Fed.  Rep.  210;  Brandon  Mfg. 
Co.  V.  Prime,  14  Blatchf.  (U.  S.)  371, 
where  the  rule  was  applied  to  a  cross- 
bill; Bohnan  v.  Sohman,  74  Ala.  507; 
Hook  V.  Brooks,  24  Ga.  175.  See  also 
Walden  v,  Bodley,  14  Pet.  (U.  S.)  156; 
Manghan  v.  Blake,  L.  R.  3  Ch.  32. 

Substitution  of  Plaintiffs.  —  A  new 
plaintiff  may  be  substituted  for  the 
original  plaintiff.  Jennings  v.  Springs, 
Bailey  Eq.  (S.  Car.)  181,  where  the 
original  bill  was  filed  by  the  agent  of 
the  parties  who  were  substituted  by 
amendment. 

The  name  of  a  nominal  plaintiff  may 
be  struck  out  and  that  of  the  party 
beneficially  interested  inserted  when 
it  will  not  produce  injury,  Winkel- 
man  v.  Kiser,  27  111.  21  •  Wilson  v. 
Welch,  157  Mass.  77. 


Where  a  suit  was  brought  by  the 
plaintiff  as  guardian  he  was  allowed 
to  amend  by  substituting  the  name  of 
his  ward  as  plaintiff.  Lombard  v. 
Morse,  155  Mass.  136. 

If  a  suit  is  properly  instituted  by 
selectmen  of  a  town,  the  court  may 
allow  the  town  to  be  substituted  as  a 
plaintiff  after  the  term  of  office  of  the 
selectmen  has  expired.  Winthrop  v. 
Farrar,  11  Allen  (Mass.)  398. 

In  a  Creditor's  Bill  the  plaintiff  may 
amend  by  joining  the  other  creditors 
as  plaintiffs.  Stephenson  v.  Tavern- 
ers,  9  Gratt.  (Va.)  398;  McDougald  v. 
Dougherty,  11  Ga.  570  (even  at  the 
hearing);  Richmond  v.  Irons,  121  U. 
S.  46;  Williams  v.  Grant  County  Ct., 
26  W.  Va.  48S. 

Want  of  Parties  Not  Fatal. — The  bill 
should  never  be  dismissed  for  want  of 
proper  parties  if  they  can  be  supplied 
by  amendment.  Thomas  v.  Adams, 
30  111.  37;  Howell  V.  Peoria,  90  111.  104; 
Marsh  v.  Green,  79  111.  385;  Allen  v. 
Smith,  I  Leigh  (Va.)  231;  Hoofman  v. 
Marshall,  i  J.  J.  Marsh.  (Ky.)  64; 
Clark  V.  Keene's  First  Congregational 
Soc.  46  N.  H.  272. 

Ordering  Case  to  Stand  Over. — Even  in 
the  absence  of  proper  pleadings  show- 
ing a  want  of  necessary  parties,  the 
court  may  take  notice  of  tlie  fact  and 
order  the  case  to  stand  over  in  order 
that  the  necessary  parties  may  be  add- 
ed.    Case  %<.  Minot,  158  Mass.  577. 

Bringing  in  Personal  Representatives. 
— An  amendment  of  the  bill  is  not  the 
regular  mode  of  bringing  in  the  per- 
sonal representatives  or  heirs  of  a 
deceased  defendant,  but  it  may  serve 
the  purpose  of  a  suggestion  of  the 
death  of  the  deceased  and  of  the 
names  of  his  legal  representatives. 
Floyd  V.  Ritter,  65  Ala.  501. 

Entirely  NewDefendants. — Butamend- 
ments  which  would  divest  a  bill  of  all 
its  defendants  and  make  a  new  case 
against  new  defendants  cannot  be  al- 
lowed. Leggett  V.  Bennett,  48  Ala. 
380. 

Misnomer  of  a  Party. — A  mistake  in 
the  name  of  a  party  does  not  affect  the 


466 


C '  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


parties,*    or  by  striking  out  parties.* 

At  What  Stage. — Such  amendments  may  be  allowed  after  answer,' 
after  issue  joined  and  evidence  published,*  after  demurrer  sus- 
tained *  or  plea  allowed  for  want  of  proper  parties,®  or  on  '  or  after 
the  hearing;**  and  the  appellate  court,  upon  reversing  a  decree, 
will  frequently  remand  the  case  with  directions  to  allow  amend- 
ments making  proper  parties.® 


pleading  or  the  merits  of  the  action, 
and  can  be  corrected  only  by  motion 
or  by  the  court  of  its  own  motion. 
Beavers  v.  Baucum,  33  Ark.  722; 
Pearce  v.  Bruce,  38  Ga.  444. 

1.  A  defendant  may  be  made  a  plain- 
tiff. Elmer  v.  Loper,  25  N  J.  Eq.  475; 
Tatum  V.  Walker,  77  Ala.  563;  Smith 
V.  Hadley,  64  N.  H.  97. 

A  plaintiff  may  be  struck  out  and 
made  a  defendant.  Pool  v.  Morris,  29 
Ga.  374,  74  Am.  Dec.  68;  Hewett  v. 
Adams,  50  Me.  271;  Johnson  v.  Vail, 
14  N.  J.  Eq.  423. 

But  parties  will  not  be  transposed 
at  their  mere  caprice,  as  for  instance 
to  enable  a  party  to  remove  his  case 
to  a  federal  court.  Burlew  v.  Quarrier, 
16  W.  Va.  108. 

2.  Heacock  v.  Durand,  42  111.  230, 
after  demurrer  sustained.  Conolly  v. 
Taylor,  2  Pet.  (U.  S.)  556;  Dwight  v. 
Humphreys,  3  McLean  (U.  S.)  104. 

3.  Jennings  v.  Springs,  Bailey  Eq. 
(5.  Car.)  181. 

The  name  of  one  of  the  heirs  com- 
plainants was  inserted  after  one  of  the 
defendants  had  answered.  Stevens  v. 
Terrel,  3  T.  B.  Mon.  (Ky.)  131. 

4.  Dana  v.  Valentine,  5  Mete.  (Ky.) 
8.  See  also  Dow  v.  Jewell,  18  N.  H. 
340,  45  Am,  Dec.  371.  Compare  Bowen 
V.  Idley,  6  Paige  (N.  Y.)  46. 

Laches  of  Applicant. — A  motion  to 
amend  by  adding  new  parties  defend- 
ant after  replication  and  the  produc- 
tion of  evidence,  it  appearing  that  the 
plaintiff  had  been  in  a  position  to  make 
the  amendment  at  an  earlier  stage,  was 
denied.  Clifford  v.  Coleman,  13 
Blatchf.  (U.  S.)2io;  Ingrahamz/.  Dun- 
nell,  5  Mete.  (Ky.)  118,  is  another  case 
of  laches  in  applying  to  amend  by 
making  new  parties. 

6.  Frazer  v.  Legare,  Bailey  Eq. 
(S.  Car.)  389;  Noyes  v.  Sawyer,  3  Vt. 
160;  William  v.  Grant  County  Ct.,  26 
W.  Va.  488;  McHale  v.  Murphy,  73 
Ga.  141;  Gray  v.  Hays,  7  Heisk.  (Tenn.) 
588;  Heacock  v.  Durand,  42  111.  230; 
McDowell  V.  Cochran,  11  111.  31. 

Misjoinder   of    plaintiffs,    if    merely 


formal,  may  be  cured  by  amendment 
after  demurrer  sustained.  Clark  v. 
Holbrook,  146  Mass.  366. 

6.  Franklin  v.  Franklin,  2  Swan 
(Tenn.)  521. 

7.  Roddy  v.  Elam,  12  Rich.  Eq.  (S. 
Car.)  343,  where  a  formal  party 
was  added  as  a  defendant;  Elmer  v. 
Loper,  25  N.  J.  Eq.  475,  where  a 
cestui  que  trust  had  been  erroneously 
made  a  defendant  in  a  suit  by  the 
trustees,  and  an  amendment  was  al- 
lowed making  him  a  co-plaintiff;  Reed 
V.  Reed,  16  N.  J.  Eq.  248;  Barrett  v. 
Doughty,  25  N.  J.  Eq.  379;  Hutchin- 
son V.  Reed,  Hoff.  Ch.  (N.  Y.)  316; 
McDougald  v.  Dougherty,  11  Ga.  570; 
Thomas  v.  Gain,  35  Mich.  159,  24  Am. 
Rep.  535;  Richmond  v.  Irons,  121  U. 
S.  46;  Vermont  Min.,  etc.,  Co.  v. 
Windham  County  Bank,  44  Vt.  489; 
Perkins  v.  Hays,  Cooke  (Tenn.)  i8g; 
Webber  v.  Taylor,  5  Jones  Eq.  (N. 
Car.)  36. 

Where  Objection  was  Taken  by  Answer. 
— Where  the  objection  for  defect  of 
parties  is  taken  in  the  answer  the 
plaintiff  ought  to  move  promptly  for  an 
amendment.  Vanderwerker  v.  Van- 
derwerker,  7  Barb.  (N.  Y.)  221. 

If  he  waits  until  the  hearing  the 
court  may  dismiss  the  bill.  Lord  v. 
Anderdunck,  i  Sandf.  Ch.  (N.  Y.)46; 
Vanderwerker  v.  Vanderwerker,  7 
Barb.  (N.  Y.)  221. 

It  is,  however,  the  usual  course  to 
permit  the  cause  to  stand  over  for 
amendment.  Hutchinson  v.  Reed, 
Hoff.  Ch.  (N.  Y.)  316,  an  excellent 
case;  Van  Epps  v.  Van  Deusen,  4 
Paige  (N.  Y.)  64. 

8.  Henry  v.  Brown,  8  N.  J.  Eq.  245, 
where  the  plaintiff  added  a  party  de- 
fendant. See  also  Folkerts  v.  Power, 
42  Mich.  2S3;  O'Brien  v.  Heeney,  2 
Edw.  Ch.  242. 

9.  Parberry  v.  Goram,  3  Bibb.  (Ky.) 
107,  where  it  was  said  that  amend- 
ments to  add  proper  parties  are  never 
too  late  while  the  court  has  control 
over  the  case;  Hoof  man  v.  Marshall. 
I   J.   J.    Marsh.  (Ky.)  64;   Hopkins  v. 


467 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


Where  Plaintiff  Has  No  Interest. — But  where  a  bill  shows  that  the 
plaintiff  has  assigned  his  interest  before  suit,  an  amended  bill 
cannot  be  filed  in  the  name  of  the  assignee.* 

Effect  of  Amendment — Where  new  parties  are  made  defendants  they 
may  avail  themselves  of  the  running  of  the  statute  of  limitations 
during  the  period  when  they  were  strangers  to  the  proceedings.* 

If  the  plaintiff  amends  his  bill  by  adding  new  parties  after  the 
defendant's  default  for  want  of  an  appearance  has  been  entered, 
he  thereby  waives  the  default.* 

b.  In  Respect  of  Matter— (i)  In  General— \{  the  bill  be 
found  defective  in  its  prayer  for  relief,"*  or  in  proper  parties,^  or 


Roseclare  Lead   Co.,   72  111.   373;  Sill- 


ings 


574; 
N.J. 


Bumgardner,  Q  Gratt.  (Va.) 
273;  Hooper  v.  Royster,  i  Munf.  (Va.) 
119;  De  Courceyz'.  Little,  19  N.  J.  Eq. 
McLaughlin  v.  Van  Keuren,  21 
Eq.  3-79 ;  Bradford  v.  Felder,  2 
McCord  Eq.  (S.  Car.)  168,  where  plain- 
tiff was  allowed  to  take  out  administra- 
tion and  sue  in  the  capacity  of  ad- 
ministrator; Palmer  v.  Rich,  12  Mich. 
414;  Welton  V.  Hutton,  9  W.  Va.  339; 
Lewis  V.  Darling,  16  How.  (U.  S.)  i; 
Arendell  v.  Blackwell,  i  Dev.  Eq. 
(N.  Car.)  358. 

Amendments  in  Appellate  Coart. — In 
Ohio  amendments  bringing  in  new 
parties  may  be  allowed  in  the  Supreme 
Court.   Grant  v.  Ludlow,  8  Ohio  St.  i. 

Compare,  in  North  Carolina,  Arendell 
V.  Blackwell,  i  Dev.  Eq.  (N.  Car.) 358; 
and  in  Michigan,  Edinger  v.  Heiser, 
62  Mich.  598,  where  a  merely  formal 
party  plaintiff  was  considered  as  added 
by  amendment  in  the  Supreme  Court. 

Stipulation  against  Amendment. — 
While  the  court  will  take  notice  of  the 
want  of  necessary  parties  and  allow  an 
amendment  bringing  them  in,  it  was 
held  that,  where  a  case  was  submitted 
on  an  agreed  statement,  with  the  stip- 
ulation that  "  no  facts,  statements,  or 
allegations  are  to  be  considered  by  the 
court  except  those  therein  agreed 
upon,"  and  the  bill  was  defective  for 
want  of  necessary  parties,  it  should  be 
dismissed  without  costs  and  without 
prejudice.      Beals  v.  Cobb,  51  Me.  348. 

1.  Keyser  v.  Renner,  87  Va.  249. 
For  a  similar  reason  an  amendment 

substituting  a  new  party  as  sole  plain- 
tiff was  denied,  the  original  plaintiff 
having  no  title  whatever  to  sue  in. 
House  V.  Dexter,  9  Mich.  246;  McKay 
V.  Broad,  70  Ala.  377;  King  v.  Avery, 
37  Ala.  169. 

2.  Miller  v.  M'Intyre,  6  Pet.  (U.  S.) 
61;  Campbell  v.  Bowne,  5  Paige  (N. 
Y.)  34. 


Staleness. — The  defense  of  staleness 
of  demand  is  also  open  to  them;  and 
the  relief  sought  against  them  must 
be  considered  in  respect  to  the  dili- 
gence with  which  they  have  been  im- 
pleaded from  the  standpoint  of  the 
amendment  alone.  Tompkins  v.  Holt 
(Ala.,  1891),  8  So.  Rep.  794. 

Right  to  Answer  Amendment. — An 
amended  bill  making  proper  parties 
does  not  give  the  defendant  the  right 
to  file  an  answer  to  the  amended  bill, 
the  amendment  not  affecting  him. 
Oldham  v.  Rowan,  4  Bibb  (Ky.)  544. 

3.  Scudder  v.  Voorhis,  i  Barb.  (N. 
Y.)55. 

4.  Lyon  v.  Tallmadge,  i  Johns.  Ch. 
(N.  Y.)  184;  Dearing  v.  Charleston 
Bank,  6  Ga.  581;  Livingston  v.  Mar- 
shall, 82  Ga.  281;  Hardin  v.  Boyd,  113 
U.  S.  756;  Palk  V.  Clinton.  12  Ves.  Jr. 
66.  See  also  Pennock  v.  Ela,  41  N.  H. 
189. 

Adding  Prayer  for  General  Belief. — 
The  bill  may  be  amended  by  adding  to 
the  prayer  for  special  relief  a  prayer 
for  general  relief.  McCrum  v.  Lee, 
38  W.  Va.  583.  But  not  when  the 
facts  set  forth  would  not  authorize 
other  relief.  Halsted  v.  Meeker,  18 
N.  J.  Eq.  136. 

Upon  Bemand  from  Appellate  Court. 
— Upon  remanding  the  case  the  appel- 
late court  will  grant  leave  to  amend 
the  prayer  of  the  bill.  Cook  v. 
Bronaugh,  13  Ark.  183.  Compare  Cut- 
ler V.  Tuttle,  19  N.  J.  Eq.  549. 

Upon  the  Hearing. — Where  special 
relief  is  sought  in  a  bill,  but  not  spe- 
cially mentioned  in  the  prayer,  and 
the  proofs  make  a  strong  case  for  the 
granting  of  such  relief,  the  court  may 
allow  an  amendment  of  the  prayer, 
and  may  make  a  decree  in  accordance 
with  such  amendment.  New  York  F. 
Ins.  Co.  V.  Tooker,  35  N.  J.  Eq.  408. 

5.  See  "a.  In  Respect  of  Parties" 
supra. 


468 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


in  the  omission  or  mistake  of  some  fact  or  circumstance  connected 
with  the  substance  of  the  case,  but  not  forming  the  substance  it- 
self/  the   amendment  is  usually  granted,*  or,  as  more  recently 

1.  Lyon  V.  Tallmadge,  i  Johns.  Ch. 
(N.  Y.)  184. 

Connected  with  Substance.  —  Where 
the  original  bill,  filed  by  assignees  of 
the  equity  of  redemption  against  the 
mortgagee  and  purchasers  from  him 
after  a  sale  under  the  mortgage,  seek- 
ing an  account  and  redemption,  claims 
credits  in  reduction  of  the  mort- 
gage debt  on  account  of  cross-de- 
mands accruing  to  the  mortgagor, 
whether  by  way  of  recoupment  or  set- 
off before  the  sale  under  the  mort- 
gage, and  by  him  assigned  to  the  com- 
plainants, an  amendment  is  allowable 
specifying  the  particulars  of  these 
counterclaims,  and  showing  how  and 
when  they  accrued  to  the  mortgagor, 
and  when  the  complainants  acquired 
them.     Conner  v.  Smith,  88  Ala.  300. 

2.  Chancellor  Kent's  rubric  in  Lyon 
V.  Tallmadge,  i  Johns.  Ch.  184,  hold- 
ing that  where  on  demurrer  a  bill  is 
dismissed  for  want  of  equity  on  the 
merits  of  the  case  as  stated,  leave  to 
amend  the  bill  will  not  be  granted. 
The  statement  in  the  text  was  quoted 
with  approval  in  Hardin  v.  Boyd,  113 
U.  S.  756;  Piercy  v.  Beckett,  15  W.  Va. 
444;  Conner  v.  Smith,  88  Ala.  300; 
Holland  v.  Trotter,  22  Gratt.  (Va.)  136; 
Belton  V.  Apperson,  26  Gratt.  (Va.) 
207;  Verplanck  v.  Mercantile  Ins.  Co., 
I  Edw.  Ch.  (N.  Y.)  46;  and  in  Larkins 
V.  Biddle,  21  Ala.  252. 

In  Holland  v.  Trotter,  22  Gratt.  (Va.) 
136,  it  was  said  that  as  a  general  rule 
the  court  will  at  any  time  before  the 
hearing  grant  leave  to  amend  the  bill 
in  the  particulars  stated  in  the  text. 
See  also  Rogers  v.  Moor,  i  Root 
(Conn.)  472;  Buckley  v.  Crose,  i  N.  J. 
Eq.  504;  Fearey  v.  Hayes,  44  N.  J.  Eq. 
425;  Delaware,  etc.,  Canal  Co.  v. 
Raritan,  etc.,  R.  Co.,  14  N.  J.  Eq.  445; 
Fite  V.  Kennamer,  90  Ala.  470;  Pen- 
nock  V.  Ela,  41  N.  H.  189;  Hunter  v. 
U.  S.,  5  Pet.  (U.  S.)  173. 

Mistake  of  Counsel. — The  bill  may  be 
amended  by  the  insertion  of  matter 
which  was  omitted  by  counsel  under  a 
misapprehension  that  it  was  not  nec- 
essary to  be  stated.  McDougald  v. 
Williford,  14  Ga.  665. 

Clerical  Mistake.  —  An  amendment 
lelating  to  the  price  alleged  to  have 
been  given  for  lands  is   properly  al- 


lowed when  it  can  be  considered  as  a 
clerical  mistake.  Cummings  v.  Gill,  6 
Ala.  562.  In  Howel  v.  Ashmore,  9  N. 
J.  Eq.  85,  a  clerical  mistake  was 
amended  instanter. 

Creditor's  Bill. — A  judgment  cred- 
itor's bill  to  set  aside  a  deed  as  in 
fraud  of  his  rights  under  execution 
did  not  aver  that  the  sheriff  had 
levied  on  the  land  before  the  bill  was 
filed.  The  bill  was  not  demurred  to, 
however,  and  testimony  was  taken  on 
the  whole  issue.  Held,  proper  to 
allow  the  bill  to  be  amended  at  the 
hearing.  Smith  v.  Sherman,  52  Mich. 
637- 

So,  in  a  judgment  creditor's  bill,  an 
error  in  the  date  of  obtaining  and  is- 
suing fi.  fa.  was  allowed  to  be 
amended.  Ayres  v.  Valentine,  2  Edw. 
Ch.  (N.  Y.)  451;  and  an  error  in  the 
amount  alleged  to  be  due.  Ryerson  v. 
Minton,  3  Edw.  Ch.  382. 

Such  amendment  may  be  made  at  any 
time  during  the  proceedings.  Mar- 
shall First  Nat.  Bank  v.  Hosmer,  48 
Mich.  200. 

Grounds  of  Liability. — If,  in  an  ac- 
tion against  stockholders  of  a  corpora- 
tion, the  liability  claimed  against 
them  extended  to  the  amount  of  the 
stock,  but  no  specific  ground  for  that 
liability  was  stated,  an  amendment 
may  be  allowed  alleging  loss  by  of- 
ficial mismanagement  of  the  directors, 
which  may  properly  be  regarded  as  a 
specification  of  the  claim.  Hewett  v. 
Adams,  50  Me.  271. 

Striking  Out  Waiver. — An  equitable 
petition  in  which  discovery  is  waived 
may  be  amended  by  striking  out  this 
waiver  and  inserting  a  prayer  for  dis- 
covery.    Price  V.  Price,  go  Ga.  244. 

Alleging  Loss  of  Document. — Where  a 
bill  is  founded  on  an  original  agree- 
ment in  writing  and  does  not  mention 
the  loss  of  it,  an  amendment  may  be 
allowed.  Smith  v.  Axtell,  i  N.  J.  Eq. 
494. 

Avoiding  Special  Defense. — If  the  bill 
is  not  so  framed  as  to  avoid  a  special 
defense  set  up  by  the  answer,  such 
special  defense  may  be  met  by  amend- 
ing the  bill.  Connerton  v.  Millar,  41 
Mich.  608. 

Special  replications  are  now  abol- 
ished; and  where  the  defense  set  up 


469 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


stated,  amendments,  however  considerable,  the  purpose  of  which 
is  to  bring  before  the  court  other  parties  to  the  controversy,  or 
to  strengthen,  elucidate,  or  explain  the  case  made  by  the  original 
bill,  or  to  put  in  issue  some  material  fact  directly  or  indirectly 
affecting  the  case  so  made,  will  be  freely  allowed  at  any  stage 
of  the  proceedings.* 


by  answer  is  of  a  character  to  require 
the  plaintiff  to  make  a  new  issue  in 
order  to  meet  it,  he  will  not  be  per- 
mitted to  do  so  without  amending  his 
bill  and  adapting  it  to  the  case  upon 
which  he  expects  to  sustain  himself. 
Van  Riper  v.  Claxton,  9  N.  J.  Eq.  302; 
McClane  v.  Shepherd,  21  N.  J.  Eq.  76; 
Brown  v.  Vandyke,  8  N.  J.  Eq.  795; 
Cowart  V.  Perrine,  21  N.  J.  Eq.  loi; 
Hoff  V.  Burd,  17  N.  J.  Eq.  200;  Elliot 
V.  Trahern,  35  W.  Va.  634;  Chalfants 
V.  Martin,  25  W.  Va.  394;  Tarleton  v. 
Vietes,  6  111.  470;  Lindsay  v.  Lynch,  4 
Fla.  418. 

Avoiding  Implication  of  Laches. — An 
amendment  of  the  bill  may  be  allowed 
by  the  insertion  of  allegations  so  as  to 
relieve  the  plaintiff  of  the  charge  of 
laches  in  bringing  suit.  Copen  v. 
Flesher,  i  Bond  (U.  S.)  440. 

Changing  Form  of  Eemedy. — If  a  com- 
plainant proceeds  by  supplemental 
bill  where  he  should  have  proceeded 
by  petition  praying  for  an  interlocu- 
tory order,  the  court  may  direct  an 
amendment  in  point  of  form.  Miller 
V.  Saunders,  18  Ga.  492. 

Immaterial  Amendment. — An  amend- 
ment of  the  bill  should  not  be  allowed 
if  it  charges  no  material  fact  not  con- 
tained in  the  original  bill.  Richard- 
son V.  Wolfe,  31  Miss.  616. 

1.  Commerce  Nat.  Bank  v.  Smith 
(R.  I.,  1892),  24Atl.  Rep.  469. 

Where  enough  appears  upon  the 
face  of  the  bill  to  suggest  to  the  court 
that  the  complainant  is  entitled  to  re- 
lief provided  the  proper  allegations 
are  made,  leave  to  amend  for  that 
purpose  will  usually  be  granted. 
Wynne  v.  Alford,  29  Ga.  694. 

Additional  Relief.— New  matter  or  a 
new  claim  may  be  introduced  by 
amendment  entitling  the  complainant 
to  additional  or  different  relief  from 
that  specially  prayed  for  in  the  original 
bill,  if  it  is  not  repugnant  to  its  prayer 
and  purpose.  File  v.  Kennamer,  90 
Ala.  470. 

Matters  of  Form. — "  In  courts  of 
equity,  mispleading  in  matter  of  form 
is    never    allowed   to    prejudice    any 


party;  the  real  and  substantial  merits 
of  the  case  are  always  looked  to." 
Bearing  v.  Charleston  Bank,  6  Ga. 
584,  citing  Story  Eq.  PI.  §§  678,  8S3; 
2  Maddock  Ch.  Pr.  368. 

Title  of  Bill. — A  complainant  may 
amend  the  title  of  his  bill  so  as  to 
make  it  conform  to  the  character  of 
the  case  made  by  it.  Bearing  v. 
Charleston  Bank,  6  Ga.  581,  where  the 
bill  was  entitled  in  the  nature  of  a  bill 
of  review,  and  it  was  amended  by 
striking  out  the  title,  as  it  was  really 
a  bill  for  discovery  and  relief. 

Waiving  Discoverj  .—After  a  bill  seek- 
ing a  discovery  hac  been  answered, 
the  complainant  cannot  amend  his  bill 
so  as  to  waive  discovery  and  thus  get 
clear  of  the  defendant's  answer.  Allen 
V.  Woodson,  50  Ga.  53;  so  decided  al- 
though the  Code  authorized  a  com- 
plainant to  waive  discovery. 

Waiving  Oath  to  Amendment. — So,  al- 
though the  statute  permitted  a  com- 
plainant to  waive  an  answer  under 
oath,  he  was  not,  after  a  sworn  an- 
swer filed,  allowed  to  amend  his  bill 
so  as  to  dispense  with  the  oath  and 
deprive  the  defendant  of  the  benefit  of 
it.  Burras  v.  Looker,  4  Paige  (N.  Y.) 
227. 

But  where  no  answer  had  been  put 
in  to  an  injunction  bill,  leave  was 
granted  to  amend  so  as  to  waive  an 
answer  under  oath.  Bronsonz'.  Green, 
Walk.  (Mich.)  486. 

Inserting  Facts  Set  Up  in  Answer. — If 
the  defendant  has  answered,  and  the 
complainant  has  thereby  obtained 
further  knowledge  of  facts  or  circum- 
stances which  may  aid  him  in  the  case, 
he  may  amend  his  bill  by  inserting 
the  facts  of  which  he  has  thus  become 
informed.  Buckley  v.  Corse,  i  N.  J. 
Eq.  504. 

Where  the  complainant  in  a  fore- 
closure bill  held  subsequent  mortgages 
not  referred  to  in  his  bill,  and  the  an- 
swer of  a  defendant  brought  in  as  a 
subsequent  encumbrancer  referred  to 
such  intervening  mortgages,  and  based 
asserted  equities  upon  their  existence, 
it  was  held  competent  to  permit  the 

70 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  iu  Equity. 


(2)  Matter  Occurring  Pending  Suit. — The  general  rule  is  that 
no  material  fact  which  has  occurred  since  filing  the  original  bill 
can  be  introduced  in  an  amended  bill,  and  that  the  party  can 
avail  himself  of  such  fact  only  by  filing  a  supplemental  bill.*  But 
it  seems  that,  before  answer,  demurrer,  or  plea,  the  bill  may  be 
amended  by  adding  matter  that  has  occurred  since  it  was  filed.* 
Where  an  executor  appointed  by  a  foreign  tribunal  files  a  bill 
and  subsequently  takes  out  letters  testamentary  in  the  state 
where  the  suit  is  pending,  he  may  allege  such  fact  by  way  of 
amendment.* 


plaintiff  to  amend  his  bill  at  rhe  hear- 
ing, so  as  to  make  it  aver  the  facts  as 
to  these  mortgages.  Slater  v.  Breese, 
36  Mich.  77. 

Facts  Known  to  Defendant. — In  Mc 
Mann  v.  Westcott,  47  Mich.  177,  the 
plaintiff  was  allowed  to  amend  by 
bringing  forward  an  equity  which  by 
mistake  had  been  left  out  of  the 
original  bill,  and  which  the  defendant 
must  have  known  to  have  been  the 
real  cause  of  action. 

Traversing  Defensive  Averments. — An 
amendment  of  the  bill  is  neither  neces- 
sary nor  proper  to  traverse  defensive 
averments  brougl^  forward  by  the 
answer.    Lanier  v.  ilill,  30  Ala.  iii. 

Multifarious  Amendment. — An  amend- 
ment which  would  render  the  bill  mul- 
tifarious will  not  be  allowed.  Jordan 
V.  Jordan,  16  Ga.  446. 

1.  Copen  V.  Flesher,  i  Bond  (U. 
S.)  440;  Lyster  v.  Stickney,  12  Fed. 
Rep.  609:  Clark  v.  Hall,  7  Paige  (N,  Y.) 
382;  Candler  v.  Pettit,  i  Paige  (N.  Y.) 
168,  19  Am.  Dec.  399;  Bannon  v. 
Comegys,  69  Md.  411;  Killinger  v. 
Hartman,  21  Neb.  297;  Birmingham  z/. 
Lesan,  77  Me.  494;  Hammond  v.  Place, 
Harr.  (Mich.)  438.  See  also  Nichols 
V.  Rogers,  139  Mass.  146;  Camp  v. 
Bancroft,  26  Ga.  393. 

Amendment  of  Bill  of  Revivor. — New 
matter  accruing  since  the  bill  was  filed 
cannot  be  incorporated  into  a  bill  of 
revivor  by  amendment.  Mason  v. 
Hartford,  etc.,  R.  Co.,  10  Fed.  Rep. 
334- 

Demurrer  to  New  Hatter.  —  An 
amended  bill  is  demurrable  when  it 
seeks  relief  based  upon  a  transaction 
which  occurred  after  the  original  bill 
was  filed.  Wright  v.  Frank,  61  Miss. 
32. 

Ignorance  of  Existing  Matter. — But 
matter  which  existed  at  the  time  the 
bill  was  filed,  but  which  was  omitted 
by  ignorance  or  mistake,  is  a  proper 


subject    for  amendment.     Walker    v. 
Hallett,  I  Ala.  379. 

Inchoate  Bight. — In  Butler  v.  Butler, 
4  Litt.  (Ky.)  202,  there  is  a  dictum 
that,  where  a  suit  is  commenced  before 
the  cause  of  action  is  consummated, 
but  it  becomes  complete  during  the 
pendency  of  the  suit,  the  fact  may  be 
stated  by  an  amended  bill.  See  also 
Leach  v.  Gentry,    i  J.  J.  Marsh.  (Ky.) 

349- 

New  Law  Pending  Suit. — In  Sanborn 
V.  Sanborn,  7  Gray  (Mass.)  142,  a  bill 
for  specific  performance,  it  was  held 
that  plaintiff  could  not  amend  after 
master's  report  so  as  to  obtain  relief 
on  the  ground  of  fraud,  that  branch 
of  equity  jurisdiction  having  been 
conferred  upon  the  court  pending  the 
suit.  But  i"<?w/«r^  Richmond  J/.  Irons, 
121  U.  S.  27;  Henry  v.  Travelers'  Ins. 
Co.,  45  Fed.  Rep.  299 f  George  v.  Reed, 
loi  Mass.  378. 

And  in  Harvey  v.  Lord,  11  Biss.  (U. 
S.)  144,  it  was  held  that,  where  pend- 
ing the  disposition  of  a  bill  in  equity  a 
new  law  grants  to  the  court  enlarged 
powers,  the  complainant  may  file  an 
amended  bill  in  order  to  bring  his  suit 
within  the  provisions  of  the  new  law. 

In  Georgia  supplemental  bills  are 
expressly  dispensed  with  by  the  Code, 
and  matters  formerly  proper  for  such 
bills  may  be  set  up  by  amendment. 
Merchants',  etc.,  Nat.  Bank  v.  Masonic 
Hall,  65  Ga.  603. 

So  in  Alabama,  Jones  v.  McPhillips, 
82  Ala.  102;  Alabama  Warehouse  Co. 
V.  Jones,  62  Ala.  550;  Planters',  etc., 
Mut.  Ins.  Co.  V.  Selma  Sav.  Bank,  63 
Ala.  585,  holding,  however,  that  if  the 
original  bill  does  not  make  out  a  case 
for  relief,  facts  subsequently  occur- 
ring cannot  avail  the  complainant. 

2.  Story  Eq.  PI.  §  885;  Luft  v. 
Gossran.  31  111.  App.  530. 

3.  Buck  V.  Buck,  11  Paige  (N.  Y.) 
170. 


471 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


{^)  Jurisdictional  Averments. — If,  as  the  case  is  stated  in  the 
original  bill,  the  court  has  no  jurisdiction  either  of  the  parties  or 
of  the  subject-matter,  the  court  has  no  authority  to  permit  an 
amendment.*  But  where  the  court  has  jurisdiction  of  the  sub- 
ject presented  by  the  bill,  allegations  merely  defective  may  be 
cured  by  amendment.  Thus,  in  the  federal  courts,  if  an  aver- 
ment of  the  plaintiff's  citizenship  is  defective,  the  court  will  per- 
mit an  amendment.*  So,  an  amendment  will  be  allowed  where  a 
necessary  averment  of  the  residence  of  a  party  has  been  omitted.' 

(4)  Making  a  New  Case — (a)  The  Rule  stated.— While  amendments 
are  liberally  allowed  as  to  parties,  as  to  prayer  for  relief,  and  as 
to  substance  germane  to  and  in  enlargement  or  explanatory  of 
the  substantial  purpose  of  the  bill,  an  amendment  cannot  be 
allowed  which  would  in  effect  amount  to  the  institution  of  a  new 
and  wholly  different  suit,  either  as  to  parties  or  as  to  cause  of 
action  ;*  especially  where  all  the  facts  pertaining  to  the  transac- 


The  same  rule  applies  to  adminis- 
trators taking  out  ancillary  letters  of 
administration  after  suit  brought. 
Bradford  v.  Felder,  2  McCord  Eq.  (S. 
Car.)  168;  Black  v.  Henry  G.  Allen 
Co.,  42  Fed.  Rep.  618;  Swatzel  v.  Ar- 
nold, Woolw.  (U.  S.)  383.  See  also 
Humphreys  v.  Humphreys,  3  P.  Wms. 
349;  Grist  V.  Forehand,  36  Miss.  6g,  a 
suit  by  a  foreign  guardian.  Contra, 
Mason  v.  Hartford,  etc.,  R.  Co.,  10 
Fed.  Rep.  334. 

1.  Cromwell  v.  Cunningham,  4 
Sandf.  Ch.  (N.  Y.)  3S4,  where  the 
plaintiff,  suing  to  foreclose  a  mortgage 
of  lands  situated  in  another  judicial 
circuit  where  all  the  defendants  re- 
sided, sought  to  introduce  a  party 
as  a  defendant  who  resided  in  the  cir- 
cuit where  the  suit  was  brought — /leld, 
that  an  order  for  leave  to  amend 
would  be  null  and  ineffectual. 

So  where  the  court  had  no  jurisdic- 
tion of  the  case  when  the  original  bill 
was  filed,  which  was  for  an  attach- 
ment for  a  purely  legal  claim,  juris- 
diction could  not  be  conferred  by  an 
amended  bill.  Livey  v.  Winton,  30 
W.  Va.  554- 

2.  Hilliard  v.  Brevoort,  4  McLean 
(U.S.)  24.  See  also  Continental  Ins. Co. 
V.  Rhoads,  119  U.  S.  237;  Halsted  v. 
Buster,  119  U.  S.  341;  Denny  v.  Pi- 
roni,  141  U.  S.  121. 

3.  People   V.    McCaffrey,   75   Mich. 

115- 

4.  United  States. — Shields  v.  Barrow, 
17  How.  (U.  S.)  130;  New  Mexico  Land 
Co.  V.  Elkins,  20  Fed.  Rep.  545;  Good- 
year V.  Bourn,  3  Blatchf.  (U.  S.)  266. 


Vermont. — Hill  v.  Hill,  53  Vt.  578. 

Mississippi.  —  Wright  v.  Frank,  61 
Miss.  32;  Miazza  v.  Yerger,  53  Miss. 
135. 

West  Virginia. — Sebornz/.  Beckwith, 
30  W.  Va.  774;  Livey  v.  Winton,  30 
W.  Va.  554;  Piercy  v.  Beckett,  15  W. 
Va.  444. 

Alabama. — Scott  v.  Ware,  64  Ala. 
174 ;  Marshall  v.  Olds,  86  Ala.  296; 
Glass  V.  Glass,  76  Ala.  368;  Ward 
V.  Patton,  75  Ala.  207;  Howell  v. 
Motes,  54  Ala.  i;  Larkins  v.  Biddle, 
21  Ala.  252;  Gardner  v.  Pickett,  46 
Ala.  191;  Penn  v.  Spence,  54  Ala.  35; 
Blackwell  v.  Blackwell,  33  Ala.  57,  70 
Am.  Dec.  556;  Park  v.  Lide,  90  Ala. 
246;  Collins  V.  Stix,  96  Ala.  338. 

North  Carolina. — Tomlinson  v.  Sav- 
age. 2  Dev.  &  B.  Eq.  (N.  Car.)  68. 

Tennessee. — Tappan  v.  Western,  etc., 
R.  Co.,  3  Lea  (Tenn.)  106. 

Pennsylvania.  —  Wilhelm's  Appeal, 
79  Pa.  St.  120;  Forward  School  Dist. 
Appeal,  56  Pa.  St.  318. 

New  York.  -Verplanck  v.  Mercantile 
Ins.  Co.,  I  Edw.  Ch.  (N.  Y.)46;  Curtis 
V.  Leavitt,  11  Paige  (N.  Y.)  386,  4  Edw. 
Ch.  (N.  Y.)  246;  Lloyd  v.  Brewster,  4 
Paige  (N.  Y.)  537,  27  Am.  Dec.  88; 
Dodd  V.  Astor,  2  Barb.  Ch.  (N.  Y.) 
395- 

Michigan. — Schafberg  v.  Schafberg, 
52  Mich.  429;  Livingston  v.  Hayes,  43 
Mich.  129;  Green  v.  Green,  26  Mich. 
437- 

Virginia. — Shenandoah,  etc.,  R.  Co. 
V.  Griffith,  76  Va.  913;  Hurt  v.  Jones, 
75  Va.  341;  Belton  v.  Apperson,  26 
Gratt.  (Va.)  207. 


472 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


tion  were  within  the  knowledge  of  the  complainant ;  *  or  where 
the  statutory  period  of  limitation  has  expired  and  the  defend- 
ants are  entitled  to  the  benefit  of  it;*  or  after  the  cause  is  at 
issue,^  or  referred  to  a  master  to  take  an  account,*  or  has  been 
heard  or  set  down  for  hearing;*  or  after  the  proofs  have  been 
taken  and  closed. *• 

Upon  reversing  a  decree  the  appellate  court  will  not  grant 
leave  to  the  complainant  to  amend  when  the  only  amendment 
by  which  he  could  obtain  relief  would  be  in  effect  the  insti- 
tution of  a  new  suit  upon  a  different  and  independent  claim  or 
right.'^  New  allegations  inconsistent  with  and  repugnant  to  the 
original  bill  belong  to  this  class  and  exceed  the  province  of  amend- 
ment.'* 


Georgia. — Hart  v.  Henderson,  66  Ga. 
568;  Smith  V.  Ardis,  49  Ga.  602. 

Massachusetts. — Pratt  v.  Bacon,  10 
Pick.  (Mass.)  123;  Darling  v.  Roarty,  5 
Gray  (Mass.)  71;  Homer  v.  Homer, 
107  Mass.  82. 

English. — Watts  v.  Hyde,  2  Ph.  406; 
Palk  V.  Clinton,  12  Ves.  Jr.  62.  Co7n- 
fare  Neale  v.  Neale,  9  Wall.  (U.  S.) 
i;  Nellis  v.  Pennock  Mfg.  Co.,  38 
Fed.  Rep.  379;  Oglesby  v.  Attrill,  14 
Fed.  Rep.  214. 

Alternative  Belief. — While  a  bill  may 
be  framed  in  a  double  aspect  or  in  the 
alternative,  or  if  not  so  framed  origi- 
nally may  by  amendment  be  converted 
into  a  bill  of  that  character,  this  does 
not  authorize  the  introduction  into  the 
bill  as  originally  filed  or  as  amended 
of  several  inconsistent  claims  to  relief 
founded  on  different  states  of  facts 
either  of  which,  if  true,  would  entitle 
the  complainant  to  relief  of  a  wholly 
different  character;  but  each  alterna- 
tive must  be  the  foundation  for  like 
relief  or  for  relief  of  the  same  char- 
acter.    Ward  V.  Patton,  75  Ala.  207. 

Upon  General  Demurrer  Sustained. — 
Where  a  demurrer  going  to  the  whole 
merits  of  a  bill  is  sustained  for  want 
of  equity,  it  is  not  the  practice  to  al- 
low amendments  so  as  to  make  a  new 
case  with  new  parties.  March  v.  May- 
ers, 85  111.  177. 

Multifarious  Amendment. — There  is 
no  error  in  disallowing  an  amendment 
which  would  make  a  bill  multifarious. 
Parsons  v.  Johnson,  84  Ala.  254;  Rog- 
ers V.  Simpson,  10  Heisk.  (Tenn.)  655. 

In  Texas  amendments  introducing  a 
new  cause  of  action  are  permitted 
upon  payment  of  costs,  and  they  are 
open  to  the  defense  of  the  statute  of 
limitations  or  other  proper  defense. 
Henderson  v.  Kissam,  8  Tex.  46. 


In  Georgia  it  has  been  held,  under 
a  statute  making  the  allowance  of 
amendments  peremptory,  that  the  de- 
fendant may  amend  though  the  result 
be  to  destroy  his  bill,  but  that  in  such 
case  he  may  be  turned  out  of  court  on 
demurrer  or  motion  to  dismiss.  Van- 
derzer  v.  McMillan,  28  Ga.  339. 

In  Uassachusetts,  under  special  cir- 
cumstances, a  plaintiff  was  allowed  to 
introduce  substantially  a  new  cause  of 
action  in  Drew  v.  Beard,  107  Mass. 
64. 

New  Case  by  Amendment  to  Cross-bill. 
— An  amendment  to  a  cross-bill  was 
allowed  although  it  presented  a  new 
and  independent  basis  of  relief,  where 
the  new  facts  were  stated  in  the  com- 
plainant's original  bill  and  proved  by 
the  evidence.  Chicago,  etc.,  R.  Co.  v. 
Chicago  Third  Nat.  Bank,  134  U.  S. 
276. 

1.  Judson  V.  Courier  Co.,  25  Fed. 
Rep.  705;  Walker  v.  Brown,  45  Miss. 
615. 

2.  Judson  V.  Courier  Co.,  25  Fed. 
Rep.  705;  King  v.  Avery,  37  Ala.  169. 

3.  Codington  v.  Mott,  14  N.  J.  Eq. 
430,  82  Am.  Dec.  258. 

4.  Hazard  v.   Hidden,   14  R.  I.  356. 

5.  Commerce  Nat.  Bank  v.  Smith 
(R.  I.,  1892),  24  Atl.  Rep.  469;  Piatt  v. 
Squire,  5  Cush.  (Mass.)  551;  McKinley 
V.  Irvine,  13  Ala.  681;  Patterson  v. 
Fowler,  23  Ark.  459.  See  also  Clark 
V.  Keene's  First  Congregational  Soc, 
46  N.  H.  272. 

6.  Dodd  V.  Astor,  2  Barb.  Ch.  (N. 
Y.)  395. 

7.  Fenno  v.  Coulter,  14  Ark.  38; 
QooVv.  Bronough,  13  Ark.  183;  Squire 
V.  Hewlett,  141  Mass.  597;  Crabb  v. 
Thomas,  25  Ala.  212. 

8.  See  infra , "  (5)  Inconsistent  and  Re- 
pugnant Amendments." 


473 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(b)  Tests. — Whether,  on  the  exercise  of  the  right,  an  amendment 
falls  within  the  limitations  is  sometimes  a  subtle  and  difficult 
matter  requiring  nice  discrimination.  The  usual  tests  are  whether 
the  original  and  amended  bills  found  the  right  of  complainant  to 
relief  on  different  and  inconsistent  titles,*  or  upon  entirely  incon- 
sistent claims  arising  out  of  differing  states  of  facts  ;*  or  whether 
the  same  defenses  are  applicable  ;*    or  whether  the  kind  or  char- 


1.  Moore  v.  Alvis,  54  Ala.  356. 
Changing  Fraud  to  Trust. — The  origi- 
nal bill  being  by  a  wife  who  alleged 
that  she  had  bought  property  through 
the  agency  of  her  husband,  and  that 
he  had  been  deceived  as  to  its  value 
by  the  vendor,  and  that  she  had  paid 
its  full  value,  and  praying  that  the 
vendor  be  required  to  make  title  to 
her  and  be  enjoined  from  interfering 
with  her  possession,  it  could  not  be 
amended  by  alleging  that  her  husband 
bought  the  land  for  himself,  but  used 
money  belonging  to  her  with  the 
knowledge  of  the  vendor,  and  praying 
that  she  be  reimbursed.  Hart  v.  Hen- 
derson, 66  Ga.  568. 

Different  Titles  and  Parties. — In  Mar- 
shall V.  Olds,  86  Ala.  296,  the  bill 
sought  to  enforce  a  resulting  trust  in 
lands,  and  it  was  held  that  an  amend- 
ment asserting  title  as  an  heir,  and 
bringing  in  the  other  heirs  as  coplain- 
tiffs,  could  not  be  allowed.  Penn  v. 
Spence,  54  Ala.  35,  is  another  instance 
of  departure  in  amendment  by  setting 
up  a  different  title  to  relief. 

Changing  Express  to  Besulting  Trust. — 
A  bill  was  filed  to  enforce  a  trust  in 
certain  lands,  and  alleged  an  express 
trust.  The  complainant  was  allowed 
to  amend  by  inserting  allegations,  from 
which  a  trust  resulted.  Hall  v.  Cong- 
don,  56  N.  H.  279. 

A  Bill  of  Review  may  be  amended,  it 
seems,  into  a  bill  to  impeach  a  decree 
for  fraud.  Massie  v.  Matthews,  12 
Ohio  353. 

A  Bill  for  Partition  may  be  amended 
so  as  to  constitute  a  bill  for  an  ac- 
count. Hodges  V.  Pingree,  10  Gray 
(Mass.)  14. 

A  Bill  for  the  Sale  of  an  infant's  lands 
may  be  amended  into  a  bill  for  parti- 
tion.    Watson  V.  Godwin,  4  Md.  Ch. 

25- 

2.   Ward  v.  Patton,  75  Ala.  207. 

Charging  Administrator  Individually. 
— Where  a  bill  was  filed  against  a  de- 
fendant as  administrator  seeking  a 
decree  against  him  in  such  representa- 
tive capacity,  a  demurrer  to  an  amend- 


ment  charging  him  individually  was 
sustained.   Smith  v.  Ardis,  49  Ga.  602. 

Alleging  Dissolution  of  Corporation. — 
After  a  decision  upon  a  plea  to  the 
jurisdiction  that  a  bill  between  mem- 
bers of  a  manufacturing  corporation 
cannot  be  sustained,  the  court  will  not 
grant  leave  to  amend  by  averring  that 
the  corporation  had  been  dissolved. 
Pratt  V.  Bacon,  10  Pick.  (Mass.)  123. 

Creditor's  Bill. — It  is  proper  to  allow 
a  judgment  creditor's  bill  to  be  amend- 
ed so  as  to  show  that  the  legal  remedy 
was  exhausted.  Earle  v.  Grove,  92 
Mich.  285. 

Joining  Wife  with  Husband. — Where 
the  original  bill  was  filed  by  the 
husband  alone,  and  sought  to  enforce 
a  vendor's  lien  on  land  for  the  un- 
paid purchase-money,  evidenced  by 
a  promissory  note  payable  to  the  hus- 
band, an  amended  bill  may  be  allowed 
joining  the  wife  as  a  complainant  and 
alleging  that  the  land  belonged  to  her 
separate  estate.  Pitts  v.  Powledge, 
56  Ala.  147. 

Mortgage  and  Vendor's  Lien. — Where 
an  original  bill  shows  a  sale  of  lands 
and  the  execution  of  a  bond  to  make 
title  to  defendant,  his  entry  under  the 
purchase,  and  his  execution  of  a  note 
therefor  reciting  that  it  was  given  for 
the  purchase-money  of  the  lands,  and 
his  failure  to  pay  it,  and  prays  a  sale 
to  enforce  the  vendor's  lien;  an  amend- 
ment alleging  that  defendant,  being 
previously  indebted  to  him,  gave  the 
note  mentioned,  and  made  a  deed  ab- 
solute of  the  lands  described  in  it,  to 
complainant  to  secure  the  note,  where- 
upon the  latter,  as  part  of  the  trans- 
action, gave  defendant  a  bond  to  make 
title  on  payment  of  the  note,  and  aver- 
ring that  the  transaction  constituted 
the  deed  a  mortgage,  and  praying  its 
foreclosure  by  sale  of  such  lands — is 
not  a  departure  and  does  not  make  a 
new  case.  Moore  v.  Alvis,  54  Ala  356. 
3.  Park  v.  Lide,  90  Ala.  246;  Cald- 
well V.  King,  76  Ala.  149;  Winston  v. 
Mitchell,  93  Ala.  554. 
Suing  in  Behalf  of  a  Class.— A  bill  filed 


474 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


acter  of  relief,  not  the  degree  or  extent,  proper  to  one  state  of 
facts  is  inappropriate  to  the  other  ;*  in  other  words,  whether  the 
matters  of  the  original  and  amended  bills  could  have  been  prop- 
erly stated  in  the  alternative  in  the  original  bill.* 


in  one's  own  name  may  be  amended 
by  the  addition  of  words  sufficient  to 
make  it  a  bill  in  behalf  of  a  class. 
Richmond  v.  Irons,  121  U.  S.  27. 

1.  Rapier  v.  Gulf  City  Paper  Co., 
69  Ala.  476;  Park  v.  Lide,  90  Ala.  246; 
Baker  v.  Graves  (Ala.,  1893),  13  So. 
Rep.  275;  Winston  v.  Mitchell,  93  Ala. 
554;  Sanborn  v.  Sanborn,  7  Gray 
(Mass.)  142. 

Seeking  Different  Relief  on  Bills  for 
Specific  Performance. — A  bill  asking  for 
the  specific  performance  of  a  contract 
cannot,  after  issue  joined,  be  amended 
so  as  to  charge  that  the  contract  was 
fraudulent  and  pray  that  it  may  be 
declared  void.  Codington  v.  Mott,  14 
N.  J.  Eq.  430,  82  Am.  Dec.  258.  But 
in  Papin  v.  Goodrich,  103  111.  86,  and 
Parrill  v.  McKinley,  9  Gratt.  (Va.)  i, 
58  Am.  Dec.  212,  the  bill  was  for  spe- 
cific performance,  and  the  plaintiff  was 
permitted  to  file  an  amended  bill  ask- 
ing for  a  rescission  of  the  contract. 
See  also  Belton  v.  Apperson,  26  Gratt. 
(Va.)  207. 

Upon  a  bill  for  the  specific  perform- 
ance of  a  contract  for  the  exchange  of 
lands,  if  in  the  progress  of  the  cause 
it  appears  that  the  defendant  cannot 
comply  with  his  contract,  the  plaintiff 
may  amend  and  ask  for  a  rescission  of 
the  contract  and  for  such  other  relief 
as  he  may  be  entitled  to.  Parrill  v. 
McKinley,  9  Gratt.  (Va.)  i,  58  Am. 
Dec.  212. 

Where  a  bill  for  the  specific  perform- 
ance of  a  contract  of  sale  was  amended 
by  setting  up  false  and  fraudulent 
representations,  not  discovered  to  be 
false  until  after  the  filing  of  the  origi- 
nal bill,  and  praying  for  a  rescission 
of  the  contract,  the  amendment  was 
held  to  have  been  properly  allowed. 
Jefferson  v.  Kennard,  77  111.  246. 

The  court  has  no  power  to  allow  a 
bill  for  specific  performance  to  be 
amended  so  as  to  stand  as  an  action  of 
contract,  although  a  statute  provides 
that  suits  for  specific  performance 
shall  be  by  action  of  contract.  The 
effect  of  the  statute  is  to  deprive  the 
court  of  jurisdiction.  Darling  v. 
Roarty,  5  Gray  (Mass.)  71. 

Exactly  Contrary  Belief. — In  Mayor 
V.  Dry,  2  Sim.  &  Stu.  113,  the  plaintiff 


by  his  original  bill  sought  to  set  aside 
a  deed,  and  after  answer  was  filed 
amended  his  bill  and,  presenting  a 
different  state  of  facts,  sought  to  es- 
tablish the  deed,  and  such  amendment 
was  allowed. 

Amendment  Setting  Up  a  Trust. — A 
wife's  land  having  been  sold  under  a 
mortgage  and  bid  in  by  her  husband's 
brother,  who  afterwards  conveyed  to 
the  husband,  a  bill  by  her  heirs  charg- 
ing that  he  had  paid  the  debt  with  her 
money,  and  that  the  foreclosure  was 
collusive,  cannot,  on  failure  of  proof 
that  the  mortgage  was  not  a  valid  and 
subsisting  lien,  be  amended  so  as  to 
charge  him  as  having  purchased  in 
trust  for  his  wife,  and  to  compel  a 
conveyance  on  repayment  of  his  ex- 
penditures in  removing  the  incum- 
brance.     Park  V.  Lide,  90  Ala.  246. 

Divorce  Bill. — A  divorce  bill  cannot 
be  amended  by  substituting  a  prayer 
that  the  marriage  be  annulled,  Schaf- 
berg  V.  Schafberg,  52  Mich.  429;  or  so 
as  to  make  a  case  entirely  outside  of 
the  issue  in  the  bill.  Green  v.  Green, 
26  Mich.  437.  A  proper  amendment  to 
a  divorce  bill  is  shown  in  Grove's 
Appeal,  37  Pa.  St.  443. 

Equity  to  Law. — A  bill  in  equity  can- 
not be  converted  by  amendment  into 
an  action  at  law.  Homer  v.  Homer, 
107  Mass.  82. 

Law  to  Equity. — Where  the  court  has 
no  jurisdiction  of  the  original  cause 
(an  attachment  for  a  purely  legal 
claim),  an  amended  bill  cannot  be  filed 
to  give  the  court  jurisdiction.  Livey 
V.  Winton,  30  W.  Va.  554. 

Amendment  of  Creditor's  Bill. — Under 
a  bill  by  a  creditor  in  behalf  of  him- 
self and  all  other  creditors  of  the  de- 
ceased debtor,  the  complainant  cannot 
by  an  amended  bill  ask  the  foreclosure 
of  a  mortgage  given  to  secure  his  in- 
dividual debt.  Scott  V.  Ware,  64  Ala. 
174. 

Foreclosure  and  Cloud  on  Title. — A  bill 
asking  for  the  reformation  of  a  mort- 
gage and  foreclosure  thereof  may  be 
amended  so  as  to  ask  for  reformation 
and  removal  of  a  cloud  on  complain- 
ant's title  as  mortgagee.  Hawkins  v. 
Pearson,  96  Ala.  369. 

2.  Ward  v.  Patton.  75  Ala.  207. 


475 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(c)  Objection  How  Taken. — Where  an  amendment  is  offered  which  is 
obnoxious  to  the  rule,  it  may  be  disallowed  ;*  or,  if  allowed,  it 
may  be  taken  off  the  files  on  motion,*  or  demurred  to,*  or  the 
bill  may  be  dismissed  without  prejudice.'* 

(5)  Inconsistejit  or  Repugnant  Aniejidments. — Matter  inconsistent 
with  or  repugnant  to  the  substantial  allegations  of  the  original 
bill  cannot  be  introduced  by  amendment.* 


Ejectment  and  Foreclosure. — A  bill  in 
aid  of  ejectment  proceedings  cannot 
be  converted  into  a  foreclosure  bill  by 
merely  substituting  an  ordinary  prayer 
for  foreclosure.  Livingston  v.  Hayes, 
43  Mich.  129. 

Amending  Prayer  of  Bill. — A  bill  may 
be  amended  by  adding  to  the  prayer 
for  special  relief  a  prayer  for  general 
relief.      McCrum   v.    Lee,    38  W.  Va. 

583. 

Praying  for  Discovery. — A  petition  in 
which  discovery  is  waived  may  be 
amended  by  striking  out  the  waiver 
and  inserting  a  prayer  for  discovery. 
Price  V.  Price,  90  Ga.  244. 

Cloud  on  Title. — Where  a  bill  to  en- 
join a  foreclosure  sale  alleged  that  the 
mortgagor  and  mortgagee  fraudulent- 
ly concealed  the  existence  of  the  mort- 
gage from  the  plaintiff  when  he  pur- 
chased the  land,  an  amendment  was 
allowed  as  not  incompatible  which 
alleged  that  the  mortgage  had  been 
satisfied  and  that  the  mortgagee  held 
it  as  a  cloud  on  plaintiff's  title.  Har- 
rison V.  Yerby(Ala.,  1893),  14  So.  Rep. 
321. 

Livingston   v.    Hayes,    43    Mich. 
Pratt  V.   Bacon,  10  Pick.  (Mass.) 


Attrill,  14  Fed.   Rep. 


1. 

129; 
123. 

2.  Oglesby  v. 
214. 

3.  Ward  v.  Patton,  75  Ala.  207; 
Wright  V.  Frank,  61  Miss.  32,  holding 
that  failure  to  except  to  an  order 
granting  leave  to  amend  does  not  pre- 
clude the  defendant  from  questioning 
the  propriety  of  the  amendment  by 
demurrer.  Ansley  v.  Glendenning, 
56  Ga.  286;  Smith  v.  Ardis,  49  Ga.  602; 
Scott  V.  Turley,  9  Lea  (Tenn.)  631, 
639. 

Waiver  of  Objection. — That  the  objec- 
tion may  be  waived  by  answering  the 
amendment,  see  the  case  last  cited. 

4.  Tomlinson  v.  Savage,  2  Dev.  & 
B.  Eq.  (N.  Car.)  68. 

5.  Ogden  v.  Moore,  95  Mich.  290; 
Freeman  v.  Michigan  State  Bank, 
Harr.  (Mich.)  311;  Hill  v.  Hill,  53  Vt. 
578;  Metropolitan    Nat.    Bank   v.    St. 


Louis  Dispatch  Co.,  38  Fed.  Rep.  57; 
Ray  V.  Womble,  56  Ala.  32;  Rumbly 
V.  Stainton,  24  Ala.  712;  Howell  v. 
Motes,  54  Ala.  i;  Winter  z/.  Quarles, 
43  Ala.  692,  holding  that  repugnancy 
is  ground  for  demurrer.  Seborn  v. 
Beckwith,  30  W.  Va.  774;  Milton  v. 
Hogue,  4  Ired.  Eq.  (N.  Car.)  415;  Cole- 
man 7/.  Pinkard,  2  Humph.  (Tenn.)  185; 
Bosley  v.  Phillips,  3  Tenn.  Ch.  649. 
See  also  Marble  v.  Bonhotel,  35  111. 
240. 

In  Injunction  Bills.  —  Repugnant 
amendments  are  particularly  objec- 
tionable in  injunction  bills,  where  the 
amendments  must  be  verified.  .Hill 
V.  Hill,  53  Vt.  578.  Compare  Hall  v. 
Fisher,  3  Barb.  Ch.  (N.  Y.)  637. 

Multifariousness. — Leave  to  file  an 
amendment  which  makes  the  bill 
multifarious  may  be  refused.  Parsons 
V.  Johnson,  84  Ala.  254;  Rogers  v. 
Simpson,  10  Heisk.  (Tenn.)  655. 

Attacking  Deed  Admitted  as  Valid. — 
The  complainant,  a  judgment  creditor 
of  a  deceased  debtor  and  administra- 
tor of  the  estate  of  the  debtor's  de- 
ceased children,  filed  a  bill  claiming  a 
distributive  share  of  certain  slaves 
conveyed  by  the  debtor  to  his  children 
by  deed  and  the  subjection  of  the  dis- 
tributive share  to  the  payment  of  his 
debt,  and  by  an  amended  bill  charged 
that  the  deed  was  fraudulent  and  void. 
It  was  held  that  the  amended  bill  must 
be  dismissed  for  repugnancy.  Cole- 
man V.  Pinkard,  2  Humph.  (Tenn.)  185. 

Den3ring  Validity  of  Contract  Admit- 
ted.— Where  an  assignee  of  a  chattel 
mortgage  brings  an  action  to  foreclose 
it  and  to  compel  parties  in  possession 
of  part  of  the  property  to  account  for 
the  same,  he  cannot  amend  by  making 
his  assignors  parties,  and  alleging 
that  they  procured  him  to  accept  the 
assignment  by  fraudulent  representa- 
tions, and  praying  that  it  be  declared 
void  and  that  they  be  required  to  re- 
fund to  him  the  money  paid  therefor, 
since  such  amendment  would  be  re- 
pugnant to  the  bill.  Baker  v.  Graves 
(Ala.,  1893),  13  So.   Rep.  275. 


476 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


Limitation  of  the  Eule. — But  in  order  to  be  condemned  on  this 
ground  the  inconsistency  or  repugnancy  must  relate  to  the  pur- 
poses of  the  bill  as  contradistinguished  from  a  mere  modification 
of  the  relief  sought.*  Moreover,  the  facts  originally  set  forth 
may  be  wrong,  and  it  may  be  the  legitimate  purpose  of  the  amend- 
ment to  rectify  the  error.* 


Alleging  Judgment  Void  Admitted 
Valid. — When  the  only  occasion  for 
going  into  equity  is  that  the  judg- 
ment sought  to  be  enjoined  is  conclu- 
sive at  law  in  another  suit  against  the 
complainant,  an  amendment  to  the 
bill,  alleging  that  the  judgment  is  void 
for  want  of  jurisdiction  in  the  court 
that  rendered  it,  is  demurrable,  be- 
cause it  is  inconsistent  with  and  de- 
structive of  the  original  bill.  Ansley 
V.  Glendenning,  56  Ga.  286. 

Contradicting  Admission  of  Existence 
of  Property. — In  a  suit  to  foreclose  a 
mortgage  on  tangible  property,  a  good- 
will, and  a  share  of  the  stock,  the 
original  bill  and  two  amended  bills  al- 
leged that  the  tangible  property  had 
been  destroyed,  and  the  complainant, 
therefore,  could  have  no  relief  in  that 
suit.  Held,  that  leave  to  file  a  third 
amended  bill  alleging  the  existence  of 
the  tangible  property  for  the  purpose 
of  reaching  the  intangible  property 
should  be  denied.  Metropolitan  Nat. 
Bank  v.  St.  Louis  Dispatch  Co.,  38 
Fed.  Rep.  57. 

Contradicting  Reliance  on  Contracts. 
— In  Ogden  v.  Moore,  95  Mich.  290,  an 
original  bill  to  enforce  the  specific  per- 
formance of  an  agreement  to  purchase 
land  alleged  a  written  contract  and 
at  the  same  time  an  oral  agreement 
reserving  a  portion  of  the  land  from 
the  conveyance,  and  that  complainant 
relied  on  the  oral  agreement  and  con- 
sidered it  as  binding  as  the  written 
contract.  A  demurrer  was  sustained, 
and  plaintiff  filed  an  amended  bill,  the 
substantial  averment  of  which  was 
that  complainant  relied,  not  on  the 
oral  agreement,  but  on  the  written 
contract,  and  that  by  mutual  mistake 
the  covenant  reserving  a  portion  of 
the  land  was  omitted.  Held,  that  the 
amendment  was  repugnant,  and  that 
the  bill  should  be  dismissed. 

Effect  of  Repugnant  Amendment. — An 
attachment  and  injunction  sued  out 
under  the  original  bill  will  not  inure 
to  the  benefit  of  an  antagonistic  right 
set  up  by  amendment.  Bosley  r.  Phil- 
lips, 3  Tenn.  Ch.  649. 


In  Texas,  where  the  courts  allow  a 
new  cause  of  action  to  be  introduced 
by  amendment,  if  the  equity  of  the 
amendment  be  contradictory  to  that  in 
the  original  bill,  and  the  relief  of  a  dif- 
ferent character,  the  amendment  will 
not  affect  a  purchaser  who  bought  pre- 
vious to  the  amendment.  Wortham 
V.  Boyd,  66  Tex.  401. 

Striking  Out  Contradicted  Matter. — 
In  Milton  v.  Hogue,  4  Ired.  Eq.  (N. 
Car.)  415,  it  was  held  that,  where  the 
amendment  so  contradicts  the  original 
bill  that  no  decree  can  be  made,  the 
proper  course  is  to  strikeout  so  much 
of  the  original  bill  as  is  contradicted. 

In  Oglesby  v.  Attrill,  14  Fed.  Rep. 
214,  it  was  held  that  an  inconsistent 
amendment  may  be  stricken  from  the 
files  on  motion. 

1.  Cain  V.  Gimon,  36  Ala.  168;  In- 
graham  V.  Foster,  31  Ala.  123.  See  also 
Hart  V.  Clark,  54  Ala.  490;  Fite  v.  Ken- 
namer,  90  Ala.  470. 

Thus,  where  a  bill  seeks  the  can- 
cellation of  a  mortgage  for  certain  al- 
leged reasons,  an  amendment  may  be 
permitted  which  sets  up  other  and  even 
inconsistent  reasons  upon  which  the 
same  relief  is  prayed.  Hardie  v.  Bul- 
ger, 66  Miss.  577. 

Where  an  original  bill,  seeking  a  set- 
tlement of  a  partnership  in  a  steamboat 
and  an  ascertainment  of  the  plaintiff's 
share  of  the  profits,  alleged  that  the 
plaintiff  had  sold  his  interest  in  the 
boat  to  a  third  person,  who  was  en- 
titled to  his  share  of  the  profits  accru- 
ing from  the  time  of  the  sale,  while  the 
amended  bill  alleged  that  said  trans- 
fer, though  absolute  in  form,  was  in- 
tended only  as  a  mortgage  or  security 
— held,  that  the  repugnancy  was  not  so 
great  as  to  render  the  allowance  of  the 
amendment  improper,  as  it  simply  en- 
larged the  measure  of  relief.  Ingraham 
V.  Foster,  31  Ala.  123. 

2.  McDougald  v.  Williford,  14  Ga. 
665,  where  it  was  said  that,  to  make 
the  amendment  objectionable  for  re- 
pugnancy or  inconsistency,  the  contra- 
diction must  be  such  that,  retaining 
the  bill,  no  decree  could  be  rendered. 


477 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(6)  Of  Sworn  Bills. — While  the  courts  always  act  with  great 
caution  in  permitting  the  plaintiff  to  amend  a  sworn  bill,*  espe- 
cially where  the  purpose  is  to  make  repugnant  allegations  and 
have  relief  thereon,*  such  amendments  are  always  allowed  to 
prevent  the  failure  of  justice;^  and  where  it  is  manifest  that  the 
plaintiff  was  honestly  mistaken  as  to  the  facts  charged  in  the  bill, 
an  amendment  may  be  allowed."* 

c.  At  what  Stage  of  Proceedings — (i)  Before  Issue. — 
According  to  the  ancient  practice  in  chancery,  the  plaintiff  had 
an  unlimited  power  of  amending  his  bill  both  before  and  after  an- 
swer, but  before  replication,  as  often  as  he  found  it  convenient 
to  do  so.*     But  this  extensive  liberty  to  amend  is  now  frequently 


1.  Thomas  v.  Coultas,  76  111.  493; 
Gregg  V.  Brower,  67  111.  525;  Jones  v. 
Kennicott,  83  111.  484,  an  application 
for  leave  to  amend  a  petition  for  a 
ne  exeat;  Swift  v.  Eckford,  6  Paige  (N. 
Y.)  22;  Verplanck  v.  Mercantile  Ins. 
Co.,  I  Edw.  Ch.  (N.  Y.)  46;  Gunn  v. 
Blair,  i  Barb.  (N.  Y.)  539:  West  v. 
Coke,  I  Murph.  (N.  Car.)  191;  Moly- 
neaux  v.  Collier,  13  Ga.  406. 

2.  Hill  V.  Hill,  53  Vt.  578.  See  also 
Lloyd  V.  Brewster,  4  Paige  (N.  Y.)537, 
27  Am.  Dec.  88. 

3.  Gregg  v.  Brower,  67  111.  525; 
Thomas  v.  Coultas,  76  111.  493;  Craw- 
ford V.  Paine,  19  Iowa  172. 

Before  Issue. — It  is  of  course  to  allow 
the  plaintiff  to  amend  upon  the  coming 
in  of  the  answer,  or  the  making  of  any 
other  defense,  so  as  to  shape  the  plead- 
ings for  the  better  development  of  the 
plaintiff's  case;  and  this  is  so  when  a 
plea  has  been  filed,  and  before  it  has 
been  set  for  hearing  or  replied  to. 
Mount  Olivet  Cemetery  Co.  v.  Budeke, 
2  Tenn.  Ch.  480. 

Amending  as  to  Parties  and  Prayer. — 
In  Livingston  v.  Marshall,  82  Ga.  281, 
the  plaintiff  was  allowed  to  amend  the 
prayer  of  his  bill  and  also  to  add  a  new 
and  proper  party  plaintiff. 

New  Jersey. — In  Buckley  v.  Corse, 
I  N.  J.  Eq.  504,  a  bill  for  an  account 
was  amended  into  a  bill  to  redeem, 
after  the  dissolution  of  the  injunction 
granted  on  the  original  bill,  and  a  new 
injunction  was  granted  on  the  amend- 
ment. But  the  propriety  of  the  amend- 
ment is  perhaps  doubtful.  See  Coding- 
ton V.  Mott,  14  N.  J.  Eq.  433,  82  Am. 
Dec.  258. 

In  Philhower  v.  Todd,  11  N.  J.  Eq. 
312,  after  hearing  upon  a  motion  to 
dissolve  the  injunction,  and  after  the 
delivery  of  the  opinion  of  the  court 


that  the  injunction  should  be  dissolved 
and  the  bill  dismissed  for  want  of 
equity,  the  injunction  was  retained, 
and  the  party  permitted  to  amend  by 
altering  the  frame  and  averments  of 
his  bill. 

In  Henry  v.  Brown,  8  N.  J.  Eq.  245, 
which  was  also  an  injunction  bill,  the 
complainant  was  allowed,  after  her 
testimony  was  closed  and  after  the 
final  hearing,  to  amend  her  bill,  by  ad- 
ding a  new  party,  by  changing  the 
prayer  for  relief,  and  by  so  amending 
the  frame  of  the  bill  that  the  proper 
relief  could  be  administered.  See  also 
Codington  v.  Mott,  14  N.  J.  Eq.  430, 
82  Am.  Dec.  258. 

Changing  Statement  of  Contract. — In 
Lanning  v.  Heath,  25  N.  J.  Eq.  425, 
leave  was  given  to  amend  an  injunc- 
tion bill,  without  prejudice  to  the  in- 
junction, by  making  the  contract  set 
forth  in  the  bill  conform  to  the  alleged 
understanding  of  the  parties. 

4.  Thomas  v.  Coultas,  76  111.  493; 
Hall  V.    Fisher,   3    Barb.   Ch.    (N.  Y.) 

637- 

5.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
535;  Story  Eq.  PI.  (loth  ed.)  §  885; 
Adams  v.  Phillips,  75  Ala.  461;  Buck- 
leys. Corse,  I  N.  J.  Eq.  504;  Seymour 
V.  Long  Dock  Co.,  17  N.  J.  Eq.  169; 
Droullard  v.  Baxter,  2  111.  191,  where 
a  decree  was  reversed  for  refusal  to 
allow  an  amendment  to  the  bill  at  that 
stage.  See  also  McArtee  v.  Engart, 
13  111.  242;  Henry  v.  Travelers'  Ins. 
Co., 45  Fed.  Rep.  299;  Holland  v.  Trot- 
ter, 22  Gratt.  (Va.)  136  ;  Garner  v. 
Keaton,  13  Ga.  431;  Stevens  z/.  Terrel, 
3  T.  B.  Mon.  (Ky.)  131;  Baldwin  v. 
Love,  2  J.  J.  Marsh.  (Ky.)489;  Grim 
V.  W^heeler,  3  Edw.  Ch.  (N.  Y.)  448; 
Beekman  v.  Waters,  3  Johns.  Ch.  (N. 
Y.)4io;  French  v.  Shotwell,  4  Johns. 


478 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


regulated  by  rules  of  court  intended   to   prevent  delay  or  vexa- 
tion.* 

(2)  After  Demurrer. — Formerly,  upon  the  allowance  of  a  de- 
murrer to  the  whole  bill,  no  subsequent  proceedings  could  be 
taken  in  the  cause.* 


Ch.  (N.  Y.)  505;  Hogan  v.  McFarland, 
6  Baxt.  (Tenn.)  104;  Grange  Ware- 
house Assoc.  V.  Owen,  86  Tenn.  355. 

Waiving  Answer  Under  Oath. — Where 
no  answer  had  been  put  in  to  an  injunc- 
tion bill,  leave  was  granted  to  amend 
so  as  to  waive  an  answer  under  oath 
on  payment  of  costs.  Bronson  v. 
Green,  Walk.  (Mich.)  486. 

Irrelevant  Amendment. — "  When  such 
amendment  is  made,  the  court  will 
judge  of  its  relevancy,  and  if  it  be  im- 
pertinent or  entirely  foreign  to  the 
cause  it  will  be  ordered  to  be  stricken 
out."     Droullard  v.  Baxter,  2  111.  192. 

Setting  up  Statute  of  Frauds. — In  Mc- 
Artee  v.  Engart,  13  111.  242,  it  was  held 
that  the  complainant  had  a  clear  right 
after  the  coming  in  of  the  answer  to 
amend  his  bill  by  setting  up  the  Stat- 
ute of  Frauds  against  the  new  matter 
introduced  by  the  answer. 

To  Meet  Facts  Disclosed  by  Answer. — 
After  the  filing  of  an  answer  and  a 
cross-bill  the  plaintiff  should  be  al- 
lowed to  file  an  amended  bill  to  enable 
him  to  present  his  case  in  the  light  of 
the  facts  disclosed  by  the  answer  and 
cross-bill.  Horn  v.  Clements  (N.  J., 
1887),  8  Atl.  Rep.  530. 

Injunction  Bill. — In  West  v.  Coke,  i 
Murph.  (N.  Car.)  191,  it  was  held  that, 
after  an  answer  to  an  injunction  bill 
has  been  filed,  the  bill  cannot  be 
amended  before  the  hearing. 

Before  Appearance.  —  An  order  to 
amend  the  bill  obtained  before  defend- 
ant's appearance  is  regular  and  valid, 
although  the  defendant  appears  before 
the  amendments  are  actually  prepared. 
Selden  v.  Vermilya,  4  Sandf.  Ch.  (N. 
Y.)  573- 

Injunction  Bills. — The  rule  of  the 
New  York  Court  of  Chancery  allowing 
amendments  of  course  at  any  time  be- 
fore answer,  plea,  or  demurrer,  was 
held  not  to  apply  to  verified  injunction 
bills.  Parker  v.  Grant,  i  Johns.  Ch. 
(N.  Y.)  434- 

1.  See,  for  the  English  Orders  in 
Chancery  of  Apr.  3,  1828,  and  Nov. 
23,  1831, 1  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
535,  536. 

Federal  Equity  Rules. —  United  States 
Equity  Rule   28  provides  for  amend- 


ments as  of  course  before  answer, 
plea,  or  demurrer,  requiring  payment 
of  costs  occasioned  thereby  if  the 
amendment  is  material,  and  a  copy  of 
the  amendments  to  be  furnished  to  the 
defendant. 

And  United  States  Equity  Rule  29 
provides  that,  after  an  answer  or  plea 
or  demurrer  is  put  in,  and  before  rep- 
lication, the  plaintiff  may  upon  mo- 
tion or  petition,  without  notice,  obtain 
an  order  from  any  judge  of  the  court 
to  amend  his  bill  on  or  before  the  next 
succeeding  rule-day  upon  payment  of 
costs  or  without  payment  of  costs,  as 
the  court  or  a  judge  thereof  may  in 
his  discretion  direct. 

Under  this  rule  the  plaintiff  is  not 
entitled  as  of  right  to  amend  after  a 
demurrer  has  been  allowed.  Mer- 
cantile Nat.  Bank  v.  Carpenter,  loi 
U.  S.  567. 

United  States  Equity  Rule  45  de- 
clares that  "no  special  replication  to 
any  answer  shall  be  filed,  but  if  any 
matter  allowed  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to 
amend  his  bill,  he  may  have  leave  to 
amend  the  same  with  or  without  the 
payment  of  costs,  as  the  court 'or  a 
judge  thereof  may  in  his  discretion 
direct." 

In  a  suit  for  the  infringement  of  a 
patent,  if  the  defendant  sets  up  a 
license,  it  is  proper  for  the  plaintiff  to 
allege  by  amendment  of  the  till  the 
abandonment  of  the  license.  Wilson 
V.  Stolley,  4  McLean  (U.  S.)  275. 

Objection  to  an  amendment  because 
leave  was  not  obtained  cannot  be 
made  for  the  first  time  in  the  appellate 
court.  Clements  v.  Moore,  6  Wall. 
(U.  S.)  299. 

2.  Mercantile  Nat.  Bank  v.  Carpen- 
ter, loi  U.  S.  567;  Hays  v.  Heatherly, 
36  W.  Va.  613.  See  also  Lyon  v.  Tall- 
madge,  i  Johns.  Ch.  (N.  Y.)  184;  Mc- 
Comas   V.    Minor,    Walk.  Ch.  (Miss.) 

513- 

This  is  still  the  rule  in  Tennessee. 
Crowder  v.  Turney,  3  Coldw.  (Tenn.) 
551,  holding,  however,  that  a  decree 
sustaining  a  demurrer  may  be  vacated 
during  the  same  term  and  the  plain- 
tiff permitted  to  amend. 


479 


Of  Pleadings  and 


A  MENDMENTS. 


Proceedings  in  Equity. 


The  Old  Eule  Eelaxed. — By  virtue  of  statutory  provisions  or  rules 
of  court  or  judicial  relaxation  of  the  rule,  leave  to  amend  is  now 
largely  a  matter  of  discretion.* 

Leave  Given  on  Argument. — It  is  usual,  on  allowing  a  demurrer  for 
any  cause  which  the  court  sees  on  the  argument  may  be  obviated 
by  amending  the  bill,  to  give  leave  to  amend  by  paying  the  costs 
of  the  demurrer.* 

Application  for  Leave. — But  if  it  is  not  plain  that  the  objection  on 
which  the  demurrer  was  sustained  can  be  removed,  it  is  necessary 
for  the  complainant  to  apply  for  leave  to  amend  by  petition  set- 
ting forth  the  additional  facts  sought  to  be  incorporated  in  the 
bill.3 


1.  Hiller  v.  Cotton,  48  Miss.  593. 
Federal   Equity   Rule.  —  United  States 

Equity  Rule  35  provides  that,  if  upon 
the  hearing  any  demurrer  shall  be 
allowed,  "  the  court  may  in  its  discre- 
tion upon  motion  of  the  plaintiff  allow 
him  to  amend  his  bill  upon  such  terms 
as  it  shall  deem  reasonable."  See 
Hunt  V.  Rousmaniere,  2  Mason  (U.  S.) 
342;  Dowell  V.  Applegate,  8  Fed.  Rep. 
698;  Riddle  v.  Whitehill,  135  U.  S. 
627. 

If  an  amendment  is  refused  the  ac- 
tion of  the  court  will  not  be  reversed 
on  appeal  unless  the  nature  of  the 
proposed  amendment  appears  in  the 
record.  U.  S.  v.  Atherton,  102  U.  S. 
375;  Mercantile  Nat.  Bank  v.  Carpen- 
ter, loi  U.  S.  567. 

In  Alabama  the  dismissal  of  a  bill 
on  demurrer  in  vacation,  without  af- 
fording the  complainant  an  oppor- 
tunity to  amend,  is  error.  Stouden- 
mire  v.  De  Bardelaben,  72  Ala.  476; 
Kingsbury  v.  Milner,  69  Ala.  502; 
Little  V.  Snedecor,  52  Ala.  167. 

In  Georgia,  after  a  decree  sustaining 
a  general  demurrer  for  want  of  equity 
is  affirmed  by  the  Supreme  Court,  the 
court  below  may,  before  entering  judg- 
ment on  the  return  of  the  remittitur, 
allow  the  plaintiff  to  amend.  King  v. 
King.  45  Ga.  195. 

But  the  court  below  may  dismiss  the 
bill  if  the  amendment  offered  still  fails 
to  make  a  case.  Thurmond  v.  Clark, 
47  Ga.  500;  Picquet  v.  Augusta,  64 
Ga.  516. 

2.  Michigan  Bank  v.  Niles,  Walk. 
(Mich.)  398;  Hunt  v.  Rousmaniere,  2 
Mason  (U.  S.)  342. 

In  Cotton  V.  Dacey,  61  Fed.  Rep. 
481,  a  demurrer  to  the  bill  was  sus- 
tained with  leave  to  amend. 

Want  of  Prayer  for  Process.  —  A  de- 


murrer for  want  of  prayer  for  process 
and  of  signature  of  counsel  was  sus- 
tained, with  permission  to  the  com- 
plainant to  amend.  Wrights.  Wright, 
8  N.  J.  Eq.  143. 

3.  Michigan  Bank  v.  Niles,  Walk. 
(Mich.)  398. 

In  Tennessee,  where  a  demurrer  to  a 
part  of  the  bill  is  sustained,  leave  may 
be  given  to  amend  at  a  term  subse- 
quent to  that  at  which  the  demurrer 
was  sustained.  ~  Lookout  Bank  v. 
Susong,  90  Tenn.  590. 

After  Demurrer  for  Laches. — Where 
the  trial  court  sustains  a  demurrer  to 
the  complaint  on  the  ground  of  laches, 
and  enters  a  decree  dismissing  the 
bill,  it  is  error  to  refuse  to  set  aside 
such  decree  and  permit  an  amendment 
by  the  plaintiff  fully  explaining  the 
apparent  laches.  Cottrell  v.  Watkins, 
89  Va.  801. 

Demurrer  in  Class  Suit. — After  demur- 
rer sustained  for  want  of  an  allegation 
that  plaintiff,  a  taxpayer  suing  to  re- 
strain the  collection  of  an  illegal  tax, 
filed  the  bill  on  behalf  of  himself  and 
all  other  taxpayers,  the  plaintiff  was 
allowed  to  insert  the  averment  by 
amendment.  Williams  z/.  Grant  County 
Ct.,  26  W.  Va.  488. 

Misjoinder  of  complainant  may  be 
cured  by  amendment  after  demurrer 
sustained.  Clark  v.  Holbrook,  146 
Mass.  366. 

Demurrer  for  Want  of  Parties. — A  de- 
murrer for  want  of  necessary  parties 
being  sustained,  leave  was  granted  to 
amend  so  as  to  make  the  proper  par- 
ties. Frazer  v.  Legare,  Bailey  Eq. 
(S.  Car.)  389;  Barrett  v.  Doughty,  25 
N.  J.  Eq.  379.  See  also  Dwight  v. 
Humphreys.  3  McLean  (U.  S.)  104; 
Young  V.  Bilderback,  3  N.  J.  Eq.  206. 

Demurrer  for  Multifariousness. — Where 


480 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


Review  on  Appeal. — It  is  not  error  to  omit  to  give  leave  to  amend 
upon  sustaining  a  demurrer,  where  the  record  does  not  disclose 
that  any  amendment  improving  the  bill  could  be  made,*  or  show- 
in  what  particulars  the  party  desired  to  amend.* 

Remand  with  Leave  to  Amend. — The  appellate  court,  upon  reversing 
a  decree  overruling  a  demurrer  for  want  of  equity,  may  remand 
with  leave  to  complainant  to  amend.* 

(3)  After  Plea. — Where  the  defendant  has  put  in  a  plea,  the 
plaintiff  may  obtain  leave  to  amend  his  bill,  and  if  no  order  has 
been  obtained  setting  the  plea  down  for  argument,  such  leave  is 
given  as  a  matter  of  course.*     And  it  is  said  that  such  an  amend- 


a  demurrer  for  multifariousness  is 
sustained,  the  plaintiff  may,  if  the  de- 
murrer goes  to  only  part  of  the  bill, 
leaving  others  untouched  and  main- 
tainable against  the  defendant,  obtain 
leave  to  amend  by  striking  out  the 
objectionable  parts.  McElwee  v. 
Massey,  10  Rich.  Eq.  (S.  Car.)  377; 
Jefferson  v.  Gaines,  7  Baxt.  (Tenn.) 
368. 

Demurrer  for  Want  of  Equity. — Where 
a  demurrer  going  to  the  whole  merits 
of  a  bill  is  sustained  for  want  of 
equity,  it  is  not  the  practice  to  allow 
amendments  which  will  make  a  new 
case  with  new  parties.  March  v. 
Mayers,  85  111.  177.  See  also  Lyon  v. 
Tallmadge,  i  Johns.  Ch.  184;  Seymour 
V.  Long  Dock  Co.,  17  N.  J.  Eq.  172. 

Before  Entry  of  Judgment  on  Demurrer. 
— It  is  within  the  discretion  of  the 
court  to  allow  an  amendment  to  the 
bill  after  having  decided  to  sustain  a 
demurrer  thereto,  but  before  the  entry 
sustaining  the  demurrer  has  been 
made  of  record.  Wray  v.  Hazlett,  i 
Brewst.  (Pa.)  295. 

Suspending  Judgment  on  Demurrer. — 
In  Edison  Electric  Light  Co.  v.  Mather 
Electric  Light  Co.,  53  Fed.  Rep.  244, 
after  a  demurrer  was  filed  for  want 
of  certain  essential  allegations  in  the 
bill,  the  court,  without  passing  upon 
the  demurrer,  allowed  the  complainant 
to  amend  upon  payment  of  defendant's 
reasonable  costs. 

Overruling  Demurrer. — And  in  Worth 
V.  Gray,  6  Jones  Eq.  (N.  Car.)  4,  the 
court,  under  special  circumstances, 
overruled  a  demurrer  in  order  that  the 
plaintiff  might  amend. 

Demurrer  to  Injunction  Bill. — Where 
a  demurrer  to  a  petition  under  oath 
for  an  Injunction  has  been  sustained, 
the  plaintiff  may  amend  as  in  other 
cases.  McDonald  v.  Tirmon,  20  Tex. 
245- 


Before  Final  Judgment  on  Demurrer. — 
When  a  demurrer  is  filed  for  want 
of  equity,  and  defendant  desires  to 
amend  his  bill,  the  motion  should  be 
made  before  final  judgment  on  the  de- 
murrer. Holliday  v.  Riordan,  12  Ga. 
417.  But  see  McElwee  v.  Massey,  10 
Rich.  Eq.  (S.  Car.)  377,  and  preceding 
cases  in  this  note. 

Laches  of  Applicant. — In  Newbury- 
port  Merchants'  Bank  v.  Stevenson,  7 
Allen  (Mass.)  489,  the  court  declined 
to  allow  the  plaintiff  to  amend  after 
sustaining  a  demurrer,  the  claim  hav- 
ing become  barred  by  the  statute  of 
limitations,  and  the  plaintiff  having 
been  dilatory  in  prosecuting  his  suit 
and  also  in  applying  for  leave  to 
amend. 

1.  Pickens   v.    Kniseley,  36  W.  Va. 

794- 

2.  U.  S.  V.  Atherton,  102  U.  S.  375; 
Mercantile  Nat.  Bank  v.  Carpenter, 
loi  U.  S.  567. 

Sua  sponte. — It  is  not  the  duty  of 
the  chancellor  of  his  own  motion 
and  without  application  to  allow  plain- 
tiff to  amend.  Alexander  v.  Moye,  38 
Miss.  640. 

3.  Wilburn  v.  McCalley,  63  Ala.  436. 
But  where  a  demurrer  for  want  of 

equity  is  sustained,  the  appellate 
court  will  not  reverse  the  decree 
merely  to  give  the  plaintiff  an  oppor- 
tunity to  amend.  State  Bank  v.  Ellis, 
30  Ala.  478. 

See  also  infra,  "(10)  Remand  with 
Leave  to  Amend." 

4.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
524,  but,  according  to  the  English 
practice  as  therein  stated,  upon  the 
payment  to  the  defendant  of  twenty 
shillings  costs. 

United  States  Equity  Rule  29  pro- 
vides for  the  amendment  of  the  bill 
after  plea  and  before  replication,  upon 
motion  or  petition  without  notice, with 


I  Encyc.  PI.  &  Pr. — 31. 


481 


Of  Pleadings  and 


AAfENDMENTS. 


Proceedings  in  Equity. 


ment  does  not  have  the  effect  of  allowing  the  plea.*  After  a  plea 
is  set  down  for  argument,  the  plaintiff  may  have  leave  to  amend 
his  bill.*  And  after  the  allowance  of  a  plea  leave  may  be  given 
to  amend,  but  not  as  a  matter  of  course.^ 

(4)  After  Replication — By  Adding  Parties. — If  the  plaintiff  has 
occasion  to  amend  his  bill  after  replication,  merely  by  adding 
parties,  he  may  obtain  leave  to  do  so  as  a  matter  of  course."* 
Orders  of  this  nature  may  be  obtained  without  withdrawing  the 
replication.* 

In  Substance. — But  where  after  replication  filed  it  is  intended  to 
amend  a  bill  by  the  addition  of  new  facts  or  charges,  the  proper 
course  is  to  apply  for  leave  to  withdraw  the  replication  and  amend.® 

Excuse  Must  be  Shown. — And  the  court  will  not  grant  leave  to  with- 
draw the  replication  for  the  purpose  of  amending  the  bill  unless 
the  plaintiff  shows  the  materiality  of  the  amendments,  and  why 
the  matter  to  be  introduced  was  not  stated  before.' 

(5)  After  Witnesses  Examined. — After  witnesses  have  been  ex- 
amined the  court  will  not,  unlessunder  very  special  circumstances, 
or  in  consequence  of  some  subsequent  event,  allow  the  bill  to  be 
altered  or  amended.® 


or  without  costs  in  the  discretion  of 
the  court. 

After  the  statute  of  limitations  has 
been  pleaded,  the  plaintiff  may  be  al- 
lowed to  amend  his  bill  so  as  to  avoid 
the  plea.  Wharton  v.  Lowrey,  2  Dall. 
(U.  S.)  364. 

1.  Storv  Eq.  PI.  (lothed.)  §  891. 

2.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
525.  See  also  Cook  v.  Mancius,  3 
Johns.  Ch.  (N.  Y.)  427. 

3.  I  Daniell  Ch.   Pr.  (ist  Am.  ed.) 

525. 

United  States  Equity  Rule  35  provides 
that,  if  upon  the  hearing  a  plea  is  al- 
lowed, the  court  may  in  its  discretion 
allow  the  plaintiff  to  amend  upon  such 
terms  as  it  shall  deem  reasonable. 

4.  I  Daniell  Ch.   Pr.  (ist  Am.  ed.) 

544- 

5.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
544;  Brattle  v.  Waterman,  4  Sim.  125; 
Andree  v. ,  2  Dick.  768. 

6.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
545;  Thorn  v.  Germand,  4  Johns.  Ch. 
(N.  Y.)  363. 

The  rule  requiring  the  replication 
to  be  withdrawn  before  amendment  of 
the  bill  can  be  allowed,  relates  only  to 
material  amendments.  Moshier  v. 
Knox  College,  32  111.  155. 

7.  Brown  v.  Ricketts,  2  Johns.  Ch. 
(N.  Y.)  425;  Dougherty  v.  Murphy,  10 
Phila.  (Pa.)  509;  Molyneaux  z/.  Collier, 
13  Ga.  406;  Longman  v.  Calliford,  3 
Anstr.  807. 


Federal  Equity  Eules. — United  States 
Equity  Rule  29  provides  that,  "after 
replication  filed,  the  plaintiff  shall  not 
be  permitted  to  withdraw  it  and  to 
amend  his  bill,  except  upon  a  special 
order  of  a  judge  of  the  court  upon 
motion  or  petition,  after  due  notice  to 
the  other  party,  and  upon  proof  by 
affidavit  that  the  same  is  not  made  for 
the  purpose  of  vexation  or  delay,  or 
that  the  matter  of  the  proposed  amend- 
ment is  material,  and  could  not  with 
reasonable  diligence  have  been  sooner 
introduced  into  the  bill,  and  upon  the 
plaintiff's  submitting  to  such  other 
terms  as  may  be  imposed  by  the  judge 
for  speeding  the  cause." 

There  is  a  similar  rule  of  court  in 
Pennsylvania.  See  Dougherty  v.  Mur- 
phy, 10  Phila.  (Pa.)  509,  where  an 
amendment  was  refused  for  want  0} 
a  suflScient  showing  of  diligence. 

Where  an  amendment  was  proposed 
and  allowed  in  open  court  in  the  pres- 
ence of  the  parties,  it  is  to  be  pre- 
sumed, as  against  a  subsequent  ob- 
jection to  the  amendment,  that  it  was 
allowed  upon  a  sufficient  compliance 
with  the  rule.  Mills  v.  Scott,  43  Fed. 
Rep.  452. 

Leave  may  be  denied  on  the  ground 
of  laches  in  making  the  application. 
Jones  V.  Welling,  16  Fed.  Rep.  655; 
Vertner  v.  Griffith,  Walk.  Ch.  (Miss.) 
414;  Marr  7/.  Wilson,  2  Lea  (Tenn.)  231. 

8.  Story  Eq.  PI.  (loth  ed.)  §  887;   i 


482 


Of  Pleadings  and 


AMENDMENTS, 


Proceedings  in  Equity. 


An  exception  to  the  rule  has  been  admitted  in  the  case  of  the 
plaintiff's  discovering  the  necessity  of  new  parties,  which  he  may 
add  at  any  time,  by  leave  of  the  court,  limiting  his  amendment  to 
that  purpose.* 

Sometimes  leave  has  been  given  at  this  stage  of  the  case  to 
amend  the  prayer  of  the  bill  under  particular  circumstances ;  as 
where  the  prayer  has  been  omitted  by  mistake,  or  the  prayer  for 
the  proper  relief  has  not  been  made  ;*  and,  indeed,  if  no  witness 
has  been  examined,  an  amendment  has  been  permitted  even  after 
publication  has  passed.' 

(6)  After  Reference  or  Master  s  Report. — An  amendment  may  be 
made  after  a  reference  to  a  master  and  before  his  report  ;*  also, 
upon  proper  cause  shown,  after  the  master's  report.*  But  if  the 
amendment  raises  new  issues  the  defendant  is  entitled  to  a  new 
hearing.® 


Daniell  Ch.  Pr.  (ist  Am.  ed.)  545; 
Thorn  v.  Germand,  4  Johns.  Ch.  (N. 
Y.)  363;  Shephard  v.  Merril,  3  Johns. 
Ch.  (N.  Y.)  423;  Dougherty  v.  Mur- 
phy, 10  Phila.  (Pa.)  509;  Evans  v. 
Rolling,  5  Ala.  550;  Jones  v.  Welling, 
16  Fed.  Rep.  655;  Ross  v.  Carpenter, 
6  McLean  (U.  S.)  382;  Dow  v.  Jewell, 
18  N.  H.  340,  45  Am.  Dec.  371.  See 
also  Steinriede  v.  Tegge  (Ky. ,  1890), 
14  S.  W.  Rep.  357;  Dodd  v.  Astor,  i 
Barb.  Ch.  (N.  Y.)  395;  Seymour  v. 
Long  Dock  Co.,  17  N.  J.  Eq.  169;  Bar- 
ton V.  Long  (N.  J.,  1888),  14  Atl. 
Rep.  566;  Pinkston  v.  Taliaferro,  9 
Ala.  547;  Dana  v.  Valentine,  5  Met. 
(Mass.)  8;  Hammond  v.  Place,  Harr. 
<Mich.)  438. 

After  a  cause  has  gone  to  the  jury, 
the  bill  may  be  amended  by  the  ad- 
dition of  copies  of  exhibits.  Brown  v. 
Redwyne,  16  Ga.  67. 

1.  Story  Eq.  PI.  (loth  ed.)  §  887. 
Laches     of    Plaintiff. — A    motion    lo 

amend  a  bill  by  adding  new  parties 
defendant  after  replication  filed  and 
the  production  of  evidence  was  not 
allowed  where  it  appeared  that  the 
plaintiff  was  in  a  position  to  make  the 
amendment  before  replication.  Clif- 
ford V.  Coleman,  13  Blatchf.  (U.  S.) 
210. 

2.  Story  Eq.  PI.  (loth  ed.)  §  887. 

The  bill  may  be  amended  after  wit- 
nesses are  examined  where  the  sub- 
stantial allegations  are  not  changed. 
Baggot  V.  Eagleson,  Hoff.  Ch.  (N.  Y.) 

377- 

3.  Story  Eq.  PI.  (loth  ed.)  §  887. 

4.  Hoyt  V.  Smith,  27  Conn.  468, 
■where  the  facts  were  within  the  knowl- 


edge of  the  defendant,  but  were  not 
disclosed  until  the  hearing  before  the 
master. 

Making  a  New  Case. — But  an  amend- 
ment making  a  new  case  will  not  be 
allowed.  Hazard  v.  Hidden,  14  R.  L 
356. 

Laches  of  Applicant. — When  a  master 
has  finished  the  hearing  of  an  inter- 
vener's claim  for  personal  injuries  and 
is  preparing  his  report,  an  amend- 
ment setting  up  a  distinct  ground  of 
negligence  as  a  basis  of  recovery  will 
not  be  allowed.  Clyde  v.  Richmond, 
etc.,  R.  Co.,  59  Fed.  Rep.  394. 

5.  Camp  V.  Waring,  25  Conn.  520; 
Drew  V.  Beard,  107  Mass.  64;  Nellis  v. 
Pennock  Mfg.  Co.,  38  Fed.  Rep.  379; 
Bailey  v.  Stiles,  3  N.  J.  Eq.  245. 

Increasing  Claim. — When  the  finding 
of  the  master  is  equivocal  as  to  allow- 
ance of  interest,  the  plaintiff  will  not 
be  allowed  more  than  he  claimed  by 
his  bill,  nor  in  such  a  case  will  he  be 
allowed  to  amend  his  bill  in  that  re- 
spect. Robinson  v.  Missisquoi  R.  Co., 
59  Vt.  426. 

Bill  for  Divorce. — A  libel  for  divorce 
cannot  be  amended  after  the  exam- 
iner's report  has  been  filed.  Pierie 
V.  Pierie,  7  Phila.  (Pa.)  405. 

6.  Camp  V.  Waring,  25  Conn.  520; 
Drew  V.  Beard,  107  Mass.  64. 

Jury  Trial  after  Amendment. — After 
all  the  issues  between  the  parties  had 
been  submitted  to  an  auditor,  and  re- 
port had  been  made  and  exceptions 
filed  and  overruled,  one  of  the  parties 
could  not  then  amend  his  pleadings  and 
carry  the  case  to  a  jury  on  its  merits. 
Bryant  v.  Welch,  68  Ga.  292. 


483 


Of  Pkadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(7)  At  the  Hearing — in  Kespect  of  Parties. — If  at  the  hearing  the 
record  appears  to  be  defective  for  want  of  proper  parties,  the 
court  will  order  the  cause  to  stand  over  for  the  plaintiff  to  amend 
the  bill  by  adding  parties,*  or,  where  the  parties  are  too  numerous 
to  be  brought  before  the  court,  to  alter  the  form  of  the  bill  by 
making  it  a  bill  by  the  plaintiffs  on  behalf  of  themselves  and  all 
others  of  the  same  class.* 

Amending  Prayer. — And  the  court  will  sometimes  at  the  hearing 
permit  the  prayer  of  the  bill  to  be  amended  so  as  to  make  it  more 
consistent  with  the  case  made  by  the  plaintiff  than  the  one  he  has 
already  introduced.* 

Perfecting  Allegations. — Where  a  matter  has  not  been  put  in  issue 
with  sufficient  precision,  the  court  has,  upon  hearing  the  cause, 
given  the  plaintiff  liberty  to  amend  the  bill  for  the  purpose  of 
making  the  necessary  alteration.* 


1.  I  Daniel!  Ch.  Pr.  (6th  Am.  ed.)4i7; 
Thomas  v.  Gain,  35  Mich.  155,  24  Am. 
Rep.  535;  Folkerts  v.  Power,  42  Mich. 
283;  House  V.  Dexter,  9  Mich.  246; 
McDougald  v.  Dougherty,  11  Ga.  570; 
Roddy  V.  Elam,  12  Rich.  Eq.  (S.  Car.) 
343;  Henry  v.  Brown,  8  N.  J.  Eq.  245; 
Elmer  v.  Loper,  25  N.  J.  Eq.  475;  Per- 
kins V.  Hays,  Cooke  (Tenn.)  189. 

This  practice  is  not  confined  to 
amendment  by  adding  parties;  it  will 
be  extended  to  permit  the  plaintiff  to 
show  why  he  cannot  bring  the  neces- 
sary parties  before  the  court.  Milli- 
gan  V.  Mitchell,  i  Myl.  &  C.  515;  Gib- 
son V.  Ingo,  5  Hare  156. 

2.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
417. 

Creditors'  Bill. — It  is  familiar  prac- 
tice to  allow  a  creditor  suing  for  his 
own  debt  only  to  amend  at  the  hear- 
ing by  converting  his  bill  into  one  on 
behalf  of  himself  and  all  other  credi- 
tors. McDougald  v.  Dougherty,  11 
Ga.  570;  Richmond  v.  Irons,  121  U.  S. 
46;  Milligan  v.  Mitchell,  i  Myl.  &  C. 
433;  Hichens  v.  Congreve,  4  Russ. 
562;  Atty.  Gen.  v.  Newcombe,  i4Ves. 
Jr.   I. 

Misnomer  of  Parties  may  be  cured  by 
amendment  at  the  hearing.  Hoboken 
Bldg.  Ass'n  V,  Martin,  13  N.  J.  Eq. 
427. 

3.  Hardin  v.  Boyd,  113  U.  S.  756; 
Graffam  v.  Burgess,  117  U.  S.  180; 
Codington  v.  Mott,  14  N.  J.  Eq.  431, 
82  Am.  Dec.  258;  Morrison  v.  Mayer, 
63  Mich.  238;  Clifton  v.  Haig,  4 
Desaus.  (S.  Car.)  330;  Harding  v.  Cox, 
3  Atk.  583. 

Showing  of  Diligence.  —  In  Jones  v. 


Wadsworth,  11  Phila.  (Pa.)  239,  an: 
amendment  to  the  bill  by  adding  a 
prayer  for  an  account  was  not  allowed 
after  the  hearing  on  bill,  answer,  and 
proofs;  but  the  rule  of  that  court  re- 
quired diligence,  which  was  not  shown 
in  that  case. 

Foreclosure  and  Accounting. — A  bill 
for  the  foreclosure  of  void  securities 
may  be  so  amended  after  hearing  as 
to  ask  for  an  accounting  of  the  debt. 
Burton  v.  Schildbach,  45  Mich.  504. 

4.  I  Daniell  Ch.  Pr.  (6th  ed.)  418  - 
Bryant  v.  Peters,  3  Ala.  160;  Graffam 
V.  Burgess,  117  U.  S.  180;  Downer  v. 
O'Donnell,  92  111.  559. 

Averment  of  Foreign  Statute. — Where, 
in  an  action  by  a  receiver  for  a  corpora- 
tion to  set  aside  a  mortgage,  a  foreign 
statute  prohibiting  such  transfers  was 
imperfectly  pleaded  in  the  bill,  the 
complainant  was  allowed  during  the 
trial  to  amend  his  bill  by  properly 
pleading  such  statute  so  as  to  render 
it  admissible  in  evidence.  Boehme  ». 
Rail  (N.  J.,  1893),  26  Atl.  Rep.  832. 

A  Formal  Charge  of  Fraud  may  be 
added  at  the  hearing.  Wamburzee  v. 
Kennedy,  4  Desaus.  (S.  Car.)  480. 

Formal  Offer  to  Pay. — A  bill  to  re- 
deem may  be  amended  at  the  hearing 
by  adding  a  formal  offer  to  pay  such 
sum  as  shall  be  found  due.  Green  v. 
Tanner,  8  Met.  (Mass.)  411. 

On  Argument  before  Full  Court. — A 
substantial  averment  in  a  bill  may 
properly  be  made  more  specific,  even 
after  argument  before  the  full  court, 
where  no  objection  was  made  at  the 
hearing.  Blanchard  v.  Cooke,  147 
Mass.  223. 


484 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


To  Conform  to  Proof.— Where,  upon  the  hearing,  it  appears  clearly 
from  the  evidence  that  the  plaintiff  has  a  case  which  entitles  him 
to  relief,  but  which  by  reason  of  some  defect  or  omission  in  the 
charges  or  allegations  of  the  bill  is  not  brought  fairly  within  the 
issue,  he  will  be  permitted  to  adapt  the  allegations  of  the  bill  to 
the  case  as  proved;*  especially  where  the  facts  were  known  to  the 


Averment  of  Levy. — A  judgment 
creditor's  bill  to  set  aside  a  deed  as  in 
fraud  of  his  rights  under  the  execu- 
tion did  not  aver  that  the  sheriff  had 
levied  on  the  land  before  the  bill  was 
filed.  The  bill  was  not  demurred  to, 
however,  and  testimony  was  taken  on 
the  whole  issue.  It  was  held  proper 
to  allow  the  bill  to  be  amended  at  the 
hearing.     Smith  v.  Sherman,  52  Mich. 

637- 

Objection  for  "Want  of  Equity. — Where 
an  objection  is  taken  at  the  hearing, 
that  the  petition  is  substantially  want- 
ing in  equity,  the  court  may  grant 
leave  to  amend  it.  Kriechbaum  v. 
Bridges,  i  Iowa  14. 

After  Cause  Submitted. — The  court 
may  allow  an  amendment  of  the  bill 
after  replication  filed  and  cause  sub- 
mitted on  the  evidence.  Mason  v. 
Bair,  33  111.  194. 

Limitation  of  Power. — "The  power 
of  the  court  to  order  an  amendment 
even  on  the  final  hearing  is  unques- 
tionable, but  it  is  a  power  never  exer- 
cised except  where  the  ends  of  justice 
render  it  absolutely  necessary,  and  its 
exercise  will  not  substantially  impair 
or  prejudice  the  rights  of  the  defend- 
ant." Ogden  V.  Thornton,  30  N.  J. 
Eq.  569. 

After  Submission  on  Bill  and  Answer. — 
In  Flinn  v.  Flinn,  4  Del.  Ch.  44,  an 
amendment  of  the  bill  was  permitted 
after  the  case  had  been  submitted 
upon  bill  and  answer  and  held  under 
advisement  for  several  months.  See 
also  Jefferson  County  v.  Ferguson,  13 

111.  33- 

1.  Massachusetts. — Bernard  v.  Top- 
litz,  160  Mass.  162. 

Wisconsifi. — Fery  z/.  Pfeiffer,  18  Wis. 
510;  Winslow  V.  Crowell,  32  Wis.  662; 
Brayton  v.  Jones,  5  Wis.  117;  District 
No.  3  V.  MacLoon,  4  Wis.  79. 

Missouri. — Connecticut  Mut.  L.  Ins. 
Co.  V.  Smith,  117  Mo.  261. 

Michigan.  —  Gorham  v.  Wing,  10 
Mich.  486;  Goodenow  v.  Curtis,  18 
Mich.  298;  Church  v.  Holcomb,  45 
Mich.  29. 

California. — Connallcy  v.  Peck,  3 
Cal.  75. 


New  Hampshire. — Clark  v.  Keene's 
First  Congregational  Soc,  46  N.  H. 
272;  Bellows  V.  Stone,  14  N.  H.  175. 

United  States. — Graffam  v.  Burgess, 
117  U.  S.  iSo;  Neale  v.  Neale,  9  Wall. 
(U.  S.)  i;  Chicago,  etc.,  R.  Co.  v.  Chi- 
cago Third  Nat.  Bank,  134  U.  S.  276. 

New  Jersey. — Hampton  z/.  Nicholson, 
23  N.  J.  Eq.  423;  Henry  v.  Brown,  8 
N.  J.  Eq.  245;  Armstrong  v.  Ross,  20 
N.  J.  Eq.  109;  Ledos  v.  Cupfrian,  28 
N.  J.  Eq.  162;  Van  Riper  v.  Claxton, 
9  N.  J.  Eq.  302. 

West  Virginia. — Doonan  v.  Glynn, 
26  W.  Va.  225;  Lamb  v.  Cecil.  25  W. 
Va.  288. 

Illinois.  —  American  Bible  Soc.  v. 
Price,  115  111.  623;  Booth  v.  Wiley,  102 
111.  84;  Wise  V.  Twiss,  54  111.  301; 
Moshier  v.  Knox  College,  32  111.  155; 
Hewitt  V.  Dement,  57  111.  500. 

See  also  Hardin  v.  Boyd,  113  U.  S. 
756;  The  Tremolo  Patent,  23  Wall.  (U. 
S.)  518;  Harrigan  v.  Bacon,  57  Vt.  644; 
Ogden  V.  Thornton,  30  N.  J.  Eq.  569; 
Doe  V.  Doe,  37  N.  H.  268. 

In  Dodson  v.  McKelvey,  93  Mich. 
263,  the  court  allowed  an  amendment 
to  a  bill  filed  by  a  ward,  against  the 
executor  of  her  deceased  guardian  to 
recover  funds  alleged  to  be  in  the  ex- 
ecutor's hands  and  to  belong  to  the 
ward,  so  as  to  cover  the  case  made  by 
the  proofs  and  to  charge  the  estate 
for  money  lost  to  the  ward  by  the 
neglect  of  the  guardian  to  enforce  its 
collection. 

After  Case  Reserved. — Where  a  case 
was  tried  as  if  the  allegations  pro- 
posed by  the  amendment  were  con- 
tained in  the  original  bill,  the  amend- 
ment should  be  allowed  after  hearing 
and  case  reserved  for  the  full  court. 
Byers  v.  Franklin  Coal  Co.,  106  Mass. 

131- 

To  Conform  to  Theory  of  Trial. — The  as- 
signee of  a  patent  in  an  action  against 
an  alleged  infringer  may  have  leave  to 
amend  before  the  signing  of  an  inter- 
locutory decree  so  as  to  include  as- 
signed claims  for  damages  and  profits 
which  were  due  to  mesne  assignors, 
the  bill  having  been  filed,  answered, 
and  tried  upon  the  theory  that  a  re- 


485 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


defendant,  but  were  not  disclosed  in  the  answer  or  discovered  by 


covery  upon  the  assigned  claims  was 
sought.  New  York  Grape  Sugar  Co. 
V.  Buffalo  Grape  Sugar  Co.,  20  Fed. 
Rep.  505. 

To  Cure  a  Variance. — Under  the  Mis- 
sissippi  Code,  providing  that  amend- 
ments shall  be  allowed  in  the  plead- 
ings and  proceedings  on  liberal  terms 
to  prevent  delay  and  injustice,  it  was 
held  error  to  refuse  leave  to  complain- 
ant to  amend  his  bill  after  argument 
and  final  hearing  to  cure  a  variance 
between  his  allegations  and  proof,  the 
variance  being  first  disclosed  by  a  de- 
position of  a  witness  which  was  filed 
less  than  a  week  before  the  court  con- 
vened. Jeffries  v.  Jeffries,  66  Miss. 
216. 

To  Conform  to  Contract  Proved. — A 
bill  was  directed  to  be  amended  after 
a  final  hearing  so  as  to  make  the  con- 
tract alleged  agree  with  that  proved 
in  a  bill  for  specific  performance. 
Davison  v.  Davison,  13  N.  J.  Eq.  246. 
See  also  Lanning  v.  Heath,  25  N.  J. 
Eq.  425. 

Amendment  of  Verified  Bill. — The  fact 
that  the  bill  is  verified  does  not  neces- 
sarily deprive  the  complainant  of  the 
benefit  of  an  amendment,  Marble  v. 
Bonhotel,  35  111.  240;  especially  where 
the  law  did  not  require  the  bill  to  be 
verified,  Gordon  v.  Reynolds,  114  111. 
118. 

Continuance. — No  continuance  is  nec- 
essary unless  the  amendment  essen- 
tially changes  the  case  made  by  the 
bill.     Martin  z'.Eversal,  36  111.  222. 

To  Meet  Allegations  in  Answer. — 
Amendments  to  a  bill  to  meet  matters 
set  up  in  the  answer  may  be  allowed 
at  or  even  after  a  hearing  on  the  plead- 
ings and  proofs.  Munch  v.  Shabel, 
37  Mich.  166;  Delaware,  etc..  Canal, 
etc.,  R.  Co.  V.  Raritan,  etc.,  R.  Co., 
14  N.  J.  Eq.  445. 

In  Battle  v.  Mutual  L.  Ins.  Co.,  ro 
Blatchf.  (U.  S.)  417,  it  was  held  that 
although  some  testimony  on  the  part 
of  the  plaintiff  might  be  in  conflict 
with  the  amendment  yet,  as  the 
amendment  harmonized  with  the  alle- 
gations of  the  answer,  and  such  testi- 
moAy  was  not  testimony  sustaining 
those  allegations,  the  point  in  the  ob- 
jection was  immaterial. 

Where  the  complainant  in  a  fore- 
closure bill  held  subsequent  mort- 
gages not  referred  to  in  his  bill,  and 
the  answer  of  a  defendant,  brought  in 


as  a  subsequent  incumbrancer,  re- 
ferred to  such  intervening  mortgages, 
and  based  asserted  equities  upon  their 
existence,  it  was  held  competent  to 
permit  the  plaintiff  to  amend  his  bill 
at  the  hearing  so  as  to  make  it  allege 
the  facts  as  to  those  mortgages. 
Slater  v.  Breese,  36  Mich.  77,  where 
it  was  said  that  the  allowance  of 
amendments  at  the  hearing  is  more  a 
question  of  terms  than  of  power,  if 
the  amendment  is  germane  to  the 
controversy. 

Where  Evidence  is  Defective. — Where 
the  object  of  the  bill  does  not  com- 
mend it  to  the  favorable  considera- 
tion of  the  court,  and  the  proof  does 
not  convince  the  court  that  the  plain- 
tiff is  entitled  to  relief,  the  amend- 
ment will  not  be  allowed.  Midmer 
V.  Midmer,  26  N.  J.  Eq.  299. 

The  amendment  should  not  be  al- 
lowed if  after  the  amendment  the 
case  will  be  defective  on  the  proofs. 
Church  V.  Holcomb,  45  Mich.  29; 
Curtis  z/.  Goodenow,  24  Mich.  18. 

Laches. — If  the  defendant's  plea  or 
answer  has  admonished  the  plaintiff 
of  the  necessity  of  amending  his  bill, 
he  should  apply  promptly,  and  he  will 
not  be  allowed  to  amend  at  the  hear- 
ing. Hopkins  v.  Hopkins,  4  Strobh. 
Eq.  (S.  Car.)  207,  53  Am.  Dec.  663; 
Wilbur  V.  Collier,  Clarke  Ch.  (N.  Y.) 
315. 

In  Alabama. — The  Alabama  Code,  § 
3356, expressly  authorizes  amendments 
at  any  time  before  final  decree,  "to 
meet  any  state  of  the  evidence  which 
will  authorize  relief."  Collins  v.  Stix, 
96  Ala.  338;  Lee  v.  Lee,  67  Ala.  406; 
Olds  V.  Marshall,  93  Ala.  138;  Conner 
V.  Smith,  74  Ala.  115;  Prickett  v. 
Sibert,  75  Ala.  315;  Hinton  v.  Citizens' 
Mut.  Ins.  Co..  63  Ala.  488. 

It  is  not  error  to  refuse  leave  to 
amend  where  the  relief  claimed  rests 
on  the  unsupported  testimony  of  the 
plaintiff,  whose  testimony  is  based 
upon  a  paper  title  which  he  does  not 
produce,  and  for  the  non-production 
of  which  he  does  not  account.  Alex- 
ander V.  Taylor,  56  Ala.  60.  See  also 
Wright  V.  Dunklin,  83  Ala.  317. 

It  is  sufficient  if  the  evidence  for  the 
plaintiff  makes  out  a.  prima-facie  case. 
Gilmer  v.  Wallace,  75  Ala.  220. 

It  is  permissible  to  change  the  aver- 
ments of  the  bill  as  to  the  defend- 
ant's title  to  the  property  which   the 


486 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


the  plaintiff  until  after  the  production  of  the  evidence.*  Such 
amendments  are  commonly  made  only  after  the  testimony  has 
been  taken,  and  there  is  a  decided  objection  to  the  allowance  of 
amendments  which  vary  the  allegations  according  to  the  real  or 
supposed  exigency  of  the  case  while  the  taking  of  evidence  is  in 
progress.* 

Making  a  New  Case. — But  the  plaintiff  cannot  be  permitted  to 
amend  at  the  hearing  by  making  a  new  case  totally  inconsistent 
with  that  made  by  the  bill  as  originally  framed.' 

(8)  After  Decree. — An  amendment  may  be  made  even  after  a 
final  decree  where  the  cause  was  tried  precisely  as  it  must  have 
been  tried  if  the  bill  had  originally  contained  the  averment  in- 
serted by  the  amendment."* 


bill  seeks  to  subject.  Jones  v.  Reese, 
65  Ala.  134. 

The  amendment  will  be  allowed  un- 
less it  makes  an  entirely  new  case. 
Pitts  V.  Powledge,  56  Ala.  147. 

The  right  must  be  claimed  before 
final  decree.  Winter  v.  Merrick,  69 
Ala.  86;  Smith  v.  Coleman,  59  Ala. 
260,  holding  that  the  right  to  amend 
is  confined  to  the  evidence  already 
taken.  On  which  point  see  also 
Beatty  v.  Brown,  85  Ala.  209. 

It  is  not  error  to  pronounce  a  de- 
cree in  vacation  without  granting 
leave  to  amend  unless  the  decree  is 
based  on  some  amendable  defect. 
Wright  V.  Dunklin,  83  Ala.  317. 

1.  Wilson  V.  Brown,  13  N.  J.  Eq. 
280,  where  the  plaintiff,  under  the  cir- 
cumstances stated,  was  permitted  to 
amend  without  costs.  Perea  v.  Gal- 
legos,  4  N.  Mex.  333;  Howell  v.  Se- 
bring,  14  N.  J.  Eq.  84;  Morrison  v. 
Mayer,  63  Mich.  238.  See  also  Jef- 
fries V.  Jeffries,  66  Miss.  216;  Briggs 
V.  Briggs,  20  Mich.  34. 

2.  Seymour  v.  Long  Dock  Co.,  17 
N.  J.  Eq.  i6g.  See  also  Andrews  v. 
Halliday,  63  111.  263. 

Whether  an  amendment  of  a  bill  at 
the  hearing  can  be  allowed  when  the 
amendment  consists  of  facts  that  falsi- 


allowed  except  upon  terms  equivalent 
to  compelling  the  plaintiff  to  file  a  new 
bill.    Whelan  v.  Sullivan, i02Mass.  204. 

4.  The  Tremolo  Patent,  23  Wall.  (U. 
S.)  518.  In  that  case  the  plaintiff  filed 
a  bill  to  restrain  the  infringement  of  a 
patent,  and  after  final  decree  he  was 
permitted  to  amend  by  settihg  up  a 
reissue  of  the  patent  which  had  not 
been  set  out  in  the  original  bill,  con- 
trary, however,  to  the  supposition  of 
both  parties  through  the  whole  prog- 
ress of  the  trial.  The  court  conceded 
that  the  case  was  anomalous,  but  de- 
clared that  the  amendment  might 
"well  be  denominated  only  an  amend- 
ment of  form,  because  it  introduced 
no  other  cause  of  action  than  that 
which  had  been  tried."  See  Claflin  v. 
Bennett,  51  Fed.  Rep.  693. 

Amendment  and  Decree  on  Same  Day. — 
Under  the  Alabama  Code  authorizing 
an  amendment  at  any  time  before  final 
decree,  if  an  amendment  was  filed  and 
decree  entered  the  same  day,  it  does 
not  appear  that  the  amendment  was 
filed  before  rendition  of  the  decree, 
and  its  disallowance  is  not  error. 
Beatty  v.  Brown,  85  Ala.  209. 

Amendment  Eequiring  New  Proof. — 
After  a  final  decree  settling  the 
equities,  the  court  will  refuse  to  allow 


fy    material    facts    originally    stated,     an   amendment   which    will    authorize 


quare.  Thornton  v.  Ogden,  32  N.  J. 
Eq.  723. 

3.  Codington  v.  Mott,  14  N.  J.  Eq. 
430,  82  Am.  Dec.  258;  Piatt  v.  Squire, 
5  Cush.  (Mass.)  551;  Commerce  Nat. 
Bank  v.  Smith  (R.  I.,  1892),  24  Atl. 
Rep.  469;  Livingston  v.  Hayes,  43 
Mich.  129. 

A  bill  was  dismissed  without  pceju- 


the  introduction  of  proof  or  effect  a 
different  result.  Munter  v.  Linn,  61 
Ala.  492. 

Clerical  Error. — A  mere  clerical  error 
in  a  bill  may  be  amended  after  final 
decree.  Donnelly  v.  Ewart,  3  Rich. 
Eq.  (S.  Car.)  18. 

After  Decree  Nisi. — An  amended  bill 
may  be  filed  after  decree  nisi.     Lytel 


dice  where   an   amendment  proposed     v.  Breckinridge,  3  J.  J.  Marsh.   (Ky.) 
after  the  hearing  could  not  justly  be     658,  667. 

487 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(9)  hi  Appellate  Court. — In  appellate  courts  of  last  resort 
amendments  are  not  usually  allowed,*  but  the  practice  is  to 
remand  to  the  court  below  for  that  purpose  if  necessary.* 

(10)  Remand  with  Leave  to  Amend. — The  appellate  court,  in  re- 
versing a  decision  overruling  a  demurrer,  will  remand  for  amend- 
ment unless  the  defect  is  incurable;'  also  where  the  court  reverses 
a  decree  and  it  appears  that  additional  allegations  and  proof,  with 
the  proof  already  taken,  would  entitle  the  complainant  to  relief 
upon  the  original  cause  of  action.*    And  upon  reversing  a  decree 


1.  Michigan  Bank  v.  Niles,  Walk. 
(Mich.)  398;  Arendell  v.  Blackwell,  i 
Dev.  Eq.  (N.  Car.)  358;  Williams  v. 
Chambers,  i  Busb.  Eq.  (N.  Car.)  75. 
See,  however.  Grant  v.  Ludlow,  8 
Ohio  St.  i;  Thompson  v.  McCulloch, 
18  Ga.  527. 

In  United  States  Supreme  Court. — 
Amendments  of  pleadings  will  not  be 
made  in  cases  appealed  to  the  United 
States  Supreme  Court  except  by  con- 
sent of  the  parties.  Kennedy  v. 
Georgia  State  Bank,  8  How.  (U.  S.) 
586;  Johnson  v.  Christian,  125  U.  S. 
642;  Pacific  R.  Co.  v.  Ketchum,  95  U. 
S.  I.  See  also  Garland  v.  Davis,  4 
How.  (U.  S.)  131. 

In  United  States  Circuit  Court. — On 
appeal  in  equity  from  the  District 
Court  of  the  United  States  the  Circuit 
Court  can  permit  an  amendment  of 
substance.  Warren  v.  Moody,  9  Fed. 
Rep.  673.  See  also  Anonymous.  Gall. 
(U.  S.)  22. 

Adding  Parties. — In  Hooper  v.  Roy- 
ster,  I  Munf.  (Va.)  119,  on  an  appeal 
from  an  interlocutory  decree,  it  was 
held  that,  if  proper  parties  to  the  suit 
are  wanting,  the  Court  of  Appeals  will 
not  leave  it  to  the  chancellor,  but  will 
itself  direct  such  parties  to  be  made. 

Merely  formal  parties  complainant, 
who  might  have  been  added  on  the 
hearing  in  the  court  below,  may  be 
considered  as  added  in  the  Supreme 
Court  where  the  decree  is  already  so 
drawn  as  to  give  the  added  party  all 
the  relief  he  could  have  gained  had  he 
been  a  party  from  the  beginning. 
Edinger  v.  Heiser,  62  Mich.  598. 

In  New  Jersey  Franklinite  Co.  v. 
Ames,  12  N.  J.  Eq.  507,  it  was  held 
that  new  parties  cannot  be  brought  in 
by  amendment  on  appeal. 

In  Pennsylvania  it  seems  that  the 
bill  may  be  amended  in  the  Supreme 
Court.  Darlington's  Appeal,  86  Pa.  St. 
512. 

2.  See  the  next  paragraph. 


3.  Wilburn  v.  McCalley,  63  Ala.  436; 
Smith  V.  Conner,  65  Ala.  371.  See 
also  Jones  v.  Latham,  70  Ala.  164. 

Beversal  of  Decree  upon  Sustaining 
Demurrer. — Where,  as  the  result  of  the 
application  of  the  statute  of  limita- 
tions or  the  doctrine  of  laches,  the 
lower  court  sustained  a  demurrer  and 
dismissed  the  bill,  and  the  appellate 
court  reversed  the  decree,  the  cause 
was  remanded  with  directions  to  allow 
complainant  to  amend,  he  having  ap- 
plied for  leave  before  the  appeal  was 
taken.  Riddle  v.  Whitehill,  135  U.  S. 
627. 

4.  Fenno  v.  Coulter,  14  A*rk.  38; 
Lamb  v.  Laughlin,  25  W.  Va.  300; 
Lane  v.  Lane,  87  Ga.  268;  Barrett  v. 
Sargeant,  18  Vt.  365;  Lewis  v.  Dar- 
ling, 16  How.  (U.  S.)  i;  Eckford  v. 
Halbert,  30  Miss.  273;  Campion  v. 
Kille,  15  N.  J.  Eq.  476.  See  also 
Church  V.  Holcomb,  45  Mich.  29. 

Where  the  court  affirms  the  decree 
it  will  not  give  the  complainant  leave 
to  amend,  unless  the  amendment 
would  make  a  case  for  relief  beyond 
all  reasonable  doubt;  nor  even  then  if 
there  has  been  apparently  needless 
delay  in  bringing  the  suit.  Branch  v. 
Knapp,  61  Ga.  616;  Picquet  v.  Au- 
gusta, 64  Ga.  516. 

Bemanding  without  Judgment. — The 
appellate  court  may  decline  to  render 
judgment  of  reversal  in  a  meritorious 
case,  but  may  remand  for  amendment, 
leaving  the  whole  controversy  open  in 
the  meantime.  Trippe  v.  Winter,  83 
Ga.  359. 

Defects  in  Substance. — In  Williams  v. 
Chambers,  i  Busb.  (N.  Car.)  75,  it  was 
said  that,  when  the  bill  is  defective  in 
substance,  the  appellate  court  will  not, 
except  under  peculiar  circumstances, 
remand  the  cause  for  the  purpose  of 
amendment  in  the  court  below.  See 
also  Bier  v.  Smith,  25  W.  Va.  830. 

Costs. — When  the  record  is  remanded 
with  leave  to  amend,  the  complainant 


488 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


for  the  complainant  on  account  of  want  of  proper  parties,  it  is 
the  common  practice  to  remand  with  leave  to  amend.* 

The  case  will  not  be  remanded  in  order  that  a  bill  may  be 
amended,  when  the  amendment  would  make  a  different  case  from 
that  stated  in  the  bill.* 

(ii)  After  Rematid  from  Appellate  Court. — When  a  case  is  sent 
back  to  the  court  below  reversed,  it  stands  substantially  as  it  did 
before  trial,  and  the  power  of  that  court  is  as  full  and  unre- 
stricted as  it  was  before  the  case  was  tried, ^  except  that  it  is  con- 
cluded by  the  legal  principles  announced  by  the  appellate  court.* 


can  be  placed  in  no  better  position  as 
to  costs  than  if  the  bill  had  been  dis- 
missed without  prejudice.  Church  v. 
Holcomb,  45  Mich.  29;  Fenno  v.  Coul- 
ter. 14  Ark.  38. 

1.  Parberry  v.  Goram,  3  Bibb  (Ky.) 
107;  Hoofman  v.  Marshall,  i  J.  J. 
Marsh.  (Ky.)  64;  Sillings  v.  Bumgard- 
ner,  9  Gratt.  (Va.)  273;  Palmer  v.  Rich, 
12  Mich.  414;  Lewis  v.  Darling,  16 
How.  (U.  S.)  i;  Arendell  v.  Blackwell, 
I  Dev.  Eq.  (N.Car.)  358.   See  supra,  2,  a. 

To  Allow  PlaintiflF  to  Take  Out  Letters 
of  Administration.  —  In  Bradford  v. 
Felder,  2  McCord  Eq.  (S.  Car.)  168, 
the  cause  was  remanded  upon  reversal 
so  as  to  allow  the  plaintiff  to  take  out 
administration  and  amend  so  as  to  sue 
as  administrator. 

2.  Crabb  v.  Thomas,  25  Ala.  212; 
Williams  v.  Barnes,  28  Ala.  613; 
Squire  v.  Hewlett,  141  Mass.  597; 
Cook  V.  Bronaugh,  13  Ark.  183;  Fenno 
V.  Coulter,  14  Ark.  38. 

Neglect  to  Apply  in  Lower  Court. — 
Where  a  demurrer  is  sustained  on  ac- 
count of  the  statute  of  limitations  ap- 
pearing to  constitute  a  bar  on  the  face 
of  the  bill,  if  the  complainant  does 
not  ask  for  leave  to  amend  by  correct- 
ing a  clerical  error  in  the  statement  of 
a  fact,  the  appellate  court  will  not  re- 
mand for  the  purpose  of  amendment. 
Ansley  v.  King,  35  Ala.  278.  See  also 
State  Bank  v.  Ellis,  30  Ala.  478. 

Excuse  for  Not  Applying. — Where  a 
decree  dismissing  a  bill  on  demurrer  is 
rendered  in  vacation  without  giving 
the  plaintiff  an  opportunity  to  apply 
to  amend,  the  appellate  court  will  re- 
verse with  leave  to  amend.  Kings- 
bury V.  Milner,  69  Ala.  502. 

3.  Fenno  v.  Coulter,  14  Ark.  38; 
Chickering  v.  Failes,  29  111.  294;  Han- 
serd  V.  Gray,  46  Miss.  75,  allowing  an 
.amendment  of  the  answer;  Wailes  v. 
Johnson,  25.  Miss.  422. 


Eeversal  for  Mere  Irregularity. — When 
a  final  decree  is  free  from  error,  but 
the  case  is  reversed  and  remanded  be- 
cause without  the  consent  of  the  par- 
ties the  chancellor  affirmed  the  report 
of  the  register  in  vacation,  the  court 
below  at  a  subsequent  term  has  no  au- 
thority to  amend  the  decree  on  the 
merits,  or  to  allow  an  amendment 
which  seeks  to  accomplish  such  re- 
sult.    Smith  V.  Coleman,  59  Ala.  260. 

Quaere. — Whether  the  court  belowcan 
allow  an  amendment  after  a  judgment 
of  reversal  and  remand,  "that  a  de- 
cree may  be  rendered  in  conformity 
with"  its  opinion,  was  made  a  query 
in  Lanier  v.  Hill,  30  Ala.  iii. 

After  General  Demurrer  Sustained. — In 
King  7'.  King,  45  Ga.  195,  an  amend- 
ment of  the  bill  was  allowed  after  a 
general  demurrer  for  want  of  equity 
had  been  sustained  and  affirmed  by 
the  Supreme  Court.  But  the  impera- 
tive language  of  the  Georgia  statute 
allowed  an  amendment  at  any  stage  of 
the  case,  and  the  court  with  some  re- 
luctance followed  prior  decisions. 

4.  Fenno  v.  Coulter,  14  Ark.  38; 
Chickering  v.  Failes,  29  111.  294;  Han- 
num  V.  Cameron,  12  Smed.  &  M. 
(Miss.)  509. 

Questioning  Right  Already  Adjudicated. 
— An  amended  answer  which  ques- 
tions the  right  of  a  party  as  heir, 
when  that  right  has  been  adjudicated 
and  recognized  in  the  appellate  court, 
cannot  be  allowed.  Hennings  v. 
Conner,  4  Bibb  (Ky.)  298. 

Repeating  Charges  Decided  Adversely. 
— To  repeat  by  amendment  a  charge  of 
fraud  already  adjudicated  by  a  former 
ruling  of  the  appellate  court  in  the 
same  case  is  "idle  and  unprofitable." 
Lowry  v.  Davenport,  80  Ga.  742. 

Denjring  Recognized  Facts.  —  The 
plaintiff  should  not  be  allowed  to 
amend  so  as  to  dispute  the  facts  upon 


489 


Of  Pleadings  and 


AM  EN  DM  EN  TS. 


Proceedings  in  Equity^ 


Furthermore,  the  allowance  of  amendments  is  discretionary  as  in 
the  former  proceeding.* 

d.  Effect  of  Amendment — (i)  Right  of  Defendant  to  Plead 
Anew. — An  amendment  of  a  bill,  however  trivial  and  unimpor- 
tant, authorizes  a  defendant,  though  not  required  to  answer,  to 
put  in  an  answer  making  an  entirely  new  defense  and  contradict- 
ing his  former  answer.*  And  after  an  amendment  of  a  bill  in  a 
material   matter   the    defendant    may   plead, ^    answer,'*   or    de- 


which  he  obtained  a  decision  favora- 
ble to  his  interests.  Lombard  v.  Chi- 
cago Sinai  Cong.,  75  111.  271. 

1.  Insufficient  Amendment. — If  the 
amendment  offered  still  fails  to  make 
a  case,  the  lower  court  may  refuse  to 
allow  it,  and  may  dismiss  the  bill. 
Thurmond  v.  Clark,  47  Ga.  500. 

Strong  Showing  Beqnired. — In  Adams 
County  V.  Burlington,  etc.,  R.  Co.,  55 
Iowa  94,  44  Iowa  335,  it  was  said  that 
the  tendering  of  a  new  issue  by 
amendment  should  be  allowed  only 
upon  such  a  showing  of  accident,  mis- 
take, etc.,  as  would  entitle  the  party 
to  a  new  trial  in  an  action  at  law.  See 
also  Picquet  v.  Augusta,  64  Ga.  516. 

Contradicting  Admissions  in  Answer. — 
Where  a  party  in  his  answer  under 
oath  admits  a  material  allegation  of 
the  complaint,  and  a  new  trial  is 
granted  by  the  Supreme  Court,  the 
defendant  should  not  be  allowed  on 
the  return  of  the  case  to  the  court 
below  to  amend  his  answer  by  chang- 
ing the  admission  into  a  denial. 
Spanagel  v.  Reav,  47  Cal.  608. 

2.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
409;  Burney  v.  Ball,  24  Ga.  505; 
Trust,  etc.,  Ins.  Co.  v.  Jenkins,  8 
Paige  (N.  Y.)  589;  Richardson  v. 
Richardson,  5  Paige  (N.  Y.)58;  Dillon 
V.  Davis,  3  Tenn.  Ch.  386;  Miller  v. 
Whittaker,  33  111.  386;  Furman  v. 
North,  4  Baxt.  (Tenn.)  296;  Davis  v. 
Davis,  62  Miss.  818. 

As  to  the  right  to  amend  the  answer 
where  the  bill  is  amended  in  com- 
pliance with  an  order  made  at  the 
hearing  that  the  cause  stand  over  for 
the  purpose  of  adding  new  parties,  see 
Hutchinson  v.  Reed,  Hoff.  Ch.  (N.  Y.) 
316,  where  the  question  received  much 
consideration. 

Evidence  Previously  Taken.  —  An 
amended  bill  as  to  defendants  brought 
before  the  court  for  the  first  time  is  in 
effect  an  original  bill,  and  no  deposi- 
tions previously  taken  will  be  per- 
mitted to  be  read  against  them  at  the 
hearing   unless  by  consent.     State  v. 


Nashville  Sav.    Bank,  16  Lea  (Tenn.) 
III. 

3.  Where  the  complainant  amends 
his  bill  after  a  plea  to  the  same  has 
been  disallowed,  the  defendant  may 
put  in  a  new  plea  to  the  amended  bill. 
American  Bible  Soc.  v.  Hague,  10 
Paige  (N.  Y.)  549. 

4.  Amendment  of  Bill  of  Discovery. — 
Where  a  bill  for  discovery  is  so 
amended  as  to  make  it  a  bill  for  dis- 
covery and  relief,  it  entitles  the  de- 
fendant to  amend  his  answer.  Perkins 
V.  Hendryx,  31  Fed.  Rep.  522. 

Objections  to  First  Answer. — Objec- 
tions to  an  answer  to  a  bill  as  it  stood 
before  amendment  cannot  be  made 
after  amendment  unless  the  defend- 
ant, after  being  duly  called  upon  to 
file  his  answer  to  the  bill  as  amended 
or  voluntarily  waiving  such  call, 
chooses  to  let  it  stand  as  an  answer  to 
the  amended  bill.  Angel  v.  Pennsyl- 
vania R.  Co.,  37  N.  J.  Eq.  92;  Trust, 
etc.,  Ins.  Co.  v.  Jenkins,  8  Paige  (N. 
Y.)589. 

Answer  to  Amendment. — Where  a  plea 
had  been  filed  to  an  original  bill,  and 
the  complainant  amended  his  bill,  and 
defendant  answered  only  the  amend- 
ment, it  was  held  that  the  plea  was 
superseded  by  the  amended  bill,  and  a 
motion  to  take  it  from  the  files  for 
irregularity  was  denied,  the  proper 
motion  being  to  take  the  amendment 
from  the  files.  The  defendant  should 
have  demurred  or  put  in  a  plea  or 
answer  to  the  amended  bill.  Answer 
to  the  amendment  alone  would  have 
been  proper  if  he  had  previously 
answered  the  original  bill.  Peck  f. 
Burgess,  Walk.  (Mich.)  485. 

Amendment  Making  Parties.  —  An 
amended  bill  merely  making  proper 
parties  does  not  give  the  defendant 
the  right  to  file  an  answer  to  the 
amended  bill,  the  amendment  not  af- 
fecting   him.     Oldham   v.    Rowan,    4 

Bibb  (Ky.)  544- 

Answer  Containing  No  Defense. — The 
court  may  in  its  discretion  refuse  leave 


490 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Eqnity. 


mur*  to  the  same  as  if  it  were  an  original  bill  no  matter  what 
may  have  been  the  state  of  the  pleadings  before  the  amendment 
was  made,*  and  he  is  entitled  to  a  reasonable  time  for  that  pur- 
pose.^ 

An  amendment  of  the  bill  does  not,  however,  enable  a  de- 
fendant who  has  answered  the  original  bill  to  demur  to  an 
amended  bill  upon  any  cause  of  demurrer  to  which  the  original 
bill  was  open,*  unless  the  nature  of  the  case  made  by  the  bill 
has  been  changed  by  the  amendment.* 

(2)  Retroactive  Effect — Original  and  Amendment  One  Xecord. — The  rule 
is  general  in  a  court  of  equity  that  an  original  and  an  amended  bill 
are  to  be  regarded  as  an  entire  bill,  constituting  in  fact  but  one 
record.®    So  far  as  the  equity  of  the  bill  is  involved,  the  amended 


to  file  an  answer  which  contains  no 
defense  to  the  matter  presented  by  the 
amendment.  Chicago,  etc.,  R.  Co.  v. 
Chicago  Third  Nat.  Bank,  134  U.  S. 
289. 

Federal  Equity  Rnle. — United  States 
Equity  Rule  46  provides  that,  "  In  any 
case  where  an  amendment  shall  be 
made  afteranswer  filed,  the  defendant 
shall  put  in  a  new  answer  or  supple- 
mental answer  on  or  before  the  next 
succeeding  rule-day  after  that  on 
which  the  amendment  or  amended  bill 
is  filed,  unless  the -term  is  enlarged  or 
otherwise  ordered  by  a  judge  of  the 
court;  and  upon  his  default  the  like 
proceedings  may  be  had  as  in  cases  of 
an  omission  to  put  in  an  answer." 

Matter  in  New  Answer. — A  new  an- 
swer should  not  contain  matter  which 
was  pleaded  in  the  first  answer.  Gier 
V.  Gregg,  4  McLean  (U.  S.)  202;  Fisher 
V.  Tribby,  5  111.  App.  335. 

1.  New  Demurrer. — To  an  amended 
bill  the  defendant  has  a  right  to  inter- 
pose a  new  demurrer  notwithstanding  a 
previous  demurrer  to  the  original  bill 
has  been  overruled.  Bowes  v.  Hoeg, 
15  Fla.  403. 

Demurrer  After  Plea. — By  amending 
the  bill  to  which  a  plea  has  been  filed 
the  validity  of  the  plea  is  admitted; 
but  such  amended  bill  stands  in  the 
place  of  a  new  one,  and  the  plea  is  no 
answer  to  it,  being  superseded  by  the 
amended  bill,  to  which  the  defendant 
has  the  same  time  to  plead,  answer,  or 
demur  as  to  the  original  bill.  If  the 
defendant  chooses  to  demur  to  such 
amended  bill,  the  case  stands  as  if  no 
plea  had  been  field.  Tompkins  v.  Hol- 
lister,  60  Mich.  470. . 

2.  Davis  V.  Davis,  62  Miss.  818; 
Dillon    V.    Davis,    3   Tenn.    Ch.    386; 

49 


Christmas  v.  Mitchell,  3  Ired.  Eq.  (N. 
Car.)  535;  Bancrofts.  Wardour,  2  Bro. 
C.  C.  66;  Bosanquet  v.  Marsham,  4. 
Sim.  573;  Cresy  v.  Bevan,  13  Sim.  354. 

3.  Davis  V.  Davis,  62  Miss.  818, 
holding  that  one  hour  and  three- 
quarters  is  not  a  reasonable  time. 

Court  May  Prescribe  Time. — Where  no 
decree  is  prayed  against  a  new  party 
brought  in  by  amendment,  it  is  not 
requisite  to  extend  to  such  party  the 
time  allowed  to  an  original  defendant 
for  the  purpose  of  filing  an  answer; 
and  it  is  competent  for  the  court  to 
prescribe  the  time  in  which  an  original 
defendant  shall  answer  an  amend- 
ment. McDougald  v,  Dougherty,  14 
Ga.  674.  See  Hoxey  v.  Carey,  12  Ga. 
534- 

After  Time  Has  Expired. — When  the 
time  has  expired  for  answering  an 
amendment  to  a  bill  the  case  may  be 
noticed  for  hearing.  Munch  v.  Shabel, 
37  Mich.  166. 

Rule  to  Answer.  —  After  the  sub- 
mission of  a  case  for  hearing  upon  the 
pleadings  and  proof,  if  the  court 
allows  amendments  asking  relief  not 
before  sought,  it  is  error  to  proceed  to 
a  hearing  against  defendant's  protest 
and  enter  a  decree  embracing  the  new 
matters  without  first  laying  a  rule 
upon  the  defendant  to  answer.  Gage 
V.  Brown;  125  111.  522.  Compare  Gregg 
V.  Brower,  67  111.  525. 

4.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
409;  Hardie  v.  Bulger,  66  Miss.  577. 

5.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
409;  Cresy  v.  Bevan,  13  Sim.  354. 

6.  Adams  v.  Phillips,  75  Ala.  461; 
Taunton  v.  Mclnnish,  46  Ala.  619;  Mor- 
row V.  Fossick,  3  Lea  (Tenn.)  131; 
Wilson  V.  Beadle,  2  Head  (Tenn.)  510, 
512;  Browne  v.  Browne,  17  Fla.  607; 

I 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


bill  has  relation  to  the  commencement  of  the  suit  by  the  filing  of 
the  original  bill.* 

statute  of  Limitations  Suspended. — If  the  amendment  does  not  intro- 
duce a  new  cause  of  action  or  entirely  new  parties,  the  statute  of 
limitations  will  constitute  no  defense  unless  it  would  have  been  a 
defense  to  the  original  bill.® 

Effect  on  Injunction. — Where  a  bill  as  amended  states  good  ground 
for  an  injunction,  the  insufificiency  of  the  original  bill  to  sustain 
an  injunction  is  immaterial.* 

Discharging  Contempt  Proceedings. — As  a  general  rule  an  amendment 
of  a  bill  has  the  effect  to  destroy  prior  proceedings  for  a  con- 
tempt.'* 


Carey  v.  Hillhouse,  5  Ga.  251;  Mezeix 
V.  McGraw,  44  Miss.  100;  Barber  v. 
Reynolds,  33  Cal.  497;  Keyser  v.  Reu- 
ner,  87  Va.  249;  Munch  v.  Shabel,  37 
Mich.  166;  Hammond  v.  Place,  Harr. 
(Mich.)  438;  Walsh  v.  Smyth,  3  Bland 
(Md.)  9. 

Amendment  of  Footnote. — Where  an 
original  bill  by  its  footnote  waives  oath 
as  to  all  defendants,  and  another  de- 
fendant is  brought  in  by  amendment, 
and,  instead  of  a  new  footnote,  the 
original  footnote  is  amended  by  nam- 
ing him  as  defendant,  his  oath  is 
waived,  for  the  reason  that  the  foot- 
note is  a  part  of  the  bill  (see  United 
States  Equity  Rules  41,  42),  and  any 
amendment  thereto  relates  back.  Fish- 
er V.  Moog,  39  Fed.  Rep.  665. 

Amendment  Covering  Reissue  of  Ex- 
pired Patent. — An  amendment  to  cover 
the  reissue  of  a  patent  was  allowed 
although  the  patent  alleged  in  the 
original  bill  to  have  been  infringed 
had  expired  before  the  amendment. 
Reay  v.  Raynor,  19  Fed.  Rep.  30S. 

Dismissal  of  Amended  Bill. — A  decree 
dismissing  an  amended  bill  is  a  final 
disposition  of  the  whole  case.  Bra- 
dish  V.  Grant,  119  111.  606. 

Dismissal  of  Original  Bill. — A  mandate 
from  the  appellate  court  directing  the 
dismissal  of  a  bill  includes  the  dis- 
missal of  an  amended  bill  on  which 
the  case  was  tried.  Beach  Mod.  Eq. 
Pr.  ^  999,  citing  Campbell  v.  James, 
31  Fed.  Rep.  525. 

1.  Adams  v.  Phillips,  75  Ala.  461; 
Jones  V.  McPhillips,  82  Ala.  102;  Cain 
•V.  Gimon,  36  Ala.  168;  Lipscomb  v. 
McClellan,  72  Ala.  151;  Hurd  v.  Ever- 
ett, I  Paige  (N.  Y.)  129;  Gaylord  v. 
Ft.  Wayne,  etc.,  R.  Co.,  6  Biss.  (U.  S.) 
286. 

Offer  to  Pay  on  Bill  to  Redeem.— Thus 
in  a  suit  to  have  an  absolute  convey- 
ance declared  a  mortgage,  and  for  an 


account  and  redemption,  an  amend- 
ment offering  to  pay  the  amount  that 
shall  be  found  due,  and  to  bring  the 
same  into  court,  and  to  pay  all  legal 
costs,  takes  effect  as  of  the  filing  of  the 
original  bill.  Crews  v.  Threadgill,  35 
Ala.  334. 

Equities  of  Third  Parties. — Where  a 
demurrer  to  a  bill  to  establish  an 
equitable  interest  in  land  is  sustained 
with  leave  to  amend,  and  the  bill  is 
subsequently  amended,  the  equities  in 
the  original  bill  are  not  subordinated 
to  an  attachment  lien  which  was 
placed  on  the  land  after  the  bill  was 
filed  but  before  service  of  process 
upon  the  attaching  creditor,  although 
the  latter  obtained  judgment  under 
which  the  land  was  sold  before  the 
demurrer  was  sustained  but  after 
process  was  served  upon  him.  Cotton 
V.  Dacey,  61  Fed.  Rep.  481.  See  also 
Lookout  Bank  v.  Susong,  90  Tenn. 
590;  Bradley  v.  Dibbrell,  3  Heisk. 
(Tenn.)  522. 

Where  the  Matter  Occurred  Fending 
Stiit. — In  Alabama,  where  it  is  permis- 
sible to  set  up  by  amendment  matter 
which  has  occurred  since  the  suit  was 
brought,  an  amendment  embracing 
such  matter  does  not  relate  back. 
Jones  V.  McPhillips,  82  Ala.  102. 

2.  Allen  v.  Woodson,  50  Ga.  53; 
Wilhelm's  Appeal,  79  Pa.  St.  120. 
Contra,  where  a  new  cause  is  intro- 
duced, Henderson  v.  Kissam,  8  Tex. 
46;  or  new  and  distinct  parties.  Miller 
V.  M'Intyre,  6  Pet.  (U.  S.)  61;  King  v. 
Avery,  37  Ala.  169;  Tompkins  v.  Holt 
(Ala.,  1891),  8  So.  Rep.  794. 

3.  Miller  v.  Cook,  135  111.  190.  See 
also  Barber  v.  Reynolds,  33  Cal.  497; 
Des  Moines,  etc.,  R.  Co.  v.  Carpenter, 
27  Iowa  487,  492;  Sweatt  v.  Faville,  23 
Iowa  321. 

4.  Symonds  v.  Duchess  of  Cum- 
berland,   2  Cox    411;   Gray  v.  Camp- 


492 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


Designed  to  Promote  Justice. — But  the  fiction  of  relation  is  never  per- 
mitted to  operate  when  it  would  destroy  intervening  rights,*  or 
otherwise  work  injustice.* 

(3)  WitJiout  Prejudice  to  Injunction. — After  injunction  granted, 
the  bill  may  be  amended  by  leave  without  prejudice  to  the  injunc- 
tion ;*  and  where  a  bill  as  amended  states  good  ground  for  an 
injunction,  the  sufficiency  of  the  bill  as  originally  filed  to  sustain 
an  injunction  will  not  be  considered  on  appeal,  since  the  amend- 
ment relates  back  to  the  filing  of  the  bill.* 

(4)  Waiver  of  Default. — When  the  complainant  amends  his 
bill  after  the  defendant's  default  is  taken,  this  virtually  sets  the 
default  aside,  and  the  defendant  has  the  right  to  answer  the  bill 
without  an  order  setting  aside  his  default.' 


bell,  I  R.  &  M.  323.  See  Davenport  v. 
Bartlett,  9  Ala.  180. 

1.  Brinegar  v.  Allen,  2  Duv.(Ky.)  99. 
Purchase  Prior  to  Amendment. — If  the 

equity  in  the  amendment  is  contradic- 
tory of  or  different  from  that  in  the 
original  bill,  and  the  relief  is  of  a  dif- 
ferent character,  a  purchaser  who 
bought  previous  to  the  amendment 
will  not  be  affected  by  it.  Wortham 
V.  Boyd,  66  Tex.  401. 

2.  McDougald  v.  Dougherty,  11  Ga. 
570;  Adams  !».   Phillips,  75  Ala.  461. 

Adding  New  Parties.  —  When  new 
parties  defendant  are  added,  they  may 
set  up  the  statute  of  limitations  if  it 
has  attached  at  the  date  of  the  amend- 
ment. Miller  v.  M'Intyre,  6  Pet.  (U.S.) 
61. 

So,  if  an  entirely  new  plaintiff  is 
added  by  amendment,  the  defendants 
have  the  same  right  to  set  up  the  stat- 
ute of  limitations  against  him,  King 
V.  Avery,  37  Ala.  169;  or  staleness  of 
demand,  Tompkins  v.  Holt  (Ala., 
1891),  8  So.  Rep.  794. 

Amendment  Dispensing  with  Sworn 
Answer. — Where  the  original  bill  re- 
quired an  answer  under  oath,  which 
was  filed,  and  afterward  the  complain- 
ant filed  an  amended  bill  setting  up 
new  matter  and  dispensing  with  a 
sworn  answer,  it  was  held  that  such 
waiver  would  not  affect  the  answer 
under  oath  already  on  file,  and  that  it 
extended  only  to  the  new  matter  set 
up  in  the  amended  bill.  Jefferson  v. 
Kennard,  77  111.  246. 

3.  Johnson  v.  Vail,  14  N.  J.  Eq.  423; 
Barber  v.  Reynolds,  33  Cal.  497;  Reed 
V.  Consequa,  4  Wash.  (U.  S.)  174;  Sel- 
den  V.  Vermilya,  4  Sandf.  Ch.  (N.  Y.) 
573;  Mount  Olivet  Cemetery  Co.  v. 
Budeke,  2  Tenn.  Ch.  480;  Furness  v. 


Brown,  8  How.  Pr.  (N.  Y.  Supreme  Ct.> 
159;  Walker  v..  Walker,  3  Ga.  302; 
Warburton  v.  London,  etc.,  R.  Co.,  2 
Beav.  254;  Pratt  v.  Archer,  i  Sim.  «& 
Stu.  433;  Pickering  v.  Hanson,  2  Sim. 
488;  Davis  V.  Davis,  2  Sim.  515.  See 
also  Latham  v.  Wiswall,  2  Ired.  Eq. 
(N.  Car.)  294;  Atty.-Gen.  v.  Marsh,  16 
Sim.  572;  Delaware,  etc..  Canal,  etc., 
R.  Co.  V.  Raritan,  etc.,  R.  Co.,  14  N.  J. 
Eq.  445. 

"Where  an  injunction  bill  is  amend- 
ed on  leave,  the  injunction  continues 
in  force  although  the  order  granting^ 
leave  is  silent  on  the  subject."  Beach 
Mod.  Eq.  Pr.  §  154. 

Where  the  bill  as  amended  is  upon 
its  face  sufficient,  and  there  is  no  show- 
ing outside  the  bill  why  the  injunction, 
allowed  in  the  suit  should  be  dissolved, 
a  motion  to  dissolve  will  be  over- 
ruled. Lyster  v.  Stickney,  12  Fed.  Rep. 
609. 

Inconsistent  Amendment. — Where  the 
amendment  is  directly  in  conflict  with 
the  relief  sought  in  the  original  bill, 
an  attachment  and  injunction  sued  out 
under  the  original  bill  will  not  inure 
to  the  benefit  of  the  antagonistic  right 
set  up  in  the  amendment.  Bosley  v. 
Phillips,  3  Tenn.  Ch.  649. 

Where  Original  Bill  is  Defective. — 
Where  an  injunction  is  granted  on  an 
original  bill  which  is  defective,  but 
the  bill  is  afterward  cured  of  its  defects 
by  amendment,  it  is  proper  for  the 
court  to  refuse  to  dismiss  the  orig- 
inal bill.     Ward  v.  Whitfield,  64  Miss. 

754. 

4.  Miller  v.  Cook,  135  111.  190.  See 
Walsh  V.  Smyth,  3  Bland  (Md.)  9. 

5.  Lyndon  v.  Lyndon,  69  111.  43r. 
Gibson  v.  Rees,  50  111.  383;  Scudder  r.- 
Voorhis,  i  Barb.  (N.  Y.)  55. 


493 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


(5)  Obviating  Multifariousness. — Where  an  amendinent  aban- 
dons any  claim  which  made  the  original  bill  multifarious,  it 
obviates  any  objection  on  that  ground.* 

(6)  New  Process  upon  Amendment. — Upon  an  amendment  of  the 
bill,  no  new  subpoena  is  necessary,  except  to  bring  in  new  de- 
fendants who  are  made  parties  by  the  amendment.* 

3.  Of  Demurrers. — The  court,  upon  overruling  a  demurrer  because 
it  was  too  broad,  has  sometimes  given  the  defendant  leave  to  put 
in  a  less  extended  demurrer,  or  to  amend  and  narrow  the  de- 
murrer already  filed. ^  In  the  latter  case,  however,  the  applica- 
tion to  amend  ought  to  be  made  before  the  judgment  upon  the 
demurrer  as  it  stands  has  been  pronounced,"*  although  even  where 
that  has  been  omitted,  the  court  has,  after  the  demurrer  has  been 
overruled,  upon  a  proper  case  being  shown,  given  the  defendant 
leave  to  put  in  a  less  extended  demurrer.*  And  leave  to  correct 
a  clerical  error  in  a  demurrer  has  been  granted,  the  time  for  de- 
murring not  having  expired.® 


Merely  Formal  Amendment.  —  An 
amendment  necessary  to  show  the 
jurisdiction  of  the  court,  but  which 
neither  alters  the  title  of  the  com- 
plainant to  the  relief  sought,  nor  the 
relief  itself  in  substance  or  form,  may 
be  regarded  as  merely  formal  and  not 
superseding  a  prior  default.  Clason 
V.  Corley,  5  Sandf.  (N.  Y.)  454. 

1.  Alabama  Warehouse  Co.  v.  Jones, 
62  Ala.  550;  Harland  v.  Person,  93 
Ala.  273;  Whitney  z/.  Union  R.  Co.,  11 
Gray  (Mass.)  359,  71  Am.  Dec.  715. 

2.  Lawrence  v.  Bolton,  3  Paige  (N. 
Y.)  294;  Beekman  v.  Waters,  3  Johns. 
Ch.  (N.  Y.)4io;  Equitable  L.  Assur. 
Soc.  V.  Laird,  24  N.  J.  Eq.  319;  Long- 
worth  V.  Taylor,  i  McLean  (U.  S.)5I4; 
Jefferson  v.  Gaines,  7  Baxt.  (Tenn.) 
368;  Abright  v.  Flowers,  52  Miss.  246; 
Angerstein  v.  Clark,  i  Ves.  Jr.  250, 
Beach  Mod.  Eq.  Pr.  §  154.  See  Bal- 
timore, etc.,  R.  Co.  V.  Christie,  5  W. 
Va.  325. 

Notice  of  Amendment. — A  defendant 
in  court  or  acknowledging  due  service 
of  process  may  fairly  be  held  to  have 
constructive  notice  of  all  amendments 
made  before  he  is  defaulted.  Fogg  v. 
Merrill,  74  Me.  523. 

But  after  his  default  he  is  entitled 
to  notice  of  an  amendment  which  in- 
creases the  claim  of  the  plaintiff.  Fogg 
V.  Merrill,  74  Me.  523. 

In  some  states  service  of  amend- 
ments is  required.  See  Masterson  v. 
Masterson,  32  Ala.  437;  Alston  v.  Al- 
ston, 34  Ala.  13;  Holly  v.  Bass,  63 
Ala.  387;  Hinton  v.  Citizens'  Mut.  Ins. 
Co.,  63  Ala.  488;  McRae  v.   Guion,  5 


Jones  Eq.  (N.  Car.)  129;  Myers  v. 
Morris  (N.  J.,  1888),  11  Atl.  Rep.  859; 
Reno  V.  Harper,  23  Miss.  154. 

3.  Kirkpatrick  v.  Corning,  39  N.  J. 
Eq.  22;  Vanderveer  v.  Stryker,  8  N. 
J.  Eq.  186;  Marsh  v.  Marsh,  16  N.  J. 
Eq.  391,  84  Am.  Dec.  164,  where  a  de- 
murrer for  want  of  equity  was  over- 
ruled with  leave  to  amend  by  specify- 
ing the  grounds  of  demurrer.  Atwill 
V.  Ferrett,  2  Blatchf.  (U.  S.)39;  Baker 
V.  Mellish,  11  Ves.  Jr.  68;  Glegg  v, 
Legh,  4  Madd.  104;  Thorpe  v.  Macau- 
lay,  5  Madd.  135. 

In  Kirkpatrick  v.  Corning,  39  N.  J. 
Eq.  22,  a  decree  of  the  chancellor  sus- 
taining a  general  demurrer  was  re- 
versed by  the  Court  of  Appeals,  but  a 
part  of  the  chanceller's  decision,  as  ex- 
pressed in  his  opinion,  was  approved. 
It  was  held  that,  after  the  decision 
of  the  Court  of  Appeals  had  been  remit- 
ted to  the  Court  of  Chancery,  the  de- 
fendant could  apply  under  the  rule 
of  court  to  have  stricken  out  of  the 
bill  so  much  thereof  as  was  held  to  be 
objectionable  by  that  part  of  the  deci- 
sion sustained  by  the  Court  of  Appeals, 
such  proceeding  being  tantamount  to 
an  amendment  of  the  original  de- 
murrer. 

4.  I  Daniell  Ch.  Pr.  (6th  Am.  ed. )  584. 
6.   I  Daniell    Ch.   Pr.  (6th  Am.  ed.) 

584;  Vanderveer  v.  Stryker,  8  N.  J.  Eq. 
175;  Marsh  v.  Marsh,  16  N.  J.  Eq.  391, 
84  Am.  Dec.  164;  Baker  v.  Mellish,  11 
Ves.  Jr.  76. 

6.  Richardson  v.  Hastings,  7  Beav. 
58. 

United   States   Revised    Sts.    §   954, 


494 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Eqnity. 


4.  Of  Pleas. — The  court  will  grant  leave  to  amend  a  plea  where 
an  apparently  good  ground  of  defense  is  disclosed  by  the  plea, 
but  owing  to  some  accident  or  mistake  it  has  been  informally 
pleaded.*  Where  a  substantial  ground  of  defense  has  been 
omitted,  such  permission  will  not  be  given.* 

Where  an  amendment  is  allowed,  a  short  time  is  generally 
limited  within  which  it  must  be  made.^ 

Although,  where  the  error  is  very  palpable,  the  court  will  give  the 
defendant  leave  to  amend  at  the  argument  of  the  plea,  the  most 
usual  course  is  for  the  defendant  to  move  subsequently  for  leave 
to  amend  his  plea.* 

5.  Of  Replications. — Any  error  in  the  replication  except  the 
omission  of  the  names  of  any  defendants  may  be  corrected  by 
amendment.* 

6.  Of  Answers — a.  In  General. — In  matters  of  form,*  or  mis- 


would  authorize  the  amendment  of  a 
demurrer  in  matter  of  form,  i  Foster 
Fed.  Pr.  (2d  ed.)§  i66. 

1.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
703,  704;  Beach  Mod.  Eq.  Pr.  §  320; 
Green  v.  Harris,  11  R.  I.  5,  an  instruc- 
tive case  on  the  amendment  of  pleas, 
holding  that  a  plea  may  be  amended 
though  supported  or  accompanied  by 
an  answer.  Meeker  v.  Marsh,  i  N.  J. 
Eq.  19S. 

In  Federal  Courts. — United  States  Rev. 
Sts.  §  954,  would  allow  an  amendment 
of  a  plea  in  matter  of  form. 

Plea  of  Stated  Account. — Where  the  de- 
fendant pleaded  a  stated  account  with- 
out alleging  that  it  was  just  and  true, 
and  it  was  overruled  for  the  defect, 
leave  was  given  to  amend.  Driggs  v. 
Garretson,  25  N.  J.  Eq.  178. 

Plea  of  Release. — Where  a  bill  charges 
that  a  release  was  procured  by  fraud, 
and  the  defendant  pleads  the  release 
without  denying  the  circumstances 
charged,  he  may  be  allowed  to  amend 
his  plea.  Allen  v.  Randolph,  4  Johns. 
Ch.  693;  Bayley  v.  Adams,6Ves.  586. 

Additional  Facts. — A  plea  may  be 
amended  by  the  addition  of  a  fact  un- 
known to  the  defendant  when  the  plea 
was  filed  and  consistent  with  the  de- 
fense then  made,  but  it  will  not  be 
allowed  for  the  purpose  of  setting  up 
a  fact  or  state  of  facts  inconsistent 
with  the  original  defense.  Freeman 
V.  Michigan  State  Bank,  Harr.  (Mich.) 
311,  where  the  amendment  was 
allowed. 

Amendment  of  Verification. — The  af- 
fidavit in  support  of  a  plea  may  be 
amended  by  leave  of  the  court.  Beach 
Mod.    Eq.     Pr.    §   323  ;    Cheatham  v. 


Pearce,  89  Tenn.  668;  Wrompelmeir 
V.  Moses,  3  Baxt.  (Tenn.)  471;  Trabue 
V.  Higden,  4  Coldw.  (Tenn.)  624;  Sei- 
freid  v.   People's  Bank,  2  Tenn.   Ch. 

19- 

2.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.)  704. 

Raising  Several  Issues. — An  amend- 
ment of  a  plea  so  as  to  raise  a  multi- 
tude of  issues  will  not  generally  be 
allowed,  especially  after  long  delay. 
Giant  Powder  Co.  v.  Safety  Nitro 
Powder  Co.,  19  Fed.  Rep.  509. 

3.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
703;  Beach  Mod.  Eq.  Pr.  §  320;  Hoff- 
man Ch.  Pr.  (2d  ed.)  226. 

4.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.)  704. 

5.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.) 
831. 

In  Goodyear  v.  McBurney,  3  Blatchf. 
(U.  S.)  32,  a  plaintiff  was  permitted  to 
file  an  amended  replication  to  a  plea, 
the  amendment  setting  up  matters  of 
which  he  was  ignorant  when  the  plea 
and  replication  were  filed,  on  payment 
of  costs  of  opposing  the  motion  to 
amend  and  of  putting  in  a  rejoinder  to 
the  replication. 

Transposition  of  Parties.  —  After  a 
cause  was  submitted  to  the  jury,  it 
being  discovered  that  the  replication 
which  had  been  filed  transposed  the 
parties,  the  court  permitted  a  formal 
and  proper  replication  to  be  filed. 
Buckley  v.  Boutellier,  61  111.  B93. 

6.  Amending  Title. — Where  there  has 
been  a  mistake  in  the  title  of  an  an- 
swer, an  amendment  of  it  has  been 
permitted.  White  v.  Godbold,  i  Madd. 
151;  Peacock  v.  Duke  of  Bedford,  i 
Ves.  &  B.  186:  Thatcher  v.  Lambert, 
5  Hare  228;  Atty.  Gen.  v.  Worcester, 
2  Ph.  3. 


495 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity- 


takes  in  dates,*  or  verbal  inaccuracies,*  courts  of  equity  are  very- 
indulgent  in  allowing  amendments  of  answers.^  But  they  are 
slow  to  allow  amendments  in  material  facts,  or  amendments 
which  change  essentially  the  grounds  taken  in  the  original 
answer,"*     Where  the  object  is  to  let  in  facts  and  defenses  de- 


Formal  Denial. — The  defendant  will 
be  allowed  to  amend  his  answer  by  a 
formal  denial  of  the  averments  of  the 
bill.  McBride  v.  Patton,  9  Phila. 
(Pa.)  271. 

Making  Answer  Responsive. — Where 
an  answer  is  not  sufficiently  explicit 
and  responsive,  an  amended  answer 
maybe  required.  Feller z/.  Winchester, 
3  Greene  (Iowa)  244. 

Amending  Jurat. — An  omission  in  the 
jurat  to  an  answer  may  be  amended. 
Arnold  v.  Kreissler,  22  Tex.  580. 

Amending  Verification.  —  Under  the 
Iowa  Code,  the  defendant  may  amend 
his  answer  and  verification.  Brink  v. 
Morton,  2  Iowa  411. 

Inserting  Names  of  Parties.  —  The 
omission  of  the  names  of  the  parties 
from  an  unsworn  answer  by  mistake 
of  the  solicitor  was  amended  after 
replication  and  testimony  in  behalf  of 
the  parties  for  whom  it  was  put  in  as 
a  mere  pleading.  McMichael  v.  Bren- 
nan,  31  N.  J.  Eq.  496. 

Federal  Equity  Rule. — United  States 
Equity  Rule  60  provides  for  the  amend- 
ment of  answers  as  of  course  in  any 
matter  of  form,  or  by  filling  up  a  blank 
or  correcting  a  date,  or  a  reference  to 
a  document  or  other  small  matter  at 
any  time  before  a  replication  is  put  in 
or  the  cause  set  down  for  hearing  upon 
bill  and  answer. 


Incorporating  Demurrer  in  Answer. — 

Under  the  Alabama  Code,  4^  3449,  pro- 
viding that  amendments  to  answers 
must  be  allowed  at  any  time  before  de- 
cree so  as  to  set  up  any  defense,  the 
court  is  bound  to  permit,  on  motion,  a 
demurrer  filed  before  answer  to  be  in- 
corporated in  the  answer;  but  a  re- 
fusal to  do  so  will  be  error  without 
prejudice  where  the  demurrer  was  in 
fact  ruled  upon.  Harland  v.  Person, 
93  Ala.  273. 

Amending  Answer  in  Interpleader. — In 
a  bill  of  interpleader,  after  the  dis- 
charge of  the  complainant,  and  the 
testimony  has  been  published  by  con- 
sent without  prejudice,  the  court  may 
in  its  discretion  permit  an  amendment 
of  one  of  the  answers.  Lanier  v. 
Driver,  24  Ala.  149. 

By  Striking  Out. — In  Oliver  v.  Per- 
sons, 29  Ga.  568,  a  defendant  was  al- 
lowed to  amend  his  answer  by  striking 
out  part  of  it,  the  statute  providing  for 
amendments  in  form  or  substance  as 
matter  of  right. 

After  Exceptions  Sustained. — Where 
exceptions  to  the  answer  are  sustained, 
the  defendant  should  have  leave  ta 
amend.  Hollis  v.  Border,  10  Tex. 
360. 

Before  Replication.  —  In  Kentucky, 
under  the  acts  of  1802  and  iSii,  the 
defendant  could  amend  his  answer  as 


1.  Smith  J'.  Babcock,  3  Sumn.  (U.  S.)    of  right  before  replication.     Hughes 


583. 

In  Fulton  v.  Gilmour,  8  Beav. 
154,  I  Phil.  522,  after  the  cause  was  at 
issue  and  on  the  paper,  leave  was 
given  to  file  a  supplemental  answer  to 
correct  an  important  date. 

2.  Smith  z".  Babcock,  3  Sumn.  (U.  S.) 

583. 

3.  Smith  w.  Babcock,  3  Sumn.  (U.  S.) 
583;  Huffman  v.  Hummer,  17  N.  J. 
Eq.  269. 

Amending  Supplemental  Answer. — A 
supplemental  answer  asking  for  affirm- 
ative relief  may  be  amended,  like 
any  otner  pleading,  even  after  plain- 
tiffs have  taken  a  nonsuit,  since  they 
may  remain  in  court  as  defendants 
to  the  portion  of  the  answer  demand- 
ing affirmative  relief.  Merchant  v. 
Bowyer,  3  Tex.  Civ.  App.  367. 


V.  Phelps,  3  Bibb  (Ky.)  19S. 

So  in  the  federal  courts  under  United 
States  Equity  Rule  60. 

Converting  Answer  into  Cross-bill. — In 
Georgia,  where  amendments  in  equity 
are  a  matter  of  right  by  statute,  an 
amendment  taking  the  form  of  a  cross- 
bill may  be  made  to  the  answer. 
Canant  v.  Mappin,  20  Ga.  730.  See 
also  Bowman  v.  Long,  27  Ga.  178. 

4.  Smith  V.  Babcock,  3  Sumn.  (U.  S.) 
583;  Graves  z/.  Niles,  Harr.  (Mich.)  332; 
Huffman  v.  Hummer,  17  N.  J.  Eq.  269; 
Bell  V.  Hall,  5  N.  J.  Eq.  49;  Vandevere 
V.  Reading,  9  N.J.  Eq.  446;  Mechan- 
ics' Bank  v.  Burnett  Mfg.  Co.,  32  N. 
J.  Eq.  236;  Campion  v.  Kille,  14  N.  J. 
Eq.  229;  Reynolds  v.  West,  32  Ark.  244; 
Williams  v.  Savage  Mfg.  Co.,  3  Md. 
Ch.  418;  Tillinghast  v.  Champlin  .4R.L 


496 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


pending  wholly  upon  parol  evidence,  the  reluctance  of  the  court 
to  allow  amendments  is  greatly  increased.*  But  where  the  facts 
sought  to  be  introduced  are  written  papers  or  documents  which 
have  been  omitted  by  accident  or  mistake,  the  court  is  much  in- 
clined to  permit  the  amendment.* 

The  whole  matter  rests  in  the  sound  discretion  of  the  court.* 
But  the  rule  frequently  declared  is,  that,  before  amendments  to  the 
answer  are  allowed,  the  court  should  be  satisfied  that  the  reasons 
assigned  for  the  application  are  cogent ;  that  the  mistakes  to  be 
corrected  or  the  facts  to  be  added  are  made  highly  probable,  if 
not  certain  ;"*  that  they  are  material  to  the  merits  of  the  case  ;  * 


128;  Goodwin  v.  McGehee,  15  Ala.  232; 
Maher  v.  Bull,  39  111.  531  ;  Maher 
V.  Bull,  39  III.  538;  Elder  v.  Harris, 
76  Va.  187,  holding  that  the  pro- 
vision of  the  Code  allowing  a  de- 
fendant to  file  his  answer  at  any  time 
before  final  decree  has  no  reference  to 
an  amended  or  supplemental  answer; 
Cook  V.  Bee,  2  Tenn.  Ch.  343;  Martin 
V.  Atkinson,  5  Ga.  390;  Western  Re- 
serve Bank  v.  Stryker,  i  Clarke  Ch. 
(N.  Y.)  3S0. 

Answer  in  Nature  of  Cross-bill. — Where 
an  amended  answer  is  filled  in  the  na- 
ture of  a  cross-bill  for  aflSrmative  re- 
lief, such  amended  answer  should  be 
confined  to  the  matters  contained  in  the 
original  bill  and  answer,  and  should 
not  interpose  new  and  different  matters 
not  embraced  therein.  Radclifif  z/.  Cor- 
rothers,  33  W.  Va.  682. 

1.  Smith  z*.  Babcock,  3  Sumn.  (U.  S.) 
583;  India  Rubber  Comb  Co.  v.  Phelps, 
8  Blatchf.  (U.  S.)85. 

2.  Smith  V.  Babcock,  3  Sumn.  (U.  S.) 

583. 

3.  Bowen  v.  Cross,  4  Johns.  Ch.  (N. 
Y.)  375;  Huffman  v.  Hummer,  17  N.  J. 
Eq.  269;  Arnaud  v.  Grigg,  29  N.  J.  Eq. 
i;  Warren  v.  Twilley,  10  Md.  39;  Rick- 
etts'  Appeal  (Pa.,  1888),  12  Atl.  Rep. 
60;  Martin  v.  Atkinson,  5  Ga.  390. 

Defendant  in  Contempt. — A  defendant 
who  offers  to  file  an  insufficient  answer 
to  purge  a  contempt  cannot  claim  as 
a  matter  of  right  to  amend  the  answer. 
The  motion  should  be  for  leave  to  file 
a  sufficient  answer.  Cowart  v.  Harrod, 
12  Ala.  265. 

Sufficient  Showing. — When  it  is  made 
to  appear  to  the  court  upon  oath  that 
the  defendant,  when  he  first  put  in  his 
answer,  intended  to  swear  as  he  de- 
sires by  the  amendment  to  be  permit- 
ted to  swear,  the  amendment  will  be 
allowed.  Martin  v.  Atkinson,  5  Ga. 
390- 


Not  so  Liberal  as  at  Law. — It  has  been 
said  that  courts  of  equity  exhibit  less 
facility  in  allowing  amendments  to  an- 
swers than  is  exhibited  by  courts  of 
law  in  allowing  amendments  to  plead- 
ings. Calloway  v.  Dobson,  i  Brock. 
(U.  S.)  119. 

Setting  up  Statutes  of  Frauds  and  of 
Limitations.— After  issue  joined  and 
the  cause  set  for  hearing,  the  defend- 
ant may  be  permitted  for  good  cause 
shown  to  amend  his  answer  by  plead- 
ing the  statutes  of  frauds  and  limita- 
tions. Jackson  v.  Cutright,  5  Munf. 
(Va.)  303. 

In  White  v.  Turner,  2  Gratt.  (Va.) 
502,  the  defendant  was  allowed  to 
amend  by  setting  up  the  statute  of 
limitations. 

A  motion  to  amend  the  answer  by 
setting  up  the  statute  of  frauds  after 
the  plaintiff  had  closed  his  testimony 
was  allowed  in  Hann  v.  Barnegat,  etc.. 
Imp.  Co.  (N.  J.,  1887),  8  Atl.  Rep.  531. 

4.  Smith  z/.  Babcock,  3  Sumn.  (U.  S.) 
583;  Higgins  z/.  Curtiss,  82  111.  28.  See 
also  Smallwood  v.  Lewin,  13  N.  J.  Eq. 
123;  Hart  V.  Sanderson,  i3  Fla.  103. 

Facts  Admitted  to  be  True.  —  An 
amendment  will  not  be  allowed  which 
fails  to  state  correctly  facts  which  are 
admitted  to  be  true.  Dearth  v.  Hide, 
etc.,  Nat.  Bank,  100  Mass.  540. 

Where  Evidence  Insufficient. — A  mo- 
tion to  amend  an  answer,  and  for  a 
commission  to  take  testimony  in  a  for- 
eign country  to  prove  who  was  the 
original  inventor  of  a  patent,  will  not 
be  allowed  when  the  affidavits  filed 
show  that  there  is  no  evidence  to  sus- 
tain the  amendment.  Hicks  v.  Otto, 
17  Fed.  Rep.  539. 

5.  Smith  V.  Babcock,  3  Sumn.  (U.  S.) 

583- 

Irrelevant  Matter. — An  amended  an- 
swer presenting  as  new  matter  only 
matter     immaterial     and      irrelevant 


I 


I  Encyc.  PI.  &  Pr.— 32. 


497 


Cf  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


that  the  mistakes  have  been  ascertained  and  the  new  facts  have 
come  to  the  knowledge  of  the  party  since  the  original  answer  was 
put  in  and  sworn  to,*  and  that  the  party  has  not  been  guilty  of 
gross  negligence.* 


ought  to  be  rejected.  McKay  v.  Mc- 
Kay, 33  W.  Va.  724. 

Where  a  proposed  amendment  pre- 
sents new  matter  which  is  not  material 
to  the  defense,  the  court  may  refuse 
to  permit  it  to  be  filed.  Tracewell  v. 
Boggs,  14  W.  Va.  254. 

1.  Smith  V.  Babcock,  3  Sumn.  (U.  S.) 
5S3  ;  Martin  v.  Mitchell,  26  N.  J.  Eq. 
497;  Foutty  V.  Poar,  35  W.  Va.  70; 
Matthews  v.  Dunbar,  3  W.  Va.  138; 
Graham  v.  Skinner,  4  Jones  (N.  Car.) 
94.  See  also  Livesay  v.  Wilson,  i 
Ves.  &  B.  149,  note. 

Previous  Knowledge. — Leave  to  amend 
an  answer  in  a  foreclosure  suit  by  the 
insertion  of  an  additonal  fact  was  re- 
fused where  such  fact  was  known  to 
the  defendant  at  the  time  the  answer 
was  filed.  Cross  v.  Morgan,  6  Fed. 
Rep.  241. 

In  Wilson  v.  Wintermute,  27  N.  J. 
Eq.  63,  an  application  to  amend  a  sworn 
answer,  on  the  ground  of  mistake  dis- 
covered at  the  time  the  answer  was 
read  to  the  party  making  it,  was  denied 
where  the  application  was  made  more 
than  two  years  after  the  discovery  and 
the  filing  of  the  answer,  and  without  ex- 
cuse for  the  delay  and  upon  feeble 
proof  of  the  alleged  mistake. 

Mistake  of  Fact. — It  was  said,  in 
Bowen  v.  Cross,  4  Johns.  Ch.  (N.  Y.) 
378,  that  amendments  of  answers  to 
correct  mistakes  are  allowed  with 
great  caution,  and  only  where  there 
is  a  mistake,  properly  speaking,  as  to 
a  matter  of  fact,  and  not  where  the  de- 
fendant has  mistaken  the  nature  of 
his  defense.  See  also  Reynolds  v. 
West,  32  Ark.  244;  Cock  v.  Evans,  9 
Yerg.  (Tenn.)  287;  United  R.,  etc. 
Co.  V.  Long  Dock  Co.,  41  N.  J.  Eq. 
407;  Branch  v.  Dawson,  9  Ga.  592. 

Mistake  of  Solicitor. — In  Arnaud  v. 
Grigg,  29  N.  J.  Eq.  i,  after  the  evi- 
dence was  closed  and  the  cause  set 
down  for  final  hearing,  the  defendant 
■was  permitted  to  amend  by  setting  up 
an  instrument  which  had  been  omit- 
ted from  the  answer  by  mere  over- 
sight of  his  solicitor,  the  proposed 
amendment  making  no  new  defense, 
but  making  more  effectual  the  defense 
already  presented  by  the  answer. 


In  Nail  v.  Punter,  4  Sim.  474,  leave 
was  given  to  a  defendant  to  amend  by 
stating  facts  which  she  had  desired  to 
state  in  her  answer,  but  which  she  had 
been  prevailed  upon  to  omit  by  the 
mistaken  advice  of  her  solicitor.  So, 
too,  under  like  circumstances,  in 
Burgin  v.  Giberson,  23  N.  J.  Eq.  403. 

Limiting  Admissions. — In  Dagly  v. 
Crump,  Dick.  35,  a  defendant  was  al- 
lowed to  amend  his  answer  by  limiting 
the  admission  of  assets  contained 
therein.  The  admission  was  most 
important,  and  was  made  by  mistake 
and  the  carelessness  of  the  solicitor 
who  drew  the  answer.  See  also 
Hughes  V.  Bloomer,  9  Paige  (N.  Y.) 
270;  Curling  v.  Townshend,  19  Ves. 
Jr.  62S;  Swallow  v.  Day,  Coll}'.  133. 

Ambiguous  Answer. — The  discovery 
of  a  mistake  in  the  answer,  or  that  it  is 
liable  to  be  misunderstood,  is  a  good 
ground  for  amendment.  McW^iUiams 
V.  Herndon,  3  Dana  (Ky.)  568;  Bowen 
V.  Cross,  4  Johns.  Ch.  (N.  Y.)  375. 
Especially  so  where  the  correction  will 
not  be  prejudicial  to  the  plaintiff. 
Mouncer  v.  Byars,  11  Ga.  180. 

Contradicting  Admissions. — The  court 
may  allow  an  amended  answer  con- 
tradicting admissions  made  in  the 
original  answer  by  mistake.  Downing 
V.  Bacon,  7  Bush  (Ky.)  680;  Taylor  v. 
Dodd,  5  Ind.  246. 

2.  Smith  V.  Babcock,  3  Sumn.  (U. 
S.)  5S3.  Gouverneur  z/.  Elmendorf,  4 
Johns.  Ch.  (N.  Y.)  357. 

Illness  and  Hurry  of  Solicitor. — In 
Tillinghast  v.  Champlin,  4  R.  I.  128, 
a  substantial  amendment  of  the  an- 
swer was  allowed  after  the  cause  had 
been  set  down  for  hearing  on  bill  and 
answer,  there  being  no  gross  neg- 
ligence, and  the  illness  and  hurry  of 
the  solicitor  being  deemed  a  satis- 
factory excuse. 

Ignorance  and  Laches. — In  a  suit  for 
the  infringement  of  a  patent,  the  de- 
fendant, more  than  one  year  after  the 
plaintifif's  proofs  were  closed,  moved 
to  amend  the  sworn  answer  by  aver- 
ring, on  information  and  belief,  that 
the  invention  had  been  in  public  use 
for  more  than  two  years  before  the 
patent  was  applied    for,    and    that   it 


498 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


b.  Facts  Occurring  Subsequent  to  Answer.— Where  a  fact 
which  may  be  of  advantage  to  a  defendant  has  happened  subse- 
quent to  his  answer,  it  cannot  with  propriety  be  put  in  issue  by 
amending  his  answer.*  But  if  it  appears  to  the  court  on  the  hear- 
ing that  it  may  thus  be  of  advantage,  the  proper  way  seems  to  be 
to  order  the  cause  to  stand  over  until  a  new  bill  can  be  filed  in 
which  the  fact  can  be  brought  to  a  hearing  with  the  original  suit.* 

c.  Making  a  New  Defense. — Except  under  very  special 
circumstances,  leave  will  not  be  granted  to  the  defendant  to  file 
an  amended  answer  in  which  it  is  proposed  to  take  entirely  new 
ground,  and  chapge  entirely  the  character  of  the  defense.' 

d.  Unconscionable  Defenses. — Formerly  the  courts  were 
inclined  to  discriminate  against  defenses  denominated  unconscion- 
able,^ such  as  usury,  the  statute  of  limitations,  and  the  statute  of 

Subsequently  Acquired  Title. — But  in 
Barnegat  City  Beach  Assoc,  v.  Buzby 
(N.  J.,  1890),  20  Atl.  Rep.  214,  on  a 
bill  filed  to  determine  title  to  land,  the 
defendant  was  allowed  to  amend  his 
answer  so  as  to  set  up  a  title  to  the 
land  in  dispute  which  he  had  acquired 
since  his  answer  was  filed,  the  court 
declaring  that  conclusion  to  be  "  more 
in  harmony  with  the  liberality  of 
judges  at  the  present  time  in  allowing 
amendments." 

3.  Campion  v.  Kille,  14  N.  J.  Eq. 
229;  Graves  v.  Niles,  Harr.  (Mich.) 
332.  See  also  Calloway  v.  Dobson,  i 
Brock.  (U.  S.)  119;  Freeman  v.  Michi- 
gan State  Bank,  Harr.  (Mich.)  311; 
Reynolds  v.  West,  32  Ark.  244;  Field- 
ing V.  Fitzgerald,  130  111.  437. 

But  in  Graves  v.  Niles,  Harr.  (Mich.) 
332.  where  it  appeared  that  there  was 
doubt  in  regard  to  the  proper  applica- 
tion of  certain  moneys  admitted  to 
have  been  received  by  the  defendant, 
and  the  answer  was  obscure,  and  there 
was  a  possibility  that  great  injustice 
might  be  done  to  the  defendant,  the 
court  reluctantly  granted  an  order  per- 
mitting a  separate  supplemental  an- 
swer to  be  filed  as  to  the  particular 
above  mentioned,  and  explaining  the 
ambiguity. 

In  Grace  v.  Newbre,  31  Wis.  19, 
where  the  original  answer  denied  that 
there  had  been  an  account  stated  be- 
tween the  parties, an  amendment  which 
alleged,  in  substance,  that  if  the  trans- 
action between  them  amounted  to  the 
stating  of  an  account,  then  such  ac- 
count, by  reason  of  certain  mistakes, 
was  stated  at  too  large  an  amount 
against  defendant,  was  held  not  incon- 
sistent with  the  original  denial. 
4.  Setting  up  Ultra  Vires. — A  defense  to 


was  described  in  a  prior  patent.  The 
only  excuse  offered  for  not  inserting 
the  first  defense  in  the  original  an- 
swer was  that  the  counsel  who  pre- 
pared that  answer  was  under  the  im- 
pression that  the  suit  was  subject  to 
the  law  as  it  stood  prior  to  the  patent 
act  of  1870;  and  as  to  the  second  de- 
fense, the  excuse  was  that  such  coun- 
sel had  no  knowledge  or  information 
of  any  description  of  any  patent  prior 
to  plaintiff's  containing  a  certain  de- 
vice. The  motion  was  denied.  Web- 
ster Loom  Co.  V.  Higgins,  13  Blatchf. 
(U.  S.)349. 

See,  for  other  cases  of  laches  in  ap- 
plying for  leave  to  amend,  Goodwin 
V.  McGehee,  15  Ala.  232;  United  R., 
etc.,  Co.  V.  Long  Dock  Co.,  41  N.  J. 
Eq.  407;  Furman  v.  Edwards,  3  Tenn. 
Ch.  365;  Wilson  V.  Wilson,  2  Lea 
(Tenn.)  17;  India  Rubber  Comb.  Co. 
V.  Phelps,  8  Blatchf.  (U.  S.)  85. 

Federal  Equity  Bale. — United  States 
Equity  Rule  80,  providing  that  after 
replication  or  cause  set  down  for  hear- 
ing on  bill  and  answer  material  amend- 
ments shall  be  made  only  upon  special 
leave  and  cause  shown  by  affidavit,  is 
not  complied  with  where  it  appears  that 
the  matter  of  the  proposed  amendment 
could  with  reasonable  diligence  have 
been  earlier  introduced  into  the  answer. 
India  Rubber  Comb.  Co.  v.  Phelps,  8 
Blatchf.  (U.  S.)85. 

Laches  without  Prejudice. — Where  de- 
fendant's delay  in  interposing  a  par- 
ticular defence  has  not  caused  any 
material  change  in  the  plaintiff's 
situation,  the  amendment  may  be 
allowed.  Arnold  v.  Chesebrough,  33 
Fed.  Rep.  571. 

1.  Story  Eq.  PI.  (loth  ed.)  §  903. 

2.  Story  Eq.  PI.  (loth  ed.)  §  903. 


499 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


frauds,  and  not  to  allow  such  defenses  to  be  set  up  by  amended  or 
supplemental  answer  }  but  this  practice  has  been  much  shaken 
by  recent  authorities,  which  hold  that  it  is  the  duty  of  the  court 
to  put  statutory  defenses  upon  the  same  footing  with  other  legal 
defenses  in  this  behalf.* 

e.  At  and  After  Hearing.— Upon  the  hearing  of  a  cause, 
the  same  indulgence  will  be  granted  to  a  defendant  as  to  a  plain- 
tiff,^ and  if  it  appears  that  the  defendant  has  not  put  in  issue  facts 
which  he  ought  to  have  put  in  issue,  and  which  must  necessarily 
be  in  issue  to  enable  the  court  to  determine  the  merits  of  the  case, 
he  will  be  allowed  to  amend  his  answer  for  the  purpose  of  stating 
those  facts."* 


a  bill  for  foreclosure,  that  the  plaintiff 
corporation,  in  making  the  loan  to  se- 
cure which  the  mortgage  was  given, 
was  acting  ultra  vires,  is  unconscion- 
able, and  cannot  be  set  up  in  a  supple- 
mental answer  by  way  of  amendment. 
Third  Ave.  Sav.  Bank  v.  Dimock,  24 
N.  J.  Eq.  26. 

1.  See  Gilchrist  v.  Gilchrist,  44 
How.  Pr.  (N.  Y.  Supreme  Ct.)  317, 
where  the  question  is  discussed. 

Statute  of  Limitations. — See  StuU  v. 
Goode,  10  Heisk.  (Tenn.)  58;  Cock  v. 
Evans,  9  Yerg.  (Tenn.)  287;  McRae  v. 
David,  7  Rich.  Eq.  (S.  Car.)  375;  Per- 
cival  V.  Caney,  14  Jur.  473;  and  cases 
cited  in  Gilchrist  v.  Gilchrist,  44  How. 
Pr.  (N.  Y.  Supreme  Ct.)  317. 

In  Ricketts'  Appeal  (Pa.,  1888),  12 
Atl.  Rep.  60,  it  was  held  not  an  abuse 
of  discretion  to  refuse  to  allow  the  de- 
fendant to  amend  by  setting  up  the 
statute  of  limitations  after  a  hearing 
before  a  master,  and  while  the  case 
was  before  the  Court  of  Common 
Pleas. 

Statute  of  Frauds. — See  Cook  v.  Bee, 
2  Tenn.  Ch.  343. 

Usury. — See  Hill  v.  Colie,  25  N.  J. 
Eq.  469;  Marsh  v.  Lasher,  13  N.  J.  Eq. 
253;  Hartson  v.  Davenport,  2  Barb. 
Ch.  (N.  Y.)77- 

2.  Gilchrist  v.  Gilchrist,  44  How. 
Pr.  (N.  Y.  Supreme  Ct.)  317,  where  de- 
fendant amended  by  pleading  the  stat- 
ute of  limitations.  McQueen  v.  Bab- 
cock,  3  Keyes  (N.  Y.)  428;  White  v. 
Turner,  2  Gratt  (Va.)  502.     See  infra, 

HI,  3.^. 

Statute  of  Frauds. — Hann  v.  Barnegat, 
etc..  Imp.  Co.  (N.  J.,  1887),  8  Atl.  Rep. 
531,  where  a  motion  to  amend  the  de- 
fendant's answer  by  setting  up  the 
statute  of  frauds  was  allowed  after 
the  plaintiff  had  closed  his  testimony. 
"The  time  has  been,   perhaps,"  said 


Bird,  N.  C,  "when  such  an  amend- 
ment would  not  be  allowed  at  any  time, 
but  happily,  as  I  think,  that  time  has 
passed."  Scott  w.  Harris,  113  111.  447; 
Jackson  v.  Cutright,  5  Munf.  (Va.) 
308. 

Usury. — When  the  plaintiff  volun- 
tarily confesses  the  taking  of  usury, 
and  there  is  a  variance  between  the 
contract  alleged  and  that  proved, 
the  court,  in  order  to  give  the  defend- 
ant the  benefit  of  facts  admitted,  will 
direct  an  amendment  of  the  answer 
on  the  hearing.  Cox  v.  Westcoat,  29  N. 
J-  Eq.  551. 

3.  Story  Eq.  PI.  (loth  ed.)  §  902. 
An  unsworn  answer  may  be  amended 

on  the  hearing  so  as  to  admit  proof  of 
new  facts  in  defense  and  to  avoid  a 
variance.  Haskell  v.  Brown,  65  111. 
29. 

4.  Story  Eq.  PI.  (iothed.)§  982;  De- 
pue  V.  Sergent,  21  W.  Va.  326.  Compare 
Walden  v.  Bodley,  14  Pet.  (U.  S.)  156, 

In  Balen  v.  Mercier,  75  Mich.  42, 
the  court  allowed  a  substantial  amend- 
ment to  an  unsworn  answer. 

Mistake  of  Fact. — In  case  of  a  plain 
mistake  as, to  facts,  though  not  dis- 
covered until  after  argument,  an 
amendment  of  the  answer  will  be  al- 
lowed. Welsh  V.  Arnett  (N.  J.,  1889), 
17  Atl.  Rep.  289. 

To  Obviate  a  Variance. — Where  an  ob- 
jection to  the  relevancy  or  competency 
of  the  evidence  is  made  specific  for  the 
first  time  in  the  closing  argument  for 
the  plaintiff,  the  court  will  permit  the 
defendant  to  so  amend  his  answer  as  to 
obviate  the  objection,  where  the  testi- 
mony is  before  the  court  showing  a 
proper  case  therefor.  Hamilton  v. 
Southern  Nevada  Gold,  etc.,  Min.  Co., 
33  Fed.  Rep.  562;  Powell  v.  Mayo,  26 
N.  J.  Eq.  120. 

After  Hearing. — An   answer  may  be 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


It  is  erroneous  to  permit  an  amended  answer  to  be  filed  in  the 
progress  of  the  trial,  and  then  to  proceed  without  giving  the 
plaintiff  an  opportunity  to  contest  the  matter  of  the  answer.* 

The  instances  are  rare  in  which  amendments  to  an  answer  have 
been  allowed  after  the  case  has  been  heard  and  there  has  been 
anv  expression  of  opinion  from  the  court.* 

When  the  court  is  about  to  sign  a  final  decree,  it  is  too  late  to 
amtJiuJ  the  answer  by  filing  a  plea  in  bar.* 

On  the  rehearing  of  a  decree,  an  answer  cannot  be  amended 
except  by  consent  of  parties.'* 

7.  Of  Master's  Report. — The  court  may  in  furtherance  of  justice 
send  back  a  master's  report  for  the  correction  of  an  inadvertent 
omission  therein,*  or  an  error  of  expression,  so  as  to  present  the 
actual  result  at  which  he  has  arrived.® 

8.  Of  Process. — Where  a  subpoena  ad  respondendu7n  is  dated  be- 
fore, but  is  not  in  fact  issued  until  after  the  filing  of  the  bill,  the 
mistake    may  be   corrected    by   amendment.''     And   where   the 


amended  after  the  hearing  where  it 
may  be  done  without  interfering  with 
the  evidence.  Flora  v.  Rogers,  4  Hayw. 
(Tenn.)  202.  See  also  Rogers  v.  Rog- 
ers, 15  B.  Mon.  (Ky.)364. 

Pleading  Tender. — In  Kiefer  v.  Rog- 
ers, 19  Minn.  14,  the  court  refused  to 
allow  the  defendant  to  amend  his  an- 
swer at  the  trial  and  plead  a  tender  in 
bar  of  the  action. 

Substituting  New  Answer.  —  Where 
the  defendant  has  filed  an  answer  to 
the  bill,  which  has  been  replied  to, 
and  the  cause  comes  on  for  hearing, 
the  defendant  will  not  be  permitted  to 
withdraw  his  answer  for  the  purpose 
of  substituting  another,  on  the  ground 
that  he  had  forgotten  to  present  a  ma- 
terial matter  of  the  defense  in  his  first 
answer;  but  he  may  be  permitted  to 
amend  his  answer,  setting  up  such 
new  matter,  though  in  no  wise  to  delay 
the  hearing  of  the  case.  Tracewell  v. 
Boggs,  14  W.  Va.  524. 

1.  Dunn  V.  Dunn,  i  J.  J.  Marsh. 
(Ky.)  5S5,  holding,  however,  that  if 
the  merits  are  not  affected,  it  is  error 
without  prejudice. 

2.  Calloway  v.  Dobson,  i  Brock  (U. 
S.)  119;  Williams  v.  Savage  Mfg.  Co., 
3  Md.  Ch.  418;  Cocky  v.  Evans,  9 
Yerg.  (Tenn.)  287;  Campion  v.  Kille, 
14  N.  J.  Eq.  229. 

Such  amendment  was  allowed  in 
Welch  V.  Arnett,  (N.  J.,  1890),  20  Atl. 
Rep.  48. 

3.  Burnham  v.  Huffman,  Walk. 
(Miss.)  381. 

In  Calloway  z/.  Dobson,  i  Brock.  (U. 


S.)  119,  after  hearing  and  interlocutory 
decree,  the  court  refused  to  allow  an 
amendment  of  the  answer,  introducing 
new  and  important  matter  which  ought 
to  have  been  known  and  originally  in- 
serted. See  also  India  Rubber  Comb 
Co.  V.  Phelps.  8  Blatchf.  (U.  S.)  85; 
Walden  v.  Bodley,  14  Pet.  (U.  S.)  156; 
Ruggles  V.  Eddy,  11  Blatchf.  (U.  S.) 
524. 

Eemand  with  Directions  to  Amend. — 
Where  an  answer  to  a  divorce  bill  is 
not  verified  as  required  by  statute,  the 
appellate  court,  upon  directing  a  de- 
cree to  be  entered  for  the  defendant, 
may  direct  that  leave  be  granted  to 
amend.  Harrison  v.  Harrison,  94 
Mich.  559. 

4.  Story  Eq.  PI.  (loth  ed.)  §  902. 

5.  Bryant  v.  Hendee,  40  Mich.  543, 
where  the  omission  could  be  supplied 
by  the  exhibits  attached  to  the  report. 
Kanawha  Valley  Bank  v.  Wilson,  25 
W.  Va.  256. 

6.  Beach  Mod.  Eq.  Pr.  §  698;  Hey- 
wood  V.  Miner,  102  Mass.  466. 

If  a  decree  has  been  founded  on  the 
report,  the  decree  must  first  be  vacated 
before  the  report  can  be  amended. 
Utica  Ins.  Co.  v.  Lynch,  2  Barb.  Ch. 
(N.  Y.)  573- 

7.  Dinsmore  v.  Westcott,  25  N.  J. 
Eq.  302,  where  it  was  also  held  that  a 
defect  in  the  affidavit  of  mailing  a  copy 
of  the  notice  to  an  absent  defendant, 
in  not  showing  that  the  place  to  which 
it  was  directed  was  the  defendant's 
post-office  address,  may  be  remedied 
by  amendment. 


501 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


subpoena  was  inadvertently  made  returnable  on  Sunday,  it  was 
amended  so  as  to  make  it  returnable  on  the  Monday  following.* 

9.  Leave  to  Amend — <j.  When  Necessary. — After  any  pleading 
or  other  matter  has  been  filed,  no  alteration  can  be  made  in  it 
without  the  sanction  of  a  previous  order.® 

Before  replication,  an  order  for  amending  the  bill  is  usually  ob- 
tained as  of  course,*  but  an  amendment  of  the  bill  at  a  subse- 
quent stage,"*  or  an  amendment  of  the  answer,''*  can  be  made  only 
by  special  leave  of  the  court  upon  application  therefor,® 


1.  McEvoy  V.  School  Trustees,  38 
N.  J.  Eq.  420. 

2.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
519;  Luce  V.  Graham,  4  Johns.  Ch. 
(N.  Y.)  170.  See  also  Baldwin  v. 
Love,  2  J.  J.  Marsh.  (Ky.)  489;  Young 
V.  Bennett,  7  Bush  (Ky.)  474;  Baker 
V.  Baldwin,  i  R.  L  489;  Roberts  v. 
Stigleman,  78  111.  120;  Thebaut  v. 
Canova,  11  Fla.  143.  See  also  Cam- 
den, etc.,  R.  Co.  V.  Stewart,  19  N.  J. 
Eq.  69. 

Objection  on  AppeaL — An  objection  to 
an  amended  bill,  that  it  was  not  filed 
with  leave  of  the  court,  as  required  by 
a  rule,  cannot  be  made  for  the  first 
time  in  the  appellate  court.  Clements 
V.  Moore,  6  Wall.  (U.  S.)  299. 

Waiver  of  Objection. — And  the  ab- 
sence of  an  order  allowing  an  amend- 
ment will  not  cause  a  reversal  where 
the  case  was  tried  without  objection 
on  that  ground.  Bondurant  v.  Sibley, 
37  Ala.  565;  Swatts  v.  Spence,  68  Ga. 
496.  See  also  Farmers'  L.  &  T.  Co.  v. 
Reid,  3  Edw.  Ch.  (N.  Y.)  414. 

Bescission  of  Order. — It  is  not  error 
to  allow  the  plaintiff  to  rescind  an 
order  for  the  amendment  of  his  bill 
granted  upon  his  application  and  be- 
fore an  amendment  is  actually  made. 
Brooks  V.  Colby,  25  Ga.  634. 

3.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.) 
535;  United  States  Equity  Rules  28, 
29;  Buckley  v.  Corse,  i  N.  J.  Eq.  504. 
See  also  Holland  v.  Trotter,  22  Gratt. 
(Va.)  136. 

4.  Baker  v.  Baldwin,  i  R.  I.  489; 
Hammond  v.  Place,  Harr.  (Mich.)  438; 
Walsh  V.  Smyth,  3  Bland  (Md.)  9; 
Georgia  R..  etc.,  Co.  v.  Milnor,  8  Ga. 
313;  Molyneaux  v.  Collier,  13  Ga.  406; 
Terry  v.  McLure,  103  U.  S.  442  ;  Bald- 
win V.  Love,  2  J.  J.  Marsh.  (Ky.)  489. 

Effect  of  Want  of  Leave. — A  motion 
for  an  injunction  based  upon  an 
amendment  made  without  leave  will 
be  dismissed.  Baker  v.  Baldwin,  i 
R.  I.  489. 

5.  Thomas    v.    Frederick    County 


School  Visitors,  7  Gill  &  J.  (Md.)  369; 
Warren  v,  Twilley,  10  Md.  39;  Huff- 
man V.  Hummer,  17  N.  J.  Eq.  269. 
See  also  Graves  v.  Niles,  Harr.  (Mich.) 
332. 

When  Actual  Filing  Unnecessary. — 
Upon  a  petition  that  an  amended  an- 
swer attached  be  allowed,  an  order  of 
the  chancellor  in  vacation,  directing 
that  the  amendment  be  filed  as  of  the 
date  of  the  order,  is  equivalent  to  an 
allowance  of  the  amendment,  and 
may  be  considered  as  part  of  the  plead- 
ings before  it  is  actually  filed  with  the 
register.  Blanks  v.  Walker,  54  Ala. 
117. 

United  States  Equity  Rule  60  provides 
that  "after  an  answer  is  put  in  it  may 
be  amended,  as  of  course,  in  any  mat- 
ter of  form,  or  by  filling  up  a  blank, 
or  correcting  a  date,  or  reference  to  a 
document,  or  other  small  matter,  and 
be  resworn  at  any  time  before  a  repli- 
cation is  put  in  or  the  cause  set  down 
for  hearing  upon  bill  and  answer.  But 
after  replication  or  such  setting  down 
for  hearing  it  shall  not  be  amended  in 
any  material  matters,  as  by  adding  new 
parties,  facts,  or  defenses,  or  qualify- 
ing or  altering  the  original  statements, 
except  by  special  leave  of  the  court,  or 
a  judge  thereof,  upon  motion  and 
cause  shown  after  due  notice  to  the 
adverse  party,  supported,  if  required, 
by  affidavit;  and  in  every  case  where 
leave  is  so  granted,  the  court  or  the 
judge  granting  the  same  may,  in  his 
discretion,  require  that  the  same  be 
separately  engrossed  and  added  as  a 
distinct  amendment  to  the  original 
answer,  so  as  to  be  distinguishable 
therefrom." 

6.  Order  ez  Mero  Motn. — No  error  can 
be  predicated  of  the  neglect  of  the 
court  to  order  an  amendment  when  no 
application  was  made  therefor.  State 
Bank  v.  Ellis,  30  Ala.  478;  Beatty  v. 
Brown,  85  Ala.  209;  Hollis  v.  Border, 
10  Tex.  360. 

Implied  Leave.— The  refusal  of  the 


502 


Of  Pleadings  and 


AMENDMENTS. 


Froceed'.ngs  in  Equity. 


b.  Application. — An  application  for  leave  to  amend  should  be 
made  in  writing,  setting  forth  the  proposed  amendment,*  and  sup- 
ported by  af^davit  of  its  materiality  and  the  reasons  why  it  was 
not  inserted  in  the  original  pleading.*  The  affidavit  required  is 
that  of  the  party  himself,  which  cannot  be  dispensed  with  except 
under  special  circumstances,*  although  it  may,  if  deemed  neces- 
sary, be  supplemented  by  that  of  his  solicitor.*  Where  the  former 
pleading  was  verified,  oath  must  be  made  to  the  truth  of  the  pro- 
posed amendment.* 


court  to  strike  out  an  amendment  to  a 
bill  because  it  was  filed  without  leave 
is  tantamount  to  granting  leave.  Ward 
V.  Whitfield,  64  Miss.  754. 

Motion  to  Dismiss. — Where  an  amend- 
ment to  a  bill  was  filed  and  service 
acknowledged,  with  the  express  reser- 
vation of  the  right  to  demur  thereto, 
but  no  order  appeared  allowing  such 
amendment,  it  was  not  too  late  to 
move  to  dismiss  at  the  hearing  of  the 
case.     Hart  v.  Henderson,  66  Ga.  568. 

1.  Baker  v.  Baldwin,  i  R.  1  489; 
Freeman  v.  Michigan  State  Bank, 
Harr.  (Mich.)  311;  Hammond  z/.  Place, 
Harr.  (Mich.)  438;  U.  S.  v.  Atherton, 
T02  U.  S.  375;  Mercantile  Nat.  Bank 
V.  Carpenter,  loi  U.  S.  567;  Graham 
V.  Skinner,  4  Jones  Eq.  (N.  Car.)  94; 
Campbell  v.  Powers,  139  111.  128. 

Counter-affidavits. — Affidavits  deny- 
ing the  truth  of  matter  proposed  to  be 
inserted  in  a  bill  by  way  of  amend- 
ment are  no  sufficient  objection  to  the 
application  to  amend.  Coster  v.  Gris- 
wold,  4  Edw.  Ch.  (N.  Y.)  364; 

Objection  Keserved. — Where  the  de- 
fendant objects  to  an  application  for 
leave  to  file  an  amended  bill,  and 
states  that  he  will  present  his  objection 
on  motion  to  strike  it  out,  the  motion 
to  strike  out  may  be  considered  as  if 
it  were  an  application  to  file  the 
amendment  with  objections  thereto. 
Metropolitan  Nat.  Bank  v.  St.  Louis 
Dispatch  Co.,  38  Fed.  Rep.  57. 

Service  of  Copy. — The  English  prac- 
tice of  furnishing  an  office  copy  of  a 
proposed  amendment  has  not  been 
adopted  in  Pennsylvania.  Rose  v. 
Rose,  I  Phila.  (Pa.)  365. 

Motion  by  Defendant  to  Amend  Bill. — 
The  plaintiff  cannot  on  motion  of  the 
defendant  be  compelled  to  amend  his 
bill  so  as  to  expose  supposed  defects 
in  his  case.  Phelps  v.  Elliott,  23 
Blatchf.  (U.  S.)  470,  26  Fed.  Rep.  881. 

2.  Cook  V.  Bee,  2  Tenn.  Ch.  344; 
Bowen  v.  Cross,  4  Johns.  Ch.  (N.  Y.) 


375;  Graham  v.  Skinner,  4  Jones  Eq. 
(N.  Car.)  94;  McKim  v.  Thompson,  i 
Bland  (Md.)  150;  Thomas  v.  Doub,  i 
Md.  252;  Dougherty  v.  Murphy,  10 
Phila.  (Pa.)  509;  Molyneaux  v.  Coll- 
ier, 13  Ga.  406;  Jones  v.  Kennicott, 
83  111.  484;  Robinson  v.  Woodson,  33 
Ark.  307;  Reynolds  v.  West,  32  Ark. 
244;  Taylor  v.  Dodd,  5  Ind.  246;  Huff- 
man V.  Hummer,  17  N.  J.  Eq.  270; 
Bell  V.  Hall,  5  N,  J.  Eq.  49.  See  also 
Martin  v.  Atkinson,  5  Ga.  390. 

When  Affidavit  Unnecessary. — There 
is  no  necessity  of  an  affidavit  for  the 
allowance  of  an  amendment  to  a  bill 
after  the  hearing  when  the  court  is 
satisfied  that  the  evidence  before  it 
will  make  a  case  for  relief  under  a  bill 
differently  framed;  and  when  such 
amendment  is  allowed  without  affi- 
davit it  will  be  presumed  that  the 
court  was  satisfied.  Booth  &. Wiley,  los 
III.  84;  Lewis  z/.  Lamphere,  79  111.  187. 

Amendment  by  Executors. — Executors 
may  be  allowed  to  amend  a  bill  filed 
by  their  testator,  although  the  amend- 
ment embraces  statements  which  may 
never  have  been  made  by  him,  and 
although  they  offer  no  excuse  for  not 
having  incorporated  it  in  the  original 
bill.  Coster  v.  Griswold,  4  Edw.  Ch. 
(N.  Y.)  364. 

Application  to  Amend  Pleas. — Where 
application  is  made  to  amend  a  plea 
the  court  always  requires  to  be  told 
precisely  what  the  amendment  is  to  be, 
I  Daniell  Ch.  Pr.  (6th  Am.  ed.)  704; 
Beach  Mod.  Eq.  Pr.  §  320;  Freeman  v. 
Michigan  State  Bank,  Harr.  (Mich.) 
311;  and  how  the  slip  happened;  and 
this  must  in  general  be  presented  by 
affidavit,  i  Daniell  Ch.  Pr.  (6th  Am. 
ed.)  704. 

3.  Cook  V.  Bee,  2  Tenn.  Ch.  344; 
Verplanck  v.  Mercantile  Ins.  Co.,  i 
Edw.  Ch.  (N.  Y.)56. 

4.  Cook  V.  Bee,  2  Tenn.  Ch.  343; 
Taylor  v.  Dodd,  5  Ind.  246, 

5.  I   Foster  Fed.  Pr.  (2d  ed.)  §  168, 


503 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


10.  How  Amendments  are  Made — a.  Of  Bills — Should  be  Designated. 
— Whatever  may  be  the  nature  of  the  amendment,  it  should  be  so 
perspicuously  and  distinctly  introduced  and  placed  upon  the 
record  as  to  afford  the  means  of  readily  distinguishing  the  origi- 
nal bill  from  each  one  of  the  amendments  to  it.* 

By  Interlineations. — Short  and  apparently  unimportant  amend- 
ments, such  as  the  mere  correction  of  a  verbal  error,  the  altera- 
tion, striking  out,  or  introduction  of  a  name,  or  the  making  of  a 
single  allegation  not  materially  changing  the  general  structure  of 
the  bill,  may  be  made  by  interlineations  or  by  insertions  in  the 
margin.* 

By  Amended  Bill. — But  if  there  be  much  new  matter  to  be  intro- 
duced, it  should  be  done  by  a  separate  amended  bill.^ 


citing  Rodgers  v.  Rodgers,  i  Paige 
(N.  Y.)  424;  to  which  may  be  added 
Rogers  v.  De  Forest,  3  Edw.  Ch.  (N. 
Y.)  171;  Jones  v.  Kennicott,  83  111. 
484;  Huffman  v  Hummer,  17  N.  J.  Eq. 
270,  where  it  was  held  that  the  ad- 
mission by  the  complainant's  solicitor 
of  the  truth  of  the  proposed  answer 
could  not  dispense  with  this  require- 
ment, unless,  perhaps,  where  the  ad- 
mission was  unequivocal  and  in  writ- 
ing. 

Waiver  of  Objection. — When  the  pro- 
posed amendment  to  an  answer  was 
not  verified,  and  was  objected  to  on 
that  ground,  the  appellate  court  will 
presume  that  had  it  been  allowed  it 
would  have  been  verified  at  once. 
Grace  v.  Newbre,  31  Wis.  19. 

1.  Walsh  V.  Smyth,  3  Bland  fMd.)  9, 
where  it  was  also  said  that  it  should 
be  so  made  as  to  show  the  day  on 
which  each  of  the  amendments  was 
put  upon  the  record.  Luce  v.  Graham, 
4  Johns.  Ch.  (N.  Y.)  170. 

Should  be  Actually  Made.—"  The  bill 
when  amended  should  either  be  re- 
engrossed  or  the  amendments  actually 
made  by  canceling  and  interlining  or 
by  substitution  of  sheets  in  the  place 
of  the  canceled  parts,  containing  the 
amendments  to  be  inserted."  Wilson 
V.  King,  23  N.  J.  Eq.  150. 

Stipulation  for  Amendment. — Neither 
an  agreement  between  solicitors  for 
an  amendment  nor  an  order  giving 
leave  to  amend  will  avail  on  final 
hearing,  if  no  amendment  is  actually 
made.  Wilson  v.  King,  23  N.  J.  Eq. 
150;  Jones  V.  Davenport,  45  N.  J.  Eq. 
78;  Hudnit  V.  Tomson,  26  N.  J.  Eq. 
239.  Compare  Arnaud  v.  Grigg,  29 
N.  J.  Eq.  I.     ' 

Where  a  foreclosure  bill  contained 


no  allegation  as  to  taxes  paid  by  the 
mortgagee,  but  it  was  stipulated  of 
record  before  the  hearing  that  the 
complainant  had  filed  vouchers  show- 
ing that  he  had  paid  the  taxes  on  the 
premises  for  certain  years,  and  the 
complainant  asked  the  court  in  the 
stipulation  to  allow  the  amount  in  the 
decree  when  made,  it  was  held  that 
although  it  was  decidedly  irregular  it 
amounted  to  an  amendment  so  as  to 
support  a  decree  for  the  taxes  upon 
the  vouchers  filed.  Wright  v.  Lang- 
ley,  36  111.  381. 

Amendments  How  Designated. — "  By 
annexing  the  engrossed  amendments 
to  the  original  bill,  and  by  referring  in 
that  part  of  the  bill  where  the  amend- 
ments should  have  been  inserted  to 
the  annexed  amendments,  and  by  re- 
ferring at  each  amendment  to  the 
proper  place  for  its  insertion  in  the 
original  bill,  the  record  will  be  kept 
from  being  defaced,  and  all  the  requi- 
site certainty  and  convenience  will  be 
obtained."  Luce  v.  Graham,  4  Johns. 
Ch.  (N.  Y.)i73. 

2.  I  Beach  Mod.  Eq.  Pr.  §  153;  Luce 
V.  Graham,  4  Johns.  Ch.  (N.  Y.)  170; 
Ayres  v.  Valentine,  2  Edw.  Ch.  (N.Y.) 
451;  Walsh  V.  Smyth,  3  Bland  (Md.) 
9;  Alabama  Warehouse  Co.  v.  Jones, 
62  Ala.  550;  Brooks  v.  Colby,  25  Ga. 
635,  where  it  was  said  that  under  the 
practice  in  Georgia  the  bill  is  seldom 
engrossed  anew.  See  also  Melton  v. 
Withers,  2  S.  Car.  561. 

Interlineation  with  Different  Ink. — An 
amendment  by  interlineation  with  dif- 
ferent ink  needs  no  footnote  to  explain 
it.     Werborn  v.  Austin,  82  Ala.  498. 

3.  Walsh  V.  Smyth,  3  Bland  (Md.)  9; 
Luce  V.  Graham,  4  Johns.  Ch.  (N.  Y.) 
170;  Peirce  v.  West,  3  Wash.  (U.  S.) 


504 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


Form  of  Amended  Bill. — The  rule  is  that  the  amended  bill  should 
state  no  more  of  the  original  bill  than  may  be  necessary  to  intro- 
duce and  make  intelligible  the  new  matter,  which  should  alone 
constitute  the  chief  subject  of  the  bill.* 

Verification. — Where  the  original  bill  is  sworn  to,  an  amendment 
which  contains  substantial  matter,  and  is  not  a  mere  formal 
amendment,  must  be  verified  to  the  same  extent  as  the  original 
bill.* 

Signature  of  Counsel. — The  usual  practice  is  for  counsel  to  re-sign 
amendments  where  they  are  substantial.' 

b.  Of  Answers. — It  was  formerly  the  practice  of  the  court,  if 
it  saw  sufficient  ground  for  so  doing,  to  permit  the  defendant  to 
amend  his  answer;*  but  this  practice  was  superseded  in  part  by 
an  order  of  Lord  Thurlow  which  forbade  taking  the  answer  off 
the  file,  yet  permitted  a  supplemental  answer  to  be  filed,  by  that 
course  leaving  to  the  parties  the  effect  of  what  had  been  sworn 
to  with  the  explanation  given  by  the  supplemental  answer.* 
This  practice  has  been  since  adopted  in  all  cases  in  which  it  is 
desired  to  correct  a  mistake  in  an  answer  as  to  a  matter  of  fact.® 


355;    Fearey  v.   Hayes,   44   N.   J.   Eq. 
425;  Setzer  v.  Beale,  19  W.  Va.  274. 

Injunction  Bill. — In  Layton  v.  Evans, 
2  N.  J.  Eq.  387,  it  was  held  in  con- 
formity with  a  rule  of  court  that  no 
alteration  can  be  made  in  an  injunc- 
tion bill  after  injunction  issued  and 
served,  but  that  an  amended  bill  must 
be  engrossed  and  annexed  to  the 
original.  See  also  Lanning  v.  Heath, 
25  N.  J.  Eq.  425. 

1.  Peirce  v.  West,  3  Wash.  (U.  S.) 
355;  Walsh  V.  Smyth,  3  Bland  (Md.) 
9;  Luce  V.  Graham,  4  Johns.  Ch. 
(N.  Y.)  170;  Willis  V.  Evans.  2  B.  &  B. 
225. 

In  amending,  it  is  not  correct  to 
state  in  the  amended  bill,  "and  your 
orator  by  way  of  amendment,  etc., 
showeth."  Grim  v.  Wheeler,  3  Edw. 
Ch.  (N.  Y.)448. 

2.  Walker  v.  Ayres,  i  Iowa  449; 
Gunn  V.  Blair,  i  Barb.  (N.  Y.)  539; 
Rodgers  v.  Rodgers,  i  Paige  (N.  Y.) 
424;  Whitmarsh  v.  Campbell,  2  Paige 
(N.  Y.)  67;  Renwick  v.  Wilson,  6 
Johns.  Ch.  (N.  Y.)  81;  Parker  v. 
Grant,  I  Johns.  Ch.  (N.  Y.)  434:  Ver- 
planck  V.  Mercantile  Ins.  Co..  i  Edw. 
Ch.  (N.  Y.)  46;  Hill  V.  Hill,  53  Vt.  578; 
Semmes  v.  Boykin,  27  Ga.  47.  But 
see  Mount  Olivet  Cemetery  Co.  v. 
Budeke,  2  Tenn.  Ch.  480. 

Objection  on  Appeal. — In  Briggs  v. 
Briggs,  20  Mich.  34,  though  an  amend- 
ment to  a  divorce  bill  was  not  sworn 


to,  as  required  by  the  practice  of  the 
court,  the  objection,  being  first  made 
on  appeal,  was  disregarded. 

When  Verification  Unnecessary.  —  A 
sworn  bill  may  be  amended  in  its 
prayer  and  by  adding  a  new  and 
proper  party  plaintiff  without  swear- 
ing to  the  amendment.  Livingston  v. 
Marshall,  82  Ga.  281,  holding,  also, 
that  immaterial  error  in  allowing 
trivial  amendments  without  requiring 
them  to  be  sworn  to  will  not  work  a 
reversal. 

So,  where  a  bill  for  an  account  was 
sworn  to  for  the  purpose  of  obtaining 
an  injunction,  it  was  held  that  an 
amendment  relating  solely  to  the  basis 
on  which  the  account  should  be  stated 
might  be  allowed  without  verification. 
Gregg  V.  Brower,  67  111.  525. 

3.  I  Daniell  Ch.  Pr.  (6th  Am.  ed.)  313. 

4.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.)  339. 

5.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.)  339. 

6.  I  Daniell  Ch.  Pr.  (ist  Am.  ed.)  339; 
Beach  Mod.  Eq.  Pr.  §  402;  Huffman 
V.  Hummer,  17  N.  J.  Eq.  271;  Van- 
dervere  v.  Reading,  9  N.  J.  Eq.  446; 
Graham  v.  Skinner,  4  Jones  (N.  Car.) 
94;  Fulton  County  v.  Mississippi, 
etc.,  R.  Co.,  21  111.  338;  Smith  v. 
Babcock,  3  Sumn.  (U.  S.)  583.  Compare 
Arnaud  v.  Grigg,  29  N.  J.  Eq.  i. 

In  Georgia. — Lord  Thurlow's  order, 
having  been  made  since  the  revolu- 
tion, was  held  not  to  be  binding  in 
Georgia.     Oliver   v.    Persons,    29   Ga. 


505 


Of  Pleadings  and 


AMENDMENTS, 


Proceedings  in  Equity. 


But  the  old  course  of  taking  the  answer  off  the  file  and  amending 
it  is  still  pursued  in  cases  of  error  or  mistake  in  matters  of  form;* 
the  court  always  making  it  a  part  of  the  order,  however,  that 
immediately  upon  the  correction  being  made  the  answer  shall  be 
resworn.* 

11.  Terms. — The  court  has  a  discretionary  power  to  prescribe 
the  terms  on  which  amendments  of  pleadings  shall  be  allowed,* 
and  the  exercise  of  this  discretion  will  not  be  reviewed  upon 
appeal."*     If,  at  the  time  the  order  for  amendment  is  made,  none 


568.     See  Martin  v.   Atkinson,   5  Ga. 

390. 

1.  I  DaniellCh.  Pr.  (istAm.  ed.)342; 
Vandervere  v.  Reading,  9  N.  J.  Eq. 
446;  Bell  V.  Hall,  i  N.  J.  Eq.  49. 

Striking  out  Name. — Where  an  an- 
swer purported  to  be  the  joint  and 
several  answer  of  three  defendants, 
but  was  signed  and  sworn  to  by  only 
two  of  them,  the  latter  were  permitted 
to  take  it  from  the  files  and  erase  the 
name  of  the  other  defendant  and  file 
it  as  their  own.  Bailey  Washing 
Mach.  Co.  V.  Young,  12  Blatchf.  (U.S.) 
199.   See  United  States  Equity  Rule  60. 

Unsworn  Answer. — The  defendant  was 
permitted  to  amend  an  unsworn  an- 
swer on  file  by  retracting  an  admission 
made  by  mistake.  Taylor  v.  Dodd, 
5  Ind.  246. 

But  the  defendant  cannot  have  the 
benefit  of  an  oath  to  an  amended  an- 
swer when  the  original  was  not  sworn 
to,  an  oath  not  having  been  required 
to  it.  De  France  v.  Howard,  4  Iowa, 
524.  But  see  White  v.  Hampton,  9 
Iowa,  181. 

Unnecessary  Repetition. — An  answer 
to  an  amended  bill  is  impertinent  if  it 
repeats  what  was  said  in  the  answer 
to  the  original  bill.  Gier  v.  Gregg,  4 
McLean  (U.  S.)  202. 

Amendments  by  Affidavits. — Amend- 
ments in  the  form  of  affidavits,  not 
referring  to  the  answer  on  file,  are 
irregular,  and  a  motion  to  dissolve  an 
injunction  will  not  be  heard  upon 
them.  Mason  v.  Detroit  City  Bank, 
Harr.  (Mich.)  222. 

2.  I  DaniellCh.  Pr.  (istAm.  ed.)343; 
Vandervere  v.  Reading,  9  N.  J.  Eq. 
446. 

3.  Rives  V.  Walthall,  38  Ala.  329; 
Mahone  v.  Williams,  39  Ala.  202; 
Chamblessz'.  Taber,  26  Ga.  167;  Clark 
V.  Keene's  First  Congregational  Soc, 
46  N.  H.  272;  Sheets  v.  Selden,  7 
Wall.  (U.  S.)4i6.  See  also  Hancock 
V.  Carlton,  6  Gray  (Mass.)  39. 


In  Furtherance  of  Justice. — The  terms 
must  be  such  as  not  to  amount  to  a 
negation  of  the  right.  Burney  v.  Ball, 
24  Ga.  505;  and  not  to  injure  others 
who  are  not  in  default.  McDougald 
V,  Dougherty,  11  Ga.  570. 

After  Master's  Report. — Upon  permit- 
ting an  amendment  of  the  bill  after 
the  report  of  a  master,  the  allowance 
of  costs  is  a  mere  matter  of  discre- 
tion.    Camp  V.  Waring,  25  Conn.  520, 

In  Drew  v.  Beard,  107  Mass.  64,  the 
plaintiff,  upon  amending  his  bill  at 
that  stage,  was  ordered  to  pay  the 
defendant's  costs,  and,  if  he  prevailed, 
to  take  no  costs  up  to  the  time  of  the 
amendment.  See  also  Nellis  v.  Pen- 
nock  Mfg.  Co.,  38  Fed.  Rep.  379. 

Special  Terms. — *'  Let  the  courts  re- 
fuse to  allow  amendments  except  on 
such  terms  as  shall  prevent  delay  of 
the  trial.  Let  them  exact  of  the  ap- 
plicants for  leave  to  amend,  undertak- 
ings to  go  to  trial  at  an  early  day; 
waivers  of  all  formal  objections  of 
every  kind;  waivers  of  the  proof  of 
documents  and  of  the  production  of 
books;  waivers  of  the  proof  of  all 
matters  not  really  in  issue,  whenever 
it  can  be  done  consistently  with  a  re- 
gard to  what  is  reasonable  and  equi- 
table." Thomas  v.  Horn,  21  Ga. 
177- 

That  the  court  may  impose  special 
terms  other  than  the  payment  of  costs, 
see  Clark  v.  Keene's  First  Congrega- 
tional Soc,  46  N.  H.  272;  Hancock  v, 
Carlton,  6  Gray  (Mass.)  39. 

Waiver  by  Acceptance. — The  acceot- 
ance  of  the  terms  prescribed  as  a 
condition  of  amending  the  bill  is  a 
waiver  of  objection  to  the  order.  Ma- 
hone V.  Williams,  39  Ala.  202. 

4.  McLane  v.  Riddle,  19  Ala.  180, 
where  an  amendment  of  the  bill  was 
allowed  without  terms.  Sheets  v.  Sel- 
den, 7  Wall.  (U.  S.)  416;  Mahone  v. 
Williams,  39  Ala.  202;  Thomas  v. 
Horn,  21  Ga.  177. 


506 


Of  Pleadings  and 


AMENDMENTS. 


Proceedings  in  Equity. 


of  the  defendants  have  appeared,  the  plaintiff  may  amend  with- 
out payment  of  any  costs.* 

Amendment  of  the  bill  after  answer,*  or  at  the  hearing,  is 
usually  made  upon  payment  of  costs ;  ^  but  where  the  facts  were 
known  to  the  defendant,  yet  were  not  disclosed  in  his  answer,  and 
were  not  discovered  by  the  plaintiff  until  the  hearing,  he  was  per- 
mitted to  amend  without  costs.* 


1.  I  Daniell  Ch.  Pr.  (6th  Am,  ed.) 
411. 

In  Smith  Ch.  Pr.  250,  it  is  said:  "  A 
bill  may  be  amended  without  costs,  if 
the  order  to  amend  is  obtained  before 
the  defendants  have  appeared;  or  if 
some  of  the  defendants  have  appeared 
and  others  have  not,  it  may  be  amend- 
ed as  to  those  who  have  not  appeared, 
and  as  to  those  who  have  appeared, 
on  the  terms  of  amending  their  office 
copies." 

2.  Horn  v.  Clements  (N.  J..  1887), 
8  Atl.  Rep.  530;  Fearey  v.  Hayes,  44 
N.  J.  Eq.  425  ;  Jennings  v.  Springs, 
Bailey  Eq.  (S.  Car.)  181;  Rogers  v. 
Moor,  I  Root  (Conn.)  472;  Beekman  v. 
Waters,  3  Johns.  Ch.  (N.  Y.)  410. 

Substituting  New  Plaintiff. — In  Jen- 
nings V.  Springs,  Bailey  Eq.  (S.  Car.) 
181,  where  an  amendment  was  made 
by  substituting  a  new  plaintiff,  it  was 
allowed  upon  payment  of  all  the  costs 
up  to  the  time  of  the  amendment,  as  well 
as  the  costs  of  the  amendment  itself. 

Making  a  Different  Case. — "  Where  a 
different  case  is  made  by  the  amend- 
ment, the  plaintiff  should  be  taxed  with 
the  costs,  and  the  defendant  made  to 
pay  no  more  than  he  would  have  been 
put  to  had  the  bill  been  brought  right 
originally."  McDougald  v.  Williford, 
14  Ga.  665. 

Party  Suing  In  Forma  Pauperis. — If  a 
party  suing  in  forma  pauperis  amends 
his  bill  after  answer,  it  must  be  upon 
payment  of  costs  as  in  ordinary  suits; 
if  he  has  a  meritorious  claim  to  amend 
without  costs,  he  must  apply  to  the 
court  by  special  motion.  Richardson 
V.  Richardson,  5  Paige  (N.  Y.)  58. 

Before  and  After  Replication. — In  Mt. 
Olivet  Cemetery  Co.  v.  Budeke,  2 
Tenn.  Ch.  480,  it  was  said  that,  where 
an  amendment  of  the  bill  is  allowed 
after  answer  or  other  defense  made, 
and  the  amendment  merely  serves  to 
develop  the  case  made  by  the  bill,  the 
only  costs  which  ought  to  be  charged 
upon  the  plaintiff  are  the  costs  of  the 
amendment,  if  the  court  is  satisfied 
that  the  amendment  is  not  resorted  to 


for  delay;  but  that  upon  amendment  of 
the  bill  after  replication  or  setting  the 
plea  or  demurrer  for  hearing,  the  com- 
plainant should  be  charged  with  the 
costs  attending  the  filing  of  the  plea, 
and  setting  it  for  hearing,  and  that 
the  court  might  in  a  proper  case  order 
the  payment  of  all  costs.  See  French 
V.  Shotwell,  4  Johns.  Ch.  (N.  Y.)  505. 

Abandoning  Amendment. — Where  the 
complainant  obtains  an  order  for  leave 
to  amend  his  bill  upon  payment  of  the 
costs  of  the  defendant's  answer  and 
the  costs  of  opposing  the  application, 
he  is  not  compelled  to  pay  the  costs  of 
the  answer  if  he  elects  to  proceed 
without  making  the  proposed  amend- 
ment; but  in  that  case  he  must  pay  the 
costs  of  opposing  the  application  to 
amend.  Van  Ness  v.  Cantine,  4  Paige 
(N.  Y.)  55. 

After  Demurrer.  —  The  terms  upon 
which  the  plaintiff  shall  be  allowed  to 
amend  after  demurrer  sustained  are 
discretionary.  Sheets  v.  Selden,  7 
Wall.  (U.  S.)  416. 

In  Noyes  v.  Sawyer,  3  Vt.  160,  upon 
the  allowance  of  a  demurrer  for  want 
of  proper  parties,  the  plaintiff  was  per- 
mitted to  amend  on  payment  of  the 
defendant's  costs  of  the  term. 

Where  a  demurrer  was  filed,  and  the 
court,  without  passing  upon  the  de- 
murrer, permitted  the  plaintiff  to 
amend,  the  defendant  was  allowed  his 
reasonable  costs.  Edison  Electric 
Light  Co.  V.  Mather  Electric  Co.,  53 
Fed.  Rep.  244.  See  Cunningham  v. 
Pell,  6  Paige  (N.  Y.)  655. 

Upon  overruling  a  demurrer,  there 
being  faults  in  pleading  on  both  sides, 
each  party  was  allowed  to  amend  with- 
out paying  costs  to  the  other.  Atwill 
V.  Ferrett,  2  Blatchf.  (U.  S.)  49. 

In  Young  v.  Bilderback,  3  N.  J.  Eq. 
206,  a  demurrer  was  allowed  with  leave 
to  amend  on  payment  of  costs. 

3.  Battle  v.  Mutual  L.  Ins.  Co.,  10 
Blatchf.  (U.  S.)  417;  Neale  v.  Neale, 
9  Wall.  (U.  S.)  i;  Booth  v.  Wiley,  102 
111.  84. 

4.  Wilson  V.  Brown,   13   N.   J.   Eq. 


507 


Of  Pleadings,  etc.,  at  AMENDAIEJS/  TS.  Common  Law,  under  Codes,  etc. 


When  the  cause  is  remanded  from  an  appellate  court  with  leave 
to  amend  the  bill  without  prejudice  to  any  proceedings,  the  plain- 
tiff  can  be  placed  in  no  better  position  as  to  costs  than  if  the  bill 
had  been  dismissed  without  prejudice,  and  must  pay  all  costs  to 
the  time  a  decree  is  entered  on  the  mandate.* 

Amendment  of  the  answer  may  be  allowed  upon  payment  of 
taxable  costs  to  the  time  of  the  amendment.* 

III.  Of  Pleadings  and  Peoceedings  at  Common  Law  and 
UNDEE  Codes  and  Statutes — 1.  Power  to  Amend — a.  Inherent. 
— The  power  of  amendment  is  incidental  to  the  exercise  of  all 
judicial  power.'  Justices  of  the  peace  may  allow  an  amend- 
ment of  the  pleadings  in  cases  pending  before  them.'* 


280.     See  also  Harrigan  v.  Bacon,  57 
Vt.  644. 

Effect  of  Laches.  —  But  where  an 
amendment  is  based  upon  knowledge 
obtained  from  the  defendant,  the 
plaintiff  will  be  required  to  pay  the 
costs  accruing  after  the  time  when  the 
motion  to  amend  could  and  should 
have  been  made.  Hoyt  v.  Smith,  27 
Conn.  468. 

1.  Church  V.  Holcomb,  45  Mich.  29. 
See  also  Arendell  v.  Blackwell,  i  Dev. 
Eq.  (N.  Car.)  358  ;  Fenno  v.  Coulter, 
14  Ark.  38. 

2.  Arnold  v.  Chesebrough,  33  Fed. 
Rep.  571. 

3.  Tilton  V.  Cofield,  93  U.  S.  166; 
Augusta  V.  Moulton,  75  Me.  551; 
Adams  v.  Main,  3  Ind.  App.  232.  See 
also  Fitch  v.  Stevens,  2  Met.  (Mass.) 
505;  Gilchrist  v.  Kitchen,  86  N.  Car. 
20;  Pennsylvania,  etc.,  R.  Co.  v.  Bun- 
nell, 81  Pa.  St.  414;  Smith  v.  Rathbun, 
75  N.  Y.  122;  Ellison  v.  Georgia  R. 
Co. ,  87  Ga.  691 ;  Bailey  v.  Jones,  14  Ga. 
384:  Mandel  v.  Peet,  18  Ark.  247. 

"  Every  court,  whether  of  general 
or  limited  jurisdiction,  has  the  power 
to  permit  such  amendments  to  be 
made  in  the  pleadings  while  the  cause 
is  iti  fieri  as  will  enable  it  to  fulfil  the 
end  of  its  creation — the  administration 
of  justice."     Murry  v.  Harper,  3  Ala. 

745- 

Validating  Acts. — The  legislature  has 
not  the  power  to  legalize  existing 
pleadings  which  are  substantially  de- 
fective without  first  requiring  them  to 
be  amended.  People  v.  Mariposa 
County,  31  Cal.  196. 

Substitution  for  Lost  Pleading. — Where 
an  original  pleading  has  been  lost  or 
mislaid  it  is  proper  for  the  court  to 
allow  another  one  to  be  filed  as  a  sub- 
stitute. Turner  v.  Lambeth,  2  Tex. 
365,    Wilkerson    v.    Branham,   5  Ala. 


608.  See  also  ^tna  Ins.  Co.  v.  Sparks, 
62  Ga.  187  ;  Newman  v,  Dodson,  61 
Tex.  91. 

4.  Hanlin  v.  Baxter,  20  Kan.  134  ; 
Snyder  v.  Winsor,  44  Mich.  140;  Lin- 
hart  V.  Buiff,  II  Cal.  280;  Butler  v. 
King,  10  Cal.  342.  Compare  Wilson  v. 
Bayley,  42  N.  J.  L.  132.  But  not  after 
the  cause  is  submitted  and  taken  under 
advisement.  Webster  v.  Williams,  69 
Mich.  135. 

In  New  York  a  justice  of  the  peace 
has  ample  power  at  any  time  before 
the  trial  or  during  the  trial,  to  amend 
the  pleadings  if  substantial  justice  will 
be  promoted  thereby.  New  York  Code, 
t^  2944.  And  it  has  been  held  that  § 
723  of  the  Code,  authorizing  "  the 
court  "  to  allow  amendments,  applies 
to  justices  of  the  peace.  Lapham  v. 
Rice,  55  N.  Y.  472;  Ackley  v.  Tarbox, 
31  N.  Y.  564;  Lowe  V.  Rommell,  5 
Daly  (N.  Y.)  17. 

A  justice  may  allow  an  amendment 
to  conform  to  the  proof.  Schork  v. 
Moritz  (Super.  Ct.),  24  N.  Y.  St.  Rep. 
89S;  Doughty  V.  Crozier,  9  Abb.  Pr. 
(N.  Y.  C.  PI.)  411.  He  may  allow  an 
amendment  changing  the  action  from 
tort  to  contract.  Bigelow  v.  Dunn,  36 
How.  Pr.  (N.  Y.  Supreme  Ct.)  120; 
DeWitt  V.  Greener,  11  Civ.  Pro.  Rep. 
(N.  Y.  Co.  Ct.)  327.  But  he  cannot 
allow  an  amendment  at  the  trial  so  as 
to  introduce  a  new  cause  of  action. 
Dows  V.  Morrison  (C.  PI.),  20  N.  Y. 
Supp.  860. 

In  a  proper  case  it  is  the  imperative 
duty  of  the  justice  to  allow  an  amend- 
ment, and  reversible  error  to  refuse. 
Smith  V.  Mitten,  13  How.  Pr.  (N.  Y. 
Supreme  Ct.)  325;  Wood  v.  Shultis,  4 
Hun  (N.  Y.)  309;  Hilliard  v.  Austin, 
17  Barb.  (N.  Y.)  141;  Leonard  v.  Fos- 
ter, 7  Hun  (N.  Y.)  464;  Walsh  v.  Cor- 
sett,    17    Hun     (N.  Y.)   27;    Ryan   v. 


508 


Of  Pleadings,  etc  ,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

So  far  as  the  mere  power  to  amend  is  concerned,  the  statutes 
of  amendment  are  only  declaratory  of  the  common  law.*  At 
common  law  amendments  can  be  made  in  all  cases  in  furtherance 
of  justice  at  any  time  before  final  judgment  is  entered  and  the 
term  passed,*  and  there  is  no  distinction  in  this  respect  between 
penal  and  other  actions^ 

Lex  Fori  Governs. — The  practice  of  the  lex  fori  in  respect  of  amend- 
ments will  control  regardless  of  the  practice  in  the  state  where 
the  cause  of  action  arose."* 

b.  Something  to  Amend  or  Amend  by. — At  common  law 
the  general  rule  was  that  there  must  be  something  in  the  record 
to  amend  by.*     But  under  the  statutes  of  amendment  the  power 


Lewis,  3  Hun  (N.  Y.)  429;  Turck  v. 
Richmond,  13  Barb.  (N.  Y.)  533; 
Vaughn  v.  Lego  (Supreme  Ct.).  17  N. 
Y.  St.  Rep.  279.  See  further,  as  to  the 
power  and  duty  of  justices  in  respect 
of  amendments,  Jaycox  v.  Pinney,  62 
Barb.  (N.  Y.)  344;  Gilmore  v.  Barnett, 
20  Hun  (N.  Y.)  514;  Birdsall  v.  Fuller, 
II  Hun  (N.  Y.)  204;  Agreda  v.  Faul- 
berg,  3  E.  D.  Smith  (N.  Y.)  178;  Loyd 
V.  Fox,  I  E.  D.  Smith  (N.  Y.)  loi; 
Fulton  V.  Heaton,  i  Barb.  (N.  Y.)  552; 
Stern  v.  Drinker,  2  E.  D.  Smith  (N. 
Y.)  401;  White  V.  Stevenson,  4  Denio 
193;  Glasse  v.  Keulsen,  3  Abb.  Pr.  (N. 
Y.)  100;  Waldheim  v.  Sichel,  i  Hilt. 
(N.  Y.)  45;  Woolley  v.  Wilber,  4  De- 
nio (N.  Y.)  570;  Bull  V.  Colton,  32 
Barb.  (N.  Y.)  94;  Colvin  v.  Corwin,  15 
Wend.  (N.  Y.)  557;  Monteith  v.  Cash, 
I  E.  D.  Smith  (N.  Y.)  412;  Andrews 
V.  Thorp,  I  E.  D.  Smith  (N.  Y.)  615; 
Hinds  V.  Page,  6  Abb.  Pr.  N.  S.  (N.  Y. 
Co.  Ct.)58;  Price  v.  Peters,  15  Abb. 
Pr.  (N.  Y.  C.  PI.)  197;  Hall  v.  Olney, 
62  Barb.  (N.  Y.)  27. 

1.  Christal  v.  Kelly,  88  N.  Y.  285; 
Lane  v.  Beam,  19  Barb.  (N.  Y.)  52; 
Smith  V.  Rathbun,  75  N.  Y.  122;  Prindle 
V.  Aldrich,  13  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  466;  Chouteau  v.  Hewitt, 
10  Mo.  131;  Knotty.  Taylor,  96  N.  Car. 
553;  Coombs  V.  Low,  R.  M.  Charlt. 
(Ga.)  395. 

Contra. — In  Irwin  v.  Paulett,  i  Kan. 
418,  it  was  held  that  the  authority  to 
allow  amendments  is  derived  solely 
from  the  provisions  in  the  Code. 

2.  Chouteau  v.  Hewitt,  10  Mo.  131; 
Coombs  z/.  Low,  R.  M.  Charlt.  (Ga.)395. 

3.  Hart  v.  Baltimore,  etc.,  R.  Co., 
6  W.  Va.  336;  Barber  v.  McHenry,  6 
Wend.  (N.  Y.)  516;  Merriam  v.  Lang- 
don,  ID  Conn.  460;  Beates  v.  Retallick, 
23  Pa.  St.  288;  Griffith  z/.  Eshelraan,  4 


Watts  (Pa.)  55;  Megargell  v.  Hazleton 
Coal  Co..  8  W.  &  S.  (Pa.)  342;  Davis  v. 
Saunders,  7  Mass.  62;  Mitchell  v.  Tib- 
betts,  17  Pick.  (Mass.)  298;  Hamilton 
V.  Boiden,  i  Mass.  50;  Thornton  v. 
Townsend,  39  Me.  181;  Canal  St. 
Gravel  Road  Co.  v.  Paas,  95  Mich. 
372;  Jones  V.  Ross,  2  Dall.  (U.  S.)  143; 
Childress  v.  Nashville,  3  Sneed  (Tenn.) 
347;  Washington  v.  Frank,  i  Jones 
(N.  Car.)  436.  Compare  U.  S.  v.  Batch- 
elder,  9  Int.  Rev.  Rec.  98. 

Leave  to  amend  may  be  refused 
where  it  would  not  be  in  furtherance 
of  justice.  Palmer  v.  York  Bank,  i3 
Me.  166. 

Real  Actions.  —  Amendments  may 
be  allowed  in  real  actions.  Bird 
V.  Decker,  64  Me.  550;  Parker  v. 
Murch,  64  Me.  54;  Howard  v.  Hough- 
ton, 64  Me.  445;  Howe  v.  Wilds,  34 
Me.  566;  Rowell  v.  Small,  30  Me.  30; 
Holmes  v.  Holmes,  2  Pick.  (Mass.) 
23;  Means  v.  Welles,  12  Met.  (Mass.) 
356. 

In  Rand  v.  Dodge,  12  N.  H.  67,  it 
was  held  that  a  writ  of  entry  could 
not  be  amended  by  striking  out  one  of 
the  demandants. 

4.  South  Car.  R.  Co.  v.  Nix,  68  Ga. 
572. 

5.  Johnson  v.  Mayrant,  i  McCord 
(S.  Car.)  484;  Nelson  v.  Barker,  3 
McLean  (U.  S.)  379;  Lake  v.  Morse, 
II  111.  587.  See  also  Bailey  w.  Palmer, 
5  Ark.  208. 

"Nothwithstanding  this  general  rule 
Tidd  says  and  quotes  the  cases  in  sup- 
port of  his  statement  that  the  courts 
have,  in  particularinstances, permitted 
the  plaintiff  to  amend  his  declaration 
after  issue  joined  in  cases  where  there 
was  nothing  to  amend  by.  Tidd's  Pr. 
713."  Daly,  C.  J.,  in  Diamond  v.  Will- 
iamsburgh  Ins.  Co.,  4  Daly  (N.  Y.)  494. 


509 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

of  the  court  is  not  now  considered  to  be  thus  limited.'  Neverthe- 
less, there  must  be  something  to  amend,  and  a  declaration  or  com- 
plaint which  wholly  fails  to  state  any  cause  of  action  whatever 
cannot  be  amended,  at  least  in  those  states  where  an  amendment 
introducing  a  new  cause  of  action  is  not  allowed.* 

Where,  however,  the  defect  in  the  declaration  or  complaint 
consists  merely  in  a  faulty  statement  of  the  facts  constituting  the 
cause  of  action,  it  may  be  cured  by  amendment.^ 

c.  Relation  between  Federal  and  State  Practice.— 
A  federal  statute  provides  for  the  amendment  of  defects  in  plead- 
ings and  proceedings  in   civil   actions.*     And  another  provision 


1.  Gregg  V.  Gier,  4  McLean  (U.  S.) 
208. 

2.  Lilly  V.  Charlotte,  etc.,  R.  Co., 
32  S.  Car.  142;  Bleckeley  v.  Branyan, 
28  S.  Car.  449;  Kennerty  v.  Etiwan 
Phosphate  Co.,  21  S.  Car.  226;  Phin- 
ney  v.  Phinney,  17  How.  Pr.  (N.  Y. 
Supreme  Ct.)  197  (query);  State  v. 
Rottaken,  34  Ark.  144;  Mexican  Mill 
V.  Yellow  Jacket  Silver  Min.  Co.,  4 
Nev.  40;  Smith,  Petitioner,  15  Pick. 
(Mass.)  446;  Guilford  v.  Adams,  19 
Pick.  (Mass.)  376;  Bangor,  etc.,  R. 
Co.  V.  Smith,  49  Me.  9;  Simpson  v. 
Memphis,  etc.,  R.  Co.,  66  Ala.  85; 
Grasser  v.  Eckart,  i  Binny  (Pa.)  575; 
Brashears  v.  Strock,  46  Mo.  221; 
Boren  v.  Billington,  82  Tex.  137.  See 
alsoWoodruff  f.  Dickie,  5  Robt.  (N.  Y.) 
620;  Keenan  v.  Knight,  9  Allen  (Mass.) 
257;  Bachus  V.  Mickle,  45  Ala.  445. 

A  count  for  balance  of  account  or 
for  the  amount  due  is  amendable  by 
adding  a  bill  of  particulars.  Harring- 
ton V.  Tuttle,  64  Me.  474. 

The  Georgia  statute  expressly  re- 
quires "enough  to  amend  by."  The 
question  received  much  consideration 
in  Ellison  v.  Georgia  R.  Co.,  87  Ga. 
691,  where,  however,  the  amendment 
was  allowed. 

In  Selma,  etc.,  R.  Co.  v.  Lacy,  49 
Ga.  106,  and  Smith  v.  East  &  West  R. 
Co.,  84  Ga.  183,  the  amendment  was 
denied. 

Objection  How  Baised. — The  question 
should  be  raised  by  motion  to  strike 
the  amendment  from  the  files,  not  by 
a  motion  to  dismiss  the  declaration  as 
amended.  O'Shields  v.  Georgia  Pac. 
R.  Co.,  83  Ga.  621. 

Waiver  of  Objection. — If  the  objection 
to  the  amendment  is  not  made  in  the 
court  below  it  is  not  available  in  the 
appellate  court.  Robertson  v.  Spring- 
field, etc.,  R.  Co.,  21  Mo.  App.  633. 


3.  Harvey  v.  Hackney,  35  S.  Car. 
361;  Miller  v.  Stark,  29  S.  Car.  325; 
Skinner  v.  Grant,  12  Vt.  456:  Wilson 
V.  Pearson,  102  N.  Car.  290;  Pullen 
V.  Hutchinson,  25  Me.  249;  Daven- 
port V.  Holland,  2  Cush.  (Mass.)  13, 
where  the  court  discussed  at  some 
length  the  question  as  to  how  de- 
fective a  declaration  must  be  in  or- 
der to  be  beyond  the  reach  of  amend- 
ment. Wingate  v.  Com.,  5  Cush. 
(Mass.)  446;  Nevada  Countv,  etc.. 
Canal  Co.  v.  Kidd,  28  Cal.  673;' Ellison 
V.  Georgia  R.  Co.,  87  Ga.  691,  now 
the  leading  case  in  Georgia;  Schmidt 
V.  Block,  76  Ga.  823;  Mitchell  v.  Long, 
74  Ga.  94;  Merritt  v.  Bagwell,  70  Ga. 
578;  Central  R. ,  etc.,  Co.  v.  Denson, 
83  Ga.  266;  Snook  v.  Raglan,  8g  Ga. 
251;  Tatum  V.  Allison,  31  Ga.  337; 
Ware  v.  Macon  City  Bank,  59  Ga.  840; 
Bolton  V.  Georgia  Pac.  R.  Co.,  83  Ga. 
659;  Cartter  v.  Cotter,  88  Ga.  286; 
Southwestern  R.  Co.  v.  Bryant,  67 
Ga.  212;  Hardee  v.  Lovett,  83  Ga. 
203;  Verdery  v.  Barrett,  89  Ga.  349; 
Dill  V.  Jones,  3  Ga.  79;  Strawn  v. 
Kersey,  22  Ga.  586. 

4.  "  No  summons,  writ,  declaration, 
return,  process,  judgment,  or  other 
proceedings  in  civil  causes  in  any 
court  of  the  United  States  shall  be 
abated,  arrested,  quashed,  or  reversed 
for  any  defect  or  want  of  form;  but 
such  court  shall  proceed  and  give 
judgment  according  as  the  right  of  the 
cause  and  matter  in  law  shall  appear 
to  it,  without  regarding  any  such  de- 
fect, or  want  of  form,  except  those 
which,  in  cases  of  demurrer,  the  party 
demurring  specially  sets  down,  to- 
gether with  his  demurrer  as  the  cause 
thereof  :  and  such  court  shall  amend 
every  such  defect  and  want  of  form, 
other  than  those  which  the  party  de- 
murred so  expresses  :  and  may  at  any 


510 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


declares  in  substance  that  the  practice  at  law  in  the  federal  courts 
shall  conform  to  the  practice  of  the  state  in  which  the  court  is 
held.*  Where  the  state  statute  allows  amendments  at  any  stage 
of  the  case  as  a  matter  of  right,  the  federal  court  will  not  exer- 
cise a  discretion  to  deny  the  amendment.* 

In  allowing  amendments  to  conform  to  the  proof,  the  federal 
court  will  follow  the  state  statute  defining  a  material  variance.* 

The  state  practice  in  respect  of  the  allowance  of  amendments 
introducing  a  new  cause  of  action  will  govern  the  federal  court.'* 

The  mode  of  amending  the  complaint  as  of  course,  under  the 
state  practice,*  and  the  state  practice  in  allowing  amendments 
after  verdict  by  increasing  the  amount  of  damages  claimed,  will  be 
followed.** 

d.  Amendment  of  Jurisdictional  Averments. — A  court 
without  jurisdiction  has  no  authority  to  allow  an  amendment  to 
pleadings  in  the  suit.' 

Where  the  court  has  jurisdiction  of  the  subject-matter,  and  the 
defendant  has  appeared  in  court  to  contest  the  merits,  the  declara- 
tion or  complaint  may  be  amended  by  inserting  averments  neces- 
sary to  perfect  the  jurisdiction  of  the  court  upon  the  record.* 

time  permit  either  of  the  parties  to 
amend  any  defect  in  the  process  or 
pleading,  upon  such  conditions  as  it 
shall,  in  its  discretion  and  by  its  rules, 
prescribe."     U.  S.  Rev.  St.  i^  954. 

1.  *'  The  practice,  pleadings,  and 
modes  of  proceeding  in  civil  causes, 
other  than  equity  and  admiralty  causes, 
in  the  circuit  and  district  courts  shall 
conform,  as  near  as  may  be,  to  the 
practice,  pleadings,  and  forms,  and 
modes  of  proceeding  existing  at  the 
time  in  like  causes  in  the  courts  of 
record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  any 
rule  of  court  to  the  contrary  notwith- 
standing." United  States  Rev.  St.  § 
914. 

"  'As  near  as  may  be'  allows  only 
necessary  variations  from  the  state 
methods  growing  out  of  the  different 
organization  of  the  courts,  and  other 
similar  matters."  Lewis  v.  Gould,  13 
Blatchf.  (U.  S.)  216. 

2.  Nussbaum  v.  Northern  Ins.  Co. 
(District  of  Georgia),  40  Fed.  Rep.  337. 

3.  Liverpool,  etc.,  Ins. Co.  z/.Gunther 
(District  of  New  York),  116  U.  S.  113. 

4.  Chamberlain  v.  Mensing  (District 
of  South  Carolina),  51  Fed.  Rep.  511. 

The  state  decisions  as  to  what  does 
or  does  not  constitute  a  new  cause  of 
action  will  be  followed.  West  v.  Smith 
(District  of  Connecticut),  ror  U.  S.  263. 

5.  Rosenbach  v.  Dreyfuss  (District 
of  New  York),  i  Fed.  Rep.  391. 


6.  Eking  v.  Campbell  (District  of 
New  York),  5  Blatchf.  (U.  S.)  183, 
where  it  was  said  that  "the  practice 
of  the  state  courts,  if  settled  and  uni- 
form, should,  unless  there  are  very 
strong  reasons  in  opposition,  be  fol- 
lowed." Compare  Tobey  v.  Claflin,  3 
Sumn.  (U.  S.)  379. 

Other  Instances. — The  state  practice 
was  followed  in  Clark  v.  Sohier,  i 
Woodb.  &  M.  (U.  S.)  36S;  Whitaker 
V.  Pope  (District  of  Georgia),  2  Woods 
(U.  S.)  463;  Henderson  v.  Louisville, 
etc.,  R.  Co.  (District  of  Louisiana), 
123  U.  S.  61,  where  a  usee  was  sub- 
stituted for  a  nominal  plaintiff.  Fitz- 
patrick  v.  Flannagan  (District  of  Mis- 
sissippi), 106  U.  S.  648,  where  an 
affidavit  in  attachment  was  amended 
by  adding  a  new  ground  for  attach- 
ment under  the  authority  of  the  Mis- 
sissippi Code,  §  1134.  See  also  infra, 
IV,  I,  b. 

7.  Goff  V.  Robinson,  60  Vt.  633. 

A  petition  to  the  court  of  common 
pleas  for  a  highway,  which  shows  upon 
its  face  that  the  court  has  no  jurisdic- 
tion of  the  application,  cannot  after  a 
reference  to  the  road  commissioners 
and  a  report  made  by  them  be  amend- 
ed so  as  to  give  the  court  jurisdic- 
tion. Dinsmore  v.  Auburn,  26  N.  H. 
356. 

8.  Chafee  v.  Postal  Tel.  Co.,  35 
S.  Car.  372.  See  also  Mitchell  v.  Mis- 
souri Pac.  R.  Co.,  82  Mo.  106. 


II 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Defective  averments  as  to  the  residence  of  the  parties  are  amend- 
able;* and  under  authority  to  amend  "by  inserting  other  alle- 
gations material  to  the  case,"  it  has  been  held  that  a  plaintiff 
may  be  allowed  to  amend  his  complaint  by  inserting  allegations 
proper  to  obviate  an  objection  that  the  court  has  no  jurisdiction 
of  the  cause  of  action.* 

Striking  Out. — The  court  may  undoubtedly  allow  an  amendment 
by  striking  out  a  count  of  which  it  has  no  jurisdiction.' 

la  the  Federal  Courts,  the  want  of  an  averment  of  diverse  citizen- 
ship of  the  parties  may  be  supplied  by  amendment,"*  and  the 
plaintiff  may  amend  his  declaration  to  show  that  he  was  an  alien 
when  the  action  was  brought  instead   of  a  citizen   as  alleo;ed.* 


Limitation  of  the  Power. — In  Brown 

V.  Pond,  5  Fed.  Rep.  41,  Judge  Choate 
says  that  the  power  of  amendment  can 
only  be  exercised  in  cases  where  the 
court  has  acquired  jurisdiction  over 
the  defendant  or  where  he  has  sub- 
mitted himself  to  the  jurisdiction. 

Averment  Merely  Defective. — In  a 
special  proceeding  under  A^ort/i  Caro- 
lina Laws,  1SS7,  c.  276,  to  sell  land  in 
partition,  a  complaint  which  fails  to 
allege  that  the  plaintiff  is  in  possession 
is  defective  merely,  and  the  court  is  not 
without  jurisdiction  to  grant  an  amend- 
ment. Godwin  v.  Early  (N.  Car.,  1894), 
18  S.  E.  Rep.  973. 

Averment  of  Value  of  Property. — Where 
judgment  was  arrested  for  want  of 
jurisdiction,  the  declaration  not  alleg- 
ing the  value  of  the  property  in  con- 
troversy, the  plaintiff  was  permitted 
to  amend  by  adding  the  averment. 
Lanning  v.  Dolph,  4  Wash.  (-U.  S.) 
629;  Romero  v.  Luna  (N.  Mex.,  1892), 
30  Pac.  Rep.  855. 

Petition  in  Drainage  Proceedings. — In 
Coolman  v.  Fleming,  82  Ind.  117,  it 
was  held  that  a  petition  in  a  drainage 
case  might  be  amended  even  as  to  a 
jurisdictional  matter. 

In  Justice  Court. — A  justice  of  the 
peace  has  the  right  to  allow  the  com- 
plaint to  be  amended  in  the  statement 
of  a  jurisdictional  fact.  Linhart  v. 
Buiflf,  II  Cal.  280. 

1.  The  omission  to  allege  in  the 
declaration  that  the  defendant  resides 
in  the  county  where  suit  is  brought  is 
amendable.  Raney  v.  McRae,  14  Ga. 
589;  Hall  V.  Mobley,  13  Ga.  318. 

In  Chafife  v.  Thornton,  28  La.  Ann. 
837,  where  the  petition  alleged  that 
the  plaintiff  resided  in  the  City  of  New 
Orleans,  %vithout  averring  that  it  was 
within  the  state  of  Louisiana,  an 
amendment  was  allowed  instanter. 


Where  it  appears  from  the  petition 
that  the  defendant  does  not  reside  in 
the  county  where  suit  is  brought,  and 
there  are  no  allegations  which  bring 
the  case  within  some  of  the  exceptions 
to  the  general  rule  which  requires  in- 
habitants of  the  state  to  be  sued  in  the 
county  of  their  domicil,  the  defect  may 
be  cured  by  amendment.  Evans  v. 
Mills,  16  Tex.  196. 

2.  Frizzell  v.  Duffer,  58  Ark.  612. 
In   Charlotte    Planing    Mills  v.  Mc- 

Ninch,  99  N.  Car.  517,  such  an  amend- 
ment was  allowed  with  the  consent  of 
the  defendant. 

After  Motion  to  Dismiss. — The  Colo- 
rado Code  expressly  provides  for 
amendments  after  demurrer  sustained 
for  want  of  jurisdiction  of  the  subject- 
matter.  A  motion  to  dismiss  is  equiv- 
alent to  a  demurrer,  and  upon  being 
overruled  the  plaintiff  may  be  allowed 
to  amend.  Southwestern  Land  Co.  v. 
Hickory  Jackson  Ditch  Co.,  18  Colo. 
489. 

Amendment  in  Agfreed  Case. — A  sub- 
mission of  an  action  upon  a  case  stated 
by  the  parties  without  limiting  the 
plaintiff's  right  to  recover  to  the  par- 
ticular form  in  which  the  action  is 
brought,  authorizes  the  writ  to  be 
amended  in  the  court  where  it  is 
brought  into  another  form  of  which 
that  court  has  original  jurisdiction, 
although  it  has  no  jurisdiction  of  the 
action  in  its  present  form.  Merrill  v. 
Bullock,  105  Mass.  486. 

3.  Pollard  v.  Barnes,  2  Cush.  (Mass.) 


191. 
4 

81; 
14 


Morgan  v.  Gay,  19  Wall.  (U.  S.) 
Kelsey  v.   Pennsylvania    R.   Co., 
Blatchf.    (U.    S.)    89;    Hillard    v. 
Brevoort,  4  McLean  (U.  S.)  24. 

5.  Betzoldt  V.  American  Ins.  Co.,  47 
Fed.  Rep.  705.  See  also  Michaelson 
V.  Denison,  3  Day  (Conn.)  294,  a  case 


512 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc 


Such  amendments  have  been  allowed  after  a  demurrer  sustained,* 
pending  a  motion  in  arrest  of  judgment  on  account  of  the  defect,* 
and  have  been  sanctioned  by  the  Supreme  Court  even  where  the 
judgment  below  has  been  reversed  because  the  record  lacked  the 
proper  jurisdictional  averments.* 

2.  Amendments  by  Referee — a.  Power  Wholly  Statutory. 
— Referees  have  no  power  to  allow  an  amendment  of  the  plead- 
ings in  cases  submitted  to  them  unless  the  power  is  expressly  con- 
ferred by  statute.'* 

b.  Code  Provisions. — Some  of  the  codes  provide  that  upon 
the  trial  before  a  referee  the  latter  shall  have  the  same  power  as 
the  court  to  allow  amendments  to  the  summons  or  to  the  plead- 
ings, which  he  may  exercise  in  like  manner  and  upon  like  terms 
as  the  same  powers  are  exercised  by  the  court  upon  a  trial.* 


decided  in  the  United   States  Circuit 
Court. 

1.  Fisher  v.  Rutherford,  i  Baldw. 
(U.  S.)i88. 

2.  Maddox  v.  Thorn,  6o  Fed.  Rep. 
217. 

3.  Betzoldt  V.  American  Ins.  Co.,  47 
Fed.  Rep.  705;  Parker  v.  Ormsby,  141 
U.  S.  81;  Everhart  v.  Huntsville  Col- 
lege, 120  U.  S.  223;  King  Bridge  Co. 
V.  Otoe  County,  120  U.  S.  225;  Met- 
calf  V.  Watertown,  128  U.  S.  590; 
Menard  v.  Goggan,  121  U.  S.  253; 
Conolly  V.  Taylor,  2  Pet.  (U.  S.)  556; 
Morgan  v.  Gay,  19  Wall.  (U.  S.)  81; 
Continental  Ins.  Co.  v.  Rhoads,  119 
U.  S.  237;  Halsted  v.  Buster,  119  U.  S. 
341;  Denny  v.  Pironi,  141  U.  S.  124. 

4.  De  La  Riva  v.  Berreyesa,  2  Cal. 
196;  Eldred  v.  Eames,  115  N.  Y.  401 
{reversing  48  Hun  (N.  Y.)  253),  where 
it  was  said  that  in  New  York  the 
power  of  amendment  was  first  con- 
ferred upon  referees  by  ^  272  of  the 
Code  in  1857.  See  also  the  dissenting 
opinion  of  Follet,  J.,  in  the  same  case 
at  general  term,  48  Hun  (N.  Y.)  257. 

Eeferees  in  Special  Proceedings.  —  It 
was  held  in  Eldred  v.  Eames,  115  N. 
Y.  401,  reversing  48  Hun  (N.  Y.)  253, 
that  the  general  language  of  the  Code 
provision  conferring  power  upon  ref- 
erees in  special  proceedings  did  not 
obliterate  the  distinction  between  stat- 
utory references  and  those  made  in 
actions  which  are  inherent  in  the  nat- 
ure of  the  proceeding,  and  that  upon 
a  reference  of  a  claim  against  the  es- 
tate of  a  decedent  the  referee  has  no 
power  of  amendment,  as  an  amend- 
ment would  vary  the  matter  referred. 

In  In  re  Muzor's  Estate,  25  N.  Y. 
Supp.  818,  4  Misc.  Rep.  818,  a  proceed- 

I  Encyc.  PI.  &  Pr.— 33.  5 


ing  before  a  referee  to  state  an  admin- 
istrator's account,  the  court  said  that 
"there  can  be  no  question  as  to  the 
power  of  a  referee  to  grant  such  an 
amendment  as  the  surrogate  himself 
might  grant  upon  a  trial,"  citing  §§ 
2538.  2546  of  the  Code,  and  Billington 
V.  Cahill  (Supreme  Ct.)4  N.  Y.  Supp. 
633. 

5.  New  York  Code,  §  1018  ;  South 
Carolina  Code,  §  296. 

Extent  of  Power. — That  the  referee 
has  the  same  power  as  the  court  in 
this  behalf,  see  Knapp  v.  Fowler,  26 
Hun  (N.  Y.)  200;  Van  Ness  v.  Bush, 
22  How.  Pr.  (N.  Y.  Supreme  Ct.)  481; 
Bennett  v.  Lake,  47  N.  Y.  93;  Hoyt  v. 
Hoyt,  8  Bosw.  (N.  Y.)  511;  and  upon 
the  same  terms  with  like  effect,  Ore- 
gon Steamship  Co.  v.  Otis,  59  How. 
Pr.  (N.  Y.  Supreme  Ct.)  254;  Wood- 
ruff V.  Dickie,  5  Robt.  (N.  Y.)  619; 
Smith  V.  Rathbun,  75  N.  Y.  122. 

His  power  extends  only  to  such 
amendments  as  the  court  may  order 
on  a  trial.  Woodruff  v.  Hurson,  32 
Barb.  (N.Y.)  557;  Secorr/.  Law  (N.Y.), 
3  Trans.  App.  328. 

His  power  to  allow  amendments  is 
not  co-extensive  with  that  of  the  court 
at  special  term;  it  is  restricted  to  that 
of  the  court  at  circuit.  Chittenango 
Cotton  Co.  V.  Stewart,  67  Barb.  (N.  Y.) 

423- 

An  answer  to  an  amended  complaint 
may  be  amended  on  terms  pending  a 
trial  before  a  referee.  Skinner  v. 
White,  63  Hun  (N.  Y.)  628,  17  N.  Y. 
Supp.  657. 

New  Bill  of  Particulars. — He  may  per- 
mit a  new  bill  of  particulars  to  be  sub- 
stituted for  that  annexed  to  the  com- 
plaint.    Melvin  v.  Wood,   4  Abb.  Pr, 

13  ' 


Of  Pleadings,  etc  ,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


c.  The  Power  Concurrent. — The  power  with  which  the 
referee  is  thus  invested  is  concurrent  with  that  of  the  court,  and 
pending  a  reference,  if  a  party  desires  to  amend  and  the  referee 
adjourns  his  case,  a  motion  may  be  made  to  the  court.* 

d.  New  Cause  of  Action. — A  referee  cannot  permit  such  an 
amendment  of  the  complaint  as  would  constitute  a  new  cause  of 
action.* 

e.  NeV7  Defense. — Nor  can  he  permit  the  defendant  to  amend 
his  answer  on  the  trial  by  setting  up  a  new  defense.' 


N.  S.  (N.  Y.  Ct.  of  App.)  438,  3  Keyes 
(N.  Y.)  533.  See  Patchin  v.  Peck,  38 
N.  Y.  39- 

In  Respect  of  Parties. — A  referee  has 
power  to  amend  the  summons  and 
complaint  by  adding  a  party  defend- 
ant. Magovern  v.  Robertson  (Su- 
preme Ct.),  37  N.  Y.  St.  Rep.  441,  14 
N.  Y.  Supp.  114.  But  see  Newman  v. 
Marvin,  12  Hun  (N.  Y.)  236;  Knapp 
V.  Hungerford,  7  Hun  (N.  Y.)588.  He 
cannot  strike  out  the  name  of  a  party. 
Billings  V.  Baker,  6  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  213. 

Amendment  Allowed  in  Findings.  — 
Where  the  plaintiff  on  the  trial  moves 
to  amend  so  as  to  include  interest  in 
the  demand,  and  the  referee  without 
objection  reserves  his  decision,  an  al- 
lowance of  the  amendment,  made  in 
the  findings,  is  in  time.  Bean  v.  Edge, 
46  N.  Y.  Super.  Ct.  455. 

1.  Bullock  V.  Bemis,  40  Hun(N.  Y.) 
623,  2  N.  Y.  St.  Rep.  189. 

May  Require  Application  to  Court. — A 
referee  is  not  obliged,  upon  the  trial, 
to  permit  an  amendment  of  the  com- 
plaint which  is  necessary  to  make  it 
state  a  cause  of  action  against  certain 
of  the  defendants;  he  may  require  the 
parties  to  apply  to  the  court,  where 
terms  may  be  imposed  which  will  pro- 
tect the  rights  of  such  defendants. 
Barnes  v.  Seligman,  55  Hun  (N.  Y.) 
339,  29  N.  Y.  St.  Rep.  68,  8  N.  Y.  Supp. 

834. 

2.  National  Steamship  Co.  v.  Shea- 
han,  122  N.  Y,  461,  afg  13  N.  Y.  St. 
Rep.  429;  Zoller  v.  Kellogg,  66  Hun 
(N.  Y.)  194,  21  N.  Y.  Supp.  226;  Jos- 
lyn  V.  Joslyn,  9  Hun  (N.  Y.)  388; 
Dougherty  v.  Valloton,  38  N.Y.  Super. 
Ct.  455;  Union  Bank  v.  Mott,  10  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  372;  Sinclair 
V.  Neill,  I  Hun  (N.  Y.)  80;  Bockes 
V.  Lansing,  74  N.  Y.  437,  aff'g  13  Hun 
(N.  Y.)  38;  Quimby  v.  Claflin,  13  N.  Y. 
Wkly  Dig.  203.  But  see  Secor  v.  Law, 
9  Bosw.  (N.  Y.)  163;  Dunnigan  v. 
Crummey,  44  Barb.  (N.  Y.)  528. 


A  referee  has  power  to  permit  an 
amendment  of  a  complaint  which 
changes  the  case  from  one  for  damages 
for  breach  of  contract  to  one  upon  a 
quatttam  meruit.  Flynn  v.  West- 
mayer,  14  Civ.  Pro.(N.Y.  Super.  Ct.)  130, 
4  N.  Y.  Supp.  188.  Or  which  changes 
an  allegation  that  an  assignment  was 
in  writing  and  for  a  certain  sum,  so 
as  to  allege  that  it  was  by  parol  and 
as  security  for  a  certain  sum.  Hoyt  z'. 
Hoyt,  8  Bosw.  (N.  Y.)  511. 

For  other  amendments  held  not  to 
introduce  a  new  cause  of  action,  see 
Bennett  v.  Agricultural  Ins.  Co.,  106 
N.  Y.  243;  Snow  V.  Cable,  19  Hun  (N. 
Y.)  280. 

3.  Case  v.  Phoenix  Bridge  Co.,  34 
N.  Y.  St.  Rep.  581,  19  Civ.  Pro.  Rep. 
(N.  Y.  Super.  Ct.)  373,  11  N.  Y.  Supp. 
723;  Woodruff  V.  Hurson,  32  Barb. 
(N.  Y.)  557  ;  Dougherty  v.  Valloton, 
38  N.  Y.  Super.  Ct.  455.  See  also 
Smith  V.  Bodine,  74  N.  Y.  30;  Brett  v. 
First  Universalist  Soc,  63  Barb.  (N. 
Y.)  610,  aff'd  64  N.  Y.  651;  Livermore 
V.  Bainbridge,  44  How.  Pr.  (N.  Y. 
Supreme  Ct.)  357,  afd  47  How.  Pr. 
(N.Y.)  350. 

Payment  Amended  to  General  Denial. — 
The  referee  may  allow  an  amendment 
of  the  answer  which  contained  an  aver- 
ment of  payment  to  plaintiff's  agent, 
by  setting  up  a  general  denial.  Wilcox 
V.  Onondaga  County  Sav.  Bank,  40 
Hun  (N.  Y.)297. 

Making  General  Denial  Special. — Or  to 
set  up  by  amendment  of  an  answer 
which  was  a  general  denial,  that  one 
of  the  defendants  sued  as  a  partner 
was  not  a  partner,  and  that  the  claim 
sued  on  has  been  paid  in  part. 
Frazer  v.    Hunt,  18   N.  Y.  Wkly  Dig. 

390- 

Reply  to  Counterclaim.  —  After  the 
final  submission  of  the  cause  and  a  de- 
cision by  the  referee  the  plaintiff  will 
not  be  permitted  to  amend  his  reply  to 
a  counterclaim  by  setting  up  a  further 
defense  thereto.     Brady  v.   Nally,  26 


514 


Of  Pleadings,  etc  ,  at  AMENDMENTS.  Common  Law,  tinder  Codes,  etc. 


f.  To  Conform  to  Proof. — Referees  have  power  after  a  cause 
of  action  has  been  duly  made  out  by  the  proofs  to  direct  an 
amendment  of  the  pleadings  so  as  to  make  them  conform 
thereto.* 

g.  Power  to  Impose  Terms. — The  power  of  a  referee  with 
respect  to  the  terms  upon  which  an  amendment  shall  be  allowed 
is  commensurate  with  that  of  the  court.* 

//.  Review  of  Referee's  Ruling. — The  allowance  or  rejec- 
tion of  amendments  rests  in  the  sound  discretion  of  the  referee, 
and  his  decision  will  not  be  reviewed  except  for  want  of  power, 
or  in  a  clear  case  of  abuse.' 

3.  In  Furtherance  of  Justice—^.  Principle  Pervades  All 
Amendments. — In  civil  proceedings  all  amendments,  if  no  stat- 
ute or  rule  of  court  interposes  to  prevent,  are  in  the  discretion  of 
the  court,  and  are  allowed  or  refused  as  the  court  may  deem  most 
conducive  to  the  furtherance  of  justice.* 


Abb.   N.  Cas.  (N.  Y.   Super.  Ct.)  367, 
14  N.  Y.  Supp.  480. 

Setting  up  Limitation. — A  referee  can- 
not allow  a  party  on  the  trial  to  add 
the  plea  of  the  statute  of  limitations; 
it  is  a  new  defense.  Riley  v.  Corwin, 
17  Hun.  (N.  Y.)  597.  Contra,  Mason  v. 
Johnson,  13  S.  Car.  20. 

1.  Hough  V.  Blower,  i  Alb.  L.  J. 
124;  Chapin  v.  Dobson,  78  N.  Y.  74; 
Oregon  Steamship  Co.  v.  Otis,  59 
How.  Pr.  (N.  Y.  Supreme  Ct.)  254,  27 
Hun  (N.  Y.)  452,  100  N.  Y.  448;  Flynn 
-v.  Westmayer  (Super.  Ct.),  4  N.  Y. 
Supp.  188;  Nichols  V.  Scranton  Steel 
Co.  (Ct.  of  App.),  51  N.  Y.  St.Rep.  277. 
137  N.  Y.  471,  rt/"'^46  N.  Y.  St.  Rep.  58; 
Merriam  v.  Wolcott,  61  How.  Pr.  (N. 
Y.  Supreme  Ct.)  377;  Crismon  v.  Deck, 
84  Iowa  344;  Gilbank  v.  Stephenson, 
31  Wis.  592;  South  Car.  R.  Co.  v. 
Barrett,  12  S.  Car.  174. 

Failure  of  Proof.  —  In  Button  v. 
Schuyler's  Steam  Towboat  Line,  40 
Hun  (N.  Y.)  422,  an  amendment  was 
properly  denied  on  account  of  failure 
of  proof. 

2.  Smith  V.  Rathbun,  75  N.  Y.  122, 
reversing  13  Hun  (N.  Y.)  47,  and  hold- 
ing that  where  the  referee  allows  the 
plaintiff  to  amend  by  adding  allega- 
tions which  do  not  substantially 
change  the  cause  of  action,  he  may 
impose  as  a  condition  that  a  defendant 
who  has  answered  may  interpose  a  de- 
murrer or  answer. 

Waiver  of  Objection. — A  referee  may 
allow  an  amendment  6f  the  complaint 
upon  the  trial  on  payment  of  costs;  at 
all  events  the  opposite  party  by  ac- 
cepting the  costs   is    precluded   from 


raising  the  objection.    Grattan  v.  Met- 
ropolitan L.  Ins.  Co.,  80  N.  Y.  281. 

3.  Haight  v.  Littlefield,  71  Hun  (N. 
Y.)  289;  Coates  v.  Donnell,  48  N.  Y. 
Super.  Ct.  46;  Price  v.  Brown,  98  N. 
Y.  388;  Melvin  v.  Wood,  3  Keyes  (N. 
Y.)  533;  Woodruff  V.  Hurson,  32  Barb. 
(N.  Y.)  557;  Rocker  v.  Wildfoerster 
(Supreme  Ct.),  20  N.  Y.  Supp.  9.  See 
also  Brett  v.  First  Universalist  Soc, 
63  Barb.  (N.  Y.)  610,  afd  64  N.  Y.  651. 

Grounds  for  Baling. — Doubtless,  if  a 
referee  denies  leave  to  amend  on  the 
ground  of  a  supposed  want  of  power, 
his  decision  is  reviewable  for  error. 
See  i7tfra  IV.  a,  (2).  But  if  the  order 
denying  leave  states  no  ground  for  his 
decision,  it  will  be  presumed  that  it 
was  simply  an  exercise  of  discretion. 
Haight  V.  Littlefield,  71  Hun  (N.  Y.) 
289. 

Method  of  Eeview. — In  New  York  the 
special  term  has  no  power  to  review 
the  ruling  of  the  referee.  It  can  be 
reviewed  only  on  appeal.  Knapp  v. 
Fowler,  26  Hun  (N.  Y.)  200.  See 
Macpherson  v.  Ronner,  40  N.  Y. 
Super.  Ct.  448. 

4.  Jackson  v.  Warren,  32  111.  331; 
Thompson  v.  Mosely,  29  Mo.  477; 
Chouteau  v.  Hewitt,  10  Mo.  131;  God- 
dard  v.  Williamson,  72  Mo.  131;  Greer 
V.  Covington  (Ky.,  1885),  2  S.  W.  Rep. 
323;  Bussey  v.  Rothschild,  27  La.  Ann. 
316;  Penny  v.  Parham,  i  La.  Ann.  274; 
McMullen  v.  Jewell,  3  La.  Ann.  139; 
Meyer  v.  Farmer,  36  La.  Ann.  785; 
Tucker  v.  Liles,  3  La.  297;  Debuys  v. 
Mollers,  2  Martin  N.  S.  (La.)  625; 
Brockman  v.  Berryhill,  16  Iowa  183; 
Wilson   V.  Johnson,   i   Greene  (Iowa) 


515 


Of  Pleadicgs,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Amendments  are  not  ordinarily  allowed  in  order  to  give  one  of 
the  parties  a  purely  technical  advantage  over  the  other.*  Obvi- 
ously, however,  the  term  "furtherance  of  justice"  is  not  suscep- 
tible of  accurate  definition,  and  the  application  of  the  principle  is 
to  be  determined  by  the  varying  circumstances  of  each  particular 
case,  for  which  reference  must  be  had  to  specific  heads  of  this 
article.* 

A  few  general  considerations  touching  the  subject  are  discussed 
in  the  following  subsections. 

b.  Amendments  Favored. — Although  the  granting  or  refusal 
of  leave  to  amend  rests  within  the  sound  discretion  of  the  court, ^ 


147;  Daguerre  v.  Orser,  3  Abb.  Pr. 
(N.  Y.  C.  PI.)  88;  Harrington  v.  Slade, 
22  Barb.  (N.  Y.)  161;  Wampler  v.  Shiss- 
ler,  I  W.  &  S.  (Pa.)  365;  State  v.  Van- 
dever,  3  Harr.  (Del.)  29;  State  v.  Col- 
lins, I  Harr.  (Del.)  216;  Townsend  v. 
Townsend,  2  Harr.  (Del.)  277;  Hen- 
dricksen  v.  Huey,  2  Harr.  (Del.)  301; 
Ten  Eyck  v.  Delaware,  etc.,  Canal  Co., 
19  N.  J.  L.  5;  Bartley  v.  Smith,  43  N. 
J.  L.  321;  Archibald  v.  Thompson,  2 
Colo.  391;  Fuller  v.  Wing,  19  Me.  222. 

Extraordinary  Liberality  in  California. 
— In  Bradley  v.  Parker  (Cal.,  1S93),  34 
Pac.  Rep.  236,  it  was  said  that  the 
courts  of  California  "have  gone  fur- 
ther, perhaps,  in  permitting  amend- 
ments than  those  of  any  other  juris- 
diction in  the  Union." 

Good  Faith  Recognized. — As  a  general 
rule  courts  will  not  refuse  a  party 
leave  to  amend  a  pleading  so  long  as 
they  are  satisfied  that  he  is  in  good 
faith  attempting  to  remedy  such  de- 
fects as  are  made  to  appear  by  the 
rulings  upon  questions  presented  in 
the  course  of  settling  the  pleadings. 
Balch  V.  Smith,  4  Wash.  St.  504. 

Oversights  of  Counsel. — "From  over- 
sights of  counsel  committed  under 
pressure  of  business,  pleadings  are 
often  defective.  In  such  cases,  when 
an  offer  to  amend  is  made  at  such  a 
stage  in  the  proceedings  that  the  other 
party  will  not  lose  an  opportunity  to 
fairly  present  his  whole  case,  amend- 
ments should  be  allowed  with  great 
liberality."  Kirstein  v.  Madden,  38 
Cal.  158.  See  also  Penny  v.  Van  Cleef, 
I  Hall  (N.  Y.)  165. 

Mistake  of  Law. — The  court  may 
allow  an  answer  to  be  amended  so  as 
to  correct  a  mistake  of  law  made  by 
the  defendant's  attorney.  Gould  v. 
Stafford,  loi  Cal.  32. 

Third  Parties  Protected. — A  mistake 
in  the  name  of  a  party  cannot  be  cor- 
rected by  amendment  where  the  rights 


of    third    parties  will    be    prejudiced. 
Fullerton  v.  Campbell,  25   Pa.  St.  345. 

Diligence  Bewarded. — The  court  will 
not  refuse  to  allow  an  amendment  of 
the  pleadings  in  an  action  to  set  aside 
as  fraudulent  a  general  assignment  be- 
cause the  effect  of  allowing  such  aa 
amendment  may  be  to  enable  one  dili- 
gent creditor  to  collect  his  claims  be- 
fore the  claims  of  other  creditors. 
Smith  V.  Parkhurst  (Supreme  Ct.),  z 
N.  Y.  St.  Rep.  212. 

Inconsistent  Defenses.  —  An  amend- 
ment of  the  answer  by  setting  up  sev- 
eral inconsistent  defenses  should  not 
be  allowed.  Marx  v.  Gross,  58  N.  Y. 
Super.  Ct.  221. 

Pleading  Judgment  in  Bar. — Where 
judgment  is  directed  on  demurrer  of 
one  of  two  joint  debtors  and  the  ac- 
tion served  and  directed  to  proceed  as 
to  the  other,  it  is  not  in  furtherance  of 
justice  to  allow  an  amendment  of  the 
answer  of  the  remaining  defendant  by 
setting  up  the  judgment  in  bar. 
Schmohl  V.  Fusco  (City  Ct.),  37  N.  Y. 
St.  Rep.  687. 

Withdrawal  of  Pleading. — A  party 
may  in  the  discretion  of  the  court  be 
allowed  to  withdraw  any  pleading 
filed  by  him  where  it  works  no  injury 
to  his  adversary.  Humphrey  v. 
Hughes,  79  Ky.  487. 

1.  Hexter  v.  Schneider,  14  Oregon 
184,  affirming  the  ruling  of  the  lower 
court  in  refusing  to  allow  an  amend- 
ment by  pleading  in  abatement  during 
the  progress  of  the  trial. 

2.  The  leading  features  in  modern 
practice  are  that  amendments  are  al- 
lowed with  great  liberality  (see  the 
following  paragraph),  that  their  allow- 
ance or  refusal  is  discretionary  with 
the  court  {infra,  4,  a,  i),  and  that  the 
exercise  of  such  discretion  will  not  be 
reviewed  except  in  a  clear  case  ol 
abuse  {infra,  4,  a,  l). 

3.  See  infra,  4,  a,  i. 

16 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

a  multitude  of  authorities  declare  the  salutary  rule  that  statutes 
of  amendment  are  remedial  and  must  be  construed  and  applied 
liberally  in  favor  of  the  privilege  of  amending.  Upon  this  propo- 
sition there  are  no  dissentinsf  authorities.* 


1.  Missouri. — Reyburn  v.  Mitchell, 
io6  Mo.  365;  Chauvin  v.  Lownes,  23 
Mo.  223;  Clarkson  v.  Morrison,  24 
Mo.  134;  Caldwell  v.  McKee,  8  Mo. 
334;  Dallam  v.  Bowman,  16  Mo.  225; 
House  V.  Duncan,  50  Mo.  453. 

Iowa. — Logan  v.  Tibbott,  4  Greene 
(Iowa)  389;  Tiffany  v.  Henderson,  57 
Iowa  490,  where  it  was  said  that  "to 
allow  amendments  is  the  rule;  to 
refuse,  the  exception;"  Miller  v. 
Perry,  38  Iowa  301;  O'Connell  v.  Cot- 
ter, 44  Iowa  50;  Hays  v.  Turner,  23 
Iowa  217;  Pride  v.  Wormwood,  27 
Iowa  257;  Seevers  v.  Hamilton,  11 
Iowa  66. 

Massachttsetts. — Davenport  v.  Hol- 
land, 2  Cush.  (Mass.)  12;  Barker  v. 
Burgess,  3  Met.  (Mass.)  273;  Goddard 
V.  Pratt,  16  Pick.  (Mass.)  412. 

California. — Link  v.  Jar  vis  (Cal., 
1893),  33  Pac.  Rep.  206;  Pierson  v. 
McCahill,  22  Cal.  127  ;  Burns  v. 
Scooffy,  98  Cal.  271;  Smith  v.  Yreka 
Water  Co.,  14  Cal.  201;  Ward  v.  Clay, 
S2  Cal.  502;  Lestrade  v.  Barth,  17  Cal. 
285,  affirming  the  decision  of  the  trial 
court  in  granting  a  new  trial  for  its 
own  erroneous  exercise  of  discretion 
in  denying  defendant  leave  to  amend; 
Cooke  V.  Spears,  2  Cal.  409;  Butler 
V.  King,  10  Cal.  342  ;  Kirstein  v. 
Madden,  38  Cal.  158  ;  McMillan  v. 
Dana,  18  Cal.  339;  Linhart  z/.  Buiff,  11 
Cal.  280. 

New  York. — Campbell  v.  Campbell, 
23  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.) 
187;  Strong  V.  Dwight,  11  Abb.  Pr.  N. 
S.  (N.  Y.  Supreme  Ct.)  319;  Reeder  v. 
Sayre,  70  N.  Y.  180;  Bragg  v.  Bick- 
ford,  4  How.  Pr.  (N.  Y.  Supreme  Ct.) 
21;  Gilchrist  v.  Gilchrist,  44  How.,Pr. 
(N.  Y.  Supreme  Ct.)  317;  Harrington 
V.  Slade,  22  Barb.  (N.  Y.)  161;  Rich- 
mond V.  Second  Avenue  R.  Co.  (Super. 
Ct.),  29  N.  Y.  Supp.  588. 

Tennessee. — Stovall  v.  Bowers,  10 
Humph.  (Tenn.)  560; 

Nebraska. — Berrer  v.  Moorhead,  22 
Neb.  687. 

Alabama. — Watts  w.Womack,  44  Ala. 
605;  Beavers  v.  Hardie,  59  Ala.  570, 
Nelson  v.  Webb,  54  Ala.  436;  Board- 
man  V.  Parrish,  56  Ala.  54;  Webster  v. 
Wyser,  i  Stew.  (Ala.)  184,  holding  that 
a  plea  puis  darrein  continuance  may 


be  amended;  Sanders  v.  Knox,  57  Ala. 
80;  Robinson  v.  Darden,  50  Ala.  71. 

North  Carolina. — Alamance  County 
V.  Blair,  76  N.  Car.  136;  Deal  v.  Palm- 
er, 68  N.  Car.  215;  Robinson  v.  Wil- 
loughby,  67  N.  Car.  84;  Kron  v.  Smith, 
96  N.  Car.  389. 

Pennsylvania. — Trego  v.  Lewis,  58 
Pa.  St.  463;  Miller  v.  Pollock,  99  Pa. 
St.  202;  Patton  V.  Pittsburgh,  etc.,  R. 
Co.,  96  Pa.  St.  169;  Fidler  v.  Hershey, 
90  Pa.  St.  363;  Getty  v.  Shearer,  20 
Pa.  St.  12;  Tiernan  v.  Blackstone,  i 
Phila.  (Pa.)  27;  Beates  v.  Rotallick, 
23  Pa.  St.  290;  Steffy  v.  Carpenter, 
37  Pa.  St.  41. 

Wisconsin. — Gregory  v.  Hart,  7  Wis. 
532;  Tread  way  v.  Wilder,  8  Wis.  91; 
Brown  v.  Bosworth,  62  Wis.  542. 

Oregon. —  Baldock  v.  Atwood,  21 
Oregon  79;  Swift  z/.  Mulkey,  14  Oregon 

59- 

Connecticut. — Bennett  v.  Collins,  52 
Conn,  i;   Phelps  v.  Enz,  19  Conn.  58. 

New  Hampshire. — Stebbins  v.  Lan- 
cashire Ins.   Co.,  59  N.  H.  149. 

Michigan. — Beecher  v.  Wayne  Cir- 
cuit Judges,  70  Mich.  363;  Snyder  z'. 
Winsor,  44  Mich.  140. 

Ohio. — Milins  v.  Marsh,  i  Disney 
(Ohio),  512;  Beresford  v.  Ward,  i 
Disney  (Ohio),  171;  Loving  v.  Fair- 
child  (District  of  Ohio),  i  McLean  (U. 
S.)  333- 

South  Carolina. — Tarrant  v.  Gittel- 
son,  16  S.  Car.  234;  State  Bank  v. 
Simpson,  2  Spears  (S.  Car.) 41;  Hester 
V.  Hagood,  3  Hill  (S.  Car.)  195. 

Illinois. — Thompson  v.  Sornberger, 
78  111.  353;  Drake  v.  Drake,  83  111.  526. 

Kansas. — Harper  v.  Hendricks,  49 
Kan.  724;  School  Dist.  No.  2  v.  Boyer, 
46  Kan.  54;  Culp  v.  Steere,  47  Kan. 
746. 

Georgia. — Woodson  v.  Law,  7  Ga. 
105. 

Mississippi. — Cooper  7'.  Cranberry, 
33  Miss.  117;  Bloom  v.  Price,  44  Miss. 

73- 

Texas. — Reed  v.  Harris,  37  Tex.  167. 

Louisiana. — Jelks  v.  Smith,  5  La. 
Ann.  674;  Carter  v.  Farrell,  39  La. 
Ann.  102. 

Colorado. — Lebanon  Min.  Co.  v.  Con- 
solidated, etc.,  Min.  Co.,  6  Colo.  371. 

Maine. — Solon  v.  Perry,  54  Me.  493. 


517 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc, 

c.  The  Defendant  Favored. — Courts  have  expressly  de- 
clared that  greater  liberality  will  be  exercised  in  allowing  a  de- 
fendant to  amend  his  answer  than  in  permitting  the  plaintiff  to 
amend  his  complaint,*  especially  when  the  defendant  will  neces- 
sarily lose  all  benefit  of  the  defense  unless  it  be  allowed  in  the 
pending  suit.* 

Municipal  Corporations. — And  more  indulgence  will  be  granted  in 
this  behalf  to  a  municipal  corporation  defendant  than  to  indi- 
viduals.^ 

d.  Amendments  Barred  by  Limitation. — Where  a  pro- 
posed amendment  consists  of  new  matter  relating  to  the  subject 
of  the  action  as  set  forth  in  the  complaint,  and  is  not  a  new  and 


Liberal  Construction  of  Statutes. — The 
Connecticut  Practice  Act  provides  for 
amendments  on  appeals  from  justices 
of  the  peace,  during  the  first  term  of 
the  appellate  court,  by  the  introduction 
of  equitable  causes  of  action  or  de- 
fenses. This  was  construed  to  give 
the  court  a  discretionary  power  to 
allow  such  amendments  after  the 
lapse  of  the  first  term,  the  right  to 
amend  being  absolute  during  the  first 
term.  Bennett  v.  Collins.  52  Conn. 
I. 

And  where  the  statute  allowed  the 
names  of  partners  to  be  inserted  dur- 
ing the  first  three  days  of  the  term,  it 
was  held  that  the  court  had  a  dis- 
cretion to  allow  the  amendment  at  a 
later  stage  of  the  case.  Phelps  v.  Enz, 
19  Conn.  58. 

The  Massachusetts  statute  of  1833, 
c.  144,  provided  that  "at  any  time 
before  issue  joined  on  a  plea  of  non- 
joinder of  a  party  defendant  in  an  ac- 
tion founded  on  debt  or  contract,  the 
plaintiff  may  on  motion  be  allowed  to 
amend  his  writ  and  declaration  by  in- 
serting therein  the  name  of  any  other 
person  as  defendant";  and  it  was  held 
that  such  amendment  might  be  made 
although  no  plea  of  nonjoinder  had 
been  filed.  Goddard  v.  Pratt,  16  Pick. 
(Mass.)  412. 

In  Pennsylvania,  although  by  the 
strict  construction  of  the  Act  of  1806 
it  might  be  held  to  apply  only  to 
amendments  of  declarations  or  pleas, 
the  court,  looking  to  the  spirit  and  in- 
tention of  the  act,  held  that  it  applied 
to  subsequent  pleadings  in  the  cause, 
and  allowed  an  amendment  of  a  repli- 
cation. Tiernanz'.  Blackstone.i  Phila. 
(Pa.)  27. 

1.  Garrison  v.  Goodale,  23  Oregon 
307;    Thorn    v.    Smith,    71     Wis.    24; 

5 


Brown  v.  Bosworth,  62  Wis.  542; 
Garvin  v.  Dawson,  13  S.  &  R.  (Pa.) 
246,  248.  See  also  Nys  v.  Biemeret, 
44  Wis.  104. 

TheBeason,  as  stated  in  the  case  first 
cited,  is  that  the  plaintiff  may  suffer  a 
nonsuit  and  commence  another  suit, 
whereas  if  the  defendant  were  denied 
the  privilege,  he  might  be  without 
remedy. 

"  The  practice  is  undoubtedly  more 
liberal  in  allowing  a  change  of  plea 
after  a  demurrer  overruled  than  in  al- 
lowing amendments  to  declarations 
which  have  been  held  to  be  insuf- 
ficient."   McAlister  v.  Clark,  33  Conn. 

253- 

In  Williams  z/.  Cooper,  i  Hill  (N.  Y.) 
637,  a  defendant  in  an  action  of  sland- 
er pleaded  the  general  issue,  under  the 
impression  that  he  had  no  evidence  in 
justification,  but  afterwards  discover- 
ing such  evidence,  he  obtained  leave  to 
amend  by  adding  a  plea  of  justifica- 
tion. 

In  Peters  v.  Foss,  16  Cal.  357,  the 
trial  court  granted  a  new  trial  for  its 
own  abuse  of  discretion  in  refusing 
defendant  leave  to  amend  his  answer, 
and  the  appellate  court  affirmed  the 
decision. 

See  also  for  other  cases  where  a 
liberal  discretion  was  exercised  in 
favor  of  a  defendant.  Young  v.  Gay, 
41  La.  Ann.  758;  Wright  v.  Williams, 
5  Cow.  (N.  Y.)  501;  Bowman  v.  De 
Peyster,  2  Daly  (N.  Y.)  203;  Cayce  v. 
Ragsdale,  17  Mo.  32. 

2.  Thorn  v.  Smith,  71  Wis.  18;  Gar- 
rison V.  Goodale,  23  Oregon  307. 

3.  Seaver  v.  New  York,  7  Hun  (N. 
Y.)  331.  See  also  Capron  v.  Adams 
County,  43  Wis.  613;  Wisconsin  Cent. 
R.  Co.  V.  Lincoln  County,  57  Wis. 
137- 

18 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


independent  cause  of  action,*  the  fact  that  the  statute  of  h'mi- 
tations  has  attached  to  it  pending  the  suit  is  a  strong  reason  for 
allowing  the  amendment  instead  of  refusing  it.* 

e.  Further  Amendments. — Where  a  party  finds,  after  amend- 
ing his  pleading,  that  it  is  still  insufficient  for  his  purpose,  it  is  not 
an  abuse  of  discretion  to  permit  further  amendments  ;  '  but  as  an 
application  under  such  circumstances  savors  of  laches,  it  is  often 
denied.* 

/.  Amendment  of  Plea  in  Abatement. — It  is  not  deemed 
to  be  in  furtherance  of  justice  to  allow  a  plea  in  abatement  to  be 
amended.*     Where  matters  in  abatement  were    pleaded  at  the 


1.  The  introduction  of  an  entirely 
new  cause  of  action  by  amendment 
after  it  has  become  barred  by  the 
statute  of  limitations  is  not  usually 
deemed  to  be  in  furtherance  of  justice. 
Stevens  v.  Brooks,  23  Wis.  196;  Drake 
V.  Watson,  4  Day  (Conn.)  37.  See  also 
Eggleston  v.  Beach,  19  Civ.  Pro.  Rep. 
(N.  Y.  Supreme  Ct.)  288. 

2.  Sanger  v.  Newton,  134  Mass.  308; 
Davis  V.  Saunders,  7  Mass.  62,  a  qui 
tarn  action;  People  v.  Cook,  62  Hun 
(N.  Y.)  304;  Elting  V.  Dayton,  67  Hun 
(N.  Y.)  425,  22  N.  Y.  Supp.  154,  where 
this  consideration  in  favor  of  the 
amendment  prevailed  although  the 
plaintiff  was  not  free  from  laches; 
Risley  v.  Phcenix  Bank,  2  Hun  (N. 
Y.)  349;  Wilson  V.  Smith  (Super.  Ct.), 
39  N.  Y.  St.  Rep.  156;  Miller  v.  Wat- 
son, 6  Wend.  (N.  Y.)  506;  Dana  v. 
McClure,  39  Vt.  197;  Lottman  v.  Bar- 
nett,  62  Mo.  159;  Wood  v.  Lane,  84 
Mich.  521;  Shieffelin  v.  Whipple,  10 
Wis.  81,  where  the  trial  court  was  re- 
versed for  refusing  to  allow  the  amend- 
ment on  the  trial;  Tucker  z/.  Virginia 
City,  4  Nev.  20;  Kansas  Pac.  R.  Co. 
V.  Runkel,  17  Kan.  145;  Verdery  v. 
Barrett,  89  Ga.  349;  Rand  v.  Webber, 
64  Me.  191;  Dana  v.  McClure,  39  Vt. 
197. 

Counterclaim  Barred  by  Limitation. — 
\i  a  proposed  amendment  of  an  an- 
swer by  setting  up  a  counterclaim 
shows  that  the  latter  is  barred  by  the 
statute  of  limitations,  it  should  never- 
theless be  allowed,  for  the  plaintiff 
may  not  choose  to  plead  the  statute. 
Dudley  v.  Stiles,  32  Wis.  371. 

3.  Cleveland  v.  Cohrs,  13  S.  Car. 
397;  Detroit  Third  Nat.  Bank  v.  Reilly, 
81  Mich.  438;  Riverside  Land,  etc., 
Co.  V.  Jensen,  73  Cal.  550;  Wilbur 
V.  Abbot,  6  Fed.  Rep.  817,  where  a 
refusal  would  have  cut  off  a  part  of 
the  plaintiff's  remedy.  See  also  Frank- 


lin V.  Mackey,  16  S.  &  R.  (Pa.)  117; 
Perry  v.  Herbert,  8  Tex.  i. 

4.  Nethercott  v.  Kelly  (Super.  Ct.), 
5  N.  Y.  Supp.  259;  Bitzer  v.  Campbell, 
47  Minn.  221;  Bean  v.  Moore,  2  Chand. 
(Wis.)  44;  Jenn  v.  Spencer,  32  Tex. 
657;  Trammell  v.  Swan,  25  Tex.  473; 
Fogarty  v.  Harrigan,  28  Wis.  142. 

In  Billings  v.  Sanderson,  8  Mont. 
201,  the  defendant,  having  previously 
filed  two  amended  answers,  was  denied 
leave  to  amend  again. 

In  Sanders  v.  Wakefield,  41  Kan. 
II,  he  was  denied  leave  to  amend  a 
fourth  time. 

In  Balch  v.  Smith,  4  Wash.  497, 
the  court  refused  to  allow  plaintiff  to 
amend  a  third  time. 

6.  Trinder  v.  Durant,  5  Wend.  (N. 
Y.)  72;  Brown  v.  Nourse,  55  Me.  230; 
Getchell  v.  Boyd,  44  Me.  482;  Esdaile 
V.  Lund,  12  M.  &  W.  606,  where  Parke, 
B.,  said  that  in  case  of  a  dilatory  plea 
"  the  court  cannot  show  it  any  favor, 
and  will  not  give  the  defendant  leave 
to  amend."  See  also  Hexter  v. 
Schneider,  14  Oregon  184;  Davis  v. 
Campbell,  35  Tex.  779;  Eschbach  v. 
Bayley,  28  Md.  492;  Livengood  v. 
Shaw,  10  Mo.  273. 

Whether  a  defective  jurat  to  a  plea 
in  abatement  can  be  amended,  qucere. 
Jones  V.  Eaton,  51  Me.  386. 

Allowance  Discretionary. — It  was  held 
in  Helm  v.  Rodgers,  5  Humph.  (Tenn.) 
105,  that  the  allowance  of  an  amend- 
ment of  a  plea  in  abatement  in  matter 
of  form  does  not  exceed  the  power  of 
the  court,  and  is  therefore  not  a  sub- 
ject of  error. 

Where  Not  a  Plea  in  Abatement. — A 
plea  showing  that  a  defendant  has 
been  sued  out  of  the  county  on  process 
sent  to  his  county  is  not  a  plea  in 
abatement,  but  a  meritorious  one  to 
secure  a  substantial  right,  and  if  de- 
fective in  form  is  amendable.    Safford 


519 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


same  time  with  a  defense  in  bar,  leave  to  amend  as  to  the  matters 
in  abatement  was  denied.* 

g.  Unconscionable  Defenses — Usury  and  Limitation. 

Formerly  the  rule  was  rigorously  enforced  that  a  plea  setting  up 
what  was  denominated  an  unconscionable  defense,  such  as  usury 
or  the  statute  of  limitations,  would  not  be  allowed  as  a  matter 
of  favor  by  way  of  amendment  after  the  period  of  pleading  it  as  a 
matter  of  right  had  elapsed.*  But  this  doctrine  has  been  wholly 
abandoned  in  some  of  the  courts  where  it  was  once  upheld,^  and 


V.  Sangamo  Ins.  Co.,  88  III.  296,  prac- 
tically identical  with  Drake  v.  Drake, 
83  111.  526. 

1.  Oregon  Cent.  R.  Co.  v.  Scoggin, 
3  Oregon  161. 

2.  Usury. — Beach  v.  Fulton  Bank,  3 
Wend.  (N.  Y.)  573;  Lovett  v.  Cowman, 
6  Hill  (N.  Y.)  223;  Utica  Ins.  Co.  v. 
Scott,  6  Cow.  (N.  Y.)  606;  Bates  v. 
Voorhies,  7  How.  Pr.  (N.  Y.  Supreme 
Ct. )  234.  See  also  Smallev  v.  Doughty, 
6  Bosw.  (N.  Y.)  66. 

But  a  plea  of  usury  may  be  amended. 
Makepeace  v.  Boyd,  2  Mass.  430. 

Statute  of  Limitations. — Coit  v.  Skin- 
ner, 7  Cow.  (N.  Y.)  401;  Hallagan  v. 
Golden,  i  Wend.  (N.  Y.)  302;  Jackson 
V.  Varick,  2  Wend.  (N.  Y.)  294:  Lovett 
V.  Cowman,  6  Hill(N.  Y.)  223;  Wolcott 
V.  McFarlan,  6  Hill  (N.  Y.)  227;  Sag- 
ory  V.  New  York,  etc.,  R.  Co.,  21 
How.  Pr.  (N.  Y.  Supreme  Ct.)  455; 
Osgood  V.  Whittelsey,  20  How.  Pr. 
(N.  Y.  Supreme  Ct.)  72;  Clinton  v. 
Eddy,  37  How.  Pr.  (N.  Y.  Supreme 
Ct.)  23;  McQueen  v.  Babcock,  22  How. 
Pr.  (N.  Y.  Supreme  Ct.)  229,  3  Keyes 
(N.  Y.)428,  holding,  however,  that  it 
may  be  set  up  in  an  amendment  which 
is  filed  as  of  course;  Sheets  v.  Bald- 
win, 12  Ohio  120;  Burton  v.  Waples, 
3  Harr.  (Del.)  75;  Waples  v.  McGee,  2 
Harr.  (Del.)  444.  See  also  Stuart  v. 
Lander,  16  Cal.  372;  Cooke  v.  Spears, 
2  Cal.  409;  Plumer  v.  Clarke,  59  Wis. 
646. 

In  Marx  v.  Hilsendegen,  46  Mich. 
336,  a  refusal  to  allow  the  defendant 
to  interpose  the  statute  of  limitations 
on  the  trial  was  sustained,  the  court 
declaring  that  a  contrary  course  would 
have  been  gross  injustice. 

After  Amendment  of  Declaration. — But 
if  the  plaintiff  amends  his  declaration, 
the  defendant  may  plead  the  statute 
of  limitations.  State  v.  Green,  4  Gill 
&  J.  (Md.)  381;  Harriott  v.  Wells.  9 
Bosw.  (N.  Y.)  631. 

Where  Defendant  was  Misled. — Where 


the  plaintiff  declared  in  slander  for 
words  spoken  within  the  period  of  the 
statute  of  limitations,  but  produced 
evidence  of  words  spoken  on  a  more 
remote  date  and  barred  by  the  statute, 
it  was  held  reversible  error  not  to 
allow  the  defendant  to  file  a  plea  of 
the  statute.  Brickett  v.  Davis,  21 
Pick.  (Mass.)  404. 

Amendment  of  Plea  of  Statute. — In 
Wall  V.  Wall,  2  Har.  &  G.  (Md.)  79,  it 
was  declared  to  be  the  universal  prac- 
tice not  to  allow  a  plea  of  the  statute 
of  limitations  to  be  amended.  And 
leave  was  denied  in  Lamott  v.  Mc- 
Laughlin, 3  Har.  &  M.  (Md.)  324: 
Griffin  v.  Moore,  43  Md.  246.  See  also 
Kunkel  v.  Spooner,  9  Md.  473;  Nelson 
V.  Bond,  I  Gill  (Md.)  218. 

3.  In  New  York  it  is  now  settled, 
contrary  to  the  earlier  decisions  cited 
in  the  preceding  note,  that  in  respect 
of  the  allowance  of  amendments  all 
legal  defenses  stand  upon  an  equal 
footing,  and  no  discrimination  will  be 
made  against  those  formerly  denomi- 
nated unconscionable,  such  as  usury 
and  the  statute  of  limitations. 
Amendments  setting  up  usury  were 
allowed  in  Grant  v.  McCaughin.  4 
How.  Pr.  (N.  Y.  Supreme  Ct.)  216; 
Brown  z'.  Mitchell,  12  How.  Pr.  (N.  Y. 
Supreme   Ct.)  408;  Barnett  v.  Meyer, 

10  Hun  (N.  Y.)  log;  Catlin  v.  Gunter, 

11  N.  Y.  368.  See  also  Bank  of 
Kinderhook  v.  Gifford,  40  Barb.  (N. 
Y.)  659;  Union  Nat.  Bank  v.  Bassett,  3 
Abb.  Pr.  N.  S.  (N.  Y.  Supreme  Ct. )  359. 

Amendments  setting  up  the  statute 
of  limitations  were  allowed  in  Shel- 
don V.  Adams,  41  Barb.  (N.  Y.)  54; 
Gilchrist  v.  Gilchrist,  44  How.  Pr.  (N. 
Y.  Supreme  Ct.)  317;  Cunliff  v.  Dela- 
ware, etc..  Canal  Co.  (Supreme  Ct.), 
4  N.  Y.  St.  Rep.  775.  Compare  In  re 
Bear  (District  of  New  York).  8  Fed, 
Rep.  428.  where  the  court  appears  not 
to  have  been  advised  of  the  change 
in  the  New  York  decisions. 


520 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


at  least  ameliorated  in  other  jurisdictions.* 


1.  South  Carolina. — In  Mason  z'.  John- 
son, 13  S.  Car.  20,  the  court  referred 
with  approval  to  the  rule  now  estab- 
lished in  New  York,  and  held  that  the 
allowance  of  an  amendment  on  the 
"trial  setting  up  the  statute  of  limita- 
tions is  proper. 

In  Garlington  v.  Copeland,  32 
S.  Car.  57,  it  was  held  not  to  be  an 
abuse  of  discretion  for  the  court  to 
refuse  to  permit  an  amendment  of  the 
answer  by  pleading  the  statute  of 
limitations  after  the  case  had  been 
heard  at  length  on  the  merits. 

In  Seegers  v.  McCreery  (S.  Car., 
1894),  19  S.  E.  Rep.  636,  the  trial  court 
refused  to  allow  a  motion  to  amend  the 
answer  by  adding  the  defense  of  the 
statute  of  limitations  after  the  plain- 
tiff's evidence  had  been  closed,  and 
the  Supreme  Court  held  that  it  was  a 
matter  of  discretion  which  was  prop- 
erly exercised. 

Wisconsin.— In  Smith  v.  Dragert,  61 
Wis.  222,  the  trial  court  refused  to  al- 
low the  defendant  to  amend  by  setting 
up  the  statute  of  limitations,  reciting 
in  its  order  that  the  refusal  was  based 
upon  a  supposed  want  of  power.  The 
appellate  court  decided  that  this  was 
error,  and  remanded  the  cause  with 
directions  to  the  court  below  to  exer- 
cise its  discretion  as  it  should  see  fit. 

The  doctrine  in  Wisconsin  was  there 
summarized  as  follows:  "  The  allow- 
ance or  disallowance  of  an  amend- 
ment to  a  pleading  setting  up  a  statute 
of  limitations  or  a  plea  of  usury  rests 
in  the  sound  discretion  of  the  trial 
court,  under  all  the  circumstances  of 
the  case.  In  accordance  with  that  prin- 
ciple the  court  has  frequently  sustained 
orders  of  the  trial  court  refusing  to 
grant  such  amendment.  Fogarty  v. 
Horrigan,  2  Wis.  142;  Eldred  v.  Ocon- 
to Co.,  30  Wis.  206;  Meade  v.  Lane, 
32  Wis.  261;  Dehuel  v.  Komrow,  37 
Wis.  336;  Plumer  v.  Clarke,  59  Wis. 
646.  It  has  also  sanctioned  the  right 
of  the  trial  court  in  the  exercise  of  such 
discretion  to  grant  such  amendment. 
Newman  v.  Kershaw,  10  Wis.  340  ; 
Jones  V.  Walker,  22  Wis.  220;  Orton  v. 
Noonan,  25  Wis.  676;  Baker  v.  Colum- 
bia County,  39  Wis.  444;  Wisconsin 
Cent.  R.  Co.  v.  Lincoln  County,  57 
Wis.  137.  See  also  Morgan  z'.  Bishop, 
61  Wis.  407. 

Where  a  county  is  defendant  it  is 
reversible  error  to  refuse  to  allow  an 


amendment  of  its  answer.by  setting  up 

the  statute  of  limitations.  Capron  v. 
Adams  County,  43  Wis.  613.  See  also 
Wisconsin  Cent.  R.  Co.  v.  Lincoln 
County,  57  Wis.  137;  Baker  v.  Colum- 
bia County,  39  Wis.  444. 

In  Dole  V.  Northorp,  19  Wis.  249,  it 
was  held  that  an  amendment  should  not 
be  allowed  by  setting  up  the  defense 
of  usury  to  defeat  a  recovery  of  the 
principal  and  legal  interest,  if  under 
the  original  answer  the  court  can  do 
equity  between  the  parties  by  render- 
ing judgment  for  the  principal  and 
legal  interest,  less  the  amount  paid  as 
usurious  interest. 

California. — In  Cooker/.  Spears,  2Cal. 
409,  a  refusal  to  allow  an  amendment 
setting  up  the  statute  of  limitations 
was  held  not  an  abuse  of  discretion, 
but  the  court  said  that  it  should  be 
allowed  at  any  time  when  justice 
would  be  promoted  thereby. 

Iowa. — In  McNider  v.  Sirrine,  84 
Iowa  58,  it  was  held  that  the  statute  of 
limitations  cannot  be  set  up  by  amend- 
ment to  an  answer  after  judgment, 
unless  made  to  conform  to  the  proof; 
if  not  so  made  it  would  be  changing 
the  defense,  which  is  not  permitted 
at  that  stage. 

In  Phoenix  Ins.  Co.  v.  Dankwardt, 
47  Iowa  432,  it  was  held  that  the  al- 
lowance of  an  amendment  to  the  an- 
swer by  setting  up  the  statute  of  lim- 
itations would  not  be  reviewed  except 
for  an  abuse  of  discretion. 

Other  States. — In  Burton  v.  Rodney, 
I  Houst.  (Del.)  442,  it  was  held  that, 
upon  a  general  leave  to  amend  with- 
out qualification  after  the  cause  was  at 
issue,  the  court  would  not  on  motion 
strike  out  a  plea  of  the  statute  of 
limitations  filed  under  the  leave. 

In  People  v.  Barton  (Colo.  App., 
1894),  36  Pac.  Rep.  299,  it  was  held  re- 
versible error  to  allow  a  defendant 
without  any  showing  by  affidavit  to 
amend  a  demurrer  to  the  complaint 
by  adding  an  additional  ground  of 
demurrer  based  on  the  statute  of  lim- 
itations. 

After  a  case  has  gone  to  the  supreme 
court  on  a  plea  of  res  adjudicata  the 
lower  court  may  properly  refuse  to  al- 
low the  defendant  to  plead  the  stat- 
ute of  limitations.  Donnelly  v.  Pep- 
per, 91  Ky.  363. 

In  Mitchell  v.  Cotten,  3  Fla.  134,  the 
defendant  was  allowed  to  amend  be- 


521 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Infancy  is  not  an  unconscionable  defense,  and  may  be  set  up  by- 
amendment.* 

h.  Laches  of  Applicant. — A  party  who  has  notice  of  a  defect 
in  his  pleadings  should  move  to  amend  without  unreasonable 
delay,  otherwise  the  court  will  be  justified  in  denying  him  leave 
to  amend  on  the  ground  of  laches.* 

When  a  party  has  procrastinated  until  an  advanced  stage  of 
the  proceedings,  and  the  amendment  will  produce  much  incon- 
venience or  delay,  his  application  is  regarded  with  extreme  dis- 
favor.* 


fore  trial  by  setting  up  the  statute  of 
limitations. 

Williams  v.  Little,  il  N.  H.  576, 
shows  that  the  rule  in  New  Hamp- 
shire is  the  same  as  that  now  estab- 
lished in  Nezv  York.  See  the  preced- 
ing note. 

In  Clark  v.  Thomas,  4  Heisk  (Tenn.) 
419,  the  refusal  to  allow  a  plea  of  the 
statute  of  limitations  to  be  filed  after 
the  trial  had  commenced,  upon  affidavit 
accounting  for  the  failure  to  file  the 
plea  earlier,  but  not  verifying  the  plea, 
was  held  not  to  be  an  abuse  of  dis- 
cretion. 

1.  Rogers  v.  Wright,  21  Wis.  681. 

2.  California. — Emeric  v.  Alvarado, 
90  Cal.  484. 

New  York.  —  Eggleston  v.  Beach 
(Supreme  Ct.),  33  N.  Y.  St.  Rep.  835; 
Cocks  V.  Radford,  13  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  267;  Johnson  r/.American 
Writing  Mach.  Co.  (Super.  Ct.),  4  N. 
Y.  Supp.  391;  Hurlbut  v.  Interior 
Conduit,  etc.,  Co.  (Super.  Ct.),  28  N. 
Y.  Supp.  1007;  Archer  v.  Douglass,  i 
How.  Pr.  (N.  Y.)g3;  Johnson  v.  At- 
lantic Ave.  R.  Co.  (Supreme  Ct.),  27  N. 
Y.  Supp.  584;  Sackett  v.  Thompson,  2 
Johns.  (N.  Y.)  206;  McLean  v.  St. 
Paul,  etc.,  Ry.  Co.,  18  Abb.  N.  Cas. 
(N.  Y.  C.  Pl.)423;  Eggleston  v.  Beach, 
19  Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.) 
288;  Wooster  z/.  Bateman  (Super.  Ct.), 
25  N.  Y.  Supp.  806  ;  Sleeman  v. 
Hotchkiss  (Supreme  Ct.),  36  N.  Y.  St. 
Rep.  540;  Sheldon  v.  Adams,  41  Barb. 
(N.  Y.)  54;  Butler  v.  Farley  (Supreme 
Ct.),  17  N.  Y.  St.  Rep.  log. 

Pennsylvania. —  Perdue  v.  Taylor, 
146  Pa.  St.  163;  Gardiner  v.  Wilson,  2 
Yeates  (Pa.)  186;  Bricker  v.  Dull,  82 
Pa.  St.  328;  Campbell  v.  Gratz,  6  Binn. 
(Pa.)  114. 

Kentucky. — Cavanaugh  v.  Britt,  90 
Ky.  273;  Mudd  v.  Mudd  (Ky.,  1890), 
14  S.  W.  Rep.  355;  Persifull  v.  Boreing 
(Ky.,  1893),  22  S.  W.  Rep.  440;  Newton 
V.  Terry  (Ky.,  1892),  22  S.  VV.  Rep.  159. 


Kansas.  —  Butcher  v.  Brownsville 
Bank,  2  Kan.  70;  Baughman  v.  Hale, 
45  Kan.  453;  Kansas,  etc..  Fire  Ins. 
Co.  V.  Amick  (Kan.),  20  Pac.  Rep.  518. 

Other  States. — Kelly  v.  Kershaw,  5 
Utah,  295;  Johnson  v.  Swayze,  35  Neb. 
117;  Billings  V.  Sanderson,  8  Mont. 
201;  Penny  v.  Parham,  i  La.  Ann. 
274. 

Knowledge  of  the  defendant  is 
knowledge  of  his  counsel.  Heyler  v. 
New  York  News  Pub.  Co.  (Supreme 
Ct.),  24  N.  Y.  Supp.  499. 

In  Archer  v.  Merchants',  etc.,  Ins. 
Co.,  43  Mo.  434,  the  court  said  that 
despite  the  laches  of  the  applicant  it 
will  generally  conduce  to  substantial 
justice  to  allow  the  amendment  upon 
adequate  terms.  See  also  Pomeroy  v. 
Brown,  19  Mo.  302. 

3.  Dorster  v.  Arnold,  8  Ga.  209; 
Sharpe  v.  Dillman,  77  Ind.  281,  where 
the  application  was  made  after  trial 
and  while  the  court  was  announcing 
his  finding;  Newman  v.  Springfield 
F.  &  M.  Ins.  Co.,  17  Minn.  123;  John- 
son V.  American  Writing  Mach.  Co. 
(Super.  Ct.),  4  N.  Y.  Supp.  391;  Brusie 
V.  Peck  (Supreme  Ct.),  6  N.  Y.  St. 
Rep.  709;  Saltus  v.  Genin,  3  Bosw. 
(N.  Y.)  639,  where  the  plaintiff,  who 
was  apprised  of  the  necessity  of 
amendment  on  the  trial,  waited  more 
than  two  years  thereafter,  and  nearly 
a  year  after  a  decision  against  him  on 
appeal;  Emeric  v.  Alvarado,  go  Cal. 
484;  Hancock  v.  Hubbell,  71  Cal.  537; 
Page  V.  Williams,  54  Cal.  562,  where 
defendant  pleaded  payment,  and  more 
than  two  years  after  issue  joined 
moved  to  amend  by  alleging  want  of 
consideration;  Fisher  v.  Greene,  95 
111.  94,  where  the  defendant's  applica- 
tion came  nearly  two  years  after  the 
issues  were  made  up;  Dow  v.  Blake, 
148  III.  76,  an  application  to  file  ad- 
ditional pleas  seventeen  months  after 
issue  joined  and  only  three  days  be- 
fore trial;  Gotten  v.  Fidelity  Casualtjr 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc 

Where  the  Facts  Were  Known. — It  is  not  an  abuse  of  discretion  to 
reject  an  amendment  tendering  a  new  issue  after  the  pleadings 
have  been  made  up,  or  upon  the  trial,  where  it  appears  that  the 
facts  contained  in  the  amendment  were  known  to  the  party  when 
he  filed  the  original  pleading.* 

i.  Immaterial,  Unnecessary,  or  Unavailing  Amend- 
ments.— The  court  may  properly  refuse  to  allow  an  amendment 
which  is  immaterial,*  unnecessary,*  or  indefinite,*  or  which  will 
not  accomplish  the  purpose  for  which  it  is  intended.*     Thus,  it 


Co.,  41  Fed.  Rep.  506,  an  application 
to  amend  a  plea  on  the  trial  after  the 
evidence  was  closed;  Baughman  v. 
Hale,  45  Kan.  453,  an  application  by 
plaintiff  on  the  trial  to  amend  so  as  to 
change  the  issues;  Buno  v.  Gomer,  3 
Colo.  App.  456,  where  the  plaintiff, 
after  a  report  of  a  referee,  proposed  to 
strike  out  certain  admissions  in  his 
complaint,  the  court  declaring  that  ap- 
plication should  have  been  made  the 
instant  the  error  was  discovered;  Bit- 
terling  v.  Deshler,  160  Pa.  St.  i,  an  ap- 
plication to  amend  by  changing  the 
form  of  action  six  years  after  judg- 
ment of  nonsuit. 

1.  Cavanaugh  v.  Britt,  90  Ky.  273, 
where  the  plaintiff  sought  to  amend. 

In  the  following  cases  amendments 
to  answers  were  refused  on  the  ground 
stated.  Gotten  v.  Fidelity  Casualty 
Co.,  41  Fed.  Rep.  506;  Cocks  v.  Rad- 
ford, 13  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
207;  Johnson  v.  Atlantic  Ave.  R.  Co. 
(Supreme  Ct.),  27  N.  Y.  Supp.  587; 
Smith  V.  Equitable  Mortg.  Co.  (Su- 
preme Ct.),  26  N.  Y.  Supp.  180;  New- 
man V.  Springfield  F.  &  M.  Ins.  Co., 
17  Minn.  123  ;  Phenix  Ins.  Co.  v. 
Stocks,  149  III.  319;  Newton  v.  Terry 
(Ky.,  1892),  22  S.  W.  Rep.  159;  Lucas 
Market  Sav.  Bank  v.  Goldsoll,  8  Mo. 
App.  596;  Levvin  v.  Houston,  8  Tex. 
94;  Buddee  v.  Spangler,  12  Colo.  216; 
Holladay  v.  Elliott,  3  Oregon  340; 
Savers  v.  First  Nat.  Bank,  89  Ind. 
236. 

Contra. — In  California  the  fact  that 
new  matter  set  up  by  amendment  of 
an  answer  was  well  known  to  the  de- 
fendant when  he  filed  his  original  an- 
swer is  no  good  reason  for  denying  him 
leave  to  amend.  Pierson  v.  McCahill, 
22  Cal.  127;  Farmers'  Nat.  Gold  Bank 
V.  Stover,  60  Cal.  387;  Sharon  v. 
Sharon,  77  Cal.  102. 

2.  Levinson  v.  Schwartz,  22  Cal. 
229,  where  the  proposed  amendment 
stated    only    a     conclusion     of     law. 


Bridgeport  Sav.  Bank  v.  Randall,  15 
Wis.  541;  Baxter  v.  State,  15  Wis.  488; 
Shepard  v.  McNeil,  38  Cal.  73;  Carey 
V.  Brown,  62  Cal.  373.  Kirsch  v.  Smith, 
64  Cal.  13,  and  Aultman  v.  McLean, 
27  Iowa  129,  where  the  proposed 
amendment  of  an  answer  alleged  facts 
which  constituted  no  defense.  Toledo 
Sav.  Bank  v.  Rothman,  78  Iowa  288; 
Newman  v.  Springfield  F.  &  M.  Ins. 
Co.,  17  Minn.  123;  Steinhauser  v. 
Spraul,  114  Mo.  551;  Rio  v.  Gordon, 
14  La.  418.  See  also  Rehfuss  v. 
Gross,  108  Pa.  St.  521. 

3.  Mansfield  v.  Wilkerson,  26  Iowa 
482;  Commercial  Nat.  Bank  v.  Gibson, 
37  Neb.  750.  Edgar  v.  Stevenson,  70 
Cal.  286,  and  Phenix  Ins.  Co.  v. 
Stocks,  149  111.  319,  where  the  proof 
that  might  have  been  offered  under 
the  amendment  was  admissible  under 
the  original  pleading. 

Ineffective  Amendment. — It  is  not  er- 
ror to  refuse  to  allow  an  amendment 
of  a  demurrer  where  the  amendment 
in  legal  effect  adds  nothing  to  the  orig- 
inal. Hainer  v.  Iowa  Legion  of 
Honor,  78  Iowa  245. 

4.  Hawley  v.  Harran,  79  Wis.  379; 
Shipman  v.  State,  43  Wis.  381;  Clark- 
son  V.  Hoyt  (Cal.,  1894),  36  Pac.  Rep. 
382,  a  proposed  amendment  of  an  an- 
swer setting  up  fraud  in  general  terms. 
Harney  v.  Corcoran,  60  Cal.  314. 

5.  Peck  V.  Rees,  7  Utah  467;  Beavers 
V.  Hardie,  59  Ala.  570;  Blakemore  v. 
Wood,  3  Sneed  (Tenn.)  470;  State  v. 
Keokuk,  18  Iowa  390;  Whalley  v. 
Small,  29  Iowa  288;  Sleeman  v.  Hotch- 
kiss  (Supreme  Ct.),  37  N.  Y.  St.  Rep. 
648:  Work  V.  Rexford  (Supreme  Ct.), 
33  N.  Y.  St.  Rep.  looi,  11  N.  Y.  Supp, 
616;  Carpenter  v.  Knapp  (Supreme 
Ct.),26  N.  Y.  Supp.  436;  Musselman  v. 
Musselman,  44  Ind.  113;  Midland 
Pac.  R.  Co.  V.  McDermid,  91  111.  172. 
See  also  Wehle  v.  Koch  (Super.  Ct.), 
19  N.  Y.  Supp.  189;  Hardy  v.  Nelson, 
27  Me.  525, 


523 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 


is  not  error  to  refuse  leave  to  file  an  amendment  to  which  a 
■demurrer  would  be  sustained,*  or  to  set  up  matter  which  has 
already  been  presented  by  a  sufficient  pleading.* 

4.  Amendments  Discretionary — a.  Review  of  Discretion — 
(i)  On  What  Grouyids. — At  Common  Law  the  amendment  of  pleadings 
was  regarded  as  a  matter  so  exclusively  addressed  to  the  dis- 
cretion of  the  trial  court  that  its  allowance  or  refusal  could  not  be 
reviewed  upon  error.* 

In  Many  of  the  States  and  in  the  federal  Supreme  Court  this  rule 
still  obtains,  the  appellate  tribunal  declining  to  review  the  de- 
cision of  the  lower  court  except  where  it  was  based  solely  upon 
a  mistaken  view  as  to  its  power  to  allow  the  amendment.* 


Amendment  Contradicting  Facts.  — 
"Where  the  affidavit  in  support  of  an 
application  to  amend  shows  that  the 
■amendment  would  not  accord  with  the 
facts,  the  motion  will  be  denied.  Peo- 
ple V.  Sackett,  14  Mich.  320. 

But  where  affidavits  in  opposition  to 
<i  motion  suggest  the  falsity  of  the 
proposed  amendment,  the  court  will 
not  refuse  leave  unless  the  pleading  is 
so  clearly  sham  that  it  would  be 
stricken  out  on  motion.  Hughes  v. 
Heath,  9  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  275. 

1.  Beavers  v.  Hardie,  59  Ala.  570; 
Blakemore  v.  Wood,  3  Sneed  (Tenn.) 
470. 

Insufficient  Amendment. — In  no  case 
should  a  party  be  permitted  to  file  an 
insufficient  plea.  Pennington  v.  Ware, 
16  Ark.  120.  But  it  was  said  in  Camp- 
bell V.  Campbell,  23  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  187,  that  the  court 
>^ill  not,  as  a  general  rule,  undertake 
to  determine,  upon  an  application 
for  leave  to  amend,  whether  the  pro- 
posed amendment  sets  forth  a  cause 
of  action  or  defense  which  can  be 
finally  maintained,  unless  it  can  be 
made  to  appear  conclusively  that  the 
amendment,  if  granted,  could  be  of  no 
possible  avail  to  the  party  making  it. 

Making  Original  Pleading  Defective. — 
An  amendment  to  a  declaration  will 
not  be  allowed  when  it  would  leave 
the  declaration  defective  on  its  face. 
Oilman  v.  Meredith  School  Dist.,  18 
N.  H.  215. 

2.  Commercial  Nat.  Bank  v.  Gibson, 
37  Neb.  750;  Dorn  v.  Baker,  96  Cal. 
206;  Heilbron  v.  Kings  River,  etc.. 
Canal  Co.,  76  Cal.  Ii;  Hurlbut  v.  In- 
terior Conduit,  etc.,  Co.  (Super.  Ct.), 
23  N.  Y.  Supp.  1007;  Mayer  v.  Wood- 
bury, 14  Iowa  57;  Harvey  v.  Spaulding, 
7  Iowa  423;  Robinson  v.  Erickson,  25 


Iowa  85;  Brown  v.  Ellis,  26  Iowa  85; 
Smith  'v.  Fellows,  58  Ala.  467;  Rawle 
V.  Skipwith,  8  Martin  N.  S.  (La.)  407. 
See  also  Jones  v.  Ritter,  56  Ala.  270. 

3.  Burk  V.  Huber,  2  Watts  (Pa.) 306; 
Davis  V.  Church,  i  W.  &  S.  (Pa.)  240; 
Clymer  v.  Thomas,  7  S.  &  R.  (Pa.) 
178;  Smith  V.  Kessler,  44  Pa.  St.  142; 
Ordroneaux  v.  Prady,  6  S.  &  R.  (Pa.) 
510;  Caldwell  v.  Remington,  2  Whart. 
(Pa.)  132;  Tryon  v.  Miller,  i  Whart. 
(Pa.)  11;  Sweigart  z*.  Lowmarter,  14 S. 
&R.  (Pa.)20o;  Bowman  i'.  De  Peyster, 
2  Daly  (N.Y.)  205,  «V?w^  Hart  v.  Seixas, 
21  Wend.  (N.  Y.)  51;  Cooper  v.  Bissell, 
15  Johns.  (N.Y.)3i9;  Travis  v.  Waters, 
12  Johns.  (N.  Y.)  506;  Clason  v.  Shot- 
well,  12  Johns.  (N.  Y.)  31;  Chichester 
V.  Cande,  3  Cow.  (N.  Y.)  44,  note; 
Mandeville  v.  Wilson,  5  Cranch  (U.S.), 
15;  Chirac  v.  Reinicker,  11  Wheat. 
(U.  S.)  280;  Mellish  v.  Richardson, 
9  Bing.  125.  See  also  Price  v.  New 
Jersey  R.,  etc.,  Co.,  31  N.  J.  L.  236; 
Syme  v.  Jude,  3  Call  (Va.)  522;  Helm 
V.  Rodgers,  5  Humph.  (Tenn.)  105; 
Neal  V.  Spooner,  20  Fla.  38;  Planters' 
&  Merchants'  Bank  v.  Willis,  5  Ala. 
770;  Holloway  v.  Lowe,  i  Ala.  246; 
W^atkins  v,  Canterberry,  4  Port.  (Ala.) 
415;  and  the  early  Il/itiois  cases  cited 
in  the  next  note  but  one. 

The  English  statute  3  &  4  Will.  IV. 
c.  42,  §  23,  authorizing  amendments  to 
avoid  a  variance,  expressly  permits  an 
application  for  a  new  trial  in  case  the 
amendment  is  allowed.  But  if  the 
amendment  is  denied,  it  has  been  held 
that  the  decision  is  not  subject  to  re- 
view. Doe  V.  Errington,  i  Ad.  &  El. 
750,  28  E.  C.  L.  199.  See  Wilkin  v. 
Reed,  15  C.  B.  192. 

4.  United  States. — Chapman  v.  Bar- 
ney, 129  U.  S.  677;  Marine  Ins.  Co.  v. 
Hodgson,  6  Cranch  (U.  S.)2o6;  Chirac 
V.  Reinicker,   11  Wheat.  (U.  S.)  280; 


524 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


In  Other   States,  especially   where    the    Code    system    has    been 


L 


U.  S.  V.  Buford,  3  Pet.  (U.  S.)  12; 
McGlinchy  v.  United  States,  4  Cliff. 
(U.S.)  312;  Walden  z/.  Craig,  9  Wheat. 
(U.  S.)  576;  Smith  V.  Vaughan,  10  Pet. 
(U.  S.)  366.  Compare  the  remarks  of 
Chief  Justice  Marshall  in  Mandeville 
V.  Wilson,  5  Cranch  (U.  S.)  15,  and  of 
McCormick,  C.J.,  in  Maddox  v.  Thorn, 
60  Fed.  Rep.  220.  See  also  Watts  v. 
Weston,  62  Fed.  Rep.  136. 

Connecticut . —^\^xx'\^v[\  v.  Langdon, 
10  Conn.  460;  Taylor  v.  Keeler,  51 
Conn.  397  ;  McAllister  v.  Clark,  33 
Conn.  253. 

Delaware. — Thompson  v.  Thomp- 
son, 6  Houst.  (Del.)  225;  Vandergrift 
V.  HoUis,  6  Houst.  (Del.)  90. 

Maine. — Oilman  v.  Emery,  54  Me. 
460;  Moor  V.  Shaw,  47  Me.  88;  Wight 
V.  Stiles,  29  Me.  164;  Wyman  v.  Door, 
3  Me.  183;  Clapp  V.  Blach,  3  Me.  216; 
Foster  £».  Haines,  13  Me.  307;  Simpson 
V.  Norton,  45  Me.  281;  Ayer  v.  Glea- 
son,  60  Me.  207;  Cameron  v.  Tyler,  71 
Me.  27;  Solon  v.  Perry,  54  Me.  493; 
Rowell  V.  Small,  30  Me.  30. 

Maryland. — Scarlett  v.  Academy  of 
Music,  43  Md.  203;  Calvert  v.  Carter, 
18  Md.  108;  Warren  v.  Twilley,  10  Md. 
46;  Thomas  v.  Doub,  i  Md.  324;  Elli- 
cott  V.  Eustace,  6  Md.  506;  Staley  v. 
Thomas,  68  Md.  439.  See  Gordon  v. 
Downey,  i  Gill  (Md.)  41  ;  Dyson  v. 
West,  I  Har.  &  J.  (Md.)  567. 

Massachusetts. — The  later  cases  de- 
clare the  rule  to  be  that  if  it  is  within 
the  power  of  the  court  to  allow  an 
amendment  it  is  within  its  discretion 
to  deny,  and  that  no  exception  lies  to 
the  exercise  of  discretion.  Barlow  v. 
Nelson,  157  Mass.  395;  Church  v. 
Phillips,  157  Mass.  566 ;  Terry  v. 
Brightman,  133  Mass.  536  ;  Ford  v. 
Ford,  104  Mass.  198;  George  v.  Reed, 
loi  Mass.  378;  Sheldon  v.  Smith,  97 
Mass.  36;  Hutchinson  v.  Tucker,  124 
Mass.  240;  Richmond  Iron  Works  v. 
Woodruff,  8  Gray  (Mass.)  447;  Augur 
Steel  Axle,  etc.,  Co.  v.  Whittier,  117 
Mass.  451  ;  Looney  v.  Looney,  116 
Mass.  283;  Payson  v.  Macomber,  3 
Allen  (Mass.  )  69  ;  Gwynn  v.  Globe 
Locomotive  Works,  5  Allen  (Mass.) 
317;  Lang  V.  Bunker,  6  Allen  (Mass.) 
61;  Ham  V.  Kerwin,  146  Mass.  378; 
Wood  V.  West  Boston,  etc..  Bridges, 
122  Mass.  394.  Compare  the  following 
earlier  cases  :  Slater  v.  Nason,  15 
Pick.  (Mass.)  345;  Brickett  v.  Davis, 
21  Pick.  (Mass.) 404;  Dodge  z/.Tileston, 


12  Pick.  (Mass.)328;  Kincaid  v.  Howe, 
ID  Mass.  203;  Perkins  v.  Burbank,  2 
Mass.  81. 

New  Hampshire. — Gagnon  v.  Con- 
nor, 64  N.  H.  276;  Morse  v.  Whitcher, 
64  N.  H.  591;  Sawyer  v.  Keene,  47  N. 
H.  173.  See  also  Perley  v.  Brown,  12 
N.  H.  493. 

New  Jersey. — U.  S.  Watch  Co.  v. 
Learned,  36  N.  J.  L.  429,  where  the 
amendment  was  allowed.  See  Hobo- 
ken  V.  Gear,  27  N.  J.  L.  265;  Price  v. 
New  Jersey  R.,  etc.,  Co.,  31  N.  J.  L. 
229;  Crawford  v.  New  Jersey  R.  Co., 
28  N.  J.  L.  479;  Joslin  V.  New  Jersey 
Car  Spring  Co.,  36  N.  J.  L.  141;  Bruch 
V.  Carter,  32  N.  J.  L.  554. 

New  York. — In  Davis  v.  New  York, 
etc.,  R.  Co.,  no  N.  Y.  646,  14  N.  Y. 
St.  Rep. I,  the  court  said:  "As  the  court 
had  power  in  the  exercise  of  its  dis- 
cretion to  allow  this  amendment,  we 
have  no  jurisdiction  to  review  its  dis- 
cretion." See  also,  to  the  same  effect. 
Reed  v.  New  York,  97  N.  Y.  620; 
Holyoke  v.  Adams,  50  N.  Y.  233; 
Thompson  v.  Kessel,  30  N.  Y.  383; 
Classon  v.  Cooley,  8  N.  Y.  426;  Free- 
man V.  Grant,  132  N.  Y.  22;  Coffin  v. 
Grand  Rapids  Hydraulic  Co.,  136  N. 
Y.  655;  Richtmyer  v.  Remsen,  38  N. 
Y.  206;  Phoenix  Warehousing  Co.  v. 
Badger,  67  N.  Y.  294;  Quimby  z/.  Claf- 
lin,  77  N.  Y.  270;  Riggs  v.  Waydell, 
78  N.  Y.  586;  Hatch  v.  Central  Nat. 
Bank,  78  N.  Y.  487;  Fisher  v.  Gould, 
81  N.  Y.  228;  Price  v.  Brown,  98  N. 
Y.  388;  White  V.  Stevenson,  4  Den. 
(N.  Y.)  193;  Robbins  v.  Richardson, 
2  Bosw.  (N.  Y.)  248. 

In  the  inferior  or  intermediate  courts 
of  New  York  possessing  appellate  ju- 
risdiction the  exercise  of  discretion  is 
a  subject  of  review.  Ansonia  Brass, 
etc.,  Co.  V.  Gerlach  (C.  PI.),  28  N.  Y. 
Supp.  5^0;  Brady  v.  Cassidy  (C.  PI.), 
37  N.  Y.  St.  Rep.  501;  Miner  v.  Baron 
(Supreme  Ct.),  39  N.  Y.  St.  Rep.  893; 
Cumber  z'.  Schoenfeld,  16  Daly(N.  Y.) 
454;  Baldwin  v.  New  York,  etc.,  Nav. 
Co.,  4  Daly  (N.  Y.)  314;  Seaver  v.  New 
York,  7  Hun  (N.  Y.)  331;  Burnap  v. 
Halloran,  i  Code  Rep.  (N.  Y.)  51; 
Heyler  v.  New  York  News  Pub.  Co. 
(Supreme  Ct.),  24  N.  Y.  Supp.  499; 
Smith  V.  Equitable  Mort.  Co.  (Supreme 
Ct.),  26  N.  Y.  Supp.  180:  Newerf  v. 
Jebb  (Supreme  Ct.),  6  N.  Y.  Supp.  581; 
Elting  V.  Dayton,  67  Hun  (N.  Y.)  425; 
Buck  V.  Barker  (Super.   Ct.),  5  N.  Y. 


525 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


adopted,  decisions  granting  or  refusing  leave  to  amend  are  sub- 


St.  Rep.  826;  Powers  z'.  Fox  (City  Ct.), 

11  N.  Y.  St.  Rep.  651  ;  Benson  v. 
McNamee  (Supreme  Ct.),  12  N.  Y.  St. 
Rep.  503;  Pracht  v.  Ritter,  48  N.  Y. 
Super.  Ct.  509;  Coates  v.  Donnell,  48 
N.  Y.  Super.  Ct.  46;  Tovey  v.  Culver, 
54  N.  Y.  Super.  Ct.  404;  Sheldon  v. 
Adams,  41  Barb.  (N.  Y.)  54;  Harring- 
ton V.  Slade,  22  Barb.  (N.  Y.)  161; 
Bailey  v.  Kay,  50  Barb.  (N.  Y.)  no; 
New  V.  Aland,  62  How.  Pr.  (N.  Y. 
Supreme  Ct.)  185 ;  Johnson  j/.  American 
Writing  Mach.  Co.  (Super.  Ct.),  4  N. 
Y.  Supp.  391;  Page  v.  Voorhies  (City 
Ct.),  16  N.  Y.  Supp.  loi;  Bradley  v. 
Shafer  (Supreme  Ct.),  19  N.  Y.  Supp. 
640;  Wilson  V.  Spafford  (Supreme  Ct.), 
32  N.  Y.  St.  Rep.  532;  Work  v.  Rex- 
ford  (Supreme  Ct.),  33  N.  Y.  St.  Rep. 
looi;  Sleeman  v.  Hotchkiss  (Supreme 
Ct.),  36  N.  Y.  St.  Rep.  540.  Com- 
pare  Tighe  V.   Pope,   16  Hun  (N.   Y.) 

180;  Rosenwald  v.  Hammerstein,  12 
Daly  (N.  Y.)  377;  Phincle  v.  Vaughan, 

12  Barb.  (N.  Y.)  215;  Nethercott  v. 
Kelly  (Super.  Ct.),  5  N.  Y.  Supp.  259; 
McElwain  r.  Corning,  12  Abb.  Pr.  (N. 
Y.  Super.  Ct.)  16  ;  Bowman  v.  De  Pey- 
ster,  2  Daly  (N.  Y.)  203;  Johnson  v. 
Brown,  57  Barb.  (N.  Y.)  118;  Rich- 
mond V.  Second  Ave.  R.  Co.  (Super. 
Ct.).  29  N.  Y.  Supp.  588. 

Pennsylvania.  —  Under  the  act  of 
1806  certain  amendments  were  a  mat- 
ter of  right,  and  refusal  to  allow  them 
was  a  subject  of  error.  Sweigart  v. 
Lowmarter,  14  S.  &  R.  (Pa.)  200;  Me- 
chanics', etc.,  Ins.  Co.  v.  Spang,  5  Pa. 
St.  113;  Young  V.  Com.,  6  Binn.  (Pa.) 
S8;  Com.  v.  Mecklin,  2  Watts  (Pa.) 
130;  Yost  V.  Eby,  23  Pa.  St.  327; 
Megargell  v.  Hazleton  Coal  Co.,  8  W. 
&  S.  (Pa.)  342;  Newlin  v.  Palmer,  11 
S.  &  R.  (Pa.)  98;  Rahauser  v.  Schwer- 
gerbarth,  3  Watts  (Pa.)  28;  Mans  v. 
Montgomery,  10  S.  &  R.  (Pa.)  192; 
Stewart  v.  Kelly,  16  Pa.  St.  160;  Sharp 
V.  Sharp,  13  S.  &  R.  (Pa.)  444;  Johns 
V.  Bolton,  12  Pa.  St.  339;  Hartman  v. 
Keystone  Ins.  Co.,  21  Pa.  St.  466; 
Smith  V.  Kessler,  44  Pa.  St.  142.  Com- 
pare Fox  V.  Foster,  4  Pa.  St.  119;  Wag- 
goner V.  Line,  3  Binn.  (Pa.)  589. 

But  amendments  not  provided  for 
by  that  act  were  subject  to  the  com- 
mon-law rule.  The  cases  are  cited  in 
the  preceding  note. 

By  the  acts  of  April  16,  1846;  May  4, 
1852,  and  April  12,  1858,  it  is  the  abso- 
lute right  of  parties  to  strike  the  names 


of  either  plaintiffs  or  defendants  where 
there  is  an  allegation  of  mistake  either 
in  fact  or  law.  Cochran  v.  Arnold,  58 
Pa.  St.  399;  Patton  v.  Pittsburgh,  etc., 
R.  Co.,  96  Pa.  St.  169. 

In  other  respects,  amendments  are 
now  regarded  as  discretionary  and 
subject  to  review  in  case  of  abuse. 
Battles  V.  Sliney,  126  Pa.  St.  460;  Her- 
man V.  Rinker,  106  Pa.  St.  121;  Bricker 
V.  Dull,  82  Pa.  St.  328;  Robeson  v. 
Whiteside,  16  S.  &  R.  (Pa.)  320;  Kel- 
\o%v.  Gilfillan(Pa.,  1887),  10  Atl.  Rep. 
888;  Perdue  v.  Taylor,  146  Pa.  St. 
163;  Leeds  v.  Lock  wood,  84  Pa.  St. 
70;  Heller  v.  Royal  Ins.  Co.,  151  Pa. 
St.  loi;  Melvin  v.  Melvin,  130  Pa.  St. 
6 ;  Magill's  Appeal,  59  Pa.  St.  430; 
Scott  V.  Kittanning  Coal  Co.,  89  Pa. 
St.  231;  Young  V.  Young,  88  Pa.  St. 
422. 

Vermont.  —  Callender  v.  Sweat,  14 
Vt.  160;  Montgomery  v.  Maynard,  33 
Vt.  450;  Waterman  v.  Hall,  17  Vt. 
128  ;  Harris  v.  Belden,  48  Vt.  478; 
Bates  V.  Cilley,  47  Vt.  i;  Lippett  v. 
Helley.  46  Vt.  516. 

Florida. — In  Florida  the  act  of  Jan. 
7,  1853,  makes  any  order  refusing  to 
allow  an  amendment  reviewable  by 
the  Supreme  Court.  Robinson  v.  Hart- 
ridge,  13  Fla.  501.  But  where  an 
amendment  is  allowed,  the  court  leans 
toward  the  English  rule,  which  pre- 
cludes any  review.  Neal  v.  Spooner, 
20  Fla.  38. 

North  Carolina. — In  North  Carolina 
the  exercise  of  discretion  is  not  re- 
viewed unless  a  substantial  right  is 
impaired,  which  usually  occurs  only 
when  there  is  an  absence  of  power. 
Murphy  v.  Gibbs  (N.  Car.,  1890),  12 
S.  E.  Rep.  272;  State  v.  Roseman,  72 
N.  Car.  427;  Alamance  Co.  v.  Blair, 
76  N.  Car.  136;  Bushee  v.  Surles,  79 
N.  Car.  51;  Henry  «».  Cannon,  86  N. 
Car.  24;  Gilchrist  v.  Kitchen,  86  N. 
Car.  20;  Wiggins  v.  McCoy,  87  N.  Car. 
499;  Loftin  V.  Rouse,  94  N.  Car.  50S; 
Jarrett  v.  Gibbs,  107  N.  Car.  303  , 
Sinclair  v.  Western  N.  Car.  R.  Co., 
Ill  N.  Car.  507;  Hunt  v.  Crowell,  2 
Murph.  (N.  Car.)  424;  Biggs  v.  Will- 
iams, 66  N.  Car.  427;  Quiett  v.  Boon, 
5  Ired.  (N.  Car.)  9;  Anders  v.  Mer- 
redith,  4  Dev.  &  B.  (N.  Car.)  199;  Gill 
V.  Young,  88  N.  Car.  58;  Austin  v. 
Clark,  70  N.  Car.  458;  Henderson  v. 
Graham,  84  N.  Car.  496;  Warden  ». 
McKinnon,  99  N.  Car.  251. 

26 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


ject  to  review,  but  will  be  sustained  unless  there  appears  to  have 
been  a  palpable  abuse  of  discretion  under  all  the  circumstances.* 


According  to  the  earlier  cases  the 
review  was  certainly  confined  to  ques- 
tion of  power.  Pendleton  v.  Pendle- 
ton, 2  Jones  (N.  Car.)  L.  135;  Ingram 
V.  McMorris,  2  Jones  (N.  Car.)  L.  450. 

South  Carolina. — In  South  Carolina 
the  rule  seems  to  be  the  same  as  in 
North  Carolina,  supra.  Zimmerman  v. 
Amaker,  10  S.  Car.  98 ;  Suber  v.  Chand- 
ler, 28  S.  Car.  382;  Garlington  v. 
Copeland,  32  S.  Car.  601;  Richardson 
V.  Wallace,  39  S.  Car.  216;  Seegers  v. 
McCreery  (S.  Car.,  1894),  19  S.  E.  Rep. 
696;  Sibley  v.  Young,  26  S.  Car.  415; 
Mcknight  V.  Cooper,  27  S.  Car.  92; 
Trumbo  v.  Finley,  18  S.  Car.  305; 
McCaslan  v.  Latimer,  17  S.  Car.  123; 
Mason  v.  Johnson,  13  S.  Car.  20;  Chi- 
chester V.  Hastie,  9  S.  Car.  330.  See 
Mobley  v.  Mobley,  7  Rich.  (S.  Car.) 
431;  Lilly  V.  Charlotte,  etc.,  R.  Co., 
32  S.  Car.  142;  Munroe  v.  Williams, 
35  S.  Car.  572. 

1.  Arkansas. — Mohr  v.  Sherman,  25 
Ark.  7;  King  v.  Caldwell,  26  Ark.  405; 
McMurray  v.  Boyd,  58  Ark.  504;  At- 
kinson V.  Cox,  54  Ark.  444;  McFadden 
V.  Stark,  58  Ark.  7;  Ford  v.  Ward,  26 
Ark.  360. 

California. — Wixon  v.  Devine,  91 
Cal.  477;  Fitzgerald  v.  Neustadt,  91 
Cal.  600;  Jackson  v.  Jackson,  94  Cal. 
446;  Sharon  v.  Sharon,  77  Cal.  102; 
Coubrough  v.  Adams,  70  Cal.  374; 
Stringer  v.  Davis,  30  Cal.  322;  Latti- 
mer  v.  Ryan,  20  Cal.  628;  Irwin  z/.  Mc- 
Dowell (Cal.,  1893),  34  Pac.  Rep.  708; 
Farmers'  Nat.  Gold  Bank  v.  Stover,  60 
Cal.  387;  Sweeney  v.  Stanford,  60  Cal. 
362;  Gillan  v.  Hutchinson,  16  Cal.  154; 
D  jrn  V.  Baker,  96  Cal.  206;  Robinson 
V.  Smith,  14  Cal.  254;  Canfield  v. 
Bates,  13  Cal.  606;  Arrington  v.  Tup- 
per,  10  Cal.  464;  Butler  v.  King,  10 
Cal.  342;  Heilboon  v.  Kings  River, 
etc.,  Canal  Co.,  76  Cal.  11;  Swain  v. 
Burnett,  76  Cal.  299;  Riverside  Land, 
etc.,  Co.  V.  Jensen,  73  Cal.  550;  Harney 
7.  Corcoran,  60  Cal.  314;  Lower  Kings 
River  Water  Ditch  Co.  v.  Kings 
River,  etc..  Canal  Co.,  67  Cal.  577; 
Carey  z/.  Brown,  62  Cal.  373;  Martin  v. 
Thompson,  62  Cal.  618;  Kirsch  v. 
Smith,  64  Cal.  13;  Shepard  v.  McNeil, 
38  Cal.  73;  Edgar  v.  Stevenson,  70  Cal. 
286;  Bradley  v.  Parker  (Cal.,  1893),  34 
Pac.  Rep.  234;  Drew  v.  Hicks  (Cal., 
1894),  35  Pac.  Rep.  563:  Duff  v.  Duff, 
loi  Cal.   i;   Clarkson   v.    Hoyt   (Cal. 


1894),  36  Pac.  Rep.  382  ;  Smith  v. 
Yreka  Water  Co.,  14  Cal.  201;  Lestrade 
V.  Barth,  17  Cal.  285;  Peters  v.  Foss, 
16  Cal.  357;  Pierson  v.  McCahill,  22 
Cal.  127;  Levinson  v.  Schwartz,  22  Cal. 
229;  Cooke  V.  Spears,  2  Cal.  409;  Ne- 
vada County,  etc..  Canal  Co.  v.  Kidd, 
37  Cal.  282;  Stearns  v.  Martin,  4  Cal. 
227;  Jessup  V.  King,  4  Cal,  331;  Smith 
V.  Dorn,  96  Cal.  73;  Southern  Pac.  R. 
Co.  V.  Purcell,  77  Cal.  69;  Bulwer  Con- 
solidated Min.  Co.  V.  Standard  Con- 
solidated Min.  Co.,  83  Cal.  613  ; 
Chatfield  v.  Williams,  85  Cal.  518  ; 
McPherson  v.  Weston,  85  Cal.  90; 
Beronio  v.  Southern  Pac.  R.  Co.,  86 
Cal.  415;  Buckley  z/.  Howe,  86  Cal.  596; 
Shadburne  v.  Daly,  76  Cal.  355;  Cain 
V.  Cody  (Cal.,  1892),  29  Pac.  Rep.  778; 
Cheney  v.  O'Brien,  69  Cal.  199;  Schil- 
ling V.  Holmes,  23  Cal.  232;  Gluckauf 
V.  Bliven,  23  Cal.  314;  /«  re  Hidden's 
Estate,  »3  Cal.  362;  Gavitt  v.  Doub,  23 
Cal.  79;  Ferrer  v.  Home  Mut.  Ins.  Co., 
47  Cal.  416. 

Colorado. — Cooper  v.  Wood,  i  Colo. 
App.  loi;  Sylvester  v.  Jerome  (Colo., 
1893),  34  Pac.  Rep.  760;  Patrick  v. 
Crowe,  15  Colo;  543;  Buddee  v.  Spang- 
ler,  12  Colo.  216;  Weese  v.  Barker,  7 
Colo.  178  ;  Brown  v.  Nachtrieb,  6 
Colo.  517;  Dyer  v.  McPhee,  6  Colo. 
174;  Cooper  V.  McKeen,  11  Colo.  41; 
Sears  v.  Collins,  5  Colo.  492;  Tribune 
Pub.  Co.  V.  Hamill,  2  Colo,  App.  237; 
Barton  v.  Laws  (Colo.  App.,  1894),  35 
Pac.  Rep.  284;  Buno  v.  Gomer,  3  Colo. 
App.  456. 

Illinois. — Phenix  Ins.  Co.  v.  Stocks, 
149  111.  319;  Carlyle  v.  Carlyle  Water, 
etc.,  Co.,  140  111.  445;  Chandler  v. 
Frost,  88  111.  559;  Dow  v.  Blake,  148 
111.  76.  See  also  Chicago,  etc.,  R. 
Co.  V.  Goyette,  133  111.  219.  The 
earlier  cases  held  that  the  exercise  of 
discretion  could  not  be  reviewed.  Lan- 
sing V.  Birge,  3  111.  375;  Warren  v. 
McHatton,  3  111.  32;  Phillips  v.  Dana, 
2  111.  498;  Ballance  v.  Curtenius,  8  111, 
449. 

Idaho. — Palmer  z/.  Utah,  etc.,  R.  Co., 
2  Idaho  350. 

Indiana. — Lindley  v.  Sullivan,  133 
Ind.  588:  Peigh  v.  Huffman,  6  Ind. 
App.  658  ;  Bever  v.  North,  107  Ind. 
544;  Dewey  v.  State,  91  Ind.  173; 
Levy  V.  Chittenden,  120  Ind.  37; 
Hay  V.  State,  58  Ind.  337  ;  Judd 
:■.    Small,    107    Ind.    398;    McKeen    v. 


527 


Of  Pleadings,  etc.,  at  AM  EN  DM  EN  TS.   Common  Law,  under  Codes,  etc. 

Construction  of  Statute. — A   statute    authorizing   amendments   by 
either  party  of  course,  at  any  time  before  the  pleading  is  answered, 

Porter,  134  Ind,  483  ;  Stanton  v.  650;  Nelson  v.  Hays,  75  Iowa  671; 
Kevvrick  (Ind.,  1893),  35  N.  E.  Rep.  George  v.  Swafford,  75  Iowa  491; 
19;  Grand  Rapids,  etc.,  R.  Co.  v.  Elli-  Eslich  v.  Mason  City,  etc.,  R.  Co.,  75 
son  (Ind.,  1888),  18  N.  E.  Rep.  507;  Iowa  443;  Crismon  v.  Deck,  84  Iowa 
Burns  v.  Fox,  113  Ind.  205;  Nyse-  344;  Schoenhofen  Brewing  Co.  ^.  Arm- 
wander  V.  Lowman,  124  Ind.  584;  strong  (Iowa,  1S94),  57  N.  W.  Rep.  436; 
Hoffman  z'.  Rothenberger,  82  Ind.  474;  Bunyan  v.  Loftus  (Iowa,  1894),  57 
Martinsville  v.  Shirley,  84  Ind.  546;  N.  W.  Rep.  685;  Aultman  v.  Shelton 
Shropshire  v.  Kennedy,  84  Ind.  iii;  (Iowa,  1894),  57  N.  W.  Rep.  857. 
Lewark  v.  Carter,  117  Ind.  206;  Louis-  Kansas. — Taylor  v.  Clendening,  4 
ville,  etc.,  R.  (Zo.v.  Hubbard,  116  Ind.  Kan.  524;  Kansas  Pac.  R.  Co.  v. 
193;  Meyer  v.  State,  125  Ind.  335;  Kunkel,  17  Kan.  145  ;  Wright  v. 
Child  V.  Swain,  69  Ind.  230;  Wayne  Bacheller,  16  Kan.  259;  Kansas  Farm- 
County  Turnpike  Co.  v.  Berry,  5  Ind.  ers'  Mut.  F.  Ins.  Co.  v.  Amick,  37 
286;  Gaff  V.  Hutchinson,  38  Ind.  341;  Kan.  73;  Smith  v.  Smith,  22  Kan.  699; 
Koons  V.  Price,  40  Ind.  164;  Shaw  v.  Missouri  Pac.  R.  Co.  v.  McCally,  41 
Binkard,  10  Ind.  227;  Voltz  v.  New-  Kan.  639;  Harper  v.  Hendricks,  49 
bert,  17  Ind.  187;  Burns  v.  Simmons,  Kan.  718;  Stith  v.  Fullinwider,  40 
loi  Ind.  557;  Maxwell  v.  Day,  45  Ind.  Kan.  73;  Byington  v.  Saline  County, 
509;  Burr  V.  Mendenhall,  49  Ind.  496;  37  Kan.  654;  Leroy,  etc.  R.  Co.  v. 
Chicago,  etc.,  R.  Co.  v.  Jones,  103  Small,  46  Kan.  300;  Baughman  v. 
Ind.  386;  Rettig  v.  Newman,  99  Ind.  Hale,  45  Kan.  453;  Gaylord  v.  Steb- 
424;  Daggett  V.  Flanagan,  78  Ind.  253;  bins,  4  Kan.  42;  Hanlin  v.  Baxter,  20 
Duncan  v.  Cravens,  55  Ind.  525;  Spath  Kan.  134;  Rogers  v.  Hodgson,  46  Kan. 
V.  Hankins,  55  Ind.  155  ;  City  of  276;  Davis  v.  Wilson,  11  Kan.  74; 
Aurora  v.  Cobb,  21  Ind.  492;  Adams  Wilson  z/.  Phillips,  8  Kan.  211;  Hodges 
V.  Main,  3  Ind.  App.  232  ;  Sand-  v.  Farnham,  49  Kan.  777;  Brenner  v. 
ford  Tool,  etc.,  Co.  v.  Muller,  i  Ind.  Luth,  28  Kan.  581;  Perry  v.  Jones,  18 
App.  204;  Shelby  County  z'.  Castetter,  Kan.  552;  Hobson  v.  Ogden,  16  Kan. 
7  Ind.  App.  309.  388;    Kunz    v.    Grund,    12    Kan,    547; 

Iowa. — Harkins  v.  Edwards,  i  Iowa  Prater  v.  Snead,  12  Kan.  447. 
296;  Logan  V.  Tibbott,  4  Greene  Kentucky.  —  Donnelly  v.  Pepper, 
(Iowa)  389;  Wilson  v.  Johnson,  i  91  Ky.  363;  Downing  z^.  Bacon,  7  Bush 
Greene  (Iowa)  147;  Wyland  z-.  Mendel,  (Ky.)  680;  Hubble  v.  Murphy,  i  Duv. 
78  Iowa  739;  Marling  v.  Burlington,  (Ky.)  278;  Kearney  v.  Covington,  i 
etc.,  R.  Co.,  67  Iowa  331;  Harrington  Mete.  (Ky.)  339;  Thomas  v.  See,  8  B. 
V.  Christie,  47  Iowa  319;  Phillips  v.  Mon.  (Ky.)  5;  Lane  v.  Traders'  De- 
Van  Schaick,  37  Iowa  229;  Packard  v.  posit  Bank  (Ky.,  1893),  21  S,  W.  Rep. 
Snell,  35  Iowa  80;  Smith  v.  Howard,  750;  Cavanaugh  v.  Britt,  90  Ky.  273; 
28  Iowa  51;  Bates  v.  Bates,  27  Iowa  Mudd  v.  Mudd  (Ky.,  1890),  14  S.  W. 
no;  Brockman  v.  Berryhill,  16  Iowa  Rep.  355;  Greer  v.  Covington  (Ky., 
183;  Hall  z/.  Doran,  6  Iowa433;  Fulmer  1885),  2  S.  W.  Rep.  323;  Palmer  v. 
V.  Fulmer,  22  Iowa  230;  Mansfield  v.  Hamilton  (Ky.,  1894),  24  S.  W.  Rep. 
Wilkerson,  26  Iowa  482;  Aultman  v.  613;  Greer  v.  Louisville,  etc.,  R.  Co. 
McLean,  27  Iowa  129;  Pride  v.  Worm-  (Ky.,  1893),  21  S.  W.  Rep,  649;  Stone 
wood,  27  Iowa  257;  Mayer  v.  Wood-  v.  Mattingly  (Ky.,  1892),  19  S.  W. 
bury,  14  Iowa  57;  Dunton  v.  Thoring-  Rep.  402;  Louisville  Underwriters  v. 
ton,  15  Iowa  217  ;  Brockman  v.  Pence  (Ky.,  1892),  19  S.  W.  Rep.  10; 
Berryhill,  16  Iowa  183;  Hatfield  v.  Persifull  v.  Boreing  (Ky.,  1893),  22 
Gano,  15  Iowa  177;  State  v.  Keokuk,  S.  W.  Rep.  440;  Owensboro,  etc.,  R. 
18  Iowa,  390;  Hainer  v.  Iowa  Legion  Co.  v.  Harrison  (Ky.,  1893),  22  S.  W. 
of  Honor,  78  Iowa  245;  Harvey  v.  Rep.  545;  Newton  v.  Terry  (Ky., 
Spaulding,  7  Iowa  423  ;  Chlein  v.  1892),  22  S.  W.  Rep.  159.) 
Kabat,  72  Iowa  291;  Deere  v.  Nelson,  Louisiana. — Lampton  v.  State  Nat. 
73  Iowa  186;  Wankon  v.  Strouse,  74  Bank,  41  La.  Ann.  719;  McCubbin  v. 
Iowa  547;  Tiffany  v.  Henderson,  57  Hastings,  27  La.  Ann.  713,  limited  in 
Iowa  490;  Gray  v.  Regan,  37  Iowa  Hart  v.  Bowie,  34  La.  Ann.  323;  Hick- 
688;  Davis  z*.  Chicago,  etc.,  R.  Co.,  83  man  v.  Boggins,  14  La.  Ann.  618; 
Iowa  744;  Maish  v.  Crangle,  80  Iowa  West  v.   Hickman,   14  La.    Ann.  620; 


Of  Pleadings,  etc, ,  at  A M E ^ D M EJS/  1 S.   Conunon  Law,  tinder  Codes,  etc. 


arid  providing  that  "■  all  other  amendments  shall  be  by  leave  of 
the  court,"  does  not  confer  unlimited  power  and  discretion,  and 


Tucker  v.  Liles,  3  La.  297;  Carter  v. 
Farrell,  39  La.  Ann.  102;  Boagni  v. 
Anderson,  32  La.  Ann.  920;  Mouton 
V  Cameau,  5  La.  Ann.  566;  Adle  v. 
Metoyer,  i  La.  Ann.  254;  Holmes  v. 
Steamer  Chieftain,  i  La.  Ann.  136; 
Thomas  v.  Baillo,  7  La.  410;  Mitreaud 
V.  Delassize,  13  La.  416;  Riot/.  Gordon, 
14  La.  41S;  Succession  of  Rouzan,  7 
Rob.  (La.)  436. 

Michigan. — Pangborn  v.  Continental 
Ins.  Co.,  67  Mich.  683;  Minnock  v. 
Eureka  F.  &  M.  Ins.  Co.,  90  Mich. 
236;  Foley  V.  Riverside  Storage,  etc., 
Co.,  85  Mich.  7;  Ludeman  v.  Hirth,  96 
Mich.  17;  Wolscheid  v.  Thorne,  76 
Mich.  265;  Mead  v.  Glidden,  79  Mich. 
209;  People  V.  Wayne  Circuit  Judge, 
41  Mich.  727;  Sick  v.  Michigan  Aid 
Assoc,  49  Mich.  50;  Browne  v.  Moore, 
32  Mich.  254;  Polhemus  v.  Ann  Ar- 
bor Sav.  Bank,  27  Mich.  45;  Beecher 
V.  Wayne  Circuit  Judges,  70  Mich. 
363;  Randall  v.  Baird,  66  Mich.  312; 
Monaghan  v.  Agricultural  F.  Ins.  Co., 
53  Mich.  238;  Hollywood  v.  Reed,  57 
Mich.  234;  Kennedy  v.  Brown,  50 
Mich.  336;  Borden  v.  Clark,  26  Mich. 
410;  Wood  V.  Metropolitan  L.  Ins. 
Co.,  96  Mich.  437;  Wood  v.  Lane,  84 
Mich.  521;  Beneway  v.  Thorp,  77 
Mich.  181. 

Minnesota. — Brazil  v.  Moran,  8  Minn. 
236;  Dougan  v.  Turner,  51  Minn.  330; 
Iverson  v.  Dubay,  39  Minn.  325;  litis 
V.  Chicago,  etc.,  R.  Co.,  40  Minn. 
273;  Osborne  v.  Williams,  37  Minn. 
507;  McEvoy  V.  Bock,  37  Minn.  402; 
North  V.  Webster,  36  Minn.  99; 
Winona  v.  Minnesota  R.  Const.  Co., 
29  Minn.  68;  Carli  v.  Union  Depot, 
etc.,  Co.,  32  Minn.  loi;  Guerin  v.  St. 
Paul  F.  &  M.  Ins.  Co.,  44  Minn.  20; 
Burke  v.  Baldwin,  54  Minn.  514; 
Bitzer  v.  Campbell,  47  Minn.  221; 
Newman  v.  Springfield  F.  &  M.  Ins. 
Co.,  17  Minn.  123;  Fowler  v.  Atkin- 
son, 5  Minn.  505;  Bruns  v.  Schreiber, 
48  Minn.  366;  Morrison  v.  Lovejoy,  6 
Minn.  319. 

Mississippi. — The  Gen.  Stat.,§  1581, 
provides  that  the  allowance  or  refusal 
of  amendments  may  be  assigned  for 
error.  But  the  abuse  of  discretion 
must  be  clear  to  warrant  a  reversal. 
Barker  v.  Justice,  41  Miss.  240; 
Bloom  V.  Price,  44  Miss.  73;  Currie 
V.  Natchez,  etc.,  R.  Co.,  61  Miss.  725. 
Under  the  Act  of  1840  (Sheet  Acts,  p. 


133)  the  allowance  of  amendments 
when  offered  at  the  proper  time  was 
mandatory.  Shields  v.  Taylor,  13 
Smed.  &  M.  (Miss.)  127;  Stephens  v. 
Commercial,  etc..  Bank,  31  Miss.  438; 
Dent  V.  Coleman,  10  Smed.  &  M. 
(Miss.)  83;  Wharton  v.  Porter,  10 
Smed.  &  M.  (Miss.)  305.  See  also 
Cooper  V.  Granberry,  33  Miss.  117. 

Prior  to  the  statute  the  allowance 
of  amendments  seems  to  have  been 
reviewable  only  for  w^ant  of  power. 
Vicksburg  W.  &  B.  Co.  v.  Washington, 
I  Smed.  &  M.  (Miss.)  536;  Henderson 
V.  Hainer,  5  How.  (Miss.)  525;  Green 
V.  Robinson,  3  How.  (Miss.)  105. 

Missouri. — Allen  v.  Ranson,  44  Mo. 
263;  Davis  V.  Ritchie,  85  Mo.  501; 
Goddard  v.  Williamson,  72  Mo.  131; 
State  V.  Sandusky,  46  Mo.  377;  Thomp- 
son V.  Mosely,  29  Mo.  477;  Chauvin 
V.  Lownes,  23  Mo.  223;  Long  v. 
Overton,  7  Mo.  567;  Glasscock  v. 
Glasscock,  8  Mo.  577  ;  Dozier  v. 
Jerman,  30  Mo.  216;  Ferguson  v. 
Hannibal,  etc.,  R.  Co.,  35  Mo.  452; 
Greene  v.  Gallagher,  35  Mo.  226;  Dal- 
lam V.  Bowman,  16  Mo.  225;  Cayce  v. 
Ragsdale,  17  Mo.  32;  Pomeroy  v. 
Brown,  19  Mo.  302;  Cullum  v.  Cun- 
diff,  20  Mo.  522;  Riggin  v.  Collier,  6 
Mo.  568;  Caldwell  v.  McKee,  8  Mo. 
334;  Renfro  v.  Prior,  22  Mo.  App.  403; 
Waverly  Timber,  etc.,  Co.  v.  St.  Louis 
Cooperage  Co.,  112  Mo.  383;  Collins 
V.  Glass,  46  Mo.  App.  297;  Turner  v. 
Thomas,  10  Mo.  App.  338;  Robertson 
V.  Springfield,  etc.,  R.  Co.,  21  Mo  App. 
633;  Corby  v.  Wright,  4  Mo.  App.  443; 
Steinhauser  v.  Spraul.  114  Mo.  551. 

Montana. — Billings  v.  Sanderson,  8 
Mont.  201;  Wormall  v.  Reins,  i  Mont. 
630. 

Nebraska. — Mills  v.  Miller,  3  Neb. 
87;  Ward  V.  Parlin,  30  Neb.  376;  Union 
Pacific  R.  Co.  V.  Broderick,  35  Neb. 
739;  Brown  v.  Rogers,  20  Neb.  547; 
Klosterman  v.  Olcott,  25  Neb.  382; 
Healy  v.  Aultman,  6  Neb.  349;  Singer 
Mfg.  Co.  V.  Doggett,  16  Neb.  609; 
Hedges  v.  Roach,  16  Neb.  673;  Bush 
V.  Bank  of  Commerce,  38  Neb.  403; 
Omaha,  etc.,  R.  Co.  v.  Moshel,  38  Neb. 
281;  Commercial  Nat.  Bank  v.  Gibson 
37  Neb.  750;  Omaha,  etc.,  R.  Co.  v. 
Brown,  29  Neb.  492;  Johnson  v. 
Swayze,  35  Neb.  117. 

Nevada. — Dorn  v.  O'Neale,  6  Nev. 
155;  Carlyon  v.   Lannan,  4  Nev.  156; 


I  Encyc.  Pi.  &  Pr.— 34. 


529 


Of  Pleadings,  etc  ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


the  appellate  court  may  revise,  reverse,  or  affirm  when  the  dis- 
cretion is  improperly  and  illegally  or  unreasonably  exercised.* 

Absolute  Eight. — Occasionally  the  allowance   of   amendments  is 
made  peremptory  by  statute.* 


Beck  V.  Thompson  (Nev.,  1894)  36  Pac. 
Rep.  562. 

New  Mexico. — Beall  v.  Territory,  i 
N.  Mex.  507. 

AVw  yo7-k. — See  the  New  York  cases 
cited  in  the  prfeceding  note. 

Ohio. — Brock  v.  Bateman,  25  Ohio 
St.  609;  Dayton  Ins.  Co.  v.  Kelly,  24 
Ohio  St.  345;  Schneider  v.  Hosier,  21 
Ohio  St.  109;  Clark  v.  Clark,  20  Ohio 
St.  128. 

Oregoti. — Cook  v.  Croisan  (Oregon, 
1894),  36  Pac.  Rep.  532;  Garrison  v. 
Goodale,  23  Oregon,  307;  Hexter  v. 
Schneider,  14  Oregon  184;  Wild  v. 
Oregon  Short  Line,  etc.,  R.  Co.,  21 
Oregon  159;  Henderson  v.  Morris,  5 
Oregon  24;  Brauns  v.  Stearns,  i  Ore- 
gon 367;  Wallace  v.  Baisley,  22  Oregon 
572;  Bowles  V.  Doble,  11  Oregon  474; 
Blanchard  v.  Bennett,  i  Oregon  328. 

Pennsylvania. — See  the  Pennsylva- 
nia cases  cited  in  the  preceding  note. 

South  Dakota. — Jenkinson  v.  Ver- 
million (S.  Dak.,  1892),  52  N.  W.  Rep. 
1066;  Yetzer  v.  Young  (S.  Dak.,  1892), 
52  N.  W.  Rep.  1054. 

Tennessee. — Tennessee  Bank  v.  Skil- 
lern,  2  Sneed  (Tenn.)  69S;  Blakemore 
V.  Wood,  3  Sneed  (Tenn.)  470;  Helm 
V.  Rodgers,  5  Humph.  (Tenn.)  105; 
Dockery  v.  Miller,  9  Humph.  (Tenn.) 
731;  Cheek  v.  Merchants'  Nat.  Bank, 
9  Heisk.  (Tenn.)  489;  Clark  v.  Thomas, 
4  Heisk.  (Tenn.)  419. 

Texas. — Smith  v.  Anderson,  39  Tex. 
496;  Boren  v.  Billington,  82  Tex.  137; 
Austin  V.  Jordan,  5  Tex.  130;  Richie  v. 
Levy,  69  Tex.  133;  Teas  v.  McDonald, 
13  Tex.  349;  Guim  -v.  O'Daniel,  5  Tex. 
Civ.  App.  112;  Johnson  7/.  Borden 
(Tex.  Civ.  App.,  1894),  25  S.  W.  Rep. 
1131;  Obert  V.  Landa,  59  Tex.  475; 
Phillips  V.  Patillo,  18  Tex.  518;  Ann 
Berta  Lodge  v.  Leverton,  42  Tex.  18; 
Hatchett  v.  Conner,  30  Tex.  104;  Reid 
•V.  Allen,  18  Tex.  241;  Matossy  v. 
Frosh,  9  Tex.  610. 
Utah. — Kelly  v. 
295;  McCord,  etc. 
Glen,  6  Utah  139. 

Washington. — Skagit  R.,  etc.,  Co.  v. 
Cole,  2  Wash.  57. 

West  Virginia. — Ralston  v.  Meyer, 
34  W.  Va.  737. 

Wisconsin. — Gillett    v.    Robbins,    12 


Kershaw,    5    Utah 
Mercantile   Co.   v. 


Wis.  319;  Capron  v.  Adam.s  County,  43 
Wis.  613;  Chandros  v.  Edwards,  86 
Wis.  493;  Continental  Ins.  Co.  v.  Phil- 
lips, 83  Wis.  354;  Hibbard  v.  Peek, 
75  Wis.  6ig ;  Charnley  v.  Honig,  74 
Wis.  163;  Thorn  v.  Smith,  71  Wis.  18; 
Ball  V.  McGeoch,  78  Wis.  355;  Patten 
Paper  Co.  v.  Kaukauna  Water-power 
Co.,  79  Wis.  331;  Hawley  v.  Harran, 
79  Wis.  379;  Brown  v.  Bosworth,  62 
Wis.  542;  Phillips  V.  Jarvis,  19  Wis. 
204;  State  V.  Horney,  44  Wis.  615; 
Kirch  V.  Davies,  55  W^is.  2S7;  Viiet  v. 
Sherwood,  38  Wis.  159;  Nys  v.  Bie- 
meret,44Wis.  104;  Kretser  z*.  Cary,  52 
Wis.  374;  Thomas  v.  Hatch,  53  Wis. 
296;  Ault  V.  Wheeler,  etc.,  Mfg.  Co., 
54  Wis.  300;  Plumer  7/.  Clarke,  59  Wis. 
646;  Bean  v.  Moore,  2  Chand.  (Wis.) 
44;  Bridgeport  Sav.  Bank  v.  Randall, 
15  Wis.  541;  Monaghan  v.  School  Dist. 
No.  I,  38  Wis.  100;  Fox  River  Valley 
R.  Co.  V.  Shoyer,  7  Wis.  365;  Shieffe- 
lin  V.  Whipple,  10  Wis.  81;  Milwau- 
kee, etc.,  R.  Co.  V.  Finney,  10  Wis. 
388;  Baxter  v.  State,  15  W^s.  488; 
Hitchcock  V.  Merrick,  15  Wis.  522  ; 
Rublee  v.  Tibbetts,  26  Wis.  399;  Moll 
V.  Semler,  28  Wis.  589;  Dudley  v. 
Stiles,  32  Wis.  371;  Jones  v.  Walker,  22 
Wis.  220;  McWhinne  v.  Martin,  77 
Wis.    182. 

Prior  to  the  Code  there  was  no  re- 
view except  upon  the  question  of 
power.  Fowler  v.  Colton,  i  Pin. 
(Wis.)33i;  May  v.  Crook,  i  Pin.  (Wis). 
546.  See  Bean  v.  Moore,  2  Pin.  (Wis.) 
392. 

1.  Koons  V.  Price,  40  Ind.  164. 

2.  Alabama. — Section  2833  of  the  Code 
provides  that  the  court  "  must,  while 
the  cause  is  in  progress,"  amend  im- 
perfections and  defects  of  form,  "  un- 
less injustice  will  thereby  be  done  to 
the  opposite  party,"  and  "must  per- 
mit the  amendment  of  the  complaint 
by  striking  out  or  adding  new  parties 
plaintiff,  or  by  striking  out  or  adding 
new  parties  defendant,  upon  such 
terms  and  conditions  as  the  justice  of 
the  case  may  require." 

The  only  limitation  on  amendments 
before  the  jury  have  retired  is  that 
the  form  of  action  must  not  be  changed 
and  there  must  not  be  an  entire  change 
of  parties  or  a  new  cause  of  action. 


530 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc 


(2)  For  Want  of  Power. — If  an  amendment  is  allowed  *  or  re- 
fused *  contrary  to  law,  or  if  leave  to  amend  is  denied  expressly 
and  solely  upon  the  erroneous  ground  of  want  of  power,^  thedis- 


Mahan  v.  Smitherman,  71  Ala.  563. 
With  these  exceptions  the  allowance 
of  amendments  to  a  complaint  is  usu- 
ally regarded  as  peremptory.  Robin- 
son V.  Darden,  50  Ala.  71;  Lansburg 
V.  Cohen,  52  Ala.  180  ;  Southern  L. 
Ins.  Co.  V.  Roberts,  60  Ala.  431;  Griel 
V.  Solomon,  82  Ala.  85;  Ricketts  v. 
Weetien,  64  Ala.  548.  See  Watkins  z/. 
Canterberry,  4  Port.  (Ala.)  415;  Ash- 
ley V.  Robinson,  29  Ala.  112;  Gold- 
smith V.  Picard,  27  Ala.  142;  Jones  v. 
Ritter,  56  Ala.  270.  But  to  warrant  a 
reversal  for  refusal  to  allow  an  amend- 
ment a  party  must  show  that  he  was 
prejudiced  thereby.  Sharpe  v.  Bir- 
mingham Nat.  Bank,  87  Ala.  644;  Bea- 
vers V.  Hardie,  59  Ala.  570. 

As  to  the  remedy  by  mandamus  in 
case  of  improper  refusal  of  leave,  see 
Ex  parte  South,  etc.,  R.  Co.,  65  Ala. 

599- 

Georgia. — Georgia  Code,  >?  3479,  pro- 
vides that  plaintiffs  or  defendants  may 
amend  "  as  matter  of  right." 

The  trial  court  was  reversed  for  re- 
fusing to  allow  amendments  in  Savan- 
nah, etc.,  R.  Co.  V.  Watson,  86  Ga.  795; 
Strawn  v.  Kersey,  22  Ga.  586;  Smith 
V.  Georgia  R. ,  etc.,  Co.,  87  Ga.  764; 
Fielder  v.  Collier,  13  Ga.  496;  Bright 
V.  Central  City  St.  R.  Co.,  88  Ga.  535; 
Colley  V.  Gate  City  Coffin  Co.  (Ga., 
1893),  18  S.  E.  Rep.  817  ;  Worrill  v. 
Taylor,  27  Ga.  398.  See  also  Barrett 
V.  Pascoe  (Ga.,  1893),  17  S.  E.  Rep. 
117;  and  before  the  Code,  Martin  v. 
Philips,  4  Ga.  203;  Christian  v.  Penn, 
5  Ga.  482;  Myrick  v.  Myrick,  67  Ga. 
771. 

It  seems  that  refusal  of  leave  will 
not  work  a  reversal  if  there  was  no 
prejudice.  Hadden  v.  Earned,  87  Ga. 
634;  Byrd  v.  Campbell  Printing  Press, 
etc.,  Co.  (Ga.),  16  S.  E.  Rep.  267; 
Mitchell  V.  Fullington,  83  Ga.  301  ; 
White  Star  Line  Steamboat  Co.  v.  Gor- 
don County,  81  Ga.  47;  Gay  v.  Peacock, 
41  Ga.  84. 

Or  if  the  application  was  not  prop- 
erly made.  Perry  v.  Watts,  67  Ga. 
602. 

But  if  the  court  allows  a  new  cause 
of  action  to  be  introduced,  its  ruling 
will  be  reviewed.  McWilliams  v.  An- 
derson, 68  Ga.  772;  Milburn  v.  Davis 
(Ga.,  1893),  17  S.  E.  Rep.  286;   Skida- 


way  Shell  Road  Co.  v.  O'Brien,  73  Ga. 
655;  Singer  Mfg.  Co.  v.  Armstrong, 
91  Ga.  745;  Pearson  v.  Reid,  10  Ga. 
580;  Pokes  V.  De  Vaughn,  66  Ga.  735; 
Lamar  v.  Russel,  77  Ga.  307;  Chatta- 
nooga, etc.,  R.  Co.  V.  East  Rome 
Town  Co.,  89  Ga.  732. 

1.  Peck  V.  Smith,  3  Vt.  265;  Callen- 
der  V.  Sweat,  14  Vt.  160;  Greelev  v. 
Winsor  (S.  Dak.,  1891),  50  N.'W. 
Rep.  630;  Dyson  v.  West,  i  Har.  & 
J.  (Md.)  567;  New  York,  etc..  Milk 
Pan  Assoc,  v.  Pennington  Agricul- 
tural Works,  89  N.  Y.  22,  reversing 
25  Hun  (N.  Y.)  475;  Coulter  I/.  Ameri- 
can, etc..  Express  Co.,  5  Lans.  (N. 
Y.)  67;  Ayer  v.  Gleason,  60  Me.  207; 
Herrick  v.  Osborne,  39  Me.  231;  Har- 
ris V.  Mercer,  22  Ind.  329;  Hart  v. 
Bowie,  34  La.  Ann.  323;  Moore  v.  Lan- 
caster, Wright  (Ohio)  35;  Bickett  v. 
Garner,  21  Ohio  St.  659. 

New  Cause  of  Action.^In  the  follow- 
ing cases  the  decision  was  reversed 
because  the  amendment  introduced  a 
new  cause  of  action  :  Slater  v.  Nason, 
15  Pick.  (Mass.)  345;  Guilford  v. 
Adams,  19  Pick.  (Mass.)  376;  Cumber 
V.  Schoenfeld,  16  Daly  (N.  Y.)  454; 
Sheldon  v.  Adams,  41  Barb.  (N.  Y.) 
54;  Zoller  V.  Kellogg,  66  Hun  (N.  Y.) 
194;  Rowell  V.  Jauvrin,  69  Hun  (N.  Y.) 
305;  Shaw  V.  Bryant  (Supreme  Ct.),  19 
N.  Y.  Supp.  618;  Newall  v.  Hussey, 
18  Me.  249;  Snyder  v.  Harper,  24  W. 
Va.  206;  Edwards  v.  Cheraw,  etc.,  R. 
Co.,  32  S.  Car.  117;  Merrill  v.  Merrill, 
92  N.  Car.  657;  Powell  v.  Allen,  103  N. 
Car.  46;  Irwin  v.  Paulett,  i  Kan.  418. 

Where  an  amendment  is  allowed  the 
burden  of  proof  is  upon  the  exceptant 
to  show  that  it  made  a  new  cause  of 
action.  Farr  v.  Wheeler,  20  N.  H. 
569. 

2.  Logan  v.  Tibbott,  4  Greene  (Iowa) 
389,  a  refusal  to  allow  defendant  to  an- 
swer an  amended  petition;  Allen  v. 
Bidwell,  35  Iowa,  218.  where  defend- 
ant was  denied  the  statutory  right  to 
amend  as  of  course;  Ewing  v.  Patter- 
son, 35  Ind.  326,  where  the  statute 
providing  for  leave  to  amend  after  de- 
murrer sustained  was  imperative. 

3.  Welch  V.  Hull,  73  Mich.  47;  Bebb 
V.  Preston,  3  Iowa  336;  Sanger  z/.  New- 
ton, 134  Mass.  308:  Phoenix  Mut.  L. 
Ins.  Co.  V.  Walrath,  53  Wis.  669;  Reed 


531 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


cretion  of  the  court  is  not  called  into  operation,  and  its  decision 
will  be  reviewed  and  reversed  where  the  error  is  prejudicial. 

(3)  Presumptions  in  Favor  of  Trial  Court. — In  all  cases  the  pre- 
sumption is  in  favor  of  the  legality  and  propriety  of  the  ruling  of 
the  trial  court.  And  error  or  abuse  of  discretion  must  be  affirma- 
tively shown  by  the  record  in  order  to  justify  an  appellate  court 
in  reversing  a  judgment.* 


V.  New  York,  97  N.  Y.  620,  reversing 
31  Hun  (N.  Y.)3ii;  McElwain  v.  Corn- 
ing, 12  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  16; 
White  V.  Stevenson,  4  Den.  (N.  Y.)  193; 
Hochstetter  v.  Isaacs,  44  How.  Pr.  (N. 
Y.  Super.  Ct.)495,  14  Abb.  Pr.  N.  S.(N. 
Y.)  235,  n.;  Cashman  v.  Reynolds,  25 
Abb.  N.  Cas.  (N.  Y.  Ct.  of  App.)  392; 
Oilman  v.  Emery,  54  Me.  460;  Romero 
V.  Luna  (N.  Mex.,  1892),  30  Pac.  Rep. 
855;  McKinnon  v.  Faulk,  68  N.  Car. 
279;  Jarrett  v.  Gibbs,  107  N.  Car.  303; 
Henderson  v.  Graham,  84  N.  Car.  496; 
Gilchrist  v.  Kitchen,  86  N.  Car.  20; 
Murphy  z/.  Gibbs  (N.  Car.,  i8go),  12  S. 
E.  Rep.  272. 

In  Stevens  v.  Sibbett,  31  Neb.  612; 
Sibley  z/.  Young,  26  S.  Car.  415;  Rich- 
mond V.  Second  Avenue  R.  Co.  (Super. 
Ct.),  29  N.  Y.  Supp.  586,  and  Tighe  v. 
Pope,  16  Hun  (N.  Y.)  iSo,  the  erroneous 
ground  of  refusal  was  that  the  pro- 
posed amendment  introduced  a  new 
cause  of  action. 

Ground  of  Decision,  How  Ascertained. — 
In  order  to  ascertain  whether  the 
court  refused  leave  on  the  ground  of 
want  of  power,  it  seems  that  the  opin- 
ion of  the  court  may  not  be  resorted 
to  if  the  order  is  silent  on  the  subject; 
and  that  the  opinion  can  only  be  exam- 
ined when  the  order  expresses  the 
ground  and  the  expression  is  coupled 
with  phrases  that  make  doubt.  Fisher 
V.  Gould,  81  N.  Y.  228.  In  McElwain 
V.  Corning,  12  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  16,  the  court  glanced  at  the 
opinion. 

Where  a  referee  denied  an  amend- 
ment which  was  objected  to  on  the 
ground  of  want  of  power,  but  no 
ground  for  his  ruling  was  stated  in  his 
decision,  it  was  presumed  to  have  been 
denied  merely  in  the  exercise  of  his 
discretion.  Haight  v.  Littlefield,  71 
Hun  (N.  Y.)  289.  Compare  Zimmer- 
man V.  Amaker,  10  S.  Car.  loi. 

1.  Ohio. — Clark  v.  Clark,  20  Ohio  St. 
128;  Brock  V.  Bateman,  25  Ohio  St. 
6og. 

Kansas. — Kansas  Farmer  Mut.  F. 
Ins.  Co.  V.  Amick,  37  Kan.  73;  Bying- 
ton  V.  Saline  County,  37  Kan.  654. 


Florida. — Mitchell  v.  Gotten,  3  Fla. 
158;  Neal  V.  Spooner,  20  Fla.  38. 

Indiana. — Grand  Rapids  etc.,  R.  Co. 
V.  Ellison  (Ind.,  1888),  18  N.  E.  Rep. 
507;  Darrell  v.  Hilligoss,  etc.,  Gravel 
Road  Co.,  90  Ind.  264;  Louisville,  etc., 
R.  Co.  V.  Hubbard,  116  Ind.  193; 
Citizens'  State  Bank  v.  Adams,  91  Ind. 
280;  State  V.  Peackmo,  8  Blackf.  (Ind.) 
246;  Adams  v.  Main,  3  Ind.  App.  232; 
Levy  V.   Chittenden,  120  Ind.  37. 

Alabama. — Mahan  v.  Smitherman, 
71  Ala.  563;  Odorn  v.  Shackleford,  44 
Ala.  331;  Mock  V.  Walker,  42  Ala.  668. 

Wisconsin. — Lander  v.  Hall,  69  Wis. 
326;  Patten  Paper  Co.  v.  Kaukauna 
Water  Power  Co.  79  Wis.  33. 

Other  States. — Skagit  R. ,  etc.,  Co.  v. 
Cole,  2  Wash.  57;  Suber  v.  Chandler, 
28  S.  Car.  382;  Singer  Mfg.  Co.  v. 
Doggert,  16  Neb.  609;  Buckley  v. 
How,  86  Cal.  596  ;  Waterman  v. 
Hall,  17  Vt.  128;  State  v.  Keokuk, 
18  Iowa  388;  Allen  v.  Ranson,  44 
Mo.  263;  Dougan  v.  Turner,  51  Minn. 
330;  Penobscot  Boom  Corp.  v.  Baker, 
16  Me.  233. 

Showing  Bequired  in  Trial  Court. — It 
should  appear  of  record  that  the  party 
complaining  presented  to  the  trial 
court  by  affidavit  or  otherwise  suf- 
ficient grounds  for  a  different  ruling. 
Garrison  v.  Goodale,  23  Oregon  307; 
Hay  V.  State,  58  Ind.  337;  Sandford 
Tool,  etc.,  Co.  V.  Mullen,  i  Ind. 
App.  204;  Hoffman  v.  Rothenberger, 
82  Ind.  474;  Martinsville  v.  Shir- 
ley, 84  Ind.  546;  Judd  V.  Small,  107 
Ind.  398;  Dewey  7/.  State,  91  Ind.  173; 
Burns  v.  Fox,  113  Ind.  205;  Meyer  v. 
State,  125  Ind.  335;  Child  z/.  Swain,  69 
Ind.  230;  Omaha,  etc.,  R.  Co.  v.  Mos- 
chel,  38  Neb.  281;  Ruege  v.  Gates, 
71  Wis.  634;  Canfield  v.  Bates,  13  Cal. 
606;  Nevada  County,  etc..  Canal  Co. 
V.  Kidd,  37  Cal.  282;  Newman  v. 
Springfield  F.  &  M.  Ins.  Co.,  17  Minn. 
1 23 ;  Barker  v.  Walbridge,  14  Minn.  469. 

Sufficiency  of  Record. — The  amend- 
ment made  or  proposed  must  appear 
in  the  record.  Shaw  v.  Binkard,  10 
Ind.  227;  Rooker  v.  Wise,  14  Ind.  276; 
Barnett  v.  East  Tennessee,  etc.,  R.  Co., 


532 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


(4)  Harmless  Error. — The  allowance  or  refusal  of  an  amend- 
ment, whether  the  action  of  the  court  is  contrary  to  law*  or 
merely  an  abuse  of  discretion,*  will  not  constitute  reversible  error 
if  the  party  complaining  is  not  prejudiced  thereby  ;  and  a  refusal 
to  allow  an  amendment  on  the  ground  of  a  supposed  lack  of 
power  will  not  be  disturbed  if  it  was  nevertheless  correct  from  the 
standpoint  of  discretion.* 

Circumstances  Eebutting  Prejudice. — Where  a  party  seeks  to  have  the 
action  of  the  trial  court  reversed  on  error  for  allowing  his  op- 
ponent to  amend,  his  omission  to  ask  for  delay  on  account  of 
the  amendment  is  a  cogent  circumstance  indicating  that  he  was 
not  prejudiced  thereby.* 

(5)  Objection  mid  Exception. — In  order  to  present  any  question 
on  appeal  touching  the  action  of  the  trial  court  with  reference  to 
amendments,  the  record  must  show  that  an  objection  was  made' 

87  Ga.  "^bt,  following  Sibley  v.  Mutual 
Reserve  Fund  L.  Assoc,  87  Ga.  738; 
Martin  v.  Thompson,  62  Cal.  618; 
Jessup  V.  King,  4  Cal.  331;  Harvey  v. 
Spaulding,  7  Iowa  423;  Schumann  v. 
IVIark,  35  Minn.  379;  McCain  v.  Louis- 
ville, etc.,  R.  Co.  (Ky.,  1892),  18  S.  W. 
Rep.  537- 

The  insufficiency  of  an  amended 
petition  cannot  be  shown  when  the 
original  petition  is  not  copied  in  the 
transcript.  Hufifaker  v.  Monticello 
Nat.  Bank,  13  Bush  (Ky.)  644. 

1.  Cox  V.  Lacey,  3  Litt.  (Ky.)  334; 
Robertson  v.  Robertson,  g  Daly  (N. 
Y.)  44;  Ansonia  Brass,  etc.,  Co.  v. 
Gerleck  (C.  PI.),  28  N.  Y.  Supp.  546; 
National  Steamship  Co.  v.  Sheahan, 
122  N.  Y.  461;  Dexter  v.  Ivins,  133 
N.  Y.  551;  Wilson  v.  Stewart,  69  Ala. 
302. 

2.  Shadburne  v.  Daly,  76  Cal.  355; 
Beronio  v.  Southern  Pac.  R.  Co.,  86 
Cal.  415;  Bulwer  Consolidated  Min. 
Co.  V.  Standard  Consolidated  Min. 
Co.,  83  Cal.  613;  Southern  Pac.  R.  Co. 
V.  Purcell,  77  Cal.  69;  Burr  z/.  Neuden- 
hall,  49  Ind.  496;  Kennedy  v.  Brown, 
50  Mich.  336;  State  v.  Keokuk,  18  Iowa 
333;  Allison  v.  Barrett,  16  Iowa  278; 
Schneider  v.  Hosier,  21  Ohio  St.  109; 
Dayton  Ins.  Co.  v.  Kelly,  24  Ohio  St. 
345  ;  Richie  v.  Levy,  69  Tex.  133; 
Baxter  z'.  State,  15  Wis.  488;  Monaghan 
V.  School  Dist.  No.  i,  38  Wis.  100; 
Sharpe  v.  Birmingham,  87  Ala.  644; 
Golden  z'.  Conner,  89  Ala.  598;  Roberts 
V.  Fleming,  31  Ala.  683 ;  Blewett  v. 
Front  St.  Cable  R.  Co.,  51  Fed.  Rep. 
625;  Kellogg  V.  Gilfillan  (Pa.,  1887), 
10  Atl.  Rep.  888;  Rehfuss  v.  Gross, 
108  Pa.  St.  521;  Middletown  Mfg.  Co. 


V.  Philadelphia,  etc.,  R.  Co.,  145  Pa. 
St.  443;  Diehl  V.  Adams  Co.  Mut.  Ins. 
Co.,  58  Pa.  St.  443;  Horner  z*.  Marietta, 
135  Pa.  St.  418;  Blakemore  v.  Wood, 
3  Sneed  (Tenn.)  470;  Tennessee  Bank 
V.  Skillern,  2  Sneed  (Tenn.)  698. 

3.  Polhemus  v.  Ann  Arbor  Sav. 
Bank,  27  Mich.  45.  See  also  Monaghan 
V.  Agricultural  F.  Ins.  Co.,  53  Mich. 
238;  Boettcher  z*.  Colorado  Nat.  Bank, 
15  Colo.  16. 

4.  Bunyan  v.  Loftus  (Iowa,  1894), 
57  N.  W.  Rep.  685;  Walsh  v.  McKeen, 

75  Cal.  519;  Richardson  v.  Wallace, 
39  S.  Car.  216;  Powers  v.  Fox  (City 
Ct.),  II  N.  Y.  St.  Rep.  651;  Klemm 
V.  New  York  Cent.,  etc.,  R.  Co.  (Su- 
preme Ct.),  28  N.  Y.  Supp.  861;  Frank- 
furter V.  Home  Ins.  Co.  (City  Ct.),  26 
N.  Y.  Supp.  81;  Lester  v.  Thompson, 
91   Mich.    245;  Wolscheid  v.    Thorne, 

76  Mich.  265;  Burr  v.  Mendenhall,  49 
Ind.  496;  Union  Pac.  R.  Co.  v.  Brod- 
erick,  35  Neb.  739;  Bussey  v.  Roths- 
child, 27  La.  Ann.  316.  See  also 
Meyer  v.  State,  125  Ind.  335. 

5.  Robertson  v.  Springfield,  etc.,  R. 
Co.,  21  Mo.  App.  633;  Kennedy  v. 
Brown,  50  Mich.  336 ;  Bruns  v. 
Schrieber,  48  Minn.  366;  Bryan  v. 
Wilson,  27  Ala.  208;  Stewart  v.  Goode, 
29  Ala.  476;  Lea  v.  Hopkins,  7  Pa. 
St.  492;  Pass  V.  McKea,  36  Miss.  143. 

Specific  Objection  Required.  —  The 
grounds  of  the  objection  should  be 
stated.  Reynolds  v.  Dismuke.  48 
Ala.  209;  Parsons  Water  Co.  v.  Hill, 
46  Kan.  145. 

Waiver  of  Objection. — By  the  accept- 
ance of  josts  paid  as  a  condition  of 
amending  the  complaint,  the  defend- 
ant waives  the  objection  thereto  upon 


■ 


533 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc 


in    seasonable    time,*     and    exceptions    taken    to    the    adverse 
ruling.* 

(6)  Method  of  Review. — The  method  of  bringing  orders  allow- 
ing or  refusing  amendments  before  an  appellate  court  for  review 
is  usually  by  appeal  from  or  error  to  the  final  judgment.^     But  a 


the  ground  of  want  of  power.  Smith 
V.  Savin,  69  Hun  (N.  Y.)  311,  23  N.  Y. 
Supp.  568.  Smith  V.  Rathbun,  75  N. 
Y.  122,  applies  the  same  principle. 
See  also  infra,  19,  b. 

1.  The  objection  to  the  allowance 
of  an  amendment  must  be  made  at  the 
same  term.  Felkel  v.  Hicks,  32  Ala. 
25;  Bassett  v.  Salisbury  Mfg.  Co.,  28 
N.  H.  43S;  Sutherland  v.  Kittridge,  19 
Me.  424. 

It  conjes  too  'ate  when  made  for  the 
first  time  in  a  motion  for  a  new  trial. 
Hooks  V.  Hays,  86  Ga.  797. 

2.  Browne  v.  Moore,  32  Mich.  254; 
Holliday  v.  Mansker,  44  Mo.  App. 
465;  Peck  V.  Smith,  3  Vt.  265;  Mock 
V.  Walker,  42  Ala.  668;  Blair  z/.  Miller, 
42  Ala.  308;  Jarman  v.  McMahon,  37 
Ala.  431;  Hooks  v.  Hays,  86  Ga.  797; 
Pettis  V.  Campbell,  47  Ga.  596;  Pe- 
nobscot Boom  Corp.  v.  Baker,  16  Me. 
233;  Gilman  v.  Emery,  54  Me.  460; 
Sutherland  v.  Kittridge,  19  Me.  424; 
Healy  v.  Aultman,  6  Neb.  349;  Sin- 
clair V.  Western  N.  Car.  Co.,  iii  N. 
Car.  507;  Durham  v.  Fechheimer,  67 
Ind.  35;  Evansville,  etc.,  R.  Co.  v. 
Murphy,  59  Ind.  515;  Burne.tt  v.  Ab- 
bott, 51  Ind.  254;  Lammers  v.  Balfe, 
41  Ind.  218;  Vawter  v.  Brown,  20  Ind. 
280;  Sandford  Tool,  etc.,  Co.  v.  Mul- 
len, I  Ind.  App.  204;  Lowrey  v.  Reef, 
I  Ind.  App.  244;  Wilday  v.  Wight,  71 
111.  376;  Wilson  V.  Jamieson,  7  Pa.  St. 
126;  Pennsylvania  R.  Co.  v.  Keller, 
67  Pa.  St.  305;  Gilbank  z/.  Stephenson, 
31  Wis.  598;  Pelham  v.  State  Bank, 
4  Ark.  202;  Brock  v.  Bateman,  25 
Ohio  St.  609;  Clark  v.  Clark,  20  Ohio 
St.  128;  Wallace  v.  Baisley,  22  Oregon, 
572. 

A  mere  Clerical  Error  in  the  exception 
will  not  vitiate  it.  Schuessler  v.  Wil- 
son, 56  Ala.  510. 

Formal  Exceptions,  When  Unnecessary. 
— In  Cumber  v.  Schoenfeld,  16  Daly 
(N.  Y.)  454,  it  was  held  that  a  formal 
exception  is  not  indispensable  in  order 
to  authorize  a  review  by  the  general 
term  [citing  Maier  v.  Homan,  4  Daly 
(N.  Y.)  168];  Maudeville  v.  Marvin,  30 
Hun  (N.  Y.)  287;  Standard  Oil,  etc., 
Co.  V.  Amazon  Ins.  Co.,  79  N.  Y.  510; 
Hamilton  v.  Third  Ave.  R.  Co.,  53  N. 


Y.  27;  Lattimer  v.  Hill,  8  Hun  (N.  Y.) 
171;  Ackart  v.  Lansing,  6  Hun  (N.  Y.) 
476. 

Waiver  of  Exception. — In  Gale  v. 
Foss,  47  Mo.  276,  where  defendant 
excepted  to  an  order  striking  out  his 
original  and  amended  answer,  it  was 
held  that  he  waived  the  exception  by 
answering  over. 

3.  Sinclair  v.  Western  N.  Car.  Co., 
Ill  N.  Car.  507;  Denton  v.  Stephens, 
32  Miss.  194,  holding  that  error  in  al- 
lowing an  amendment  cannot  be  cor- 
rected by  a  motion  to  dismiss  the  suit. 

In  Minnesota  an  order  allowing  an 
amendment  is  not  appealable.  It  may 
be  reviewed  on  appeal  from  the  judg- 
ment or  from  an  order  upon  a  motion 
for  a  new  trial.  Winona  z*.  Minnesota 
R.  Const.  Co.,  25  Minn.  328,  27  Minn. 
415. 

Upon  an  appeal  from  an  order  refus- 
ing a  new  trial,  an  order  of  the  court 
allowing  an  amendment  of  the  plead- 
ings previous  to  the  commencement  of 
the  trial,  and  not  as  a  part  of  it,  can- 
not be  reviewed.  Winona  v.  Minne- 
sota R.  Const.  Co.,  27  Minn.  415. 

California. —An  order  striking  out  k 
portion  of  the  complaint,  not  being 
itself  appealable,  may  be  reviewed  on 
appeal  from  the  final  judgment.  Swain 
V.  Burnette,  76  Cal.  299. 

New  Trial  by  Trial  Court. — In 
Peters  v.  Foss,  16  Cal.  357,  and  Les- 
trade  v.  Barth,  17  Cal.  285,  the  Su- 
preme Court  affirmed  a  decision  of  the 
lower  court  granting  a  new  trial  for 
its  own  error  of  discretion  in  refusing 
to  amend  an  answer. 

Order  N^ot  Involving  Merits. — An 
order  allowing  an  answer  in  a  divorce 
suit  to  be  amended  in  a  matter  relat- 
ing to  community  property,  as  it  does 
not  involve  the  merits  of  the  case,  is 
not  subject  to  review  on  appeal  from 
the  judgment  entered.  Sharon  v. 
Sharon,  77  Cal.   102. 

Certiorari. — Where  plaintiff  was  al- 
lowed to  amend  his  complaint  in  a 
case  in  the  Superior  Court  appealed 
from  a  justice  of  the  peace,  it  was  held 
that  certiorari  would  not  lie  to  review 
it.  Kitts  V.  Nevada  County  Ct.,  62 
Cal.  203. 


534 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


different  or  additional  remedy   is  sometimes  authorized   under 
statutes  defining  appealable  orders  or  judgments.* 

5.  In  Respect  of  Parties  —  a.  MISNOMER. — At  Common  Law  the 
power  to  amend  in  case  of  a  misnomer  depends,  not  upon  the 
question  whether  the  amendment  changes  the  name,  but  whether 
or  not  it  changes  the  party.  If  it  only  cures  a  mistake  in  the 
name  of  the  party  by  or  against  whom  the  suit  is  prosecuted,  it 
may  be  made ;  but  if  it  introduces  a  different  party  it  is  inadmis- 
sible.* 


1.  New  York — Orders  Affecting  '■"Sub- 
stantial Rights." — An  order  of  the 
County  Court  granting  a  motion  to 
amend  an  answer  affects  a  "substan- 
tial right  "  and  is  appealable.  New  v. 
Aland,  62  How.  Pr.  (N.  Y.  Supreme 
Ct.)  185.  So  an  order  of  a  special 
term  allowing  an  amendment  to  the 
complaint  by  inserting  an  entirely  new 
cause  of  action,  Sheldon  v.  Adams, 
41  Barb.  (N.  Y.)  54 ;  and  an  order 
allowing  a  defendant  to  put  in  a  sup- 
plemental answer  setting  up  a  new 
defense  which,  if  established,  will  be 
fatal  to  the  plaintiff's  action.  Har- 
rington V.  Slade,  22  Barb.  (N.  Y.)  161. 
See  also  Union  Bank  v.  Mott,  19  How. 
Pr.  (N.  Y.  Supreme  Ct.)  115;  Bowman 
V.  De  Peyster,  2  Daly  (N.  Y.)  203; 
Travis  v.  Earger,  24  Barb.  (N.  Y.)  614; 
Woodruff  V.  Dickie,  5  Robt.  (N.  Y.) 
619;  Union  Bank  v.  Bassett,  3  Abb. 
Pr.  N.  S.  (N.  Y.  Supreme  Ct.)  359; 
Kissam  v.  Roberts,  6  Bosw.  (N.  Y.) 
154;  Sleeman  v.  Hotchkiss  (Supreme 
Ct.),  14  N.  Y.  Supp.  78;  Gowdy  v. 
Poullain,  2  Hun  (N.  Y.)  218;  Brady 
V.  Cassidy  (Supreme  Ct.),  13  N.  Y. 
Supp.  824. 

But  the  exercise  of  discretion  in 
allowing  or  refusing  amendments  will 
not  in  general  be  reviewed.  Gould  v. 
Rumsey,  21  How.  Pr.  (N.  Y.  Supreme 
Ct.)97;  McCarty  z/.  Edwards,  24  How. 
Pr.  (N.  Y.  Supreme  Ct.)  236;  Dennis 
V.  Snell,  54  Barb.  (N.  Y.)  411;  Saltus 
V.  Genin,  19  How.  Pr.  (N.  Y.  Supreme 
Ct.)  233;  Bailey  v.  Johnson,  i  Daly 
(N.  Y.),  61;  Binnard  v.  Spring,  42 
Barb.  (N.  Y.)47o;  Phincle  v.  Vaughan, 
12  Barb.  (N.  Y.)  215;  Sayre  v.  Frazer, 
47  Barb.  (N.  Y.)  26. 

Reviewing  Decision  of  Referee. — It 
seems  that  the  proper  mode  of  review- 
ing the  decision  of  a  referee  allowing 
an  amendment  is  by  exception  there- 
to and  appeal  from  the  judgment. 
Quimby  v.  Claflin,  77  N.  Y.  270;  Zol- 
ler  V.  Kellogg,  66  Hun  (N.  Y.)  194; 
Shaw  V.  Bryant  (Supreme  Ct.),  19  N.  Y. 
Supp.  618. 


Where  a  referee  refuses  to  allow  an 
amendment,  on  the  ground  of  a  sup- 
posed want  of  power,  the  court  will 
review  the  decision  on  motion. 
Hochstetter  v.  Isaacs,  44  How.  Pr. 
(N.  Y.  Super.  Ct.)  495,  14  Abb.  Pr. 
N.  S.  (N.  Y.)  235,  note. 

Order  Not  Affecting  Final  Judgment. 
— An  order  made  in  an  action  tried  be- 
fore a  judge  without  a  jury,  denying 
a  motion  to  amend  an  answer  after 
the  filing  of  his  decision,  does  not 
affect  the  final  judgment,  and  is  not 
appealable  under  §  1316  of  the  Code. 
Callanan  v.  Gilman,  52  N.  Y.  Super. 
Ct.  112. 

In  Wisconsin  an  order  refusing  to 
strike  an  amended  complaint  from  the 
file  is  appealable.  Kewaunee  County 
V.  Decker,  34  Wis.  378. 

In  Iowa  a  motion  to  strike  an 
amended  petition  from  the  file  is  ap- 
pealable under  §  3614,  par.  4,  of  the 
Code,  which  secures  an  appeal  from 
an  "  intermediate  order  involving  the 
merits  and  materially  affecting  the 
final  decision."  Bicklin  v.  Kendall, 
72  Iowa  492. 

In  South  Dakota  an  order  allowing 
an  amendment  of  the  complaint  after 
judgment,  and  satisfaction  without 
vacating  the  judgment,  was  held  to  be 
appealable,  as  it  involved  the  merits 
of  the  case.  Greeley  v.  Winsor  (S. 
Dak.,  1891),  50  N.  W.  Rep.  630. 

In  Michigan  an  allowance  of  an 
amendment  by  a  justice  of  the  peace 
after  the  cause  was  submitted  cannot 
be  reviewed  on  special  appeal,  as  it 
does  not  involve  a  jurisdictional  ques- 
tion. Webster  v.  Williams,  69  Mich. 
135. 

In  Massachusetts  an  order  of  a  justice 
of  the  Supreme  Judicial  Court  on  a 
probate  appeal,  declining  to  allow  an 
amendment  to  an  issue  of  fact  framed 
for  the  jury,  cannot  be  revised  by  bill 
of  exceptions,  but  only  by  appeal. 
Ogden  V.  Greenleaf,  143  Mass.  349. 

2.  Elliott  V.  Clark,  18  N.  H.  421, 
where  the    plaintiff   was  allowed    to 


535 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Modern  Statutes. — Specific  or  general  provisions  in  modern  statutes 
are  usually  held  to  confer  ample  authority  to  make  such  amend- 
ments, but  ordinarily  with  the  limitation  just  stated.* 


amend  by  striking  out  his  Christian 
name  "Lafayette"  and  inserting  in- 
stead thereof  "  Benjamin  F.,"  the 
parties  being  the  same. 

Chief  Justice  Parker  deduces  the 
rule  stated  in  the  text  from  a  consid- 
eration of  the  cases  cited  in  the  fol- 
lowing opinion  :  "  Thus,  in  Poitvin  v. 
Tregeagle,  2  Ld.  Raym.  771,  it  was 
held  that  the  Christian  name  of  the 
plaintiff  could  not  be  amended  by  in- 
serting Peter  for  John.  So  it  was  held 
that  a  declaration  in  favor  of  Emerson 
&  Godfrey  could  not  be  amended  by 
inserting,  instead,  John  Emerson,  as 
the  plaintiff.  Emerson  v.  Wilson,  11 
Vt.  359.  This  was  treated  as  an 
amendment  changing  the  parties.  But 
in  Moulsworth's  Case,  Comb.  287, 
Richard  for  Robert  was  amended  by 
the  bill  on  file,  after  judgment.  So 
Harvert  for  Harbert  was  amended 
after  issue  and  the  cause  entered. 
Comb.  4.  In  Scull  v.  Briddle,  2  Wash. 
(U.  S.)  200,  upon  motion  in  arrest  of 
judgment,  Briddle  was  inserted  for 
Biddle  in  the  declaration.  There  is 
another  class  of  cases  relating  to  bail. 
In  Bingham  v.  Dickie,  5  Taunt.  814, 
the  court  refused  to  allow  a  clerical 
error  in  spelling  the  plaintiff's  name  in 
the  bail-piece  ta  be  amended  without 
the  consent  of  the  bail,  holding  Tar- 
bart  for  Tabart  a  fatal  variance.  But 
the  bail-piece  was  amended  by  a 
change  of  name  in  Andrews  v.  Noah, 
I  Bos.  &  P.  31,  and  in  Croft  v.  Coggs, 
4  Moore  65,  16  E.  C.  L.  363;  and  a 
capias  was  amended  by  a  similar 
change  in  Stevenson  v.  Danvers,  2 
Bos.  &  P.  109.  A  defendant  was 
misnamed  in  the  declaration,  being 
called  John  instead  of  George,  and 
it  was  held  to  be  a  fatal  variance, 
and  the  plaintiff  was  nonsuited. 
Waterbury  v.  Mather,  16  Wend.  (N. 
Y.)  611.  But,  on  the  other  hand,  it 
was  held  that  a  declaration  by  a 
wrong  Christian  name  is  no  ground 
for  a  nonsuit.  Boughton  v.  Frere,  3 
Camp.  N.  P.  29;  Stafford  v.  Bolton,  i 
Bos.  &  P.  40." 

1.  Misnomer  of  Plaintiffs  was  cured  by 
amendment  in  Merrill  v.  Kalamazoo, 
35  Mich.  211,  a  change  in  the  official  ti- 
tle of  plaintiffs;  Berrien  County  Treas- 
urer V.  Bunbury,  45  Mich.  79,  a  simi- 


lar case;  McLaughlin  v.  Wilks,  42 
Mich.  553,  changing  plaintiff's  name 
from  Dilks  to  Wilks;  McEvoy  v.  Bock. 
37  Minn.  402,  an  amendment  allowed 
after  the  trial;  Tyron  v.  Butler,  9 
Tex.  553,  and  Tousey  v.  Butler,  9 
Tex.  525,  amending  the  Christian 
name,  in  the  latter  case,  after  plea  in 
abatement;  Dewey  v.  McLain,  7  Kan. 
126,  correction  of  Christian  name; 
Merriam  v.  Wolcott,  61  How.  Pr.  (N. 
Y.  Suprem.e  Ct.)  377,  the  plaintiff's 
name  having  been  changed  by  mar- 
riage pending  the  suit;  Glick  v.  Hart- 
man,  ID  Iowa  410;  Fink  v.  Manhattan 
R.  Co.,  15  Daly  (N.  Y.)479,  changing 
the  initial  letter  of  plaintiff's  middle 
name;  Abshive  v.  Mather,  27  Ind. 
381;  South  &  North  Ala.  R.  Co.  v. 
Small,  70  Ala.  499,  correcting  the 
Christian  name;  Smith  v.  Plank-road 
Co.,  30  Ala.  650,  changing  the  name 
of  the  plaintiff  corporation;  Beggs  v. 
W^ellman,  82  Ala.  391,  inserting  full 
Christian  name  in  place  of  initial  after 
plea  in  abatement.  See  also  Moore  v. 
Lewis,  76  Mich.  300;  Bauman  v. 
Grubbs,  26  Ind.  419;  Ferguson  v. 
Ramsey,  41  Ind.  511;  Paine  v.  Water- 
loo Gas  Co.,  69  Iowa  211. 

In  Woodson  v.  Law,  7  Ga.  105,  the 
Christian  name  of  the  plaintiff  was 
changed  from  William  to  James. 

Formerly  the  Christian  name  of  a 
plaintiff  could  not  be  changed  in  Penn- 
sylvania. Horbach  v.  Knox,  8  W.  & 
S.  (Pa.)  30.  But  misnomer  of  parties 
is  now  amendable  in  case  of  mistake. 
Porter  v.  Hildebrand,  14  Pa.  St.  129; 
Wood  V.  Philadelphia,  27  Pa.  St.  502, 
holding  it  reversible  error  to  refuse 
leave  to  amend  in  a  proper  case; 
Wood  V.  Philadelphia,  27  Pa.  St.  502, 
holding  that  the  fact  of  mistake  may 
be  shown  by  any  sufficient  evidence; 
Ward  V.  Stevenson,  15  Pa.  St.  21, 
holding  that  the  mistake  need  not  be 
proved  by  the  attorney  who  made  it; 
and  Horbach  v.  Knox,  6  Pa.  St.  377, 
holding  that  the  mistake  may  be 
shown  by  ex  parte  affidavit.  Rangier 
V.  Hummel,  37  Pa.  St.  130;  Leonard 
V.  Parker,  72  Pa.  St.  236;  Wilson  v. 
Mechanics'  Sav.  Bank,  45  Pa.  St.  488, 
hold  that  the  fact  of  mistake  will  be 
presumed. 

Leave  to  Amend  Denied. — In  Dulany 


536 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


b.  Misdescription  of  Plaintiff  —  Changing  Nominal 
Plaintiff. — Under  the  statutes  of  amendment  it  is  the  general 
rule  that  the  plaintiff  may  be  changed  by  amendment  if  the  real 
parties  in  interest  and  the  essential  elements  of  the  controversy 
remain  the  same.*         • 


V.  Norwood,  4  Har.  &  M.  (Md.)  497, 
leave  to  amend  the  Christian  name  of 
the  plaintiff  after  the  jury  were  sworn 
was  refused. 

Misnomer  of  Defendants  was  cured  by- 
amendment  in  the  following  cases  : 
Cheshire  v.  Milburn  Wagon  Co.,  89 
Ga.  249,  where  the  omission  of  the 
Christian  name  of  one  of  the  defend- 
ants was  corrected.  Nelson  v.  Bar- 
ker, 3  McLean  (U.  S.)  379;  Bullard  v. 
Nantucket  Bank,  5  Mass.  99;  Heslep 
V.  Peters,  4  111.  45,  amendment  al- 
lowed after  demurrer  to  plea  in  abate- 
ment for  misnomer,  by  withdrawing 
the  demurrer  and  joining  issue  on  the 
plea;  Parry  v.  Woodson,  33  Mo.  347, 
changing  defendant's  Christian  name 
from  Benjamin  to  Branham;  Tuller  z/. 
Ginsburg,  99  Mich.  137;  Webber  v. 
Bolte,  51  Mich.  113,  substituting  the 
full  Christian  name  of  the  defendant 
for  an  initial;  Welch  v.  Hull,  73  Mich. 
47,  where  it  was  held  to  be  reversible 
error  to  refuse  leave  to  amend  the 
Christian  name  of  one  of  the  de- 
fendants; Fogg  V.  Greene,  16  Me. 
282,  amending  the  Christian  name 
on  the  trial;  Thomson  v.  Wilson,  26 
Iowa  120,  after  verdict  and  pending 
motion  in  arrest;  Arbuckle  v.  Bowman, 
6  Iowa  70,  where  "  Bowman  "  was  sub- 
stituted for  "  Bauman;"  Farris  v.  Mer- 
ritt,  63  Cal.  118,  inserting  defendant's 
true  name  where  he  had  been  sued 
under  a  fictitious  name;  McDonald  v. 
Swett,  76  Cal.  257,  after  a  default, 
where  defendant  was  sued  as  "Sweet ;" 
Porter  v.  Hildebrand,  14  Pa.  St.  129; 
New  Albany,  etc.,  R.  Co.  v.  Laiman, 
8  Ind.  212;  New  Albany,  etc.,  R.  Co. 
V.  Chamberlain,  8  Ind.  278;  Weaver  z/. 
Jackson,  8  Blackf.  (Ind.)  5,  changing 
defendant's  Christian  name  from 
"  William  "  to  "  Boston,"  after  plea  in 
abatement  for  misnomer;  Griel  v.  Sol- 
omon, 82  Ga.  85,  striking  out  the 
middle  initial,  and  reversible  error  to 
refuse  leave ;  Singer  Mfg.  Co.  v.  Green- 
leaf  (Ala.,  1893),  14  So.  Rep.  109, 
where  defendant  was  originally  sued 
as  the  "Singer  Sewing  Machine  Co.;" 
New  York,  etc..  Contracting  Co.  v. 
Meyer,  51  Ala.  325;  Maxey  v.  Strong, 
53  Miss.  280. 


A  declaration  against  the  Chatta- 
nooga, Rome  &  CarroUton  R.  Co.  was 
amended  by  substituting  "  Columbus" 
for  "  CarroUton,"  Chattanooga,  etc., 
R.  Co.  V.  Jackson,  86  Ga.  676;  like- 
wise by  substituting  "railroad  com- 
pany" for  "  railroad,"  Rome  R.  Co. 
V.  Sullivan,  14  Ga.  277,  and  "  railway 
company"  for  "railroad  company," 
East  Tennessee,  etc.,  R.  Co.  v.  Ma- 
honey,  8g  Tenn.  311;  Propst  v.  Geor- 
gia Pac.  R.  Co.  (Ala.,  i888),3  So.  Rep. 
764. 

Misnomer  of  a  defendant  corpora- 
tion was  also  corrected  in  Johnson  v. 
Cent.  R.  Co.,  74  Ga.  397,  and  Stanton 
V.  Proprietors,  etc.,  47  Vt.  172,  the  for- 
mer case  being  decided  under  a  statute 
authorizing  an  amendment  "in  the 
Christian  or  surname,"  which  was 
held  to  include  the  name  of  a  corpora- 
tion. But  another  company  could  not 
be  substituted  under  the  guise  of 
correcting  a  misnomer.  Nashville, 
etc.,  R.  Co.  V.  Edwards,  91  Ga.  24; 
Western  R.  Co.  v.  McCall,  89  Ala.  375. 
See  also  Lyons  v.  Donges,  i  Disney 
(Ohio)  142. 

Christian  and  Surname. — A  statute  al- 
lowing an  amendment  in  the  Christian 
name  or  surname  will  authorize  an 
amendment  of  an  error  in  both.  Ward 
V.  Stevenson,  15  Pa.  St.  21. 

Only  in  Furtherance  of  Justice. — A 
mistake  in  the  name  of  a  party  cannot 
be  cured  by  amendment  where  the 
right  of  third  parties  will  be  preju- 
diced thereby.  Fullerton  v.  Campbell, 
25  Pa.  St.  345. 

Misnomer  of  Parties  in  Process. — See 
infra,  IV,  i,  e. 

1.  Dixon  V.  Dixon,  19  Iowa  512; 
Wood  V.  Lane,  84  Mich.  521;  Cragin 
V.  Gardner,  64.  Mich.  399;  Kron  v. 
Smith,  96  N.  Car.  389;  Granby  v. 
Sawyer,  2  Hawks  (N.  Car.)  61;  Bullard 
V.  Johnson,  65  N.  Car.  436;  Lewis  v. 
Austin,  144  Mass.  383;  Winch  v.  Hos- 
mer,  122  Mass.  438;  Clawson  v.  Cone, 
2  Handy  (Ohio)  67;  Heckemann  v. 
Young,  18  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  196;  Boudreau  v.  Eastman, 
59  N.  H.  467;  Atchison  v.  Twine,  9 
Kan.  350;  Price  v.  Wiley,  19  Tex.  142; 
Lilly  V.  Tobbein,  103  Mo.  477;  Challe- 


537 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


When  a  partj^  sues  in  his  own  right  he  may,  if  the  facts  war- 
rant it,  amend  his  complaint  so  as  to  make  the  suit  stand  in  a 
representative  capacity ;  *  or  conversely,  if  he  sues  as  a  represen- 


nor  V.  Niles,  78  III.  78;  Neal  v. 
Spooner,  20  Fla.  38;  Farrier  v.  Schroe- 
der,  40  N.  J.  L.  601  ;  Rawles  v. 
People,  2  Colo.  App.  501;  Hamillz'. 
Ashley,  11  Colo.  180;  Druckenmiller 
V.  Young,  27  Pa.  St.  97. 

In  Dixon  v.  Dixon,  19  Iowa  512,  and 
Hodges  V.  Kimball,  49  Iowa  577,  a 
suit  was  brought  in  the  name  of  a 
partner  upon  a  cause  of  action  belong- 
ing to  the  firm,  and  an  amendment 
was  allowed  by  inserting  the  name  of 
the  firm. 

In  Lewis  v.  Locke,  41  Vt.  11,  a  suit 
was  brought  in  the  name  of  a  firm, 
and  the  names  of  the  partners  were 
inserted  by  amendment.  Likewise 
where  the  suit  was  brought  in  the 
name  of  a  liquidator  of  the  firm.  Est- 
lin  V.  Ryder,  20  La.  Ann.  251. 

In  Lake  Erie,  etc.,  R.  Co.  v.  Boswell 
(Ind.,  1894),  36  N.  E.  Rep.  1103,  the 
name  of  a  town  was  substituted  for 
that  of  its  trustees  as  plaintiff,  the 
court  citing  Burk  v.  Andis,  98  Ind.  59. 

In  Wood  V.  Lane,  84  Mich.  521, 
a  suit  upon  an  insurance  policy, 
the  heirs  of  the  deceased  were  substi- 
tuted for  an  administrator.  So  in 
Teutonia  L.  Ins.  Co.  v.  Mueller,  77  III. 
22. 

Where  a  suit  is  brought  in  the  name 
of  an  infant  the  latter  may  on  coming 
of  age  be  made  a  party  to  the  action. 
Chisolm  V.  Skillman,  2  La.  146. 

Substituting  Beneficiary. — The  name 
of  one  for  whose  use  the  action 
is  brought  may  be  substituted  for 
that  of  the  nominal  plaintiff  where 
the  legal  right  of  action  is  shown  to 
be  in  the  former.  McLewis  v.  Furger- 
son.  59  Ga.  644;  Wilson  v.  First  Pres- 
byterian Church,  56  Ga.  554;  Childers 
V.  Adams,  42  Ga.  352;  Glenn  v.  Black, 
31  Ga.  393;  Whittaker  v.  Pope  (Ga.), 
2  Woods  (U.  S.)  463  ;  Miller  v.  Pol- 
lock, 99  Pa.  St.  202;  Dwyer  v.  Ken- 
nemore,  31  Ala.  404;  Montague  v. 
King,  37  Miss.  441;  Martel  v.  Somers, 
26  Tex.  551;  Fenwick  v.  Phillips,  3 
Met.  (Ky.)  87;  Buckland  v.  Green.  133 
Mass.  421.  See  also  Johnson  v.  Mar- 
tin, 54  Ala.  271;  McColley  v.  Collins, 
5  Harr.  (Del.)  391.  But  not  where  the 
effect  would  be  to  deprive  the  defendant 
of  a  just  set-oflf.  Morrow  v.  Merchants', 
etc..  Bank,  35   Ga.   267.      And   where 


the  amendment  is  properly  allowed 
there  should  be  another  amendment 
striking  out  the  name  of  the  nominal 
plaintiff.  Richmond,  etc.,  R.  Co.  v. 
Bedell,  88  Ga.  591. 

Substituting  Holder  of  Legal  Title. — 
One  having  the  legal  title  to  sue 
may  be  substituted  as  plaintiff  suing 
for  the  use  of  the  equitable  owner  who 
was  the  original  plaintiff.  Estes  v. 
Thompson,  90  Ga.  698;  Nicholson  v. 
Harris,  90  Ga.  257;  Lewis  v.  Austin, 
144  Mass.  383;  Walthour  J/.  Spangler, 
31  Pa.  St.  523;  Boles  v.  Jessup,  57 
Ark.  469;  and  Costello  v.  Crowell,  134 
Mass.  280,  where  the  plaintiff  suing  as 
the  endorsee  of  a  non-negotiable  note 
was  allowed  to  substitute  the  name  of 
the  payee  as  plaintiff.  American  Union 
Tel.  Co.  V.  Daughtery,  85  Ala.  191; 
Harris  v.  Plant,  31  Ala.  659;  Downey 
V.  Garard,  24  Pa.  St.  52.  See  also 
Kaylor  v.  Saffner,  24  Pa.  St.  489. 

Entirely  New  PlaintifiF.  —  In  Wood 
V.  Metropolitan  L.  Ins.  Co.,  96  Mich. 
437,  it  was  held  that  an  assignee 
of  the  plaintiff  could  not  be  made 
a  party  plaintiff,  because  it  was 
a  change  of  the  real  parties  in  inter- 
est. Contra,  Talbert  v.  Becton,  iii  N. 
Car.  543.  See  also,  as  to  making  en- 
tirely new  plaintiffs,  infra  5,  h. 

Laches  in  Applying  for  Leave. — Leave 
to  amend  by  substituting  the  name  of 
another  person  in  the  place  of  one  for 
whose  use  the  plaintiff  sues  may  be 
refused  at  a  late  stage  of  the  case. 
Burrus  v.  Fisher,  27  Miss.  418. 

Actual  Amendment,  When  Unnecessary. 
—  In  Illinois  it  is  not  the  practice, 
where  the  representatives  of  a  de- 
ceased party  are  substituted,  to  amend 
by  actually  inserting  their  names  in 
the  declaration.  Hoes  v.  Van  Alstyne, 
20  III.  201. 

1.  Hunt  V.  Collins,  4  Iowa  56;  Agee 
V.  Williams.  30  Ala.  636;  Crimm  v. 
Crawford,  29  Ala.  623;  Farrow  v. 
Bragg,  32  Ala.  260 ;  Longmire  v. 
Pilkington,  37  Ala.  296;  Lucas  v.  Pitt- 
man,  94  Ala.  616;  Humphries  v.  Daw- 
son, 38  Ala.  199;  Ikelheimer  v.  Chap- 
man, 32  Ala.  676;  McCoy  v.  Watson, 
51  Ala.  466;  Reed  v.  Cooper,  30  Kan. 
574;  Hines  v.  Rutherford,  67  Ga.  606; 
Smith  V.  Pinney,  86  Mich.  484;  Mor- 
ford    V.  Dieffenbacker,  54  Mich.   593; 


53S 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


tative,  he  may  be  allowed  to  amenu  by  declaring  in  his  individual 
capacity.*  So  a  misdescription  of  tiie  plaintiff,*  or  of  the  repre- 
sentative or  other  capacity  in  whicli  the  plaintiff  sues,  is  amend- 
able.^    But  a  proceeding  in  the  name  of  neither  a  natural  nor  an 


Wiley  V.  Lovely,  46  Mich.  87;  Buffing- 
ton  V.  Blackwell,  52  Ga.  129;  Smith  v. 
Anderson,  39  Tex.  496;  Anderson  v. 
Brock,  3  Me.  243.  See  also  Smith  v. 
Proctor,  I  Sandf.  (N.  Y.)  72;  Flower 
V.  Garr,  20  Wend.  (N.  Y.)  668;  Megar- 
gell  V.  Hazleton  Coal  Co.,  8  W.  &  S. 
(Pa.)  342. 

A  coplaintiff  with-  a  minor  may 
amend  by  describing  himself  as  next 
friend  of  the  minor.  Sick  v.  Michi- 
gan Aid  Assoc,  49  Mich.  50. 

A  declaration  in  the  name  of  a 
guardian  may  be  amended  by  making 
the  ward  plaintiff  suing  by  her  next 
friend,  who  is  the  guardian.  Morford 
V,  Dieffenbacker,  54  Mich.  593;  Wiley 
■V.  Lovely,  46  Mich.  87;  Slater  v. 
Nason,  15  Pick.  (Mass.)  345;  Perine 
V.  Grand  Lodge,  48  Minn.  82;  and 
Van  Pelt  v.  Chattanooga,  etc.,  R.  Co., 
84  Ga.  706,  were  cases  of  a  similar 
nature.  See  also  Greenman  v.  Cohee, 
61  Ind.  201.  But  Fowlkes  v.  Memphis, 
etc.,  R.  Co.,  38  Ala.  310,  is  an  author- 
ity to  the  contrary. 

In  Hagerty  v.  Hughes,  4  Baxt. 
(Tenn.)  222,  it  was  held  that  where  a 
husband  sues  in  his  own  name  as  such 
and  afterwards  amends  so  as  to  claim 
as  administrator  for  the  use  of  his 
children,  it  is  an  abandonment  of  the 
original  suit  and  operates  as  a  discon- 
tinuance. 

1.  Heard  v.  Lockett,  20  Tex.  162; 
Payne  v.  Furlow,  29  La.  Ann.  160; 
Bragdon  v.  Harmon,  69  Me.  29.  See 
also  Bryant  v.  Helton,  66  Ga.  477. 

If  the  declaration  leaves  it  uncertain 
whether  plaintiff  is  suing  individually 
or  as  a  representative,  an  amendment 
is  proper.  Wolscheid  v.  Thome,  76 
Mich  265. 

A  plaintiff  suing  as  executor  cannot 
amend  so  as  to  sue  in  his  own  right 
on  a  distinct  and  separate  title.  Phil- 
lips V.  Melville,  10  Hun  (N.  Y.)  211. 

In  Alabama  a  plaintiff  cannot  amend 
by  striking  out  the  name  of  the  person 
for  whose  use  the  suit  is  instituted. 
Teer  v.  Sandford,  i  Ala.  525;  Jemison 
V.  Planters',  etc..  Bank,  23  Ala.  168. 
Compare  Lucas  v.  Pittman,  94  Ala. 
616.  But  the  statutory  action  in  the 
nature  of  ejectment  is  an  exception. 
Caldwell  v.  Smith,  77  Ala.  157. 


In  Mississippi  the  name  of  the  usee 
may  be  struck  out.  Anderson  v.  Rob- 
ertson, 32  Miss.  241 ;  Archer  v.  Stamps, 
4  Smed.  &  M.  (Miss.)  352. 

So  in  Georgia.  ^tna  Ins.  Co.  v. 
Sparks,  62  Ga.  187. 

2.  In  a  suit  by  a  foreign  corporation 
an  omission  to  aver  its  corporate 
character  may  be  amended.  Southern 
L.  Ins.  Co.  V.  Roberts,  60  Ala.  431.  See 
also  Jemison  v.  Planters',  etc.,  Bank, 
23  Ala.  168;  St.  Louis,  etc.,  R.  Co.  v. 
Camden  Bank,  47  Ark.  541. 

Members  of  a  corporate  board  suing 
in  their  own  names  on  a  corporate 
right  may  amend  by  describing  them- 
selves as  a  corporation.  M.  E.  Church 
V.  Town,  49  Vt.  29;  Shoudy  v.  School 
Directors,  32  111.  290;  Yocum  v. 
Waynesville,  39  111.  220. 

Plaintiff  suing  on  a  note  may  amend 
by  adding  averments  that  he  sues  not 
as  a  payee,  but  as  assignee  or  owner. 
Long  V.  Patterson,  51  Ala.  414. 

Plaintiff  may  amend  by  describing 
himself  as  "  doing  business  under  the 
name  of  "  another  person.  Hathaway 
V.  Sabin,  61  Vt.  608. 

Plaintiffs  suing  as  heirs  of  B.  may 
amend  by  claiming  as  the  heirs  of  A. 
Reams  v.  Spann,  28  S.  Car.  530. 

An  infant  suing  in  his  own  name 
may  amend  so  as  to  sue  by  guardian. 
Sabine  v.  Fisher,  37  Wis.  376. 

A  suit  by  a  voluntary  association 
cannot  be  amended  into  a  suit  under 
the  name  by  which  it  was  subsequent- 
ly incorporated.  Marsh  River  Lodge 
V.  Brooks,  61  Me.  585. 

3.  Johr  V.  St.  Clair  County,  38  Mich. 
532  ;  O'Connell  v.  Schwanabeck,  76 
Mich.  517  ;  Donovan  v.  Halsey  Fire 
Engine  Co.,  58  Mich.  38;  Rutherford 
V.  Hobbs,  63  Ga.  243  ;  Van  Pelt  v. 
Chattanooga,  etc.,  R.  Co.,  89  Ga.  706; 
Tumlin  v.  Quarles,  26  Ga.  395; 
Humphries  v.  Dawson,  38  Ala.  199. 
See  also  Cannon  v.  Mathis,  10  Heisk. 
(Tenn.)  575- 

One  suing  as  an  heir  at  law  may 
amend  so  as  to  sue  as  executor.  Hines 
V.  Rutherford,  67  Ga.  606.  Or,  suing 
as  executor  may  amend  by  declaring 
as  administrator.  Risley  v.  Wight- 
man,  13  Hun  (N.  Y.)  163. 

Plaintiff  suing  as  agent  may  strike 


539 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 


artificial  person  is  beyond  the  reach  of  amendment.* 

c.  Misdescription  of  Defendant — Nominal  Change. — A 
misdescription  of  the  defendant,*  or  of  the  capacity  in  which  he 
ii  sued,  may  be  corrected  by  amendment  ;*  and  the  party  legally 


out  the  descriptive  words.  McDuflBe 
V.  Irvine,  91  Ga.  748. 

Plainliflf  suing  as  receiver  of  a  cor- 
poration may  amend  by  substituting 
the  name  of  the  corporation.  Chand- 
ler V.  Frost,  88  111.  559- 

Plaintiff  suing  as  executor  may 
amend  by  correcting  the  name  of  the 
testator.  Benjamin  v.  Boyce,  2  Harr. 
(Del.)  316.  Or  by  describing  himself 
as  administrator.  Risley  v.  Wight- 
man,  13  Hun  (N.  Y.)  163. 

Where  an  action  on  an  administra- 
tion bond  was  brought  in  the  name  of 
the  administrator  de  bonis  non  instead 
of  in  that' of  the  state  on  his  relation, 
an  amendment  making  the  proper 
plaintiff  was  allowed.  Grant  z/.  Rogers, 
94  N.  Car.  755.  Harris  v.  Plant,  31 
Ala.  639;  Judge  of  Probate  v.  Jackson, 
58  N.  H.  458;  State  v.  Shelby,  75  Mo. 
482;  Waterman  v.  Dockray,  79  Me. 
149;  Clement  v.  Com.,  95  Pa.  St.  107; 
and  Meyer  v.  State,  125  Ind.  335, 
were  decided  on  precisely  the  same 
principle.  But  if  not  amended,  the 
omission  is  too  radical  to  be  corrected 
in  the  appellate  court  under  the  statute 
of  jeofails.  Snyder  v.  State,  21  Ind. 
77;  Cutshaw  V.  Fargo  (Ind.,  1894),  36 
N.  E.  Rep.  650;  Taggart  v.  State,  49 
Ind.  43. 

A  party  who  sues  in  the  name  of 
another  when  he  might  sue  in  his 
own  name  may  amend  and  proceed 
in  his  own  name.  Frank  v.  Kaigler, 
36  Tex.  305. 

A  relator  in  an  action  by  the  state 
on  a  trustee's  bond  against  the  trustee 
and  his  sureties  may  be  permitted  to 
amend  his  complaint  so  as  to  make  it 
an  action  by  the  relator  as  plaintiff 
against  the  trustee  alone  to  set  aside 
as  fraudulent  the  defendant's  final 
report.    Boyd  v.  Caldwell,  95  Ind.  392. 

In  an  action  on  an  account  between 
plaintiff  and  defendant,  an  amendment 
alleging  that  the  plaintiff  sues  as 
transferee  of  a  third  person  introduces 
a  different  cause  of  action,  and  is  not 
allowable.  Barron  v.  Walker,  80  Ga. 
121.  See  also  Henry  v.  Central  R. , 
etc.,  Co.,  89  Ga.  815. 

1.  Mexican  Mill  v.  Yellow  Jacket 
Silver  Min.  Co.,  4  Nev.  40. 

a.   Nary  v.  Henni,  45  Wis.  473. 


The  plaintiff  may  strike  out  the 
description  of  the  defendants  as  trad- 
ing in  a  firm-name.  Schollenberger  v. 
Seldonridge,  49  Pa.  St.  83. 

An  amendment  may  be  made  so  as 
to  show  that  the  defendant  is  a  body 
corporate  and  sued  in  that  capacity. 
Alabama  Western  R.  Co.  v.  Sistrunk, 
85  Ala.  352. 

An  amendment  by  which  the  defend- 
ant was  described  as  "executor  of 
J.  B.,Jr.,"  instead  of  "administrator 
of  J.  B.,"  was  allowed.  Ballou  v.  Til- 
ton,  52  N.  H.  605.  See  also  McElwain 
V.  Corning,  12  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  16;  Proctor  v.  Andrew,  i  Sandf. 
(N.  Y.)  70. 

A  declaration  alleging  that  "the 
defendant  testator,  etc.,  being  in- 
debted, etc.,  promised,"  may  be 
answered  by  declaring  that  "  the  in- 
testate, etc.,  promised."  Eaton  v. 
Whitaker,  6  Pick.  (Mass.)  465. 

3.  Where  a  suit  is  brought  against 
"  defendants,  receivers  "  of  a  corpora- 
tion, etc.,  an  amendment  may  be  made 
charging  them  "as  receivers,"  etc. 
Eddy  V.  Powell,  49  Fed.  Rep.  814. 

If  a  defendant  is  sued  in  his  repre- 
sentative character,  the  complaint 
may  be  amended  so  as  to  stand 
against  him  as  an  individual.  Lucas 
V.  Pittman,  94  Ala.  616,  overruling 
Christian  'z/.  Morris,  50  Ala.  585, 
and  Taylor  v.  Taylor,  43  Ala.  649; 
and  holding  Kirkman  v.  Benham,  28 
Ala.  50T,  inapplicable.  Jemison  v. 
Planters',  etc.,  Bank,  23  Ala.  168,  was 
decided  before  the  Code. 

Under  the  Connecticttt  Practice  Act, 
§>i  12,  15,  and  16,  a  complaint  against 
the  defendant  as  administrator  can  be 
amended  so  as  to  make  it  charge  the 
defendant  in  his  individual  capacit}\ 
McDonald  v.  Ward,  57  Conn.  304,  cit- 
ing, as  exactly  in  point,  Tighe  v. 
Pope,  16  Hun  (N.Y.)  180;  Fuller  v. 
Webster  F.  Ins.  Co.,  12  How.  Pr.  (N. 
Y.  Supreme  Ct.)  293;  Haddow  z'.  Had- 
dow,  3  Thomp.  &  C.  (N.  Y.)  777. 

But  the  amendment  cannot  be  made 
after  trial  to  enable  a  judgment  to  be 
entered  against  the  defendant  indi- 
vidually. Van  Cott  V.  Prentice,  104 
N.  Y.  45. 

A   defendant  sued   personally  may 


540 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc, 

liable  may  be  substituted  as  a  defendant  where  the  amendment 
does  not  work  a  substantial  change  in  the  cause  of  action.* 

d.  Adding  Plaintiffs. — At  common  Law  new  plaintiffs  could  not 
be  added  by  amendment.* 

statutory  Provisions,  especially  in  the  Code  states,  have  substantially 
adopted  the  liberal  practice  of  the  Court  of  Chancery,  and  allow 
new  plaintiffs  to  be  added  when  it  becomes  necessary  in  order  to 
bring  the  merits  of  the  controversy  fairly  to  trial.^ 


be  charged  by  amendment  in  his  ca- 
pacity as  administrator.  Hutchinson 
V.  Tucker,  124  Mass.  240. 

In  a  suit  on  a  bill  of  exchange  an 
omission  to  charge  the  defendants  as 
drawers  and  endorsers  may  be  sup- 
plied by  amendment.  Ware  v.  Macon 
City  Bank,  59  Ga.  840. 

After  Submission  of  Case. — An  amend- 
ment by  charging  the  defendant  in  a 
new  capacity  may  be  refused  where 
the  application  is  made  after  submis- 
sion of  the  case.  Hays  v.  Turner,  23 
Iowa  214. 

1.  The  person  in  whom  the  legal 
title  is  vested  may  be  substituted  as  a 
defendant.  Seitz  v.  Buffum,  14  Pa.  St. 
69. 

Where  suit  was  brought  against  the 
president  of  a  company  to  enforce  a 
company  liability,  the  declaration 
was  held  amendable  by  striking  out 
his  name,  so  that  it  should  stand 
against  the  corporation.  Kimball, 
etc.,  Mfg.  Co.  V.  Vroman,  35  Mich. 
310;  Prairie  Lodge  v.  Smith,  58  Miss. 
301,  identical  in  principle.  But  see 
Davis  Ave.  R.  Co.  v.  Mallon,  57  Ala. 
168;  Shuler  v.  Meyers,  5  Lans.  (N.  Y.) 
170. 

So  where  suit  was  brought  against  a 
voluntary  association  in  its  own  name, 
an  amendment  was  allowed  by  substi- 
tuting its  proper  officers,  so  as  to  com- 
ply with  the  statute.  McKane  v. 
Democratic  Gen'l  Committee,  21  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  89. 

Defendants  sued  as  individuals  may 
be  charged  as  a  partnership  by 
amendment.  Williams  v.  Bowdin,  68 
Ala.  126;  and,  vice  versa,  Sims  v. 
Jacobson,  51  Ala.  186;  Bannerman  v. 
Quackenbush,  11  Daly  (N.  Y.)  529. 
Compare  La  Soci6t6,  etc.,  v.  Weide- 
mann,  97  Cal.  507. 

In  Ohio,  whefe  the  petition  is  filed 
before  the  summons  is  issued,  if  the 
names  of  partners  are  substituted  in 
the  place  of  the  partnership  name, 
there  must  be  a  new  service  of  pro- 


cess. Marienthal  v.  Amburgh,  2 
Disney  (Ohio)  586. 

2.  Choteau  v.  Hewitt,  10  Mo.  131; 
Chamberlin  v.  Hite,  5  Watts  (Pa.) 
373;  Wilson  V.  Wallace,  8  S.  &  R.  (Pa.) 
53;  Carskadden  v.  McGhee,  7  W.  &  S. 
(Pa.)  140;  Elliott  v.  Clark,  18  N.  H. 
421;  Ayer  v.  Gleason,  60  Me.  207: 
White  v.  Curtis,  35  Me.  534;  Winslow 
V.  Merrill,  11  Me.  127;  Pitkin  v.  Roby, 
43  N.  H.  138;  Willink  v.  Renwick,  22 
Wend.  (N.  Y.)  608;  McWilliams  v. 
Anderson,  68  Ga.  772. 

In  Maine  the  common  law,  so  far  as 
relates  to  defendants,  was  changed  by 
statute  in  1835,  c.  178,  §4,  by  allow- 
ing the  insertion  or  striking  out  of 
the  names  of  the  defendants.  Rev. 
Stat.  1871,  c.  82,  g  II.  But  this  pro- 
vision has  never  been  held  to  au- 
thorize any  amendment  of  a  similar 
character  as  to  plaintiffs.  Ayer  v. 
Gleason,  60  Me.  207,  208;  White  v. 
Curtis,  35  Me.  534.  Thus,  where  the 
defendant  was  summoned  in  an  action 
of  trover  to  answer  to  "  James  C.  Ayer 

and of,"  etc.,  "  copartners  under 

the  style  and  firm-name  of  James  C. 
Ayer  &  Co.,"  an  amendment  by  in- 
serting the  names  of  the  other  mem- 
bers of  the  firm  was  not  allowed. 
Ayer  v.  Gleason,  60  Me.  207. 

3.  Tayon  v.  Ladew,  33  Mo.  205; 
Wellman  v.  Dismukes,  42  Mo.  loi; 
Berry  v.  Ferguson,  58  Ala.  314;  Har- 
ris V.  Swanson,  62  Ala.  299;  Godbold 
V.  Blair,  27  Ala.  592;  Reynolds  v. 
Smathers,  87  N.  Car.  24;  Dutcher  v. 
Slack,  I  Code  R.  (N.  Y.)  113;  Acquital 
V.  Crowell,  i  Cal.  191;  Polk  v.  Coffin, 
9  Cal.  56;  Cerf  v.  Ashley,  68  Cal.  419; 
Hubler  v.  Pullen,  9  Ind.  273;  Flatley 
V.  Memphis,  etc.,  R.  Co.,  9  Heisk. 
(Tenn.)  230;  Brazelton  v.  Turney,  7 
Coldw.  (Tenn.)  267;  Lanes  v.  Squyres, 
45  Tex.  382;  Weinsteine  v.  Harrison, 
66  Tex.  546;  Reagan  v.  Copeland,  78 
Tex.  551;  Galveston,  etc.,  R.  Co.  v. 
House,  4  Tex.  Civ.  App.,  263;  Hanlin 
V.   Baxter,  20  Kan.  134;  Leavenworth 


541 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


e.  Adding  Defendants. — At  common  law  new  defendants  could 
not  be  added  by  way  of  amendment  unless  by  the  express  con- 
sent of  the  parties  ;*   but  legislative  sanction  for  such  amendments 
is  now  common  where  the  presence  of  the  new  parties  is  essential 
«  to  a  complete  determination  of  the  case.* 


First  Nat.  Bank  v.  Tappan,  6  Kan. 
456;  Shaffer  v.  Eichert,  132  Pa.  St. 
285;  Hite  V.  Kier,  38  Pa.  St.  72;  Balti- 
more, etc.,  Extension  Co.  v.  Seiple 
(Pa.,  1889),  18  Atl.  Rep.  568;  Has- 
brouck  V.  Winkler,  48  N.  J.  L.  431; 
Boles  V.  Jessup,  57  Ark.  469. 

In  the  Appellate  Court. — Where  eject- 
ment was  brought  by  a  plaintiff  in  right 
of  his  wife,  and  on  the  trial  verdict 
and  judgment  were  had  for  the  plain- 
tiff, an  amendment  adding  the  name  of 
the  wife  as  a  necessary  coplaintiff, 
doing  no  injury  to  the  defendant,  may 
be  made  on  the  argument  in  the  Su- 
preme Court.  Shaffer  v.  Eichert,  132 
Pa.  St.  285. 

On  Appeal  in  County  Court. — In  Ver- 
viont.  Revised  Laws,  §  939,  authorizes 
the  addition  of  necessary  plaintiffs  in 
actions  on  contract  at  any  time  before 
judgment,  and  leave  may  be  granted 
by  the  County  Court  in  a  case  appealed 
from  the  Probate  Court.  Wyman  v. 
Wilcox's  Estate,  63  Vt.  487. 

After  Verdict. — Where  the  merits  of 
the  case  have  been  fully  tried  the 
plaintiff  may  have  leave  to  amend  after 
verdict  by  joining  another  party  as 
plaintiff,  so  as  to  conform  to  the  proof. 
Fenton  v.  Lord,  128  Mass.  466. 

Joining  Tenants  in  Common. — A  tenant 
in  common  or  joint  tenant  suing  alone 
for  rent  may  be  permitted  to  join  his 
cotenant  as  plaintiff.  Weinsteine  v. 
Harrison,  66  Tex.  546. 

In  Ejectment. — In  actions  of  eject- 
ment in  Illinois  a  declaration  may  be 
amended  by  adding  a  count  making 
new  parties  plaintiffs.  Chapin  v.  Cur- 
tenius,  15  111.  427.  See  also  Strean  v. 
Lloyd,  128  III.  493. 

In  Partnership  Suits. — In  all  suits  by 
partners  or  persons  jointly  interested, 
where  the  name  of  anyone  who  ought 
to  have  joined  is  omitted,  it  may  be  in- 
serted instanter  on  motion;  but  a  suit 
brought  by  one  in  his  individual  name 
cannot  be  changed  into  a  suit  in  the 
name  of  the  partnership.  Blackwell 
V.  Pennington,  66  Ga.  240.  But  see 
Dixon  V.  Dixon,  19  Iowa  512;  Lewis 
V.  Locke,  41  Vt.  II. 

The  Connecticut  statute  provides  that 
all  suits  for  or  against  a  partnership 


may  be  commenced  in  the  company 
name,  and  that  the  plaintiff  may  amend 
by  inserting  the  names  of  the  members 
of  the  firm.  It  was  held  that  a  suit 
commenced  in  the  names  of  several 
persons  as  constituting  a  partnership 
might  be  amended  by  inserting  the 
name  of  another  partner.  Stuart  v. 
Corning,  32  Conn.  105. 

At  What  Stage. — Although  the  stat- 
ute allows  the  names  of  partners  to  be 
inserted  within  the  first  three  days  of 
the  term,  the  court  may  in  its  discre- 
tion allow  plaintiff  to  insert  them  at 
a  later  stage  of  the  case,  the  statute 
being  liberally  construed.  Phelps  v. 
Enz,  19  Conn.  58. 

Process  upon  Amending. — The  Ten- 
nessee Code  allows  the  name  of  a  new 
plaintiff  to  be  substituted  without  any 
process.  Flatley  v.  Memphis,  etc.,  R. 
Co.,  9  Heisk.  (Tenn.)  230. 

Answer  to  Amendment. — A  defendant 
who  has  answered  a  petition  is  not  in 
default  because  an  amended  petition 
is  filed  making  a  new  party  plaintiff  to 
which  no  new  answer  is  filed.  Stevens 
V.  Thompson,  5  Kan.  305. 

1.  Winslow  V.  Merrill,  11  Me.  127; 
Ayer  v.  Gleason,  60  Me.  208;  Noll  v. 
Swineford,  6  Pa.  St.  187;  Gove  v. 
Lawrence,  24  N.  H.  128,  an  action  on 
a  joint  contract;  Seitz  v.  Buffum,  14 
Pa.  St.  70;  Commission  Co.  v.  Russ, 
8  Cow.  (N.  Y.)  122. 

2.  Richter  v.  Cummings,  60  Pa.  St. 
441;  Reber  v.  Wright,  68  Pa.  St.  471; 
Hilton  V.  Osgood,  49  Conn,  no; 
Alexander  v.  Thacker,  30  Neb.  614; 
Harkins  v.  Edwards,  i  Iowa  296; 
Lewis  V.  Adams,  70  Cal.  403;  Johnston 
».  Neville,  68  N.  Car.  177;  Riley  v. 
Stern,  23  Abb.  N.  C.  (N.  Y.  City  Ct.) 
435;  Bank  v.  Hornsey,  13  Civ.  Pro. 
Rep.  (N.  Y.  City  Ct.)  158;  Lewin  v. 
Wright,  31  Hun  (N.  Y.)  327;  Peyser 
V.  Wendt,  87  N.  Y.  322,  an  amendment 
allowed  by  a  referee;  Bergmann  v. 
Salmon  (Supreme  Ct.),  53  N.  Y.  St. 
Rep.  236.  See  also  Boute  v.  Taylor, 
24  Ohio  St.  62S. 

In  regard  to  the  right  of  the  new  de- 
fendant to  set  up  defenses  as  of  the 
date  when  he  is  brought  in,  see  infra, 
12,  a,  (2). 


542 


Of  Pleadings,  etc.,  at  AMENDMENTS.    CommoQ  Law,  under  Codes,  etc. 

/.  Striking  Out  Plaintiffs. — At  common  Law,  amendments 
by  striking  out  the  names  of  existing  plaintiffs  were  not  allowa- 
ble,* where  nothing  had  occurred  since  the  commencement  of  the 
suit  to  change  the  relations  of  the  parties  or  the  character  of  the 
claim. ^ 


When  not  Allowed.  —  A  defendant 
cannot  be  added  at  so  late  a  period  as 
to  deprive  him  of  any  substantial 
right  that  he  might  have  asserted  if 
he  had  been  made  a  party  at  the  com- 
mencement of  the  proceedings.  Young 
V.  Young,  83  Pa.  St.  422. 

Amendment  of  Coarse. — Under  the  pro- 
visions of  Wisconsifi  Gen.  Laws  1859, 
c.  181,  the  plaintiff  in  an  action  might 
amend  of  course  by  making  new  defend- 
ants.    Mead  v.  Bagnall,  15  Wis.  156. 

Before  Plea  in  Abatement. — Massachu- 
setts Stat.  1833,  c.  194,  provided  for 
adding  proper  defendants  in  certain 
cases  "  at  any  time  before  issue  joined 
on  a  plea  of  nonjoinder,"  and  it  was 
construed  to  allow  the  insertion  of  a 
defendant  although  no  plea  of  non- 
joinder had  been  filed.  Goddard  v. 
Pratt,  16  Pick.  (Mass.)  412.  See  also 
Pitkin  V.  Roby,  43  N.  H.  13S. 

After  Plea  in  Abatement  Sustained. — 
A  new  defendant  may  be  cited  in,  al- 
though there  is  no  cause  of  action 
against  the  original  defendants;  and 
this  may  be  done  after  the  writ  has 
been  abated,  a  statute  expressly  pro- 
viding for  amendment  of  defects  af- 
ter plea  in  abatement  sustained.  Hil- 
ton V.  Osgood,  49  Conn.  no.  See 
Chamberlin  v.  Noyes,  7  Hill  (N.  Y.) 
145;  Shute  V.  Davis,  2  Johns.  Gas.  (N. 
Y.)336. 

After  Demurrer  Sustained. — The  plain- 
tiff may  bring  in  defendants  by  amend- 
ment after  demurrer  has  been  sus- 
tained for  nonjoinder.  Alexander  v. 
Thacker,  30  Neb,  614;  State  v.  Leckie, 
14  La.  Ann.  651. 

Insufficient  Amendment.  —  Where  a 
complaint  stating  no  cause  of  action 
or  ground  of  relief  against  a  particular 
person  is  not  so  amended  as  to  do  so, 
an  order  making  such  person  a  party 
defendant  and  requiring  him  to  appear 
and  answer  such  complaint  is  erro- 
neous. Penfield  v.  Wheeler,  27  Minn. 
358.  But  an  amendment  which  is  in- 
sufficient in  that  respect  may  be  reme- 
died bv  further  amendment.  Detroit 
Third  'Nat.  Bank  v.  Reilly,  81  Mich. 
438. 

Improper  Defendants.  —  Where  the 
statute  allows  the  insertion  of  "  proper 


parties  "  by  amendment,  the  court  may 
refuse  to  allow  defendants  to  be  in- 
troduced against  whom  the  suit  can- 
not be  maintained.  Tennessee  Bank 
V.  Skillern,  2  Sneed  (Tenn.)  698. 

Where  Liability  Accrues  Pending  Suit. 
— A  defendant  who  was  not  liable 
when  the  suit  was  commenced  cannot 
be  added,  although  he  may  have  ren- 
dered himself  liable  by  ratification  of 
the  contract  of  the  original  defend- 
ant, his  agent,  pending  the  suit.  Burns 
V.  Campbell,  71  Ala.  272. 

Effect  of  Refusing  Leave.  —  Where 
leave  to  add  a  new  defendant  is  denied, 
the  ruling  may  be  deemed  as  made 
with  the  consent  of  the  defendant  on 
record,  so  that  he  cannot  subsequently 
complain  of  a  nonjoinder  or  misjoin- 
der of  parties.  Fulton  v.  Cox,  40  Cal. 
lor. 

Effect  of  Making  a  New  Defendant. — 
Where  a  new  defendant  is  brought  in 
by  order  of  court,  the  complaint  must 
be  amended  or  another  complaint  filed 
as  to  him,  unless  he  waives  his  right 
by  answering  the  original  complaint. 
Vass  V.  People's  BIdg.,  etc.,  Assoc, 
91  N.  Car.  55;  Smith  v,  Weage,  21 
Wis.  440;  Levi  v.  Engle,  91  Ind.  330; 
Vance  v.  Schroyer,  77  Ind.  501. 

Where  new  defendants  are  brought 
in  by  amendment  of  the  complaint, 
the  summons  must  be  amended  accord- 
ingly; otherwise  the  amendment  may 
be  stricken  out  on  motion  of  the  origi- 
nal defendant.  Follower  v.  Laughlin, 
12  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  105. 

1.  Ayer  v.  Gleason,  60  Me.  207; 
White  V.  Curtis,  35  Me.  534;  Roach  v. 
Randall,  45  Me.  438;  Treat  v.  Mc- 
Mahon,  2  Me.  120,  where  the  court  re- 
fused leave  to  strike  out  the  name  of 
a  demandant  improvidently  inserted  in 
a  writ  of  entry;  Pickett  v.  King,  4  N. 
H.  212,  a  similar  case;  Kelly  v.  Eich- 
man,  3  Whart.  (Pa.)  419;  Crump  v. 
Wallace,  27  Ala.  277;  Moores  v.  Carter, 
Hempst.  (U.  S.)  64.  See  also  Cars- 
kadden  v.  McGhee,  7  W.  &  S.  (Pa.)  140. 

2.  In  Chadbourne  v.  Rackliff,  30  Me. 
354,  an  amendment  by  striking  out 
the  name  of  one  of  the  demandants  in 
a  writ  of  entry, was  allowed,  but  this 
was  upon  the  ground  that  the  tenf  nt 


543 


Of  rieadings,  etc.,  at    .       AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Statutory  Provisions  in  almost  every  State  authorize  amendments  by 
striking  out  one  or  more  of  several  plaintiffs.* 

g.  Striking  Out  Defendants.— At  common  Law  amendments 
by  striking  out  one  or  more  of  several  defendants  were  allowed  in 
actions  for  torts  and  in  real  actions,^  but  not  in  actions  on  con- 
tracts.^ 


had  acquired  the  title  of  one  of  the 
original  demandants  after  the  com- 
mencement of  the  suit.  So  in  Treat 
V.  Strickland,  23  Me.  234,  where  one 
of  the  demandants  died  after  suit 
brought. 

1.  Thompson  v.  Mosely,  29  Mo.  477; 
Davis  V.  Ritchie,  85  Mo.  501;  Tayon  v. 
Ladew,  33  Mo.  205;  Farrow  v.  Com. 
Ins.  Co.,  iS  Pick.  (Mass.)  57;  Finney 
V.  Bedford  Commercial  Ins.  Co.,  8 
Met.  (Mass.)  34S;  Thayer  v.  Hollis,  3 
Met.  (Mass.)  369;  Dodge  v.  Wilkin- 
son, 3  Met.  (Mass.)  292;  Parker  v. 
Chambers,  24  Ga.  518  ;  Whitaker  v. 
Pope,  2  Woods  (U.  S.)  463;  Hinkle 
V.  Davenport,  38  Iowa  355;  Butcher 
V.  Carleton,  11  Iowa  47  ;  Collins  v. 
Tovvnsend,  2  Harr.  (Del.)  317  n.  a.; 
Reed  v.  Northeastern  R.  Co.,  37  S. 
Car.  42;  Hudson  v.  Feige,  58  Mich. 
148;  Miller  v.  Cappel,  39  La.  Ann. 
SSi  ;  Neal  v.  Spooner,  20  Fla.  38  ; 
Hamill  v.  Ashley,  11  Colo.  180;  Jarrett 
V.  Gibbs,  107  N.  Car.  303;  Tormey  v. 
Pierce,  49  Cal.  306;  Heath  v.  Lent,  i 
Cal.  410;  Wilson  v.  King,  6  Yerg. 
(Tenn.)493;  Lillard  z/.  Rucker,  9  Yerg. 
(Tenn.)  64;  Weaver  z/.  Young,  37  Kan. 
70;  Hanlin  v.  Baxter,  20  Kan.  134,  a 
case  in  a  justice  court;  Kansas  Pac. 
R.  Co.  V.  Nichols,  9  Kan.  235;  Holt  v. 
Thacher,  52  Vt.  592;  Miller  v.  Pollock, 
99  Pa.  St.  202;  Musser  v.  Gardner,  66 
Pa.  St.  242;  Rangier  v.  Hummel,  37 
Pa.  St.  130;  Lapham  v.  Rice,  55  N.  Y. 
472.  holding  that  in  a  justice  court 
one  of  two  joint  plaintiffs  may  .be 
struck  out;  Pomboy  v.  Sperry,  16  How. 
Pr.  (N.  Y.  Supreme  Ct.)  211;  Holmes 
V.  Schermerhorn,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)44o;  Lowery  z/.  Rowland 
(Ala.,  1894),  16  So.  Rep.  88;  Lansburg 
V.  Cohen,  52  Ala.  iSo;  McBrayer  v. 
Cariker,  64  Ala.  50;  Steed  v.  Mclntyre, 
68  Ala.  407;  Berry  z/.  Ferguson,  58  Ala. 
314;  State  V.  Rice,  65  Ala.  83;  Dwyer 
r .  Kennemore,  31  Ala.  404;  Jemison  v. 
Sm.th,  37  Ala.  1S5 

Contra  in  Alabama  before  the  Code. 
Crump  V.  Wallace,  27  Ala.  277.  A 
party  plaintiff  may  be  made  a  de- 
fendant. Liggett  V,  Ladd,  23  Oregon 
2O. 


Leave     Discretionary.  —  Leave     to 

amend  during  the  trial  by  striking  out 
the  name  of  some  of  the  plaintiffs 
was  held  to  be  discretionary,  and  a  re- 
fusal not  a  subject  of  exception,  in 
Gwynn  v.  Globe  Locomotive  Works,  5 
Allen  (Mass.)  317. 

In  the  Appellate  Court. — When  the  pe- 
tition shows  a  cause  of  action  in  one 
plaintiff  only  and  a  judgment  is  ren- 
dered in  favor  of  both,  an  amendment 
cannot  be  made  in  the  appellate  court 
by  striking  out  the  name  of  the  one 
erroneously  included  in  the  judgment. 
Megher  v.  Stewart,  6  Mo.  App.  498. 

2.  Winslow  V.  Merrill,  11  Me.  127; 
Reddington  v.  Farrar,  5  Me.  380. 

3.  Redington  v.  Farrar,  5  Me.  379; 
Fleming  v.  Freese,  26  N.  J.  L.  263; 
Cooper  V.  Whitehouse,  6  C.  &  P.  545, 
25  E.  C.  L.  535.  See  also  Burr  v. 
Ross,  19  Ark.  250.  Contra,  Colcord  v. 
Swan,  7  Mass.  291,  disapproved  \n  Red- 
ington V.  Farrar,  supra. 

Entering  Nol  Pros. — Where  a  suit  is 
brought  against  several  upon  a  con- 
tract which  is  several  as  well  as  joint, 
or  where  the  contract  sued  on  is  joint, 
and  the  defendants  sever  in  their 
pleas,  the  plaintiff  may  at  common 
law,  according  to  the  decisions  in  this 
country,  enter  a  nol  pros  as  to  one  de- 
fendant, whether  before  or  after  judg- 
ment, without  affecting  his  right  to 
recover  or  the  validity  of  his  judg- 
ment as  against  other  defendants. 
Austin  V.  Jordan,  5  Tex.  130,  where  the 
court  cites  as  maintaining  this  rule, — 
which  departs  in  some  degree  from 
the  English  practice  as  laid  down  in  i 
Chitty  PI.  50, — Minor  v.  Mechanics' 
Bank,  i  Pet.  (U.  S.)  46;  Hartness  v. 
Thompson,  5  Johns.  (N.  Y.)  160; 
Woodward  v.  Nevvhall,  i  Pick.  (Mass.) 
500.  See  also  Forbes  v.  Davis,  18 
Tex.  268;  Andrus  v.  Pettus,  36  Tex. 
108;  Coburn  v.  Ware,  25  Me.  330; 
Beaman  v.  Whitney,  20  Me.  413;  Ber- 
inger  v.  Meanor,  85  Pa.  St.  223; 
Ganzer  v.  Fricke,  57  Pa.  St.  316. 

Where  there  is  no  severance  of 
pleas,  and  the  plaintiff  fails  to  prove 
a  joint  contract,  and  after  a  finding 
equivalent   to  a   verdict   of    no   joint 


544 


Of  Pleadings,  etc,  at  AM£A  DME^  TS.   Common  Law,  ander  Codes,  etc. 


By  Statute. — Statutory  authority  to  allow  amendments  striking 
out  defendants  who  are  improperly  joined  is  now  almost  or  quite 
universal.* 

//.  Entire  Change  of  Parties. — Although  there  is  much 
latitude  in  allowing  amendments  by  substitution  in  order  to  con- 
form to  the  law  of  parties,*  yet  an  entirely  new  plaintiff  with  a 
different  and  independent  cause  of  action  cannot  be  admitted  to 
displace  the  original  plaintiff  ;*  nor  can  there  be  a  change  of  de- 


promise,  the  plaintiff  cannot  amend 
by  striking  out  one  of  the  defendants. 
Griffin  v.  Simpson,  45  N.  H.  18. 

Under  the  Illinois  Practice  Act  of 
1874  the  court  may  allow  the  plaintiff, 
after  verdict  against  two  defendants, 
to  amend  his  declaration  by  discontin- 
uing as  to  one  of  them.  Cogshall  v. 
Beesley,  76  111.  445. 

In  New  Jersey,  where  too  many  de- 
fendants are  joined  in  an  action  on 
contract,  the  proceedings  can  be 
amended  only  in  the  manner  pointed 
out  by  the  statute  [by  notice  of  objec- 
tion, etc.],  and  if  not  so  amended  can- 
not be  amended  on  the  trial  by  strik- 
ing out  those  improperly  joined. 
Fleming  v.  Freese,  26  N.  J.  L.  263, 
citing  Cooper  v.  Whitehouse,  6  C.  & 
P.  545.  25  E.  C.  L.  535- 

1.  Beall  V.  Territory,  i  N.  Mex. 
507;  Brown  v.  Pickard,  4  Utah  292; 
Riley  v.  Stern,  23  Abb.  N.  C.  (N.  Y. 
City  Ct.)  435;  Fifty  Associates  z'.  How- 
land,  5  Cush.  (Mass.)  214;  Fitch  v. 
Stevens,  2  Met.  (Mass.)  505;  Turner  t*. 
Bissell,  14  Pick.  (Mass.)  192;  Ridley  v. 
Knox,  138  Mass.  83;  Turner  v.  Hiller- 
line,  14  How.  Pr.  (N.  Y.  Supreme  Ct.) 
231;  Harney  v.  Corcoran,  60  Cal.  314; 
Atlantic,  etc.,  R.  Co.  v.  Laird  (Cal.),  58 
Fed.  Rep.  760;  Blaisdell  v.  Bohr,  68 
Ga.  56;  Chattanooga,  etc.,  R.  Co.  v. 
Whitehead,  89  Ga.  190;  Solomon  v. 
City  Compress  Co.,  69  Miss.  319,  under 
§  1581,  Rev.  Code,  allowing  amend- 
ments so  as  to  bring  the  merits  of  the 
controversy  fairly  to  trial;  Beaman  v. 
Whitney,  20  Me.  413;  Coburn  z/.  Ware, 
25  Me.  330;  Fuller  v.  Miller,  58  Me.  40; 
Cutis  V.  Haynes,  41  Me.  560;  West  v. 
Furbish,  67  Me.  17;  Winn  v.  Averill,  24 
Vt.  283,  where  a  defendant  dead  when 
the  suit  was  brought  was  struck  out; 
Henry  v.  State  Bank,  3  Ind.  216;  Taylor 
V.  Jones,  I  Ind.  17;  Trees  v.  Eakin,  9 
Ind.  554;  Barncord  v.  Kuhn,  36  Pa. 
St.  383;  Ganzer  v.  Fricke,  57  Pa.  St. 
316;  Jackson  v,  Lloyd,  44  Pa.  St.  82; 
Steed  V.  Mclntyre,  68  Ala.  407;  Jones 
V.  Engelhardt,  78  Ala.  505  ;   Odom  v. 


Shackleford,  44  Ala.  331;  Lowery  v. 
Rowland  (Ala.,  1894),  16  So.  Rep.  88; 
Huntsville,  etc.,  R.  Co.  v.  Carpening, 
98  Ala.  681;  Englehardt  v.  Clanton, 
83  Ala.  336;  Jones  v.  Nelson,  51  Ala. 
471;  Masterson  v.  Gibson,  56  Ala.  56; 
Sellar  v.  Clelland,  2  Colo.  532. 

Leave  to  strike  out  may  be  refused 
in  the  absence  of  any  showing  of  mis- 
take. Locke  V.  Daugherty,  43  Pa.  St. 
88  ;  Mock  v.  Walker.  42  Ala.  668  ; 
Bachus  V.  Mickle,  45  Ala.  445;  Kendall 
V.  Lassiter,  68  Ala.  181;  Pool  v.  De- 
vers,  30  Ala.  672,  after  demurrer  for 
misjoinder;  Demeritt  v.  Mills,  59  N. 
H.  18;  Perley  v.  Brown,  12  N.  H.  493; 
Emerson  v.  Shaw,  57  N.  H.  223.  Com- 
pare Griffin  v.  Simpson,  45  N.  H.  18. 

After  Judgment. — In  New  York  the 
plaintiff  may  have  leave  to  strike  out 
some  of  the  defendants  after  judg- 
ment in  his  favor.  Sherman  v.  Fream, 
8  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  33. 

2.  See  supra,  b,  c. 

Substituting  Assignee.  —  The  court 
may  on  the  trial  order  an  amendment 
substituting  as  a  party  plaintiff  one  to 
whom  the  plaintiff  assigned  his  inter- 
est before  suit.  Suber  v.  Chandler, 
28  S.  Car.  382;  Clawson  v.  Cone,  2 
Handy  (Ohio)  67;  Wellman  v.  Dis- 
mukes,  42  Mo.  loi.  Contra,  Wood  v. 
Metropolitan  L.  Ins.  Co.,  96  Mich.  437. 

In  Mississippi  under  the  new  Plead- 
ing Act  of  1850,  55  13,  the  real  plaintiff 
may  amend  his  complaint  by  substi- 
tuting the  name  of  one  nominal  plain- 
tiff for  that  of  another.  Denton  v. 
Stephens,  32  Miss.  194;  Stratton  v. 
Taylor,  32  Miss.  201. 

3.  Pickens  v.  Oliver,  32  Ala.  626; 
Leaird  v.  Moore,  27  Ala.  326;  Davis 
Ave.  R.  Co.  V.  Mallon,  57  Ala.  168: 
Friend  v.  Oliver,  27  Ala.  532;  Stodder 
V.  Grant,  28  Ala.  416;  Fowlkes  v.  Mem- 
phis, etc.,  R.  Co.,  38  Ala.  310;  Miles  z^. 
Strong,  60  Conn.  393;  Lake  v.  Morse, 
II  111.  587;  Merrill  v.  Merrill,  92  N. 
Car.  657;  Grandy  v.  Sawyer,  2  Hawks 
(N.  Car.)  6x;  Hunnicutt  v.  Stone,  85 
Ga.  435;  Mc Williams  v.  Anderson,  68 


I  Encyc.  PI.  &  Pr.— 35. 


545 


Of  Pleadings,  etc.,  at 


AMENDMENTS.  Common  Law,  under  Codes,  etc. 


fendants  by  the  substitution  of  entirely  different  defendants.* 


Ga.  772;  Morrow  v.  Merchants',  etc., 
Bank,  35  Ga.  267;  Neal  v.  Robertson, 
i3  Ga.  399;  Lumpkin  v.  Respess,  68 
Ga.  822;  Blackwell  v.  Pennington,  66 
Ga.  240;  Marsh  River  Lodge  v.  Brooks, 
61  Me.  585;  Thayer  v.  Farrell,  11  R. 
L  305;  Davis  V.  New  York,  14  N.  Y. 
506;  Wright  V.  Storms,  3  Code  Rep. 
(N.  Y.)  138;  Willink  v.  Renwick,  22 
Wend.  (N.  Y.)  608;  Phillips  v.  Mel- 
ville, 10  Hun  (N.  Y.)  211;  Cofhng 
V.  Tripp,  I  How.  Pr.  (N.  Y.)  115;  John- 
son V.  Mayrant,  i  McCord  (S.  Car.) 
484  ;  Hagerty  v.  Hughes,  4  Baxt. 
(Tenn.)  222  ;  Wood  v.  Metropolitan 
L.  Ins.  Co.  96  Mich.  437;  Emerson  v. 
Wilson,  II  Vt.  357;  Moore  v.  Lancas- 
ter, Wright  (Ohio)  35;  Curacel  v.  Con- 
Ion,  2  Martin  (La.)  143;  Jones  v.  Jen- 
kins, 9  Rob.  (La.)  180;  Duncan  v. 
Helm,  21  La.  Ann.  303.  Compare  Far- 
rier V.  Schroeder,  40  N.  J.  L.  601. 

Kestatement  of  the  Bule. — Where  a 
plaintiff  in  his  complaint  shows  that 
he  has  no  such  interest  as  entitles  him 
to  invoke  the  jurisdiction  of  the  court, 
he  cannot  amend  it  by  making  others 
plaintiffs  who  have  a  cause  of  action. 
State  V.  Rottaken,  34  Ark.  144,  hold- 
ing that  the  statutory  authority  to  add 
or  strike  out  the  name  of  any  party 
assumes  that  the  plaintiff  has  a  cause 
of  action;  citing,  as  in  point,  Davis  v. 
New  York,  14  N.  Y.  506,  to  which  may 
be   added    Miles   v.  Strong,  60  Conn. 

393- 

By  Addition  and  Subtraction. — Such  a 
substitution  cannot  be  accomplished 
by  adding  a  coplaintiff  by  one  amend- 
ment and  striking  out  the  original 
plaintiff  by  another  amendment.  Pick- 
ens V.  Oliver,  32  Ala.  626;  Tarver  v. 
Smith,  38  Ala.  135. 

Making  a  New  Cause  of  Action. — An 
administrator  de  bonis  non  has  no  right 
of  action  against  the  representatives 
of  a  former  administrator  for  a  devas- 
tavit; and  having  brought  such  an  ac- 
tion, he  cannot  amend  by  substituting 
creditors,  legatees,  etc.,  in  whom  the 
right  of  action  exists.  State  v.  Rott- 
aken, 34  Ark.  144. 

In  Case  of  Mistake.  —  In  Weaver  v. 
Young,  37  Kan.  70,  it  was  held  that 
the  name  of  Joseph  M.  Young  as  sole 
plaintiff  could  be  struck  out  and 
that  of  E.  J.  Young,  a  different  per- 
son, substituted  upon  a  showing  that 
the  first  name  was  used  by  mis- 
take.    The  court  said  that  if  the  ques- 


tion was  presented  for  the  first  time  it 
would  be  difficult  to  get  over  the  con- 
trary authorities.  See  also  Hanlin  v. 
134;  Atchison  v. 
350;  Leavenworth 
/.   Tappan,  6   Kan. 


20    Kan. 
9    Kan. 
Bank 


Baxter, 
Twine 
First   Nat 
436 

Where  Substituted  Party  has  No  Bight. 
— After  the  evidence  is  closed  an 
amendment  will  not  be  allowed  which 
substitutes  for  the  plaintiff  a  third 
party  who  is  shown  by  the  proof  to 
have  no  title  to  recover.  Shaw  v. 
Alexander,  32  Miss.  229. 

1.  Little  7/.  Virginia,  etc.,  Water  Co., 
9  Nev.  317;  Shuler  v.  Meyers,  5  Lans. 
(N.  Y.)  170;  Stodder  v.  Grant,  28  Ala. 
416;  Davis  Ave.  R.  Co.  v.  Mallon,  57 
Ala.  168;  Ex  p.  Collins,  49  Ala.  69; 
Western  R.  Co.  v.  McCall,  89  Ala.  375; 
Hunnicutt  v.  Stone,  85  Ga.  435;  Len- 
nard  v.  Jones,  27  Ga.  309;  Nashville, 
etc.,  R.  Co.  v.  Edwards,  91  Ga.  24;  Saw- 
yer V.  New  York  State  Clothing  Co., 
58  Vt.  588,  holding  that  a  partnership 
with  the  names  of  the  partners  could 
not  be  substituted  for  a  corporation  as 
sole  defendant.  See  also  Weise  v. 
Rich,  77  Mich.  325. 

In  New  York,  etc..  Milk  Pan  Assoc. 
v.  Remington's  Agricultural  Works, 
25  Hun  (N.  Y.)  475,  an  action  brought 
against  the  defendant  corporation  on  a 
contract  alleged  to  have  been  made  by 
it,  the  summons  and  complaint  were 
served  upon  one  of  the  officers  who 
with  others  constituted  a  partnership 
by  which  the  contract  was  really  made, 
the  partnership  doing  business  under 
the  name  of  the  corporation.  The 
plaintiff,  after  issue  joined,  was  al- 
lowed to  amend  the  summons  and 
complaint  by  striking  out  the  defend- 
ant's name  and  substituting  therefor 
the  names  of  the  partners.  This  ruling 
was  reversed  by  the  Court  of  Appeals 
in  New  York,  etc.,  Milk  Pan  Assoc. 
V.  Remington  Agricultural  Works, 
89  N.  Y.  22,  where  the  court  said 
that,  "  while  full  authority  is  con- 
ferred for  adding  or  striking  out 
the  name  of  a  person  or  a  party 
or  correcting  a  mistake  in  such 
name,  it  [S  723  of  the  Code]  does  not 
sanction  an  entire  change  of  name  of 
the  defendant  by  the  substitution  of 
another  or  entirely  different  defend- 
ants;" citing,  as  directly  in  point,  Bas- 
sett  V.  Fish,  75  N.  Y.  303,  and  Shaw  z/. 
Cock    -8  N.  Y.  194. 


546 


Of  pleadings,  etc.,  at  AMENDMENTS.  Common  Law.  under  Codes,  etc. 


6.  Introducing  a  New  Cause  of  Action  or  Defense — a.  Preva- 
lence AND  Extent  of  the  Rule  Forbidding. — At  common  Law 
the  court  had  no  power  to  allow  the  plaintiff  to  amend  by- 
introducing  an  entirely  new  and  different  cause  of  action.  * 
Nor  could  the  defendant  amend  by  setting  up  a  new  defense 
founded  upon  a  transaction  entirely  different  from  that  stated  in 
the  plea.*     But  the  last  proposition  has  been  disputed.^ 


Other  New  York  cases  bearing  upon 
the  question  and  discussed  in  the 
opinions  at  general  term  in  the  case 
above  quoted  from  on  appeal  are  :  Mc- 
Elwain  v.  Corning,  12  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  16;  Newton  v.  Milleville 
Mfg.  Co.,  17  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  518,  note;  Fuller  v.  Webster  F. 
Ins.  Co.,  12  How.  Pr.  (N.  Y.  Supreme 
Ct.)  293 ;  Risley  v.  Wightman,  13 
Hun  (N.  Y.)  164;  Tighe  v.  Pope,  16 
Hun  (N.  Y.)  180;  Havana  Bank  v. 
Magee,  20  N.  Y.  359;  Walsh  v.  Wash- 
ington Marine  Ins.  Co.,  32  N.  Y.  439; 
Thompson  v.  Kessel,  30  N.  Y.  383; 
Ackley  v.  Tarbox,  31  N.  Y.  564. 

In  Case  of  Devolution  of  Liability. — 
Under  the  New  York  Code  of  Civ.  Pro. 
§756,  authorizing  the  court  to  direct 
the  person  upon  whom  a  liability  has 
devolved  to  be  substituted, such  substi- 
tution may  be  made  by  amendment. 
Abbott  V.  Jewett,  25  Hun  (N.  Y.)  603. 

Substituting  Names  of  Partners. — 
Where  a  statute  authorized  suits  to  be 
brought  against  a  partnership  in  the 
firm-name,  and  the  names  of  the  part- 
ners to  be  inserted  by  amendment,  it 
was  held  that  a  writ  against  "  R.  P., 
doing  business  under  the  name  and 
firm  of  R.  P.  &  Son,"  was  not  a  writ 
against  a  partnership  but  against  R. 
P.  only,  and  could  not  be  amended  by 
inserting  the  names  of  A. ,  B. ,  and  C.  as 
copartners  with  R.  P.  Maritime  Bank 
V.  Rand,  24  Conn.  9. 

1.  Shipman  Common-Law  Pleading, 
§  142;  Andrews'  Stephen's  Pleading, 
167;  Heard  Civil  Pleading,  71. 

New  York. — Woodruff  v.  Dickie,  31 
How.  Pr.  (N.  Y.  Supreme  Ct.)  164. 

Massachusetts.  —  Ball  v.  Claflin,  5 
Pick.  (Mass.)  303;  Chaffee  v.  Jones,  19 
Pick.  (Mass.)  265;  Brigham  v.  Este,  2 
Pick.  (Mass.)  425;  Mason  v.  Waite,  i 
Pick.  (Mass.)  452;  Guilford  v.  Adams, 
19  Pick.  (Mass.)  376;  Kelley  z/.  Taylor, 
17  Pick.  (Mass.)  218. 

Colorado. — Givens  z/.  Wheeler,  5  Colo. 
598. 

Indiana. — Falknert/.Iams,5  Ind.  200. 

Michigan.  —  People  v.  Judges,  i 
Dougl.  (Mich.)  434. 


See  also  Holmes  v.  Robinson  Mfg. 
Co.,  60  Me.  201;  Parkman  v.  Nutt- 
ing. 59  Me.  398;  Dana  v.  McClure,  39 
Vt.  197  ;  Cassell  v.  Cooke,  8  S.  &  R. 
(Pa.)  287;  Duffey  v.  Houtz,  105  Pa. 
St.  96;  Gardner  z".  Post,  43  Pa.  St.  19; 
Steffy  V.  Carpenter,  37  Pa.  St.  41; 
Diehl  V.  Adams  County  Mut.  Ins. 
Co.,  58  Pa.  St.  443;  Root  V.  O'Neil,  24 
Pa.  St.  326;  Trego  v.  Lewis,  58  Pa. 
St.  463;  Forward  School  Dist.  Appeal, 
56  Pa.  St.  318;  Fairchild  v.  Dunbar 
Furnace  Co.  (Pa.,  1889),  18  Atl.  Rep. 
443;  Smith  V.  Smith,  45  Pa.  St.  403; 
Wright  V.  Hart,  44  Pa.  St.  454;  Dull 
V.  Amies,  2  Miles  (Pa.)  144  ;  Stout 
V.  Stout,  44  Pa.  St.  457;  Kaul  v.  Law- 
rence, 73  Pa.  St.  410;  Tyrrill  v.  Lamb, 
96  Pa.  St.  464;  Royse  v.  May,  93  Pa. 
St.  454;  Frankem  v.  Trimble,  5  Pa.  St. 
520;  Wood  V.  Anderson,  25  Pa.  St. 
407;  Horton  v.  McCurdy,  14  Phila. 
(Pa.)  221;  Diehl  v.  McGlue,  2  Rawle 
(Pa.)  337;  Yohez/.  Robertson,  2  Whart. 
(Pa.)  155;  Coxe  V.  Tilghman,  i  Whart. 
(Pa.)  282;  Tryon  v.  Miller,  i  Whart. 
(Pa.)  11;  Newlin  v.  Palmer,  11  S.  & 
R.  (Pa.)  98;  Farmers',  etc..  Bank  v. 
Israel,  6  S.  &  R.  (Pa.)  293;  Sweigart 
V.  Lowmarter,  14  S.  &  R.  (Pa.)  200. 

In  Tilton  v.  Cofield,  93  U.  S.  166, 
the  court  alludes  to  Tiernan  v.  Wood- 
ruff, 5  McLean  (U.  S.)  135,  as  holding 
that  a  "  new  and  independent  cause  of 
action"  could  be  introduced  into  the 
suit  at  common  law.  But  in  the  case 
last  cited  Justice  Wilkins  expressly 
declared  that  the  new  count  there 
added  by  amendment  was  "in  strict- 
ness and  in  truth  not  introductive  of  a 
new  substantive  cause  of  action."  See 
also  Postmaster  Gen'l  v.  Ridgway, 
Gilp.  (U.  S.)  135;  Watts  z/.  Weston,  62 
Fed.  Rep.  136. 

2.  Heard  Civil  Pleading,  71;  David 
V.  Preece,  5  Q.  B.  440;  Woodruff  v. 
Dickie,  31  How.  Pr.  (N.  Y.  Supreme 
Ct.)  164.  See  also  People  v.  McHat- 
ton,  7  111.  731,  holding  that  an  amend- 
ment to  a  plea  should  at  least  have 
some  resemblance  to  the  plea  itself. 

3.  Diamond  v.  Williamsburgh  Ins. 
Co.,  4  Daly  (N.  Y.)  494. 


547 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Under  Codes  and  Statutes. — The  practice,  even  in  those  states  where 
the  Code  provisions  relating  to  amendments  are  identical,  is  not 
uniform,  although  the  common-law  rule  is  generally  adhered  to.* 


1.  Alabama.— The  Code,  ^  2833,  allows 
the  amendment  of  "imperfection  and 
defect  of  form." 

In  Mohr  v.  Lemle,  69  Ala.  180,  a 
case  where  the  complaint  was  amended 
before  trial,  Brickell,  C.J.,  says  that 
"the  plaintiff  may  introduce  a  new 
cause  of  action  by  amendment,"  so 
long  as  "  a  cause  of  action  entirely  new 
[italicized  by  the  court]  is  not  intro- 
duced;" and  an  action  for  libel  was 
held  amendable  by  adding  a  libel  dif- 
fering in  substance  and  written  and 
published  at  a  different  time,  but  ad- 
dressed to  the  same  parties.  See  also 
Alabama  G.  S.  R.  Co.  v.  Smith,  81  Ala. 
229;  Dowling  V.  Blackman,  70  Ala.  303; 
Barker  v.  Anniston,  etc.,  R.  Co.,  92 
Ala.  314;  Evans  z/.  Richardson,  76  Ala. 

329- 

But  it  seems  that  a  new  cause  of 
action,  although  it  be  not  "entirely" 
new,  cannot  be  introduced  by  amend- 
ment on  the  trial.  Mobile  L.  Ins.  Co. 
V.  Randall,  74  Ala.  170;  Mahan  v. 
Smitherman,  71  Ala.  tf^y^  followed  \v\\.)\ 
caution  in  Semple  v.  Glenn,  91  Ala. 
245. 

N'ew  Defense. — That  the  defendant 
has  no  right  to  file  an  entirely  new 
plea  as  an  amendment,  see  Jones  v. 
Ritter,  56  Ala.  270. 

Arkansas. — The  statute  prohibits  a 
substantial  change  of  the  claim  or  de- 
fense only  when  the  amendment  is 
made  in  order  to  conform  to  the  proofs. 
Mansfield's  Dig.  §  5080. 

St.  Louis,  etc.,  R.  Co.  v.  Dodd 
(Ark.,  1894),  27S.W.  Rep.  227,  assumes 
that  such  a  change  cannot  be  made 
after  the  case  is  submitted  to  the  jury. 

California.  —  A  new  and  separate 
cause  of  action  cannot  be  introduced 
by  amendment  after  answer  either  be- 
fore or  on  the  trial.  Ramirez  v.  Mur- 
ray, 5  Cal.  222;  Hackett  v.  California 
Bank,  57  Cal.  335  ;  Deering's  Ann. 
Codes  &  Stats.  §472.  See  also  Louvall 
V.  Gridley,  70  Cal.  507;  Jones  r/.  Frost, 
28  Cal.  245:  Atlantic,  etc.,  R.  Co.  v. 
Laird,  58  Fed.  Rep.  760;  Ware  v. 
Walker.  70  Cal.  591;  Nevada  County, 
etc.,  Canal  Co.  v.  Kidd,  28  Cal.  673; 
Cox  V.  McLaughlin,  76  Cal.  60.  Com- 
pare Anderson  v.  Mayers,  50  Cal.  525; 
Atkinson  v.  Amador,  etc..  Canal  Co., 
53  Cal.  102. 


Colorado. — Although  not  expressly 
prohibited  by  statute,  an  entirely  new 
cause  of  action  cannot  be  introduced 
at  any  stage  after  answer.  Givens  v. 
Wheeler,  5  Colo.  598  ;  Rockwell  v. 
Holcomb,  3  Colo.  App.  i;  Wheeler  v. 
Northern  Colo.  I.  Co.,  10  Colo.  582. 

Connecticut.  —  Before  the  enactment 
of  the  Practice  Act  of  1879,  the  plain- 
tiff could  not  amend  at  any  stage  so  as 
to  change  the  "  ground  of  the  action." 
Peck  V.  Sill,  3  Conn.  157;  Ross  v.  Bates, 
2  Root  (Conn.)  198;  Minor  v.  Wood- 
bridge,  2  Root  (Conn.)  274;  Spencer  v. 
Howe,  26  Conn.  200;  Church  v.  Syra- 
cuse, etc..  Coal  Co.,  32  Conn.  372; 
Nash  V.  Adams,  24  Conn.  33,  defining 
"ground  of  action"  as  used  in  the 
statute;  on  which  point  see  also  Don- 
ahue's Appeal,  62  Conn.  370. 

The  Practice  Act.— G^n.  Stat.,  18S8,  § 
1023,  authorizes  the  addition  of  new 
counts  which  might  have  been  origi- 
nally inserted  in  the  complaint;  but  this 
does  not  sanction  an  amendment  set- 
ting up  an  independent  cause  of  action 
in  favor  of  another  plaintiff.  Miles  v. 
Strong,  60  Conn.  393. 

Georgia.— The  Code,  g  3480,  provides 
that  "  no  amendment  adding  a  new  and 
distinct  cause  of  action  *  *  *  shall  be 
allowed  unless  expressly  provided  by 
law,"  and  this  provision  is  enforced  at 
every  stage  of  the  case.  Roberts  v.  Ger- 
mania  F.  Ins.  Co.,  71  Ga.  478;  Steed  v. 
Mclntyre,  68  Ala.  407;  Chattanooga 
etc.,  R.,  Co.  V.  East  Rome  Town 
Co.,  89  Ga.  732;  Broach  v.  Kelly,  66 
Ga.  148;  Fokes  v.  De  Vaughn,  66  Ga. 
735;  Central  R.,  etc.,  Co.  v.  Wood.  51 
Ga.  515;  Matthews  t/.  Woolfolk,  51  Ga. 
618;  Long  V.  Bullard,  59  Ga.  355;  Ad- 
kins  V.  Hutchings,  79  Ga.  260;  Singer 
Mfg.  Co.  V.  Armstrong,  91  Ga.  745; 
Dinkier  v.  Baer  (Ga.,  1893),  17  S.  E. 
Rep.  953;  Rice  v.  Caudle,  71  Ga.  605; 
Bolton  V.  Georgia  Pac.  R.  Co.,  83 
Ga.  659;  Cox  V.  Murphy,  82  Ga.  623 
[a  Strong  case];  Cox  v.  Richmond,  etc., 
R.  Co.,  87  Ga.  747;  White  v.  Moss,  67 
Ga.  89;  Ayres  v.  Daly,  56  Ga.  119; 
Mitchell  V.  Georgia  R.  Co.,  68  Ga. 
644;  Hall  V.  Waller,  66  Ga.  483;  Ran- 
sone  V.  Christian,  56  Ga.  351;  Croghan 
V.  New  York  Underwriters'  Agency, 
53  Ga.  109;  Williams  v.  Hollis,  19  Ga. 
313;    Phillips    V.     Dodge,    8    Ga.    fi; 


548 


Of  Pleadings,  etc,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Lamar  v.  Russell,  77  Ga.  307;  Exposi- 
tion Cotton  Mills  V.  Western,  etc.,  R. 
Co.,  83  Ga.  441;  Skidaway  Shell  Road 
Co.  V.  O'Brien,  73  Ga.  655;  Pearson  v. 
Reid,  loGa.  580;  Dawty  v.  Hansell,  20 
Ga.  659;  Latine  v.  Clements,  3  Ga.  426; 
Milburn  v.  Davis  (Ga.,  1S93),  17  S.  E. 
Rep.  286;  Parmelee  v.  Savannah,  etc., 
R.  Co.,  78  Ga.  239;  Barron  v.  Walker, 
80  Ga.  121;  Lamar  v.  Russell,  77  Ga. 
307;  McWilliams  v.  Anderson,  68  Ga. 
772;  Anderson  v.  Pollard,  62  Ga.  46. 

Illinois. — The  statute  allows  amend- 
ment at  any  time  before  final  judgment, 
"  to  enable  the  plaintiff  to  sustain  the 
action  for  the  claim  for  which  it  was  in- 
tended to  be  brought,  or  the  defendant 
to  make  a  legal  defense;"  and  also  pro- 
vides that  the  adjudication  of  the  court 
allowing  an  amendment  shall  be  con- 
clusive evidence  of  the  identity  of  the 
action.  See  Fame  Ins.  Co.  v,  Thomas, 
10  III.  App.  545. 

Indiana.  —  The  statute  provides  for 
amendments  *  *  *  "to  conform  the 
pleadings  to  the  facts  proved  when 
the  amendment  does  not  substantially 
change  the  claim  or  defense."  Rev. 
Stat.  1881,  §  396. 

Before  the  Trial. — In  Levy  v.  Chit- 
tenden, 120  Ind.  40,  it  was  said  that 
parties  may  amend  their  pleading  to  al- 
most any  extent  before  entering  upon 
the  trial;  and  in  Burr  v.  Mendenhall.  49 
Ind.  499,  that  a  new  cause  of  action  or 
defense  may  be  added  upon  good  cause 
shown  by  affidavit. 

In  Falkner  v.  lams,  5  Ind.  200,  de- 
cided before  the  adoption  of  the  Code, 
an  amendment  converting  an  action 
ex  delicto  into  one  ex  contractu  was  de- 
nied. 

On  the  Trial. — The  right  to  make 
amendments  on  the  trial  which  change 
the  issue  or  make  a  new  issue  was  rec- 
ognized,subjectto  conditions  and  limit- 
ations therein  stated,  in  the  following 
cases:  Wayne  County  Turnpike  Co.  v. 
Berry,  5  Ind.  286;  Taylor  v.  Dodd,  5 
Ind.  246;  Ostrander  v.  Clark,  8  Ind. 
211;  Trees  v.  Eakin,  9  Ind.  554;  Ker- 
stetter  v.  Raymond,  10  Ind.  199; 
Kerschbaugher  v.  Slusser,  12  Ind.  453; 
Danville,  etc..  Plank  -  road  Co.  v. 
State,  16  Ind.  456;  Holcraft  v.  King, 
25  Ind.  352;  Mason  v.  Seitz,  36  Ind. 
516;  De  Armond  v.  Armstrong,  37 
Ind.  35;  Koons  v.  Price,  40  Ind.  164; 
Maxwell  V.  Day,  45  Ind.  509;  Hackney 
V.  Williams,  46  Ind.  413;  Burr  v.  Men- 
denhall, 49  Ind.  496,  where  the  plain- 
tiff was  permitted  to  add  "a  newcause 


of  action,"  the  defendant  not   asking 
for  delay. 

The  right  to  make  such  amendments 
on  the  trial  was  expressly  denied  in 
Miles  z'.  Vanhorn,  17  Ind.  245.  Thomp- 
son V.  Jones, 18  Ind.  476;  Hoot  v.  Spade, 
20  Ind.  326;  Landry  v.  Durham,  21  Ind. 
232;  Harris  v.  Mercer,  22  Ind.  329; 
Shank  v.  Fleming,  9  Ind.  189. 

After  the  Cause  is  Submitted. — "  This 
court  has  always  held  that  it  is  error  to 
allow  an  amendment  which  changes  the 
nature  of  the  cause  of  action  or  defense 
after  the  trial  has  been  concluded  be- 
fore the  court  or  jury  trying  the  same. 
Miles  V.  Vanhorn,  17  Ind.  245;  Proctor 
V.  Owens,  18  Ind.  21;  Hoot  v.  Spade,  20 
Ind.  326;  Shropshire  v.  Kennedy,  84 
Ind.  III."  Levy  v.  Chittenden,  120 
Ind.  40.  See  also  Blasingame  v.  Bla- 
singame,  24  Ind.  86;  Kerstetter  v. 
Raymond,  10  Ind.  199. 

Iowa. — The  Code  authorizes  various 
amendments  at  any  time,  etc.,  "or 
when  the  amendment  does  not  change 
substantially  the  claim  or  defense  by 
conforming  the  pleading  or  proceedings 
to  the  facts  proved."  It  does  not  con- 
fer the  privilege  of  adding  or  substitut- 
ing a  cause  of  action  based  on  an  en- 
tirely different  right.  Cook  v.  Chicago, 
etc.,  R.  Co.,  75  Iowa  171.  See  also 
Nelson  v.  Hays,  75  Iowa  671;  Wade  v. 
Clark,  52  Iowa  158;  Sheldon  v.  Booth, 
50  Iowa  209;  Sweetzer  v.  Harwick,  67 
Iowa  488.  It  would  seem  from  the 
case  last  cited  that  a  new  defense 
may  be  allowed  on  the  trial. 

But  it  is  the  settled  practice  to  permit 
the  plaintiff  before  final  submission  to 
change  an  action  from  law  to  equity, 
or  vice  versa.  Barnes  v.  Hekla  F. 
Ins.  Co.,  75  Iowa  11;  Esch  Bros.  v. 
Home  Ins.  Co.,  78  Iowa  334;  Newman 
V.  Covenant  Mut.  Ins.  Assoc,  76  Iowa 
56;  Emmet  County  v.  Griffin,  73  Iowa 
163. 

After  Judgment. — The  defendant  can- 
not amend  after  judgment  by  setting 
up  the  statute  of  limitations.  McNider 
V.  Sirrine,  84  Iowa  58. 

Kansas. — The  earlier  provisions  in 
the  Code  expressly  restricted  all 
amendments  at  any  stage  of  the  cause 
to  such  as  did  not  substantially  change 
the  claim  or  defense.  Irwin  v.  Paulett, 
I  Kan.  427. 

In  Scott  V.  Smith,  2  Kan.  438,  an 
amendment  to  the  answer  was  reject- 
ed on  this  ground. 

In  the  present  Code  a  clause  is 
interpolated   permitting   amendments 


549 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


to  conform  pleadings  to  proof,  and 
whether  the  old  limitation  is  confined 
to  such  cases  is  uncertain.  See  Gen. 
Stat.  1889,  §  4222. 

The  question  was  expressly  left  un- 
decided in  Kansas  Pac.  R.  Co.  v. 
Salmon,  14  Kan.  512.  See  Gulp  v. 
Steere,  47  Kan.  746;  Byer  v.  Reed,  18 
Kan.  86. 

The  court  may  in  its  discretion  re- 
fuse to  allow  the  plaintiff  to  set  up  a 
new  cause  of  action,  Books  v.  Kager, 
23  Kan.  114;  and  may  refuse  to  allow 
the  defendant  to  add  a  new  defense 
after  the  case  has  been  partly  tried. 
Russell  V.  Gregg,  49  Kan.  89. 

Granting  leave  to  amend  by  chang- 
ing the  cause  of  action  or  defense  is  not 
erroneous  unless  substantial  rights  of 
the  adverse  party  are  affected  thereby. 
Stevens  v.  Matthewson,  45  Kan.  594, 
where  all  the  costs  were  imposed  on 
the  defendant  and  a  continuance 
granted,  the  court  holding,  however, 
that  this  conclusion  is  based  upon  the 
language  of  the  statute  of  jeofails,  § 
140,  Code  Civ.  Pro. 

Kentucky. — The  Code  provision  is 
substantially  the  same  as  in  New 
York.  See  infra  in  this  note.  Smith 
V.  Bogenschutz  (Ky.,  1892),  19  S. 
W.  Rep.  667,  implies  that  the  plain- 
tiff cannot  amend  by  introducing  a 
new  cause  of  action.  But  in  the  fol- 
lowing cases  such  amendments  were 
permitted,  the  plaintiff  being  required 
to  serve  a  new  summons  upon  the  de- 
fendant. Cecil  V.  Sowards,  10  Bush 
(Ky.)96;  Rutledge  z'.Vanmeter,  8  Bush 
(Ky.)  354;  Joyes  v.  Hamilton,  10  Bush 
(Ky.)  545;  Rutledge  v.  Vanmeter,  8 
Bush  (Ky.)  354;  McGrath  v.  Balser,  6 
B.  Mon.  (Ky.)  141.  Compare  Louis- 
ville, etc.,  R.  Co.  V.  Case,  9  Bush  (Ky.) 
728. 

Louisiana. — An  amendment  to  a  pe- 
tition or  answer  which  substantially 
changes  the  claim  or  defense  will  not 
be  permitted.  Guilbeau  z/.  Thibodeau, 
30  La.  Ann.  1099;  King  v.  Gantt,  33 
La.  Ann.  1148;  Estill  v.  Holmes,  3 
Rob.  (La.)  134;  Menefee  v.  Johnson,  2 
Rob.  (La.)  274;  Murdock  v.  Browder, 
5  Martin  N.  S.  (La.)  677 ;  Abat  v. 
Bayon,  4  Martin  N.  S.  (La.)  516; 
Vavasseur  v.  Bayon,  i  Martin  (La.) 
639;  Melancon  v.  Robechaud,  16  La. 
151;  Mason  v.  Mason,  12  La.  589;  Mc- 
Rae  V.  McRae,  11  La.  571;  Babcock  v. 
Shirley,  11  La.  73;  Calvert  v.  Tun- 
stall,  2  La.  207;  Stilley  v.  Stilley,  20 
La.  Ann.  53;   Morrison  v.  Keller,  10 


La.  Ann.  542.  See,  for  instances  where 
the  amendment  was  not  obnoxious  to 
the  rule,  Haydel  v.  Bateman,  2  La. 
Ann.  755;  Ledoux  v.  Buhler,  21  La. 
Ann.  130;  Castille  v.  Dumartrait,  5 
Martin  N.  S.  (La.)  69  ;  Hoover  v. 
Richards,  i  Rob.  (La.)  34. 

Maine. — The  statute  provides  for 
amendments  of  "  circumstantial  errors 
or  defects."    Rev.  Stat.  1882,  c.  82,  §  10. 

A  new  cause  of  action  cannot  be  in- 
troduced. Wyman  v.  Kilgore,  47  Me. 
184;  Annis  v.  Gilmore,  47  Me.  152; 
Sawyer  v.  Goodwin,  34  Me.  419  ; 
Farmer  v.  Portland,  63  Me.  46  ; 
Bruce  v.  Soule,  69  Me.  562  ;  Place 
V.  Brann,  77  Me.  342;  Lambard  v. 
Fowler,  25  Me.  308;  Eaton  v.  Ogier, 
2  Me.  46  ;  Bishop  v.  Williamson, 
II  Me.  495;  Bartlett  v.  Perkins,  13 
Me.  87;  Skowhegan  Bank  v.  Cutler,  49 
Me.  315;  Cooper  v.  Waldron,  50  Me. 
80. 

Massachusetts. — The  court  may  at  any 
time  before  final  judgment  permit 
amendments  "which  may  enable  the 
plaintiff  to  sustain  the  action  for  the 
cause  for  which  it  was  intended  to  be 
brought  or  the  defendant  to  make  a 
legal  defense."  Pub.  Stat.  1882,  c.  167, 
§42. 

In  Sheldon  v.  Smith,  97  Mass  36,  an 
amendment  presenting  substantially  a 
new  cause  of  action  was  rejected.  But 
if  the  amendment  expresses  the  origi- 
nal intention  of  the  plaintiff,  it  should 
be  allowed  regardless  of  the  fact  that 
the  declaration  thereby  becomes  de- 
murrable. Daley  v.  Boston,  etc.,  R. 
Co.,  147  Mass.  loi.  See  Townsend 
Nat.  Bank  v.  Jones,  151  Mass.  454; 
Havward  v.  Hapgood,  4  Gray  (Mass.) 
437- 

The  alteration  must  be  an  amend- 
ment and  not  the  institution  in  fact  of 
a  new  suit  upon  a  new  cause  of  action. 
Smith  V.  Palmer,  6  Cush.  (Mass.)  513, 
where  the  court  lays  down  the  rule  by 
which  to  determine  the  question  what 
shall  be  considered  a  new  cause. 

A  plea  in  abatement  offered  after 
pleading  to  the  merits  and  hearing 
and  report  by  an  auditor  is  not  a 
"legal  defense,"  and  it  is  error  to 
allow  it  to  be  filed  at  that  stage.  Hast- 
ings V.  Bolton,  I  Allen  (Mass.)  529. 

Michigan. — The  court  has  power  to 
amend  "either  in  form  or  substance 
*  *  *  at  any  time  before  judgment." 
How.  Stat.  1882,  g  7631. 

A  new  and  different  cause  of  action 
is  not  within  the  province  of  amend- 


550 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


ment.  Connecticut  F.  Ins.  Co.  v. 
Kinne,  77  Mich.  231;  Hurst  v.  Detroit 
City  R.  Co.,  84  Mich.  539;  People  v. 
Judges,  I  Dougl.  (Mich.)  434;  People 
V.  Wayne  Circuit  Judge,  13  Mich.  206. 
Especially  if  the  new  cause  be  barred 
by  limitation.  People  v.  Circuit  Judge, 
27  Mich.  138;  People  v.  Judge,  35  Mich. 
227;  McCreery  v.  Cobb,  93  Mich.  462. 
See  also  Wingert  v.  Carpenter  (Mich., 
1894),  59  N.  W.  Rep.  662;  Weise  v. 
Rich,  77  Mich.  325. 

Minnesota.  —  The  Code  provisions 
are  substantially  the  same  as  those 
in  New  York.  See  infra  in  this 
note.  An  amendment  introducing 
a  new  cause  of  action  will  not  be 
allowed  after  issue  joined.  Bruns  v. 
Schreiber,  48  Minn.  366. 

The  refusal  of  the  court  to  allow  an 
answer  setting  up  a  counterclaim  to 
be  amended  so  as  to  make  it  applicable 
to  a  wholly  different  subject  was  held 
to  be  a  proper  exercise  of  discretion, 
Iverson  v.  Dubay,  39  Minn.  325. 

Mississippi. — The  court  may  allow 
amendments  "  at  any  time  before  ver- 
dict so  as  to  bring  the  merits  of  the 
controversy  between  the  parties  fairly 
to  trial."     Rev.  Code  1880,  §  1581. 

That  an  entirely  new  cause  of  ac- 
tion cannot  be  introduced,  see  Miller 
V.  Norton  Bank,  34  Miss.  412. 

Missouri. — The  court  may  at  any 
time  before  final  judgment  amend  va- 
rious defects  and  "  when  the  amend- 
ment does  not  change  substantially 
the  claim  or  defence  by  conforming 
the  pleading  or  proceeding  to  the  facts 
proved."     R.  S.  §  3567. 

The  effect  of  the  statute  is  to  inhibit 
amendments  substantially  changing 
the  claim  or  defense  on  the  trial,  but 
not  before  trial.  Robertson  v.  Spring- 
field, etc.,  R.  Co.,  21  Mo.  App.  633; 
Parker  v.  Rodes,  79  Mo.  88;  Gibbons 
V.  Steamboat,  40  Mo.  253.  See,  how- 
ever, Lumpkin  v.  Collier,  69  Mo.  170, 
holding  that  the  provision  of  the 
statute  allowing  amendments  of  course 
before  answer  does  not  authorize  an 
amendment  changing  an  action  ex  de- 
licto into  an  action  ex  contractu. 

If  the  defendant  answers  an  amended 
complaint  setting  up  a  new  cause  of 
action,  it  is  a  waiver  of  error  in  al- 
lowing the  amendment.  Holt  County 
V.  Cannon,  114  Mo.  514. 

The  court  may  refuse  to  allow  an 
amended  answer  setting  up  an  entirely 
new  defense  to  be  filed  on  the  day  of 
trial.     Lucas    Market    Sav.    Bank    v. 


Goldsoll,  8  Mo.  App.  596;  or  at  the 
close  of  plaintiff's  evidence,  Corby  v. 
Wright,  4  Mo.  App.  443. 

Rev.  Stat.  §  3060,  provides  that  on 
appeal  from  a  justice  of  the  peace  no 
new  cause  of  action  "not  embraced  or 
intended  to  be  included  in  the  original 
account  or  statement  shall  be  added 
by  amendment."  See  Clark  v.  Smith, 
39  Mo.  498.  The  intention  of  the  party 
must  be  gleaned  from  the  face  of  the 
statement.  Gregory  v.  Wabash,  etc., 
R.  Co.,  20  Mo.  App.  448. 

Nebraska. — The  court  may  before  or 
after  judgment  amend  the  pleadings 
by  correcting  mistakes,  inserting  ma- 
terial allegations,  etc.,  "  or,  when  the 
amendment  does  not  change  substan- 
tially the  claim  or  defense,  byconform- 
ing  the  pleading  or  proceeding  to  the 
facts  proved."  Cobbey's  Consolidated 
Stat.  1893,  §  4681. 

It  has  not  been  decided  whether 
there  is  any  stage  of  the  case  at 
which  the  claim  or  defense  may  be 
changed  by  amendment.  See  Free- 
man V.  Webb,  21  Neb.  169.  In  the  fol- 
lowing cases  the  amendments  were 
held  to  be  germane  to  the  original 
complaint.  Schreckengast  v.  Ealy,  16 
Neb.  510;  Carmichael  v.  Dolen,  25 
Neb.  335;  Stevens  v.  Sibbett,  31  Neb. 
612;  McKeighan  v.  Hopkins,  19  Neb. 

33- 

Nevada.— In  Bullion  M.  Co.  v.  Croe- 
sus M.  Co.,  2  Nev.  168,  the  plaintiff 
was  not  allowed  to  introduce  a  new 
cause  of  action  before  trial. 

Hew  Hampshire. — A  rule  of  court 
provides  that  "no  new  count  or  amend- 
ment of  a  declaration  shall  be  allowed 
without  the  consent  of  the  defendant, 
unless  it  be  consistent  with  the  orig- 
inal declaration  and  for  the  same 
cause  of  action."  In  the  following 
cases  the  amendments  were  held  to  be 
obnoxious  to  this  rule:  French  v.  Ger- 
rish,  22  N.  H.  97;  Thompson  v.  Phelan 
22  N.  H.  339;  Mt.  Washington  Hotel 
Co.  V.  Redington,  55  N.  H.  386;  Burn- 
ham  V.  Spooner,  10  N.  H.  165;  Wood 
V.  Folsom,  42  N.  H.  70;  Goddard  v. 
Perkins,  9  N.  H.  488;  Burt  v.  Kinne, 
47  N.  H.  361;  Butterfield  v.  Harvell, 
3  N.  H.  201;  Edgerlyz/.  Emerson,  4  N. 
H.  147;  Lawrences.  Langley,  14  N.  H. 
70;  Pillsbury  v.  Springfield,  16  N.  H. 
565;  Merrill  v.  Russell,  12  N.  H.  74; 
Melvin  v.  Smith,  12  N.  H.  462;  State 
V.  Otis,  42  N.  H.  71.  See  also  Ball  v. 
Danforth,  63  N.  H.  420;  Hall  v.  Dodge, 
38  N.  H.  346. 


551 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


New  Jersey. — The  statute  authorizes 
amendment  "  at  all  times"  to  prevent 
a  failure  of  justice  by  reason  of  mis- 
takes and  objections  of  form,"  and  ex- 
pressly requires  that  all  such  amend- 
ments shall  be  made  as  are  necessary 
for  the  purpose  of  determining  the 
"  real  question  in  controversy  between 
the  parties."  The  statute  is  not  in- 
terpreted according  to  the  technical 
rules  of  pleading,  but  the  power  of 
amendment  is  held  to  extend  to  the 
introduction  of  matters  which  the  par- 
ties hoped  and  intended  to  try  in  the 
cause,  which  may  be  ascertained,  not 
from  the  pleadings  alone,  but  from  the 
evidence  and  the  opening  of  the  plain- 
tiff's counsel.  Hoboken  v.  Gear,  27 
N.  J.  L.  265,  allowing  an  amendment 
after  verdict,  following  the  rule  de- 
clared by  the  Court  of  Common  Bench 
in  Wilkin  v.  Reed,  15  C.  B.  192,  con- 
struing identical  provisions  in  15  &  16 
Vic,  c.  76,  commonly  called  Lord  Ten- 
terden's  Act.  The  same  views  were 
adhered  to  in  Price  v.  New  Jersey  R. . 
etc.,  Co.,  31  N.  J.  L.  229.  For  Eng- 
lish cases  applying  the  test  to  Lord 
Tenterden's  Act  see  also:  Smith  v. 
Knowelden,  2  M.  &  G.  561,  40  E.  C.  L. 
514;  Jenkins  v.  Phillips,  9  C.  &  P.  766; 
Foster  v.  Pointer,  g  C.  &  P.  718;  Car- 
marthen V.  Lewis,  6  C.  &  P.  608,  25 
E.  C.  L.  560;  Hanbury  v.  Ella,  i  Ad. 
&  El.  61,  28  E.  C.  L.  39;  Billing  v. 
Flight,  6  Taunt.  419;  Leigh  v.  Baker, 

2  C.  B.  N.  S.  367;  Storer  v.  Gordon,  2 
Chit.  Rep.  27,  18  E.  C.  L.  237. 

New  York.— The  New  York  Code,  § 
723,  provides  for  amendments  in  re- 
spect of  parties  and  the  correction  of 
mistakes  or  the  insertion  of  allega- 
tions "material  to  the  case,"  "or 
where  the  amendment  does  not  sub- 
stantially change  the  claim  or  defense, 
by  conforming  the  pleading  or  other 
proceeding  to  the  facts  proved." 

Before  Trial. — Amendments  intro- 
ducing a  new  cause  of  action  or  de- 
fense may  be  allowed  at  any  time 
before  trial.  Diamond  v.  Williams- 
burgh  Ins.  Co.,  4  Daly  (N.  Y.)  494; 
Marx  V.  Gross  (Super.  Ct.),  g  N.  Y. 
Supp.  7ig ;  Hatch  v.  Central  Nat. 
Bank,  78  N.  Y.  487;  Daguerre  v.  Orser, 

3  Abb.  Pr.  (N.  Y.  C.  PI.)  86,  where, 
however,  the  court  in  its  discretion 
denied  the  application;  Hurlbut  v. 
Interior  Conduit,  etc.,  Co.  (Super. 
Ct.),  28  N.  Y.  Supp.  1007;  Clark  v. 
Lichtenberg  (City  Ct.),  26  N.  Y.  St. 
Rep.  935;   Davis  v.  New  York,  etc.  R. 


Co.,  no  N.  Y.  646;  Ford  v.  Ford,  53 
Barb.  (N.  Y.)  525;  Schreyer  v.  New 
York,  39  N.  Y.  Super.  Ct.  27);  Roessel 
V.  Rosenberg  (City  Ct.),  30  N.  Y.  Supp. 
812,  where  the  court  held  that  replevin 
may  be  changed  to  conversion  before 
trial,  but  in  its  discretion  denied  leave 
to  amend.  See  also  Harrington  v. 
Slade,22  Barb.  (N.  Y.)  161;  Macqueen 
V.  Babcock,  13  Abb.  Pr.  (N.  Y.  Su- 
preme  Ct.)  268;  Van  Ness  v.  Bush,  22 
How.  Pr.  (N.  Y.  Supreme  Ct.)  491; 
Union  Nat.  Bank  v.  Bassett,  3  Abb. 
Pr.  N.  S.  (N.  Y.  Supreme  Ct.)  35g. 

Various  changes  in  the  New  York 
Code  provisions  touching  the  subject 
are  pointed  out  in  Chapman  v.  Webb, 
6  How.  Pr.  (N.  Y.  C.  PI.)  390;  Beards- 
ley  V.  Stover,  7  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  294. 

By  Amendment  of  Course. — When  a 
party  makes  an  amendment  under  the 
Code  provisions  allowing  amendments 
"  of  course,"  he  is  at  liberty  to  intro- 
duce a  substantially  new  claim  or  de- 
fense. Robertson  v.  Bennett,  52  How. 
Pr.  (N.  Y.  Super.  Ct.)  287,  i  Abb.  N. 
Cas.  (N.  Y.)  476;  Wyman  v.  Remond, 
18  How.  Pr.  (N.  Y.  Supreme  Ct.)  272; 
Mason  v,  Whitely,  4  Duer  (N.  Y.)  611; 
Jackson  v.  Peer,  4  Cow.  (N.  Y.)  418; 
McQueen  v.  Babcock,  3  Keyes  (N.  Y.) 
428;  Mussinan  f.  Hatton  (Super.  Ct.), 
28  N.  Y.  Supp.  1006,  the  two  cases  last 
cited  holding  that  all  the  new  causes 
set  up  by  amendment  must  be  of  the 
same  class  and  of  a  class  to  which  the 
summons  is  appropriate.  On  the  latter 
point  see  also  Hopf  v.  U.  S.  Baking 
Co.  (Buffalo  Super.  Ct.),  21  N.  Y.  Supp. 
589;  Gray  v.  Brown,  15  How.  Pr.  (N. 
Y.  Supreme  Ct.)  555;  Bockes  v.  Lan- 
sing, 74  N.  Y.  437.  Contra,  Field  v. 
Morse,  8  How.  Pr.  (N.  Y.  Supreme  Ct.) 
47;  Kissam  v.  Morris,  2  Wend.  (N.  Y.) 
259. 

Effect  of  Stipulation. — A  Stipulation 
of  counsel  providing  for  the  filing 
of  an  "  answer  and  supplemental  com- 
plaint "  does  not  authorize  the  inser- 
tion of  an  entirely  new  cause  of  action. 
Deyo  V.  Morss  (Supreme  Ct.),  26  N.  Y. 
Supp.  305. 

After  Remand  for  New  Trial. — Upon 
a  new  trial  the  court  has  the  same 
power  as  if  the  action  had  never  been 
tried.  Troy,  etc.,  R.  Co.  v.  Tibbits, 
II  How.  Pr.  (N.  Y.  Supreme  Ct.)  168; 
Hopf  V.  U.  S.  Baking  Co.  (Buffalo 
Super.  Ct.),  21  N.  Y.  Supp.  589,  Com- 
pare Price  V.  Brown,  112  N.  Y.  677,  21 
N.  Y.  St.  Rep.  573. 


552 


Of  Pleadings,  etc.,  at 


AMENDMENTS,  common  Law,  under  Codes,  etc. 


On  the  Trial. — A  new  cause  of  action 
or  defense  cannot  be  introduced  by- 
amendment  on  the  trial.  Gaslight  Co. 
V.  Rome,  etc.,  R.  Co.,  51  Hun  (N.  Y.) 
119;  Cumber  v.  Schoenfeld,  16  Daly 
(N.  Y.)  454;  Dexter  v.  Ivins,  133  N.  Y. 
551  ;  Fisher  v.  Rankin,  25  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  191;  Wood- 
ruff V.  Dickie,  5  Robt.  (N.  Y.)  619; 
Van  Syckels  v.  Perry,  3  Robt.  (N.  Y.) 
621;  Peters  v.  Chamberlain  (Supreme 
Ct.),  36  N.  Y.  St.  Rep.  1000;  Freeman 
V.  Grant  (Supreme  Ct.),  30  N.  Y.  St. 
Rep.  143;  Bowen  v.  Sweeney,  63  Hun 
(N.  Y.)  224;  Baldwin  v.  Rood,  15  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  56; 
Law  V.  Pemberton  (City  Ct.),  29  N.  Y. 
Supp.  605;  Balch  V.  Wurzburner  (C. 
PL),  29  N.  Y.  Supp.  62;  Cushman  v. 
Jewell,  7  Hun  (N.  Y.)  525;  Dows  v. 
Morrison  (C.  PI.),  20  N.  Y.  Supp.  860, 
a  case  before  a  justice  of  the  peace; 
Hong  Kong,  etc..  Banking  Corp.  v. 
Emanuel,  63  Hun  (N.  Y.)  629;  17 
N.  Y.  Supp.  790 ;  Mea  v.  Pierce, 
63  Hun  (N.  Y.)40o;  Foley  z/.  Schiede- 
matl,  63  Hun  (N.  Y.)  628;  Halsey 
V.  Trademen's  Nat.  Bank,  56  N.  Y. 
Super  Ct.  7;  Storrs  v.  Flint,  46  N.  Y. 
Super.  Ct.  498;  Van  Cott  v.  Prentice, 
104  N.  Y.  45,  affirming  35  Hun  (N.Y.) 
317;  Graves  v.  Cameron,  58  How.  Pr. 
(N.  Y.  C.  PI.)  75;  Ransom  z/.  Wetmore, 
39  Barb.  (N.  Y.)  104;  Southwick  v. 
Memphis  First  Nat.  Bank,  84  N.  Y. 
428.  See  also  Hempstead  v.  New 
York  Cent.  R.  Co.,  28  Barb.  (N.  Y.) 
485;  Zboynski  v.  Brooklyn  City  R. 
Co.  (City  Ct.),  30  N.  Y.  Supp.  540; 
Owen  V.  King  (Supreme  Ct.),  6  N.  Y. 
St.  Rep.  869;  McLaughlin  v.  Webster, 
141  N.  Y.  76;  Whittemore  v.  Judd  L. 
&  S.  O.  Co.  (C.  PL),  10  N.  Y.  Supp. 
73f ;  Hill  V.  London  Assur.  Corp.  (City 
Ct.),  12  N.  Y,  Supp.  86;  Shaw  v. 
Bryant,  65  Hun  (N.  Y.)  57;  Bowen  v. 
Sweeney  (Supreme  Ct.),  17  N.  Y.  Supp. 
752;  New  York  Marbled  Iron  Works 
V.  Smith,  4  Duer  (N.  Y.)  362;  Johnson 
V.  Oppenheim.  12  Abb.  Pr.  N.  S.  (N. 
Y.  Super.  Ct.)  449,  where  it  appears 
that  the  statute  of  frauds  set  up  on 
the  trial  would  be  a  new  defense; 
Hendricks  w.  Decker,  35  Barb.  (N.  Y.) 
298;  Drake  v.  Siebold  (Supreme  Ct.), 
30  N.  Y.  Supp.  597;  Drew  v.  Keufer 
(Supreme  Ct.),  30  N.  Y.  Supp.  733. 

What  Stage  Is  Deemed  "  Before 
Trial."  —  Where  an  application  to 
amend  is  made  on  the  trial  and  the 
trial  is  suspended  and  the  case  put 
over  the  term  to  enable  the  plaintiff  to 


apply  at  special  term  for  leave  to 
amend,  an  amendment  then  allowed, 
changing  the  cause  of  action,  is  con- 
sidered as  made  before  trial.  Shannon 
V.  Pickell  (Supreme  Ct.),  2  N.  Y.  St. 
Rep.  160. 

Exercise  of  Discretion. — An  amend- 
ment should  not  be  denied  merely  be- 
cause the  identity  of  the  new  and  old 
claims  is  not  clear  beyond  doubt. 
Campbell  v.  Campbell,  23  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  187. 

On  Trial  by  Referee. — A  referee  on  a 
trial  before  him  cannot  allow  an 
amendment  constituting  a  new  cause 
of  action  or  defense.  National 
Steamship  Co.  v.  Sheahan,  122  N.  Y. 
461  ;  Niagara  County  Nat.  Bank  v. 
Lord,  33  Hun  (N.  Y.)  557;  Shaw  v. 
Bryant  (Supreme  Ct.),  19  N.  Y.  Supp. 
618;  Robeson  v.  Central  R.  (Supreme 
Ct.),  28  N.  Y.  Supp.  104;  Zoller  v. 
Kellogg,  66  Hun  (N.  Y.)  194;  Liver- 
more  V.  Bainbridge,  14  Abb.  Pr.  N.  S. 
(N.  Y.  Supreme  Ct.)  232  ;  Case  v. 
Phoenix  Bridge  Co.,  19  Civ.  Pro.  Rep. 
(N.  Y.  Super.  Ct.)  373.  Sqq  supra.  III, 
2,  d,  e. 

To  Conform  to  Proof. — A  substan- 
tially new  claim  or  defense  cannot  be 
introduced  after  judgment  to  conform 
pleadings  to  proof.  Egert  v.  Wicker, 
ID  How.  Pr.  (N.  Y.  Supreme  Ct.)  193; 
Southwick  V.  Memphis  First  Nat. 
Bank,  84  N.  Y.  420.  Nor,  perhaps, 
after  the  court  has  announced  his  in- 
tention to  dismiss  the  complaint.  Free- 
man V.  Grant,  132  N.  Y.  22. 

As  to  the  allowance  of  such  amend- 
ment after  vacating  a  judgment,  see 
Hatch  V.  Central  Nat.  Bank,  78  N.  Y. 
487. 

North  Carolina. — The  Code  of  Civil 
Procedure  authorizing  amendments 
before  and  after  judgment  concludes 
as  follows:  "or  when  the  amend- 
ment does  not  change  substantially 
the  claim  or  defense,  by  conforming 
the  pleading  or  proceeding  to  the 
facts  proved."     Code  of  C.  P.,  $5  132. 

The  court  has  no  authority  to  allow 
amendments  as  to  parties  or  as  to  the 
cause  of  action  which  will  make  a 
new  or  substantially  a  new  action, 
unless  by  consent  of  the  parties. 
Clendenin  v.  Turner,  96  N.  Car.  416. 
And  it  seems  that  permission  to  make 
such  an  amendment  will  be  denied  be- 
fore trial  as  well  as  upon  the  trial. 
Powell  V.  Allen,  103  N.  Car.  46;  Rob- 
bins  V.  Harris,  96  N.  Car.  557;  Ely  v. 
Early,  94  N.  Car.   i;  Merrill  v.  Mer- 


553 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


rill,  92  N.  Car.  657.  See  also  Glover 
V.  Flowers,  loi  N.  Car.  134;  Gill  v. 
Young,  88  N.  Car.  58;  McNair  v. 
Buncombe  County,  93  N.  Car.  364. 
Compare  Robinson  v.  Willoughby,  67 
N.  Car.  84. 

Ohio. — The  statute  of  amendments 
[Rev.  Stat.,  §  5114]  is  the  same  as  that 
in  North  Carolina,  quoted  above.  The 
form  of  the  remedy  may  be  changed, 
but  not  the  identity  of  the  transaction 
constituting  the  cause  of  complaint. 
Spice  V.  Steinruck,  14  Ohio  St.  213. 
See  also  Evens  v.  Hall,  i  Handy 
(Ohio)  434;  Ansonia  Rubber  Co.  v. 
Wolf,  I  Handy  (Ohio)  236;  Delaware 
County  V.  Andrews,  18  Ohio  St.  49; 
Whittaker's  Annotated  Code,  p.  146,  n. 

Oregon. — Hill's  Code,  §  loi,  provides 
for  amendments  at  any  time  before 
the  trial  %vhere  there  is  no  substantial 
change  in  the  cause  of  action  or  de- 
fense. The  power  is  liberally  exer- 
cised. Garrison  v.  Goodale,  23  Oregon 
307;    Baldock  v.   Atwood,   21   Oregon 

79- 

Pennsylvania. — A  new  cause  of  ac- 
tion cannot  be  introduced.  In  addi- 
tion to  the  cases  cited  in  the  last  note 
but  one  see  Tatham  v.  Raney,  82  Pa. 
St.  130;  Good  Intent  Co.  v.  Hartzell, 
22  Pa.  St.  277;  Winder  z".  Northampton 
Bank,  2  Pa.  St.  446;  Wager  v.  Chew, 
15  Pa.  St.  323;  Reitzel  v.  Franklin,  5 
W.  &  S.  (Pa.)  33. 

Rhode  Island.— Pub.  Stat.,  1882,  c. 
210,  §  5,  provides  that  amendments  may 
be  made  at  any  time  to  cure  "  defects 
and  want  of  form." 

The  court  cannot  allow  the  substitu- 
tion of  a  new  cause  of  action.  Wilcox 
V.  Sherman,  2  R.  I.  540;  Thayer  v. 
Farrell,  11  R.  I.  305. 

South  Carolina. — The  Code,  §  194, 
provides  for  certain  amendments  be- 
fore or  after  judgment  "or,  when  the 
amendment  does  not  change  substan- 
tially the  claim  or  defense,  by  con- 
forming the  pleading  or  proceeding  to 
the  facts  proved." 

No  amendment  proposed  during  or 
after  the  trial  of  a  case  can  be  permit- 
ted if  it  introduces  a  new  cause  of 
action;  but  this  limitation  to  the 
power  of  the  court  does  not  apply  to 
motions  made  anterior  to  the  trial, 
after  as  well  as  before  the  issues  are 
made.  Hall  v.  Woodward.  30  S.  Car. 
575,  where  an  answer  substantially 
changing  the  defense  was  allowed  be- 
fore trial;  Chamberlain  v.  Mensing, 
51  Fed.  Rep.  511;  Edwards  f.  Cheraw, 


etc.,  R.  Co.,  32  S.  Car.  117;  Lilly  v. 
Charlotte,  etc.,  R.  Co.,  32  S.  Car.  142; 
Trumbo  v.  Finley,  18  S.  Car.  305;  All 
V.  Barnwell  County,  29  S.  Car.  161; 
Dunsford  v.  Brown,  19  S.  Car.  567. 
See  also  Sullivan  v.  Sullivan,  24  S. 
Car.  474;  Whaley  v.  Stevens,  26  S. 
Car.  221;  Skinner  v.  Hodge,  24  S.  Car. 
165;  McConnell  v.  Kennedy,  29  S. 
Car.  180;  Wilbanks  v.  Willis,  2  Rich. 
(S.  Car.)  108;  Mason  v.  Johnson,  13 
S.  Car.  21;  Cleveland  v.  Cohrs,  13 
S.  Car.  397;  Nesbitt  v.  Cavender,  27 
S.  Car.  i;  Coleman  v.  Heller,  13  S. 
Car.  491. 

Where  the  original  complaint  does 
not  set  up  a  cause  of  action  the  plain- 
tiff cannot  be  permitted  by  any  amend- 
ment whatever  to  set  up  a  cause  of 
action.  Bleckeley  v.  Branyan,  28  S. 
Car.  449;  Lilly  v.  Charlotte,  etc.,  R. 
Co.,  32  S.  Car.  142. 

Tennessee. — The  Code  of  1884  per- 
mits "  material  amendments  at  any 
stage  of  the  proceedings." 

The  practice  has  been  to  allow 
amendments  at  any  stage  of  the  case 
to  attain  the  ends  of  justice;  but  the 
plaintiff  cannot  introduce  a  new  cause 
of  action  so  as  to  prevent  the  opera- 
tion of  the  statute  of  limitations. 
Trousdale  v.  Thomas,  3  Lea  (Tenn.) 
715. 

Texas. — "The  pleadings  may  be 
amended  under  leave  of  the  court 
*  *  *  before  the  parties  announce 
themselves  ready  for  trial  and  not 
thereafter."  It  is  the  established 
practice  in  Texas  to  permit  the  plain- 
tiff to  amend  within  the  time  pre- 
scribed by  abandoning  the  old  and 
setting  up  a  new  cause  of  action. 
McDannell  v.  Cherry,  64  Tex.  177; 
Ballard  v.  Carmichael,  83  Tex.  355; 
Wood  County  v.  Cate,  75  Tex.  215; 
Reagan  v.  Evans,  2  Tex.  Civ.  App. 
35;  Hunter  v.  Morse,  49  Tex.  219; 
Hopkins  J*.  Wright,  17  Tex.  30;  Irvine 
V.  Corp.  of  Bastrop,  32  Tex.  485; 
Dailey  v.  Wynn,  33  Tex.  614;  Wil- 
busch  z/.  Taylor,  64  Tex.  53;  Woods  v. 
Huffman,  64  Tex.  98;  Ross  v.  Korn- 
rumpf,  64  Tex.  390;  Williams  v.  Ran- 
don,  10  Tex.  74;  Whitehead  v.  Herron, 
15  Tex.  127;  Smith  v.  McGaughey,  13 
Tex.  404,  where  the  plaintiff  was  al- 
lowed to  join  a  new  cause  of  action 
which  accrued  after  the  commence- 
ment of  the  suit — on  which  point  see 
also  Galveston,  etc.,  R.  Co.  v.  Borsky, 
2  Tex.  Civ.  App.  545.  But  it  will  not 
be  allowed  when   great  confusion   i:i 


554 


Of  Pleadings,  etc.,  at  AMENDMEM  TS.  Common  Law,  tinder  Codes,  etc 

the    proceedings    will     result.      Hal-  The  defendant  will  not  be  allowed  tc 

comb  V.   Kelly,  57  Tex.  618.     See  also  amend    his  cross-complaint  upon  the 

Thomas    v.    Browder,     33    Tex.    783,  trial  so  as  to  make  an   important  and 

Walker  v,  Howard,  34  Tex.  508.     And  vital    change    in    the    issues    without 

it  seerns  not  to   have  been   allowed  in  showing  proper  diligence  and  reason- 

the  earlier  cases.     Carter  z/.  Reynolds,  able     grounds.       Kelly   v.    Kershaw, 

6  Tex.  561;  Beal  v.  Alexander,  6  Tex.  5  Utah  295. 
531.  The  case   of   Rhemke  v.   Clinton,  2 

Service      on      Absent     Parties. — All  Utah  230,  implies  that  a  radical  change 

parties  interested  and  not  already   be-  in  plaintiff's  cause  of  action  will  not 

fore  the  court  must  be  served  in  order  be  allowed  even  before  trial, 
to  be   bound   by  the  judgment  on  the        Vermont. — Rev.  Laws,   1880,    §  907, 

new  pleading.      Wortham  v.  boyd,  66  provides  that  "  the  court  may  at  any 

Tex.    401;     Morrison     v.    Walker,    22  time  permit  either   of   the  parties  to 

Tex.  18  ;  Furlow  v.   Miller,  50  Tex.  28;  amend  a  defect  in  the  process  or  plead- 

Stewart   v.    Anderson,      70   Tex.    588,  ing  upon  such  conditions  as  the  court 

and    Pendleton    v.     C.olville,    49    Tex.  prescribes." 

525,    where   the    original    service  was        The    cause    of     action    cannot     be 

made  by  publication.       If  the  defend-  changed  by  amendment  at  any  stage 

ants  are  in   court     by  answer,  no  new  of    the    proceedings.       Carpenter    v. 

service   of    process    upon    them   is    re-  Gookin,  2   Vt.  495;  Dana  v.  McClure, 

quired;  but   in    other    respects  the  ac-  39  Vt.   197;  Sumner  v.  Brown,   34  Vt. 

tion  proceeds   as  a  new  suit.     Ballard  194  ;    McDermid   v.   Tinkham,    53  Vt. 

V.  Carmichael,  83  Tex.    355  ;  De  Walt  615;  Brodek  v.  Hirshfield,  57  Vt.  12. 
V.  Snow,  25  Tex.  320.  A  justice  of  the  peace  has  no  power 

Terms  of   Allowance.  —  The    plaintiff  to  permit  such  an  amendment.    Emer- 

must  pay  all  costs  which  have  accrued  son  v.  Wilson,  11  Vt.  357. 
up    to    the   time    of    the  amendments.        A  new  declaration  filed  under  a  rule 

Ballard    v.    Carmichael,    83    Tex.  355;  of  court  is  subject  to  the  same  restric- 

Hopkins  v.  Wright,  17  Tex.  30;  White-  tion  in  this  behalf  as  if  it  were  filed  by 

head  v.  Herron,    15  Tex.  127;  Williams  leave  of  court.    Dewey  v.  Nicholas,  44 

V.    Randon,    10    Tex.    74;    Thoir.as    v.  Vt.  24.  , 

Browder,  33  Tex.  783.      But   in  such  a       Wisconsin. — The  court  may  upon  the 

case,     where      the      costs     have    teen  trial,  or  at  any  other  stage    before  or 

taxed,  and  the    defendant   neither  ex-  after  judgment,  amend  by  correcting 

cepted   to    the    amended    petition   nor  mistakes,    inserting    material    altera- 

asked  for  costs  as  a  condition,  he  can-  tions,  etc.,  "  or  where  the  amendment 

not  complain    for  the  first   time  en  ap-  does  not  change  substantially  the  claim 

peal  that  upon  judgment  against  him  or  defense,  by  conforming  the  plead- 

he  was   taxed    with    the   entire    costs,  ing  or  proceeding  to  the  facts  proved." 

Woods  V.  Durrett,  28  Tex.  429.  Rev.  Stat.,  §  2830. 

Opento  New  Defenses. — All  defenses.        Where  the  object  of  the  proposed 

including   the    statute    of   limitations,  amendment  is  to  entirely  change  the 

which  have  accrued  at  the  date  of  the  cause  of  action,  it  cannot  be  allowed 

amendment,  are   available  against  the  either  before  trial  or  at  the  trial.    Ste- 

plaintiff.     Wortham   v.  Boyd,  66  Tex.  vens  r/.  Brooks,  23  Wis.  196,  emphasiz- 

401;    American    Salt    Co.    v.    Heiden-  ing  the  rule;   Carmichael  v.  Argard, 

heimer,  80  Tex.    344;    Speake  v.   Pre-  52  Wis.  607;  Stowell  w.  Eldred,  39  Wis. 

witt,   6  Tex.   252;   Bell  v.    McDonald,  614;   Sweet  v.  Mitchell,   15  Wis.  641; 

9   Tex.    378;   Hopkins    v.    Wright,    17  Geary  v.  Bennett,  65  Wis.  554;  John- 

Tex.    30;    Whitehead     v.    Herron,    15  son  v.   Filkington,  39  Wis.  62  ;    Hol- 

Tex.  127;  Ayres  v.  Cayce,  10  Tex.  99;  lehan   v.    Roughan,  62    Wis.   64  ;  Ke- 

Williams    v.     Randon,     10     Tex.     74;  waunee  County  f.  Decker,  34  Wis.  378; 

Texas  v.  Burnett,  27  Tex.  32.  Shinners  v.  Brill,  38  Wis.  648;  Newton 

Utah. — The  Code  of  Civ.  Pro.  §  344,  v.  AUis,  12  Wis.  378. 
specifies  certain  amendments  that  may  Changing  Defense  on  the  Trial. — The 
be  made  at  any  time  in  furtherance  of  defendant  will  not  be  allowed  to  set 
justice,  and  provides  that  "the  court  up  on  the  trial  an  entirely  new  sub- 
may  likewise  in  its  discretion,  after  stantive defense.  Shernecker  w.  Thein, 
notice  to  the  adverse  party,  allow  n  Wis.  556,  where  the  application  was 
*  *  *  an  amendment  to  any  pleading  made  after  the  jury  were  impaneled, 
or  proceeding  in    other   particulars."  but  before  any  evidence  had  been  in- 

555 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


b.  General  Tests. — It  has  been  declared  to  be  a  fair  test  in 
determining  whether  a  new  cause  of  action  is  alleged  in  an  amend- 
ment to  inquire  if  a  recovery  had  upon  the  original  complaint 
M'ould  be  a  bar  to  any  recovery  under  the  amended  complaint,* 
or  if  the  same  evidence  would  support  both,*  or  if  the  same  meas- 
ure of  damages  is  applicable,^  or  if  both  are  subject  to  the  same 


troduced.  But  see  Phoenix  Mut.  L. 
Ins.  Co.  V.  Walrath,  53  Wis.  669 ; 
Brown  v.  Bosworth,  62  Wis.  542. 

"West  Virginia.  —  The  Code  of  1887 
provides  that  "the  plaintiff  may  of 
right  amend  his  declaration  or  bill  at 
any  time  before  the  appearance  of  the 
defendant  or  after  such  appearance,  if 
substantial  justice  will  be  promoted 
thereby." 

No  amendment  will  be  allowed 
which  introduces  a  new  and  substan- 
tive cause  of  action  different  from  that 
declared  upon,  and  different  from  that 
which  the  party  originally  intended  to 
declare  upon.  Snyder  v.  Harper,  24 
W.  Va.  206.  See  also  Kuhn  v.  Brown- 
field,  34  W.  Va.  252. 

1.  Davis  V.  New  York,  etc.,  R.  Co., 
no  N.  Y.  636,  14  N.  Y.  St.  Rep.  i,  al- 
lowing an  amendment  to  the  com- 
plaint, as  a  recovery  under  the  latter 
would  bar  the  matter  in  the  amend- 
ment. 

Amendments  were  subjected  to  this 
test  and  allowed  in  Lustig  v.  New 
York,  etc.,  R.  Co.,  65  Hun  (N.  Y.)  547, 
20  N.  Y.  Supp.  477  ;  Coby  v.  Ibert 
(CityCt.),  25  N.  Y.  Supp.  998;  Rhemke 
V.  Clinton,  2  Utah  230.  They  were 
denied  in  Hurst  v.  Detroit  City  R.  Co., 
84  Mich.  539;  Deyo  v.  Morss  (Supreme 
Ct.),  26  N.  Y.  Supp.  305,  56  N.  Y.  St. 
Rep.  364. 

2.  If  the  same  evidence  would  sup- 
port both,  the  amendment  does  not  in- 
troduce a  new  cause  of  action.  The 
result  of  this  test  controlled  or  influ- 
enced in  some  degree  the  following 
cases: 

Missouri. — Lottman  v.  Barnett,  62 
Mo.  159;  Scovil  V.  Glasner,  79  Mo. 
449;  Lumpkin  v.  Collier,  69  Mo.  170; 
Hansberger  v.  Pacific  R.  Co.,  43  Mo. 
196;  Minter  z*.  Hannibal,  etc.,  R.  Co., 
82  Mo.  128;  Mitchell  v.  Missouri  Pac. 
R.  Co.,  82  Mo.  106;  Kitchen  v.  Mis- 
souri Pac.  R.  Co.,  82  Mo.  686;  Holli- 
day  V.  Jackson,  21  Mo.  App.  660. 

Michigan. — Stubly  v.  Beachboard, 
68  Mich.  401;  Hurst  v.  Detroit  City  R. 
Co.,  84  Mich.  539;  Connecticut  F.  Ins. 
Co.  V.  Kinne,  77  Mich.  231. 


Georgia. — Cox  v.  Murphy,  82  Ga. 
623;  Pearson  z/.  Reid,  10  Ga.  580. 

New  Hampshire. — Melvin  v.  Smith, 
12  N.  H.  462  ;  Burnham  v.  Plant, 
57  N.  H.  41;  Pillsbury  v.  Springfield, 
16  N.  H.565. 

Other  States. — Montgomery  v.    Har- 
rington, 58  Cal.  274;  Rhemke  v.  Clin- 
ton, 2  Utah  230;  Anniston,  etc.,  R.  Co. 
V.   Ledbetter,   92  Ala.  326;  Brodek  v. 
Hirschfield,  57  Vt.  12;  Collyer  v.  Coll- 
yer,  50   Hun   (N.  Y.)  422;    Liggett  v. 
Ladd.  23  Oregon  81 ;  Texas  v.  Burnett, 
27 Tex.  32;  Willis  v.  DeWitt  (S.   Dak., 
1892),    52  N.  W.   Rep.  1090;  Wilbanks 
V.  Willis,  2  Rich.  (S.  Car.)  108;  Wilson 
V.  Jamieson,  7  Pa.  St.  126;    Barker  v. 
Burgess,  3  Met.  (Mass.)  273;  Leekins 
V.  Nordyke    &    M.  Co.,  66  Iowa   471; 
Hammond  v.  Sioux  City,  etc.,  R.  Co., 
49   Iowa   450;    Ohio,    etc.,    R.   Co.   v. 
Selby,  47  Ind.  471;  Steers  v.  Shaw,  53 
N.  J.  L.  358.     See  also  Skidaway  Shell 
Road    Co.     V.    O'Brien,    73    Ga.   655 
Fokes    V.    De    Vaughn,    66    Ga.   735 
Levyz/.  Chittenden,  120  Ind.  41;  Rock 
well    V.    Holcomb,    3    Colo.  App.    i 
Meeks  v.  Southern  Pac.  R.  Co.,  61  Cal 
149  ;    Clews   V.   Traer,   57    Iowa    459 
Compare  Cotter  v.  Parks,  80  Tex.  539, 

Changing  Evidence  of  Negligence. — 
An  action  for  common-law  negligence 
in  killing  stock  cannot  be  amended 
into  an  action  on  a  statute  which 
makes  the  negligence  a  presumption 
of  law.  Hansberger  z/.  Pacific  R.  Co.. 
43  Mo.  196. 

Dispensing  with  Proof  of  Scienter. — 
An  original  declaration  claiming  to 
recover  for  injuries  by  an  animal 
known  to  be  vicious  cannot  be 
amended  so  as  to  allege  the  negligent 
keeping  as  a  ground  of  recovery.  Cox 
V.  Murphy,  82  Ga.  623.  But  see  Con- 
nell  V.  Putnam,  58  N.  H.  335. 

S.  If  it  is  not  applicable,  the  amend- 
ment is  a  new  cause  of  action.  Scovil 
V.  Glasner,  79  Mo.  449;  Holliday  v. 
Jackson,  21  Mo.  App.  660;  Liggett  v. 
Ladd,  23  Oregon  81;  Hurst  v.  Detroit 
City  R.  Co.,  84  Mich.  539;  French  v. 
Gerrish,  22  N.  H.  97  ;  Skowhegan 
Bank  v.  Cutler,  49  Me.  315.     But  this 


556 


Of  Pleadings,  etc  ,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

plea,*  and  in  some  cases  the  intention  of  the  plaintiff  when  he  in- 
stituted the  suit  may  have  a  distinct  potency  in  deciding  whether 
an  amendment  constitutes  an  unwarranted  departure.* 

Federal  Follows  State  Practice. — The  rulings  in  a  State  court  of  last 
resort  as  to  what  constitutes  a  new  cause  of  action  will  be  fol- 
lowed by  the  federal  courts  sitting  in  that  state.* 

c.  What  Amendments  are  Allowed — (i)  Amplified  State- 
ments.— Amendments  which  only  amplify  the  statements  or 
prayer  in  the  original  complaint  are  not  deemed  to  introduce  a 
new  cause  of  action.* 


Is  not  always  a  decisive  test.    Boyd  v. 
Bartlett,  36  Vt.  9. 

1.  Ball  V.  Claflin,  5  Pick.  (Mass.) 
303;  Goddard  v.  Perkins,  9  N.  H.  488. 
See  also  Van  de  Haar  v.  Van  Dom- 
seler,  56  Iowa  671.  But  the  test  is 
not  infallible.  Downer  v.  Shaw,  23 
N.  H.  125,  holding  that  in  debt  on  a 
judgment  recovered  in  a  foreign  state 
on  a  promissory  note  the  declaration 
might  be  amended  by  adding  a  count 
on  the  note. 

In  Richardson  v.  Fenner,  10  La. 
Ann.  599,  it  was  said  that  one  of  the 
tests  is  whether  the  amendment  could 
have  been  cumulated  with  the  original 
pleading. 

2.  Hoboken  v.  Gear.  27  N.  J.  L.  265; 
Price  V.  New  Jersey  R. ,  etc.,  Co.,  31 
N.  J.  L.  229.  See  also  Nash  v.  Ad- 
ams, 24  Conn.  33;  Donahue's  Appeal, 
62  Conn.  370;  Brackett  v.  Crooks,  24  N. 
H.  173,  where  an  amendment  was  al- 
lowed upon  plaintiff's  affidavit  affirm- 
ing his  original  intention;  Sumner  v. 
Brown,  34  Vt.  194;  Baxter  v.  Shaw,  28 
Vt.  569.  Compare  Lycoming  F.  Ins. 
Co.  V.  Billings,  61  Vt    312. 

In  Wilhelm's  Appeal,  79  Pa.  St.  120, 
it  was  said:  "The  true  criterion  is,  as 
all  the  authorities  show,  did  the  plain- 
tiff so  state  his  causu  of  action  origi- 
nally as  to  show  that  he  had  a  legal 
right  to  recover  what  he  subsequently 
claims?  And  it  makes  no  difference 
whether  the  new  matter  in  the  amend- 
ment was  or  was  not  known  or  thought 
of  when  the  declaration  was  originally 
filed."  To  the  same  point  Haley  v. 
Hobson,  68  Me.  167. 

3.  West  V.  Smith,  loi  U.  S.  263.  See 
supra.  III,  I,  c. 

4.  Georgia.  —  Lyons  v.  Planters' 
Loan,  etc.,  Bank,  86  Ga.  485;  Cox  v. 
Murphy,  82  Ga.  623;  Tumlin  v.  Bass 
Furniture  Co.  (Ga.,  1894)  12  S.  E.  Rep. 
44;  Augusta  R.  Co.  v.  Andrews  (Ga., 
1893),  19  S.  E.   Rep.  713;    Cooper  v. 


Lockett,  65  Ga.  702;  Hayden  v.  Bur- 
ney,  89  Ga.  715;  Colley  v.  Gate  City 
Coffin  Co.  (Ga.,  1893),  18  S.  E.  Rep. 
817;  Bright  V.  Central  City  St.  R. 
Co.,  88  Ga.  535. 

Pennsylvania. — Hunter  v.  Land,  81* 
Pa.  St.  296;  Schnable  v.  Koehler,  28 
Pa.  St.  181. 

Texas. — Gulf,  etc.,  R.  Co.  v.  Mc- 
Gowan,  73  Tex.  335;  Rowland  v. 
Murphy,  66  Tex.  534;  Lewis  v.  Dennis, 
54  Tex.  487;  Hanrick  v.  Hanrick,  63 
Tex.  618;  Perkins  v.  Wood,  63  Tex. 
396;  I.  &  G.  R.  Co.  V.  Irvine,  64  Tex. 
529;  Thompson  v.  Swearengin,  48  Tex. 
555;  Becker  v.  Gulf  City  St.  R.,  etc., 
Co.  (Tex.,  1891),  15  S.  W.  Rep.  1094; 
Texas  Elevator,  etc.,  Co.  v.  Mitchell, 
78  Tex.  64;  Foster  v.  Smith,  66  Tex. 
680;  Chapman  v.  Sneed,  17  Tex.  428; 
Haynes  v.  Rice,  33  Tex.  167;  Scoby  v. 
Sweatt,  28  Tex.  713;  Gulf,  etc.,  R.  Co. 
V.  Wilbanks  (Tex.  Civ.  App.,  1894), 
27  S.  W.  Rep.  302. 

Alabama. — Phillips  v.  Smith,  62  Ala. 
575  ;  Pearsall  v.  McCartney,  28  Ala. 
no. 

Iowa.  —  Hintrager  v.  Richter, 
Iowa  222;  Marsh  v.  Chicago,  etc. 
Co.,  79  Iowa  332. 

Colorado.  —  California  Ins.  Co. 
Gracey,  15  Colo.  70. 

Connecticut.  —  Peck     v.    Bacon, 
Conn.  377;  Church  v.  Syracuse  Coal, 
etc.,  Co.,  32  Conn.  372. 

New  York. — Davis  v.  New  York,  etc., 
R.  Co.,  no  N.  Y.  646,  14  N.  Y.  St. 
Rep.  i;  Wilcox  v.  Payne  (Supreme 
Ct.),  28  N.Y.  St.  Rep.  712;  McLaughlin 
V.  Webster,  141  N.  Y.  76;  Nichols  v. 
Scranton  Steel  Co.,  137  N.  Y.  480; 
Becker  v.  New  York,  etc.,  R.  Co.  (Su- 
preme Ct.),  31  N.  Y.  St.  Rep.  750. 

California. — Redington  v.  Cornwell, 
90  Cal.  49. 

Missouri. — Smith  v.  Missouri  Pac. 
R.  Co.  (District  of  Missouri),  56  Fed. 
Rep.  458. 


85 
R. 


18 


557 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Answers  are  properly  amendable  in  the  same  manner.* 
(2)  Correcting  Misdescriptions. — Amendments  which  change  the 
alleged  date  of  a  contract,*  or  the  sum  to  be  paid,^  or  correct  a 
misdescription  of  the  contract  in  other  respects,"*  or  change  any 


Louisiana. — Pickett  v.  Haynes,  28 
La.  Ann.  844. 

Michigan. — Abbott  v.  Chambers,  55 
Mich.  410;  Canal  St.  Gravel  Road  Co. 
V.  Paas,  95  Mich.  372. 

Minnesota. — Bruns  v.  Schrieber,  48 
Minn.  366. 

'  Ohio. — Jaynes  v.  Piatt,  47  Ohio  St. 
262;  Baltimore,  etc.,  R.  Co.  v.  Gibson, 
41  Ohio  St.  145. 

South  Carolina. — Miller  v.  Stark,  29 
S.  Car.  325;  Tarrant  v.  Gittelson,  16 
S.  Car.  231;  Chamberlain  v.  Mencing 
(District  of  S.  Car.),  51  Fed.  Rep.  511. 

Indiana. — Jeffersonville,  etc.,  R.  Co. 
V.  H'tendricks,  41  Ind.  48;  Levy  v. 
Chittenden,  120  Ind.  37. 

North  Carolina. — King  v.  Dudley, 
113  N.  Car.  167. 

Massachusetts. — Brown  v.  Tobias,  i 
Allen  (Mass.)  385;  Townsend  Nat. 
Bank  v.  Jones,  151  Mass.  454;  Morton 
V.  Fairbanks,  11  Pick.  (Mass.)  368  ; 
Mixer  v.  Howarth,  21  Pick.  (Mass.) 
205;  Lobdell  V.  Baker,  3  Met.  (Mass.) 
469. 

Maine. — Chase  v.  Kenniston,  76  Me. 
209;  McGee  v.  McCann,  69  Me.  79; 
Howard  v.  Kimball,  65  Me.  308; 
Holmes  v.  Gerry,  55  Me.  299. 

New  Hampshire. — Moses  v.  Boston, 
etc.,  R.  Co.,  32  N.  H.  534. 

New  averments  as  to  the  manner, 
time,  and  place  of  the  same  transac- 
tion are  not  a  new  cause.  Nash  v. 
Adams,  24  Conn.  33. 

In  an  action  for  injury  by  wilful 
shooting,  new  allegations  which  relate 
only  to  the  mode  of  inflicting  the  in- 
jury are  allowable.  Carmichael  v. 
Dolen,  25  Neb.  335. 

In  a  breach  of  promise  case,  where 
the  promise  was  alleged  to  have  been 
made  at  a  certain  date,  to  which  de- 
fendant pleaded  infancy,  it  was  proper 
to  allow  an  amendment  stating  other 
promises  and  ratification  of  the  first 
after  defendant  became  of  age. 
Schreckengast  v.  Ealy,  16  Neb.  510. 

A  writ  of  scire  facias  alleging  only 
the  rendition  of  the  judgment,  and 
that  execution  yet  remains  to  be  done, 
may  properly  be  amended  by  adding 
averments  showing  that  the  apparent 
satisfaction  of  an  execution  already 
issued  was  by  a  levy  upon  and  sale  of 


property  subsequently  claimed  and 
held  by  a  third  person.  Baxter  v. 
Shaw,  28  Vt.  569. 

A  plaintiff  suing  on  a  note  payable 
to  a  third  person  or  bearer  may  amend 
by  inserting  an  averment  of  the  char- 
acter of  his  title  to  the  note.  Bow- 
man V.  Stowell,  21  Vt.  309. 

A  complaint  in  an  action  for  death 
by  wrongful  act  in  another  state, 
which  does  not  allege  any  statute  in 
that  state,  may  be  amended  on  the 
trial  by  setting  forth  the  statute. 
Lustig  V.  New  York,  etc.,  R.  Co.,  65 
Hun  (N.  Y.)  547.  20  N.  Y.  Supp.  477. 
Contra,  Bolton  v.  Georgia  Pac.  R.  Co., 
83  Ga.  659,  expressly  decided  upon  the 
ground  that  there  was  nothing  to 
amend  by,  and  conceding  that  the 
amendment  would  have  been  proper 
if  the  statute  had  been  originally 
pleaded,  but  in  a  defective  manner. 

A  declaration  in  trover  may  be 
amended  by  counting  on  additional 
property  taken  at  the  same  time.  Has- 
kins  V.  Ferris,  23  Vt.  673. 

Narrowing  the  Complaint  by  amend- 
ment is  also  proper.  Wilson  v.  John- 
son, I  Greene  (Iowa)  147. 

1.  Cawthorn  v.  Kimbell  (La.,  1894), 
15  So.  Rep.  loi;  Bernheim  z/.  Daggett, 
12  Abb.  N.  Cas.  (N.  Y.  City  Ct.)  316. 

2.  Wilson  V.  Phillips,  8  Kan.  211; 
Bussey  v.  Rothschild,  27  La  Ann.  316; 
Warren  v.  Ocean  Ins.  Co.,  16  Me.  439; 
Bailey  v.  Musgrave,  2  S.  &  R.  (Pa.) 
219;  Marshall  First  Nat.  Bank  v. 
Hosmer,  48  Mich.  200,  correcting  the 
date  of  a  judgment;  Niemarck  v. 
Schwartz,  51  Mich.  467;  Stevenson  v. 
Mudgett,  10  N.  H.  338.  See  also 
Ripley  v.  Hebron,  60  Me.  379. 

3.  Tribby  v.  Wokee,  74  Tex.  142; 
Cooper  V.  Bailey,  52  Me.  230. 

4.  Wilson  V.  Jamieson,  7  Pa.  St. 
126;  Kirkner  v.  Com.,  6  W.  &  S.  (Pa.) 
557;  Wilson  V.  Jamieson,  7  Pa.  St. 
126;  Walling  V.  Williams,  4  Tex.  427; 
Davis  V.  Saunders,  7  Mass.  62;  Stevens 
V.  Hewitt,  30  Vt.  263:  Lycoming  F. 
Ins.  Co.  V.  Billings,  61  Vt.  310;  Sublett 
V.  Hodges,  88  Ala.  491;  Ricketts  v. 
Weeden,  64  Ala.  548;  Stringer  v. 
Waters,  63  Ala.  361;  Steed  v.  Mc- 
Intyre,  68  Ala.  407;  Zeigler  v.  David, 
23  Ala.  127;  Wright  f.  Basye,  6  Blackf. 


558 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc 


particular  of  the  matter  to  be  performed,  or  the  time  or  manner 
of  performance,  so  long  as  the  identity  of  the  matter  upon  which 
the  action  is  founded  is  preserved,  are  not  obnoxious  to  the  rule.* 


(Ind.)  419;  Cooper  v.  Bailey,  52  Me. 
230;  Cummings  v.  Buckfield  Branch 
Railroad,  35  Me.  47S;  Starbird  v.  Hen- 
derson, 64  Me.  570;  Cotton  v.  Stan- 
wood,  67  Me.  25;  Hill  V.  Turner,  18 
Me.  413;  Hapgood  v.  Watson,  65  Me. 
510;  Dodge  V.  Haskell,  69  Me.  429; 
Biddeford  First  Nat.  Bank  v.  McKen- 
ney,  67  Me.  272;  Ross  v.  Jordan.  62 
Ga.  298;  Newman  v.  Jefferson  City, 
etc..  R.  Co.,  19  Mo.  App.  100;  Dougan 
V.  Turner,  51  Minn.  330. 

Misdescription  of  Instrument. — In  an 
action  of  covenant  broken,  omission 
to  allege  in  the  declaration  that  the 
instrument  declared  upon  was  under 
seal  is  amendable.  Wing  v.  Chase, 
35  Me.  260. 

In  Reed  v.  Scott,  30  Ala.  640,  and  in 
Moore  v.  Christian,  31  S.  Car.  337,  the 
complaint  described  the  instrument 
sued  on  as  a  promissory  note,  and  an 
amendment  describing  it  as  a  bond  or 
instrument  under  seal  was  allowed. 

Averments  that  defendant  "obli- 
gated and  agreed  to  pay,"  etc.,  maybe 
amended  by  inserting  the  words  "in 
writing  "  and  by  annexing  a  copy  of 
the  writing  referred  to.  Verdery  v. 
Barrett,  89  Ga.  349. 

In  an  action  of  covenant  brought  by 
E.  B.,  the  plaintiff  was  allowed  to  file 
a  new  narr.  setting  forth  an  agreement 
under  seal  in  the  name  of  J.  Y.,  agent 
of  E.  B.  Druckenmiller  v.  Young,  27 
Pa.  St.  97. 

Changing  Alleged  Date. — In  a  fore- 
closure suit,  the  plaintiff  was  per- 
mitted to  amend  by  changing  the 
alleged  date  of  the  maturity  of  the 
note.  Jones  v.  Henderson,  49  Ga. 
170. 

To  Obviate  a  Variance. — The  declara- 
tion is  amendable  so  as  to  make  tht 
instrument  declared  on  conform  to 
the  one  offered  in  evidence  even  after 
defendant  prayed  oyer  and  demurred 
for  variance.  Colton  v.  Stanwood,  67 
Me.  25. 

Indorsements  on  Note. — Indorsements 
on  the  note  in  suit,  if  not  correctly 
set  up,  may  be  rectified  by  amend- 
ment. Hamilton  v.  Powers,  80  Mich. 
313.  And  a  note  alleged  to  have 
been  indorsed  to  plaintiff  may  be  de- 
clared by  an  amendment  to  have 
been  made  payable  to  the  plaintiff. 
Elliot  V.  Abbot,  12  N.  H.  549. 


Place  of  Contract. — The  state  where 
the  contract  was  alleged  to  have  been 
made  may  be  changed  by  amendment. 
Trego  V.  Lewis,  58  Pa.  St.  463. 

Description  of  Judgment. — In  debt  on 
judgment,  a  misdescription  of  the 
judgment  may  be  corrected  by  amend- 
ment. Stevens  v.  Hewitt,  30  Vt.  263. 
But  in  Pillsbury  v.  Springfield,  16  N. 
H.  565,  the  misdescription  of  the 
judgment  was  so  radical  as  to  be  in- 
curable. 

Express  and  Implied  Contract. — In  an 
action  against  a  physician  for  mal- 
practice, alleging  breach  of  an  express 
contract,  an  amendment  may  be  made 
setting  forth  the  breach  of  an  implied 
contract.  Kuhn  v.  Brownfield,  34 
W.  Va.  252. 

1.  Stevenson  v.  Mudgett,  10  N.  H. 
338;  Gilman  v.  Cate,  56  N.  H.  166; 
Perot  V.  Leeds,  13  Phila.  (Pa.)  185; 
Cunningham  v.  Day,  2  S.  &  R.  (Pa.) 
i;  Coxe  V.  Tilghman,  i  Whart.  (Pa.) 
282;  Smith  V.  Smith,  5  Pa.  St.  254; 
Cotter  V.  Parks,  80  Tex.  539;  Dowling 
V.  Blackman,  70  Ala.  303;  Freeman  v. 
Fogg,  82  Me.  408;  Spencer  v.  Conrad, 
9  Rob.  (La.)  78. 

Particulars  of  Contract. — In  an  action 
on  the  case  for  fraud  in  making 
shingles,  the  original  declaration  al- 
leged a  contract  on  the  part  of  the 
defendant  to  make  a  certain  quantity 
for  the  plaintiff,  and  an  amendment 
was  allowed,  alleging  that  by  the 
contract  the  plaintiff  was  to  furnish 
the  defendant  with  suitable  materials 
for  making  the  shingles.  Morton  v. 
Fairbanks,  11  Pick.  (Mass.)  368. 

In  Mixer  v.  Howarth,  21  Pick. 
(Mass.)  205,  the  original  counts  were 
for  work  and  labor  done  and  materials 
found,  and  in  his  specification  the 
plaintiff  claimed  the  price  of  a  car- 
riage sold  and  delivered.  He  was 
allowed  to  amend  by  filing  a  count 
upon  an  agreement  by  the  defendant 
to  take  and  pay  for  a  carriage  to  be 
built  by  his  order. 

An  Action  for  Money  Deposited  does 
not  substantially  differ  from  an  amend- 
ment claiming  to  recover  the  value  of 
a  check  or  bill  of  exchange  sold  and 
delivered,  where  the  transaction  was 
susceptible  of  either  construction. 
Henderson  v.  Morris,  5  Oregon  24. 

Adding  Special  Count. — A  declaration 


559 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Amendments  are  also  allowed  to  correct  an  erroneous  descrip- 
tion of  the  property  which  is  the  subject  of  the  suit,  or  to  which 
the  suit  relates.* 

(3)  Making  Allegations  More  Formal  or  Precise. — The  alle- 
gations of  the  complaint  may  be  changed  and  others  added  in  or- 
der to  cure  imperfections  and  mistakes  in  the  manner  of  stating 
the  plaintiff's  case,^  or  for  the  purpose  of  making  the  original 


on  a  count  annexed  for  the  price  of 
goods  sold  and  delivered,  with  a  count 
for  goods  bargained  and  sold,  may 
be  amended  by  adding  a  special  count 
for  not  accepting  and  paying  for  the 
same  goods.  Bailey  v.  Smith,  43  N. 
H.  409. 

It  is  quite  customary  to  amend  dec- 
larations by  adding  counts  upon  prom- 
ises to  pay  the  plaintiff  as  acting  in 
an  official  or  fiduciary  capacity.  Smith 
;^'.  Proctor,  I  Sandf.  (N.  Y.)  72;  Flower 
V.  Garr,  20  Wend.  (N.  Y.)  668;  Megar- 
gell  V.  Hazleton  Coal  Co.,  8  W.  &  S. 
(Pa.)  342;  Stearns  v.  Wrigiit,  50  N.  H. 

293- 

Changing  Defendant's  Capacity. — In  an 
action  of  trover  charging  defendant 
"as  trustee,"  etc.,  the  plaintiff  may 
amend  by  striking  out  the  words  "as 
trustee."  Maxwell  v.  Harrison,  8  Ga. 
61. 

1.  Rowland  v.  Murphy,  66  Tex.  534; 
Lewis  V.  Dennis.  54  Tex.  4S7;  Jones 
V.  Burgett,  46  Tex.  285;  Heilbron  v. 
Heinlen,  72  Cal.  376;  Leeds  v.  Lock- 
wood,  84  Pa.  St.  70;  Mann  v.  Schroer, 
50  Mo.  306;  Kansas  City,  etc.,  R. 
Co.  V.  Cobb  (Ala.,  1894),  14  So.  Rep. 
763:  Allen  V.  Sallinger,  108  N.  Car. 
159;  Rau  V.  Minnesota  Valley  R.  Co., 
13  Minn.  442;  Sinclair  v.  Western  N. 
Car.  R.  Co.,  in  N.  Car.  507;  Cooper  v. 
Cranberry,  33  Miss.  117.  Compare 
Troxler  v.  Gibson,  i  Hayw.  (N.  Car.) 
465. 

In  Trespass,  plaintiff  may  amend  by 
giving  a  more  accurate  description  of 
the  premises.  Cuminge  v.  Rawson,  7 
Mass.  440;  Nettleton  v.  Redfield,  2 
Root   (Conn.)    119;  Box  v.    Lawrence, 


time,  Haskins  v.  Ferris,  23  Vt.  673; 
or  changing  the  description  of  the 
property,  Heushoff  v.  Miller,  2  Johns. 
(N.  Y.)  295. 

So  in  an  action  for  conversion  an 
allegation  of  demand  is  proper  for  an 
amendment.  Hulbert  v.  Brackett,  8 
Wash.  435. 

A  complaint  apparently  in  trover 
may  be  amended  by  adding  an  allega- 
tion of  the  conversion.  Lord  v.  Pierce, 
33  Me.  350. 

In  Eeal  Actions. — In  real  actions,  an 
amendment  embracinga  different  piece 
of  land  from  that  described  in  the  dec- 
laration is  inadmissible,  Wyman  v. 
Kilgore,  47  Me.  184;  unless  the  omis- 
sion was  accidental,  Noyes  v.  Richard- 
son, 59  N.  H.  490. 

A  writ  of  entry  may  be  amended  so 
as  to  limit  the  land  demanded.  Wilson 
V.  Eaton,  5  N.  H.  141. 

2.  Stevenson  v.  Mudgett,  10  N.  H. 
338,  quoted  \n  Gilman  v.  Cate,  56  N.  H. 
160,  166;  Kirkner  v.  Com.,  6  W.  &  S. 
(Pa.)  557;  Diehl  v.  McGlue,  2  Rawle 
(Pa.)  337;  Houghton  v.  Stowell,  28  Me. 
215;  Avery  !».  New  York  Cent.,  etc.,  R. 
Co.,  106  N.  Y.  142;  Daley  v.  Boston, 
etc.,  R.  Co.,  147  Mass.  loi ;  Lanahan  v. 
Porter,  i48Mass.  596;  Heridia  v.  Ayres, 
12  Pick.  (Mass  )  334;  Bishop  v.  Baker, 
19  Pick.  (Mass.)  517;  Myers  v.  Lyon,  51 
Vt.  272;  McCannonz/.  Detroit,  etc.,  R. 
Co.,  66  Mich.  442. 

Assumpsit  for  Bent. — A  declaration 
in  assumpsit  for  rent  may  be  amended 
by  declaring  more  formally  for  use  and 
occupation.  Bachop  v.  Hill,  54  Vt. 
507. 

Action  on  Bill  of  Exchange.  —  Pres- 


14  Te.x.    545;    Haynes  v.   Jackson,   66     entation,  refusal   to   pay,  and   notice 


Me.  93;  Gilman  v.  Cate,  56  N.  H.  160. 
But  if  a  new  parcel  of  land  be  included, 
the  amendment  will  be  open  to  the 
statute  of  limitations.  Atkinson  v. 
Amador,  etc.,  Canal  Co.,  53  Cal.  102. 
And  such  an  amendment  was  denied 
in  Robinson  v.  Miller,  37  Me.  312. 

In  Trover,  an  amendment  may  be 
allowed  adding  a  count  for  additional 
property  which  was  taken  at  the  same 


may  be  allowed  by  amendment  to 
a  declaration  against  the  drawer  of 
a  bill  of  exchange,  Jones  v.  Warren, 
60  Ga.  359. 

Waiver  of  Condition.  —  And  in  an 
action  on  an  insurance  policy,  an 
averment  of  the  waiver  of  a  condition 
therein.  California  Ins.  Co.  v.  Gracey, 
15  Colo.  70.  See  also  Lewis  v.  Mon- 
mouth  Mut.  F.   Ins.  Co.,  52  Me.  492. 


560 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Trespass  Quare  Clausam. — A  declara- 
tion for  trespass  quart  clausum,  and 
also  for  carrying  away  goods,  may 
be  amended  by  adding  a  count 
for  trespass  de  bonis  asportatis.  Hill 
V.  Penny,  17  Me.  409 ;  Bishop  v. 
Baker,  19  Pick.  (Mass.)  517;  Me- 
chanics', etc.,  Ins.  Co.  v.  Spang,  5  Pa. 
St.  113;  Burnham  v.  Plant,  57  N.  H. 
41.  Compare  Duncan  v.  Sylvester,  13 
Me.  417. 

The  date  of  the  alleged  trespass 
may  be  changed.  Moore  v.  Boyd,  24 
Me.  242;  Hammatt  v.  Russ,  16  Me.  171. 

Beath  by  Wrongful  Act.  —  In  an 
action  for  death  by  wrongful  act, 
the  omission  of  necessary  averments 
that  the  deceased  left  a  parent, 
wife,  or  child  may  be  supplied  by 
amendment.  South  Carolina  R.  Co.  v. 
Nix,  68  Ga.  572.  See  also  Klemm  v. 
New  York  Cent.,  etc.,  R.  Co.  (Supreme 
Ct.),  28  N.  Y.  Supp.  861. 

Amendment  of  Answer. — A  defendant 
may  amend  his  answer  by  stating  in 
definite  form  how  he  claims  a  title 
which  he  has  previously  asserted  in  a 
general  form.  Woodward  v.  William- 
son, 39  S.  Car.  333. 

In  Actions  for  Flowage  of  Land. — A  dec- 
laration alleged  that  the  defendant 
by  means  of  a  dam  caused  the  waters 
of  a  stream  to  overflow  the  plaintiff's 
land.  An  amendment  adding  "and 
the  waters  flowing  upon  and  running 
into  said  land"  before  the  words  "to 
overflow  "  did  not  change  the  cause  of 
action.  Bassett  v.  Salisbury  Mfg. 
Co.,  28  N.  H.  438.  But  an  amendment 
presenting  a  new  issue  as  to  the  man- 
ner in  which  defendant  caused  the 
overflow  was  held  to  be  open  to  the 
statute  of  limitations,  in  Bunting  v. 
Chicago,  etc.,  R.  Co.,  41  Fed.  Rep. 
744.  And  in  Pearson  v.  Reid,  10  Ga. 
580,  it  was  held  that  a  new  and  dis- 
tinct injury  caused  by  the  overflow 
could  not  be  introduced  by  amend- 
ment. See,  however,  on  this  point, 
International,  etc.,  R.  Co.  v.  Pape, 
73  Tex.  501,  and  Shearer  v.  Middleton, 
88  Mich.  621. 

In  Ejectment  —  New  Demise.  —  In 
ejectment  in  the  old  form  the  plaintiff 
is  allowed  almost  as  of  course  to 
amend  by  inserting  a  new  demise 
where  the  proposed  lessor  has  a  sub- 
sisting title.  Jackson  v.  Murray,  i 
Cow.  (N.  Y.)  156;  Jackson  v.  Travis, 
3  Cow.  (N.  Y.)356;  Jackson  v.  Smith, 
6  Cow.  (N.  Y.)  40,  holding  that  cause 
must  be   shown  by  affidavit;   Anony- 


mous, 2  Cai.  (N.  Y.)  260;  Jackson  v. 
Kough,  I  Cai.  (N.  Y.)  251,  where  leave 
to  amend  was  given  six  years  after 
service  of  the  declaration;  Den  v. 
Ganoe,  16  N.  J.  L.  439;  Den  v.  Mc- 
Shane,  13  N.  J.  L.  35;  Den  v.  Snow- 
hill,  13  N.  J.  L.  23;  Nance  v.  Thomp- 
son, I  Sneed  (Tenn.)  321  ;  Wilson 
V.  Wallace,  8  S.  &  R.  (Pa.)  56;  Gilt- 
ner  v.  Carrollton,  7  B.  Mon.  (Ky.) 
680;  Hume  V.  Langston,  6  J.  J.  Marsh 
(Ky.)  254;  Tidd's  Practice,  1206. 

But  a  count  cannot  be  added  on  the 
demise  of  a  person  who  died  since  the 
commencement  of  the  action,  although 
he  was  alive  at  the  date  of  the  demise 
in  the  proposed  count.  Skipper  v. 
Lennon,  Busb.  (N.  Car.)  189 ;  Ad- 
derton  v.  Melchor,  9  Ired.  (N.  Car.) 
349;  Elliott  V.  Bohannon,  5  T.  B. 
Mon.  (Ky.)  121.  Nor  a  count  stating 
a  demise  after  the  commencement  of 
the  suit.  Cox  v.  Lacey,  3  Litt.  (Ky.)  334. 
And  a  new  demise  from  a  different 
party  asserting  a  different  title  sets  up 
a  new  cause  of  action  and  is  open  to 
the  statute  of  limitations.  Sicard  v. 
Davis,  6  Pet.  (U.  S.)  124;  Jones  v. 
Johnson,  81  Ga.  293;  Dawty  v.  Han- 
sell,  20  Ga.  659.  See  also  Gresham  v. 
Webb,  29  Ga.  520;  Smith  v.  Steelman, 
20  N.  J.  L.  116. 

The  Term  of  the  fictitious  lease  may 
be  extended  by  amendment.  Huff  v. 
Lake,  9  Humph.  (Tenn.)  137;  Maus  v. 
Montgomery,  10  S.  &  R.  (Pa.)  192; 
Ledgerwood  v.  Pickett,  i  McLean 
(U.  S.)  143,  after  judgment ;  Baxter 
V.  Baxter,  3  Jones  (N.  Car.)  303,  where 
such  leave  was  given  in  the  ap- 
pellate court.  See  also  English  v. 
Register,  7  Ga.  387;  Smith  v.  Vaughan, 
10  Pet.  (U.  S.)  366;  Tidd's  Practice, 
1207.  Aliter  after  great  laches  and 
delay.  Gardiner  v.  Wilson,  2  Yeates 
(Pa.)  186;  Woods  V.  Galbreath,  2 
Yeates  (Pa.)  536. 

The  Dale  of  the  demise  may  be 
amended.  Den  v.  Smith,  3  N.  J.  L. 
710;  Anonymous,  8  N.  J.  L.  366;  Den 
V.  Franklin,  5  N.  J.  L.  850  [after  non- 
suit] ;  Den  v.  Lanning,  9  N.  J.  L. 
254,  citing  Doe  v.  Roe,  7  T.  R.  465; 
Miller  v.  Shackleford,  4  Dana  (Ky.) 
264;  Jackson  v.  Tuttle,  6  Cow.  (N.  Y.) 
590;  Meeker  v.  Doe,  7  Blackf.  (Ind.) 
169  [provided  no  hardship  is  thereby 
imposed  on  the  defendant]  ;  Black- 
well  V.  Patton,  7  Cranch  (U.  S.)  471, 
[during  the  trial];  Cockshot  v.  Hop- 
kins, 2  Dall.  (U.  S.)  97.  Sec  alsoVree- 
land  V.  Ryerson,  28  N.  J.  L.  205. 


I  Encyc.  PI,  &  Pr.— 36. 


561 


Of  Pleadings,  etc.,  at 


AMENDMENTS,  common  Law,  under  Codes,  etc. 


statements  more  definite  and  precise.* 

(4)  Same  Allegations  in  Different  Form. — The  particulars  set 
forth  in  a  declaration  or  complaint  by  way  of  inducement  and 
preliminary  to  the  main  facts  may  be  changed  by  amendment  ;* 
and  the  cause  of  action  may  be  narrowed,  enlarged,  or  fortified  in 
varying  forms  to  meet  the  varied  aspects  in  which  the  pleader 
may  anticipate  its  disclosure  by  the  evidence.' 


A  Misdescription  of  the  land  may  be 
corrected  by  amendment.  Leeds  v. 
Lockwood,  84  Pa.  St.  70;  Cooper  v. 
Ganberry,  33  Miss.  117.  See  also 
Heilbron  v.  Heinlen,  72  Cal.  376;  Gil- 
man  V.  Gate,  56  N.  H.  160;  Box  v. 
Lawrence,  14  Tex.  545  ;  Cuminge  v. 
Rawson,  7  Mass.  440.  But  not  so  as 
to  include  different  land.  Troxler  v. 
Gibson,  i  Hayw,  (N.  Car.)  465. 

1.  Worrill  v.  Taylor,  27  Ga.  398; 
Brown  v.  Tobias,  i  Allen  (Mass.)  385; 
Lanahan  v.  Porter,  148  Mass.  596; 
Waverly  Timber  &  Iron  Co.  v.  St. 
Louis  Cooperage  Co.,  112  Mo.  383; 
Potter  V.  Lucas,  59  Me.  212;  Knapp 
V.  Clark,  30  Me.  244;  McFadden  v. 
Hewitt,  78  Me.  24;  Newell  v.  Horn, 
47  N.  H.  379;  Taylor  v.  Dustin,  43  N. 
H.  493;  Rollins  V.  Robinson,  37  N.  H. 
579;  Ex  parte  Ryan,  9  Ala.  89;  Taylor 
V.  Perry,  48  Ala.  240;  Cabarga  v. 
Seeger,  17  Pa.  St.  514;  Gulf,  etc.,  R. 
Co.  V.  McGowan,  73  Tex.  355;  Haynes 
"v.  Rice,  33  Tex.  167;  Scoby  v.  Siveatt, 
28  Tex.  713;  Foster  v.  Smith,  66  Tex. 
680;  Spencer  v.  McCarty,  46  Tex.  213; 
Hastings  v.  Kellogg  (Tex.  Civ.  App., 
1894),  24  S.  W.  Rep.  846;  Texas  Ele- 
vator, etc.,  Co.  V.  Mitchell,  78  Tex. 
64;  Carter  v.  Hosford,  48  Vt.  433; 
Richmond  v.  Second  Ave.  R.  Co. 
(Super.  Ct.),  29  N.  Y.  Supp.  588;  Ne- 
vada County,  etc..  Canal  Co.  v.  Kidd, 
28  Cal.  673. 

Where  the  consideration  of  a  prom- 
ise was  alleged  to  have  been  exe- 
cuted, an  amendment  describing  it  as 
executory  was  allowed.  Detroit,  etc., 
R.  Co.  V.  Forbes,  30  Mich.  165. 

In  an  action  for  killing  plaintiff's 
horse  an  amendment  substituting  the 
word  "  mare  "  was  not  for  a  new  cause 
of  action.  South,  etc.,  R.  Co.  v.  Bees, 
82  Ala.  340. 

2.  Christian  v.  Columbus,  etc.,  R. 
Co.,  90  Ga.  124;  Western  Union  Tel. 
Co.  V.  Way,  83  Ala.  542. 

3.  Mahan  v.  Smitherman,  71  Ala. 
565;  Oden  V.  Bonner,  93  Ala.  393; 
Stringer  v,.  Waters,  63  Ala.  361;  Cas- 
seil   V.  Cooke,  8   S.    &   R.    (Pa.)  269; 


Smith  V.  Smith,  5  Pa.  St.  254;  Stewart 
V.  Kelly,  16  Pa.  St.  160;  Bavington  v. 
Pittsburgh,  etc.,  R.  Co.,  34  Pa.  St. 
358;  Kester  v.  Stokes,  i  Miles  (Pa.) 
67;  Baldock  v.  Atwood,  21  Oregon  79; 
Bassett  v.  Salisbury  Mfg.  Co.,  28 
N.  H.  438;  Daley  v.  Gates,  65  Vt.  591; 
McKnight  v.  Cooper,  27  S.  Car.  92; 
Chapman  v.  Sneed,  17  Tex.  428; 
Thompson  v.  Swearingen,  48  Tex. 
555;  Silberberg  v.  Trilling,  82  Tex. 
523;  Sinsheimer  v.  Kahn  (Tex.  Civ. 
App.,  1893),  24  S.  W.  Rep.  535;  Kamm 
V.  California  Bank,  74  Cal.  198;  Mc- 
Cracken  v.  Chicago,  etc.,  R.  Co. 
(Iowa.  1894),  58  N.  W.  Rep.  1085;  Will- 
iamson V.  Chicago,  etc.,  R.  Co.,  84 
Iowa  583;  Seymour  v.  Fisher,  16  Colo. 
188;  Finan  v.  Babcock,  58  Mich.  301; 
People  V.  Judge,  i  Dougl.  (Mich.)  434; 
Swan  V.  Nesmith,  7  Pick.  (Mass.) 
220;  Hamill  v.  Phenice,  9  Iowa  525; 
Mathers  v.  Butler  County,  16  Iowa  59. 

Avoiding  Statute  of  Limitations.  — 
Where  the  declaration  shows  on  its 
face  that  the  statutory  period  within 
which  the  action  would  be  barred  has 
expired,  it  may  be  amended  by  alleg- 
ing defendant's  absence  from  the  state 
during  that  period.  Hardee  v.  Lovett, 
83  Ga.  203. 

Action  for  Enticement. — A  declaration 
for  enticing  away  a  minor  daughter 
may  be  amended  by  adding  a  count 
for  harboring  and  secreting  and  per- 
suading her  to  remain  absent  from 
her  father's  service.  Stowe  v.  Hey- 
wood.    7   Allen  (Mass.)  118. 

Description  of  Services. — Where  the 
plaintiff,  suing  for  services  rendered, 
described  himself  as -"  superintend- 
ent," he  was  allowed  to  amend  by 
describing  himself  as  "general  man- 
ager." Etowah  Gold  Min.  Co.  v. 
Exter,  91  Ga.  171. 

Action  to  Bescind  Contract. — In  a  suit 
to  rescind  a  contract  on  the  ground  of 
fraud  and  undue  influence,  an  amend- 
ment alleging  that  the  petitioner  was 
of  weak  mind,  etc.,  was  permitted. 
Clough  V.  Adams,  71  Iowa  17. 

Striking  Out  Offer. — In  a  complaint 


562 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  eto. 


(5)  In  Actions  for  Negligence. — In  suits  founded  on  negligence, 
allegations  of  facts  tending  to  establish  the  same  act  of  negligence 
may  properly  be  added  by  amendment.* 

(6)  In  Actions  for  Slander. — In  actions  for  slander  it  is  within 
the  power  of  the  court  to  allow  the  complaint  to  be  amended  by 
setting  out  the  defamatory  charges  in  different  forms,  * 


claiming  damages  for  the  fraudulent 
sale  of  mining  property  and  offering 
to  return  the  deed,  an  amendment 
striking  out  the  offer  was  allowed. 
Ahrens  v.  Adler,  33  Cal.  608. 

Alleging  Additional  Grounds. — A  com- 
plaint, in  an  action  by  the  assignee  of 
an  insolvent  firm  against  a  purchaser, 
alleging  that  a  sale  of  property  by  one 
partner  was  void  for  preferences,  may 
be  amended  by  adding  a  count  alleging 
that  it  was  also  void  because  it  was 
made  in  excess  of  the  authority  of  its 
partner.  Carrie  v.  Cloverdale  Bank- 
ing, etc.,  Co.,  90  Cal.  84. 

1.  Central  R.,  etc.,  Co.  v.  Kitchens, 
83  Ga.  83;  Smith  v.  Georgia  R.,  etc., 
Co.,  87  Ga.  764;  Georgia  R.  Co.  v. 
Thomas,  68  Ga.  744;  Colley  v.  Gate 
City  Coffin  Co.  (Ga.,  1893),  18  S.  E. 
Rep.  817;  Rome  R.  Co.  v.  Barnett,  89 
Ga.  718;  Augusta,  etc.,  R.  Co.  v.  Dor- 
sey,  68  Ga.  228;  Alabama,  etc.,  R.  Co. 
V.  Arnold,  80  Ala.  600,  and  Alabama, 
etc.,  R.  Co.  V.  Thomas,  89  Ala.  294, 
holding,  in  accord  with  the  uniform 
rule,  that  such  amendments  relate 
back  to  the  commencement  of  the  suit 
and  arrest  the  operation  of  the  statute 
of  limitations  at  that  point;  Western 
Union  Tel.  Co.  v.  Way,  83  Ala.  542, 
an  action  for  failure  to  deliver  a 
telegram,  the  same  question  being 
involved;  Alabama,  etc.,  R.  Co.  v. 
Arnold,  80  Ala.  600;  Alabama,  etc., 
R.  Co.  V.  Chapman,  83  Ala.  453;  Elyton 
Land  Co.  v.  Mingea,  89  Ala.  521,  where 
the  plaintiff,  declaring  generally  for 
negligence,  was  permitted  to  amend 
by  alleging  the  violation  of  a  city  or- 
dinance,— "a  new  reason  for  the  act  of 
negligence  ;"  Becker  v.  New  York, 
etc.,  R.  Co.  (Supreme  Court),  31  N.  Y. 
St.  Rep.  750,  ID  N.  Y.  Supp.  413;  Wil- 
son V.  Spafford  (Supreme  Ct.),  32  N.  Y. 
St.  Rep.  532,  10  N.  Y.  Supp.  649,  an 
action  against  a  town  for  negligence 
of  its  officers,  the  amendment  alleging 
the  negligence  of  a  particular  officer; 
Ehlein  v.  Brayton,66  Hun  (N.  Y.)635, 
21  N.  Y.  Supp.  825;  Coby  v.  Ibert 
(City  Ct.),  25  N.  Y.  Supp.  998;  Greer 
V.  Louisville,  etc.,  R.  Co.  (Ky.,  1893), 
21  S.  W.  Rep.  649,  where  a  refusal  to 


permit    such    amendment    was    held 
reversible  error. 

Alleging  a  Different  Defect. — In  Smith 
V.  Bogenschutz  (Ky.,  1892),  19  S.  W. 
Rep.  667,  it  was  held  that  a  com- 
plaint alleging  that  a  certain  injury 
caused  by  the  overflow  of  molten  iron 
from  a  ladle  in  which  it  was  being 
carried  was  due  to  the  jostling  of  the 
carriers  in  a  narrow  passway  might 
be  amended  so  as  to  allege  that  the 
overflow  was  due  to  a  defect  in  the 
ladle.  See  also  Chapman  v.  Noble- 
boro,  76  Me.  427;  Davis  v.  Hill,  41  N, 
H.  329,  actions  for  injuries  from  de- 
fective highways.  Mclntire  v.  Eastern 
R.  Co.,  58  N.  H.  137. 

Negligence  of  Owner  of  Vicious  Animal. 
— In  Connell  v.  Putnam,  58  N.  H.  335, 
the  declaration  was  in  case  for  wrong- 
fully and  injuriously  keeping  a  vicious 
horse  which  attacked  the  plaintiff's 
servant,  and  a  new  count  was  prop- 
erly allowed  charging  negligence  in 
permitting  the  horse  to  go  at  large 
without  a  keeper.  But  this  is  hardly 
to  be  reconciled  with  Cox  v.  Murphy, 
82  Ga.  623. 

Negligence  of  Master. — In  Smith  v. 
Missouri  Pac.  R.  Co.  (Mo.),  56  Fed. 
Rep.  458,  an  action  against  a  master 
alleging  negligence  in  employing  an 
incompetent  servant,  an  amendment 
alleging  that  the  servant  was  neg- 
ligent and  that  plaintiff  was  not  a 
fellow-servant  was  allowed.  See  also 
Kuhns  V.  Wisconsin,  etc.,  R.  Co.,  76 
Iowa  67;  Wilson  v.  New  York,  etc., 
R.  Co.  (R.  I.,  1894),  29  Atl,  Rep.  300. 

Changing  Plaintiff's  Belation.  —  A 
complaint  for  negligence  against  a 
carrier,  the  plaintiff  describing  him- 
self as  a  passenger,  may  be  amended 
by  alleging  that  he  was  being  trans- 
ported as  an  employ^.  Kansas  Pac.  R. 
Co.  V.  Salmon,  14  Kan.  512;  Jefferson- 
ville,  etc.,  R.  Co.  v.  Hendricks,  41 
Ind.  48.  See  also  Pennsylvania  Co.  v. 
Sloan,  125  111.  72;  Atlantic,  etc.,  R. 
Co.  V.  Laird  (Cal.),  58  Fed.  Rep.  760. 

2.  Gay  v.  Homer,  13  Pick.  (Mass.) 
535;  CoUyer  v.  Collyer,  50  Hun  (N.  Y.) 
422;  Collyer  v.  Collyer  (Supreme  Ct.), 
2  N.  Y.  Supp.  310;  Conroe  v.  Conroe, 


563 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

or  in  a  foreign  language,*  or  by  stating  that  the  words  were 
spokca  of  the  plaintiff  in  his  professional  or  official  capacity,* 
or  by  changing  the  date  of  the  alleged  slander.*  But  an 
amendment  setting  out  an  essentially  different  slander  uttered 
at  a  different  time  is  not  permissible.* 

(7)  Summary  Statement  of  the  Rule. — As  long  as  the  plaintiff 
adheres  to  the  contract  or  the  injury  originally  declared  upon,  an 
alteration  of  the  modes  in  which  the  defendant  has  broken  the 
contract  or  caused  the  injury  is  not  an  introduction  of  a  new 
cause  of  action.  The  test  is  whether  the  proposed  amendment 
is  a  different  matter,  another  subject  of  controversy,  or  the 
same  matter  more  fully  or  differently  laid  to  meet  the  possible 
scope  and  varying  phases  of  the  testimony.* 


47  Pa.  St.  198;  Geary  v.  Bennett,  65 
Wis.  554;  Summan  v.  Brewin,  52  Ind. 
140. 

Adultery  and  Fornication. — A  com- 
plaint for  charging  adultery  may 
be  amended  by  adding  a  count  for 
charging  fornication  by  the  use  of 
the  same  words.  Baldwin  v.  Soule,  6 
Gray  (Mass.)  327,  where  the  amend- 
ment was  allowed  after  the  commence- 
ment of  the  argument. 

Larceny  of  Different  Goods. — In  Will- 
iams V.  Cooper,  i  Hill  (N.  Y.)  321, 
where  the  alleged  slander  consisted 
in  charging  plaintiff  with  stealing 
apples,  an  amendment  alleging  that 
defendant  accused  him  of  stealing 
boards  was  not  allowed.  But  the 
amount  of  money  charged  to  have 
been  stolen  may  be  changed.  Miller 
'J.  Holmes  (Super.  Ct.),  19  N.  Y.  Supp. 
701. 

Malpractice  and  Quackery. — A  charge 
of  malpractice  as  a  physician,  al- 
though it  may  be  amended  by  add- 
ing words  of  the  same  character, 
cannot  be  amended  into  a  charge  that 
the  plaintiff  was  a  quack  or  practiced 
without  a  diploma  after  the  statute  of 
limitations  has  attached.  Weston  v. 
Worden,  19  Wend.  (N.  Y.)  648. 

1.  Rahauser  v.  Schwerger  Barth,  3 
Watts  (Pa.)  28. 

2.  Skinner  v.  Grant,  12  Vt.  456; 
Powers  V.  Gary,  64  Me.  9. 

3.  Beneway  v.  Thorp,  77  Mich.  181. 

4.  Hester  v.  Mullen,  107  N.  Car. 
724;  Proctor  V.  Owens,  18  Ind.  21. 
See  also  Thompson  v.  Jones,  18  Ind. 
476  ;  Miles  v.  Vanhorn,  17  Ind.  245. 
Compare  Mohr  v.  Lemle,  69  Ala.  180,  a 
libel  case;   Daggy  v.   Green,  12  Ind. 

303- 

5.  Daley    v.    Gates,    65     Vt.    591, 


citing  Cassell  v.  Cooke,  8  S.  &  R. 
(Pa.)  268;  Stewarf  v.  Kelly,  16  Pa. 
St.  160;  Maxwell  v.  Harrison,  8  Ga. 
61;  Stevenson  v.  Mudgett,  10  N.  H. 
33S.  See  also  Coxe  v.  Tilghman,  i 
Whart.  (Pa.)  282;  Strong  v.  State,  75. 
Ind.  440;  Rodrique  v.  Curcier,  15  S. 
&  R.  (Pa.)  81;  Jacobs  v.  Gilreath 
(S.  Car.,  1894),  19  S.  E.  Rep.  308;  Perot 
V.  Leeds,  13  Phila.  (Pa.)  185. 

In  Van  de  Haar  v.  Van  Domseler, 
56  Iowa  671,  the  court,  in  denying 
leave  to  amend  the  petition,  pointed 
out  that  the  new  and  old  matter  could 
not  have  been  joined  in  the  same  court 
without  making  the  petition  demurra- 
ble. An  opposite  ruling  was  sup- 
ported by  stating  the  proposition  con- 
versely, in  Smith  v.  Missouri  Pac.  R. 
Co.,  56  Fed.  Rep.  458:  "The  subject- 
matter  of  the  new  count  must  be  the 
same  as  of  the  old;  it  must  not  be  for 
an  additional  claim  or  demand,  but 
only  a  variation  of  the  form  of  de- 
manding the  same  thing."  Ball  v. 
Claflin,  5  Pick.  (Mass.)  303.  Cited  in 
Smith  V.  Palmer,  6  Cush.  (Mass.)  513, 
where  the  rule  was  clearly  stated  and 
an  amendment  was  allowed.  See  also 
Pillsbury  v.  Springfield,  16  N.  H. 
565. 

Accounting  in  Surrogate  Court. — In  an 
accounting  before  a  surrogate  the  ac- 
counting itself  is  the  subject-matter 
of  the  proceeding,  and  any  amendment 
may  be  allowed  which  does  not  include 
a  transaction  subsequent  to  the  return 
day  of  the  citation.  In  re  Munzor's 
Estate  (Sur.  Ct.),  25  N.  Y.  Supp.  818, 
4  Misc.  Rep.  374. 

Assault  and  Battery. — It  seems  that 
an  amended  complaint  charging  "as- 
sault and  battery"  is  not  wholly 
different  from  one  charging  "  assault  ■*■ 


564 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  law,  under  Codes,  eta 


The  question  is  one  of  acknowledged  difficulty,  for  in  a  strict 


Sullivan  v.  Sullivan,  24  S.  Car 


only. 
476. 

Assigning  New  Breaches  of  Covenant. — 
Where  several  covenants  in  one  instru- 
ment are  set  out,  but  a  breach  of  only- 
one  is  alleged,  an  amendment  alleging 
the  breach  of  another  or  others  may 
be  allowed.  Wilson  v.  Widenham,  51 
Me.  566;  Heath  v.  Whidden,  24  Me. 
383;  Spencer  v.  Howe,  26  Conn.  200; 
Boyd  V.  Bartlett,  36  Vt.  9;  Coxe  v. 
Tilghman,  i  Whart.  (Pa.)  282;  Hunt 
-v.  Gaylor,  25  Ohio  St.  620;  Harris  v. 
Wadsworth,  3  Johns.  (N.  Y.)  257. 

In  an  action  on  a  sheriff's  official 
bond,  the  plaintiff  may  assign  new 
breaches  of  the  condition  of  the  bond 
after  the  jury  is  sworn.  Shannon  v. 
Com.,  8  S.  &  R.  (Pa.)  444. 

A  Libel  for  Divorce  a  vinculo  for 
adultery  may  be  amended  by  adding  a 
charge  of  extreme  cruelty  and  praying 
for  divorce  from  bed  and  board.  An- 
derson V.  Anderson,  4  Me.  100. 

Ejection  from  Train.  —  A  complaint 
for  wrongfully  expelling  plaintiff  from 
a  train  may  be  amended  by  alleging 
simply  an  ejection  with  unnecessary 
violence.  Chicago,  etc.,  R.  Co.  v. 
Bills,  118  Ind.  221. 

A  complainant  alleging  that  the 
plaintiff  was  wrongfully  ejected  from 
a  certain  train  on  which  his  ticket  was 
good  may  be  amended  so  as  to  show 
that  he  was  ejected  from  another 
train  for  which  he  had  no  ticket. 
Brassell  v.  Minneapolis,  etc..  Railway 
Co.  (Mich.,  1894),  59  N.  W.  Rep.  426. 

A  Petition  on  Account  may  be  amended 
by  setting  up  a  draft  signed  by  the 
defendant  and  alleging  that  the  in- 
debtedness thereon  is  the  same. 
Kimball  v.  Bryan,  56  Iowa  632. 

Description  of  Property. — In  an  action 
for  negligently  burning  "ash  lumber," 
an  amendment  was  allowed  substitut- 
ing "birch"  for  "ash."  Walker  v. 
Fletcher,  74  Me.  142. 

Striking  out  Claim. — Plaintiff  may 
amend  by  striking  out  an  illegal  part 
of  his  claim  if  it  be  not  inseparably 
connected  ^ith  the  rest.  Boyd  v. 
Eaton,  44  Me.  51. 

Loss  of  Services. — In  an  action  for 
injuries  to  a  son,  claiming  damages 
for  loss  of  services,  an  amendment 
claiming  damages  tor  loss  of  services 
by  his  death  is  not  a  new  cause  of 
action.  Bradford  v.  Downs,  126  Pa. 
St.  622. 

Action  for  Enticement. — Where  in  an 


action  on  the  case  the  original  declara- 
tion charges  that  defendant  enticed- 
away  plaintiff's  husband  per  quod  con- 
sortium amisit,  a  new  count  which 
charges  defendant  with  criminal  con- 
versation with  him  and  the  same/^r 
quod  IS  allowable.  Daley  v.  Gates,  65 
Vt.  591- 

Allegation  of  Gift  Inter  Vivos. — A  com- 
plaint alleging  a  gift  inter  vivos  may 
be  amended  by  alleging  a  gift  causa 
mortis.  Walsh  v.  Bowery  Sav.  Bank 
(City  Ct.),  26  N.  Y.  St.  Rep.  95. 

Use  and  Occupation. — An  action  for 
use  and  occupation  may  be  changed 
into  one  of  covenant  on  the  lease. 
Bedford  v.  Terhune,  30  N.  Y.  453,  27 
How.  Pr.  (N.  Y.)  422.  See  also  Nel- 
son V.  Webb,  54  Ala.  436. 

Assumpsit  on  a  'Bill  of  Exchange  may 
be  amended  by  inserting  a  count  for 
money  had  and  received.  Cram  v. 
Sherburne,  14  Me.  48. 

Qui  Tam  Action. — A  declaration  in  qui 
tarn  action  embracing  in  one  count  a 
claim  for  several  penalties  on  account 
of  distinct  violation  of  the  statute 
may  be  amended  by  filing  counts  for 
each  violation.  Mitchell  v.  Tibbetts, 
17  Pick.  (Mass.)  298. 

Withdrawing  Charge. — In  a  suit  by 
a  corporation  for  "driving"  and 
"booming"  lumber  it  is  proper  to 
allow  the  plaintiffs  to  amend  by  with- 
drawing the  charge  for  "driving." 
Bangor  Boom  Corp.  v.  Whiting,  29 
Me.  123. 

Fraud  Changed  to  Negligence.  —  An 
action  for  false  warranty  of  an  article 
made  to  order,  and  for  fraud  in  the 
manufacture  and  sale  of  it  to  the  de- 
fendant, may  be  amended  by  charging 
negligence  in  the  manufacture  of  it. 
Beers  v.  Woodruff  &  B.  Iron  Works, 
30  Conn.  308. 

Setting  up  Quantum  Meruit. — Where 
the  contract  upon  which  an  action  is 
brought  for  services  is  void  by  the 
statute  of  frauds,  the  plaintiff  may 
amend  so  as  to  recover  on  a  quantum 
meruit.  Turnow  v.  Hochstadter,  7 
Hun  (N.  Y.)  80. 

A  complaint  seeking  to  recover  the 
contract  price  for  services  together 
with  benefits  prevented  by  the  de- 
fendant may  be  amended  by  declaring 
upon  a  quantum  meruit.  Cox  v.  Mc- 
Laughlin, 76  Cal.  60.  See  also  Cope- 
land  V.  Johnson  Mfg.  Co.  (Supreme 
Ct.),  3  N.  Y.  Supp.  42. 

The  Ad  Damnum  may  be    changed 


Of  Pleadings,  etc.,  at 


MEND  MEN  TS.  Common  Law,  under  Codes,  etc. 


sense  almost  every  amendment  ^yhich  is  important  may  be  said 

without  constituting  a  new  cause  of 
action.  Frankfurter  v.  Home  Ins.  Co. 
(City  Ct.),  26  N.  Y.  Supp.  81;  Johnson 
V.  Brown,  57  Barb.  118  ;  Arrigo  v. 
Catalano  (Super.  Ct.),  27  N.  Y.  Supp. 
995;  Chamberlain  v.  Mensing,  51  Fed. 
Rep.  511  ;  Harris  v.  Belden,  48  Vt. 
478;  Tassey  v.  Church,  4  W.  &  S.  (Pa.) 
141.  See  also  Townsend  Nat.  Bank  v. 
Jones,  151  Mass.  454. 

Or  the  insertion  of  an  ad  damnum 
where  the  original  was  left  blank. 
Burleigh  v.  Merrill,  49  N..H.  35. 

The  Prayer  for  Relief  may  be  changed. 
McIIhenny  v.  Lee,  43  Tex.  205;  Case 
V.  Blood,  71  Iowa  632;  Cook  v.  Chi- 
cago, etc.,  R.  Co.,  75  Iowa  169. 

Common  Counts  and  Special  Contract. — 
A  complaint  for  "work,  labor,  and 
services  "  may  be  amended  by  stating 
that  the  services  were  rendered  under 
a  special  contract.  Tarrant  v.  Gittel- 
son,  16  S.  Car.  231.  But  not  after  an 
action  of  the  special  contract  is  barred 
by  the  statute  of  limitations.  People 
V.  Circuit  Judge,  27  Mich.  138. 

Common  indebitatus  counts,  upon  a 
sale  to  the  defendant,  cannot  be 
amended  by  adding  counts  upon  a  con- 
tract of  guaranty.  Brodek  v.  Hirsch- 
field,  57  Vt.  12. 

The  common  counts  cannot  be 
amended  by  claiming  unliquidated 
damages  for  breach  of  a  special  con- 
tract in  a  lease.  Burt  v.  Kinne,  47  N. 
H.  361. 

Neglect  of  Deputy. — A  declaration  in 
an  action  against  a  sheriff  for  default 
of  one  of  his  deputies  may  be  amended 
by  adding  a  count  for  the  neglect  of 
another  deputy  in  the  same  matter. 
Grafton    Bank    v.    White,    17    N.     H. 

389- 

Adding  Money  Count. — A  declaration 
with  a  special  count  against  defendants 
as  indorsers  of  a  promissory'  note, 
and  a  count  for  money  had  and  re- 
ceived, may  be  amended  by  a  new 
count  for  money  paid,  the  identity 
being  preserved.  Libbey  v.  Pierce, 
47  N.  H.  309. 

Title  to  Possession. — Amending  a  pe- 
tition in  ejectment  by  causing  it  to  state 
that  both  the  husband  and  wife  are 
entitled  to  the  possession,  instead  of 
the  wife  alone,  does  not  change  the 
cause  of  action.  Hughes  v.  McDivitt, 
102  Mo.  77. 

In  Account  Bender,  a  count  charging 
defendant  as  bailiff  for  the  plaintiff's 
land  may  be  joined  to  a  count  charg- 


ing him  as  tenant  in  common  with  the 
plaintiff,  and  such  count  may  be  added 
on  the  trial  as  an  amendment.  M'Adam 
V.  Orr,  4W.  &  S.  (Pa.)  550. 

Sale  and  Refusal  to  Accept. — A  com- 
plaint containing  a  count  for  goods 
sold  and  delivered  cannot  be  amended 
by  adding  a  count  for  the  price  of 
stock  bargained  and  sold  and  which 
the  defendant  refused  to  accept.  Mt. 
Washington  Hotel  Co.  v.  Redington, 
55  N.  H.  386. 

Express  and  Implied  Contract. — A  com- 
plaint against  a  physician  for  mal- 
practice, alleging  an  express  con- 
tract, may  be  amended  by  alleging 
breach  of  an  implied  contract.  Kuhn 
V.  Brownfield,  34  W.  Va.  252.  See  also 
Gray  v.  Bass,  42  Ga.  270;  Smith  v. 
Lippincott,  49  Barb.  (N.  Y.)  398. 

Debt  and  Assumpsit. — A  count  in  debt 
may  be  substituted  for  a  count  in  as- 
sumpsit upon  the  same  transactions. 
Garlock  v.  Bellinger,  2  How.  Pr.  (N. 
Y.)43. 

Insimul  Computasset. — Where  plain- 
tiff declared  on  a  note  and  for  money 
expended  on  an  insimul  computasset 
and  for  work  and  labor  and  materials, 
he  was  allowed  to  amend  by  claiming 
to  recover  on  a  duebill  and  a  book 
account.  Fairchild  v.  Dennison,  4 
Watts  (Pa.)  258. 

Note  and  Judgment. — In  a  suit  upon  a 
note  the  plaintiff  may  amend  by  set- 
ting forth  the  note  and  a  judgment  ob- 
tained on  it  in  another  state,  Thomp- 
son V.  Minford,  11  How.  Pr.  (N.  Y. 
Supreme  Ct.)  273;  or  in  the  same  state, 
Teberg  v.  Swenson,  32  Kan.  224. 

In  McDermid  v.  Tinkham,  53  Vt. 
615,  it  was  held  that  debt  on  judgment 
could  not  be  amended  into  debt  on  a 
promissory  note.  And  to  the  same 
effect  see  Latine  v.  Clements,  3  Ga. 
426;  Anderson  v.  Mayers,  50  Cal.  525. 
But  in  Goodrich  v.  Bodurtha,  6  Gray 
(Mass.)  323,  such  an  amendment  was 
allowed  where  the  judgment  had  been 
reversed. 

McVicker  v.  Beedy,  31  Me.  314,  an 
action  on  a  foreign  judgment  is  not 
distinguishable  for  principle. 

In  Downer  v.  Shaw,  23  N.  H.  125, 
debt  on  a  foreign  judgment,  an 
amendment  was  allowed  counting  on  a 
note  upon  which  the  judgment  was 
rendered. 

Notes  and  Consideration  Therefor. — An 
action  for  money  had  and  received 
may  be   amended   by  declaring  on   a 


566 


I 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


to  introduce  a  cause  of  action  upon  which  the  plaintiff  could  not 
recover  without  the  amendment.*  And  where  an  amendment  is 
offered  at  a  seasonable  time  the  liberal  policy  of  the  courts  will 
warrant  a  presumption  in  favor  of  its  propriety.* 

d.  What  Amendments  are  Not  Allowed — (i)  Changing 
Contract  to  Tort,  and  Vice  Versa. — It  was  a  general  rule  of  the 
common  law  that  counts  ex  contractu  and  counts  ex  delicto  could 
not  be  joined.'  And  it  is  still  held  even  in  some  of  the  Code 
states  that  an  attempt  to  change  the  nature  of  the  action  from 
one  in  tort  to  one  in  contract,"*  or  vice  versa,'^  is  properly  not  an 


promissory  note  given  therefor. 
Brackett  v.  Crooks,  24  N.  H.  173. 

Under  like  circumstances  an  action 
on  a  note  may  be  converted  into  an 
action  for  goods  sold  and  delivered. 
Burnham  v.  Spooner,  10  N.  H.  165. 
But  see  Lansford  v.  Scott,  51  Ala. 
557.  And  compare  Mahan  v.  Smither- 
man,  71  Ala.  563. 

In  Sibley  v.  Young,  26  S.  Car.  415, 
which  was  an  action  on  promissory 
notes  due,  plaintiff  was  allowed  to 
amend  by  setting  up  the  original  in- 
debtedness. So  in  Stephens  z/.  Thomp- 
son, 28  Vt.  77.  See  also  Pierce  v. 
Wood,  23  N.  H.  519. 

A  suit  against  a  partnership  upon  a 
note  executed  by  one  member  without 
authority  may  be  amended  by  filing  a 
count  for  the  original  claim.  Perrin 
V.  Keene,  19  Me.  355. 

Where  a  note  is  not  considered  as 
payment,  it  is  not  a  new  cause  to  add 
a  count  on  a  note  in  a  suit  on  an  ac- 
count. Vancleef  v.  Therasson,  3 
Pick.  (Mass.)  12;  Stephens  v.  Thomp- 
son, 28  Vt.  77. 

Adding  Other  Common  Counts. — Counts 
for  work  and  labor  cannot  be  added  to 
counts  for  goods  sold  and  delivered. 
Dewey  v.  Nicholas,  44  Vt.  24. 

1.  Trescott  v.  Baker,  29  Vt.  459; 
Boyd  V.  Bartlett,  36  Vt.  9;  Kansas 
Pac.  R.  Co.  V.  Salmon,  14  Kan.  512; 
McConnell  v.  Leighton,  74  Me.  415. 

The  court  may  allow  an  amendment 
to  a  declaration  which  does  not  change 
the  cause  of  action,  even  though  the 
action  could  not  have  been  sustai..ed 
on  the  original  declaration.  Skinner 
V.  Grant,  12  Vt.  456. 

2.  Waterman  v.  Hall,  17  Vt.  128; 
Campbell  v.  Campbell,  23  Abb.  N.  Cas. 
(N.  Y.)  187. 

3.  I  Chitty  PI.  223;  Wilson  v.  Stew- 
art, 69  Ala.  302;  Lumpkin  v.  Collier, 
69  Mo.  170. 

4.  Givens  v,  Wheeler,  6  Colo.   149; 


Kewaunee  County  v.  Decker,  34  Wis. 
378;  Brayton  v.  Jones,  5  Wis.  117, 
Appendix  627;  HoUehan  v.  Roughan, 

62  Wis.  64;  Wilson  v.  Stewart,  69  Ala. 
302;  Hackett  v.  California  Bank,  57 
Cal.  335;  Cox  V.  Richmond,  etc.,  R. 
Co.,  87  Ga.  109;  People  v.  Wayne  Cir- 
cuit Judge,  13  Mich.  206;  Wood  v. 
Foster,  3  La.  338;  Minor  v.  Wood- 
bridge,  2  Root  (Conn.)  274;  Foster  v. 
Penry,  76  N.  Car.  131  {quare).  Contra, 
Culp  V.  Steere,  47  Kan.  746. 

In  New  York  such  an  amendment 
cannot  be  made  on  the  trial.  Neu- 
decker  v.  Kohlberg,  81  N.  Y.  296; 
Walter  v.  Bennett,  16  N.  Y.  251;  An- 
drews V.  Bond,  16  Barb.  (N.  Y.)  633; 
Storrs  V.  Flint,  46  N.  Y.  Super.  Ct.  498; 
Baldwin  v.  Rood,  15  Civ.  Pro.  Rep. 
(N.  Y.  Supreme  Ct.)  56;  Mea  v.  Pierce, 

63  Hun  (N.  Y.)  400,  18  N.  Y.  Supp. 
293;  Whitcomb  v.  Hungerford,  42 
Barb.  (N.  Y.)  177;  Ransom  v.  Wet- 
more,  39  Barb.  (N.  Y.)  104.  See  Chap- 
man V.  Webb,  6  How.  Pr.  (N.  Y.  C. 
PI.)  390. 

But  it  has  been  allowed  before  triaL 
Hopf  V.  U.  S.  Baking  Co.  (Super.  Ct.), 
21  N.  Y.  Supp.  589. 

6.    Kewaunee    County    v.     Decker, 

34  Wis.  378:  Mitchell  v.  Georgia  R. 
Co.,  68  Ga.  644;  Carpenter  v.  Gookin, 
2  Vt.  495;  American  Salt  Co.  v.  Hei- 
denheimer,  80  Tex.  344;  Lumpkin  v. 
Collier,  69  Mo.  170.  Compare  Lee  v. 
Lee,  21  Mo.  531;  Beard  v.  Yates,  2 
Hun  (N.  Y.)  466;  McNair  v.  Compton, 

35  Pa.  St.  23. 

In  RobTtson  v.  Springfield,  etc.,  R. 
Co.,  21  Mo.  App.  633,  it  was  held  that 
such  an  amendment  was  permissible 
before  trial  if  it  related  to  the  same 
transaction  or  tort. 

One  who  sues  in  contract  for  the 
proceeds  of  his  property  may  amend 
so  as  to  charge  conversion  if  he  were 
ignorant  of  the  facts  which  rendered 
the  sale  a  conversion  when  he  brought 


567 


Of  Pleadings,  etc.,  at 


AMENDMENTS.   Common  Law,  under  Codes,  etc. 


amendment,  but  a  substitution  of  a  cause  of  action  difTerent  in 
nature  and  substance  from  that  originally  stated.  But  redundant 
or  irrelevant  allegations  in  tort  may  be  struck  out  of  a  complaint 
based  on  contract  without  changing  the  cause  of  action.* 

(2)  Changing  Legal  to  Equitable  Action,  and  Vice  Versa. — In 
some  of  the  states  where  law  and  equity  are  administered  by  the 
same  court,  an  action  at  law  cannot  be  changed  by  amendment 
into  a  suit  in  chancery,  or  a  bill  in  chancery  into  a  declaration  or 
complaint  at  law  ;*  while  in  others  the  distinction  between  forms 


the  suit.     Smith  v.  Savin,   114  N.  Y. 

315. 

In  Massachusetts  a  count  in  tort  may 
be  amended  by  adding  a  count  in  con- 
tract with  an  averment  that  both  are 
for  the  same  cause  of  action.  Cun- 
ningham V.  Hall,  7  Gray  (Mass.)  559. 

1.  Field  V.  Morse,  8  How.  Pr.(N.  Y. 
Supreme  Ct.)  47;  Veeder  v.  Cooley. 
2  Hun  (N.  Y.)  74;  Hitchcock  v.  Baere, 
17  Hun  (N.  Y.)  604;  Bosworth  v.  Hig- 
gins  (Supreme  Ct.),  26  N.  Y.  St.  Rep. 
474,  7  N.  Y.  Supp.  210;  Lobtiell  v. 
Baker,  3  Met.  (Mass.)  469;  Lane  v. 
Cameron,  38  Wis.  603;  Pierce  v.  Cary, 
37  Wis.  232. 

And  where  the  original  declaration 
was  in  assumpsit,  superfluous  allega- 
tions of  fraud  in  an  amendment  other- 
wise proper  were  held  not  to  render  it 
abjectionable.  Cavene  v.  McMichael, 
8  S.  &  R.  (Pa.)  441.  Substantially  the 
same  point  was  decided  in  Bogle  v. 
Gordon,  39  Kan.  31,  and  Link  v.  Jar- 
vis  (Cal.,  1S93),  33  Pac.  Rep.  206.  See 
also  McAffee  v.  Mulkey,  40  Ga.  115. 

Negligence  as  a  Breach  of  Contract. — 
In  an  action  against  a  common  car- 
rier for  breach  of  its  undertaking  to 
carry  safely  and  deliver  goods,  an 
amendment  charging  that  the  goods 
were  destroyed  in  its  warehouse 
through  its  negligence  was  held  not 
to  change  the  action  from  one  ex  con- 
tractu to  one  ex  delicto.  St.  Louis,  etc., 
R.  Co.  V.  Dodd  (Ark.,  1894),  27  S.  W. 
Rep.  227. 

2.  Lullman  v.  Barrett,  18  111.  App. 
573;  Petipain  v.  Frey,  15  La.  195. 

New  York. — Although  the  Code  per- 
mits the  joinder  of  legal  and  equita- 
ble causes  of  action,  all  the  facts  must 
be  alleged  which  would  entitle  the 
plaintiff  to  relief  of  either  kind  had 
he  sought  it  in  separate  actions;  and  a 
complaint  framed  solely  for  equitable 
relief  cannot  be  changed  into  one  for 
legal  relief, — an  action  for  equitable 
relief  cannot  be  changed  into  an  ac- 


tion of  ejectment.  Bockes  v.  Lan- 
sing, 74  N.  Y.  437,  aff'g  13  Hun  (N. 
Y.),  38.  See  also  Sleeman  v.  Hotch- 
kiss  (Supreme  Ct.),  36  N.  Y.  St.  Rep. 
540;  Bush  V.  Tilley,  49  Barb.  (N.  Y.) 
599.  Compare  Zimmerman  v.  Dieker- 
hoff  (Supreme  Ct.),  14  N.  Y.  St.  Rep. 
595- 

An  amendment  changing  a  suit  in 
equity  to  an  action  at  law  cannot  be 
allowed  in  order  to  conform  the  plead- 
ings to  the  proof.  Halsey  v.  Trades- 
men's Nat.  Bank,  56  N.  Y.  Super. 
Ct.  7. 

Nor  can  an  action  at  law  be  changed 
into  one  for  equitable  relief  by  an 
amendment  of  course,  Gray  v.  Brown, 
15  How.  Pr.  (N.  Y.  Supreme  Ct.)  555; 
nor  by  amendment  on  the  trial  before 
a  referee,  Zoller  v.  Kellogg,  66  Hun  (N. 
Y.)  194,  21  N.  Y.  Supp.  226.  Compare 
Beck  V.  Allison,  56  N.  Y.  366;  Nichols 
V.  Scranton  Steel  Co.,  137  N.  Y.  471. 

Wisconsin. — In  Lawe  v.  Hyde,  39 
Wis.  345,  it  was  held  that  a  suit  in 
equity  may  be  changed  into  an  action 
at  law  by  consent;  but  whether  it 
could  be  done  under  other  circum- 
stances was  not  decided.  See  Tan- 
guay  V.  Felthousen,  45  Wis.  30. 

An  action  to  enforce  a  lien  for  tolls 
on  logs  is  considered  as  an  action  at 
law  on  a  contract,  and  may  be  amended 
so  as  to  demand  a  money  judgment. 
Tewksbury  v.  Bronson,  48  Wis.  581. 

Carmichael  v.  Argard,  52  Wis.  607; 
Kavanagh  v.  O'Neill,  53  Wis.  loi; 
Brothers  v.  Williams,  65  Wis.  401; 
Fischer  v.  Laack,  76  Wis.  313,  and 
Stevens  v.  Brooks,  23  Wis.  196,  de- 
cided that  an  action  at  law  could 
not  be  amended  into  a  suit  in  equity. 
See  Lackner  v.  Turnbull,  7  Wis.  105. 

In  Johnson  v.  Filkington,  39  Wis.  62, 
an  action  to  enforce  a  mechanic's  lien, 
it  was  held  proper  to  deny  leave  to 
plaintiff  to  amend  by  claiming  dam- 
ages for  defendant's  refusal  to  permit 
him  to  perform  the  contract. 


568 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


of  actions  is  so  far  disregarded  as  to  permit  such  amendments 
if  the  identity  of  the  subject-matter  of  the  controversy  remains 
the  same.* 

(3)  Changing  Common-law  Action  to  Statutory,  and  Vice  Versa. 
— Common-law  habihties  and  statutory  remedies  for  the  same 
wrong  are  generally  deemed  separate  and  distinct  grounds  of  ac- 
tion, not  to  be  substituted  one  for  the  other  by  amendment.* 


Georgia. — A  complaint  upon  a  note, 
in  the  statutory  form,  cannot  be 
amended  by  adding  a  count  setting  up 
that  plaintiff  held  title  to  certain 
property  as  security  for  the  payment 
•of  the  debt  sued  on,  and  therefore 
praying  that  such  property  might  be 
sold,  and  the  note  paid  out  of  the  pro- 
ceeds. Long  V.  Bullard,  59  Ga.  355. 
See  Tate  v.  Goff,  89  Ga.  184. 

Ohio. — An  amendment  to  an  answer 
demanding  damages  so  as  to  demand 
judgment  for  specific  performance 
will  not  be  granted  as  a  matter  of 
course.  Evens  v.  Hall,  i  Handy 
(Ohio)  434. 

1.  Newrqan  v.  Covenant  Mut.  Ins. 
Assoc,  76  Iowa  56;  Emmet  County  v. 
Griffin,  73  Iowa  163;  Barnes  v. 
Heckla  F.  Ins.  Co.,  75  Iowa  11  ; 
Holmes  v.  Campbell,  12  Minn.  221; 
Cook  V.  Chicago,  etc.,  R.  Co.,  75  Iowa 
169;  Weaver  v.  Kintzley,  58  Iowa  191. 

In  Mississippi  a  proceeding  to  en- 
force a  mechanic's  lien  may  be 
amended  by  cortverting  it  into  as- 
sumpsit for  the  price  of  the  work  done 
and  materials  furnished.  Duff  v. 
Snider,  54  Miss.  245;  Prairie  Lodge  v. 
Smith,  58  Miss.  301. 

Nebraska. — In  Homan  v.  Hellman, 
35  Neb.  414,  a  suit  to  remove  a  cloud 
on  title  was  converted  into  an  action 
of  ejectment. 

North  Carolina. — In  Robinson  v.  Will- 
oughby,  68  N.  Car.  84,  the  plaintiff 
was  allowed  to  change  his  action  for 
the  recovery  of  land  under  a  deed 
into  one  for  foreclosure  upon  a  new 
trial  after  the  appellate  court  had  ad- 
judged the  deed  to  be  a  mortgage. 

In  McNair  v.  Buncombe  County, 
93  N.  Car.  364,  it  was  held  that  a 
suit  for  an  injunction  could  not  be 
changed  into  one  for  a  mandamus. 

California.  —  Where  a  complaint 
praying  for  legal  relief  states  a  cause 
of  action  entitling  the  plaintiff  to 
equitable  relief,  the  court  may  on  the 
trial  permit  the  prayer  to  be  amended 
so  as  to  ask  for  the  proper  equitable 
lelief.     Walsh  v.  McKeen,  75  Cal.  519. 


Under  similar  circumstances,  an  ac- 
tion to  enforce  a  mechanic's  lien  was 
converted  into  an  action  on  the  an- 
swer. Castagnino  v.  Balletta,  82  Cal. 
250. 

Texas. — In  Nye  v.  Gribble,  70  Tex. 
458,  an  action  of  trespass  to  try 
title,  the  defendant  answered  that 
a  certain  deed  under  which  the  plain- 
tiff claimed  was  in  fact  a  mortgage, 
and  the  plaintiff  was  allowed  to 
amend  his  petition  so  as  to  demand 
foreclosure  in  case  the  deed  should  be 
declared  a  mortgage. 

Massachusetts. — In  Massachusetts  the 
statute  allows  an  action  at  law  to  be 
converted  into  a  suit  in  equity  and  vice 
versa.  See  George  v.  Reed,  loi  Mass. 
378.  Hayward  v.  Hapgood,  4  Gray 
(Mass.)  437,  and  McRae  v.  Locke,  114 
Mass.  96,  were  decided  prior  to  the 
enactment  of  the  statute. 

2.  A  common-law  action  cannot  be 
changed  by  amendment  into  an  action 
for  treble  damages  under  a  statute. 
Fairchild  v.  Dunbar  Furnace  Co.  (Pa., 
1889),  18  Atl.  Rep.  443;  Gregory  v. 
Wabash,  etc.,  R.  Co.,  20  Mo.  App. 
448;  Missiouri  Lumber,  etc.,  Co.  v. 
Zeitinger,  45  Mo.  App.  114. 

Nor  can  the  statutory  action  be 
changed  to  the  common-law  action. 
Holliday  v.  Jackson,  21  Mo.  App.  660. 
A  similar  ruling  was  made  in  Melvin 
V.  Smith,  12  N.  H.  462.  Contra, 
Rhemke  v.  Clinton,  2  Utah  230.  And 
see  Smith  v.  Chicago,  etc.,  R.  Co.,  49 
Wis.  443. 

In  Parmelee  v.  Savannah,  etc.,  R. 
Co.,  78  Ga.  239,  a  suit  against  a  com- 
mon carrier  for  excessive  charges  in 
violation  of  a  statute,  the  plaintiff  was 
not  allowed  to  amend  by  declaring  on 
a  common-law  liability  so  as  to  save 
his  claim  from  a  special  statute  of 
limitations. 

In  Exposition  Cotton  Mills  v.  West- 
ern, etc.,  R.  Co.,  83  Ga.  441,  an  action 
against  a  carrier  on  a  common-law 
liability,  an  amendment  claiming  to 
recover  on  a  statutory  liability  was 
not  allowed. 


569 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Nor  can  one  statutory  remedy  be  converted  into  another.* 

(4)  Libel,  Slander,  Malicious  Prosecution,  False  Imprisonment^ 
etc. — An  action  for  libel*  or  slander^  cannot  be  changed  into  an 
action  for  malicious  prosecution  or  vice  versa;"^  nor  can  an  action 
for  malicious  prosecution  be  converted  into  one  for  false  imprison- 
ment* or  vice  versa ;^  nor  an  action  for  libel  into  an  action  for 
trespass  to  the  person  i'  nor  a  civil  action  for  seduction  into  a 
civil  action  for  rape.® 

Other  instances  where  the  allowance  of  an  amendment,  under 
the  particular  circumstances  of  each  case,  was  held  to  transcend 
the  power  of  the  court  are  cited  in  the  note.® 


A  complaint  for  damages  for  the 
wrongful  erection  of  a  milldam,  and 
for  an  injunction,  cannot  be  amended 
so  as  to  claim  compensation  under  the 
provisions  of  a  milldam  law.  New- 
ton V.  Allis,  12  Wis.  378. 

An  action  at  common  law  for  negli- 
gence in  killing  stock  cannot  be 
amended  into  an  action  on  a  statute 
which  makes  the  negligence  a  pre- 
sumption of  law.  Hausberger  v. 
Pacific  R.  Co.,  43  Mo.  196. 

A  plaintiff  suing  for  actual  damages 
may  amend  by  setting  up  wilful  negli- 
gence so  as  to  avail  himself  of  a 
statute  giving  punitive-  damages. 
Louisville,  etc.,  R.  Co.  v.  Case,  9 
Bush  (Ky.)  728. 

1.  Personal  Liability  of  Stockholder. — 
Where  a  complaint  sought  to  charge 
defendant  as  a  stockholder  in  a  manu- 
facturing corporation  because  of  a 
failure  to  file  a  certificate  that  the 
whole  of  the  stock  was  paid  in  as  re- 
quired \)y  New  York  Laws,  1848,  c.  40, 
§§  10,  II,  it  was  held  to  be  error  to  per- 
mit an  amendment  seeking  to  enforce 
defendant's  liability  under  §  14  of  the 
same  act  referring  to  the  purchase  of 
property  and  the  issue  of  stock  there- 
for. Rowell  V.  Janvrin,  69  Hun  (N. 
Y.)  305,  23  N.  Y.  Supp.  481.  See  also 
Milliken  v.  Whitehouse,  49  Me.  527. 

For  Supplies  to  Pauper. — For  a  proper 
amendment  in  a  statutory  action  for 
supplies  furnished  to  a  pauper  by 
counting  on  liability  under  another 
statute,  see  Brewer  v.  East  Machias, 
27  Me.  489. 

Death  by  Wrongful  Act. — The  statu- 
tory action  given  to  personal  rep- 
resentatives for  the  death  of  the 
decedent  is  separate  and  distinct 
from  that  for  personal  injuries  which 
survives  by  statute,  and  the  former 
cannot  be  amended  into  the  latter. 
Hurst  V.  Detroit  City  R.  Co.,  84  Mich. 


539,  where  the  reasoning  of  the  court 
is  conclusive. 

An  action  for  the  benefit  of  the 
widow  and  children  of  a  person  killed 
by  wrongful  act  cannot  be  amended 
by  changing  it  into  an  action  to  re- 
cover damages  for  the  benefit  of  the 
general  administration.  All  v.  Barn- 
well County,  29  S.  Car.  161. 

2.   Larkin  v.  Noonan,  19  W^is.  82. 

8.  Shock  V.  M'Chesney,  4  Yeates 
(Pa.)  507. 

4.  EbersoU  v.  Krug,  5  Binn.  (Pa.) 
51- 

5.  Cumber  v.  Schoenfeld,  16  Daly 
(N.  Y.)  454,  34  N.  Y.  St.  Rep.  770. 

An  action  on  the  case  for  malicious 
prosecution  cannot  be  changed  to  an 
action  of  conspiracy,  at  least  not  un- 
less it  be  for  some  sufficient  reason. 
Ross  V.  Bates,  2  Root  (Conn.)  198. 

Contra. — It  was  held  in  Spice  v. 
Steinruck,  14  Ohio  St.  213,  that  the 
clause  in  the  Code  providing  that 
amendments  "  must  not  change  sub- 
stantially the  claim  or  defense"  does 
not  refer  to  the  form  of  the  remedy, 
but  to  the  general  identity  of  the 
transaction  constituting  the  cause  of 
complaint,  and  that  a  petition  de- 
manding damages  for  an  unlawful  ar- 
rest and  containing  averments  making 
a  case  for  malicious  prosecution  was 
amendable  by  striking  out  the  aver- 
ments of  "want  of  probable  cause" 
and  alleging  that  the  same  arrest  was 
made  "illegally  and  with  force." 
The  same  conclusion  was  reached  in 
People  V.  Wayne  Circuit  Judge,  27 
Mich.  164. 

6.  Waldheim  v.  Sichel,  i  Hilt.  (N. 
Y.)  45.  See  also  McConnell  v.  Ken- 
nedy, 29  S.  Car.  180. 

7.  Ransone  v.  Christian,  56  Ga.  351. 

8.  Van  de  Harr  v.  Van  Domse.er, 
56  Iowa  671. 

9.  Charging  Common  Carrier  as  Ware- 

7^ 


Of  Pleadings,  etc.,  at 


AMENDMENTS.   Common  Law,  under  Codes,  etc. 


e.  Objection,  How  Taken. — An  amendment  introducing  a  new- 
cause  of  action  cannot  be  objected  to  by  way  of  answer  setting^ 

houseman. — Where  a  complaint  charges         Conversion    of    Different    Goods.  —  In 

a  railroad  company  with  loss  of  goods 

as  a  common  carrier,  an  amendment 

charging  it  also  as  a  warehouseman 

sets  up  a  new  matter  or  claim,  and  the 

statute  of  limitations  may  be  pleaded 

as    of    the    time    of    the    amendment. 

Anniston,    etc.,    R.  Co.   v.  Ledbetter, 

92  Ala.  326.     See  also  People  v.  Judge, 

35  Mich.  227.      Compare  Si.  Louis,  etc., 

R.  Co.  V.  Dodd  (Ark.,  1894),  27  S.  W. 

Rep.  227. 

Multifariousness.  —  An  amendment 
will  not  be  allowed,  the  effect  of  which 
is  to  unite  a  joint  demand  against  both 
of  the  defendants  with  a  demand 
against  one  of  them.  Miller  v. 
Northern  Bank,  34  Miss.  412.  See 
also  Postmaster  General  v.  Ridgway, 
Gilp.  (U.  S.)  135- 

Changing  Common  Counts.  —  Where 
original  counts  are  for  money  paid  and 
money  had  and  received,  a  new  count 
for  work  and  labor,  as  the  defendant's 
factor  and  agent,  will  not  be  received 
without  defendant's  consent.  State  v. 
Otis,  42  N.  H.  71. 

Different  Common  Counts. — A  declara- 
tion containing  a  single  count  for 
work  and  labor  cannot  be  amended  by 
inserting  counts  for  use  and  occupa- 
tion and  for  goods  sold  and  delivered. 
Thompson  v.  Phelan,  22  N.  H.  339. 

Changing  Trover  to  Negligence.  — 
Where  the  original  declaration  was 
trover  for  certain  goods,  the  plaintiff 
cannot  amend  by  introducing  a  new 
count  charging  that  the  defendant  at- 
tached the  same  goods  on  a  writ  in 
favor  of  the  plaintiff  and  by  his  negli- 
gence lost  them.  Goddard  v.  Perkins, 
9  N.  H.  488. 

Different  Interest  under  Different  Title. 
— Where  the  cause  of  action  set  out  in 
the  complaint  was  to  recover  land 
descended  to  the  plaintiff  from  her 
father,  the  court  has  no  power  to  al- 
low an  amendment  at  the  trial  so  as 
to  allow  the  plaintiff  to  claim  a  differ- 
ent interest  as  heir  of  her  sister,  as 
this  would  be  substantially  bringing  a 
new  suit.  Robbins  v.  Harris,  96  N. 
Car.  557- 

Changing  Corporate  Liability.  —  The 
liability  of  officers  of  a  pretended 
corporation  on  bills  and  notes  is- 
sued by  it  is  different  from  their 
liability  for  illegal  acts  as  officers  of  a 
chartered  corporation.  Gardner  v. 
Post,  43  Pa.  St.  19. 


Conversion 

trover  for  converting  bonds,  an 
amendment  alleging  conversion  of  in- 
struments not  under  seal  makes  a  new 
cause  of  action.  Tryon  v.  Miller,  i 
Whart.  (Pa.)  11. 

Changing  Money  Paid  to  Liability  In- 
curred.— In  an  action  to  recover  sums 
paid  by  reason  of  the  defendant's  acts, 
an  amendment  showing  that  a  portion 
of  the  amount  alleged  to  have  been 
paid  was  only  a  liability  incurred  to 
pay  makes  a  new  cause  of  action. 
Meeks  v.  Southern  Pac.  R.  Co.,  61 
Cal.  149. 

Insurance  and  Contract  to  Insure. — 
A  declaration  in  the  usual  form 
upon  an  insurance  policy  can«ot  be 
amended  so  as  to  claim  damages  for 
the  failure  of  the  defendant  to  deliver 
a  policy  of  insurance  in  conformity  to 
an  alleged  verbal  agreement.  Con- 
necticut F.  Ins.  Co.  V.  Kinne,  77  Mich. 
231.  See  also  Hill  v.  London  Assur. 
Corp.  (City  Ct.),  12  N.  Y.  Supp.  86. 
Compare  Loring  v.  Proctor,  26  Me.  18. 

Note  and  Common  Counts. — A  count 
upon  a  note  for  specified  articles 
cannot  be  admitted  as  an  amend- 
ment of  a  declaration  for  money 
had  and  received  and  for  the  hire  of 
goods.    French  z'.  Gerrish,  22  N.  H.  97. 

Detinue  and  Trover. — A  distinction 
between  actions  of  detinue  and  trover 
is  carefully  preserved  in  the  Alabama 
Code,  and  an  amendment  of  a  com- 
plaint which  would  convert  the  for- 
mer into  the  latter  cannot  be  allowed. 
Harris  v.  Hillman,  26  Ala.  380. 

Account  and  Breach  of  Warranty. — 
A  bill  for  account  cannot  be  turned 
by  amendment  into  an  action  for 
breach  of  warranty  as  to  the  quality 
of  goods  sold  by  the  defendant  to  the 
plaintiff,  in  an  accounting  which  took 
place.     Ayres  v.  Daly,  56  Ga.  iig. 

Changing  Character  of  Services.  — 
Where  a  person  sues  under  a  con- 
tract for  services  as  manager,  an 
amendment  which  claims  to  recover 
for  services  under  another  contract  in 
a  different  capacity  introduces  a  new 
cause  of  action.  Singer  Mfg.  Co.  v. 
Armstrong.  91  Ga.  745. 

In  Trespass  quare  clausum  for  taking^ 
away  the  annual  profits  of  the  land, 
an  amendment  of  the  declaration  by 
adding  a  count  for  a  usurpation  of 
the  fee  will  not  be  permitted.  Bart- 
lett  V.  Perkins,  13  Me.  87. 


■Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


up  such  change  of  ground  as  a  defense,*  nor  by  general  demurrer,* 
nor  by  objecting  to  evidence  offered  in  support  of  the  amend- 
ment.^  The  question  must  be  raised,  if  opportunity  is  offered,*  by 

Different  Title. — In  a  suit  by  one  heir 
against  others,  asserting  absolute  title 
to  the  whole  of  the  estate,  an  amend- 
ment which  is  in  effect  a  suit  for  the 
partition  of  the  property  as  held  by 
the  plaintiff  in  common  is  a  new 
cause  of  action.  Hopkins  v.  Wright, 
17  Tex.  30. 

Additional  Item.  —  In  Edwards  v. 
Cheraw,  etc.,  R.  Co.,  32  S.  Car.  117,  it 
was  held  that  an  additional  item  could 
not  be  added  to  a  quantity  of  mer- 
chandise sued  for.  See  also  Gulf,  etc., 
R.  Co.  V.  Thompson  (Tex.  App.,  1890), 
16  S.  W.  Rep.  174. 

Salary  to  Unliquidated  Damages. — An 
action  for  salary  cannot  be  amended 
so  as  to  claim  damages  for  breach  of 
a  contract  of  employment.  Dows  v. 
Morrison  (C.  PI.),  20  N.  Y.  Supp.  860; 
Balch  V.  Wurzburner  (C.  PI.),  29  N.  Y. 
Supp.  62.  See  also  Diehl  v.  M'Glue, 
2  Rawle  (Pa.)  337. 

Negligence  to  Abatement  of  Nuisance. 
— An  amendment  changing  a  com- 
plaint for  negligence  into  one  for  the 
correction  of  a  nuisance  changes  the 
ground  of  action.  Fisher  v.  Rankin, 
25  Abb.  N.  Cas.  (N.  Y.  Supreme  Cu), 
191. 

Trover  to  Fraud.  —  An  action  for 
trover  cannot  be  changed  into  an  ac- 
tion for  fraud  and  deceit.  Parker  v. 
Rodes,  79  Mo.  88. 

1.  Wheeler  v.  West,  78  Cal.  95. 

2.  Turner  v.  Roundtree,  30  Ala. 
706.  But  see  Roberts  v.  Germania 
Fire  Ins.  Co..  71  Ga.  478,  Code  of 
Georgia,  §  2794. 

3.  Greenwood  v.  Anderson,  8  Tex. 
225,  a  case,  however,  where  the  objec- 
tion was  based  upon  the  ground  of  re- 
pugnancy between  the  amendment  and 
the  original. 

4.  Where  the  amendment  to  a  dec- 
laration was  filed  in  the  office  of  the 
clerk  in  vacation,  without  notice  to 
the  defendant,  and  no  order  was  taken 
allowing  it,  and  at  the  next  term,  on 
discovering  it,  the  defendant  claimed 
a  surprise  and  obtained  a  continuance, 
and  at  the  same  term  filed  a  motion  to 
strike  the  amendment  from  the  files,  it 
was  held  that  the  motion  was  not  too 
late.  Skidaway  Shell  Road  Co.  v. 
O'Brien,  73  Ga.  655. 


Changing  Ground  of  Liability. — A  dec- 
laration against  a  sheriff  for  acts  of 
his  deputy  cannot  be  amended  by 
adding  the  count  charging  the  sheriff 
for  his  own  acts,  although  both  counts 
relate  to  the  same  loss.  Lambard  v. 
Fowler,  25  Me.  308. 

In  an  action  against  an  officer  for 
not  retaining  property  attached  to  be 
sold  to  satisfy  the  execution,  an 
amendment  introducing  a  count  of  not 
returning  the  execution  embraces  a 
new  cause  of  action.  Annis  v.  Gil- 
more,  47  Me.  152. 

Where  the  defendant  as  postmaster 
was  cnarged  with  unlawfully  neglect- 
ing and  refusing  to  deliver  a  letter,  an 
amendment  charging  the  same  act  to 
have  been  done  by  one  not  duly  sworn, 
whom  he  wrongfully  permitted  to  have 
the  care  of  the  mail  in  his  office,  was 
held  to  introduce  a  new  cause  of  ac- 
tion. Bishop  V.  Williamson,  11  Me. 
495- 

An  Action  for  Waste  cannot  be 
amended  into  an  action  of  tort  in  the 
nature  of  waste.  Sheldon  v.  Smith, 
97  Mass.  36. 

Title  to  Real  Estate. — While  the  orig- 
inal action  presented  an  issue  for  in- 
jury to  the  plaintiff's  cow,  an  amend- 
ment putting  in  issue  the  title  to  real 
€State  is  a  new  cause  of  action.  Kelly 
V.   Taylor,  17  Pick.  (Mass.)  218. 

Different  Contract  by  Different  Agent. 
— A  declaration  upon  a  contract  al- 
leged to  have  been  made  by  a  certain 
agent  of  defendants  on  their  behalf 
cannot  be  amended  by  setting  up  a 
contract  materially  different  and  al- 
leged to  have  been  made  by  another 
as  agent  of  the  defendants  Milburn 
^.  Davis  (Ga.,  1893),  17  S.  E.  Rep.  286. 
Lease  and  Contract  to  Lease. — An 
amendment  claiming  damages  for 
breach  of  a  contract  to  take  a  lease  is 
entirely  foreign  to  a  complaint  to  re- 
cover for  rent  alleged  to  be  due  under 
the  lease.  Law  v.  Pemberton  (City 
Ct.),  29  N.  Y.  Supp.  605. 

Open  to  Settled  Account. — It  seems 
that  in  an  action  upon  an  open  account, 
an  amendment  alleging  a  sum  due  on 
a  settlement  by  compromise  states  a 
new  cause  of  action.  Prindle  v.  Aid- 
rich,  13  How.  Pr.  (N.  Y.  Supreme  Ct.) 
466. 

57 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


objection  to  the  filing  of  the  amendment*  and  excepting  to  the 
allowance  thereof,*  or  by  motion  to  strike  the  amended  pleading; 
from  the  files.' 

/.  Waiver  of  Objection. — If  the  defendant  pleads  to  the 
amendment  and  tries  the  case  on  the  issue  thus  joined,  he 
waives  his  right  to  complain  that  a  new  cause  of  action  was 
introduced,"*  even  though  it  be  one  that  arose  after  the  institu- 
tion of  the  suit.'  And  a  party  who  accepts  the  benefit  of  terms 
imposed  upon  his  adversary  as  a  condition  of  amending  is  pre- 
cluded from  making  an  objection.® 

separately  to  the  amendment,  not  in- 
cluding the  original.  Pennsylvania 
Co.  V.  Sloan,  125  111.  72. 

Verdict  against  Evidence. — An  amend- 
ment having  been  improperly  allowed 
and  the  evidence  not  supporting  the 
original  declaration,  a  verdict  for 
plaintiff  was  held  contrary  to  the  law 
and  evidence,  and  the  refusal  of  a  new 
trial  was  held  to  be  erroneous.  Mil- 
burn  V.  Davis  (Ga.,  1893),  17  S.  E. 
Rep.  286. 

4.  Sauter  v.  Leveridge,  103  Mo.  615,, 
where  a  motion  to  strike  out  was. 
overruled  and  the  defendant  then  an- 
swered to  the  merits;  Scovill  v. 
Glasner,  79  Mo.  449;  Evens  v.  Hall,  i 
Handy  (Ohio)  434;  Glover  v.  Flowers^ 
loi  N.  Car.  134;  Blodget  v.  Skinner, 
15  Vt.  716;  Bachop  V.  Hill,  54  Vt.  507; 
Stevens  v.  Hewitt  \obiter\  30  Vt.  263. 
See  also  Snyder  v.  Harper,  24  W.  Va. 
212;  Richards  v.  Smith,  98  N.  Car. 
509. 

Pleading  Without  Knowledge. — Plead- 
ing to  the  declaration  without  knowl- 
edge of  the  amendment  is  not  a  waiver, 
nor  pleading  with  knowledge,  provided 
the  case  did  not  go  to  trial.  Church 
V.  Syracuse  Coal,  etc.,  Co.  \pbiter\,  32 
Conn.  375. 

Extent  of  Waiver. — After  a  defendant 
has  pleaded  the  general  issue  and 
submitted  to  a  trial  of  an  amended 
petition  which  contains  a  different 
ground  of  action  from  the  original,  he 
cannot  object  to  a  subsequent  amended 
petition  containing  matter  similar  to 
the  last.  Spurlock  v.  Missouri  Pac. 
R.  Co.,  104  Slo.  658,  overruling  Fields 
V.  Maloney,  78  Mo.  172. 

6.   Witkowski  v.  Hern,  82  Cal.  604. 

Pleading  the  statute  of  limitations  is 
a  waiver.  Seymour  v.  Brainerd  (Vt., 
1894),  29  Atl.  Rep.  462.  But  that  plea 
would  be  effectual  if  the  bar  of  the 
statute  had  actually  attached.  See 
infra.  III,  15,  a,  (2). 

6.   Woodward  v.  Williamson,  39  S. 


1.  Hancock  v.  Johnson,  i  Met.  (Ky.) 
242;  Wilson  V.  Jamieson,  7  Pa.  St.  126; 
King  V.  Rea,  13  Colo.  69;  Busch  v. 
Hagenrick,  10  Neb.  415  ;  Wade  v. 
Clark,  52  ^.wa  158. 

Form  01  Objection.  —  The  objection 
must  be  specific;  if  it  be  based  upon 
other  grounds,  the  allowance  of  the 
amendment  cannot  be  assigned  as 
error  on  the  ground  that  it  sets  up  a 
new  cause  of  action.  Parsons  Water 
Co.  V.  Hill,  46  Kan.  145;  Benton  v. 
Beattie,  63  Vt.  186. 

When  Too  Late. — The  objection  must 
be  made  at  the  time  when  the  amend- 
ment is  allowed.  It  cannot  avail  when 
urged  for  the  first  time  in  the  appel- 
late court,  nor  even  at  the  trial.  Spur- 
lock V.  Missouri  Pac.  R.  Co.,  93  Mo. 
530 ;  Ansonia  India  Rubber  Co.  v. 
Wolf,  I  Handy  (Ohio)  236. 

2.  Bachop  V.  Hill,  54  Vt.  507;  King 
V.  Rea,  13  Colo.  69. 

3.  Wheeler  v.  West,  78  Cal.  95  ; 
Turner  v.  Roundtree,  30  Ala.  706 ; 
Blodget  V.  Skinner,  15  Vt.  716:  Me- 
grath  V.  Van  Wyck,  2  Sandf.  (N.  Y.) 
651.  Compare  Nevada  County,  etc., 
Canal  Co.  v.  Kidd,  28  Cal.  673. 

Motion  for  New  Trial. — In  Church  v. 
Syracuse  Coal,  etc.,  Co.,  32  Conn.  372, 
it  was  held  that  where  the  motion  to 
strike  from  the  files  is  denied  and  the 
case  goes  to  trial  and  a  verdict  is  ren- 
dered for  the  plaintiff,  a  motion  for  a 
new  trial  is  proper. 

Pleading  to  Substance. — The  defend- 
ant may,  of  course,  controvert  the  jm/"- 
ficiency  of  the  amendment  by  any 
proper  plea.  Van  de  Haar  v.  Domse- 
ler,  56  Iowa  671. 

Statute  of  Limitations. — And  the  ques- 
tion whether  the  new  matter  is  barred 
by  the  statute  of  limitations  should  be 
made  by  pleading  the  statute  and  not 
by  a  motion  to  strike  out.  Jefferson- 
ville,  etc.,  R.  Co.  v.  Hendricks,  41 
Ind.  48. 

But   the   statute   must   be    pleaded 


573 


€f  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


g.  Method  of  Determining  the  Question. — According 
to  the  practice  in  some  jurisdictions,  the  court,  in  order  to  de- 
termine whether  a  proposed  amendment  introduces  a  new  cause 
of  action,  is  not  confined  to  a  mere  inspection  of  the  pleadings, 
but  may  look  into  the  evidence  in  the  case,*  or  admit  affidavits,* 
or  hear  parol  testimony,^  or  draw  the  conclusion  from  the  open- 
ing statement  of  counsel.* 

//.  Review  of  Decision  of  Trial  Judge. — In  the  absence 
of  statutory  provisions  making  the  decision  of  the  trial  court 
conclusive,*  an  order  allowing  an  amendment  which  introduces 
a  new  cause  of  action,  or  denying  an  amendment  upon  that 
ground,  is  a  proper  subject  for  review  on  appeal  or  error.® 

7.  Changing  the  Form  of  Action. — At  common  law  the  allow- 
ance of  an  amendment  changing  the  form  of  the  action  seems  to 
be  altogether  discretionary,''  provided  it  does  not  change  the  cause 


Car.  333.  In  that  case  the  plaintiff, 
by  accepting  a  sum  of  money  which 
the  defendant  had  been  ordered  to 
pay  as  a  condition  of  amending  his 
answer,  was  held  estopped  to  dispute 
the  validity  of  the  order. 

1.  Hill  V.  Smith,  34  Vt.  535;  Singer 
Mfg.  Co.  V.  Armstrong,  91  Ga.  745; 
Nash  -v.  Adams,  24  Conn.  33. 

2.  Gilman  v.  Gate,  56  N.  H.  167; 
Brackett  v.  Crooks,  24  N.  H.  173; 
Tilton  V.  Parker,  4  N.  H.  142. 

In  Massachusetts  the  statute  [Pub. 
Stat.,  1882,  p. 974, §85]  provides  that  the 
cause  of  action  shall  be  deemed  to  be 
the  same  when  it  is  "made  to  appear 
to  the  court  "  that  it  is  the  cause  of  ac- 
tion relied  on  by  the  plaintiff  when 
the  action  was  commenced.  See 
Daley  v.  Boston,  etc.,  R.Co.,  147  Mass. 

lOI. 

It  was  said  in  Mann  v.  Brewer,  7 
Allen  (Mass.)  202,  that,  prior  to  this 
enactment,  the  court  could  not  go  be- 
yond the  record  to  determine  the  ques- 
tion. See,  on  this  point,  Gregory  v. 
Wabash,  etc.,  R.  Co.,  20  Mo.  App.  448. 

Liberal  Construction. — The  complaint 
must  receive  a  liberal  construction. 
Nevada  County,  etc..  Canal  Co.  v. 
Kidd,  28  Cal.  673. 

Presumption  after  Judgment. — After 
verdict  and  judgment  an  amendment 
will  be  deemed  to  have  been  for  the 
same  cause  ol  action  unless  the  con- 
trary appears  on  the  face  of  the  rec- 
ord. Clark  V.  Lamb,  6  Pick.  (Mass.) 
512. 

3.  Geroux  v.  Graves,  62  Vt.  280; 
Lycoming  F.  Ins.  Co.  v.  Billings,  61 
Vt.  310. 

4.  Hoboben  v.  Gear,  27  N.  J.  L.  265. 


5.  In  Massachusetts  and  Illinois  the 

statutes  make  the  adoption  of  the  trial 
court  allowing  an  amendment  conclu- 
sive evidence  of  the  identity  of  the 
cause  of  action.  Mass.  Pub.  Acts,  c. 
167,  §  85;  Illinois  Practice  Act,  g  23. 
See  Fame  Ins.  Co.  v.  Thomas,  10  111. 
App.  545- 

The  purpose  of  the  enactment  is  "  to 
avoid  the  anomaly  of  allowing  parties 
to  seek  for  a  revision  of  conclusions 
on  matters  of  fact  arising  on  an  inci- 
dental inquiry  not  involving  the  real 
merits  of  the  case."  Mannt/.  Brewer, 
7  Allen  (Mass.)  202. 

6.  See  supra.  III,  4,  a,  (2). 

7.  Bliss  Code  PI.  (3d  ed.)§  429.  See 
also  Chitty  PI.  (i6th  Am.  ed.),  219, 
220;  Chapman  v.  Webb,  6  How.  Pr. 
(N.  Y.  C.  PI.)  390.  See  also  Coggs- 
well  V.  Baldwin,  15  Vt.  404. 

In  Kirwan  v.  Latour,  i  Har.  &  J. 
(Md.)  296,  the  plaintiff'  was  allowed  to 
amend  from  assumpsit  to  trover.  And 
in  Baltimore  F.  Ins.  Co.  v.  McGow- 
an,  16  Md.  47,  from  covenant  to  as- 
sumpsit. 

In  Stebbins  v.  Lancashire  Ins.  Co., 
59  N.  H.  143,  an  amendment  was  al- 
lowed changing  the  form  of  the  action 
from  debt  to  covenant,  overruling  Little 
V.  Morgan,  31  N.  H.  499,  where  the 
court  refused  to  allow  assumpsit  to  be 
converted  into  debt,  and  also  Brown 
V.  Leavitt,  52  N.  H.  619. 

In  Morse  v.  Whitcher,  64  N.  H.  591, 
assumpsit  was  changed  to  case. 

Trover  may  be  changed  to  assump- 
sit.    Peaslee  v.  Dudley,  63  N.  H.  220. 

In  Houghton  v.  Stowell,  28  Me.  215, 
a  change  from  debt  to  case  was  not 
allowed.     See  also  McVicker  v.  Beedv 


574 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes  etc. 


of  action.* 

In  some  of  the  states  amendments  changing  the  form  of  action 
are  expressly  sanctioned  by  statute,*  while  in  others  the  distinc- 
tion between  forms  of  action  is  abolished  and  the  allowance  of 
an  amendment  is  determined  only  by  its  effect  upon  the  original 
cause  of  action.' 


31  Me.  314.  But  trover  may  be 
amended  to  case.  Googins  v.  Gil- 
mor^,  47  Me.  9;  McConnell  v.  Leigh- 
ton,  74  Me.  415. 

In  Wilcox  V.  Sherman,  2  R.  I.  540, 
the  plaintiff  was  not  allowed  to  change 
his  action  of  trover  into  trespass.  Wil- 
cox  V.  Sherman,  2  R.  I.  540. 

In  Boston  India  Rubber  Co.  v.  Hoit, 
14  Vt.  92,  the  court  refused  to  allow 
an  amendment  changing  the  form  of 
action  from  assumpsit  to  debt. 

1.  See  supra.  III,  6,  a. 

2.  Illinois.  —  The  Practice  Act  ex- 
pressly allows  a  change  in  the  form  of 
the  action.  See  Fame  Ins.  Co.  v. 
Thomas,  11  111.  App.  545;  Garrity  v. 
Hamburger  Co.  (111.,  1891).  28  N.  E. 
Rep.  743. 

In  Dart  v.  Horn,  20  111.  2I2,  re- 
plevin was  changed  to  trover. 

In  Chapman  v.  Barney,  129  U.  S. 
677,  it  appears  that  the  federal  Circuit 
Court  sitting  in  Illinois  allowed  an 
amendment  changing  the  action  from 
assumpsit  to  trover,  and  its  power  to 
do  so  was  recognized  by  the  Supreme 
Court. 

Mississippi.  —  The  Code  allows 
amendments  in  the  form  of  action  so 
as  to  bring  the  merits  of  the  case 
fairly  to  trial. 

A  proceeding  to  enforce  a  mechanic's 
lien  may  be  changed  into  assumpsit 
for  the  price  of  the  work  done.  Duff 
v.  Snider,  54  Miss.  245. 

Pennsylvania. — The  Act  of  May  10, 
1871,  permits  the  form  of  action  to  be 
changed  in  certain  cases,  but  not  the 
cause  of  action.  Tyrrill  v.  Lamb,  96 
Pa.  St.  464.  Tatham  v.  Raney,  82  Pa. 
St.  130. 

Formerly  it  seems  that  no  change 
in  the  form  of  action  was  allowed. 
Strock  V.  Little,  33  Pa.  St.  409. 

In  Perdue  v.  Taylor,  146  Pa.  St. 
163,  the  plaintiff  being  in  laches  was 
not  allowed  to  change  his  action  from 
trespass  to  assumpsit. 

Massachusetts. — In  Sewall  v.  Sullivan, 
108  Mass.  355,  scire  /actus  on  a  recog- 
nizance was  amended  into  an  action 
on  contract. 

In   Fay   v.  Taft,    12   Cush.  (Mass.) 

5 


448,   a   real   action   was    changed    to 
ejectment. 

That  the  form  of  action  may  be 
changed,  see  also  Merrill  v.  Bullock, 
105  Mass.  486;  Mann  v.  Brewer, 7  Allen 
(Mass.)  202. 

In  Wiley  v.  Yale,  i  Met.  (Mass.) 
553,  in  view  of  the  laches  of  the  plain- 
tiff and  other  circumstances  the  court 
refused  to  allow  an  amendment  chang- 
ing trespass  on  the  case  to  debt. 

In  New  Jersey  every  error  in  the 
form  of  action  no  matter  how  radical 
may  be  corrected  at  any  stage  of  the 
action  whenever  it  becomes  necessary 
to  enable  the  parties  to  try  the  matter 
in  dispute  which  they  contemplated 
trying,  or  to  sustain  the  decision  re- 
sulting from  such  trial.  Price  v.  New 
Jersey  R.,  etc.,  Co.,  31  N.  J.  L.  234, 
where  trespass  was  changed  to  case; 
as  also  in  Price  v.  New  Jersey  R.,  etc., 
Co.,  32  N.  J.  L.  19. 

In  U.  S.  Watch  Co.  v.  Learned,  36 
N.  J.  L.  429,  covenant  was  changed  to 
assumpsit;  and  in  Hasbrouck  v.  Wink- 
ler, 48  N.  J.  L.  431,  case  was  changed 
to  trespass. 

3.  Alabama. — The  distinction  be- 
tween debt  and  assumpsit  is  abol- 
ished by  the  Code,  and  either  form 
may  be  converted  into  the  other  by 
amendment.  Knapp  v.  Kingsbury, 
51  Ala.  563. 

Missouri. — The  cause  of  action  can- 
not be  changed  from  trover  and  con- 
version to  an  action  for  fraud  and  de- 
ceit.     Parker  v.  Rodes,  79  Mo.  88. 

Nebraska. — So  long  as  the  identity 
of  the  action  is  preserved  the  form  is 
immaterial.  McKeighan  v.  Hopkins, 
19  Neb.  33,  where  an  action  in  eject- 
ment was  changed  to  a  petition  to  re- 
deem. 

New  York. — In  Carries  v.  Dellay,  3 
How.  Pr.  (N.  Y.  Supreme  Ct.)  173,  the 
action  was  changed  from  trespass  to 
trover  after  verdict,  but  upon  terms. 

In  Garlock  v.  Bellinger,  2  How.  Pr. 
(N.  Y.)  43,  debt  was  substituted  for 
assumpsit. 

In  Bigelow  z:  Dunn,  53  Barb.  (N. 
Y.)  570,  an  amendment  was  allowed 
before      trial     changing     an     action 


75 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


8.  Matter  Arising  Pendente  Lite — Amended  and  Supplemental  Com- 
plaint.— Matter  which  arose  prior  to  the  fihng  of  the  original  com- 
plaint must  be  brought  into  the  suit  by  amendment,  but  facts 
which  occurred  pending  the  litigation  should  be  brought  in  by 
supplemental  complaint.* 


based  on  fraudulent  represen- 
tati6ns  to  an  action  for  a  breach 
of  warranty.  And  in  Chapman  v. 
Webb,  6  How.  Pr.  (N.  Y.  C.  PI.)  390. 
an  action  for  goods  sold  was  amended 
so  as  to  aver  that  they  were  obtained 
by  fraudulent  representations.  See 
also  Alston  v.  Mechanics'  Mut.  Ins. 
Co..  I  How.  Pr.  (N.  Y.)82. 

In  Ransom  v.  Wetmore,  39  Barb. 
(N.  Y.)  104,  an  amendment  changing 
the  nature  of  the  action  from  tort  to 
assumpsit  was  denied  after  the  case 
was  finished. 

But  in  New  York  a  new  cause  of 
action  may  be  introduced  by  amend- 
ment before  trial.  See  supra,  HI,  6,  «, 
note.  And  as  to  changing  tort  to  con- 
tract, and  vice  versa,  in  New  York,  see 
supra.  III.  6,  d,  (l). 

Ohio. — Forms  of  action  are  abol- 
ished by  the  Code,  and  the  only  ques- 
tion is  whether  the  amendment  makes 
a  new  cause  of  action.  Spice  v.  Stein- 
ruck,  14  Ohio  St.  213. 

In  Austin  v.  Hayden,  6  Ohio  388, 
case  was  changed  to  trespass. 

Tennessee. — The  form  of  the  action 
may  be  changed  by  amendment,  but 
only  before  trial.  Smith  v.  Large,  I 
Heisk.  (Tenn.)  5. 

Wisconsin. — Actions  ex  contractu  can- 
not be  changed  into  actions  ex  delicto, 
nor  vice  versa.  Hollehan  v.  Roughan, 
62  Wis.  64.  See  Lane  v.  Cameron,  38 
Wis.  603,  and  supra.  III,  6,  d,  (i),  note. 

In  State  v.  Baker,  38  Wis.  71,  a  pro- 
ceeding in  the  nature  of  a  quo  war- 
ranto by  a  private  person  was  amended 
into  an  information  in  the  name  of  the 
attorney-general. 

1.  Musselman  v.  Manly,  42  Ind.  462; 
McCaslan  v.  Latimer,  17  S.  Car.  123; 
Moon  V.  Johnson,  14  S.  Car.  434;  Mul- 
ler  v.  Earle,  37  N.  Y.  Super.  Ct.  388; 
Oelberman  v.  New  York,  etc.,  R.  Co. 
(Supreme  Ct.),  29  N.  Y.  Supp.  864; 
McCullough  V.  Colby,  4  Bosw.  (N.  Y.) 
603;  Berford  v.  New  York  Iron  Mine 
(Super.  Ct.),  8  N.  Y.  Supp.  193;  Bull 
V.  Rothschild  (Supreme  Ct.),  22  N.  Y. 
St.  Rep.  536;  Bynum  v.  Burke  County, 
loi  N.  Car.  412;  Clendenin  v.  Turner, 
96  N.  Car.  416;  State  v.  Goodman,  72 
N.   Car.   508;    Cox   v.  Lacey,   3   Litt. 


(Ky.)  334.  See  Rogers  v.  Hodgson, 
46  Kan.  276;  Smith  v.  Smith,  22  Kan. 
699;  Reyburn  z/.  Mitchell,  106  Mo.  365; 
Ward  V.  Davidson,  89  Mo.  445;  Wheat 
V.  Catterlin,  23  Ind.  85  ;  Jennison  v. 
Governor,  47  Ala.  390.  See  also  Bell 
V.  Williams,  10  La.  514.  Compare  "•^a.r- 
field  V.  Oliver,  23  La.  Ann.  612. 

New  Cause  of  Action. — A  complaint 
cannot  be  amended  by  setting  up  a 
new  and  distinct  cause  of  action  a.c- 
Cining  puis  darrein  continuance.  Shin- 
ners  v.  Brill,  38  Wis.  648. 

Where  pending  a  suit  the  plaintiff 
therein  obtained  a  judgment  against 
the  same  defendant  on  the  same  cause 
of  action  in  another  state,  which 
judgment  the  defendant  pleaded  in 
bar,  it  was  held  that  the  plaintiff  could 
not  amend  by  declaring  on  the  judg- 
ment,since  it  would  be  the  introduction 
of  a  cause  of  action  arising  after  the 
suit  was  brought.  Barnes  v.  Gibbs, 
31  N.  J.  L.  317. 

It  is  at  least  a  proper  exercise  of 
discretion  to  refuse  to  allow  an  amend- 
ment setting  up  a  cause  of  action  ac- 
cruing after  the  commencement  of  the 
suit.  Randall  v.  Christianson,  84  Iowa 
501. 

In  Texas  the  plaintiff  may  amend  by 
joining  new  causes  of  action  arising 
since  the  commencement  of  the  suit. 
Smith  V.  McGaughey,  13  Tex.  464. 

Inchoate  Title  to  Sue. — Under  the 
Minnesota  statute  it  is  necessary  for  a 
foreign  administrator  tofile  in  the  prop- 
er probate  court  a  duly  authenticated 
copy  of  his  foreign  appointment  be- 
fore the  commencement  of  an  action 
as  such  administrator;  and  a  failure  to 
do  so  cannot  be  cured,  if  proper  ob- 
jection be  taken,  by  filing  the  copy 
after  the  commencement  of  the  suit. 
Fogle  V.  Shaeffer,  23  Minn.  304. 

Marriage  Fending  Suit. — Where  a 
feme  sole  marries  after  suit  brought 
against  her,  a  supplemental  and  not 
an  amended  complaint  should  be  filed 
to  make  her  husband  a  codefendant. 
Van  Maren  v.  Johnson,  isCal.  308. 

Amendment  to  Conform  to  Proof. — It  is 
error  to  allow  an  amendment  of  the 
complaint  to  conform  to  the  proof  so 
as  to  give  the  plaintiff  the  benefit  of 


576 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Effect  of  Answering  Amendment. — Filing  an  answer  to  an  amended 
complaint  is  not  a  waiver  of  the  objection  that  it  alleges  a  new 
cause  of  action  which  arose  after  the  institution  of  the  suit.' 

Effect  of  Improper  Amendment. — But  the  pleading  of  matters  by- 
amended  complaint  which  should  be  pleaded  by  supplemental 
complaint  does  not  constitute  sufificient  cause  for  dismissing  the 
action.* 

Amended  and  Supplemental  Answer. — If  the  defendant  would  avail  him- 
self of  matter  arising  since  the  action  was  commenced,  he  should 
do  so  by  supplemental  answer  and  not  by  amendment.* 

9,  To  Obviate  a  Variance  or  Conform  to  Proof  —  a.  To  Obviate 
A  Variance. — Where  evidence  is  offered  and  objected  to  on  the 
ground  of  a  variance,  and  the  variance  is  immaterial,  it  is  the 
common  course  of  the  court  to  allow  an  amendment  ;"*  and,  under 
the  Code,  the  materiality  of   variances  is  not  to  be  determined 


facts  occurring  after  this  action  was 
commenced.  Fickett  v.  Cohn  (C.  PI.), 
i6  N.  Y.  St.  Rep.  709.  But  the  error 
will  be  disregarded  unless  the  point 
is  saved  by  a  bill  of  exceptions. 
Lo\/rey  v.  Reef,  i  Ind.  App.  244. 

Facts  Fortifying  Plaintiff's  Eight. — A 
plaintiff  may  set  up  new  grounds  of 
recovery  which  have  occurred  since 
the  commencement  of  the  suit  which 
serve  only  to  strengthen  his  original 
claim.  Sinsheimer  v.  Kahn  (Tex.  Civ. 
App.,  1893),  24  S.  W.  Rep.  533;  Silber- 
berg  V.  Trilling,  82  Tex.  523;  Smith  v. 
McGaughey,  13  Tex.  414,  holding 
that  if  the  plaintiff  has  a  cause  of  ac- 
tion at  the  commencement  of  the  suit 
he  may  join  new  causes  of  action  for 
the  purpose  of  avoiding  a  multiplicity 
of  suits;  which  point  is  also  supported 
by  Galveston,  etc.,  R.  Co.  v.  Borsky, 
2  Tex.  Civ.  App.  545. 

1.  Witkowski  v.  Hern,  82  Cal.  604. 
See,  however,  Farrington  v.  Hawkins, 
24  Ind.  253,  where  it  was  held  that  if 
a  defendant  demurs  he  waives  the  ob- 
jection. 

2.  Seevers  v.  Hamilton,  11  Iowa 
66. 

8.  McMinn  v.  O'Connor,  27  Cal.  238; 
Sylvester  v.  Jerome  (Colo.,  1893),  34 
Pac.  Rep.  760.  Compare  State  v. 
Moses,  20  S.  Car.  465. 

In  New  York  City  District  Courts. — A 
supplemental  pleading  cannot  be  filed 
in  a  district  court  of  New  York  city, 
and  therefore  supplemental  matter 
may  be  inserted  in  an  answer  by 
amendment.  Myers  v.  Rosenback 
(C.  PI.),  29  N.  Y.  Supp.  34,  affirming 
28  N.  Y.  Supp.  9. 

Judgment  Pendente  Lite. — That  a  de- 


fendant may  by  amendment  of  his  an- 
swer avail  himself  of  a  judgmetit  ren- 
dered in  another  action  since  the  com- 
mencement of  the  suit  and  affecting 
the  same,  see  Gaylord  v.  Beardsley 
(Supreme  Ct.),  21  N.  Y.  Supp.  840,  66 
Hun  (N.  Y.)  634. 

Set-off  Acquired  Pendente  Lite. — In 
Gaines  v.  Salmon,  16  Tex.  311,  the  de- 
fendant was  allowed  to  amend  by 
pleading  a  set-off  acquired  after  the 
suit  was  brought. 

4.  Ohio,  etc.,  R.  Co.  v.  Selby,  47 
Ind.  471;  Wright  v.  Johnson,  50  Ind. 
454;  McDonald  v.  Yeager,  42  Ind.  388; 
Clark  V.  Phoenix  Ins.  Co.,  36  Cal.  168; 
Perdue  v.  Aldridge,  19  Ind.  290;  Nim- 
mon  V.  Worthington,  i  Ind.  376;  War- 
der,etc., Co.  z/.Gibbs,  92  Mich.  29;  Coll- 
ins V.  Beecher,  45  Mich.  436;  Murdoch 
V.  Finney,  21  Mo.  138;  Atwood  v. 
Gillespie,  4  Mo.  423;  Tarrant  v.  Gitt- 
elson,  16  S.  Car.  231;  Western  Union 
Tel.  Co.  V.  Shotter,  71  Ga.  760;  Avery 
V.  Wilson,  26  Iowa  573;  Colton  v. 
Stanwood,  67  Me.  25;  Harris  v.  Law- 
rence, I  Tyler  (Vt.)  156;  Fallis  v. 
Howarth,  Wright  (Ohio)  303;  William- 
son V.  Updike,  14  N.  J.  L.  270;  Ballou 
V.  Parsons,  11  Hun  (N.  Y.)  602; 
Stringer  v.  Davis,  30  Cal.  322;  Bell  v. 
Knowles,  45  Cal.  193;  Carpentier  v. 
Small,  35  Cal.  346;  Hart  v.  British, 
etc..  Marine  Ins.  Co.,  80  Cal.  440; 
Ballston  Spa  Bank  v.  Marine  Bank,  16 
Wis.  120;  Fobes  v.  School  Dist.,  10 
Wis.  117;  Gill  V.  Rice,  13  Wis.  549; 
Fery  v.  Pfeiffer,  18  Wis.  510;  Bow- 
man V.  Van  Kuren,  29  Wis.  209; 
Klopper  V.  Bromme,  26  Wis.  372; 
Phillips  V.  Jarvis,  19  Wis.  204;  Rublee. 
V.  Tibbetts,  26  Wis.  399. 


I  Encyc.  PI.  &  Pr.— 37. 


577 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


upon  the  inconsistency  between  the  pleadings  and  the  evidence, 
but  solely  by  proof  that  a  party  has  been  actually  misled  to  his 
prejudice  by  the  incorrect  version  of  the  facts  given  in  the  com- 
plaint;  *  and  even  then  the  court  may  in  its  discretion  order  the 
pleading  to  be  amended,  upon  such  terms  as  it  deems  just.* 

Time  to  Answer  Amendment.— If  an  amendment  of  the  complaint  is 
allowed  upon  the  trial  to  avoid  an  objection  for  variance,  and  the 
court  requires  the  defendant  to  answer  the  amendment  imme- 
diately, such  exercise  of  discretion  will  not  be  reviewed  unless  in 
a  clear  case  of  abuse.* 

Where  evidence  constituting  a  variance  is  admitted  without  ob- 
jection, the  variance  may  be  disregarded  or  cured  by  amendment 
at  later  stages  of  the  proceedings."* 

b.  To  Conform  to  Proof  —  (i)  The  Rule  Stated — Pozvcr, 
Hoiv  Derived. — Where  the  parties  to  a  cause  have  directed  their 
proof  to  a  certain  issue  consistent  with  the  original  claim  or  de- 
fense, but  not  within  some  of  the  allegations  of  the  pleadings,  an 
amendment  of  the  latter  to  conform  to  the  proof  may  be  allowed.* 

Authority  to  Allow  amendments  of  pleadings  to  conform  to  the 
proof  is  commonly  conferred  by  specific  provision  in  the  Codes,® 

1.   Place   V.    Minster,   65    N.   Y.   89; 


Gaty  V.  Sack,  19  Mo.  App.  470. 

Prejudice,  How  Proved. — It  is  not 
necessary  that  the  fact  of  prejudice 
be  establishe'd  by  extrinsic  proof;  it 
may  be  apparent  upon  the  face  of  the 
pleadings.  Lyon  v.  Blossom,  4  Duer 
(N.  Y.)3i8. 

Actual  Amendment. — Where  the  issues 
are  to  be  changed  in  any  material  re- 
spect by  the  proposed  amendment,  as 
by  changing  or  striking  out  averments 
already  made,  the  amendment  must 
be  actually  inserted  in  the  pleadings 
if  the  opposite  party  so  insist.  Ballou 
V.  Parsons,  11  Hun  (N.  Y.)  602. 

2.  New  York  Code,  §  539,  may  be 
taken  as  a  type.  Gaty  v.  Sack,  19  Mo. 
App.  470;  Fox  River  Valley  R.  Co.  v. 
Shoyer,  7  Wis.  365;  Rublee  v.  Tibbetts, 
26  Wis.  399. 

3.  Ellen  v.  Lewison.  88  Cal.  253; 
Tribune  Pub.  Co.  v.  Hamill,  2  Colo. 
App.  237. 

4.  See  the  following  subsections 
and  infra.  III,  12. 

Directing  Verdict. — The  Codes  provide 
that  where  the  variance  is  not  mate- 
rial, according  to  the  prescribed  test  as 
stated  in  the  text,  the  court  may  direct 
the  facts  to  be  found  according  to  the 
evidence,  or  may  order  an  immediate 
amendment,  without  costs. 

Waiver  of  Proof  of  Prejudice. — Where 
a  party  states  that  he  was  misled  and 
the  opposite  party  apparently  assumes 


the  statement  to  be  true,  by  omitting 
to  require  proof  of  the  fact,  he  cannot 
afterwards  object  to  the  absence  of 
proof.  Griggs  v.  Howe,  3  Keyes  (N. 
Y.)  166. 

5.  See  the  following  notes. 
Informal    Motion. — A     motion     "to 

amend  the  complaint  so  as  to  conform 
to  the  evidence  so  far  as  to  allow  the 
plaintiff  every  possible  advantage  un- 
der the  decisions  upon  the  evidence," 
was  denied  on  the  ground  that  it  was 
too  indefinite.  Crooks  v.  Second  Ave. 
R.  Co.,  66  Hun  (N.  Y.)  626,  20  N.  Y. 
Supp.  813. 

6.  New  York. — Charlton  v.  Scoville, 
68  Hun  (N.  Y.)  348,  22  N.  Y.  Supp. 
883;  Brotherson  z/.  Consaulus (Supreme 
Ct.),  5  N.  Y.  St.  Rep.  105;  Parsons  v. 
Sutton,  66  N.  Y.  92  ;  Chapman  v. 
Carolin,  3  Bosw.  (N.  Y.)  456;  Scott  v. 
Lilienthal,  9  Bosw.  (N.  Y.)  224;  Knapp 
V.  Roche,  37  N.  Y.  Super.  Ct.  395; 
Crosby  v.  Watts,  41  N.  Y.  Super.  Ct. 
208;  McAleer  v.  Corning,  49  N.  Y. 
Super.  Ct.  522;  Meyer  v.  Fiegel,  7  Rob. 
(N.  Y.)  122;  Smith  v.  Mackin,  4  Lans. 
(N.  Y.)4i;  Olendorf  r/.  Cook,  i  Lans. 
(N.  Y.)  37  ;  Woolsey  v.  Rondout,  2 
Keyes  (N.  Y.  Ct.  App.)  603;  De  Peys- 
ter  V.  Wheeler,  i  Sandf.  (N.  Y.)  719  ; 
Clayes  v.  Hooker,  4  Hun  (N.  Y.)  231; 
Kellogg  V.  Resse  (Supreme  Ct.),  i  N. 
Y.  Supp.  291 ;  Miller  v.  Holmes  (Super. 
Ct.),  19  N.  Y.  Supp.  701;  Palmer  v. 
Jones  (Supreme  Ct.),  23   N.  V.  Supp. 


578 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 


the  usual  formulary  being,  "  and  when  the  amendment  does  not 
substantially  change    the  claim  or  defense  by  conforming  the 


584;  McComber  z'.  Granite  Ins.  Co.,  15 
N.  Y.  495;  Hosley  v.  Black,  28  N.  Y. 
438;  Walter  v.  Bennett,  16  N.  Y.  251; 
Dows  V.  Green,  3  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  377  ;  Dauchy  v.  Tyler,  15 
How.  Pr.  (N.  y.  Supreme  Ct.)  399; 
Fleischmann  v.  Stern,  61  How.  Pr.  (N. 
Y.  Supreme  Ct.)  124  ;  Schlussel  v. 
Willett,  34  Barb.  (N.  Y.)  615;  Cornell 
V.  Masten,  35  Barb.  (N.  Y.)  157;  Vibb- 
ard  V.  Roderick,  51  Barb.  (N.  Y.)  616; 
Bonsteel  v.  Vanderbilt,  21  Barb.  (N. 
Y.)  26;  Smith  V.  Glens  Falls  Ins.  Co., 

66  Barb.  (N.  Y.)  556;  Field  v.  Van 
Cott,  15  Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.) 
349;  Hart  V.  Hudson,  6  Duer  (N.  Y.) 
294;  Palmer  v.  Jones  (Supreme  Ct.), 
53  N.  Y.  St.  Rep.  355;  Cargain  v, 
Everett  (Supreme  Ct.),  42  N.  Y.  St. 
Rep.  618  ;  Magee  v.  Troy,  48  Hun 
(N.  Y.)  383;  Lounsbury  v.  Purdy,  18 
N.  Y.  515  ;  Fallon  v.  Lawler,  102 
N.  Y.  233;  Davis  v.  Smith,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)  187;  Evarts 
V.  U.  S.  Mut.  Accident  Assoc.  (Su- 
preme Ct.),  40  N.  Y.  St.  Rep.  87S; 
Reck  V.  Phoenix  Ins.  Co.,  3  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  376; 
Lettman  v.  Ritz,  3  Sandf.  (N.  Y.)  734; 
Page  V.  Voorhies  (City  Ct.),  16  N.  Y. 
Supp.  loi  ;  Wilson  v.  Spafford  (Su- 
preme Ct.),  32  N.  Y.  St.  Rep.  332,  10 
N.  Y.  Supp.  649;  Romeyan  v.  Sickles, 
108  N.  Y.  650,  I  Silv.  (N.  Y.)  594; 
Therasson  v.  Peterson,  22  How.  Pr.  (N. 
Y.  Supreme  Ct.)  98;  Elting  v.  Dayton, 

67  Hun  (N.  Y.)  425,  22  N.  Y.  Supp.  154, 
where  it  was  held  reversible  error  to 
refuse  to  allow  plaintiff  to  amend  his 
complaint,  which  alleged  performance 
of  a  contract,  so  as  to  conform  to 
proof  of  a  waiver  of  strict  perform- 
ance; Newerf  v.  Jebb  (Supreme  Ct.), 
6  N.  Y.  Supp.  581,  another  case  of  re- 
versible error  for  refusal  to  allow  an 
amendment  of  the  complaint;  Liver- 
pool, etc.,  Ins.  Co.  v.  Gunther  (Dis- 
trict of  New  York),  116  U.  S.  113. 

Wisconsin. — Davis  v.  Henderson,  20 
Wis.  520;  Flanders  v.  Cottrell,  36  Wis. 
564;  City  Bank  v.  McClellan,  21  Wis. 
112;  Muzz  V.  Ledlie,  23  Wis.  445;  Sa- 
bine V.  Fisher,  37  Wis.  376  ;  North- 
western Union  P.  Co.  v.  Shaw,  37 
Wis.  655;  Buckland  v.  Wilson,  28  Wis. 
581;  Smith  V.  Schulenberg,  34Wis.  41; 
Matthews  v.  Baraboo,  39  Wis.  674; 
Horneffer  v.  Duress,  13  Wis.  603; 
Stacy  V.  Bryant,  73  Wis.   14;  State  v. 


Pierce  County,  71  Wis.  321;  Edleman 
V.  Kidd,  65  W^is.  iS;  Hill  v.  Chipman,  59 
Wis.  211;  Pierce  v.  Kneeland,  :>  Wis. 
672;Charnley  J/.  Honig,  74  Wis.  163,  and 
Edson  V.  Hayden,  18  Wis.  627,  wheu  it 
was  held  reversible  error  to  refuse  to 
allow  an  amendment  to  the  complaint; 
Schumaker  v.  Hoeveler,  22  Wis.  43; 
Pacquette    v.    Pickness,    19  Wis.   219; 

Hodge  V.  Sawyer,  34  Wis.  397;  K 

■V.    H ,    20   Wis.    239;     Hibbard    v. 

Peek,  75  Wis.  619;  Thomas  v.  Hatch, 
53  Wis.  296;  McWhinnee  v.  Martin, 
77  Wis.  182. 

Alabatna. — Burkham  v.  Mastin,  54 
Ala.  122;  Englehardt  v.  Clanton,  83 
Ala.  336;  Godbold  v.  Blair,  27  Ala.  592, 
where  a  new  plaintiff  was  added  by 
amendment. 

Ciilifornia.  —  Hibernia  Sav.,  etc., 
Soc.  V.  Jones,  89  Cal.  507;  Valencia  v. 
Couch,  32  Cal.  339,  after  motion  for 
nonsuit;  Pico  v.  Pico,  56  Cal.  453; 
Kamm  v.  California  Bank,  74  Cal. 
191,  pending  a  motion  for  nonsuit; 
Drew  V.  Hicks  (Cal.,  1894),  35  Pac. 
Rep.  563,  where  it  was  held  reversible 
error  to  refuse  to  allow  an  amend- 
ment of  the  answer;  Jackson  v.  Jack- 
son, 94  Cal.  446. 

Indiana. — Levy  v.  Chittenden.  120 
Ind.  37;  Stanton  v.  Kenrick  (Ind.,1893), 
35  N.  E.  Rep.  19,  where  the  name  of 
a  coplaintiff  was  struck  out;  Sandf ord 
Tool,  etc.,  Co.  V.  Mullen,  i  Ind.  App. 
204;  Sipe  V.  Sipe,  14  Ind.  477;  Smith 
V.  Flack,  95  Ind.  116;  Leib  v.  Butterick, 
68  Ind.  199. 

Colorado. — Gwynn  v.  Butler,  17  Colo. 
114;  Tribune  Pub.  Co.  v.  Hamill,  2 
Colo.  App.  237;  Martin  v.  Simmons; 
II  Colo.  511. 

Kentucky. — Carter  v.  West  (Ky., 
1892),  19  S.  W.  Rep.  592;  Taylor  v. 
Arnold  (Ky.,  1891),  17  S.  W.  Rep.  361; 
Kearney  v.  Covington,  i  Met.  (Ky.) 
339,  holding  it  reversible  error  not  to 
allow  the  complaint  to  be  amended. 

Missouri. — Collins  v.  Glass,  46  Mo. 
App.  297;  Kerr  v.  Bell,  44  Mo.  120; 
McMurry  v.  Martin,  26  Mo.  App. 
437;  Fulkerson  v.  State,  14  Mo.  49, 
Callaghan  v.  M'Mahan,  33  Mo.  iii; 
Riddles  v.  Aikin,  29  Mo.  453;  Stephens 
V.  Frampton,  29  Mo.  263;  Irwin  v. 
Chiles,  28  Mo.  576. 

Nebraska. — Ward  v.  Parlin,  30  Neb. 
376;  Klosterman  v.  Olcott,  25  Neb. 
382;  Whipple  V.  Fowler  (Neb.,  1894), 


579 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


pleadings  to  the  facts  proved."      But  the  practice  of  allowing 
amendments   under   such    circumstances  antedates  the   Codes,* 


60  N.  W.  Rep.  15;  Catron  v.  Shepherd, 
8  Neb.  30S;  Evarts  v.  Smucker,  19 
Neb.  41. 

Kansas.  —  Excelsior  Mfg.  Co.  v. 
Boyle,  46  Kan.  202;  Wilcox,  etc..  Or- 
gan Co.  V.  Lasley,  40  Kan.  521;  Mis- 
souri Pac.  Ry.  Co.  v.  McCally,  41  Kan. 
639;  School  Dist.  V.  Dudley,  28  Kan. 
160;  Fitzgerald  v.  HoUan,  44  Kan. 
499. 

Iowa. — Thomson  v.  Wilson,  26  lov  x 
120;  Tiffany  v.  Henderson,  57  Iowa  490, 
where  it  was  held  to  be  reversible 
error  not  to  allow  an  amendment  of 
the  petition  after  argument  of  counsel; 
Ellis  V.  Lindley,  37  Iowa  334;  Andrews 
V.  Mason  City,  etc.,  R.  Co.,  77  Iowa 
669;  Blandon  v.  Glover,  67  Iowa  615, 
where  it  was  said  that  such  amend- 
ments are  encouraged  ;  Thomas  v. 
Brooklyn,  58  Iowa  438  ;  Davis  v. 
Chicago,  etc.,  R.  Co.,  83  Iowa  744; 
Larkin  v.  McManus,  81  Iowa  723; 
George  v.  SwafTord,  75  Iowa  491;  Ball 
V.  Keokuk,  etc.,  R.  Co.,  71  Iowa  306; 
Correll  v.  Glasscock,  26  Iowa  83. 

South  Carolina.  —  Ahrens  v.  State 
Bank,  3  S.  Car.  401. 

Arkansas.  —  Caldwell  v.  Meshew, 
53  Ark.  263,  an  amendment  of  the 
complaint  after  the  cause  had  been 
submitted  for  a  year  ;  Trippe  v. 
Du  Val,  33  Ark.  811;  McMurray  v. 
Boyd,  58  Ark.  504,  where  it  was  held 
reversible  error  to  refuse  to  allow  an 
amendment  to  the  answer. 

Minnesota. — Dougan  v.  Turner,  51 
Mo.  330;  Rau  V.  Minnesota  Valley  R. 
Co.,  13  Minn.  442:  Cairncross  v.  Mc- 
Grann,  37  Minn.  130. 

Ohio. — Spice  v.  Steinruck,  14  Ohio 
St.  213;  Hoffman  v.  Gordon,  15  Ohio 
St.  217;  Dayton  Ins.  Co.  v.  Kelly,  24 
Ohio  St.  345. 

Mississippi.  —  Miller  v.  Northern 
Bank,  34  Miss.  412. 

Nevada. — McCausland  v.  Ralston,  12 
Nev.  195. 

South  Dakota. — Jenkinson  v.  Ver- 
million (S.  Dak.,  1892),  52  N.  W.  Rep. 
1066,  and  Yetzer  v.  Young  (S.  Dak., 
1892),  52  N.  W.  Rep.  1054,  where  it  was 
held  reversible  error  to  refuse  to  allow 
an  amendment  of  the  complaint. 

Oregon. — Cook  v.  Croisan  (Oregon, 
1894),  36  Pac.  Rep.  532,  reversible 
error  for  refusal  to  allow  amendment. 

Georgia. — Lathrop  v.  Adkisson,  87 
Ga.  339. 


North  Carolina. — Brown  v.  Mitchell 
(N.  Car.,  1SS9),  9  S.  E.  Rep.  702. 

Montana.  —  Williston  v.  Camp,  9 
Mont.  88;  Wise  v.  Jefferis  (District  of 
Montana),  51  Fed.  Rep.  641;  Wormall 
V.  Reins,  i  Mont.  627. 

N'ew  Mexico.  —  Berry  v.  Hull  (N. 
Mex.,  1892),  30  Pac.  Rep.  936. 

Utah. — Walton  v.  Jones,  7  Utah  462. 

West  Virginia. — Travis  v.  Peabody 
Ins.  Co.,  28  W.  Va.  583. 

Harmless  Error. — An  amendment  of 
a  complaint  to  conform  to  the  evi- 
dence, even  though  erroneously  al- 
lowed, is  not  a  ground  for  setting 
aside  the  judgment  founded  on  it 
where  such  evidence  tended  to  estab- 
lish another  cause  of  action  contained 
in  the  complaint,  and  the  defendant 
was  therefore  not  prejudiced.  Rob- 
ertson V.  Robertson,  9  Daly  (N.  Y.)44. 

1.  New  York. — In  Flower  v.  Garr 
(1839),  20  Wend.  (N.  Y.)  668,  which 
was  an  action  of  assumpsit  for  money 
had  and  received  brought  by  executors 
counting  upon  promises  to  the  tes- 
tator, an  amendment  was  allowed  after 
a  report  of  referees  by  permitting 
the  plaintiffs  to  allege  the  promises  to 
have  been  made  to  them  as  executors, 
it  appearing  on  the  hearing  that  the 
moneys  were  received  by  the  defend- 
ant subsequent  to  the  death  of  the 
testator,  though  upon  a  retainer  an- 
terior to  that  time.  The  court  said  : 
"There  is  no  pretence  that  the  de- 
fendant has  been  misled.  *  *  *  He 
has  made  his  defense  as  fully  as  he 
could  ever  hope  to  make  it  if  a  new 
trial  were  granted.  Under  such  cir- 
cumstances amendments  have  often 
been  allowed  after  verdict,  and  for 
the  purpose  of  upholding  it.  Lyon  v. 
Burtis,  18  Johns.  (N.  Y.)  510;  Sargent 
V.  Dermison,  2  Cow.  (N.  Y.)  515;  Rees 
V.  Overbaugh,  4  Cow.  (N.  Y.)  124; 
Mott  V.  Jerome,  7  Cow.  (N.  Y.)  518." 
See  also  the  opinion  of  the  court  in 
Miller  v.  Watson,  6  Wend.  (N.  Y.)  506; 
Davis  V.  Smith,  14  How.  Pr.  (N.  Y. 
Supreme  Ct.)  187. 

Other  States. — Christine  v.  Whitehill 
(1827),  16  S.  &  R.  (Pa.)  98;  Reeside  v. 
Hadden,  12  Pa-.  St.  243;  Downing  v. 
Lindsay,  2  Pa.  St.  382;  Hill  v.  Has- 
kins  (1829),  8  Pick.  (Mass.)  83;  Mont- 
gomery V.  Maynard,  33  Vt.  450;  Lewis 
V.  Locke,  41  Vt.  14;  Harris  v.  Law- 
rence; I  Tyler  (Vt.)  156. 


58c 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


is  not  confined  to  the  Code  states,*  and  is  authorized  by  general 
provisions  for  the  amendment  of  defects  in  pleadings  in  further- 
ance of  justice.''^ 

Allowance  by  Referee. — Where  a  referee  has  the  same  powers  as 
the  court  in  respect  of  allowing  amendments  at  the  trial,  he  may- 
permit  the  pleadings  to  be  conformed  to  the  facts  proved.* 

(2)  At  What  Stage  of  Proceedings. — An  amendment  to  con- 
form to  the  proof  is  usually  made  after  the  evidence  is  closed  ;* 
but   it   may   be   made  after  the  argument  of  counsel,*   or  after 


In  Texas. — The  Texas  statute  provid- 
ing that  pleadings  may  be  amended 
before  the  parties  announce  ready  for 
trial,  but  not  thereafter  [see  infra.  III, 
II,  rt],  a  petition  cannot  be  amended 
so  as  to  conform  to  proofs.  Missouri 
Pac.  R.  Co.  V.  Howe  (Tex.  App., 
1891),  15  S.  W.  Rep.  198.  But  see 
Western  Union  Tel.  Co.  v.  Bowen,  84 
Tex.  476,  where  it  was  held  that 
as  the  defendant  did  not  ask  for  a 
continuance  upon  an  amendment  of 
the  complaint,  he  had  no  ground  to 
claim  prejudice.  The  case  is  cited  in 
connection  with  remarks  pertinent  to 
the  subject  in  Guinn  v.  O'Daniel,  5 
Tex.  Civ.  App.  112. 

1.  New  Hampshire. — Pickering  v. 
De  Rochemont,  45  N.  H.  67. 

In  Peaslee  v.  Dudley,  63  N.  H.  220, 
the  facts  appeared  upon  the  trial  of  an 
action  of  trover  that  the  plaintiff  was 
entitled  to  recover  for  the  same  cause 
in  an  action  of  assumpsit;  and  the 
court,  declining  to  consider  whether 
trover  could  be  maintained,  granted 
leave  to  the  plaintiff  to  amend  by  join- 
ing a  count  in  assumpsit,  and  there- 
upon ordered  judgment. 

Michigan.  —  Foley  v.  Riverside 
Storage,  etc.,  Co.,  85  Mich.  7,  where 
an  amendment  of  the  complaint  was 
held  not  only  to  be  proper,  but  that  it 
was  the  positive  duty  of  the  court  to 
allow  it.  Shearer  v.  Middleton,  88 
Mich.  621;  Portsmouth  Sav.  Bank  v. 
Hart,  83  Mich.  646;  Cummin  v.  Wil- 
cox, 47  Mich.  501;  Johnson  v.  Spear, 
82  Mich.  453;  Wallace  v.  Detroit 
City  R.  Co.,  58  Mich.  231;  Keystone 
Lumber,  etc.,  Mfg.  Co.  v.  Jenkinson, 
69  Mich.  220. 

Massachusetts. — Denham  v.  Bryant, 
139  Mass.  110;  Demingz/.  Darling,  148 
Mass.  504;  Batchelder  v.  Hutchinson 
(Mass.,  1894),  37  N.  E.  Rep.  452; 
Cleaves  v.  Lord,  3  Gray  (Mass.)  66; 
Augur  Steel  Axle,  etc.,  Co.  v.  Whitt- 
ier,  117  Mass.  451;  Fenton  v.  Lord, 
128   Mass.  466,  where  it  was  held  th::t 


plaintiffs  might  amend  by  joining  an- 
other party. 

Illinois. — McCollom  v.  Indianapolis, 
etc.,  R.  Co.,  94  111.  539;  Carpenter  v. 
First  Nat.  Bank,  19  111.  App.  549. 

A'ew  Jersey. — Willis  v.  Fernald,  33 
N.  J.  L.  206:  McAndrews  v.  Tippett, 
39  N.  J.  L.  105;  American  L.  Ins.  Co. 
V.  Day,  39  N.  J.  L.  89;  Westervelt  v. 
Demarest,  46  N.  J.  L.  40;  Ware  v. 
Millville  F.  Ins.  Co.,  45  N.  J.  iJ.  177; 
Finegan  v.  Moore,  46  N.  J.  L.  602. 

2.  Bamberger  v.  Terry,  103  U.  S. 
40,  where  the  court  said:  "All  that 
had  been  done  was  to  present  by  the 
pleadings  fairly  and  on  the  merits  the 
controversy  as  it  had  actually  been 
tried."  There  the  case  had  been  tried 
by  the  court  by  stipulation.  The  de- 
fendant put  in  a  general  denial  to  the 
amended  declaration  and  demanded  a 
jury  trial,  and  it  was  held  that  the 
court  had  a  discretionary  ppwer  to  re- 
fuse it.  In  this  connection  The  Tre- 
molo Patent,  23  Wall.  (U.  S.)  518, 
although  an  equity  case,  may  be  use- 
fully consulted.  See  also  the  cases 
cited  in  the  preceding  note. 

Time  to  Answer  Amendment. — There 
is  no  error  in  refusing  time  to  answer 
an  amendment  made  to  the  complaint 
to  conform  it  to  the  facts  proved. 
George  v.  Swafford,  75  Iowa  491. 

3.  Merriam  v.  Wolcott,  61  How.  Pr. 
(N.  Y.  Supreme  Ct.)  377;  McLaughlin 
V.  Webster,  141  N.  Y.  76;  Knapp  v. 
Fowler,  30  Hun  (N.  Y.)  512;  Chapin 
V.  Dobson,  78  N.  Y.  74;  Crismon  v. 
Deck,  84  Iowa  344.  See  supra.  III, 
2./. 

4.  See  the  cases  cited  in  the  notes 
to  the  preceding  paragraphs. 

Reswearing  the  Jury. — It  is  not  error 
to  refuse  to  reswear  the  jury  when  the 
complaint  is  amended  to  conform  to 
proofs  after  the  evidence  is  closed,  if 
a  new  issue  is  not  thereby  tendered. 
Sandford  Tool,  etc.,  Co.  v.  Mullen, 
I  Ind.  App.  204. 

5.  Correll  v.  Glasscock,  26  Iowa  83, 


581 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


verdict*  or  judgment  ;*  but  only  for  the  purpose  of  sustaining 
the  judgment,  not  to  reverse  it;'  or  in  the  appellate  court  the 
amendment  may  be  regarded  as  made.'* 


where  it  was  held  to  be  no  objection 
that  the  amendment  was  not  actually 
filed  until  after  verdict.  Tiffany  v. 
Henderson,  57  Iowa  490;  Smith  v. 
Howard,  28  Iowa  51. 

1.  Colton  V.  King,  2  Allen  (Mass.) 
317;  Denham  v.  Bryant,  139  Mass.  no; 
Fenton  v.  Lord,  128  Mass.  466;  Kim- 
ball V.  Ladd,  42  Vt.  747;  Thomas 
V.  Hatch,  53  Wis.  296;  Evarts  v. 
Smucker,  19  Neb.  41;  Thomson  v.  Wil- 
son, 26  Iowa  120;  Davis  v.  Chicago, 
etc.,  R.  Co.,  83  Iowa  744;  Ball  v. 
Keokuk,  etc.,  R.  Co.,  71  Iowa  306; 
Russell  z/.  Turner,  62  Me.  496;  Trippe 
V.  Du  Val,  33  Ark.  811;  Brown  v. 
Mitchell,  102  N.  Car.  347,  where  the 
complaint  was  amended  by  striking 
out  one  of  the  defendants;  Emerson 
V.  Bleakley,  5  Abb.  Pr.  N.  S.  (N.  Y. 
Ct.  App.)  350;  Lamb  v.  Camden,  etc., 
R.  &  T.  Co..  2  Daly  (N.  Y.)  454;  Rees 
V.  Overbaugh,  4  Cow.  (N.  Y.)  124,  on 
a  motion  for  a  new  trial;  Smith  v. 
Glens  Falls  Ins.  Co.,  66  Barb.  (N.  Y.) 
556;  Evarts  v.  U.  S.  Mut.  Accident 
Assoc,  61  Hun  (N.  Y.)  624,  16  N.  Y. 
Supp.  27,  40  N.  Y.  St.  Rep.  878,  on 
motion  for  a  new  trial  on  case  and 
exceptions.  See  also  Every  v.  Mer- 
win,  6  Cow.  (N.  Y.)  360.  Compare  Joy 
V.  Walker,  28  Vt.  442;  Maxwell  v. 
Day,  45  Ind.  509. 

2.  Lounsbury  v.  Purdy,  18  N.  Y. 
515;  Thomas  v.  Nelson,  69  N.  Y.  118; 
Bedford  v.  Terhune,  30  N.  Y.  453; 
Egert  V.  Wicker,  10  How.  Pr.  (N.  Y. 
Supreme  Ct.)  193;  City  Bank  v.  Mc- 
Clellan,  21  Wis.  112;  Buckland  v.  Wil- 
son, 28  Wis.  581;  Carter  v.  West(Ky., 
1892),  19  S.  W.  Rep.  592;  Davis  v. 
Chicago,  etc.,  R.  Co.,  83  Iowa  744. 

Statute  of  Limitations. — A  reply  to  a 
counterclaim  which  does  not  set  up 
the  statute  of  limitations  cannot  be 
amended  after  judgment  to  conform 
to  proof  that  the  counterclaim  was 
barred  by  the  statute.  Williams  v. 
Willis,  15  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  II. 

After  Nonsuit.  —  Hill  v.  Haskins,  8 
Pick.  (Mass.)  83;  Jackson  v.  Bailey,  5 
Cow.  (N.  Y.)  265. 

3.  Steinman  v.  Strauss  (Supreme 
Ct.),  44  N.  Y.  St.  Rep.  380;  Weems  v. 
Shaughnessy  (Supreme  Ct.),  24  N.  Y. 
Supp.  271;  McGuiniss  v.  New  York,  6 
Daly  (N.  Y.)  416. 


Where  the  value  of  services  sued 
for  is  found  to  be  more  than  the 
amount  alleged  in  the  complaint,  the 
latter  cannot  be  amended  on  appeal  to 
conform  to  the  findings.  Perkins  v. 
West  Coast  Lumber  Co.  (Cal.),  1893, 
33  Pac.  Rep.  1118. 

4.  Michigati. — Warder,  etc.,  Co.  v. 
Gibbs,  92  Mich.  29;  Enright  v.  Stand- 
ard L.,  etc.,  Ins.  Co.,  91  Mich.  238; 
Smith  V.   Pinney,  86  Mich.  484. 

Wisconsin. — Hodge  v.  Sawyer,  34 
Wis.  397;  Trowbridge  v.  Barrett,  30 
Wis.  661;  Miller  v.  Spaulding,  41  Wis. 
221;  Goff  V.  Outagamie  County,  43 
Wis.  55;  Wittman  v.  Watry,  45  Wis. 
491;  McKinney  v.  Jones,  55  Wis.  39; 
Murray  v.  Scribner,  74  Wis.  602. 

Illinois. — Law  v.  Fletcher,  84  111.  45. 

New  York. — Fallon  v.  Lawler,  102 
N.  Y.  233;  Clark  v.  Dales,  20  Barb. 
(N.  Y.)  42;  Hunter  v.  Hudson  River 
Iron,  etc.,  Co.,  20  Barb.  (N.  Y.)  493; 
Pratt  V.  Hudson  River  R.  Co.,  21  N. 
Y.  305;  Harris  v.  Tumbridge,  83  N.  Y. 
92,  8  Abb.  N.  Cas.  (N.  Y.)  291;  Bar- 
tholomew V.  Lyon,  67  Barb.  (N.  Y.) 
86;  Listman  v.  Hickey  (Supreme  Ct.), 
19  N.  Y.  Supp.  8S0;  Snyder  v.  Snyder, 
4  Cow.  (N.  Y.)  394;  Hudson  v.  Swan, 
7  Abb.  N.  Cas.  (N.  Y.  City  Ct.)  324; 
Bowdoin  v.  Coleman,  3  Abb.  Pr.  (N. 
Y.  Super.  Ct.)  431;  Victor  v.  Bauer 
(Supreme  Ct.),  11  N.  Y.  St.  Rep.  531; 
Hooper  z/.  Beecher  (Supreme  Ct.),  7  N. 
Y.  St.  Rep.  405;  Rosebrooks  v.  Dins- 
more,  5  Abb.  Pr.  N.  S.  (N.  Y.  Ct.  App.) 
59;  Doyle  V.  Mulren,  7  Abb.  Pr.  N.  S. 
(N.  Y.  Super.  Ct.)  258;  Rose  v.  Bell,  38 
Barb.  (N.  Y.)25;  Smith  v.  Holland,  60 
Barb.  (N.  Y.)  333;  Coleman  v.  Plays- 
ted,  36  Barb.  (N.  Y.)  26;  Hamilton  v. 
Gridley,  54  Barb.  (N.  Y.)  542;  Bar- 
tholomew V.  Lyon,  67  Barb.  (N.  Y.)  86; 
Drexel  v.  Pease  (Supreme  Ct.),  13  N. 
Y.  Supp.  774;  Argersihger  v.  Levor 
(Supreme  Ct.),  7N.  Y.  Supp.  923;  Tripp 
V.  Pulver,  2  Hun  (N.  Y.)  511;  demons 
V.  Davis,  4  Hun  (N.  Y.)  200;  Tisdale 
V.  Morgan,  7  Hun  (N.  Y.)  583;  Parsons 
V.  Suydam,  3  E.  D.  Smith  (N.  Y.)  276; 
Union  India  Rubber  Co.  v.  Tomlinson, 
I  E.  D.  Smith  (N.  Y.)  364;  Foote  v. 
Roberts,  7  Rob.  (N.  Y.)  17;  Hall  v. 
Morrison,  3  Bosw.  (N.  Y.)  520;  Riker 
V.  Curtis  (C.  PL),  30  N.  Y.  Supp.  940. 

Massachusetts. — Whitney  v.  Hough- 
ton, 127  Mass.  527;  Arlington  v.  Lyons, 


5S2 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


(3)  Confined  to  Original  Cause  of  Action. — Under  the  device  of 
conforming  the  pleadings  to  the  facts  proved  a  party  cannot  be 
permitted   to   introduce   a    new    cause    of    action*     or,    in    the 


131  Mass.  32S;  Denham  z/.  Bryant,  139 
Mass.  no;  Batchelder  v.  Hutchinson 
(Mass.  1894),  37  N.  E.  Rep.  452. 

Kansas.  —  Excelsior  Mfg.  Co.  v. 
Boyle,  46  Kan.  202;  Tipton  v.  Warner, 
47  Kan.  706;  Wilcox,  etc.,  Organ  Co.  z/. 
Lasley,  40  Kan.  521. 

Indiana. — Hamilton  v.  Winterrowd, 
43  Ind.  393;  Case  v.  Wandel,  16  Ind. 
459,  and  Hobbs  v.  Cowden,  20  Ind.  310, 
cases  where  there  was  a  variance  be- 
tween the  instrument  sued  on  and  the 
one  admitted  in  evidence ;  Torr  v.  Torr, 
20  Ind.  118;  Carpenter  v.  Sheldon,  22 
Ind.  259;  Hull  V.  Green,  26  Ind.  388; 
McKinlay  v.  Shank,  24  Ind.  258;  Bu- 
chanan V.  State,  106  Ind.  251;  Cleve- 
land V.  Roberts,  14  Ind.  511;  Lucas  v. 
Smith,  42  Ind.  103;  Krewson  v.  Cloud, 
45  Ind.  273;  Bristol  Hydraulic  Co.  v. 
Boyer,  67  Ind.  236;  Davis  v.  Doherty, 
69  Ind.  II. 

A^ebraska.  —  Homan  v.  Steele,  18 
Neb.  632. 

North  Carolina. — Gibbs  v.  Fuller,  66 
N.  Car.  116. 

Arkansas. — Railway  Co.  v.  Triplett, 
54  Ark.  289;  Sorrels  v.  Self,  43  Ark. 
451;  St.  Louis,  etc.,  R.  Co.v.  Harper,  44 
Ark.  524;  Hanks  v.  Harris,  29  Ark.  323. 

Minnesota. — Almich  v.  Downey,  45 
Minn.  460. 

Netu  Jersey. — Finegan  v.  Moore,  46 
N.  J.  L.  602;  Ware  v.  Millville  F.  Ins. 
Co.,  45  N.  J.  L.  177;  Westervelt  v. 
Demarest,  46  N.  J.  L.  40;  McAndrews 
V.  Tippet,  39  N.  J.  L.  105;  American 
L.  Ins.  Co.  V.  Day,  39  N.  J.  L.  89; 
Willis  V.  Fernald,  33  N.  J.  L.  206. 

Pennsylvania.  —  Downing  v.  Lind- 
say, 2  Pa.  St.  382. 

See  also  infra.  III,  11, /,  (i). 

Increasing  Amount  Claimed. — Ke-tuc- 
e-mun-guah  v.  McClure,  122  Ind.  541, 
where  the  amount  claimed  in  the 
prayer  of  the  relief  was  considered  as 
increased  to  correspond  with  the 
amount  found  due.  Compare,  on  this 
point.  May  v.  State  Bank,  9  Ind.  233. 

Variance  in  Dates  of  Instrument.  — 
And  a  variance  between  the  date  of 
maturity  of  a  promissory  note  as  al- 
leged in  the  complaint  and  the  date  in 
a  copy  filed  therewith  may  be  regarded 
as  cured  by  amendment.  Carver 
V.  Carver,  53  Ind.  241. 

New  Defense. — .\n  amendment  of  the 
answer  cannot  be   allowed  by  setting 


up  a   different   defense.     Hondorf  v. 
Atwater  (Supreme  Ct.),  27  N.  Y.  Supp. 

447- 

Laches  of  Applicant. — Nor  will  an 
amendment  be  allowed  where  the  de- 
fect was  pointed  out  to  the  party  upon 
the  trial  and  he  neglected  to  apply  for 
leave  to  amend.  Schmidt  v.  Gunther, 
5  Daly  (N.  Y.)452. 

Issues  not  Litigated. — It  will  not  be 
allowed  unless  the  issues  sought  to  be 
introduced  were  fully  litigated  on  the 
trial.     Cumber  v.  Schoenfeld,  16  Daly 

(N.  Y.)454. 

As  to  how  the  appellate  court  may 
infer  whether  the  issues  were  or  were 
not  fairly  litigated,  see  Riker  v.  Cur- 
tis (C.  PI.),  30  N.  Y.  Supp.  940. 

In  Support  of  the  Judgment.  —  The 
amendment  is  allowed  in  order  to  sus- 
tain and  not  to  reverse  the  judgment. 
Gasper  v.  Adams,  24  Barb.  (N.  Y.) 
287;  Starr  Steamship  Co.  v.  Mitchell, 
I  Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.)  390. 

1.  Storrs  V.  Flint,  46  N.  Y.  Super. 
Ct.  498;  Freeman  v.  Grant  (Supreme 
Ct.),  30  N.  Y.  St.  Rep.  143;  Peters  v. 
Chamberlain  (Supreme  Ct.),  36  N.  Y. 
St.  Rep.  100;  Egert  v.  Wicker,  10  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193;  South- 
wick  V.  First  Nat.  Bank,  84  N.  Y.  420; 
Buffalo,  etc.,  Ferry  Co.  v.  Allen,  12 
Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.)  64; 
Freeman  v.  Grant,  132  N.  Y.  22; 
Phillips  z/.  Melville,  10  Hun(N.Y.)2ii; 
Walter  v.  Bennett,  16  N.  Y.  251;  Union 
Bank  v.  Mott,  11  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  42;  Whittaker  v.  Merrill, 
30  Barb.  (N.  Y.)  389;  Nosser  v.  Cor- 
\vin,  36  How.  Pr.  (N.  Y.  C.  PI.)  540; 
Bradley  v.  Shafer  (Supreme  Ct.),  19 
N.  Y.  Supp.  640,  20  N.  Y.  Supp.  312; 
Hill  V.  London  Assur.  Corp.  (City  Ct.), 
12  N.  Y.  Supp.  86;  Joslyn  v.  Joslyn,  9 
Hun  (N.  Y.)  388;  Saltus  v.  Genin,  3* 
Bosw.  (N.  Y.)  250;  Grant  v.  Burgwyn, 
88  N.  Car.  95 ;  Carpenter  v.  Huffsteller, 
87  N.  Car.  273;  Stowell  v.  Eldred,  39 
Wis.  614;  Newton  v.  Allis,  12  Wis.  378; 
Geary  v.  Bennett,  65  Wis.  554;  Allen 
V.  Brooks  (Wis.,  1894).  60  N.  W.  Rep. 
253;  Butcher  v.  Death,  15  Mo.  271; 
Levy  V.  Chittenden,  120  Ind.  37;  Duns- 
ford  z/.  Brown,  19  S.  Car.  560.  See  also 
Joy  V.  Walker,  28  Vt.  442. 

Complaint  Stating  no  Cause  of  Ac- 
tion.— Where  a  complaint  does  not 
state  a  cause   of   action   it  cannot  be 


583 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


language  of  the  Code,  to  "  substantially  change  the  claim  or 
defense,"  * 

After  Keversal  and  Eemand. — But  after  a  judgment  reversed,  on  the 
ground  of  a  variance  amounting  to  proof  of  a  new  cause  of  action, 
and  the  cause  remanded,  it  seems  that  the  trial  court  may  then 
allow  an  amendment  to  meet  the  facts  so  proved.* 

(4)  Otily  in  Furtherance  of  Justice. — Amendments  to  conform 
to  the  proof  should  be  liberally  allowed,*    but    only  when  jus- 


amended  so  as  to  state  a  cause  of  ac- 
tion.   Curtis   V.    Cutler,   7    Neb.    315; 

K V.    H ,    20   Wis.    239  ; "  Fox 

River  Valley  R.  Co.  v.  Shoyer,  7  Wis. 
365.  Compare  Teetshorn  v.  Hull,  30 
Wis.  162.  See  also  Lounsbury  v. 
Purdy,  iS  N.  Y.  5i5- 

In  Alleman  v.  Bowen  (Supreme  Ct.), 
15  N.  Y.  Supp.  318,  it  was  held  that 
where  the  trial  court  improperly  denies 
a  motion  to  dismiss  a  complaint  on  the 
ground  that  it  does  not  state  a  cause 
of  action,  and  the  plaintiff  does  not 
ask  for  leave  to  amend,  he  will  not  be 
permitted  to  amend  on  an  appeal  taken 
t)y  the  defendant. 

Changing  Suit  in  Equity  to  Action  at 
Law. — An  amendment  changing  a  suit 
in  equity  to  an  action  at  law  cannot  be 
allowed  in  order  to  conform  to  the 
proofs.  Halsey  v.  Tradesmen's  Nat. 
Bank,  56  N.  Y.  Super.  Ct.  7. 

And  a  variance  between  a  mere 
legal  defense  of  payment  and  an  equi- 
table counterclaim  for  specific  per- 
formance is  so  vital  that  it  cannot  be 
cured  by  summary  amendment  on  the 
trial.     Stowell  v.  Eldred,  39  Wis.  614. 

Facts  Occurring  After  Suit  Brought. — 
In  an  action  for  an  accounting  the 
court  has  no  power  to  amend  the  com- 
plaint so  as  to  give  the  plaintiff  the 
benefit  of  facts  occurring  after  his  ac- 
tion was  commenced,  although  it  con- 
forms to  the  proof.  Fickett  v.  Cohn 
(C.  PI.).  16  N.  Y.  St.  Rep.  709.  Corn- 
fare  Lowrey  z'.  Reef,  i  Ind.  App.  244. 

Changing  Common  Count  to  Covenant. 

An  amendment  may  be  made  at  the 

trial  changing  an  action  for  use  and 
occupation  into  one  for  covenant  on  a 
lease  in  order  to  conform  to  the  proof. 
Bedford  v.  Terhune,  30  N.  Y.  453. 

Gift  Inter  Vivos  to  Gift  Causa  Mortis. — 
So  where  a  complaint  alleged  an  abso- 
lute gift  and  transfer  the  plaintiif  was 
allowed  to  amend  to  conform  to  proof 
of  a  gift  causa  mortis.  Walsh  v.  Bow- 
ery Sav.  Bank  (City  Ct.),  26  N.  Y.  St. 
Rep.  95. 

Quantum  Meruit. — Upon  the  trial  the 


plaintiff  was  allowed  to  amend  so  as 
to  recover  the  actual  value  of  services 
rendered  where  the  contract  upon 
which  the  action  was  brought  was 
void  by  the  statute  of  frauds.  Tur- 
now  V.  Hochstadter,  7  Hun  (N.  Y.)  80. 

Quantum  Valebat. — Where  the  com- 
plaint proceeds  upon  the  basis  of  a 
contract  price  it  may  be  amended  by 
claiming  damages  by  reason  of  the 
breach  of  a  contract  so  as  to  conform 
to  the  proof.  Evans,  v.  Warner,  21 
Hun(N.  Y.)574- 

Increasing  Ad  Damnum. — An  amend- 
ment on  the  trial  increasing  the 
amount  claimed  so  as  to  equal  the 
amount  proved  does  not  make  a  new 
cause  of  action,  and  is  properly  al- 
lowed. Frankfurter  v.  Home  Ins.  Co. 
(City  Ct.),  36  N.  Y.  Supp.  81;  Arrigo 
V.  Catalano  (Super.  Ct.),  27  N.  Y. 
Supp.  995,  after  verdict;  Cargain  v. 
Everett,  62  Hun  (N.  Y.)  620;  Barth  v. 
Walther,  4Duer  (N.  Y.)  228.  See  also 
Cain  V.  Cody  (Cal.  1892),  29  Pac.  Rep. 
778,  and  infra.  III,  10,  a. 

It  is  unnecessary  to  cite  further  au- 
thorities as  to  what  constitutes  a  new 
cause  of  action,  the  subject  having 
been  treated  in  detail  in  a  preceding 
part  of  this  article.     See  supra.  III,  6. 

1.  Corby  v.  Wright,  4  Mo.  App.  443, 
where  the  proposed  amendment  would 
change  the  defense.    ' 

But  the  issue  may  be  changed.  Cald- 
well V.  Meshes,  53  Ark.  263. 

2.  Prindle  v.  Aldrich,  13  How.  Pr. 
(N.  Y.  Supreme  Ct.)  466. 

It  must  be  remembered  that  in  New 
York,  contrary  to  the  prevailing  rule, 
amendments  may  be  allowed  before 
trial  introducing  a  new  cause  of  action. 
See  supra.  III,  6,  a,  note.  And  as  to 
the  power  of  the  court  to  amend  after 
remand  to  the  same  extent  as  if  the 
case  had  not  previously  been  tried, 
see  infra.  III,  11,  //. 

3.  Stephens  v.  Frampton,  29  Mo. 
263;  Guidery  v.  Green,  95  Cal.  630; 
Bedford  v.  Terhune,  30  N.  Y.  453,  27 
How.  Pr.  (N.  Y.)422,  iDaly(N.Y.)37i. 


584 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Ccmmon  Law.  under  Codes,  etc. 

tice  will  be  promoted  thereby.*  If  the  case  was  not  tried  upon 
the  theory  suggested  by  the  amendment,  it  ought  not  to  be  al- 
lowed ;*  nor  should  leave  to  amend  the  complaint  be  granted  in 
order  to  enable  the  plaintiff  to  recover  an  utterly  unconscionable 
demand.^ 

Sufficiency  of  Proof. — On  appeal  it  will  be  presumed,  unless  the  bill 
of  exceptions  shows  the  contrary,  that  the  facts  set  up  in  the 
amendment  were  supported  by  the  evidence.* 

(5)  Where  the  Evidence  was  Objected  to. — A  motion,  after  the 
close  of  theevidence,  to  conform  the  pleadings  to  the  proof  can 
never   be  granted   where   the   admission    of   the    evidence   was 


1.  Hubble  V.  Murphy,  i  Duv.  (Ky.) 
278;  McSween  v.  McCown,  23  S.  Car. 

342. 

Surprise  or  Prejudice. — The  amend- 
ment should  not  be  allowed  when  the 
opposite  party  will  be  surprised  or 
misled.  Dunsford  v.  Brown,  19  S. 
Car.  560. 

Setting  Tip  Limitation. — To  allow  a 
plaintiff  to  come  in  after  judgment 
and  plead  the  statute  of  limitations  in 
bar  of  a  counterclaim  set  up  by  the  de- 
fendant in  his  answer,  would  not  be 
in  furtherance  of  justice.  Clinton  v. 
Eddy,  54  Barb.  (N.  Y.)  54- 

Denying  Admitted  Alfegations. — It  is 
within  the  discretion  of  the  court  to 
allow  an  answer  to  be  amended  after 
the  hearing  so  as  to  conform  to  the 
proofs  by  denying  an  allegation  of  the 
complaint  admitted  in  the  original  an- 
swer, where  the  plaintiff  ha^given  evi- 
dence in  support  of  such  allegation  both 
in  chief  and  on  rebuttal.  Charlton  v. 
Scoville,  68  Hun  (N.  Y.)  348,  22  N.  Y. 
Supp.  883.  But  under  ordinary  cir- 
cumstances he  cannot  do  so.  Harrison 
V.  Hastings,  28  Mo.  346. 

And  a  complaint  cannot  be  amended 
so  as  to  take  away  from  it  an  allega- 
tion which  has  been  admitted  and  re- 
lied upon  by  the  defendant.  Zimmer 
V.  Brooklyn  R.  Co.,  23  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  382. 

Making  No  Cause  of  Action. — A  mo- 
tion to  conform  the  complaint  to  the 
proofs  will  not  be  allowed  when  its 
effect  would  be  to  make  the  complaint 
state  no  cause  of  action.  Richards  v. 
Fox,  52  N.  Y.  Super.  Ct.  36. 

No  Additional  Defense. — A  motion  to 
conform  an  answer  to  the  proof  may 
be  denied  where  the  proposed  amend- 
ment contains  no  additional  defense. 
Steinhauser  v.  Mason  (C.  PI.),  19  N. 
Y.  Supp.  228. 


Useless  Amendment. — After  the  sub- 
mission of  an  equitable  action  for  final 
determination  there  was  no  prejudicial 
error  in  refusing  an  amendment  of  the 
petition  to  meet  the  proofs  where, 
upon  full  consideration  of  all  the  evi- 
dence upon  appeal,  it  is  found  that 
the  relief  prayed  must  in  any  event  be 
denied.  Horbach  v.  Marsh,  37  Neb. 
22. 

An  amendment  of  an  answer  to 
meet  the  proofs  was  properly  refused 
where  such  amendment,  taken  in  con- 
nection with  the  other  averments  in 
the  answer,  even  if  clearly  proved, 
constituted  no  defense.  Bush  v.  Bank 
of  Commerce,  38  Neb.  403. 

2.  Marshall  v.  Golden  Fleece  Gold, 
etc.,  Min.  Co.,  16  Nev.  156. 

The  prayer  for  relief  will  not  be 
amended  after  verdict  when  the  result 
would  be  to  present  issues  that  were 
not  tried.  Nevada  County,  etc..  Canal 
Co.  V.  Kidd,  37  Cal.  282.  See  also 
Cumber  v.  Schoenfeld,  16  Daly  (N.  Y.) 

454- 

3.  Daley  v.  Russ,  86  Cal.  114,  an 
amendment  seeking  to  recover  an  ex- 
cessive brokerage  for  obtaining  a 
loan. 

4.  Dougan  v.  Turner,  51  Minn.  330; 
Jones  V.  Gregg,  17  Ind.  84;  Knox  v. 
McFerran,  4  Colo.  348. 

Weight  of  Evidence. — It  was  held,  in 
Missouri  Pac.  Ry.  Co.  v.  McCally,  41 
Kan.  639,  that,  if  there  is  some  evi- 
dence to  sustain  the  amendment,  the 
ruling  of  the  court  will  not  be  dis- 
turbed although  it  is  apparently 
against  the  weight  of  the  evidence 
produced  on  the  trial.  But  in  Hubble 
V.  Murphy,  i  Duv.  (Ky.)  278,  the  rul- 
ing of  the  trial  court  in  allowipg  an 
amendment  to  conform  to  the  proof 
was  reversed  because  the  evidence 
was  unsatisfactory. 

85 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 

promptly  objected  to  when  it  was  offered,  upon  the  ground  that 
it  did  not  tend  to  support  the  allegations  in  the  pleadings,* 

(6)  Failure  of  Proof . — The  Codes  provide  that  where  the  allega- 
tion to  which  the  proof  is  directed  is  unproved,  not  in  some  par- 
ticular or  particulars  but  in  its  entire  scope  and  meaning,  it  shall 
not  be  deemed  a  case  of  variance,  but  a  failure  of  proof.  In  such 
a  case  the  variance  cannot  be  disregarded  or  amended  to  conform 
to  the  proof.*  The  provision  is  in  effect  another  version  of  the 
rule  which  forbids  the  introduction  of  a  new  cause  of  action  by 
amendment.^ 

10.  Amendment  of  the  Ad  Damnum— «.  Not  a  New  Cause  of 
Action. — Amendments  of  the  ad  davinum  are  never  deemed  to 


1.  Wheaton  v.  Voorhis,  53  How.  Pr. 
(N.  Y.  Supreme  Ct.)  319;  Rutty  v. 
Consolidated  Fruit  Jar  Co.,  52  Hun 
(N.  Y.)  492;  Smith  v.  Frost,  39  N.  Y. 
Super.  Ct.  3S9;  Barnes  v.  Seligman,  55 
Hun  (N.  Y.)  339;  Alleman  v.  Bowen 
(Supreme  Ct.),  39  N.  Y.  St.  Rep.  822; 
Southvvick  V.  Memphis  First  Nat. 
Bank,  84  N.  Y.  420  ;  Cunningham  v. 
Hobart,  7  Gray  (Mass.)  423;  Seymour 
V.  Fisher,  16 Colo.  188;  Robinson  C.  M. 
Co.  V.  Johnson,  13  Colo.  258;  Cincin- 
nati, etc.,  R.  Co.  V.  Bunnell, 61  Ind.iS3. 

Objection  Reserved. — Where  the  par- 
ties consented  that  all  objections  to 
the  evidence  might  be  reserved  until 
the  close  of  the  trial,  it  was  held  that 
an  objection  made  at  that  time  was 
effectual.  Johnson  v.  Mcintosh,  31 
Barb.  (N.  Y.)  267. 

Proper  Time  for  Amendment. — If  any 
amendment  to  the  pleadings  was 
necessary,  it  should  be  made  prior  to 
the  introduction  of  the  evidence  if  the 
evidence  is  objected  to.  Beard  v. 
Tilghman,  66  Hun  (N.  Y.)  12,  20  N. 
Y.  Supp.  736. 

2.  Egert  v.  Wicker,  10  How.  Pr.  (N. 
Y.  Supreme  Ct.)  193;  Whitcomb  v. 
Hungerford,  42  Barb.  (N.  Y.)  177; 
Vrooman  v.  Jackson,  6  Hun  (N.  Y.) 
326;  Reed  v.  McConnell,  133  N.  Y.  425; 
Texier  v.  Gonin.  5  Duer  (N.  Y.)  389; 
Moore  v.  McKibbin,  33  Barb.  (N.  Y.) 
246;  Patterson  v.  Patterson,  i  Rob. 
(N.  Y.)  184;  Cowenhoven  v.  Brooklyn, 
38  Barb.  (N.  Y.)  9.  Where  a  note  is  al- 
leged to  be  due  "one  day  after  date," 
a  note  admitted  in  evidence  payable 
' '  one after  date  "  does  not  consti- 
tute a  failure  of  proof.  Brownlee  v. 
Keoneipp,  41  Ind.  216. 

Radical  Change  in  Plaintiff's  Title. — 
After  issue  joined  in  an  action 
brought  to  recover  the  possession  of 
personal  property  the  plaintiff    died. 


and  thereafter  the  action  was  revived 
in  the  name  of  his  widow  as  executrix. 
Upon  the  trial  it  appeared  that  the 
husband  had  no  title  to  the  property, 
but  that  the  same  was  owned  by  the 
wife  in  her  own  right.  It  was  held 
that  the  court  had  no  power  to 
amend  the  summons  and  complaint 
by  striking  out  the  word  "executrix" 
and  thus  allow  the  plaintiff  to  recover 
by  virtue  of  her  own  title  to  the  prop- 
erty. Phillips  V.  Melville,  10  Hun(N. 
Y.)  211. 

False  Imprisonment  and  Malicious 
Prosecution. — An  action  for  false  im- 
prisonment cannot  be  changed  on  the 
trial  by  adding  a  count  for  malicious 
prosecution,  the  plaintiff  having  rested 
his  case  and  failed  to  sustain  his 
action  in  its  original  form.  Waldheim 
V.  Sichel,  I  Hilt.  (N.  Y,)  45. 

Recovery  Against  Defendant  Not 
Charged. — In  a  suit  against  two  de- 
fendants demanding  damages  against 
only  one,  after  a  verdict  "  in  favor  of 
the  plaintiff  "  for  a  certain  sum  the 
complaint  cannot  be  amended  ro  as  to 
demand  damages  against  both  defend- 
ants. Bradley  z/.  Shafer  (Supreme  Ct.), 
19  N.  Y.  Supp.  140. 

Objection  on  the  Trial. — In  Doyle  v. 
Mulren,  7  Abb.  Pr.  N.  S.  (N.  Y.  Super. 
Ct.)  258,  it  was  held  that  an  objection 
for  failure  of  proof  must  be  distinctly 
taken  on  the  trial  in  order  to  be  avail- 
able on  appeal. 

3.   See  supra.  III,  6. 

Amending  to  Recover  Nominal  Dam- 
ages.— In  Bangor,  etc.,  R.  Co.  v. 
Smith,  49  Me.  9,  it  was  held  that  if 
plaintiffs  fail  to  establish  their  right, 
as  set  forth  in  their  declaration,  they 
will  not  be  allowed  to  amend  by  mak- 
ing a  different  description  of  their 
cause  of  action  so  that  they  may  re- 
cover nominal  damages. 


586 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


constitute  a  new  cause  of  action.  Hence  that  frequent  ground  of 
objection  will  not  hold  at  any  stage  of  the  case  against  amend- 
ments increasing  or  reducing  the  amount  demanded.* 

b.  Before  Trial — By  increasing  or  Reducing.— It  is  proper  to  allow 
the  plaintiff  to  amend  his  declaration  or  complaint  before  trial 
by  increasing  the  ad  dajnmun.^  And  it  is  very  much  a  matter  of 
course  to  allow  it  to  be  reduced  by  amendment.' 


1.  Harris  v.  Belden,  4S  Vt.  478; 
Mcllhenny  v.  Lee,  43  Tex.  205;  Raleigh 
V.  Cook,  60  Tex.  438  ;  Burleigh  v. 
Merrill,  49  N.  H.  35,  where  the  sum 
demanded  was  originally  left  blank; 
Reed  v.  New  York,  97  N.  Y.  620;  John- 
son V.  Brown,  57  Barb.  (N.  Y.)  118; 
Frankfurter  v.  Home  Ins.  Co.  (City 
Ct.)  26  N.  Y.  Supp.  81;  Arrigo  v.  Cata- 
lano  (Super.  Ct.),  27  N.  Y.  Supp.  995; 
Epperly  v.  Little,  6  Ind.  344;  Webb  v. 
Thompson,  23  Ind.  428;  McOmber  v. 
Balow,  40  Minn.  32S;  Chamberlain  v. 
Mensing,  51  Fed.  Rep.  511.  See  also 
Townsend  Nat.  Bank  v.  Jones,  151 
Mass.  454. 

2.  Eaton  v.  Case,  17  R.  I.  429;  May 
V.  State  Bank,  9  Ind.  233;  Gaff  v. 
Hutchinson,  38  Ind.  341;  Webb  v. 
Thompson,  23  Ind.  42S;  Reed  v.  New 
York,  97  N.  Y.  620;  Brady  v.  Cassidy 
(C.  PI.),  37  N.  Y.  St.  Rep.  591;  Mer- 
chant V.  New  York  L.  Ins.  Co.,  2 
Sandf.  (N.  Y.)  669;  Gregg  v.  Gier,  4 
McLean  (U.  S.)  208;  Bogart  v.  Mc- 
Donald, 2  Johns.  Cas.  (N.  Y.)  219, 
with  leave  to  the  defendant  to  plead 
de  novo;  Topeka  v.  Sherwood,  39  Kan. 
690,  where  the  court  refused  to  allow 
defendant  time  to  file  an  amended  an- 
swer; Graves  v.  New  York,  etc.,  R. 
Co.,  160  Mass.  402;  Capron  v.  Thomp- 
son, 3  Met.  (Mass.)  59;  Danielson  v. 
Andrews,  i  Pick.  (Mass.)  156,  where 
the  ad  damnum  was  increased  so  as  to 
give  the  right  to  appeal;  Merrill  v. 
Curtis,  57  Me.  152,  a  strong  case;  Mc 
Leilan  v.  Crofton,  6  Me.  307;  Brown 
V.  Cribbs,  24  Ark.  248;  McDonald  v. 
Chicago,  etc.,  R.  Co.,  26  Iowa  124; 
Geren  v.  Wright,  8  Smed.  &  M.  (Miss.) 
360.     See  infra,  V,  2. 

After  Demurrer  for  Want  of  Jurisdiction. 
— In  McDannell  v.  Cherry,  64  Tex. 
177,  it  was  held  that  a  mistake  in  plac- 
ing the  value  of- the  claim  sued  on  be- 
low the  jurisdiction  of  the  court  may 
be  cured  by  amendment  after  demur- 
rer for  want  of  jurisdiction,  unless 
the  value  stated  in  the  amended  peti- 
tion be  fictitious. 

To  Cover  Punitive  Damages. — It  is  not 


the  practice  to  allow  an  amendment 
increasing  the  ad  damnum  where  it  is 
sought  to  recover  vindictive  damages. 
McGuckin  v.  Sister,  2  Edm.  Sel.  Cas. 
(N.  Y.)  466. 

Notice  of  Amendment. — An  amended 
petition  claiming  a  larger  amount 
than  is  demanded  in  the  original  is 
material  and  should  be  served  upon 
the  defendant  and  regularly  put  at 
issue;  and  when  this  is  not  done  it 
will  be  presumed  that  the  plaintiff  has 
waived  or  abandoned  it.  Clark  v. 
Holbrook,  14  La.  Ann.  581. 

That  defendant  is  entitled  to  notice 
of  an  amendment  increasing  the  ad 
damnu?n,  see  also  Hittson  v.  Gentry, 
2  Tex.  Civ.  App.  670;  Meyer  v.  North 
River  Construction  Co.,  53  N.  Y. 
Super.  Ct.  387. 

3.  Carlyon  v.  Lennan,  4  Nev.  156; 
Whitcomb  v.  Straw,  60  N.  H.  117; 
Pierce  v.  Strickland,  2  Story  (U.  S.) 
292;  Harvey  v.  Ferguson,  10  Ind.  393, 
and  Brown  v.  Lewis,  10  Ind.  232, 
where  the  amount  originally  claimed 
was  bevond  the  jurisdiction  of  the 
court.  The  situation  was  the  same  in 
Epperly  v.  Little,  6  Ind.  344,  and  the 
amendment  was  allowed  after  motion 
to  dismiss  for  want  of  jurisdiction. 
Converse  v.  Damariscotta  Bank,  15 
Me.  431 ;  Hart  v.  Waitt,  3  Allen  (Mass.) 
532;    Whitney  v.  Sears,  16  Vt.  587. 

In  a  state  court  the  ad  damnum  may 
be  reduced  in  order  to  oust  the  juris- 
diction of  the  federal  courts.  Spiers 
V.  Halsted,  74  N.  Car.  620. 

Plaintiff's  Purpose  Immaterial. — Upon 
the  case  being  called  for  trial,  it  is 
error  to  refuse  to  allow  a  plaintiff  to 
strike  out  a  claim  for  damages  with- 
out regard  to  the  purpose  which  may 
influence  him.  Grass  Valley  Quartz 
Min.  Co.  V.  Stackhouse,  6  Cal. 
413- 

Reducing  Claim  in  Writ  of  Entry. — The 
court  may  permit  a  demandant  in  a 
writ  of  entry  or  a  writ  of  right  to 
amend  his  declaration  by  diminishing 
the  extent  of  his  claim  even  after  a 
verdict  is  returned  into  court  and  be- 


587 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law.  under  Codes,  etc. 


Filling  a  Blank.— The  declaration  may  be  amended  by  inserting  the 
amount  of  the  plaintiff's  claim  when  the  sum  was  left  blank  in  all 
cases  where  the  court  has  jurisdiction  of  the  case.* 

After  Plea  in  Abatement.— The  ad  damtium  in  the  declaration  may  be 
amended  to  conform  to  the  sum  laid  in  the  writ  even  after  plea  in 
abatement  for  the  defect.* 

c.  On  the  Trial. — The  court  may  properly  allow  an  amend- 
ment upon  the  trial  increasing  the  ad  datniimn.'^ 

To  Conform  to  Proof. — The  ad  damnum  may  be  increased  by  amend- 
ment so  as  to  conform  to  the  proof.'* 


fore  it  is  affirmed.  Plummer  z'.  Walker, 
24  Me.  14. 

1.  Burleigh  v.  Merrill,  49  N.  H.  35; 
Flanders  v.  Atkinson,  18  N.  H.  167; 
Boddie  v.  Ely,  3  Stew.  (Ala.)  182; 
Eaton  V.  Case,  17  R.  I.  429.  See  also 
Merrill  v.  Curtis,  57  Me.  152;  Stephens 
V.  White,  2  Wash.  (Va,)  203. 

In  Eaton  v.  Case,  17  R.  I.  429,  the 
court  said:  "  Plaintiff's  contention  is 
that  the  absence  of  the  ad  damnum  was 
fatal,  citing  Hoit  v.  Molony,  2  N.  H. 
322;  Deveau  v.  Skidmore,  47  Conn.  19. 
In  both  of  these  cases  the  defect  was 
in  the  writ  and  not  in  the  declaration.' 
It  was  held  that  the  process  did  not 
set  forth  a  demand  nor  ask  for  judg- 
ment for  any  sum  against  the  defend- 
ant, and  hence  did  not  set  forth  a  cause 
of  action  within  the  jurisdiction  of  the 
court  to  which  the  process  was  re- 
turnable, such  jurisdiction  being  lim- 
ited by  statutory  provisions.  The 
ground, of  those  decisions  was  that,  as 
jurisdiction  must  appear  in  the  pro- 
cess, there  was  nothing  in  court  upon 
which  to  grant  an  amendment,  and 
hence  it  must  be  dismissed.  In  the 
later  case  of  Taylor  v.  Jones,  42  N. 
H.  25,  it  was  held  that  the  ad  damnum 
mayvbe  amended  after  verdict  when  it 
is  apparent  from  the  declaration  that 
it  was  left  blank,  or  too  small  a  sum  in- 
serted through  mistake  orinadvertence 
only.  *  *  *  McLellan  v.  Crofton,  6 
Me.  307,  went  further  by  holding  that 
the  ad  damnum  clause  in  the  writ 
which  had  been  left  blank  might  be 
amended  after  verdict  by  inserting 
a  sufficient  sum  to  cover  the  verdict. 
See  also  Clark  v.  Herring,  5  Binn. 
(Pa.)  33.  In  the  present  case  the 
amendment  was  granted  before  the 
trial,  and  so  the  defendant  had  full 
opportunity  to  contest  the  amount 
claimed.  We  think  the  granting  of 
the  amendment  was  proper."  See  also 
Wright  V.  Potomska  Mills  Corp.,  138 


Mass.   328;    Hook  z/.  Turnbull,  6  Call. 
(Va.)  85. 

2.  Morton  v.  Smith,  4  T.  B.  Mon. 
(Ky.)3i3. 

3.  Johnson  v.  Brown,  57  Barb.  (N. 
Y.)  118;  Miaghan  v.  Hartford  F.  Ins. 
Co.,  24  Hun  (N.  Y.)  58;  Chamberlain 
V.  Mensing  (S.  Car.),  51  Fed.  Rep. 
511;  Austin  V.  Northern  Pac.  R.  Co., 
34  Minn.  473. 

In  Pennsylvania,  under  the  act  of 
1806,  the  court  had  power  to  allow  the 
ad  damfium  to  be  increased  on  the  trial. 
Clark  V.  Herring,  5  Binn.  (Pa.)  33; 
Miles  V.  O'Hara,  i  S.  «&  R.  (Pa.)  32, 
before  the  jury  was  sworn;  Tassey  v. 
Church,  4  W.  &  S.  (Pa.)  141. 

When  Not  Allowed. — An  amendment 
at  the  trial  which  increases  the  amount 
claimed  to  an  amount  suflBcient  to  en- 
title the  defendant  to  a  removal  of 
the  case,  if  it  had  been  made  at  a  prior 
stage,  cannot  properly  be  allowed. 
Balch  V.  Wurzburner  (C.  PI.),  29  N.  Y. 
Supp.  62. 

Daring  the  Argument. — An  amend- 
ment curing  a  clerical  error  in  the 
ad  damnum  clause  may  be  allowed  du- 
ring the  argument  to  the  jury  and 
without  terms.  Borden  v.  Clark,  26 
Mich.  410. 

But  in  Brewer  v.  Jacobs,  22  Fed. 
Rep.  217,  it  was  held  reversible  error 
to  allow  an  amendment  during  the  ar- 
gument so  as  to  cure  a  defect  in  the 
averments  relating  to  damage  sus- 
tained without  at  least  reopening  the 
case  to  give  the  defendant  an  op- 
portunity to  introduce  further  proof. 

In  Currie  v.  Natchez,  etc.,  R.  Co., 
61  Miss.  725,  an  amendment  increas- 
ing the  ad  damnum  during  the  argu- 
ment was  held  not  prejudicial  to  the 
defendant  where  the  jury  rendered  a 
verdict  for  a  sum  less  than  that  de- 
clared for  originally. 

4.  Barth  v.  Walther,  4  Duer  (N.  Y.) 
228;  Cargain   v.  Everett,  62  Hun  (N. 


588 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


d.  After  Verdict  or  Referee's  Report. — Where  a  verdict 
is  for  a  sum  larger  than  the  ad  damtiutn,  the  difficulty  may  always 
be  remedied  by  entering  a  remittitur;*  and  the  ad  dammim  may 
be  amended  after  verdict  or  report  of  a  referee  when  it  is  appar- 
ent that  it  was  left  blank,  or  that  too  small  a  sum  was  inserted 
through  mistake  or  inadvertence.* 

Upon  Eelinquishing  the  Verdict.— In  all  actions  for  the  recovery  of  dam- 
ages, whether  sounding  in  tort  or  on  contract,  the  court  has  no 
right  to  amend  the  declaration  or  complaint  after  verdict  by  in- 
creasing the  amount  of  damages  for  which  judgment  is  demanded 
without  setting  aside  the  verdict,  requiring  the  plaintiff  to  pay 
the  costs  of  the  trial  already  had,  and  granting  a  new  trial  to  en- 
able the  defendant  to  contest  the  enlarged  demand.'  This  was 
the  old  rule,"*  and  is  adhered  to  in  the  practice  under  the  Codes.* 

After  Merits  Fully  Litigated.— If  there  has  been  a  full  and  fair  trial  on 
the  merits,  an  amendment  increasing  the  ad  damnum  may  be 
allowed  without  granting  a  new  trial.® 


Y.)  620;  Davis  V.  Smith,  14  How.  Pr. 
(N.  Y.  Supreme  Ct.)  187;  Arrigo  v. 
Catalano  (Super.  Ct.),  27  N.  Y.  Supp. 
995;  Frankfurter  v.  Home  Ins.  Co. 
(City  Ct.)  26  N.  Y.  Supp.  81;  Cain  v. 
Cody  (Cal.,  1892),  29  Pac.  Rep.  778. 

1.  See  Taylor  v.  Jones,  42  N.  H.  25; 
Lambert  v.  Blackman,  i  Blackf.  (Ind.) 
59;  Kenyon  r.  Woodward,  16  Mich. 326; 
Williamson  v.  Canaday,  3  Ired.  (N. 
Car.)  349,  and  zXso  post.  Remittitur. 

2.  Taylor  v.  Jones,  42  N.  H.  25; 
Trego  V.  Lewis.  58  Pa.  St.  463;  Harris 
V.  Belden,  48  Vt.  478  ;  Frankfurter 
V.  Home  Ins.  Co.  (City  Ct.),  26  N.  Y. 
Supp.  81;  Arrigo  v.  Catalano  (Super. 
Ct.),  27  N.  Y.  Supp.  995;  Davis  v. 
Smith,  14  How.  Pr.  (N.  Y.  Supreme 
Ct.)  187;  Cargain  v.  Everett,  62  Hun 
(N.  Y.)  620,  16  N.  Y.  Supp.  668;  Earth 
V.  Walther,  4  Duer  (N.  Y.)  228.  See 
also  Tomlinson  v.  Earnshaw,  112  111. 
311.  Cox  V.  Burlington,  etc.,  R.  Co., 
76  Iowa  478,  holds  that  the  amendment 
ought  not  to  be  allowed. 

Amendment  Exceeding  Verdict. — It  is 
not  error  to  allow  an  amendment  in- 
creasing the  ad  damnutn  to  an  amount 
exceeding  the  verdict  upon  the  usual 
terms  of  paying  costs  and  consenting 
to  a  new  trial,  where  the  defendant 
does  not  object  to  its  allowance.  Elt- 
ing  z/.Campbell  (District  of  New  York), 
5  Blatchf.  (U.  S.)  183. 

3.  Elting  V.  Campbell  (District  of 
New  York),  5  Blatchf.  (U.  S.)  183; 
Bowman  v.  Earle,  3  Duer  (N.  Y.)  691; 
Dox  V.  Dey,  3  Wend.  (N.  Y.)  356; 
Curtiss  V.  Lawrence,  17  Johns.  (N.  Y.) 


hi;  Fish  z/.  Dodge,  4  Den.  (N.  Y.)  311; 
Girard  v.  Stiles,  4  Yeates  (Pa.)  i; 
Pierce  v.  Northey,  14  Wis.  9;  Coulter 
V.  American,  etc..  Express  Co.,  5  Lans. 
(N.  Y.)  67,  where  the  allowance  of  an 
amendment  without  such  terms  was 
held  erroneous  and  reviewable  on  ap- 
peal; Taylor  v.  Jones,  42  N.  H.  25; 
Kenyon  v.  Woodward,  16  Mich.  326. 
See  Stephens  v.  Sweeney,  2  Gilm.  (7 
111-)  375. 

4.  See  the  cases  cited  in  the  pre- 
ceding note. 

English  Cases. — The  following  are 
English  cases  relating  to  amendments 
of  the  ad  damnum  after  verdict: 
Dowkes  V.  Pilfield,  Cro.  Jac.  297;  Pil- 
ford's  Case,  10  Coke,  115;  Chewly  v. 
Morris,  2'W.  Bl.  1300;  Tomlinson  v. 
Blacksmith,  7  T.  R.  128  ;  Pearse  v. 
Cameron,  i  M.  &  S.  675;  Skutt  v. 
Woodward,  i  H.  Bl.  238;  Wilder  v. 
Hendy,  2Str.  1151;  Marshall  z/.  Riggs, 
2  Str.  1162;  YsTier  v.  Dansey,  4  M.  & 
S.  94;  Perseval  v.  Spencer,  Yelv.  45; 
Green  v.  Rennet,  i  T.  R.  782. 

6.  Corning  v.  Corning,  6  N.  Y.  97; 
Bradley  v.  Shafer  (Supreme  Ct.),  19 
N.  Y.  Supp.  640;  Decker  v.  Parsons, 
II  Hun  (N.  Y.)  295,  holding  that  the 
same  rule  applies  to  an  action  tried 
before  a  judge  without  a  jury  by  con- 
sent; Pharis  v.  Gere,  31   Hun  (N.  Y.) 

443- 

6.  Barth  v.  Walther,  4  Duer  (N.  Y.) 
228,  an  amendment  to  conform  to  the 
proofs  after  report  of  a  referee;  Car- 
gain  V.  Everett,  62  Hun  (N.  Y.)  620; 
Davis  V.  Smith,  14   How.   Pr.  (N.   Y. 


5S9 


Of  Pleadings,  etc.,  at  AM  EN D  M EN  TS.   Common  Law,  under  Codes,  etc. 


e.  After  Judgment. — Wh&re  a  judgment  is  rendered  upon  a 
verdict  for  an  amount  exceeding  the  ad  daimmni  in  the  complaint 
or  declaration,  it  is  erroneous  and  cannot  be  validated  by  amend- 
ment *  without  express  authority.^ 

11.  At  What  Stage  of  Proceedings — a.  BEFORE  Trial — (i)  In  Gen- 
eral.— It  is  a  well-settled  rule  that  it  is  almost  a  matter  of  course 
to  permit  parties  to  amend  their  pleadings  before  trial  when  the 
amendment  will  not  delay  the  trial  nor  work  any  special  hardship 
to  the  adverse  party.^  The  court  may  allow  an  amendment  in- 
creasing the  ad  dainmun*'  and  the  plaintiff  should  always  be 
allowed  to  strike  out  a  claim  for  damages  regardless  of  the  pur- 
pose which  may  influence  him.*  In  some  jurisdictions  an  amend- 
ment may  be  allowed  which  introduces  a  new  cause  of  action  or 
a  new  defense.* 

After  Change  of  Venue. — Amendments  may  be  allowed  by  the  court 
to  which  a  cause  is  removed  by  a  change  of  venue.'^ 

Supreme  Ct.)  187;  Arrigo  v.  Catalano 
(Super.  Ct.),  27  N.Y.  Supp.  995;  Frank- 
furter V.  Home  Ins.  Co.  (City  Ct.),  26 
N.  Y.  Supp.  81.  See  also  Cicotte  v. 
Wayne  County,  59  Mich.  509;  dictum 
in  Taylor  v.  Jones,  42  N.  H.  25. 

1.  Kenyon  v.  Woodward,  16  Mich. 
326;  McLellan  v.  Crofton,  6  Me.  307, 
holding  that  it  is  not  a  circumstantial 
error  within  the  Maine  statute  of 
jeofails;  May  v.  State  Bank,  9  Ind. 
233,  to  the  same  point.  See,  however. 
Hook  V.  Turnbull,  6  Call  (Va.)  85, 
where  it  was  held  that  if  the  damages 
are  omitted  from  the  declaration,  as 
the  omission  might  be  amended  by  the 
writ, the  Court  of  Appeals  will  consider 
the  declaration  as  in  fact  amended. 
And  in  Kennedy  v.  Woods,  3  Bibb 
(Ky.)  322,  the  court  arrived  at  the 
same    result    where    the    verdict    and 


ment.  Grist  v.  Hodges,  3  Dev.  (N. 
Car.)  203;  State  v.  Broughton,  7  Ired. 
(N.  Car.)  92.  See  Williamson  v.  Cana- 
day,  3  Ired.  (N.  Car.)  349. 

3.  Gilchrist  v.  Gilchrist,  44  How. 
Pr.  (N.'  Y.  Supreme  Ct.)  317,  where 
the  defendant  was  allowed  to  amend 
his  answer  by  setting  up  the  statute 
of  limitations.  Benson  v.  McNamee, 
(Supreme  Ct.)  12  N.  Y.  St.  Rep.  503, 
holding  it  reversible  error  to  dismiss 
the  complaint  without  leave  to  amend; 
Tannebaum  v.  Marsellus  (City  Ct.), 
52  N.  Y.  St.  Rep.  426,  holding  that  a 
counterclaim  is  not  an  unconscionable 
defense;  Denairz/.  Brooklyn  (Citv  Ct.), 
5  N.Y.  Supp.  835;  Balch  v.  Smith,  4 
Wash.  St.  504;  Young  v.  Gay,  41  La. 
Ann.  758;  Pickett  v.  Haynes,  28  La. 
Ann.  844;  McMillan  v.  Dana,  18  Cal. 
339;  Zimmerman  v.  Amaker,  10  S.  Car. 
judgment  exceeded  the  ad  damnum  in    ,98;  Dyer  v.  Brackett,  61  Me.  587;  Mc- 


the  declaration,  but  were  less  than  the 
sum  laid  in  the  writ. 

Pending  Appeal. — A  plaintiff  cannot 
amend  his  petition  so  as  to  increase 
his  claim  for  damages  after  appeal  and 
while  the  case  is  pending  in  the  appel- 
late tribunal.  Johnson  v.  Chaplin,  28 
Iowa  570. 

On  Appeals  to  Intermediate  Appellate 
Courts. — As  to  amendments  increasing 
the  ad  dammim  upon  appeals  from 
justice  courts  to  county,  circuit,  or 
district  courts,  see  McOmberz/.  Balow, 
40  Minn.  388;  Cross  v.  Eaton,  48  Mich. 
184;  Evers  v.  1  Sager,  28  Mich.  47; 
Bickett  V.  Garner,  21  Ohio  St.  659. 

2.  By  the  acts  of  1790  and  1824,  the 
Supreme  Court  of  North  Carolina  had 
authority   to    make   such   an  amend- 


Fadden  v.  Stark,  58  Ark.  7;  Greer 
Louisville,  etc.,  R.  Co.  (Ky.,  1893),  21 
S.  W.  Rep.  649;  Pangborn  v.  Conti- 
nental Co.,  67  Mich.  683.  See  also 
Thomas  v.  Com.,  8  B.  Mon.  (Ky.)  371. 

The  declaration  maybe  amended  so 
as  to  change  the  venue.  Pain  v.  Par- 
ker, 13  Johns.  (N.  Y.)  329;  Fish  v. 
Lyon,  I  How.  Pr.  (N.  Y.)  234. 

The  declaration  may  be  amended  to 
conform  to  the  writ.  Fallmer  z/.  Steele, 
I  Cai.  (N.  Y.)  22. 

4.    See  supra.  III,  10,  b. 

6.  Grass  Valley  Quartz  Min.  Co.  v. 
Stackhouse,  6  Cal.  413. 

6.  See  supra.  III,  6,  a,  note. 

7.  Hughes  V.  McDivit,  102  Mo.  77. 
But  the  refusal  to  allow  an  amend- 
ment will  not  be  reviewed  except  for  a 


59° 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


45- 

Beall  V.  Territory,   t  New  Mex. 


After  Plea  in  Abatement. — If  the  matter  of  a  proposed  amendment  to 
a  complaint  is  proper,  the  pendency  of  a  plea  in  abatement,  the 
legal  effect  of  which  the  amendment  may  obviate,  is  rather  a 
reason  for  than  an  objection  to  its  allowance.*  Thus  an  amend- 
ment may  be  allowed  after  plea  in  abatement  for  a  defect  in 
bringing  suit  in  the  name  of  an  infant  without  a  next  friend,*  or 
because  the  declaration  does  not  conform  to  the  writ,'  or  for  want 
of  parties,'*  or  for  coverture  of  the  plaintifT,'  or  for  misnomer,® 
or  misjoinder  of  defendants.'' 

Statutes  sometimes  provide  for  amendment  after  the  proceeding 
has  been  actually  abated.^ 

(2)  After  Demurrer — The  General  Eule. — By  the  ancient  practice 
no  amendment  was  permitted  after  demurrer  without  the  consent 
of  the  adverse  party,  upon  the  principle  that  if  a  party  chooses  to 
rest  his  defense  or  his  case  upon  a  point  of  law,  raised  upon  the 
record,  he  must  stand  or  fall  upon  the  point  so  raised.* 

clear    abuse    of     discretion.      Shelby  issue  on  the   plea.     Heslep  v.  Peters, 

County  V.  Castetter,  7  Ind.  App.  309.  4  111 

1.  Foster  v.  Napier,  73  Ala.  595.  7. 
In  Mohr  v.  Sherman,  25  Ark.  7,  the  507. 

court  said:  "  This  court,  in  the  case  of  8. 
Anthony  v.  Beebe,  7  Ark.  447,  dis-  420, 
tinctly  ruled  that  the  motion  to  amend 
must  be  made  in  apt  time,  and  if  not 
made  before  the  defect  is  pointed  out 
by  a  plea  in  abatement  for  that  cause 
it  cannot  be  made  afterwards  so  as  to 
defeat  the  plea;  but  this  decision  has 
in  effect  been  ov^erruled  by  the  case  of 
McLarren  z/.Thurmand,8  Ark.  314,  and 
Anthony  v.  Humphries,  ir  Ark.  664; 
and  directly  by  the  case  of  Mitchell  v. 
Conley,  13  Ark.  419;  and  the  question 
as  to  the  amendment  is  left  to  the  dis- 
cretion of  the  court,  as  it  was  before 
the  case  of  Anthony  v.  Beebe,  7  Ark. 
447."  See  also  Hetten  v.  Lane,  43 
Tex.  279. 

2.  The  name  of  a  next  friend  was 
inserted  by  amendment.  Blood  v. 
Harrington,  8  Pick.  (Mass.)  552. 

3.  Morton  v.  Smith,  4  T.  B.  Mon. 
(Ky.)  313,  where  the  variance  was  in 
the  amount  of  damages  claimed;  Mohr 
V.  Sherman,  25  Ark.  7;  Gilpin  v.  Ebert, 
2  Colo.  23. 

4.  Powell  V.  Myers,  i  Barb.  (N.  Y.) 
427. 

5.  Jacobs  V.  Cunningham,  32  Tex. 
774,  where  the  plaintiff  was  allowed  to 
amend  by  averring  her  husband's  in- 
sanity as  a  reason  for  not  joining 
him. 

6.  The  misnomer  of  the  defendant 
was  pleaded  in  abatement,  and  the 
plaintiff  was  allowed  to  amend  after 
demurrer  to  the  plea  and  then  to 
withdraw    his     demurrer     and     take 


In  Connecticut,  Gen.  Stat.,  1876,  p. 
§  12,  provides  that  if  any  plea 
in  abatement  of  any  process  be  ruled 
in  favor  of  the  defendant,  the  plaintiff 
may  amend  the  defect  on  paying  the 
defendant  his  costs  up  to  that  time. 
It  was  held  that  this  statute,  in  con- 
nection with  the  act  of  1875  providing 
for  adding  new  parties,  authorized  an 
amendment  by  citing  in  new  defend- 
ants after  the  writ  had  been  abated, 
and  where  there  was  no  cause  of  ac- 
tion against  the  original  defendant. 
Hilton  V.  Osgood,  49  Conn.  no. 

9.  I  Tidd  Pr.  (4th  Am.  ed.)  709; 
Bramah  v.  Roberts,  i  Bing.  N.  Cas. 
481,  27  E.  C.  L.  466.  See  also  Wood 
V.  Anderson,  25  Pa.  St.  407. 

After  Judgment  on  General  Demurrer. 
— After  judgment  against  the  plaintiff 
on  general  demurrer  to  his  declaration 
he  could  not  have  leave  to  amend. 
Chalk  V.  McAlily,  10  Rich.  (S.  Car.)  92; 
Moore  v.  Burbage,  2  McMuIl.  (S.  Car.) 
168;  Bagley  v.  Johnston,  4  Rich.  (S. 
Car.)  22.  See  also  McAlister  v.  Clark, 
33  Conn.  253;  Hart  v.  Bowie,  34  La. 
Ann.  323.  Otherwise  after  joinder  in 
demurrer  but  before  judgment.  Good- 
win V.  Hannah,  5  Strobh.  (S.  Car.) 
157;  Mobley  v.  Mobley,  7  Rich.  (S. 
Car.)  431. 

After  a  demurrer  to  a  plea  for  a  bad 
conclusion  was  sustained  the  defend- 
ant was  denied  leave  to  amend.  Flem- 
ing V.  Howard,  i  Brev.  (S.  Car.)  465. 

Where  a  plea  was  filed  by  a  wrong 
Christian  name  of  the  defendant,  and 


591 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

The  strictness  of  the  rule  was  gradually  relaxed,  first  by  requir- 
ing that  the  amendment  should  be  made  only  while  the  proceed- 
ings were  in  paper  before  the  argument  of  the  demurrer.*  next 
before  the  opinion  of  the  court  had  been  pronounced,*  and  at 
length  before  the  judgment  had  been  rendered;*  and  in  modern 
practice  amendments  may  be  made  even  after  judgment  upon 
demurrer  whenever  the  substantial  ends  of  justice  require  it."* 


the  plaintiff  demurred  generally  to  it 
as  the  defendant's  plea,  it  was  held 
that  the  plaintiff  had  waived  any  ex- 
ception for  that  cause  and  that  the  de- 
fendant was  entitled  to  amend  the 
plea.  Hutchinson  v.  Brock,  ii  Mass. 
119. 

After  a  general  demurrer  to  a  dec- 
laration has  been  sustained  and  af- 
firmed on  appeal  without  condition  or 
direction  the  declaration  is  not  amend- 
able. Central  R.,  etc.,  Co.  v.  Pater- 
son,  87  Ga.  646,  overruling,  pro  tatito, 
King  V.  King,  45  Ga.  195. 

Under  Maine  Rev.  Stat.,  c.  82,  §23, 
when  exceptions  are  taken  to  the  over- 
ruling of  a  general  demurrer  the  same 
must  be  passed  upon  by  the  law  court 
before  an  amendment  to  the  declara- 
tion can  be  allowed  at  nisi  prius. 
Shorey  v.  Chandler  (Me.,  1S88),  15 
Atl.  Rep.  24. 

After  Jndgment  on  Special  Demurrer. — 
After  judgment  sustaining  a  special 
demurrer  an  amendment  was  allowed 
on  payment  of  costs  although  an 
amendment  had  once  before  been 
granted.  Hallock  v.  Robinson,  2  Cai. 
(N.  Y.)  233.  See  also  Murphy  v. 
Lawrence,  2  Ga.  257;  Davis  v.  Evans, 
2  Murph.  (N.  Car.)  202. 

1.    I  Tidd  Pr.  (4th  Am.  ed.)  709. 

In  Wood  V.  Wilmington  Confer- 
ence Academy,  5  Houst.  (Del.)  513; 
Randel  v.  Canal  Co.,  i  Harr.  (Del.) 
151;  and  Easton  v.  Jones,  i  Harr. 
(Del.)  433,  n.  a,  leave  to  amend  after 
argument  on  general  demurrer  was 
refused. 

In  Walker  v.  Maxwell,  i  Mass.  104, 
defendant  had  leave  to  amend  his 
plea,  after  argument  of  a  demurrer, 
upon  payment  of  the  costs. 

After  Joinder  in  Demurrer. — In  Lan- 
ning  V.  Shute,  5  N.  J.  L.  778,  the 
plaintiff  was  allowed  to  amend  his 
declaration  after  joinder  in  demurrer. 

In  Perkins  v.  Burbank,  2  Mass.  81, 
the  court  would  not  allow  an  amend- 
ment or  repleader  after  joinder  in  de- 
murrer when  the  amended  or  new 
plea  did  not  go   to  the  merits.     See 

59 


also  Barker  v.  Glascow,  Tapp.  (Ohio) 
230. 

In  Tennessee  it  has  been  held  that 
where  after  demurrer  to  a  plea  a  new 
plea  is  drawn  out  in  proper  form,  con- 
taining a  good  defense,  and  the  truth 
of  it  is  verified  by  affidavit,  it  would  be 
error  not  to  permit  such  plea  to  be 
filed,  provided  the  motion  was  made 
before  the  demurrer  came  on  for  argu- 
ment. Dockery  v.  Miller,  9  Humph. 
(Tenn.)  731. 

But  that,  on  the  other  hand,  if  the 
amended  pleading  is  not  offered  so 
that  the  court  can  see  that  it  would, 
as  amended,  be  a  good  defense,  it  is 
not  error  to  refuse  leave  to  file  it. 
Rainey  v.  Sanders,  4  Humph.  (Tenn.) 
447-' 

2.  In  Harkins  v.  Edwards,  i  Iowa 
296,  it  was  held  reversible  error  to  re- 
fuse leave  to  plaintiff  to  amend  his 
petition  after  demurrer,  but  before 
any  decision  thereon.  See  also  Bell  v. 
Byerson,  11  Iowa  233. 

3.  In  Hart  v.  Baltimore,  etc.,  R. 
Co.,  6  W.  Va.  336,  it  was  declared  to 
be  the  usual  course,  when  the  opinion 
of  the  court  is  in  favor  of  the  defend- 
ant on  a  demurrer  to  the  whole 
declaration,  to  allow  the  plaintiff  to 
withdraw  his  joinder  in  demurrer  and 
amend  his  declaration.  See  also  Harp 
V.  Bull,  3  How.  Pr.  (N.  Y.)  45;  Morris 
V.  Gentry,  89  N.  Car.  248. 

4.  Greer  v.  Covington  (Ky.,  1885*,  2 
S.  W.  Rep.  323,  and  Terry  v.  Bright,  4 
Md.  430,  where  the  declaration  was 
amended  after  demurrer  sustained. 
See  also  Cayce  v.  Ragsdale,  17  Mo. 
32;  Davis  V.  Burns,  i  Mo.  265;  Hale 
V.  Lawrence,  22  N.  J.  L.  72,  holding 
that  after  a  demurrer  to  a  plea  was 
sustained  the  defendant  might  amend 
his  plea  or  plead  anew. 

Jones  V.  Ritter,  56  Ala.  270,  holds 
that  while  he  may  properly  be  allowed 
to  amend,  he  cannot  claim  the  right  to 
file  an  entirely  new  plea. 

Plaintiff  was  allowed  to  amend  in 
Bean  v.  Ayers,  69  Me.  122;  McGie  v. 
McCann,  69  Me.  79;  Frye  v.  Atlantic, 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


But  a  party  cannot   be  compelled  to  amend  after  a  demurrer  to 
his  pleading  is  sustained.* 


etc.,  R.  Co.,  47  Me.  523;  Hewett  v. 
Thomas,  37  Tex.  520;  HoUis  z^.  Border, 
10  Tex.  360;  Teetshorn  v.  Hull,  30 
Wis.  162;  Johnson  v.  Finch,  93  N.  Car. 
205;  Netherton  v.  Candler,  78  N.  Car. 
88;  Wilbur  v.  Abbot,  6  Fed.  Rep.  817; 
Lake  Bigler  Road  Co.  v.  Bedford,  3 
Nev.  399.  See  Maine  Cent.  Inst.  v. 
Haskell,  71  Me.  487.  Not  allowed  in 
Burbank  v.  Harris,  32  La.  Ann.  395; 
Stephens  v.  Myers,  12  Pa.  St.  302. 

In  Lansing  v.  Birge,  3  111.  375,  leave 
to  amend  was  held  to  be  discretionary, 
and  a  refusal  not  a  subject  of  error. 
But  in  Chicago  Empire  F.  Ins.  Co.  v. 
Real  Estate  Trust  Co.,  i  111.  App.  391, 
it  was  said  to  be  now  the  legal  right 
of  the  party. 

In  Whitfield  v.  Wooldridge,  23  Miss. 
183,  a  denial  of  leave  to  amend  a  dec- 
laration after  demurrer  sustained 
was  held  to  be  reversible  error. 

After  Demurrer  for  Misjoinder. — After 
a  demurrer  to  a  declaration  has  been 
sustained  on  account  of  a  misjoinder 
of  counts  the  court  may  grant  an 
amendment  on  terms.  Wilkinson  v. 
Moseley,  30  Ala.  562.  On  that  point 
the  English  authorities  were  not  en- 
tirely in  harmony.  See  Jennings  v. 
Newman,  4  T.  R.  347.  Nor  the  Amer- 
ican decisions.  Cooper  v.  Bissell,  16 
Johns.  (N.  Y.)  146;  Pell  v.  Lovett,  19 
Wend.  (N,  Y.)  546,  22  Wend.  (N.  Y.) 
369;     Governor     v.     Evans,     i     Ark. 

349- 

After  a  demurrer  sustained  for  a 
misjoinder  of  parties  the  plaintiff 
may  amend.  Butcher  v.  Carleton,  11 
Iowa  47. 

Misjoinder  of  Defendants. — A  com- 
plaint may  be  amended  after  sustain- 
ing a  demurrer  for  a  misjoinder  of 
defendants  by  striking  out  the  name 
of  one  of  them.  Pool  v.  Devers,  30 
Ala.  672. 

Defective  Citizenship. — After  demur- 
rer sustained  for  want  of  an  averment 
of  citizenship  of  the  parties,  it  is  the 
common  practice  to  allow  the  plaintiff 
to  amend.  Fisher  v.  Rutherford,  i 
Bald.  (U.  S.)  188. 

Amending  Flea  Puis  Darrein  Continu- 
ance.— Where  a  plea  puis  darrein  con- 
tinuance is  adjudged  bad  on  demurrer, 
the  court  may  allow  a  repleader  on 
terms.  Field  v.  Cappers,  81  Me.  36; 
Augusta  V.  Moulton,  75  Me.  551.  Or 
the  plea  may  be  withdrawn  after  the 


plaintiff  has  demurred  to  it.     Rixford 
V.  Brown,  10  Pick.  (Mass.)  30. 

Amending  Plea  of  Usury. — A  plea  set- 
ting up  usury  may  be  amended  after  it 
has  been  held  bad  on  demurrer  to  the 
replication;  but  a  plea  setting  up  a 
new  defense  of  usury  would  not  be  al- 
lowed. Utica  Ins.  Co.  v.  Scott,  6 
Cow.  (N.  Y.)6o6. 

Amending  Declaration  in  Real  Action. 
— In  a  real  action,  the  declaration  con- 
taining a  description  of  the  demanded 
premises  adjudged  insufficient  upon 
demurrer  may  be  amended  by  perfect- 
ing the  description.  Bird  v.  Decker, 
64  Me.  550. 

After  Verdict  on  Issues  of  Fact. — 
Where  judgment  is  given  against  the 
plaintiff  on  demurrer  after  verdict  in 
his  favor,  leave  to  amend  will  be 
given  on  his  relinquishing  the  verdict 
and  paying  all  costs  subsequent  to 
the  joining  of  the  issue;  but  where 
the  judgment  is  against  the  defendant 
after  verdict  for  the  plaintiff,  leave  to 
amend  is  not  granted  to  the  defend- 
ant. Fidler  v.  Cooper,  19  Wend.  (N. 
Y.)285. 

Amendment  of  Plea  in  Abatement. — 
After  demurrer  filed  thereto,  a  plea 
in  abatement  cannot  be  amended. 
Brown  v.  Nourse,  55  Me."  230. 

Leave  to  Withdraw  Demurrer.  —  A 
party  may  sometimes  have  leave  to 
withdraw  his  demurrer  after  it  has 
been  argued  and  to  plead  or  reply  de 
novo  in  order  to  let  in  a  trial  on  the 
merits;  but  the  granting  or  withhold- 
ing leave  is  altogether  discretionary. 
I  Tidd  Pr.  (4th  Am.  ed.)  710.  See 
Blackmore  v.  Phill,  7  Yerg.  (Tenn.) 
452;  Mandeville  v.  Wilson,  5  Cranch 
(U.  S.)  15. 

Technical  Defect  in  Beplication. — In 
Bowles  V.  Elmore,  7  Gratt.  (Va.)  385, 
a  technical  defect  in  a  replication  was 
amended  after  demurrer  sustained. 

In  Massachusetts  the  allowance  of  an 
amendment  to  the  declaration  after 
demurrer  sustained  is  discretionary 
and  may  be  denied.  Barlow  v.  Nel- 
son, 157  Mass.  395;  or  allowed,  Webber 
V.  Davis,  5  Allen  (Mass.)  393. 

1.  Riggs  V.  Parsons,  29  W.  Va. 
522. 

Failure  to  Amend. — A  party  who  fails 
to  amend  a  defective  pleading  after 
demurrer  sustained  can  have  no  relief 
in  an  appellate  court.     Pitts  v.  Ennis, 


I  Encyc.  PI.  &  Pr.— 38. 


593 


Of  Pleadings,  etc. ,  at  AM  EN D  M K]\  TS.   Common  Law,  under  Codes,  etft 


Under  Code  Provisions. — Many  of  the  Codes  contain  express  pro- 
visions touching  the  allowance  of  amendments  or  of  permission  to 
plead  anew  after  the  decision  on  demurrer.* 


I  Tex.  604;  Graham  v.  Vining,  i  Tex. 
669. 

After  Af5.rmance  on  Appeal. — Where  a 
declaration  is  adjudged  bad  on  demur- 
rer and  affirmed  in  the  supreme  court, 
the  court  below  will  not  be  directed  to 
permit  the  joinder  in  demurrer  to  be 
withdrawn  and  the  declaration  amend- 
ed. Glenn  v.  Noble,  i  Blackf.  (Ind.) 
104. 

1.  New  York. — The  New  York  Code  of 
Pro.,  ^  497,  provides  that  upon  the  de- 
cision of  a  demurrer  either  at  a  gen- 
eral or  special  term  or  in  the  Court  of 
Appeals, the  court  may  in  its  discretion 
allow  the  party  in  fault  to  plead  anew 
or  amend  upon  such  terms  as  are  just. 
Where  it  is  evident  that  no  amend- 
ment can  make  the  complaint  good, 
leave  will  be  refused.  Lowry  v.  In- 
man,  37  How.  Pr.  (N.  Y.  Super.  Ct.) 
286;  Snow  V.  New  York  Fourth  Nat. 
Bank,  7  Rob.  (N.  Y.)  479. 

On  overruling  a  demurrer  to  a  com- 
plaint as  frivolous,  leave  to  answer 
will  not  be  given  without  an  affidavit 
of  merits.  Appleby  v.  Elkins,  2 
Sandf.  (N.  Y.)  673. 

As  to  the  granting  of  leave  to  an- 
swer by  the  Court  of  Appeals,  see 
Whiting  V.  New  York,  37  N.  Y.  600; 
Fulton  F.  Ins.  Co.  v.  Baldwin,  37  N. 
Y.  648. 

On  affirming  a  judgment  sustaining 
a  demurrer  to  the  complaint  the  Court 
of  Appeals  granted  leave  to  amend 
where  it  appeared  that  otherwise  the 
claim  would  be  barred  by  the  statute 
of  limitations.  Thatcher  v.  Candee, 
3  Keyes  (N.  Y.)  157. 

Upon  leave  to  amend  after  demurrer 
to  part  of  an  answer,  the  defendant 
can  amend  only  the  portion  to  which 
the  demurrer  referred.  Fielden  v. 
Carelli,  26  How.  Pr.  (N.  Y.  Supreme 
Ct.)  173.  See  Spencer  v.  Tooker,  21 
How.  Pr.  (N.  Y.  Supreme  Ct.)  333; 
Decker  v.  Kitchen,  21  Hun  (N.  Y.) 
332. 

If,  after  a  demurrer  for  defect  of 
parties,  the  plaintiff  amends  by  adding 
the  necessary  parties  but  does  not 
amend  his  summons,  the  amended 
complaint  may  be  struck  out  on  mo- 
tion. Follower  v.  Laughlin,  12  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  105. 

California.  —  California     Code    Civ. 


Pro.  §  472,  provides  that  when  a  de- 
murrer to  the  complaint  is  overruled 
and  there  is  no  answer  filed,  the  court 
may  upon  such  terms  as  may  be  just 
allow  an  answer  to  be  filed.  The 
same  section  allows  an  amendment  of 
a  pleading  of  course  and  without  costs 
after  demurrer  and  before  the  trial  of 
the  issue  of  law  thereon. 

It  is  error  to  refuse  plaintiff  leave 
to  amend  before  a  decision  on  defend- 
ant's demurrer.  Lord  v.  Hopkins,  30 
Cal.  76. 

The  allowance  of  an  amendment  to 
the  complaint  after  sustaining  a  de- 
murrer thereto  is  discretionary.  Buck- 
ley V.  Howe,  86  Cal.  596.  But  leave 
will  usually  be  granted  unless  the 
complaint  is  so  defective  as  to  be  be- 
yond the  reach  of  amendment.  Lord 
V.  Hopkins,  30  Cal.  76;  Gallagher  v. 
Delaney,  10  Cal.  410.  But  the  plain- 
tiff must  move  for  leave.  Smith  v. 
Yreka  Water  Co.,  14  Cal.  201.  See 
also  Borland  v.  Thornton,  12  Cal.  440. 

Whenever  a  demurrer  to  a  complaint 
is  sustained,  on  the  ground  that  it 
does  not  state  a  cause  of  action,  with- 
out leave  to  amend,  the  defendant  is 
entitled  to  a  final  judgment  in  his 
favor.  Mora  v.  Le  Roy,  58  Cal.  8. 
And  the  court  may  in  its  discretion 
direct  judgment  for  the  plaintiff  on 
overruling  defendant's  demurrer 
where  no  answer  is  on  file.  Scale  v. 
McLaughlin,  28  Cal.  672;  Barron  v. 
Deleval,  58  Cal.  95. 

After  judgment  sustaining  a  de- 
murrer to  an  answer  it  is  discretionary 
with  the  court  to  grant  or  refuse  leave 
to  amend.  Gillan  v.  Hutchinson,  16 
Cal.  154. 

Virginia. — Under  the  Virginia  Code 
of  18S7,  ^  3384,  providing  for  amend- 
ments at  the  trial  to  cure  a  variance, 
it  is  proper  to  allow  a  declaration  to 
which  a  demurrer  has  been  sustained 
to  be  amended  by  striking  out  imma- 
terial words.  Alexander,  etc.,  R.  Co. 
V.  Herndon,  87  Va.  193. 

Nebraska.  —  Under  the  Nebraska 
Code,  where  a  demurrer  to  a  petition 
is,  sustained  and  the  petition  is  sus- 
ceptible of  amendment,  it  is  the  duty 
of  the  court  to  permit  the  amendment 
upon  terms.  Berrer  v.  Moorhead,  22 
Neb.  687. 


594 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Jaw,  under  Codes,  etc. 


It  is  not  error  in  an  order  sustaining  a  demurrer  to  omit  to 
provide  for  leave  to  amend  if  the  party  whose  pleading  was  de- 
murred to  does  not  ask  for  such  leave  or  for  any  order  on  the 
subject.* 

Amendment  of  Demurrer. — The  demurrer  itself  may  be  amended  like 
any  other  pleading.^ 


Upon  sustaining  a  demurrer  for 
nonjoinder  of  parties  defendant,  it  is 
error  to  dismiss  the  action  without 
giving  the  plaintiff  an  opportunity  to 
bring  in  the  absent  defendant.  Alex- 
ander V.  Thacker,  30  Neb.  614. 

South  Carolina. — Under  the  old  sys- 
tem plaintiff  could  not  amend  after  a 
general  demurrer  to  the  complaint  was 
sustained.  Bagley  v.  Johnston,  4 
Rich.  (S.  Car.)  22;  Gaillard  v.  Tren- 
holm,  5  Rich.  (S.  Car.)  356  and  notes. 
See  Mobley  v.  Mobley,  7  Rich.  (S. 
Car.)  431.  But  it  is  now  a  matter  of 
discretion  where  the  complaint  is 
simply  defective,  and  plaintiff  may 
have  leave  to  amend.  Miller  v.  Stark, 
29  S.  Car.  325;  Bischoff  v.  Blease,  20 
S.  Car.  460;  Tompkins  v.  Augusta, 
etc.,  R.  Co.,  37  S.  Car.  382;  Staltings 
V.  Barrett,  26  S.  Car.  474.  But  he 
cannot  introduce  an  entirely  new 
cause  of  action.  Trumbo  z/.  Finley,  18 
S.  Car.  305. 

Missouri.  —  Rev.  Stat.  Missouri,  § 
3540,  provides  that  where  a  pleading 
has  been  twice  amended  and  adjudged 
insufficient  in  whole  or  in  part,  or  the 
whole  or  some  part  thereof  is  stricken 
out  on  motion,  the  party  filing  it  shall 
pay  costs,  and  no  further  pleading 
shall  be  filed,  but  judgment  shall  be 
rendered. 

It  is  not  sufficient  that  the  pleading 
has  been  held  bad  upon  objection  to 
the  introduction  of  evidence.  Spurlock 
V.  Missouri  Pac.  R.  Co.,  93  Mo.  530; 
Spurlock  V.  Missouri  Pac.  R.  Co.,  93 
Mo.  13,  distinguishing  Beardslee  v. 
Morgner,  73  Mo.  22. 

Montana. — Where  a  demurrer  to  a 
complaint  is  overruled,  it  is  error  for 
the  court,  on  subsequently  concluding 
that  the  ruling  on  the  demurrer  was 
wrong,  to  exclude  evidence  in  sup- 
port of  the  complaint  unless  the  plain- 
tiff is  first  given  the  opportunity  to 
amend.  Creek  v.  McManus  (Mont., 
1893),  32  Pac.  Rep.  675. 

Alabama. — The  statute  expressly  al- 
lows an  amendment  after  demurrer 
sustained.  Stewart  v.  Hargrove,  23 
Ala.  429.  See  Brock  v.  South,  etc.,  R. 
Co.,  65  Ala.  79. 

595 


Utah. — When  a  demurrer  to  a  com- 
plaint is  sustained  and  a  general 
privilege  is  given  to  amend,  new  par- 
ties cannot  be  substituted  by  way  of 
amendment;  they  must  be  brought  in 
by  an  order  of  the  court  amending  the 
complaint  in  this  respect.  Salt  Lake 
County  V.  Golding,  2  Utah  319. 

Colorado. — Colorado  Code,  §  74,  pro- 
vides that  after  a  demurrer  decided  the 
court  may  proceed  to  final  judgment, 
"  unless  the  unsuccessful  party  shall 
plead  over  or  amend  upon  such  terms 
as  shall  be  just." 

A  motion  to  dismiss  for  a  demurra- 
ble jurisdictional  defect  is  equivalent 
to  a  demurrer,  and  the  plaintiff  may 
be  allowed  to  amend  on  the  trial. 
Southwestern  Land  Co.  v.  Hickory 
Jackson  Ditch  Co.,  18  Colo.  489. 

In  Wyoming,  where  a  demurrer  is 
sustained  or  overruled  it  is  entirely 
discretionary  with  the  court  whether 
either  party  shall  be  permitted  to 
amend.  Bonnifield  v.  Price,  i  Wyo- 
ming 223. 

Indiana.  —  Indiana  Code,  §  53  (2 
G.  &  H.  81),  which  provides  that  "if 
the  court  sustain  a  demurrer,  the 
plaintiff  may  amend  by  payment  of 
the  costs  occasioned  thereby,"  seems 
to  be  mandatory,  and  in  the  absence 
of  sham  or  frivolous  pleading  the 
party  must  be  allowed  to  amend. 
Ewing  V.  Patterson,  35  Ind.  326. 

Iowa. — A  party  may  be  allowed  to 
amend  after  decision  on  demurrer. 
Hintrager  v.  Richter,  85  Iowa  222. 
See  Bell  v.  Byerson,  11  Iowa  233. 
But  if  the  amendment  is  the  same 
in  substance  as  the  original  it  will  be 
struck  off  the  files  on  motion.  Waukon 
V.  Strouse,  74  Iowa  547. 

1.  Smith  V.  Taylor,  82  Cal.  533; 
People  V.  Jackson,  25  Cal.  630;  Buck- 
ley V.  Hine,  86  Cal.  596;  Devoss  v. 
Gray,  22  Ohio  St.  159;  Lander  z/.  Hall, 
69  Wis.  326;  Brock  v.  South,  etc.,  R. 
Co.,  65  Ala.  79. 

2.  Morrison  v.  Miller,  46  Iowa  84; 
Poweshiek  County  v.  Cass  County,  63 
Iowa  244.  But  it  is  discretionary. 
Citizens'  State  Bank  v.  Adams,  91 
Ind.  280. 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


(3)  After  Issue  Joined. — The  fact  that  the  issues  have  been  fully 
made  up  does  not  restrict  the  discretionary  power  of  the  court  to 
allow  amendments.*     But  leave  to  amend  at  that  stage  may  be 


1.  Changing  Issue. — Whether  a  de- 
fendant shall  be  permitted  to  file 
an  amended  answer  which  changes 
the  issues  already  made  is  a  matter 
for  the  sound  discretion  of  the  court. 
Harney  v.  Corcoran,  60  Cal.  314  ; 
Stuart  V.  Lander,  16  Cal.  372;  Page 
V.  Williams,  54  Cal.  562;  Spanagel  v. 
Reay,  47  Cal.  608;  Finch  v.  Pindon, 
19  Abb.  N.  Cas.  (N.  Y.  Super.  Ct.)  96. 
Subject  to  review  for  abuse.  Tucker 
V.  Liles,  3  La.  297. 

Withdrawal  of  Answer. — A  defendant 
may  be  allowed  to  withdraw  his  an- 
swer and  file  a  general  demurrer. 
Hedges  v.  Roach,  16  Neb.  673. 

Notice  under  General  Issue.  —  It  is 
proper  to  allow  an  amendment  of 
the  notice  attached  to  a  plea  of  gen- 
eral issue.  Beecher  z/.  Circuit  Judges, 
70  Mich.  363;  Pangborn  v.  Continental 
Ins.  Co.,  67  Mich.  683;  Browne  v. 
Moore,  32  Mich.  254. 

Notice  Attached  to  Plea. — In  Frost 
V.  Whitcomb,  2  How.  Pr.  (N.  Y.) 
194,  a  defendant  was  allowed  to  add 
to  his  pleas  a  notice  of  set-off  and 
recoupment  after  issue  joined  and 
the  case  had  been  twice  noticed  for 
hearing. 

Perfecting  Issue.  —  After  the  court 
has  ordered  the  trial  of  a  case,  but 
before  the  trial  has  begun,  it  is 
not  error  to  allow  an  answer  to  be 
amended  so  as  to  put  in  issue  an 
averment  of  the  petition  the  denial  of 
which  had  been  omitted  by  an  over- 
sight. Filbin  v.  Chesapeake,  etc.,  R. 
Co.,  91  Ky.  444. 

Additional  Pleas. — Leave  should  be 
given  to  a  defendant  who  has  pleaded 
the  general  issue  to  file  additional 
pleas  where  they  are  necessary  to 
a  proper  defense  and  he  has  been 
guilty  of  no  culpable  negligence 
in  making  his  application.  Misch 
V.  McAlpine,  78  111.  507;  Hagerstown 
Steam  Engine,  etc.,  Co.  v.  Grizzard, 
86  Ga.  574;  Williams  z/.  Cooper,  i  Hill 
(N.  Y.)  637,  where  defendant  in  an  ac- 
tion for  slander  added  a  plea  of  jus- 
tification to  his  plea  of  the  general 
issue. 

Additional  Paragraph  to  Answer. — 
In  Koons  v.  Price,  40  Ind.  164,  it 
was  held  reversible  error  not  to  allow 
the  defendant  to  file  additional  para- 


graphs to  his  answer  before  trial, 
where  it  was  shown  by  affidavit  to  be 
necessary  to  his  defense. 

Annexing  Affidavit.  —  In  Loving  v. 
Fairchild,  i  McLean  (U.  S.)  333,  the 
defendant  was  permitted  to  amend 
his  plea  of  non-assumpsit  by  annex- 
ing an  affidavit  denying  execution  of 
the  instrument  sued  on  as  the  statute 
required. 

Adding  Pleas  to  General  Issue. — In 
Georgia,  the  general  issue  being  filed 
at  the  first  term,  it  may  be  amended 
by  building  on  it  any  other  plea  at  any 
stage  of  the  case.  Simon  v.  Myers,  68 
Ga.  74;  Howard  v.  Simpkins,  70  Ga. 
322. 

Adding  Statute  of  Limitations.  — 
Where  the  statute  of  limitations  was 
pleaded,  leave  was  given  to  add  a 
count  stating  a  promise  by  the  ad- 
ministrator. Saltar  v.  Saltar,  6  N.  J. 
L.  405. 

Averment  of  Request. — In  Butler  v. 
King,  10  Cal.  342,  an  action  for  goods 
furnished,  it  was  held  reversible  error 
not  to  allow  the  complaint  to  be 
amended  before  trial  by  alleging  a. 
request. 

After  Overruling  Exceptions.  —  It  is 
a  proper  exercise  of  discretion  to 
permit  the  plaintiff  to  amend  after 
overruling  exceptions  to  his  petition. 
The  court  has  a  right  to  doubt  the  cor- 
rectness of  its  decision.  Hutchins  v. 
Wade,  20  Tex.  7. 

Absolute  Bight.  —  In  Pennsylvania^ 
under  the  act  of  1806  a  plaintiff  had 
an  absolute  right  to  amend  before 
trial  provided  the  adverse  party  was 
not  taken  by  surprise.  Golding  v. 
Clayton,  i  Browne  (Pa.)  175. 

Changing  Plaintiffs.  —  The  plaintiff 
will  not  be  allowed  to  amend  his 
declaration  substantially  changing  the 
plaintiffs  after  issue  joined  and  the 
case  has  been  noticed  for  trial.  CoflSng 
V.  Tripp,  I  How.  Pr.  (N.  Y.)  115. 

Laches  of  Applicant. — In  Brusie  v. 
Peck  (Supreme  Ct.),  6  N.  Y.  St.  Rep. 
709,  leave  to  amend  the  complaint  ten 
years  after  joinder  of  issue  was  de- 
nied.    See  supra.  III,  3,  h. 

In  Hurlbut  v.  Interior  Conduit,  etc., 
Co.  (Super.  Ct.),  28  N.  Y.  Supp.  1007, 
leave  to  amend  an  answer  was  denied 
on  the  ground  of  laches,  which  was 


596 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  Under  Codes,  etc. 


denied,  and  a  party  who  assails  the  refusal  of  the  trial  court  to 
open  the  issues  in  a  case  to  admit  the  filing  of  additional  plead- 
ings must  affirmatively  show  an  abuse  of  discretion.* 

(4)  Before  Announcing  Ready  for  Trial. — In  Texas  the  statute 
provides  that  the  pleadings  may  be  amended  by  leave  of  the 
court  before  the  parties  announce  ready  for  trial,  and  not  there- 
after.* The  statute  is  mandatory  so  far  as  to  give  the  parties  an 
absolute  right  to  amend  within  the  time  prescribed,^  and  prohibi- 
tory in  respect  of  amendments  during  the  trial.*  And  a  party 
may  be  allowed  to  withdraw  his  announcement  of  ready  for  trial 
for  the  purpose  of  moving  to  amend.'     And  an  announcement 


k 


also  a  ground  of  refusing  amendments. 
So  in  Cavanaugh  v.  Britt,  90  Ky.  273; 
Fisher  v.  Greene,  95  111.  94;  Louis- 
ville, etc.,  R.  Co.  V.  Hubbard,  116  Ind. 
193;  Dow  V.  Blake,  148  111.  76. 

Facts  Occurring  after  Issue  Joined. — 
And  amendments  after  issue,  setting 
up  facts  which  occurred  after  joinder 
of  issue,  will  not  be  allowed.  Morein 
V.  Solomons,  7  Rich.  (S.  Car.)  97. 

1.  Louisville,  etc.,  R.  Co.  v.  Hubb- 
ard, 116  Ind.  193;  Bever  v.  North, 
107  Ind.  544;  Citizens'  State  Bank  v. 
Adams,  91  Ind.  280.  Compare  Dewey 
V.  State,  91  Ind.  173;  Darrell  v.  Hil- 
ligoss,  etc..  Gravel  Road  Co.,  90  Ind. 
264;  Gaff  V.  Hutchinson,  38  Ind.  341; 
Commercial  Nat.  Bank  v.  Gibson,  37 
Neb.  750. 

When  the  complaint  is  based  upon 
a  written  lease  and  an  assignment 
thereof,  the  former  containing  a  for- 
feiture clause  binding  upon  all  parties, 
it  is  not  error,  when  the  case  is  about 
to  be  reached  for  trial,  to  refuse  to 
permit  an  amended  complaint  to  be 
filed  by  which  the  written  instrument 
is  sought  to  be  set  aside  or  reformed, 
so  as  to  relieve  plaintiff  entirely  from 
the  effects  of  the  forfeiture  clause. 
Patrick  v.  Crowe,  15  Colo.  543. 

In  an  action  on  a  note  providing  for 
attorney's  fees,  but  not  stating  any 
amount,  the  refusal  of  leave  to  amend 
the  complaint  so  as  to  claim  such  fees 
upon  the  eve  of  the  trial  is  not  an 
abuse  of  discretion,  "although  leave 
is  usually  granted."  Lindley  v.  Sulli- 
van, 133  Ind.  588. 

2.  Texas  Rev.  Stat.,  art.  1192,  with  a 
proviso  that  no  amendment  shall  pre- 
vent the  suit  from  being  tried  at  that 
term  unless  the  court  is  satisfied  that 
such  amendment  operates  as  a  sur- 
prise to  the  opposite  party. 

What  Constitutes  Announcement.  — 
Asking  for  judgment  by  default  is  in 


fact  announcing  ready  for  trial,  and  it 
is  error  to  allow  plaintiff  to  amend, 
after  taking  such  a  judgment,  without 
first  having  it  set  aside.  Portwood  v. 
Wilburn,  33  Tex.  713. 

3.  Boren  v.  Billington,  82  Tex.  137; 
Metzger  v.  Wendler,  35  Tex.  367.  See 
also  Whitehead  v.  Foley,  28  Tex.  i; 
Contreras  v.  Haynes,  61  Tex.  103. 
Contra,  Simpson  v.  Foster,  46  Tex. 
618;  Tulane  v.  McKee,  10  Tex. 
335. 

4.  Love  f.  Mclntyre,  3  Tex.  g;  Petty 
V.  Lang,  81  Tex.  238;  Spence  v.  On- 
stott,  3  Tex.  147.  See  Miller  v.  Sturm, 
36  Tex.  291;  Collins  v.  Box,  40  Tex. 
190;  Trotti  V.  Hobby,  42  Tex.  349. 

A  petition  cannot  be  amended  to 
conform  to  the  proofs.  Missouri  Pac. 
R.  Co.  V.  Howe  (Tex.  App.,  1891),  15 
S.  W.  Rep.  198. 

Other  cases  intimate  that  this  part 
of  the  statute  is  merely  directory  and 
does  not  deprive  the  court  of  the 
power  to  allow  amendments  at  a 
subsequent  stage,  and  even  on  the 
trial,  if  the  ends  of  justice  will  be  pro- 
moted thereby.  Whitehead  v.  Foley, 
28  Tex.  i;  Radam  v.  Capital  Microbe 
Destroyer  Co.,  81  Tex.  122;  Texar- 
kana,  etc.,  R.  Co.  v.  Goldberg  (Tex., 
1887),  5  S.  W.  Rep.  824.  But  the  refusal 
to  allow  an  amendment  at  that  stage 
is  not  error.  Burleson  v.  Hancock, 
28  Tex.  81;  Hefiin  v.  Burns,  70  Tex. 
347;  Harris  v.  Spence,  70  Tex.  616; 
Davis  V.  Campbell,  35  Tex.  779,  where 
defendant  was  denied  leave  to  amend 
his  plea  in  abatement  after  announc- 
ing ready  for  trial.  Compare  Phillips 
V.  Patillo,  18  Tex.  518. 

5.  Whitehead  v.  Foley,  28  Tex.  i; 
Foster  v.  Smith,  66  Tex.  680. 

The  discretion  of  the  court  in  per- 
mitting defendant  to  withdraw  his  an- 
nouncement and  file  special  exceptions 
to  the  petition  will   not  be  reviewed  • 


597 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


made  before  issues  of  law  have  been  disposed  of  is  made  subject 
to  the  right  to  amend  thereafter.* 

(5)  On  the  Eve  of  Trial. — Where  amendments  are  allowed  on 
the  eve  of  the  trial  and  the  adverse  party  does  not  ask  for  further 
time,  it  will  be  presumed  that  he  was  not  prejudiced.^ 

b.  On  the  Trial — (i)  In  6^^;/^r^/— Formal  Errors. —Amend- 
ments to  correct  mere  clerical  errors  or  formal  defects  are  allowed 
almost  as  of  course.' 

To  Obviate  a  Variance  or  Conform  to  Proof. — Amendments  to  obviate  an 
objection  to  the  introduction  of  evidence,*  or  to  conform  the 
pleadings  to  the  facts  proved,  may  be  allowed.* 

Making  a  New  Cause  of  Action. — But  amendments  upon  the  trial  intro- 


unless  for  manifest  abuse.     Obert  v. 
Landa,  59  Tex.  475. 

1.  De  Witt  V.  Jones,  17  Tex.  620; 
Croft  V.  Rains,  10  Tex.  520;  Jennings 
V.  Moss,  4  Tex.  452. 

After  Exceptions  Sustained. — After  ex- 
ceptions are  sustained  the  right  to 
amend  extends  only  to  the  defect  to 
be  cured,  although  it  is  within  the 
discretion  of  the  court  to  allow  an 
amendment  of  other  defects.  Glass- 
cock V.  Hamilton,  62  Tex.  143;  Ann 
Berta  Lodge  v.  Leverton,  42  Tex.  18; 
Hays  V.  Houston,  etc.,  R.  Co.,  46  Tex. 
272. 

2.  Union  Pac.  R.  Co.  v.  Broderick, 
30  Neb.  739;  Richardson  v.  Wallace, 
39  S.  Car.  216. 

On  the  other  hand,  it  is  not  an 
abuse  of  discretion  to  refuse  to  allow 
additional  pleas  to  be  filed  first  before 
trial,  where  a  long  time  has  elapsed 
after  the  issues  were  made  up,  Fisher 
V.  Greene,  95  111.  94;  or  where  the 
case  is  afterwards  tried  as  if  all  the 
matters  set  forth  in  the  proposed 
amendment  were  pleaded,  Shad- 
burne  v.  Daly,  76  Cal.  355.  See  also 
Howard  v.  McKowen,  2  Browne  (Pa.) 
150. 

In  Louisiana,  by  rule  of  court  all 
amendments  must  be  filed  "previous 
to  the  time  when  the  case  is  set  for 
trial."  Duval  v.  Kellam,  i  Rob.  (La.) 
58;  Laudry  v.  Gamet,  i  Rob.  (La.) 
362. 

An  application  comes  too  late  on  the 
date  the  cause  is  set  for  trial.  Chal- 
mers V.  Stow,  3  Martin  N.  S.  (La.)  307. 

3.  Hitchcock  v.  Merrick,  15  Wis. 
522;  Stroebe  v.  Fehl,  22  Wis.  337;  Pel- 
lage  V.  Pellage,  32  Wis.  136;  Mona- 
ghan  V.  School  Dist.  No.  i,  38  Wis.  100; 
Winn  V.  Peckham,  42  Wis.  493;  Hall 
V.  Rice,  64  Cal.  443;  Burch  v.  Taylor, 


32  Ala.  26;  Hartford  City  Natural, 
etc..  Gas  Co.  v.  Love,  125  Ind.  275; 
Reed  v.  Cheney,  iii  Ind.  387;  Green 
V.  Jackson,  15  Me.  136;  Brown  v. 
McHugh,  35  Mich.  50;  Sutton  v.  Van 
Akin,  51  Mich.  463;  Ludeman  7/.  Hirth, 
96  Mich.  17;  Hulbert  v.  Brackett,  8 
Wash.  438;  Havana  Bank  v.  Magee,  20 
N.  Y.  353;  Hagins  v.  De  Hart,  12 
How.  Pr.  (N.  Y.  Supreme  Ct.)  322; 
Smith  V.  Nash,  5  La.  Ann.  575. 

In  Chandos  v.  Edwards,  86  Wis. 
493,  it  was  held  reversible  error  to  re- 
fuse leave  to  amend  the  complaint  so 
as  to  correct  a  "  mere  slip  of  the  pen." 

Technical  Defect. — Where  the  defend- 
ant in  replevin  was  defeated  on  the 
trial  for  a  technical  defect  in  his 
avowry,  he  was  allowed  to  amend  on 
payment  of  costs.  Wright  v.  Wil- 
liams, 5  Cow.  (N.  Y.)  501. 

Striking  out  Superfluous  Party. — After 
the  evidence  closed  and  argument 
concluded,  the  plaintiff  was  permitted 
to  strike  out  the  names  of  defendants 
against  whom  a  judgment  would  have 
been  a  nullity.  Trees  v.  Eakin,  9 
Ind.  554- 

Reduction  of  Demand. — A  plaintiff 
should  be  allowed  to  reduce  his  claim 
on  the  trial,  Dougherty  v.  Purdy,  18 
111.  206;  Towle  V.  Blake,  38  Me.  528. 
See  also  Hall  v.  Briggs,  18  Pick. 
(Mass.)  503;  but  not  so  as  to  deprive 
the  defendant  of  the  benefit  of  credits. 
Dodge  V.  Tileston,  12  Pick.  (Mass.) 
328. 

The  Tennessee  Code,  sec.  2869,  per- 
mits a  change  "  in  the  form  of  action" 
upon  terms  as  to  continuances,  etc., 
and  this  was  held  to  imply  that  it 
could  be  allowed  only  before  trial. 
Smith  V.  Large,  i  Heisk.  (Tenn.)  5. 

4.   See  supra,  III,  9,  a. 

6.  See  supra.  III,  g,  b. 


598 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


ducing  an  entirely  new  cause  of  action  are  usually  held  to  exceed 
the  power  of  the  court.* 

Liberally  Allowed. — In  some  jurisdictions  it  is  the  declared  policy 
of  the  court  always  to  allow  amendments  of  the  pleadings  on  the 
trial  upon  just  terms  when  they  are  found  to  be  so  defective  that 
the  real  subject  of  dispute  cannot  otherwise  be  determined.* 
And  the  exercise  of  discretion  by  the  trial  court  is  rarely  dis- 
turbed where  the  application  to  amend  is  granted.* 


1.  See  supra.  III,  6,  a. 

\n  New  York  "the  only  limitation 
upon  the  power  of  the  court  to  amend 
at  the  trial  is  that  a  new  cause  of  ac- 
tion shall  not  be  substituted  for  the 
old  one."  Richmond  v.  Second  Ave. 
R.  Co.  (Super.  Ct.),  29  N.  Y.  Supp. 
58S. 

Changing  Theory  of  Case. — After  all 
the  evidence  is  in,  the  court  may  re- 
fuse to  allow  an  amendment  of  the 
complaint  which  involves  an  entire 
change  in  the  theory  of  the  plaintiff's 
case.     Lewark  v.  Carter,  117  Ind.  206. 

2.  Stringer  v.  Davis,  30  Cal.  318, 
where  a  denial  of  leave  to  amend  was 
held  reversible  error;  Walsh  v.  Mc- 
Keen,  75  Cal.  519;  Link  z*.  Jarvis  (Cal., 
1893),  33  Pac.  Rep.  206;  Miller  v. 
Metzger,  16  111.  390;  Swift  v.  Mulkey, 
14  Oregon  59.  See  also  Wright  v. 
Bacheller,  16  Kan.  259;  Robinson  v. 
Darden,  50  Ala.  71;  Pride  v.  Worm- 
wood, 27  Iowa  257. 

In  Tennessee,  a  refusal  to  allow  new 
pleas  to  be  filed  on  the  trial  will  not  be 
disturbed  unless  in  an  extraordinary 
case.  Clark  v.  Thomas,  4  Heisk. 
(Tenn.)  419. 

So  in  Louisiana,  Dabbs  v.  Hemken, 
3  Rob.  (La.)  123. 

3.  South  Carolina. — Suber  v.  Chand- 
ler, 28  S.  Car.  382. 

Colorado. — Cooper  v.  McKeen,  11 
Colo.  41. 

California. — Cowbrough  v.  Adams, 
70  Cal.  374,  where  defendant  was  per- 
mitted to  amend  his  answer  at  the 
close  of  the  trial  by  setting  up  the 
pendency  of  another  action;  McPher- 
son  V.  Weston,  85  Cal.  90;  Robinson 
V.  Smith,  14  Cal.  254;  Beronio  v. 
Southern  Pac.  R.  Co.  86  Cal.  415; 
Irwin  V.  McDowell  (Cal.,  1893),  34 
Pac.  Rep.  708;  Riverside  Land,  etc., 
Co.  V.  Jensen,  73  Cal.  550;  Gavitt  v. 
Doub,  23  Cal.  79. 

Michigan. — Lester  v.  Thompson,  91 
Mich.  245;  Mead  v.  Glidden,  79  Mich. 
209. 

Iowa. — Aultman  v.    Shelton  (Iowa, 


1894),  57  N.  W.  Rep.  857;  Eslich  v. 
Mason  City,  etc.,  R.  Co.,  75  Iowa  443; 
Hall  V.  Chicago,  etc.,  R.  Co.  (Iowa, 
1892),  51  N.  W.  Rep.  150. 

Kansas.  —  Leavenworth  First  Nat. 
Bank  v.  Tappan,  6  Kan.  456. 

Wisconsin. — Bonner  v.  Home  Ins. 
Co.,  13  Wis.  677;  Kretser  v.  Cary,  52 
Wis.  374. 

Massachusetts. — Harrington  v.  Har- 
rington, 107  Mass.  329. 

Missouri.  —  State  v.  Sandusky,  46 
Mo.  377. 

Indiana. — Burns  v.  Fox,  113  Ind. 
205;  Judd  V.  Small,  107  Ind.  398;  Grand 
Rapids,  etc.,  R.  Co.  v.  Ellison  (Ind., 
1888),  18  N.  E.  Rep.  507;  Martinsville 
V.  Shirley,  84  Ind.  546;  Wayne  County 
Turnpike  Co.  v.  Berry,  5  Ind.  286. 

Minnesota. — Morrison  v.  Lovejoy,  6 
Minn.  319;  Osborne  v.  Williams,  37 
Minn.  507;  McEvoy  v.  Bock,  37  Minn. 
402. 

Pennsylvania. — Melvin  v.  Melvin, 
130  Pa.  St.  6;  Hellings  v.  Wright;  14 
Pa.  St.  373. 

Nebraska. — Ward  v.  Parlin,  30  Neb. 
376;  Brown  v.  Rogers,  20  Neb.  547; 
Singer  Mfg.  Co.  v.  Doggett,  16  Neb. 
609. 

Oregon. — Wild  v.  Oregon,  etc..  Short 
Line  R.  Co.,  21  Oregon  159. 

Georgia. — Vance  v.  Crawford,  4  Ga. 
445- 

Mississippi.  —  Mississippi  Cent.  R. 
Co.  V.  Whitehead,  41  Miss.  225. 

Maryland. — Scarlett  v.  Academy  of 
Music,  43  Md.  203. 

New  Jersey. — Joslin  v.  New  Jersey 
Car  Spring  Co.,  36  N.  J.  L.  141. 

Maine. — Soule  v.  Bruce,  67  Me.  584. 

In  Miller  v.  Garling,  12  How.  Pr. 
(N.  Y.  Supreme  Ct.)  203.  the  com- 
plaint was  amended  at  the  trial  so  as 
to  claim  special  damages. 

No  Prejudice. — The  allowance  of 
amendments,  the  evidence  in  support 
of  which  would  be  admissible  under 
the  original  pleading,  cannot  be  preju- 
dicial to  the  adverse  party.  Blewett 
V.   Front  St.  Cable  R.    Co.,    51    Fed. 


599 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Where  Plaintiff's  Claim  Would  Be  Barred. — The  fact  that  if  driven  to  a 
new  action  the  plaintiff's  claim  will  be  barred  by  the  statute  of 
limitations  is  a  strong  reason  for  allowing  him  to  amend  so  as  to 
enable  him  to  maintain  his  suit.* 

In  Case  of  Mistake. — Where  reasonable  diligence  has  been  shown, 
and  a  party  for  the  first  time  discovers  on  the  trial  that  the  cause 
of  action  or  defense  has  been  misunderstood,  and  for  that  reason 
improperly  alleged  in  his  pleading,  an  amendment  should  be 
allowed  when  applied  for  without  unnecessary  delay.* 

Question  First  Kaised  on  the  Trial. — It  is  the  positive  duty  of  the  court 
to  allow  a  defect  in  a  declaration  to  be  cured  by  amendment  on 
the  trial  when  the  question  was  then  raised  for  the  first  time  and 
could  have  been  determined  at  an  earlier  stage  of  the  proceedings 
by  special  demurrer.^  So  a  defendant  should  be  permitted  to 
amend  his  answer  or  plea  where  the  plaintiff  has  failed  to  point 
out  the  defect  until  the  trial.* 

Laches  of  Applicant. — On  the  Other  hand,  where  a  party  has  had 


Rep.   625;  Maish  v.    Crangle,  80  Iowa 
650. 

Presumption  of  Propriety. — Where  an 
amendment  is  allowed,  the  omission 
of  the  other  party  to  ask  for  delay  or 
a  continuance  has  been  noted  as  a 
circumstance  rebutting  a  presuniption 
of  prejudice.  Bunyan  v.  Loftus 
(Iowa,  1894),  57  N.  W.  Rep.  685; 
Powers  V.  Fox  (City  Ct.),  11  N.  Y.  St. 
Rep.  651;  Lester  v.  Thompson,  91 
Mich.  245;  Walsh  v.  McKeen,  75  Cal. 
519;  Cheney  w.  O'Brien,  69  Cal.  199; 
Klemm  v.  New  York  Cent.,  etc.,  R. 
Co.  (Supreme  Ct.),  28  N.  Y.  Supp. 
861;  Frankfurter  v.  Home  Ins.  Cc. 
(City  Ct.),  26  N.  Y.  Supp.  81;  Meyer 
V.  State,  125  Ind.  335;  Excelsior  Mfg. 
Co.  V.  Boyle,  46  Kan.  202.  See  also 
Baldwin  v.  New  York,  etc.,  Nav.  Co., 
9  Daly  (N.  Y.)  314. 

1.  Shieffelin  v.  Whipple,  10  Wis.  81; 
Miller  v.  Watson,  6  Wend.  (N.  Y.) 
506;  Thornton  v.  Herring,  5  Houst. 
(Del.)  154- 

2.  Hauck  V.  Craighead,  4  Hun  (N. 
Y.)  561;  Marie  v.  Garrison,  13  Abb.  N. 
Cas.  (N.  Y.  Super.  Ct.)  210;  Jackson  v. 
Sanders,  2  Edm.  Sel.  Cas.  (N.  Y.)  12; 
Bailey  v.  Kay,  50  Barb.  (N.  Y.)  no; 
Cooper  V.  "\yood,  i  Colo.  App.  loi. 
See  also  Robinson  v.  Hartridge,  13 
Fla.  501;  Vilas  v.  Mason,  25  Wis.  310; 
Northwestern  Iron  Co.  v.  .(Etna  Ins. 
Co..  26  Wis.  78. 

Changing  Parties. — Misdescription  of 
the  parties  may  be  corrected.  Mc- 
Dufiie  V.  Irvine,  gi  Ga.  748. 

New  plaintiffs  may  be  added  on  the 


trial.  Boyd  v.  Steamboat  Falcon,  i 
Handy  (Ohio)  362;  Polk  v.  Coffin,  g 
Cal.  56.  But  the  amendment  may  be 
denied  on  the  ground  of  laches.  Bur- 
rus  V.  Fisher,  27  Miss.  418. 

Some  of  the  plaintiffs  maybe  struck 
out,  Wilson  V.  King,  6  Yerg.  (Tenn.) 
493;  Hinkle  v.  Davenport,  38  Iowa 
355;  and  new  ones  added,  Tayon  v. 
Ladew,  33  Mo.  205.  But  the  court  may 
deny  such  an  amendment.  Gwynn  v. 
Globe  Locomotive  Works,  5  Allen 
(Mass.)  317. 

Construction  of  Stipulation. — A  stipu- 
lation that  "  no  other  or  further  or 
amended  answer  shall  be  allowed  to 
be  served  and  no  delay  shall  ensue," 
was  held  not  to  limit  the  power  of  the 
court  to  grant  an  amendment  on  the 
trial.  Hennequin  v.  Clews,  46  N.  Y. 
Super.  Ct.  330. 

3.  Fletcher  v.  Forler,  83  Mich.  52, 
an  action  for  selling  liquor  to  a  person 
intoxicated,  where  the  plaintiff  had 
failed  to  allege  that  the  saloonkeeper 
knew  that  the  person  was  intoxicated, 
the  refusal  of  leave  to  amend  being 
held  reversible  error.  Buck  v.  Barker 
(Super.  Ct.),  5  N.  Y.  St.  Rep.  826.  See 
also    Tooker    v.    Arnoux,    76    N.    Y. 

397- 

4.  Hirsh  v.  Shafer,  66  Miss.  439, 
where  defendant  was  allowed  to  verify 
the  denial  in  his  answer  so  as  to  com- 
ply with  the  statute.  Arrington  v. 
Tupper,  10  Cal.  465;  Lattimer  v.  Ryan, 
20  Cal.  628,  and  Gaylord  v.  Stebbins,  4 
Kan.  42,  cases  practically  identical 
with  the  foregoing. 


600 


'Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


his  attention  called  to  defects  in  his  pleading  and  ample  time  to 
correct  them  before  trial,  leave  to  amend  may  be  denied  on  the 
ground  of  laches.* 

Only  in  Furtherance  of  Justice. — Ordinarily  amendments  will  not  be 
allowed  so  as  to  give  one  of  the  parties  a  purely  technical  advan- 
tage over  the  other.*  Thus  the  court  will  not  grant  leave  to  the 
defendant  to  plead  in  abatement  during  the  progress  of  the 
trial;  ^  nor  will  amendments  be  allowed  where  the  court,  in  view 
of  all  the  circumstances,  is  not  satisfied  that  the  ends  of  justice 
will  be  promoted  thereby.* 


1.  Johnson  v.  American  Writing- 
Mach.  Co.  (Super.  Ct.),  4  N.  Y.  Supp. 
391;  Eggleston  v.  Beach  (Supreme 
Ct.),  33  N.  Y.  St.  Rep.  835;  Bovven  v. 
Sweeney,  63  Hun  (N.  Y.)  224,  17  N.  Y. 
Supp.  752;  Heyler  v.  New  York  News 
Pub.  Co.  (Supreme  Ct.),  24  N.  Y.  Supp. 
499;  Butler  V.  Farley  (Supreme  Ct.), 
17  N.  Y.  St.  Rep.  109;  Sharpe  v.  Dill- 
man,  77  Ind.  281;  Hancock  v.  Hub- 
bell,  71  Cal.  537;  Page  v.  Williams, 
54  Cal.  562;  Baughman  v.  Hale,  45 
Kan.  453;  Kelly  v.  Kershaw,  5  Utah 
295;  Minnock  v.  Fire,  etc.,  Ins.  Co., 
90  Mich.  237;  Phenix  Ins.  Co.  v. 
Stocks,  149  111.  319.  See  also  Owens- 
boro,  etc.,  R.  Co.  v.  Harrison  (Ky., 
1893),  22  S.  W.  Rep.  545;  Stone  v. 
Mattingly  (Ky.,  1892),  19  S.  W.  Rep. 
402. 

Knowledge  of  Defense. — Some  cases 
hold  that  a  defense  known  to  the  de- 
fendant when  he  filed  his  original  an- 
swer ought  not  to  be  set  up  by  amend- 
ment on  the  trial.  Lewin  v.  Houston, 
8  Tex.  94;  Cotten  v.  Fidelity  Casualty 
Co.,  41  Fed.  Rep.  506;  Gwinn  v.  O'Dan- 
iel,  5  Tex.  Civ.  App.  112;  Case  v.  Wat- 
son, 22  La.  Ann.  350;  Spyker  v.  Hart, 
22  La.  Ann.  534;  Louisville  Under- 
writers V.  Pence  (Ky.,  1892),  19  S.  W. 
Rep.  ID.  See  also  Chlein  v.  Kabat,  72 
Iowa 291;  Thoman  v.  Chicago,  etc.,  R. 
Co.  (Iowa,  1894),  60  N.  W.  Rep.  612); 
Compare  Farmers'  Nat.  Gold  Bank  v. 
Stover,  60  Cal.  387. 

2.  Hexter  v.  Schneider,  14  Oregon 
184. 

3.  Hexter  v.  Schneider,  14  Oregon 
184. 

In  O'Toole  v.  Garvin,  i  Hun  (N.  Y.) 
313,  the  defendant  was  not  permitted 
to  amend  so  as  to  set  up  a  technical 
defense. 

Pleading  Sunday  Law. — A  refusal  to 
allow  an  answer  to  be  amended  after 
the  evidence  was  all  in,  by  setting  up 
that  the  contract  was  made  on  Sunday, 


was  not  an  abuse  of  discretion.  Chlein 
V.  Kabat,  72  Iowa  291. 

Statute  of  Limitations. — The  court 
may  well  refuse  to  allow  the  defend- 
ant to  amend  on  the  trial  by  setting 
up  the  statute  of  limitations.  Marx 
V.  Hilsendegen,  46  Mich.  336;  Gar- 
lington  V.  Copeland,  32  S.  Car.  57; 
Seegers  v.  McCreery  (S.  Car.  ,1894), 
19  S.  E.  Rep.  696. 

And  where  the  statute  of  limita- 
tions was  pleaded  in  due  time,  the 
court  refused  to  allow  the  plaintiff  to 
amend  on  the  trial  by  averring  that 
he  discovered  the  fraud  which  consti- 
tuted the  ground  of  action  within  the 
statutory  period.  Hiatt  v.  Auld,  11 
Kan.  176;  Riggs  v.  Chapin  (Supreme 
Ct.),  7  N.  Y.  Supp.  765. 

4.  Useless  Amendments. — It  is  not 
error  to  refuse  an  amendment  to 
which  a  demurrer  would  be  sustained, 
Beavers  v.  Hardie,  59  Ala.  570;  or  an 
amendment  which  is  immaterial,  Stein- 
hauser  v.  Spraul,  114  Mo.  551;  or  un- 
availing. Peck  V.  Rees,  7  Utah  467; 
Aultman  v.  Shelton  (Iowa,  1894),  57 
N.  W.  Rep.  857.  See  also  Wilson  v. 
Bailey,  i  Handy  (Ohio)  177;  Shaw  v. 
Alexander,  32  Miss.  229;  or  irrelevant, 
Iverson  v.  Dubay,  39  Minn.  325;  Liv- 
ingston V.  Anderson,  30  Fla.  117. 

Amendment  of  Complaint  Denied. — The 
plaintiff  may  properly  be  refused  per- 
mission to  amend  his  complaint  in  re- 
plevin on  the  trial  by  reducing  the 
alleged  value  of  the  property  to  sub- 
serve a  questionable  purpose,  and 
without  any  averment  of  mistake. 
Schoenhofen  Brewing  Co.  v.  Arm- 
strong (Iowa,  1894),  57  N.  W.  Rep. 
436. 

It  is  not  an  abuse  of  discretion  to 
refuse  to  permit  an  amendment  of  the 
complaint  after  the  trial  which  will 
raise  new  issues  and  probably  require 
a  new  trial.  Bradley  t.  Parker  (Cal., 
1893),  34  Pac.  Rep.  234. 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  otc. 

(2)  At  What  Stage  of  the  Trial — After  Jury  Sworn. — A  party  may- 
be allowed  to  amend  his  pleading  after  the  jury  are  sworn. ^ 

Eeswearing  the  Jury. — But  if  the  issues  are  changed  thereby,  the 
practice  in  some  jurisdictions  requires  that  the  jury  be  resworn.* 


After  plaintiff  had  closed  his  case 
he  was  denied  leave  to  amend  so  as  to 
enable  him  to  take  advantage  of  evi- 
dence offered  by  the  defendant.  Wool- 
man  V.  Zebley,  i  Houst.  (Del.)  459. 

In  Renfro  v.  Prior,  22  Mo.  App. 
403,  it  was  held  to  be  an  abuse  of  dis- 
cretion to  allow  the  plaintiff  to  amend 
a  count  in  his  complaint  at  the  close 
of  his  case  which  had  been  virtually 
stricken  out  by  excluding  evidence  in 
support  of  it. 

Amendments  of  Answer  Denied. — After 
plaintiff  has  closed  his  case  the  court 
may  properly  refuse  to  allow  an 
amendment  of  the  answer  changing 
the  issues  and  requiring  a  continu- 
ance to  enable  plaintiff  to  procure  wit- 
nesses. Skagit  R.,  etc.,  Co.  v.  Cole, 
2  Wash.  57. 

Amendment  of  the  answer  tender- 
ing a  new  issue  which  the  plaintiff  is 
not  prepared  to  meet  may  be  refused. 
Ferguson  v.  Hannibal,  etc.,  R.  Co.  35 
Mo.  452;  Garton  v.  Cannada,  39  Mo. 
357.  See  also  Sevin  v.  Caillouet,  30 
La.  Ann.  (Pt.  I.)  528;  Cohn  v.  Levy, 
14  La.  Ann.  355;  Case  v.  Watson,  22 
La.  Ann.  351;  Spyker  v.  Hart,  22  La. 
Ann.  534. 

After  plaintiff  has  closed  his  case  it 
is  not  error  to  refuse  to  allow  the  de- 
fendant to  strike  out  an  admission  of 
an  allegation  in  the  complaint.  Miner 
V.  Baron  (Supreme  Ct.),  39  N.  Y.  St. 
Rep.  893;  Rice  v.  Ege,  42  Fed.  Rep. 
658.  And  leave  to  withdraw  an  ad- 
mission in  the  answer  arid  assert  a 
contrary  fact  may  be  denied.  litis  v. 
Chicago,  etc.,  R.  Co.  40  Minn.  273;  or 
leave  to  withdraw  a  denial  and  plead 
payment,  Garrison  z/.  Goodale,  23  Ore- 
gon 307. 

In  Durkee  v.  Felton,  54  Wis.  405,  it 
was  held  no  error  to  allow  the  defend- 
ant to  amend  by  denying  a  material 
fact  admitted  in  the  original  answer. 

In  Glazer  v.  Lowrie,  8  S.  &  R.  (Pa.) 
498,  after  plaintiff  had  closed  his  evi- 
dence the  court  refused  to  allow  the 
defendant  to  introduce  a  plea  of  set- 
off. 

In  Lanphere  z/.  Clark  (Supreme  Ct.), 
29  N.  Y.  Supp.  107,  refusal  to  allow 
defendant  in  a  slander  suit  to  amend 


an    insufficient  justification  was    held 
not  an  abuse  of  discretion. 

Striking  out  Admission  in  Complaint. — - 
And  in  Conwacey  v.  New  York,  8  Daly 
(N.Y.)  306,  the  plaintiff  was  allowed 
to  strike  out  an  admission  in  the  com- 
plaint. See  also  Hepp  v.  Huefner,  61 
Wis.  148.  But  see  Miller  v.  Moore,  i 
E.  D.  Smith  (N.  Y.)  739. 

1.  Brazelton  v.  Turney,  7  Coldw. 
(Tenn.)  267;  Garrett  v.  Dickerson,  19 
Md.  418;  Syme  v.  Jude,  3  Call.  (V^a.) 
522;  Tabb  V.  Gregory,  4  Call.  (Va.)  225; 
Crassen  v.  Swoveland,  22  Ind.  427; 
Adams  v.  Main,  3  Ind.  App.  232; 
Record  v.  Ketcham,  76  Ind.  482;  Smith 
V.  Rutherford,  2  S.  &  R.  (Pa.)  358; 
Missouri  River,  etc.,  R.  Co.  v.  Owen, 
8  Kan.  409;  Beronio  v.  Southern  Pac. 
R.  Co.,  86  Cal.  415;  Coleman  v.  Drane, 
116  Mo.  387. 

Refused  in  Wilmington  Bank  v. 
Cooper.  I  Harr.  (Del.)  10;  Dulany 
V.  Norwood,  4  Har.  &  M.  (Md.)  497: 
State  V.  Vandever,  3  Harr.  (Del.)  29; 
State  V.  Magee,  2  Harr.  (Del.)  46; 
Atkinson  v.  Cox,  54  Ark.  444;  Bean 
V.  Moore,  2  Chand.  (Wis.)  392;  Diehl 
V.  McGlue,  2  Rawle  (Pa.)  337;  Shan- 
non V.  Com.,  8  S.  &  R.  (Pa.)444;  Smith 
V.  Rutherford,  2  S.  &  R.  (Pa.)  358; 
Keasby  v.  Donaldson,  2  Browne  (Pa.) 
103;  Thackara  v.  Curren,  2  Browne 
(Pa.)  246  ;  Gordon  v.  Kennedy,  2 
Binn.  (Pa.)  291;  Ridgely  v.  Dobson, 
3  W.  &  S.  (Pa.),  118;  McKown  v. 
Mathes,  19  La.  542.  Compare  Austin 
V.  Ingham,  4  Yeates  (Pa.)  347. 

2.  Ostrander  v.  Clark,  8  Ind.  211; 
Kerstetter  v.  Raymond,  10  Ind.  199; 
Hoot  V.  Spade,  20  Ind.  326;  Kersch- 
baugher  v.  Slusser,  12  Ind.  453;  Rec- 
ord V.  Ketcham,  76  Ind.  482;  Brown 
V.  Shearon,  17  Ind.  239,  where  the 
evidence  was  reheard.  See  also  Will- 
iams V.  Miller,  10  Iowa  344;  Maffitt  v. 
Rynd,  69  Pa.  St.  380,  where  the  jury 
were  resworn  after  an  amendment  in 
the  names  of  the  parties. 

Otherwise  where  the  amendment 
does  not  change  the  issue.  Record  v. 
Ketcham,  76  Ind.  482;  Sandford  Tool, 
etc.,  Co.  V.  Mullen,  i  Ind.  App.  204; 
Knowles  v.  Rexroth,  67  Ind.  59; 
Rogers  v.  State,  99  Ind.  218;  or  where 


602 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Comnon  Law,  under  Codes,  etc. 


During  the  Argument. — It  is  not  error  to  allow  an  amendment 
otherwise  proper  while  the  case  is  being  argued  to  the  jury.* 

After  Jury  Instructed. — The  court  may  allow  an  amendment  after 
the  jury  have  been  instructed.* 

After  Submission  to  Jury. — It  is  generally  too  late  to  allow  a  material 
amendment  after  the  cause  has  been  actually  submitted  to  the 
jury.^ 

After  Motion  for  Nonsuit. — A  motion  to  amend  does  not  come  too 
late  after  the  plaintiff  has  closed  his  testimony  and  the  defendant 
has  moved  for  a  nonsuit,*  or  after  a  nonsuit  has  been  entered,  but 
before  judgment  rendered  thereon.* 

After  Mistrial.— Amendments  may  be  allowed  after  a  mistrial.® 

c.  After  Report  of  Referee. — After  the  report  of  a  referee 
the  court  may  allow  an  amendment  of  the  pleadings.''  But  an 
amendment  introducing  a  new  and  distinct  claim  will  not  be 
allowed  without  setting  aside  the  report.** 

Amendments  may  be  made  to  conform  to  the  proof.^  Where 
the  finding  of  the  referee  has  the  effect  of  a  judgment  the  court 


the  record  does  not  show  that  the 
court  was  asked  to  have  the  jury  re- 
sworn,   Arnold    v.    Arnold,   20   Iowa 

273- 

1.  Sanders  v.  Knox,  57  Ala.  80; 
Burch  V.  Taylor,  32  Ala.  26;  Baldwin 
V.  Soule,  6  Gray  (Mass.)  321;  Hall  v. 
Rice,  64  Cal.  443. 

Or  after  the  argument.  Yohe  v. 
Robertson,  2  Whart.  (Pa.)  155;  Trees 
V.  Eakin,  g  Ind.  554;  Burke  v.  Snell, 
42  Ark.  57. 

2.  Prater  v.  Miller,  25  Ala.  320. 
But  the  court  may  properly  refuse 

to  allow  an  amendment  of  the  com- 
plaint after  the  jury  have  been  in- 
structed to  find  for  the  defendant. 
Staley  v.  Thomas,  68  Md.  439. 

3.  Wilbanks  v.  Willis.  2  Rich.  (S. 
Car.)  108;  Reynolds  v.  Quattlebum,  2 
Rich.  (S.  Car.)  140;  Law  v.  Franks, 
Cheves  (S.  Car.)  9;  Watkins  v.  Canter- 
berry,  4  Port.  (Ala.)  415;  Ashley  v. 
Robinson,  29  Ala.  112 ;  Davis  v. 
Chester,  Minor  (Ala.)  385;  Hatfield  v. 
Gano,  15  Iowa  177;  Phillips  v.  Dodge, 
8  Ga.  51;  Maxwell  v.  Day,  45  Ind.  509. 
See  also  Smith  v.  Barker,  3  Day 
(Conn.)  280;  Goldsmith  v.  Picard,  27 
Ala.  142;  Gluckauf  v.  Bliven,  23  Cal. 

314- 

After  Return  of  Findings. — After  the 
return  of  the  findings  of  a  jury,  it  is  a 
questionable  exercise  of  discretion  to 
allow  an  answer  to  be  amended  upon 
a  point  submitted  and  already  covered 
by  the  answer.  Sears  v.  Collins,  5 
Colo.    492.      See    also,  in   respect   of 


amending  a  complaint,   Hays  v.  Tur- 
ner, 23  Iowa  214. 

4.  Valencia  v.  Couch,  32  Cal.  339; 
Farmer  v.  Cram,  7  Cal.  135;  Acquital 
V.  Crowell,  i  Cal.  191;  Kamm  v.  Cali- 
fornia Bank,  74  Cal.  191;  Farrier  v. 
Schroeder,  40  N.  J.  L.  601;  Hasbrouck 
V.  Winkler,  48  N.  J.  L.  431;  Kelly  v. 
Bragg.  76  Me.  207.  See  also  Medbury 
V.  Watson,  6  Met.  (Mass.)  246. 

5.  Sibley  v.  Young,  26  S.  Car.  415; 
Phillips  V.  Brigham,  26  Ga.  617. 

In  Morris  v.  Burton,  i  Houst.  (Del.) 
213,  leave  to  amend  was  refused  after 
the  court  had  announced  its  opinion 
on  a  motion  for  nonsuit. 

As  to  amendments  after  judgment 
of  nonsuit,  see  infra.  III,  e,  note. 

6.  Hester  v.  Hagood,  3  Hill  (S. 
Car.)  195,  where  it  is  said  that  they  are 
almost  universally  allowed  where  they 
do  not  hinder  or  delay  the  opposite 
party. 

7.  Proctor  v.  Andrew,  i  Sandf.  (N. 
Y.)  70;  Smith  V.  Proctor,  i  Sandf.  (N. 
Y.)  72;  Merrill  v.  Mellen,  24  N.  H. 
258;  Buno  V.  Gomer,  3  Colo  App.  456, 
where,  however,  the  application  was 
denied  on  the  ground  of  laches. 
See  also  Bowman  v.  Earle,  3  Duer 
(N.  Y.)  691 ;  Newell  v.  Mahasko  County 
Sav.  Bank,  51  Iowa  178,  holding  that 
a  reasonable  excuse  must  be  shown. 

8.  Joy  V.  Walker,  28  Vt.  442;  Al- 
laben  v.  Wakeman,  10  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  162;  Pardee  v.  Foote, 
9  Abb.  Pr.  N.  S.  (N.  Y.  Supreme  Ct.)77. 

9.  See  supra.  III,  9,  b,  (2). 


603 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  tinder  Codes,  etc. 


will  not  allow  an  amendment  that  will  make  the  referee's  judgment 
irregular.* 

d.  After  Verdict. — At  common  law  the  court  has  power  to 
allow  amendments  after  verdict,  in  furtherance  of  justice  ;  *  and  in 
most  of  the  states  this  power  is  enlarged  rather  than  restricted 
by  statute.^ 

When  the  statute  provides  for  amendments  "at  any  time,"* 
or  "  at  all  times,"  they  may  be  allowed  after  verdict.* 


1.  Brady  v.  Nally,  26  Abb.  N.  Cas. 
(N.  Y.  Super.  Ct.)  367. 

2.  Betts  V.  Hoyt,  13  Conn.  469; 
Bailey  v.  Musgrave,  2  S.  &  R.  (Pa.) 
219;  Kendall  v.  White,  13  Me.  245.  See 
also  Hill  V.  Stocking,  6  Hill  (N.  Y.) 
291  ;  Richardson  v.  Johnson,  2  Call 
(Va.)  527;  Valentine  v.  Farnsworth,  21 
Pick.  (Mass.)  176;  Stanwood  v.  Scovel, 
4  Pick.  (Mass.)  422;  Soper  v.  Soper,  5 
Wend.  (N.  Y.)  112. 

Amending  Oyer. — In  Daley  z/.  Atwood, 
7  Cow.  (N.  Y.)  483,  amendment  of 
plaintiff's  oyer  was  allowed  after  ver- 
dict in  his  favor. 

Altering  a  Date. — A  declaration  in 
assumpsit  may  be  amended  after  ver- 
dict by  altering  the  date  on  which  the 
promise  was  laid.  Bailey  v.  Musgrave, 
2  S.  &  R.  (Pa.)  219. 

Entering  Nol.  Pros. — A  demandant 
in  a  real  action  for  the  recovery  of 
several  parcels  of  land  may  by  leave 
of  court  discontinue  or  enter  a  nol. 
fros.  as  to  one  or  more  of  the  parcels 
after  verdict.  Somes  v.  Skinner,  16 
Mass.  348. 

Striking  out  Counts. — The  court  may 
allow  an  amendment  of  the  declara- 
tion by  striking  out  a  count  upon 
v/hich  the  jury  could  not  agree.  Soule 
V.  Russell,  13  Met.  (Mass.)  436. 

A  Clerical  Mistake  by  which  the  cause 
of  action  was  laid  after  the  commence- 
ment of  the  suit  was  amended  after 
verdict,  although  it  was  made  a  ground 
of  objection  at  the  trial.  Sargent  v. 
Dennison,  2  Cow.  (N.  Y.)  515. 

Adding  Material  Allegations.  —  In 
Rowell  V.  Bruce,  5  N.  H.  381,  it  was 
held  that  the  omission  of  a  material 
allegation  in  a  declaration  cannot  be 
supplied  by  amendment  after  verdict. 
See  Betts  v.  Hoyt,  13  Conn.  469. 

In  Indiana  it  has  been  held  too  late 
after  verdict  to  allow  a  material 
amendment  of  the  pleadings.  Aiken 
-v.  Bruen,  21  Ind.  137;  Redman  z/.  Tay- 
lor, 3  Ind.  144;  Heddens  v.  Younglove, 
46  Ind.  212. 

Filing  Plea  in  Bar. — An  application 
to  amend  by  filing  a  plea  in  bar  comes 


too  late  when  made  after  verdict  and 
without  a  showing  of  merits  by  affi- 
davit. Gillespie  v.  Davis,  5  Yerg. 
(Tenn.)  319. 

Defects  Cured  by  Verdict. — Where  the 
issues  joined  necessarily  require,  on 
the  trial,  proof  of  facts  defectively  or 
imperfectly  stated,  or  omitted,  or 
without  which  it  is  not  to  be  presumed 
that  either  the  judge  would  direct  or 
the  jury  have  given  the  verdict,  such 
defect,  imperfection,  or  omission, 
though  fatal  if  it  had  been  demurred  to, 
is  cured  by  the  verdict  at  common  law. 
Pangburn  v.  Ramsay,  11  Johns.  (N.  Y.) 
141.  See  also  Bayard  v.  Malcolm,  2 
Johns.  (N.Y.)  550,  infra,  III,  11,/,  (1). 

3.  In  Lemon  v.  Dryden,  43  Kan.  477, 
an  answer  was  amended  after  verdict. 

Adding  New  Counts. — Under  the  Illi- 
nois Practice  Act  it  is  proper  to  al- 
low an  amendment  of  the  declaration 
after  verdict  and  pending  a  motion 
for  a  new  trial  by  the  filing  of  ad- 
ditional counts  upon  the  same  cause  of 
action.  Independent  Order,  etc.,  v. 
Paine,  122  111.  625. 

Striking  Out  Party. — In  Cogshall  v. 
Beesley,  76  111.  445,  it  was  held  that 
under  the  Illinois  Practice  Act  of  1874 
the  court  may  allow  the  plaintiff  after 
verdict  against  two  defendants  to 
amend  by  discontinuing  as  to  one  of 
them.  So  in  Ridley  v.  Knox,  138  Mass. 
83. 

Where  one  sues  for  the  use  of  an- 
other the  name  of  the  nominal  plain- 
tiff may  be  struck  out  after  verdict. 
Whitaker  v.  Pope,  2  Woods  (U.  S.) 
463,  decided  under  the  Georgia  Code. 

Eeviving  Old  Issue. — There  is  no 
error  in  refusing  leave  to  amend  the 
answer  where  the  question  proposed 
to  be  raised  has  been  virtually  de- 
cided against  the  defendant  by  special 
verdict.  Ault  v.  Wheeler,  etc.,  Mfg. 
Co.,  54  Wis.  300.  See  also  Eddy  v. 
Stantons,  21  Wend.  (N.  Y.)  255. 

4.  Ball  V.  Keokuk,  etc.,  R.  Co.,  71 
Iowa  306. 

6.  Price  v.  New  Jersey  R.,  etc.,  Co., 
31  N.  J.  L.  229. 


604 


Of  Pleadings,  eta.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc 


Amendments  after  verdict,  so  as  to  conform  the  pleadings  to 
the  proofs,  are  almost  a  matter  of  course.*  The  prayer  of  the 
complaint  cannot  be  amended  after  verdict  where  the  effect  will 
be  to  create  a  verdict  which  was  not  rendered  in  fact.* 

Terms  of  Amendment. — Where  amendments  of  substance  are  allowed 
after  verdict  it  is  usually  required  that  the  applicant  pay  the  costs 
and  consent  to  a  new  trial. ^  But  an  amendment  may  be  allowed 
without  a  new  trial  where  the  verdict  would  not  have  been  affected 
by  the  amendment  if  it  had  been  made  before  trial.* 

After  Judgment  Arrested. — Where  judgment  was  arrested  for  want 
of  jurisdiction,  the  declaration  omitting  to  state  the  value  of  the 
property  in  controversy,  the  plaintiff  was  permitted  to  amend  by 
adding  the  averment.* 

e.  After  Judgment. — At  common  law  the  court  has  power  to 
allow  an  amendment  of  the  pleadings  in  a  case  until  final  judg- 
ment ;®  and  authority  is  given  by  statute  in  most  of  the  states  to 
allow  amendments  after  as  well  as  before  judgment  by  the  inser- 
tion of  new  allegations  material  to  the  case.  Although  this  is  an 
extraordinary  power  and  should  be  sparingly  exercised,''  amend- 


1.  See  sufra.  III,  9,  b,  (2). 

It  is  intimated  in  Joy  v.  Walker,  28 
Vt.  442,  that  such  amendments  can  be 
made  only  by  express  statutory  au- 
thority. 

2.  Bradleyz/.  Shafer,  65  Hun(N.  Y.) 
622. 

3.  Floyd  V.  Woods,  4  Yerg.  (Tenn.) 
165;  Richardson  v.  Johnson,  2  Call 
(Va.)  527.  See  supra.  III,  10,  d,  as  to 
amending  the  ad  damnum,  and  infra, 
III.  16,  c. 

Error  Cured. — Where  the  trial  judge 
allowed  an  amendment  after  verdict, 
but  stated  to  opposing  counsel  that  if 
they  would  show  by  affidavit  that  the 
defendant  had  any  defense  to  offer  to 
the  complaint  as  amended  which  had 
not  been  already  offered,  he  would 
either  refuse  to  allow  the  amendment 
or  would  set  aside  the  verdict,  it  was 
held  that  any  possible  error  was  cured. 
Morgan  v.  Smith,  95  N.  Car.  396. 

4.  Morse  v.  Whitcher,  64  N.  H.  591; 
Merrill  v.  Perkins,  59  N.  H.  343,  an 
amendment  changing  the  form  of  the 
action;  Buckminster  v.  Wright,  59  N. 
H.  153;  Peaslee  v.  Dudley,  63  N.  H. 
220;  Boudreau  v.  Eastman,  59  N.  H. 
407;  Roulo  V.  Valcour,  58  N.  H.  347; 
Janvrin  v.  Fogg,  49  N.  H.  340. 

5.  Lanning  v,  Dolph,  4  Wash.  (U. 
S.)  629. 

In  Thomas  v.  Leonard,  11  Wend. 
(N.  Y.)  53,  an  amendment  was  allowed 
after  motion  in  arrest   of    judgment; 


and  in  Williams  v.  Hingham,  etc.. 
Turnpike  Co.,  4  Pick.  (Mass.)  341, 
after  arrest  of  judgment,  the  court 
thereupon  granting  a  new  trial. 

6.  Tidd  Pr.  697;  Bacon's  Abr.,  tit. 
Amendment  and  Jeofail;  Heard's  Civil 
PI.  69;  Chouteau  v.  Hewitt,  10  M<^. 
131;  Van  Dyke  v.  Van  Dyke,  19  N.  j. 
L.  i;  State  Bank  v.  Simpson,  2  Spears- 
(S.  Car.)  41;  Travis  v.  Peabody  Ins. 
Co.,  28  W.  Va.  583;  Tabb  v.  Gregory, 
4  Call  (Va.),  225;  Shugart  v.  Orr,  5 
Yerg.  CTenn.)  192. 

The  court  may  set  aside  its  judg- 
ment during  the  term  and  allow  an 
amendment.  Herdic  v.  Woodward, 
75  Pa.  St.  479. 

7.  North  V.  Webster,  36  Minn.  99; 
Deere  v.  Nelson,  73  Iowa  186;  Field  v. 
Hawxhurst,  9  How.  Pr.(N.Y.  Supreme 
Ct.)  75;  Egert  V.  Wicker,  10  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193;  Cunliff 
V.  Delaware,  etc..  Canal  Co.  (Supreme 
Ct.),  4N.  Y.  St.  Rep.  775,  where,  how- 
ever, the  defendant  was  allowed  to 
amend  by  setting  up  the  statute  of 
limitations.  But  see  Clinton  v.  Eddy, 
54  Barb.  (N.  Y.)54;  Englis  v.  Furniss, 
3  Abb.  Pr.  (N.  Y.  C.  PI.)  82. 

In  O'Connell  v.  Cotter,  44  Iowa  48, 
and  Davis  v.  Chicago,  etc.,  R.  Co.,  S3 
Iowa  744,  an  amendment  was  allowed 
after  judgment. 

See  also  Spink  v.  McCall,  52  Iowa. 
432. 

In  O'Connell  v.  Cotter,  44  Iowa  48^ 


605 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc, 

ments  have  been  allowed  under  special  circumstances  even  after 
satisfaction  of  the  judgment.*     If  the    amendment   is  allowed, 


refusal  of  leave  to  amend  after  judg- 
ment was  held  under  the  circum- 
stances to  be  reversible  error. 

In  Bicklin  v.  Kendall,  72  Iowa  490, 
leave  to  amend  was  denied. 

In  Felch  v.  Beaudry,  40  Cal.  439, 
leave  was  refused  on  the  ground  of 
laches. 

In  Bespect  of  Parties. — In  Sherman  v. 
Fream,  8  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  33,  the  plaintiff  was  allowed  to 
strikeout  some  of  the  defendants  after 
judgment. 

In  Tasker  z/.  Wallace,  6  Daly(N.  Y.) 
364,  a  mistake  in  the  name  of  a  party 
was  amended  after  judgment  and  re- 
turn of  execution. 

Inserting  Demand  for  Return  of  Prop- 
erty.— In  Jaggar  v.  Cunningham,  8 
Daly  (N.  Y.),  511,  the  plaintiff,  in  an 
action  claiming  the  delivery  of  per- 
sonal property  from  defendant,  was 
allowed  to  amend  after  judgment  by 
inserting  a  demand  for  the  return  of 
the  property,  which  had  been  inadver- 
tently omitted,  the  court  setting  aside 
the  judgment  and  granting  a  new  trial. 

To  Conform  to  Judgment. — In  Martin 
•V.  Lott,  4  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  365,  an  amendment  of  the  answer 
was  allowed  after  judgment  so  as  to 
conform  thereto  in  respect  of  the  re- 
lief sought. 

Further  Defense  to  Counterclaim. — In 
Brady  v.  Nally,  26  Abb.  N.  Cas.  (N. 
Y.  Super.  Ct.)  367,  it  was  held  too 
late,  after  judgment  of  a  referee,  to 
amend  the  reply  by  setting  up  a  fur- 
ther defense  to  the  counterclaim. 

T  0  C  onf or  m  to  Eecord  Produced.  — W  h  e  re 
judgment  has  passed  in  favor  of  the 
defendant  on  a  plea  of  nul  tiel  record, 
the  court  will  not  allow  the  plaintiff  to 
amend  so  as  to  make  his  declaration 
conform  to  the  record  produced.  Gu- 
lick  V.  Loder,  15  N.  J.  L.  416. 

Substituting  Proper  Plaintiff. — In  Fer- 
ine V.  Grand  Lodge,  48  Minn.  82, 
where  a  suit  was  brought  on  behalf  of 
an  infant  but  in  the  name  of  the  guar- 
dian, an  amendment  was  allowed  after 
judgment  by  inserting  the  name  of 
the  ward  as  plaintiff. 

New  Allegations,  When  Not  Allowed. — 
In  North  v.  Webster,  3  Minn.  99,  it  was 
held  that  an  amendment  by  inserting 
new  allegations  in  complaint,  not  for 
the    purpose    of   conforming    to    the 


proof  nor  to  correct  a  mistake  or  error, 
could  not  be  allowed. 

Imperfect  Description. — In  Prey  v. 
Owens,  27  Neb.  862,  an  imperfect  de- 
scription of  the  land  in  controversy 
was  corrected  by  amendment  after 
judgment. 

Laches  of  Applicant. — In  Mills  v. 
Miller,,  3  Neb.  87,  there  was  no  error 
in  refusing  leave  to  file  an  amended 
answer  after  judgment  and  order  for 
partition  and  actual  partition  made 
and  reported  and  no  reason  assigned 
for  the  delay. 

After  Nonsuit. — Where  the  plaintiff 
has  been  nonsuited  the  court  may  set 
aside  the  nonsuit  and  allow  the  plain- 
tiff to  amend  even  where  he  made  no 
application  to  amend  on  the  trial. 
Balcom  v.  Woodruff,  7  Barb.  (N.  Y.) 
13;  Bennett  v.  New  York,  i  Sandf. 
(N.  Y.)  658;  Medbury  v.  Watson,  6 
Met.  (Mass.)  246;  Meadow  Co.  v.  Christ 
Church,  15  N.  J.  L.  52;  Nelson  v. 
Ayres,  12  N.  J.  L.  62;  Trask  v.  Duval, 
4  Wash.  (U.  S.)  97. 

But  leave  may  be  refused  on  the 
ground  of  laches,  or  where  for  other 
reasons  its  allowance  would  not  be 
in  furtherance  of  justice.  Bitterling 
V.  Deshler,  160  Pa.  St.  i. 

Additional  Counts. — The  plaintiff  may 
by  leave  of  the  court  after  verdict  and 
judgment  in  his  favor  on  one  count 
amend  his  declaration  by  inserting 
other  counts  for  the  same  cause  of  ac- 
tion and  take  a  general  verdict  on  all 
the  counts.  Kendall  v.  Garland,  5 
Gush.  (Mass.)  74. 

After  Default. — In  Bash  z'.Van  Osdol, 
75  Ind.  186,  after  judgment  against 
the  defendant  by  default  and  the  close 
of  the  term,  it  was  held  error  to  per- 
mit the  plaintiff  to  amend  so  as  to  af- 
fect the  damages. 

That  an  amendment  may  be  allowed 
afterdefault,see  Bondur  z/.  Le  Bourne, 
79  Me.  21. 

1.  In  Hatch  v.  Central  Nat.  Bank, 
78  N.  Y.  487,  it  was  held  that  after 
satisfaction  of  a  judgment  it  is  within 
the  discretion  of  the  court  to  vacate  it 
and  allow  an  amendment  of  the  com- 
plaint by  adding  a  new  cause  of  action, 
although  by  so  doing  the  statute  of 
limitations  is  avoided. 

In  Brown  v.  Van  Cleave,  86  Ky. 
381,  it  was  held  that  an  amendment 


606 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

the  judgment  should  be  vacated  in  order  to  give  the  opposite 
party  an  opportunity  to  controvert  the  new  allegations;*  or  a  sep- 
arate trial  should  be  had  upon  the  new  issues.* 

Amendments  may  be  allowed  after  judgment  in  order  to  con- 
form the  pleading  to  the  facts  proved.* 

Pending  Appeal  or  Writ  of  Error.— Whether  after  appeal  or  writ  of 
error  the  court  in  which  the  judgment  Avas  rendered  has  jurisdic- 
tion to  allow  an  amendment  of  the  pleadings,  is  a  question  upon 
which  the  decisions  are  not  uniform.* 

/.  In  Appellate  Courts — (i)  Where  the  Cause  is  Tried  upon 
the  Record. — Although  there  is  nothing  in  the  nature  of  an 
appellate  jurisdiction  proceeding  according  to  the  common  law 
which  forbids  the  granting  of  amendments,*  yet,  except  where 
amendments  are  made  or  considered  as  made  under  statutes  of 
jeofails  presently  to  be  noticed,  it  is  the  practice  of  appellate 
courts  reviewing  a  judgment  of  the  court  below  on  the  record  not 
to  entertain  original  motions  to  amend,  but  to  remand  the  cause 
for  the  purpose  of  making  amendments  which  are  found  to  be 
necessary.®     Amendments  of  such  a  nature  as  would  give    the 


after  judgment  discharged  was  a  null- 
ity, as  there  was  nothing  to  amend. 
See  also  Bicklin  v.  Kendall,  72  Iowa 
490. 

1.  Field  V.  Hawxhurst,  9  How.  Pr. 
(N.  Y.  Supreme  Ct.)  75;  Hatch  v.  Cen- 
tral Nat.  Bank,  78  N.  Y.  487;  Cunliflf 
V.  Delaware,  etc.,  Canal  Co.  (Supreme 
Ct.),  4  N.  Y.  St.  Rep.  775;  Roome  v. 
Jennings  (Super.  Ct.),  25  N.  Y.  Supp. 
461;  Boudinot  v.  Lewis,  3  N.  J.  L.  104; 
Neidenberger  z/.  Campbell,  11  Mo.  359, 
after  judgment  by  default;  Burbank 
v.  Harris,  32  La.  Ann.  395. 

2.  Field  v.  Hawxhurst,  9  How.  Pr. 
(N.  Y.  Supreme  Ct.)75. 

3.  Thomas  v.  Nelson,  69  N.  Y.  118; 
Egert  V.  Wickes,  10  How.  Pr.  (N.  Y. 
Supreme  Ct.)  193;  Hodge  v.  Sawyer, 
34  Wis.  397;  Davis  v.  Chicago,  etc., 
R.  Co.,  83  Iowa  744.  See  supra.  III, 
<),  b,  (2). 

4.  In  Goodnow  v.  Griswold,  68  Cal. 
599,  it  was  held  that  the  court  had  no 
further  jurisdiction  after  an  appeal. 
So  in  Ladd  v.  Couzins,  35  Mo.  513. 
.See  also  Clelland  v.  People,  4  Colo. 
244.  Contra,  Judson  v.  Gray,  17  How. 
Pr.  (N.  Y.  Ct.  of  App.)  289;  Wampler 
V.  Shissler,  i  W.  &  S.  (Pa.)  365. 

5.  Kennedy  v.  Georgia  State  Bank, 
8  How.  (U.  S.)  610.  where  the  court 
also  said  that  the  thirty-second  sec- 
tion of  the  judiciary  act  of  1789,  by 
which  it  is  enacted  that  all  the  courts 
cf  the  United   States  may  permit  the 


parties  to  amend  any  defect,  etc.,  is 
sufficiently  comprehensive  to  embrace 
causes  of  appellate  as  well  as  original 
jurisdiction.  See  also  Anonymous,  i 
Gall.  (U.  S.)  22;  Warren  v.  Moody,  9 
Fed.  Rep.  673;  Jackson  v.  Ashton,  10 
Pet.  (U.  S.)  480;  Rex  v.  Ponsonby,  i 
Wils.  303;  Pease  v.  Morgan,  7  Johns. 
(N.  Y.)468. 

6.  Brown  v.  Colie,  i  E.  D.  Smith  (N. 
Y.)  265;  Manatt  v.  Starr,  72  Iowa  677; 
Crocker  v.  Craig,  46  Me.  327;  Thomp- 
son z>.  Mclntire,  48  Me.  34;  Bamford 
V.  Bamford,  4  Oregon  30;  Stevens  v. 
Brooks,  22  Wis.  695.  See  also  Rowell 
V.  Bruce,  5  N.  H.  381. 

In  the  Federal  Courts. — This  is  the 
uniform  practice  in  the  United  States 
Supreme  Court,  unless  the  parties 
consent  to  the  amendment.  Garland 
V.  Davis,  4  How.  (U.  S.)  131;  Pacific 
R.  Co.  V.  Ketchum,  95  U.  S.  i;  Con- 
tinental Ins.  Co.  V.  Rhoads,  119  U.  S. 
237;  Halsted  v.  Buster,  119  U.  S.  341. 
See  also  infra.  III,  11,^. 

Substantial  Amendments. — It  was  held 
in  Grist  v.  Hodges,  3  Dev.  (N.  Car.) 
203,  and  Matlock  v.  Gray,  4  Hawks 
(N.  Car.)  I,  that  although  the  statute 
expressly  authorized  and  directed  the 
Supreme  Court  to  allow  amendments 
in  the  same  manner  as  they  could  have 
been  made  at  nisi  pr  ins  "  from  time  to 
time  "  and  "  atany  time,  in  anything," 
the  statute  also  contemplating  actual 
amendments  and  not  amendments  by 


607 


I 


Of  Pleadings,  etc  ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


opposite  party  a  right  to  amend  his  pleadings  and  thus  raise  new 
issues  cannot  be  allowed.* 

By  Consent  of  Parties. — Amendments  of  pleadings  may  be  allowed 
in  the  appellate  court  by  consent  of  both  parties  in  cases  where 
it  would  otherwise  be  contrary  to  the  practice  of  the  court.* 

The  Statute  of  Jeofails  usually  declares  that  the  court  in  every 
stage  of  the  action  must  disregard  any  error  or  defect  in  the 
pleadings  or  proceedings  which  does  not  affect  the  substantial 
rights  of  the  adverse  party,  and  that  no  judgment  shall  be  re- 
versed or  affected  by  reason  of  such  error  or  defect.^     By  virtue 


merely  disregarding  defects,  yet  the 
discretion  of  the  court  was  limited  by 
the  nature  of  appellate  jurisdiction, 
and  amendments  of  substance  could 
not  be  allowed  when  the  result,  either 
necessarily  or  by  the  equity  of  the 
court,  would  be  to  let  in  a  new  plea 
or  replication.  In  the  case  last  cited 
the  court  was  "  wholly  at  a  loss  to 
conceive  a  case  where  it  would  be 
proper  to  exercise  this  power,  for 
every  amendment  in  substance  pre- 
sents a  different  statement  of  facts 
which  the  adverse  party  should  have 
an  opportunity  of  controverting."  See 
also  Williamson  v.  Canaday,  3  Ired. 
(N.  .Car.)  3J9;  State  v.  Broughton,  7 
Ired.  (N.  Car.)  96;  Justices  v.  Sim- 
mons, 3  Jones  (N.  Car.)  187. 

Where  the  Becord  is  Removed. — Where 
the  record  itself  is  removed  to  the  ap- 
pellate court  the  latter  may  allow 
amendments.  Van  Dyke  v.  Van  Dyke, 
ig  N.  J.  L.  I.  See  also  Pease  v.  Mor- 
gan, 7  Johns.  (N.  Y.)  468;  Miller  v. 
Weeks,  22  Pa.  St.  8g. 

In  Rhode  Island. — Under  the  Rhode 
Island  statute  which  provides  that 
where  a  case  has  been  brought  to  the 
Supreme  Court  by  bill  of  exceptions, 
that  court  "may  take  such  order 
therein  as  the  Court  of  Common  Pleas 
ought  to  have  done,  and  shall  cause 
such  other  proceedings  to  be  had  in 
the  cause  as  to  law  and  justice  shall 
appertain,"  where  the  Supreme  Court 
overrules  a  plea  for  technical  insuf- 
ficiency, it  may  defer  final  judgment 
and  give  the  defendant  opportunity  to 
move  for  leave  to  amend.  Wright  v. 
Card,  16  R.  I.  719. 

Making  New  Issues. — After  a  case  is 
reserved  to  the  Supreme  Court  upon 
issues  joined  and  an  agreed  state 
ment  of  facts,  no  change  of  the  plead- 
ings making  new  issues  and  requiring 
further  evidence  will  be  allowed  un- 
less it  is  made  clear  that  without  it 


the  rights  of  a  party  maybe  sacrificed 
or  plain  injustice  done.  Wiswell  v. 
First  Congregational  Church,  14  Ohio 
St.  31. 

1.  Matlock  V.  Gray,  4  Hawks  (N. 
Car.)  i;  Justices  v.  Simmons,  3  Jones 
(N.  Car.)  187. 

2.  In  Fletcher  v.  Peck,  6  Cranch  (U. 
S.)  87,  by  consent  the  pleadings  were 
amended  by  giving  substance  to  a 
plea  otherwise  bad.  And  in  Kennedy 
V.  Georgia  State  Bank,  8  How.  (U.  S.) 
610,  by  consent  of  both  parties  the 
record  was  amended  so  as  to  show  the 
requisite  diversity  of  citizenship  of 
the  parties. 

3.  Under  the  federal  judiciary  act 
of  1789  only  defects  of  form  are  cured 
by  judgment.  Smith  v.  Jackson,  I 
Paine  (U.  S.)  486;  Garland  v.  Davis,  4 
How.  (U.  S.)  131.  See  further  Hill  v. 
Stocking,  6  Hill(N.  Y.)  277. 

Changing  Form  of  Action. — In  Strock 
V.  Little,  33  Pa.  St.  409,  it  was  held 
that  no  statute  of  jeofails  could  cure 
an  error  in  allowing  an  amendment 
changing  the  form  of  action  from  as- 
sumpsit to  account  render. 

Defects  Cured  by  Verdict. — With  re- 
spect to  such  imperfections  as  are 
cured  by  a  verdict  by  the  common  law, 
"it  is  to  be  observed  that  where  there 
is  any  defect,  imperfection,  or  omis- 
sion in  any  pleadings,  whether  in 
substance  or  form,  which  would  have 
been  a  fatal  objection  upon  demurrer; 
yet  if  the  issue  joined  be  such  as  nec- 
essarily required  on  the  trial  proof 
of  the  facts  so  defectively  or  imper- 
fectly stated  or  omitted,  and  without 
which  it  is  not  to  be  presumed  that 
either  the  judge  would  direct  the  jury 
to  give,  or  the  jury  would  have  given, 
the  verdict,  such  defect,  imperfection, 
or  omission  is  cured  by  the  verdict  by 
the  common  law."  Bac.  Abr.  Amend- 
ment and  Jeofail,  B.  Emerson  v.  La- 
kin,  23  Me.  384. 


608 


Of  Pleadings,  etc.,  at  AMEN^DMENTS.   Common  Law,  under  Codes,  etc. 


of  these  provisions  defects  in  the  pleadings  or  proceedings  which 
the  trial  court  would  have  given  leave  to  amend,  had  application 
been  made,  will  be  considered  as  amended  in  the  appellate  court* 


1.  Michigan. — Warder  v.  Gibbs,  92 
Mich.  29;  Enright  v.  Standard  L.,etc., 
Ins.  Co. ,91  Mich.  23S;  Smith  v.  Pinney, 
86  Mich.  484;  Bole  v.  Sands,  etc.,  Lum- 
ber Co.,  77  Mich.  239;  Johnson  v. 
Spear,  82  Mich.  453;  Wright  v.  Treat, 
83  Mich.  no. 

Ne-Li)  York. — Rowland  v.  Sprauls  Co. 
(Supreme  Ct.),  21  N.  Y.  Supp.  895; 
Cady  V.  Allen,  22  Barb.  (N.  Y.)  388, 
affi.r7ned  in  66  Hun  (N.  Y.)  635;  Ackley 
V.  Tarbox,  31  N.  Y.  564,  where  an 
unnecessary  party  was  struck  out; 
Reeder  v.  Savre,  70  N.  Y.  181:  Schultz 
V.  Third  Ave.  R.  Co.,  89  N.  Y.  242; 
Rockfeller  v.  Donnely,  8  Cow.  (N. 
Y.)623;  Coates  v.  Donnell,  48  N.  Y. 
Super.  Ct.  46;  Sharp  v.  New  York, 
25  How.  Pr.  (N.  Y.  Supreme  Ct.)  389; 
Bate  V.  Graham,  11  N.  Y.  237;  Havana 
Bank  v.  Magee,  20  N.  Y.  355. 

Florida. — McKay  v.  Triebele,  8  Fla. 
21. 

Nebraska. — Humphries  v.  Spafford, 
14  Neb.  488. 

North  Carolina. — Baxter  v.  Baxter, 
3  Jones  (N.  Car.)  303;  Wilson  v.  Pear- 
son, 102  N.  Car.  290;  Weed  v.  Richard- 
son, 2  Dev.  &  B.  (N.  Car.)  535. 

Virginia. — Hook  v.  Turnbull,  6  Call. 
(Va.)  85. 

Kansas. — Missouri  Valley  R.  Co.  v. 
Caldwell,  8  Kan.  244;  Sandford  z/.Will- 
etts,  29  Kan.  647  ;  Excelsior  Mfg.  Co. 
V.  Boyle,  46  Kan.  202;  Wilcox,  etc.. 
Organ  Co.  v.  Lasley,  40  Kan.  521. 

Indiana. — Numbers  v.  Bowser,  29 
Ind.  491;  Hamilton  v.  Winterrowd,  43 
Ind.  393;  Elmore  v.  McCrary,  80  Ind. 
544;  Alden  v.  Barbour,  3  Ind.  414; 
Lawrenceburgh  Ferry  Boat  v.  Smith, 
7  Ind.  520;  Key  v.  Robinson,  8  Ind. 
368;  Langdon  v.  Bullock,  8  Ind.  341; 
Alvord  V.  Moffatt,  10  Ind.  366;  Eber- 
sole  V.  Redding,  22  Ind.  232;  Lowry 
V.  Dutton,  28  Ind.  473;  First  Presby- 
terian Church  V.  Lafayette,  42  Ind. 
115  ;  Voris  v.  State,  47  Ind.  345  ; 
Rundles  v.  Rundles,  63  Ind.  93  ; 
Schieble  v.  Law,  65  Ind.  332;  Singer 
Mfg.  Co.  V.  Doxey,  65  Ind.  65; 
Bauman  v.  Grubbs,  26  Ind.  419,  a 
mistake  in  the  name  of  a  party;  Bil- 
lingsley  z/.  Dean,  11  Ind.  331;  Shaw  z/. 
Binkard,  10  Ind.  227;  Lemen  v.  Young, 
14  Ind.  3;  Ke-tuc-e-mun-guah  v.  Mc- 
Clure,  122  Ind.  541. 


Washington  Territory.  —  Tolmie  v. 
Dean,  i  Wash.  Ter.  46. 

Missouri. — Young  v.  Glascock,  79 
Mo.  574;  Zarbec  v.  Steamboat,  19  Mo. 
141. 

Pennsylvania. — Waite  v.  Palmer,  78 
Pa.  St.  192;  Morris  v.  McNamee,  17  Pa. 
St.  173;  Shaffer  v.  Eichert,  132  Pa.  St. 
285;  Thornton  v.  Britton,  144  Pa.  St. 
126;  Westcott  V.  Edmunds,  68  Pa.  St. 
34;  Loew  V.  Stocker,  61  Pa.  St.  347; 
Barnhill  v.  Haigh,  53  Pa.  St.  165; 
Quinn  v.  Woodhouse,  26  Pa.  St.  332; 
Bailey  v.  Fairplay,  6  Binn.  (Pa.)  450; 
Cummings  v.  Lebo,  2  Rawle  (Pa.) 
23;   Fritz  V.   Heyl,  8  W.  N.   C.  (Pa.) 

374. 

Kentucky.  —  Kennedy  v.  Woods,  3 
Bibb  (Ky.)  322. 

New  Jersey. — Hasbrouck  v.  Winkler, 
48  N.  J.  L.  431. 

Nevada. — McManus  v.  Ophir  Silver 
Min.  Co.,  4  Nev.  15. 

Maine. — Page  v.  Danforth,  53  Me. 
174;  Conway  Fire  Ins.  Co.  v.  Sewall, 
54  Me.  352. 

Alabafna. — Thompson  v.  Pierce,  3 
Stew.  (Ala.)  427;  Boddie  v.  Ely,  3 
Stew.  (Ala.)  182;  Galliard  v.  Dubose, 
34  Ala.  207;  Alabama  C.  M.  E.  Church 
V.  Price.  42  Ala.  39. 

Georgia. — Artope  v.  Barker,  74  Ga. 
462. 

Stipulation  for  Amendment. — If  there 
is  an  agreement  to  amend  by  the  at- 
torneys in  the  court  below,  the  Su- 
preme Court  will  give  leave  to  amend 
after  error  brought  and  without  costs. 
Johnson  v.  Chaffant,  i  Binn.  (Pa.) 
75- 

Striking  Out  Surplusage. — A  declara- 
tion containing  two  considerations  for 
a  contract  may  be  amended  in  the 
Supreme  Judicial  Court  after  verdict 
taken  in  the  Court  of  Common  Pleas 
on  proof  of  one  only,  and  exceptions 
on  that  ground,  by  striking  out  the 
consideration  not  proved,  the  plaintiff 
taking  no  costs  since  the  trial.  Stone 
V.  White,  8  Gray  (Mass.)  589. 

Prayer  for  Relief. — Where  the  prayer 
for  relief  exceeds  the  amount  of  dam- 
ages claimed  in  either  count  and  the 
verdict  is  for  a  sum  larger  than  in 
either  couut  but  less  than  the  amount 
prayed  for,  the  complaint  may  be 
amended     in     the      appellate     court. 


1  Encyc.  PI.  &  Pr. — 39. 


609 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


in  order  to  support  the  judgment*  where  the  merits  of  the  case 
have  been  fully  tried.* 


Schultz  V.  Third  Ave.  R.  Co.,  89  N.  Y. 
242. 

Defective  Denial. — A  defective  denial 
may  be  amended  so  as  to  support  the 
judgment  in  favor  of  the  defendant. 
Hoffman  v.  New  York,  etc.,  R.  Co., 
50  N.  Y.  Super.  Ct.  403. 

Changing  Character  of  Plaintiff. — An 
amendment  may  be  allowed  in  the  ap- 
pellate court  changing  the  character 
or  right  in  which  the  plaintiff  sued, 
where  it  would  have  been  allowed  at 
the  trial.  Reeder  v.  Sayre,  70  N.  Y. 
181;  Risley  v.  Wightman,  13  Hun  (N. 
Y.)i63. 

Changing  Party. — But  not  by  substi- 
tuting another  party  as  defendant. 
Bassett  v.  Fish,  75  N.  Y.  303. 

In  Cutshaw  v.  Fargo  (Ind.,  1894),  36 
N.  E.  Rep.  650,  an  amendment  mak- 
ing a  radical  change  of  one  of  the 
parties  was  not  allowed. 

Misnomer. — A  variance  between  the 
declaration  and  summons  in  stating 
the  name  of  the  defendant  may  be 
considered  as  cured  by  amendment. 
Bole  V.  Sands,  etc..  Lumber  Co.,  77 
Mich.  239. 

Formal  Defect  of  Party. — So  a  defect 
in  declaring  in  the  name  of  the  board 
of  directors  instead  of  in  the  name  of 
the  county.  John  v.  St.  Clair  County, 
38  Mich.  532. 

Where  an  action  on  an  administra- 
tion bond  was  brought  in  the  name  of 
the  administrator  de  bonis  no7i,  instead 
of  in  the  name  of  the  state  on  his  re- 
lation, an  amendment  making  the 
proper  plaintiff  will  be  allowed  in  the 
Supreme  Court  without  terms  where 
the  objection  was  taken  for  the  first 
time  in  the  appellate  court.  Grant  v. 
Rogers,  94  N.  Car.  755. 

Error  in  Entitling  Cause. — A  formal 
error  in  entitling  the  case  is  regarded 
as  amended.  Browner  v.  Davis,  15 
Cal.  9. 

Suit  on  Defective  Becognizance.  — 
Where  by  statute  the  plaintiff  or  re- 
lator in  a  suit  on  a  defective  recogni- 
zance may  suggest  the  defect  in  his 
complaint  and  recover  to  the  same  ex- 
tent as  if  the  recognizance  were  per- 
fect, the  failure  to  make  such  sug- 
gestion will  be  considered  as  supplied 
by  amendment.  Patterson  v.  State, 
10  Ind.  296. 

Misjoinder  of  Causes  of  Action.  — 
Error,  if  any,  in  joining  with  a  peti- 
tion to  enforce  a  lien  for  a  certain  sum 


a  count  in  assumpsit  for  another  sum 
for  which  no  lien  was  claimed  is  cured 
after  verdict  by  the  statute  of  jeofails. 
Noble  v.  Terrell,  64  Miss.  830. 

Omission  of  Ad  Damnum. — The  omis- 
sion of  an  ad  damnum  in  the  declara- 
tion will  be  considered  as  amended. 
Hook  V.  Turnball,  6  Call  (Va.)  85.  See 
Stephens  v.  White,  2  Wash.  (Va.)  203; 
Eaton  V.  Case,  17  R.  I.  429. 

Amendment  of  Ad  Damnum. — Where 
the  damages  laid  in  the  writ  were  suf- 
ficient, but  in  the  declaration  insuf- 
ficient to  cover  the  verdict,  the  defect 
was  cured  by  judgment.  Kennedy  v. 
Woods,  3  Bibb  (Ky.)  322.  See  also 
Miller  v.  Weeks,  22  Pa.  St.  89.  Com- 
pare Dunbar  v.  Bittle,  7  Wis.  143, 
where  there  was  nothing  to  amend  by. 

To  Conform  to  Findings. — When  the 
value  of  plaintiff's  services  is  found  to 
be  more  than  the  amount  alleged  in 
the  complaint,  the  latter  cannot  be 
amended  to  conform  to  the  findings  of 
the  court.  Perkins  v.  West  Coast  Lum- 
ber Co.  (Cal.,  1893),  33  Pac.  Rep.  1118. 

To  Conform  to  Verdict. — Hooper  v. 
Wells,  27  Cal.  II,  holds  that  the  com- 
plaint cannot  be  amended  in  the  Su- 
preme Court  to  correspond  with  the 
verdict. 

1.  Such  amendments  in  the  appellate 
court  are  allowed  only  in  support  of 
the  judgment,  Johnston  v.  Hubbell, 
Wright  (Ohio)  69;  Grist  v.  Hodges,  3 
Dev.  (N.  Car.)  198;  Longrill  v.  Downey 
(Super  Ct.),  27  N.  Y.  St.  Rep.  51;  and 
cannot  be  allowed  for  the  purpose  of 
reversing  it.  Volkening  v.  DeGraaf, 
81  N.  Y.  268. 

Where  the  effect  of  an  amendment 
would  be  to  reverse  a  judgment  of  the 
court  below  rightly  given  and  to  enter 
judgment  for  a  different  party  plain- 
tiff, such  amendment  will  not  be  al- 
lowed. Justices  V.  Simmons,  3  Jones 
(N.  Car.)  187. 

When  a  petition  shows  a  cause  of 
action  in  one  plaintiff  only  and  a  judg- 
ment is  rendered  in  favor  of  both, 
such  judgment  is  not  merely  irregular 
but  is  erroneous;  and  it  cannot  be 
amended  in  the  appellate  court  by 
striking  out  the  name  of  the  party  in 
whose  favor  the  judgment  was  erro- 
neously entered,  as  such  a  change 
would  not  be  in  furtherance  of  justice. 
Megher  v.  Stewart,  6  Mo.  App.  498. 

2.  Omission  of  Necessary  Allegation. — 
Where  a  complaint  omits  a  necessary 


610 


Ci  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Complaint  Bad  on  Demurrer. — In  no  case  will  a  complaint  be  deemed 
amended  on  appeal  which  is  so  defective  that  a  demurrer  for 
want  of  sufficient  facts  to  constitute  a  cause  of  action  should  be 
sustained  where  the  question  in  the  appellate  court  arises  upon 
the  correctness  of  the  ruling  of  court  below  upon  the  demurrer.* 

Neglect  to  Apply  for  Leave. — Nor  will  the  appellate  court  consider 
an  amendment  as  made  where  a  party  declined  to  ask  for  le^ve 
to  amend  after  his  attention  was  called  to  a  defect  by  an  objec- 
tion thereto.* 

To  Conform  to  Proof. — In  this  manner  amendments  may  be  made  in 
order  to  conform  to  the  proof.' 

Amendments  Considered  as  Made. — The  general  rule  is  that  these 
amendments  need  not  in  fact  be  made,  and  that  the  benefit  is 
obtained  by  overlooking  the  exception,  or  considering  the  amend- 
ment as  made.* 

(2)  Where  the  Trial  is  De  Novo. — In  cases  brought  to  inter- 
mediate appellate  courts  for  trial  de  novo  on  appeal  from  inferior 
courts,  the  power  to  allow  amendments  is  either  regulated  by 
express  statute,'  or  is  deduced  from  the  general  provisions  which 


allegation,  but  the  course  of  the  trial 
is  the  same  as  if  such  allegation  had 
not  been  omitted,  the  complaint  may 
on  appeal  be  amended  and  will  not  be 
remanded  for  that  purpose.  Rowland 
V.  Sprauls  (Supreme  Ct.),  21  N.  Y. 
Supp.  895,  afd  66  Hun  (N.  Y.)  635. 

Making  a  Different  Case. — An  amend- 
ment will  not  be  allowed  where  a  dif- 
ferent case  might  have  been  presented 
had  the  amendment  been  made  in  the 
court  below.  Fitch  v.  New  York,  88 
N.  Y.  500. 

1.  Sinker  v.  Fletcher,  61  Ind.  276; 
Utica  Township  v.  Miller,  62  Ind.  230; 
Friddle  v.  Crane,  68  Ind.  583;  John- 
son V.  Breedlove,  72  Ind.  368. 

2.  Davidson  v.  Weems,  58  Ala.  187. 

3.  See  supra.  III,  9,  b,  (2). 

4.  Eakin  v.  Burger,  i  Sneed  (Tenn.) 
417;  McBee  v.  Petty,  3  Coldw.  (Tenn.) 
178;  Beeler  v.  Huddleston,  3  Coldw. 
(Tenn.)  201;  Rowell  v.  Bruce,  5  N.  H. 
381. 

5.  Missouri. — In  all  cases  of  appeals, 
the  bill  of  items  of  the  account  sued 
on  or  filed  as  a  counterclaim  or  set-off, 
or  of  defendant's  counterclaim  or  set- 
off, or  other  grounds  of  defense  filed 
before  the  justice,  may  be  amended 
upon  appeal  in  the  appellate  court  to 
supply  any  deficiency  or  omission 
therein,  when  by  such  amendment 
substantial  justice  will  be  promoted; 
but  no  new  item  or  cause  of  action 
not  embraced  or  intended  to  be  in- 
cluded   in    the    original    account    or 

6 


statement  shall  be  added  by  such 
amendment.  Rev.  Stat.  Mo.  18S9,  § 
6347. 

Insufficient  Statement. — That  an  in- 
suflSciency  in  the  statement  may  be 
amended  after  a  case  has  reached  the 
Circuit  Court,  see  Schulte  v.  St.  Louis, 
etc.,  R.  Co.,  76  Mo.  324;  Allen  v.  Mc- 
Monalge,  77  Mo.  478;  Dryden  v.  Smith, 
79  Mo.  525;  Minter  v.  Hannibal,  etc., 
R.  Co.,  82  Mo.  128;  Eubank  v.  Pope, 
27  Mo.  App.  463;  South  Missouri  Land 
Co.  V.  Jaffries,  40  Mo.  App.  360;  Crum 
V.  Elliston,  33  Mo.  App.  591. 

In  Webb  v.  Robertson,  74  Mo.  380, 
it  was  held  reversible  error  to  refuse 
leave  to  the  plaintiff  to  file  an  amended 
statement  which  did  not  state  a  new 
cause  of  action,  but  only  perfected  an 
imperfect  statement  which  had  already 
been  filed  before  the  justice. 

An  omission  to  state  that  the  land 
was  situated  in  the  county  in  which 
the  suit  was  brought  may  be  supplied 
by  amendment  by  the  Circuit  Court. 
McKinney  v.  Harral,  36  Mo.  App.  337. 

Where  the  account  filed  before  a 
justice  did  not  set  out  the  specific 
items  of  goods  sold  for  which  the 
action  is  brought,  an  amendment  set- 
ting them  out  in  detail  was  properly 
allowed  in  the  Circuit  Court  on  ap- 
peal. Rathburn  v.  Teeter,  25  Mo. 
App.  283. 

After  Remand  from  Court  of  Last 
Resort. — A  statement  before  a  justice 
which  is  held   insufficient  by  the  Su- 

II 


Of  Pleadings,  etc.,  at 


AMENDMENTS.   Common  Law,  under  Codes,  etc. 


preme  Court  may  be  amended  in  a 
Circuit  Court,  after  the  cause  has 
been  remanded  thereto,  if  warranted 
by  the  facts.  Manz  v.  St.  Louis,  etc., 
R.  Co.,  87  Mo.  278. 

Enlarging  Claim  for  Damages. — A 
complaint  in  an  action  of  unlawful 
detainer  may  be  amended  in  the  Cir- 
cuit Court  on  appeal  from  a  justice 
by  enlarging  the  claim  for  damages. 
Lucas  V.  Fallon,  40  Mo.  App.  551. 

Where  the  r.covery  before  the  jus- 
tice was  for  the  amount  claimed,  the 
plaintiff  cannot  amend  in  a  Circuit 
Court  on  appeal  so  as  to  enable  him 
to  recover  double  that  amount. 
Boughton  V.  St.  Louis,  etc.,  R.  Co., 
25  Mo.  App.  ID. 

Adding  Item  to  Account. — On  an  ap- 
peal from  a  justice  in  an  action  upon 
an  account,  the  plaintiff  may  amend 
his  statement  after  the  evidence  is  all 
in  by  the  addition  of  another  item. 
Sprague  v.  FoUett,  90  Mo.  547. 

JVames  of  Parties. — Where  the  suit 
before  the  justice  is  brought  in  the 
name  of  a  firm,  an  amendment  may 
be  allowed  on  appeal  in  the  Circuit 
Court  by  inserting  the  names  in  full  of 
all  the  members  of  the  firm.  Beattie 
V.  Hill,  60  Mo.  72. 

A  mistake  in  the  name  of  a  party 
may  be  rectified  in  like  manner. 
House  V.  Duncan,  50  Mo.  453. 

New  Cause  of  Action. — That  a  new 
cause  of  action  cannot  be  introduced, 
see  Sturges  v.  Botts,  24  Mo.  App.  283; 
Clark  V.  Smith,  39  Mo.  498;  Gregory 
V.  Wabash,  etc.,  R.  Co.,  20  Mo.  App. 
448;  Kitchen  V.  Missouri  Pac.  R.  Co., 
82  Mo.  686;  Mitchell  v.  Missouri  Pac. 
R.  Co.,  82  Mo.  106;  and  Shaffner  v. 
Leahy,  21  Mo.  App.  no,  where  the 
proposed  amendment  was  held  not  ob- 
jectionable on  that  ground;  Hans- 
berger  v.  Missouri  Pac.  R.  Co.,  43 
Mo.  196;  Webb  v.  Robertson,  74  Mo. 
380;  Smith  V.  Anthony,  5  Mo.  504. 

An  amendment  on  appeal  from  a 
justice,  changing  the  action  from  one 
on  an  open  account  to  one  on  an  ac- 
tion stated,  does  not  change  the  cause 
of  action.  Newberger  v.  Friede,  23 
Mo.  App.  631. 

What  was  "  intended  to  be  in- 
cluded" in  the  original  statement, 
within  the  meaning  of  the  statute, 
must  be  gleaned  from  the  face  of  the 
statement.  Gregory  v.  Wabash,  etc., 
R.  Co.   20  Mo.  App.  448. 

Where  the  statement  before  the 
justice   wholly   fails    to    set    forth   a 


cause  of  action,  it  cannot  be  amended 
on  appeal.  Brashears  v.  Strock,  46 
Mo.  221;  Gist  V.  Loring,  60  Mo.  487. 

On  Appeal  from  Probate  Court.  — 
Amendments  not  changing  the  cause 
of  action  may  be  made  in  the  Circuit 
Court  on  appeal  from  the  Probate 
Court.      Hunt  v.  Bouton,  63  Mo.  187. 

Such  amendments  are  favored,  in 
furtherance  of  justice,  where  a  new 
cause  of  action  is  not  introduced. 
Goddard  v.  Williamson,  72  Mo.  131, 
where  plaintiff  was  permitted  to  amend 
by  adding  certain  credits,  thereby 
avoiding  the  plea  of  the  statute  of 
limitations. 

Connecticut  —  Appeals  from  Justices. 
—  The  Practice  Act  provides  that 
either  party  in  actions  appealed  from 
a  justice  of  the  peace  may  amend 
during  the  first  term  of  the  appellate 
court  by  introducing  any  equitable 
right,  cause  of  action,  defense,  set-off, 
or  counterclaim,  subject  to  the  rules 
as  to  joinder  of  causes  of  action. 
This  provision  was  construed  to  give 
an  absolute  right  to  amend  during  the 
first  term,  but  not  to  deprive  the  court 
of  a  discretionary  power  to  permitsuch 
amendments  upon  proper  terms  at  a 
later  period.  Bennett  v.  Collins,  52 
Conn.  I. 

The  plaintiff  cannot  be  allowed  to 
abandon  his  cause  of  action  for  an- 
other within  the  original  jurisdiction 
of  the  appellate  court.  Colvin  v. 
Peck,  62  Conn.  155. 

Appeals  from  Commissioners . — Conn. 
Gen.  Stat.,  1888,  §  1029,  provides  that 
in  the  Superior  Court,  on  appeals 
from  commissioners  "  the  claimant 
shall  have  leave  to  amend  any  defect, 
mistake,  or  informality  in  the  state- 
ment of  the  claim  not  changing  the 
ground  of  the  action."  The  term 
"ground  of  action"  refers  to  what 
was  the  real  object  of  the  claimant  in 
making  his  claim.  Donahue's  Ap- 
peal, 62  Conn.  370. 

Kansas. — Sec.  74  of  the  Justice's 
Code  provides  that  "  the  bill  of  par- 
ticulars may  be  amended  at  any  time 
before  the  trial  or  during  the  trial,  or 
upon  appeal,  to  supply  any  deficiency 
or  omission  in  the  items,  when  by 
such  amendment  substantial  justice 
will  be  promoted." 

An  amendment  was  sustained  as  a 
proper  exercise  of  discretion  in  Mis- 
souri Pac.  R.  Co.  V.  Piper,  26  Kan.  58, 
and  Kansas  City,  etc.,  R.  Co.  v.  Hays, 
29  Kan.  193,  the  court  holding  in  both 


612 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

prescribe  the  jurisdiction  of  or  procedure  in  the  appellate  court.* 


cases  that  the  amendment  did  not  in- 
troduce a  new  cause  of  action. 

Tennessee — C«  Appeal  from  Justice 
of  the  Peace. — By  §  4177  of  the  Code, 
the  Circuit  Court  has  the  power  to 
permit  an  original  motion  against  an 
officer  brought  into  court  by  appeal 
from  a  justice  to  be  so  amended  as  to 
make  the  suit  one  as  well  for  the  de- 
linquency for  which  it  was  brought 
before  the  justice  as  for  all  insufficient 
returns  of  the  same  execution.  King 
V.  Breeden,  2  Coldw.  (Tenn.)  455. 

An  appeal  by  the  original  debtor 
from  a  justice's  judgment  on  garnish- 
ment does  not  bring  up  the  case  as  to 
the  garnishee,  and  he  cannot  amend 
his  answer  in  the  Circuit  Court.  The 
judgment  of  the  justice  is  conclusive 
as  to  him.  Bryant  v.  Bigelow,  9  Lea 
(Tenn.)  135. 

In  a  case  coming  by  appeal  from  a 
justice  of  the  peace,  it  is  error  to 
allow  an  amendment  changing  the 
form  of  the  action  from  debt  on  ac- 
count to  trespass  after  the  court  has 
commenced  charging  the  jury.  Sec. 
2S69  of  the  Code  permits  a  change  in 
the  form  of  action  upon  terms  as  to 
continuance,  etc.,  which  implies  that 
such  amendment  must  be  made  before 
trial.  Smith  v.  Large,  i  Heisk. 
(Tenn.)  5. 

Michigan — On  Appeal  from  Justice  of 
the  Peace. — The  issue  before  the  jus- 
tice cannot  be  substantially  changed 
in  the  Circuit  Court  on  appeal.  Hatz- 
enbuhler  v.  Lewis,  51  Mich.  585 ; 
Graham  v.  Langston,  65  Mich.  45; 
Bureau  v.  Marshall,  55  Mich.  234, 
holding  that  a  plea  of  title  in  trespass 
quare  clausum  must  be  entered  when 
issue  is  joined  and  cannot  be  intro- 
duced on  appeal. 

The  claim  of  neither  party  can  be 
enlarged  on  appeal.  Cross  v.  Eaton, 
48  Mich.  184.  See  also  Evers  v. 
Sager,  28  Mich.  47. 

The  allowance  of  an  amendment 
which  tenders  no  new  issue  and  is  not 
then  objected  to  will  not  be  deemed 
prejudicial.  Kennedy  v.  Brown,  50 
Mich.  336, 

A  declaration  in  assumpsit  may  be 
amended  on  appeal  from  a  justice  so 
as  to  show  that  the  plaintiff  claims  as 
assignee.  Donovan  v.  Halsey  Fire 
Engine  Co.,  58  Mich.  38. 

A  declaration  in  the  name  of  several 
plaintiffs  as  copartners  after  the  death 

6 


of  one  of  them  may  be  amended  by 
allowing  the  remaining  plaintiffs  to 
declare  as  surviving  partners.  O'Con- 
nel  V.  Schwanabeck,  76  Mich.  517; 
Cragin  v.  Gardner,  64  Mich.  399. 

Where,  upon  appeal  from  a  justice, 
there  was  no  declaration  in  the  jus- 
tice's return,  it  having  been  lost,  it 
was  proper  to  permit  the  plaintiff  to 
file  a  copy  of  the  declaration  and  thus 
complete  the  record.  Bauer  v.  Was- 
son,  60  Mich.  194. 

An  amendment  setting  out  the  time 
or  circumstances  in  an  action  to  recover 
a  penalty  may  be  made  in  the  Circuit 
Court  on  appeal.  Canal  St.  Gravel 
Road  Co.  V.  Paas,  95  Mich.  372. 

Wisconsin. — On  appeal  from  a  jus- 
tice court,  the  circuit  court  may  per- 
mit the  pleadings  to  be  amended  so  as 
to  present  issues  which  could  not  have 
been  tried  before  the  justice.  State  v. 
Preston,  34  Wis.  675. 

Oregon. — The  Oregon  statute  pro- 
vides that  in  cases  appealed  to  the 
Circuit  Court  the  case  shall  stand  for 
trial  on  the  papers  and  pleadings  in 
the  court  below,  but  that  either  party 
may  amend  on  terms,  etc.  Upon  an 
appeal  from  an  inferior  court  to  the 
Circuit  Court,  no  amendment  which 
substantially  changes  the  issues  tried 
in  the  court  below  can  be  allowed. 
Moser  v.  Jenkins,  5  Oregon  447;  Cain 
V.  Harden,  i  Oregon  360;  Monroe  v. 
N.  P.  Coal  Mine  Co.,  5  Oregon  509; 
Rohr  V.  Isaacs,  8  Oregon  451. 

Federal  Courts. — As  to  the  power  of 
the  federal  Circuit  Courts  on  appeal 
from  District  Courts,  see  Smith  v. 
Jackson,  i  Paine  (U.  S.)  486;  Anony- 
mous, I  Gall.  (U.  S.)  22. 

1.  New  York — Appeals  from  Justices. 
— Under  the  former  New  York  Code  it 
was  held  that  neither  the  Supreme 
Court  nor  the  County  Court  had  power 
to  amend  the  pleadings  in  a  case  origi- 
nating in  a  justice  court.  Gould  v. 
Glass,  19  Barb.  (N.  Y.)  179;  Bellinger 
V.  Ford,  14  Barb.  (N.  Y.)  250.  See 
also  Reno  v.  Millspaugh,  14  Hun  (N. 
Y.)  229;  Burch  V.  Spencer,  15  Hun  (N. 
Y.)  508. 

Under  the  present  Code,  although 
it  was  said  in  Cook  v.  Waterford  (Su- 
preme Ct.,  (25  N.  Y.  St.  Rep.  90,  6  N. 
Y.  Supp.  616,  that  "  in  causes  which 
arise  in  justices'  courts  and  are  ap- 
pealed to  the  County  Court,  where  a 
new  trial  is  demanded,  the  pleadings 

13 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Where  the  statute  requires  the  action  to  be  tried  in  the  appel- 
late court  as  if  it  were  originally  commenced  there,  the  complaint 


should  not  be  changed  in  the  appellate 
court  unless  it  is  made  very  clearly  to 
appear  that  the  attainment  of  sub- 
stantial justice  requires  such  an 
amendment;"  the  power  of  the  County 
Court  to  allow  amendments  in  cases 
appealed  from  justices  is  the  same  as 
that  possessed  by  the  Supreme  Court 
in  actions  pending  before  it.  Simpson 
V.  Rome,  etc.,  R.  Co.  (Supreme  Ct.), 
15  N.  Y.  St.  Rep.  539,  48  Hun  (N.  Y.) 
113;  Cramer  v.  Lovejoy  (Supreme 
Ct.),  5  N.  Y.  St.  Rep.  190;  Argersinger 
V.  Levor  (Supreme  Ct.),  28  N.  Y.  St. 
Rep.  212,  54  Hun  (N.  Y.)  613;  Button 
V.  Lusk  (Supreme  Ct.),  32  N.  Y.  St. 
Rep.  531.  See  also  Reilley  v.  Dela- 
ware, etc.,  Co.,  102  N.  Y.  383. 

Case  Removed  fro77t  District  Court  to 
Common  Fleas.  —  And  the  Court  of 
Common  Pleas  has  power  to  allow  an 
amendment  of  pleadings  in  actions 
removed  to  it  from  a  District  Court  of 
the  city  of  New  York  to  the  same 
extent  and  within  the  same  limits  as 
the  District  Court  would  have  had  if 
the  case  had  not  been  removed.  Lalle- 
man  v.  Fere,  18  Abb.  N.  Cas.  (N.  Y. 
C.  PI.)  56,  II  Civ.  Pro.  Rep.  (N.  Y.) 
217.  See,  however,  Salter  v.  Park- 
hurst,  2  Daly  (N.  Y.)  240;  Drucken- 
miller  v.  Shoninger  (C.  PI.),  8  N,  Y. 
Supp.  482. 

In  Minnesota  the  District  Courts  have 
concurrent  jurisdiction  with  justices 
of  the  peace  in  all  cases,  and  Minne- 
sota Laws,  1868,  c.  93,  provides  that 
"  upon  an  appeal  taken  upon  ques- 
tions of  fact  alone,  or  upon  questions 
of  both  law  and  fact,  the  action  shall 
be  tried  in  the  same  manner  as  actions 
originally  commenced  in  the  District 
Court."  This  provision  is  interpreted 
to  allow  amendments  of  the  pleadings. 
Bingham  v.  Stewart,  14  Minn.  214. 
And  the  complaint  may  be  amended  in 
the  District  Court  by  increasing  the 
amount  of  damages  claimed  to  a  sum 
exceeding  the  jurisdiction  of  the  jus- 
tice. McOmber  v.  Balow,  40  Minn. 
38S,  following  the  construction  of 
similar  statutes  in  Dressier  v.  Davis, 
12  Wis.  58;  Jackson  v.  Covert,  5 
Wend.  (N.  Y.)  139;  Palmer  v.  Wylie, 
19  Johns.  (N.  Y.)  276. 

North  Carolina. — Appeals  from  Jus- 
tices.— On  appeal  to  the  Superior  Court 
from  a  justice's  judgment,  it  is  in  the 
discretion  of   the   judge   to   allow   or 


disallow  an  amendment  of  any  plea 
made  before  the  justice  upon  such 
terms  as  may  be  just.  Hinton  v. 
Deans,  75  N.  Car.  18. 

If  a  justice  of  the  peace  has  no 
jurisdiction,  the  Superior  Court  on 
appeal  can  derive  none  by  amend- 
ment. Ijames  v.  McClamroch,  92  N. 
Car.  362. 

On  Appeal  from  the  Probate  Court  on 
matters  properly  triable  therein,  new 
matter  cannot  be  engrafted  in  the 
Superior  Court  if  it  be  cognizable 
only  in  the  latter  court.  Capps  v. 
Capps,  85  N.  Car.  408;  Robeson  v. 
Hodges,  105  N.  Car.  49. 

New  Mexico. — Under  Comp.  Laws, 
New  Mex.,  1884,  sec.  1848,  which  pro- 
vides that  "all  appeals  from  inferior 
tribunals  to  the  District  Courts  shall 
be  tried  anew  in  said  courts  on  their 
merits,  as  if  no  trial  had  been  had 
below,"  amendments  may  be  allowed. 
Sanchez  z/.  Candelaria  (N.  Mex.,  1890), 
23  Pac.  Rep.  239. 

Comp.  Laws,  New  Mex.,  1884,  sec. 
2443.  requiring  a  trial  de  novo  in  cases 
originating  before  a  justice  of  the 
peace  and  removed  into  the  District 
Court,  and  that  such  court  shall  allow 
all  amendments  necessary,  etc.,  in- 
cludes an  action  of  replevin,  and  it 
was  error  to  refuse  an  application  to 
amend  an  affidavit  which  did  not 
state  the  value  of  the  property. 
Romero  v.  Luna  (N.  Mex.,  1892),  30 
Pac.  Rep.  855. 

Ohio. — In  a  case  appealed  from  a 
justice  of  the  peace  to  the  Court  of 
Common  Pleas,  no  amendments  are 
authorized  without  the  consent  of  the 
parties  except  such  as  might  have 
been  allowed  by  the  justice.  Bickett 
V.  Garner,  21  Ohio  St.  659. 

Another  plaintiff  cannot  be  substi- 
tuted by  amendment.  Moore  v,  Lan- 
caster, Wright  (Ohio)  35. 

In  an  action  on  the  case  before  a 
justice,  the  plaintiff  may  declare  in 
trespass  in  the  common  pleas.  Austin 
V.  Hayden,  6  Ohio  388. 

Vermont — Appeals  from  Justices. — 
The  power  to  allow  a  new  declaration 
to  be  filed  in  cases  appealed  from 
justices  of  the  peace  is  derived  from 
the  general  povv-er  to  allow  amend- 
ments of  the  process  and  proceedinrs 
in  the  court.  Stevens  v.  Hewitt,  30 
Vt.  263. 


614 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


may  be  amended  by  increasing  the  ad  dammun  to  an  amount  ex- 
ceeding the  jurisdiction  of  the  inferior  court.*  But  in  the  absence 
of  such  a  comprehensive  provision,  the  amendment  would  not  be 
allowed  ,*  nor  an  amendment  introducing  a  new  cause  of  action,* 
or  presenting  new  matter  which  the  court  below  had  no  jurisdic- 


New  counts  may  be  added  provided 
they  are  for  the  same  cause  of  action. 
Keyes  v.  Throop,  2  Aik.  (Vt.)  276. 

If  a  new  declaration  be  filed  in  the 
County  Court  on  appeal  from  a  jus- 
tice of  the  peace  for  a  different  cause 
of  action,  and  the  defendant  pleads  to 
it,  the  objection  is  waived.  Blodget 
V.  Skinner,  15  Vt.  716. 

The  declaration  cannot  be  amended 
in  order  to  give  the  court  jurisdiction. 
Thompson  v.  Colony,  6  Vt.  91. 

But  where  the  ad  damnum  was 
amended  in  the  County  Court  so  as  to 
claim  a  sum  exceeding  the  jurisdiction 
of  the  justice,  it  was  held  that  the 
court  had  jurisdiction  to  allow  an 
amendment  reducing  it  to  the  original 
amount.      Whitney  v.  Sears,    16   Vt. 

587. 

On  Appeal  from  Probate  Court. — The 
County  Court  may  permit  additional 
plaintiffs  to  be  added  by  amendment 
in  a  case  appealed  from  the  Probate 
Court.  Wyman  v.  Wilcox's  Estate,  63 
Vt.  4S7. 

Texas. — Upon  appeals  from  a  jus- 
tice the  petition  cannot  be  amended 
so  as  to  set  up  a  new  cause  of  action. 
Ballard  v.  Murphy  (Tex.  App.,  1890), 
15  S.  W.  Rep.  42;  Missouri  Pac.  R. 
Co.  V.  Ivy,  79  Tex.  444;  Roe  v.  Hol- 
bert  (Tex.  App.,  1892),  18  S.  W.  Rep. 
417. 

Otherwise,  amendments  are  allowed 
the  same  as  if  the  cause  had  origi- 
nated in  the  appellate  court;  and  any 
new  matter  may  be  pleaded  which 
would  defeat  the  plaintiff's  action. 
McLane  v.  Paschal,  62  Tex.  102. 

Alabama. — On  appeal  from  a  jus- 
tice, an  amendment  inserting  the  full 
Christian  name  of  the  plaintiff  in- 
stead of  the  initials  thereof  may  be 
allowed.  South  &  N.  Ala.  R.  Co.  v. 
Small,  70  Ala.  499.  But  the  striking 
out  of  a  sole  party  and  substituting 
another  cannot  be  allowed.  Davis 
Ave.  R.  Co.  V.  Mallon,  57  Ala.  168. 

Georgia. — Upon  appeal  from  a  jus- 
tice court  to  the  Superior  Court,  it  is 
not  allowable  to  add  new  parties  so  as 
to  totally  change  the  issues  tried. 
Cobb  7'.  Lowry,  60  Ga.  637. 

Arkansas. — Upon   appeal    from    the 

61 


County  Court  in  proceedings  for  an- 
nexation to  a  city,  the  Circuit  Court 
hears  the  petition  de  novo,  and  may 
permit  it  to  be  amended  so  as  to  ex- 
clude lands  embraced  within  it.  Ves- 
tal V.  Little  Rock,  54  Ark.  321. 

Illinois — Appeal  from  County  Court. 
— Where  there  was  a  mistake  in  a 
claim  filed  in  the  County  Court  against 
the  estate  of  a  deceased  guardian  by 
the  wards,  in  respect  to  the  name  of 
one  of  the  wards,  it  was  held  that  the 
name  might  properly  be  corrected  on 
appeal  in  the  Circuit  Court,  under  the 
Practice  Act  of  1872.  Scheel  v.  Kid- 
man, 77  111.  301. 

On  Appeal  from  a  Justice  the  Circuit 
Court  may  allow  either  party  to  file 
additional  counts.  Waterman  v.  Bris- 
tol, I  Gilm.  (6  111.)  593. 

And  a  coplaintiff  may  be  added  by 
amendment.  Zipp  v.  Uhland  Hain, 
30  111.  App.  280;  Smith  V.  Martin,  28 
111.  App.  224;  McDowell  v.  Town,  90 
111.  359. 

1.  Appeals  from  Justice  to  County  Court. 
— Simpson  v.  Rome,  etc.,  R.  Co.  (Su- 
preme Ct.),  15  N.  Y.  St.  Rep.  539,  48 
Hun  (N.  Y.)  113;  Dressier  v.  Davis, 
12  Wis.  1-,%,  followed  in  Felt  v.  Felt,  19 
Wis.  193,  and  in  McOmber  v.  Balow, 
40  Minn.  388,  construing  a  similar  stat- 
ute. 

2.  Bickett  v.  Garner,  21  Ohio  St. 
659- 

3.  Clark  v.  Smith,  39  Mo.  498; 
Gregory  v.  Wabash,  jetc,  R.  Co.,  20 
Mo.  App.  448;  Kitchen  v.  Missouri 
Pac.  R.  Co.,  82  Mo.  686;  Mitchell  v. 
Missouri  Pac.  R.  Co.,  82  Mo.  106; 
Shaffner  v.  Leahy,  21  Mo.  App.  110; 
Hansberger  v.  Missouri  Pac.  R.  Co., 
43  Mo.  196;  Webb  v.  Robertson,  74 
Mo.  380;  Brashears  v.  Strock,  46  Mo. 
221;  Sturges  V.  Botts,  24  Mo.  App. 
283;  Smith  V.  Anthony,  5  Mo.  504; 
Gist  z/.  Loring,  60  Mo.  487;  Moser  v. 
Jenkins,  5  Oregon  447;  Cain  v.  Har- 
den, I  Oregon  360;  Ballard  v.  Mur- 
phy (Tex.  App.  1890),  15  S.  W.  Rep. 
42;  Missouri  Pac.  R.  Co.  v.  Ivy,  79  Tex. 
444;  Roe  V.  Holbert  (Tex.  App.,  1892), 
18  S.  W.  Rep.  417;  Cobb  v.  Lowry,  60 
Ga.  637;  Evers  v.  Sager,  28  Mich.  47  ; 
Donahue's  Appeal,  62  Conn.  370. 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


tion  to  determine.*  But  if  the  amendment  be  such  as  not  to 
affect  the  jurisdiction  either  of  the  appellate  court  or  the  court 
below,  it  is  in  general  allowable.* 


1.  Evers  v.  Sager,  28  Mich.  47;  Os- 
good V.  Green,  30  N.  H.  210;  Colvin  v. 
Peck,  62  Conn.  155;  Capps  v.  Capps, 
85  N.  Car.  408;  Robeson  v.  Hodges, 
105  N.  Car.  49;  Ijames  v.  McClamroch, 
92  N.  Car.  362. 

Where  the  plaintiff  declares  in  the 
justice  court  for  a  cause  of  action  of 
which  the  justice  has  no  jurisdiction, 
no  amendment  of  the  declaration  in 
the  Circuit  Court  on  appeal  can  save 
the  case.  Fowler  v.  Hyland,  48  Mich. 
179. 

In  a  case  brought  by  appeal  from 
county  commissioners  to  the  Circuit 
Court  an  amendment  will  not  be 
allowed  in  those  particulars  upon 
which  the  original  jurisdiction  of  the 
commissioners  depends.  Shneey  v. 
Stoner,  47  Md.  167. 

If  the  justice  has  no  jurisdiction  be- 
cause the  damages  claimed  for  injuries 
to  personal  property  exceeded  fifty 
dollars,  the  plaintiff  would  not  be  en- 
titled in  a  Circuit  Court  to  amend  by 
changing  the  sum  claimed  to  fifty  dol- 
lars.    Webb  V.  Tweedie,  30  Mo.  488. 

The  Circuit  Court  on  appeal  from  a 
justice  may  properly  refuse  to  allow 
an  unnecessary  defendant  to  be  added 
by  amendment,  especially  where  the 
allowance  of  the  amendment  would 
oust  the  jurisdiction  of  the  justice. 
Ingalls  V.  Averitt,  34  Mo.  App.  371. 

An  averment  which  is  necessary  to 
show  jurisdiction  of  the  subject-mat- 
ter in  the  justice  may  be  supplied  by 
amendment  in  the  Circuit  Co4irt.  Fath- 
man,  etc..  Planing  Mill  Co.  v.  Ritter, 
33  Mo.  App.  404;  Lindsay  v.  Kansas 
City,  etc.,  R.  Co.,  36  Mo.  App.  51. 
Compare  Dowdy  v.  Womble,  41  Mo. 
App.  573- 

2.  New  Hampshire.  —  Osgood  v. 
Green,  30  N.  H.  210.  See  also  Boggs 
V.  Near,  20  Ind.  395. 

A  declaration  filed  in  the  probate 
court  upon  appeal  from  commissioner's 
report  rejecting  a  claim  against  an  in- 
solvent estate  may  be  amended  in  the 
common  pleas.  Parker  v.  Gregg,  23 
N.  H.  416. 

Indiana. — A  Petition  in  a  Drainage 
Case  maybe  amended  on  appeal  in  the 
Circuit  Court,  Metty  v.  Marsh,  124  Ind. 
18;  even  in  a  jurisdictional  matter, 
Coolman  z/.  Fleming,  82  Ind.  117.    And 


the  petition  in  a  highway  case  may  be 
amended  by  changing  in  a  slight  de- 
gree the  line  of  the  proposed  highway. 
Burns  v.  Simmons,  loi  Ind.  557. 

In  Proceedings  by  Eminent  Domain. 
— On  an  appeal  to  the  Circuit  Court 
in  proceedings  to  assess  damages  to 
property  taken  by  eminent  domain,  at 
any  time  pending  a  motion  to  strike 
out  exceptions  to  the  assessment,  the 
exceptions  may  be  amended  by  filing 
an  additional  exception  presenting  a 
question  proper  to  be  tried  relating  to 
the  adequacy  of  the  damages  assessed. 
Pittsburgh,  etc.,  R.  Co.  v.  Swinney,  59 
Ind.  100. 

On  Appeals  from  Justices. — The  Cir- 
cuit Court  may  allow  the  addition  of  a 
new  paragraph  to  the  complaint, 
Hampton  v.  Warren,  51  Ind.  288;  or 
the  addition  of  a  necessary  new  party, 
Osborn  v.  Osborn,  18  Ind.  373;  or  a 
change  in  plaintiff's  name  so  as  to 
make  it  correspond  with  the  appeal 
bond,  Hayden  v.  Souger,  56  Ind.  42. 
See  also  Louderback  v.  Rosengrant,  4 
Ind.  562;  Indianapolis,  etc.,  R.  Co.  v. 
Clark,  21  Ind.  150. 

In  Nelson  v.  Zink,  3  Blackf.  (Ind.) 
loi,  and  Bastion  v.  Dalrymple,  3 
Blackf.  (Ind.  365,)  it  was  held  that  the 
defense  before  the  justice  could  not  be 
amended  in  substance  on  appeal. 

Iowa. — The  filing  of  further  plead- 
ings in  cases  pending  in  the  District 
Court  on  appeal  is  discretionary  and 
subject  to  review  only  in  a  clear  case 
of  abuse.  Dunton  v.  Thorington,  15 
Iowa  217. 

Under  equitable  circumstances  upon 
proper  terms,  and  after  showing  ex- 
cuse for  failure  to  plead  before  the 
justice,  the  defendant  maybe  allowed 
to  amend  his  answer  in  the  Circuit 
Court  on  appeal.  Ping  v.  Cockyne,  37 
Iowa  211;  Warren  v.  Scott,  32  Iowa 
22.  See  also  St.  Louis  Type  Foundry 
V.  Medes,  60  Iowa  525.  And  that  plead- 
ings may  be  amended  in  the  Circuit 
Court  on  appeal,  but  not  as  a  matter 
of  right,  see  further,  Packard  v.  Snell, 
35  Iowa  80;  Griswold  v.  Bowman,  40 
Iowa  367;  Stanton  v.  Warrick,  21  Iowa 
76;  May  V.  Wilson,  21  Iowa  vg;  Nett- 
man  v.  Schramm.  23  Iowa  521;  Kuhn 
V.  Kuhn,  70  Iowa  682;  Orlow  v.  Mur- 
phy, 52  Iowa  695. 


616 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


g.  Remand  with  Directions  to  Amend.— Where  an  appel- 
late court  reverses  a  decision  of  the  lower  court  it  is  not  uncom- 
mon to  direct  the  latter  to  allow  amendments,  especially  if  the 
error  will  be  obviated  thereby  ;*   but  it  is  not  the  practice  to  re- 


California. — On  an  appeal  from  a  jus- 
tice court  to  the  Superior  Court  on 
questions  of  law  and  fact,  when  issues 
of  fact  have  been  made  in  the  court 
below,  the  Superior  Court  may  allow 
amendments  to  the  pleadings,  and  its 
discretion  cannot  be  reviewed  on  cer- 
tiorari. Ketchum  v.  San  Joaquin 
County  Ct.,  65  Cal.  494;  Kitts  v.  Ne- 
vada County  Ct.,  62  Cal.   203. 

A  refusal  by  the  County  Court  to 
allow  an  amendment  on  an  appeal 
from  a  justice  will  not  be  reviewed  by 
the  Supreme  Court  except  in  a  case  of 
manifest  abuse  of  discretion.  Canfield 
V.  Bates,  13  Cal.  606. 

On  appeals  to  the  District  Court 
from  justice  courts,  the  action  must 
be  tried  upon  the  pleadings  before  the 
justice.  S^nta  Cruz  v.  Santa  Cruz  R. 
Co.,  56  Cal.  143. 

Kentucky. — On  appeal  from  the  jus- 
tice court  to  the  Court  of  Common 
Pleas,  the  plaintiff  may  file  an  amend- 
ment to  his  demand.  PufTz'.  Huchter, 
78  Ky.  146. 

Pennsylvania. — It  was  held  in  Cachet 
de  Lisle  v.  Priestman,  i  Browne  (Pa.) 
115,  that  when  a  cause  had  been  arbi- 
trated and  then  brought  into  court 
again  by  appeal,  the  declaration  could 
be  amended  by  adding  another  count. 

1.  California. — Sonoma  County  Bank 
V.  Charles,  86  Cal.  322;  Pierce  v.  Jack- 
son, 21  Cal.  641;  Sterling  v.  Hanson, 
I  Cal.  478;  Fish  v.  Redington,  31  Cal. 
186. 

South  Carolina. — Fields  v.  Watson, 
23  S.  Car.  42;  Lindsay  v.  Jamison,  4 
McCord  (S.  Car.) 93;  Mitchell  v.  Poyas, 
I  Nott.  &  M.  (S.  Car.)  85;  McClendon 
V   Wells.  20  S.  Car.  514. 

Pennsylvania. — Wood  v.  Philadel- 
phia, 27  Pa.  St.  504;  Patton  v.  Pitts- 
burgh, etc.,  R.  Co.,  96  Pa.  St.  169. 

Virginia. — Strange  v.  Floyd,  9  Gratt. 
(Va.)  474;  Governor  v.  Withers,  5 
Gratt.  (Va.)  24. 

Wisco7tsin. — Stevens  v.  Brooks,  22 
Wis.  695;  Lombard  v.  Cowham,  34 
Wis.  486;  Saveland  v.  Green,  36  Wis. 
612;  Davis  V.  Hubbard,  41  Wis.  408; 
Strong  V.  Hooe,  41  Wis.  659;  Davis  v. 
Henderson,  20  Wis.  520. 

Maine. — Prescott  v.  Prescott,  65  Me. 
.78. 


Georgia. — McLewis  v.  Furgerson,  59 
Ga.  644. 

Massachusetts. — Denham  v.  Bryant, 
139  Mass.  no. 

Missouri. — State  v.  Francis,  95  Mo. 
44. 

New  Hampshire. — Boudreau  v.  East- 
man, 59  N.  H.  467. 

New  York. — Brown  v.  Colie,  i  E.  D. 
Smith  (N.  Y.)  265;  Bloodgood  v.  Mo- 
hawk, etc.,  R.  Co.,  18  Wend.  (N.  Y.)9. 

United  States. — Pollard  v.  Dwight,  4 
Cranch  (U.S.)432;  U.S.  v.  Kirkpatrick, 

9  Wheat.   (U.  S.)  738;  Day  v.  Chism, 

10  Wheat.  (U.  S.)449;  Mollan  v.  Tor- 
rance, 9  Wheat.  (U.  S.)  540;  Garland 
V.  Davis,  4  How.  (U.  S.)  131;  Robert- 
son V.  Cease,  97  U.  S.  646. 

Mississippi.  —  Geren  v.  Wright,  8 
Smed.  &  M.  (Miss.)  360;  Bingham  v. 
Sessions,  6  Smed.  &  M.  (Miss.)  13. 

Texas. — Schmidt  v.  Mackey,  31  Tex. 

659- 

Tennessee. — Stovall  v.  Bowers,  10 
Humph.  (Tenn.)  560;  Hunter  v.  Lit- 
terer,  i  Baxt.  (Tenn.)  168;  McCandlass 
V.  Polk,  ID  Heisk.  (Tenn.)  617. 

Louisiana. — Nichols  v.  Alsop,  10  La. 
407. 

Oregon.  —  Bamford  v.  Bamford,  4 
Oregon  39;  Branson  v.  Oregonian  R. 
Co.,  II  Oregon  161. 

Kansas. — County  of  Harvey  v.  Mun- 
ger,  24  Kan.  760. 

Alabama. — Martin  v.  Martin,  22  Ala. 
86. 

Nevada. — California  State  Tel.  Co. 
V.  Patterson,  i  Nev.  158. 

Illinois. — Stephens    v.    Sweeney,    2 

Gilm.(7lll.)375. 

Bemand  Discretionary.  —  The  court 
may  refuse  to  remand  for  amendment. 
Phillips  v.  Van  Shaick,  37  Iowa  229. 

Kemand  Merely  Advisory. — It  was  said 
in  Bingham  v.  Sessions,  6  Smed.  &  M. 
(Miss.)  13,  and  Branson  v.  Oregonian 
R.  Co.,  II  Oregon  161,  that  the  appel- 
late court  has  no  power  to  make  a 
peremptory  order  to  the  court  below, 
and  can  only  recommend  the  desired 
amendments.  But  an  examination  of 
the  cases  cited  at  the  head  of  ^his  note 
will  show  that  in  several  instances  the 
trial  court  was  "directed"  to  allow 
amendments  of  a  character  prescribed 
in  the  opinion  of  the  appellate  court. 

17 


Of  Pleadings,  etc.,  at  AMENDMENTS,   Common  Law,  under  Codes,  etc. 


verse  a  judgment  when  no  errors  are  found  therein  in  order  to 
give  a  party  an  opportunity  to  make  amendments  which  he  did 
not  ask  for  in  the  course  of  the  former  proceedings.* 

h.  After  Remand — (i)  Where  Remand  is  General. — Where 
the  appellate  court  reverses  a  judgment  and  remands  the  cause 
generally  without  any  specific  directions,  amendments  to  the 
pleadings  may  be  allowed  upon  the  reinstatement  of  the  case  in  the 
court  below  as  if  it  had  never  been  tried,*  although  the  appellate 


1.  Gibbons  v.  Scott,  15  Cal.  285;  Mul- 
ford  V.  Cohn,  18  Cal.  42;  People  v. 
Jackson,  24  Cal.  630;  Dennison  v.  Ty- 
son, 17  Vt.  549;  Malcolm  v.  Baker,  8 
How.  Pr.  (N.  Y.  Super.  Ct.)3oi;  Colo- 
rado Springs  Co.  v.  Hopkins,  5  Colo. 
338.  See  also  Brown  v.  Colie,  i  E.  D. 
Smith  (N.  Y.)  265. 

North  Carolina. — The  Code  of  North 
Carolina,  §  965,  confers  express  power 
upon  the  Supreme  Court  to  remand 
causes  for  the  purpose  of  making 
proper  amendments  or  for  further  pro- 
ceedings. Holley  V.  Holley,  96  N. 
Car.  229;  Caroon  v.  Rogers,  6  Jones 
(N.  Car.)  240;  Robeson  v.  Hodges,  105 
N.  Car.  49;  Morris  v.  Gentry,  89  N. 
Car.  248;  Foy  v.  Haughton,  83  N. 
Car.  467. 

In  Ohio  the  same  practice  obtains. 
Buckley  v.  Osburn,  8  Ohio  180. 

And  in  Tennessee. — Stovall  v.  Bowers, 
10  Humph.  (Tenn.)  560. 

In  Minnesota  the  Supreme  Court,  on 
appeal  from  an  order  sustaining  or 
overruling  a  demurrer,  has  power 
when  affirming  or  reversing  the  order 
to  grant  leave  to  amend.  But  as  a 
general  rule  the  matter  will  be  rele- 
gated to  the  discretion  of  the  court 
below.  Farley  v.  Kittson,  27  Minn. 
102;  Haven  v.  Place,  28  Minn.  551. 
On  the  latter  point  see  also  Glenn  v. 
Noble.  I  Blackf.  (Ind.)  104. 

California —  Where  Plaintiff  Mistakes 
His  Refnedy. — When  the  plaintiff  mis- 
takes his  remedy  and  brings  an  action 
at  law  for  damages,  and  his  proper 
remedy  is  a  bill  in  equity  for  an 
accounting,  and  leaves  out  a  necessary 
party,  but  inserts  some  averments 
which  entitle  him  to  some  measure  of 
equitable  relief,  the  appellate  court 
will  not  dismiss  the  action,  but  will 
send  the  case  back  with  leave  to 
amend  the  complaint.  Blood  v.  Fair- 
banks, 48  Cal.  171. 

In  Eespect  of  Parties. — On  an  appeal 
from  a  judyrment  of  foreclosure,  if  it 
appears  that  unnecessary  or  improper 
parties  were  united  with  the  proper 

61 


parties  the  court  may  order  a  judg- 
ment in  favor  of  proper  plaintiffs  and 
direct  that  the  complaint  be  amended 
by  striking  out  the  names  of  those 
improperly  joined.  De  Celis  v.  Por- 
ter, 65  Cal.  3. 

If  an  attorney  enters  an  appearance 
in  a  case  for  a  person  who  is  not 
named  in  the  complaint  as  a  party  de- 
fendant, after  the  defendant  named  in 
the  complaint  has  answered,  and  by 
a  stipulation  the  answer  on  file  is  con- 
sidered as  the  answer  of  the  party  for 
whom  the  attorney  thus  appears,  the 
complaint  should  be  amended  by  in- 
serting the  name  of  such  party,  and 
if  not  amended  before  an  appeal  is 
taken  the  Supreme  Court  will  direct 
the  court  below  to  allow  an  amend- 
ment, even  if  it  affirms  the  judment. 
Baldwin  v.  Bornheimer,  48  Cal.  433. 

2.  Parker  v.  Shannon,  121  111.  452; 
Cable  V.  Ellis,  120  111.  136;  Perry  v. 
Burton,  126  111.  599;  Lee  v.  Wright,  i 
Rawle  (Pa.)  149;  Gordon  v.  Downey, 
I  Gill  (Md.)  41;  Holloway  v.  Lowe,  i 
Ala.  246;  Schreyer  v.  New  York,  39 
N.  Y.  Super.  Ct.  277;  McGrane  v. 
New  York,  19  How.  Pr.  <N.  Y.  C.  PI.) 
144;  Imhoff  V.  Chicago,  etc..  R.  Co., 
22  Wis.  681;  Mclndoe  v.  Morman,  26 
Wis.  588;  Blodgett  v.  Hitt,  29  Wis. 
169;  Irwin  V.  Sanders,  5  Y'erg.  (Tenn.) 
287;  Branson  v.  Oregonian  R.  Co.,  ii 
Oregon  161;  Sexton  v.  Henderson,  47 
Iowa  131;  Adams  County  v.  B.  &  M. 
R.  Co.,  44  Iowa  335;  Vawter  z'.  Brown, 
20  Ind.  277;  Burns  v.  Barenfield,  84 
Ind.  43;  Hart  v.  Smith,  20  Fla.  58; 
Mitchell  V.  Gotten,  3  Fla.  158;  Rogers 
V.  Phinney,  13  N.  J.  L.  i;  Tiernan  v. 
Napier,  5  Yerg.  (Tenn.)  410. 

"Stage  of  the  Case." — Such  amend- 
ments are  at  "a  stage  of  the  case," 
within  the  meaning  of  a  clause  in  the 
statute  prescribing  the  period  when 
amendments  must  or  may  be  allowed. 
Walker  v.  Cook,  17  Ga.  126;  Gray  v. 
Regan,  37  Iowa  688;  Jones  v.  Clark, 
31  Iowa  497;  Newman  v.  Covenant 
Mut.  Ins.  Assoc,  76  Iowa  56,  holding 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


court    may   have    adjudged   the    pleadings    insufficient   on   de- 
murrer.* 

Discretionary. — Leave  to  amend  is  largely  discretionary,  as  in 
the  original  proceedings,  and  its  allowance  or  refusal  is  likewise 
subject  to  review  for  abuse  of  discretion.* 


L 


that  there  was  the  same  right  of 
amendment  as  if  the  case  had  not  been 
tried;  Bebb  v.  Preston,  3  Iowa  336; 
Scott  V.  Chickasaw  County,  53  Iowa 
47.  See  also  Gallagher  v.  Whalen 
(Ky..  1888),  9  S.  W.  Rep.  701. 

"  In  Progress. " — After  reversal  and 
remand  the  cause  is  "in  progress," 
within  the  meaning  of  a  statute.  Ex 
parte  North,  49  Ala.  385. 

New  Breaches  of  the  Bond.  —  The 
plaintiff  maybe  allowed  to  assign  new 
breaches  of  the  bond  sued  on.  Hunt 
V.  Gaylor,  25  Ohio  St.  620. 

Inserting  Special  Counts. — Where  the 
original  declaration  contains  only  the 
common  counts  it  may  be  amended  by 
inserting  special  counts.  Rogers  v. 
Phinney,  13  N.  J.  L.  i. 

Baising  New  Issues. — Under  the  pro- 
visions of  Gen.  Stat. ,  Minn. ,  1878,  c.  66, 
^  124,  the  trial  court  may  allow  the 
pleadings  to  be  amended  so  as  to  raise 
new  issues  requiring  a  new  trial  after 
the  cause  has  been  disposed  of  in  the 
Supreme  Court  on  findings  of  fact  and 
conclusions  of  law.  Burke  v.  Bald- 
win, 54  Minn.  514. 

After  Judgment  on  Demurrer. — If  the 
appellate  court  after  reversing  a  judg- 
ment on  demurrer  order  judgment  to 
be  entered  for  either  party,  it  is  not 
in  the  power  of  the  court  below  to 
give  leave  to  amend  the  pleadings  or 
to  plead  anew.  Hale  v.  Lawrence,  22 
N.  J.  L.  72.  But  if  the  judgment  is 
reversed  and  the  cause  remitted  with- 
out giving  any  judgment  for  the  plain- 
tiff in  error,  the  court  below  may 
allow  the  parties  to  amend  or  with- 
draw their  pleadings.  Hale  v.  Law- 
rence, 22  N.  J.  L.  72;  Phelan  v.  San 
Francisco,  9  Cal.  15;  Utica  Ins.  Co.  v. 
Scott,  6  Cow.  (N.  Y.)  606;  Farley  v. 
Kittson,  27  Minn.  102;  Haynes  z/.  Cov- 
ington, 17  Miss.  470;  Augusta  R.  Co. 
V.  Andrews  (Ga.,  1893),  19  S.  E.  Rep. 
713;  Ex  parte  North,  49  Ala.  385. 

After  judgmentsustaininga  general 
demurrer  has  been  affirmed  the  case 
is  entirely  out  of  court.  Central  R., 
etc.,  Co.  V.  Paterson,  87  Ga.  646. 

1.  Marine  Ins.  Co.  v.  Hodgson,  6 
Cranch  (U.  S.)  206. 

2.  Sandersw.  Wakefield  (Kan.,  1889), 

61 


20  Pac.  Rep.  518;  Pierson  v.  McCahill, 
22  Cal.  127;  Duff  V.  Duff,  loi  Cal.  i; 
Pierce  v.  Jackson,  21  Cal.  641;  Troy, 
etc.,  R.  Co.  V,.  Tibbits,  11  How.  Pr. 
(N.  Y.  Supreme  Ct.)  168;  People  v. 
Fields,  50  How.  Pr.  (N.  Y.  Supreme 
Ct.)48i;  Carpenter z/.  Knapp(Supreme 
Ct.),  26  N.  Y.  Supp.  436;  Ferris  v. 
Hard  (Buffalo  Super.  Ct.),  27  N.  Y. 
Supp.  222,  6  Misc.  (N.  Y.)  359;  Saltus 
V.  Genin,  3  Bosw.  (N.  Y.)  639;  Getty 
V.  Spaulding,  i  Hun  (N.  Y.)  115; 
Spawn  V.  Veeder,  4  Cow.  (N.  Y.)  503; 
Prindle  v.  Aldrich,  13  How.  Pr.  (N.  Y. 
Supreme  Ct.)  466;  Smith  v.  Bogeri- 
schutz  (Ky.,  1892),  19  S.  W.  Rep.  667; 
Boettcher  v.  Colorado  Nat.  Bank,  15 
Colo.  16;  Chapman  v.  Colby,  47  Mich. 
46;  Farley  v.  Kittson,  27  Minn.  102; 
Holley  V.  HoUey,  96  N.  Car.  229; 
Wells  V.  American  Express  Co.,  49 
Wis.  224;  Wallace  v.  Columbia,  etc., 
R.  Co.,  37  S.  Car.  335;  Terry  v. 
Brightman,  133  Mass.  536;  McCaulla 
V.  Murphy,  86  Ga.  475;  Lathrop  v. 
Adkinson,  87  Ga.  339:  Moore  v.  Cam- 
eron, 12  Ga.  265;  Kimbro  v.  Fulton 
Bank,  49  Ga.  419;  Gage  v.  Stokes, 
125  111.  40;  Reed  v.  Howe,  44  Iowa 
300. 

Withdrawing  Demurrer. — A  defend- 
ant in  error  after  the  reversal  of  the 
judgment  may  be  allowed  to  amend  by 
withdrawing  his  demurrer  and  plead- 
ing de  novo.  Hall  v.  Snowhill,  14  N. 
J.  L.  8. 

Withdrawing  Beplication. — And  after 
a  judgment  for  the  plaintiff  has  been 
reversed  he  may  withdraw  his  replica- 
tion and  plead  d^  novo.  Van  Dyke  v. 
Van  Dyke,  19  N.  J.  L.  i. 

Pleading  Statute  of  Limitations. — After 
the  case  has  gone  to  the  Supreme 
Court  on  a  plea  of  res  adjiidicata  the 
lower  court  may  properly  refuse  to 
allow  the  defendant  to  plead  the  stat- 
ute of  limitations.  Donnelly  v.  Pep- 
per, 91  Ky.  363. 

New  Claim  Barred  by  Statute. — Nor 
should  the  plaintiff  be  allowed  to  set 
up  a  different  state  of  facts  as  the 
foundation  of  a  claim  barred  by  the 
statute  of  limitations  during  the  pen- 
dency of  the  suit.  Taylor  v.  Keeler, 
51  Conn.  397. 


Of  Pleadings,  etc  ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


(2)  Where  the  Remand  is  Limited. — Where  a  cause  is  remanded 
lor  "  further  proceedings  consistent  with  "  the  opinion,  the  mode 
of  proceeding  indicated  in  the  opinion  must  be  pursued,  and  any- 
other  mode  is  excluded.* 

Bes  Adjudicata. — A  party  should  not  be  allowed  to  amend  so  as 
to  reopen  questions  which  have  been  adjudicated  by  the  appellate 
court.* 


Changing  Admission  to  Denial. — When 
a  party  admits  in  his  answer  under 
oath  a  material  allegation  of  the  com- 
plaint, and  the  case  is  tried  and  a 
judgment  rendered  and  a  new  trial 
afterwards  granted  by  the  Supreme 
Court,  on  the  return  of  the  cause  to  the 
court  below  the  defendant  should  not 
be  allowed  to  amend  his  answer  by 
changing  the  admission  into  a  denial. 
Spanagel  v.  Reay,  47  Cal.  608.  See 
also  Palmer  v.  Utah,  etc.,  R.  Co.,  2 
Idaho  350. 

Further  Amendments. — Where  a  case 
was  remitted  to  enable  plaintiff  to 
amend  and  the  amendment  was  insuf- 
ficient for  the  purpose  intended  it  was 
held  proper  to  grant  leave  for  a  fur- 
ther amendment.  Cleveland  v.  Cohrs, 
13  S.  Car.  397. 

New  Cause  of  Action.  —  In  South 
Carolina,'w'herQa.  new  cause  of  actionor 
ground  of  defence  may  be  introduced 
by  amendment  before  trial,  it  may  be 
allowed  before  a  second  trial  after  re- 
mand from  the  appellate  court.  Hall 
V.  Woodward,  30  S.  Car.  564.  See 
also,  in  New  York,  Hopf  v.  U.  S.  Bak- 
ing Co.  (Buffalo  Super.  Ct.),  21  N.  Y. 
Supp.  589. 

But  amendments  making  a  radical 
change  in  the  ground  of  action  should 
be  received  with  great  caution  and 
only  upon  affidavit  of  merits  and 
showing  a  reasonable  excuse.  Sweet 
V.  Mitchell,  19  Wis.  524. 

Amending  to  Conform  to  Judgment  on 
Appeal. — It  is  error  to  strike  out  an 
amended  petition  which  practically 
adopts  a  suggestion  of  the  appellate 
court  made  on  a  former  appeal  in  the 
same  case.  Robertson  v.  Springfield, 
etc.,  R.  Co.,  21  Mo.  App.  633.  See 
also  Ward  v.  Lathrop,  11  Tex.  287; 
Bissell  V.  Erwin,  13  La.  143. 

Where  the  complaint  demanded  pos- 
session of  land  under  a  deed  absolute 
it  was  held  proper  to  amend  so  as  to 
remand  judgment  for  foreclosure  after 
the  deed  had  been  declared  on  appeal 
to  be  a  mortgage.  Robinson  v.  Will- 
oughby,  67  N.  Car.  84. 


A  judgment  in  an  action  of  forcible 
entry  and  detainer  was  reversed  on 
the  ground  that  it  was  not  shown  that 
the  defendant  was  in  possession  of  all 
the  land  described  in  the  complaint; 
when  the  case  went  back  on  remand 
the  lower  court  properly  allowed  the 
plaintiff  to  amend  so  as  to  include  in 
his  complaint  only  a  part  of  the  land 
described.  Thompson  v.  Sornberger, 
78  111.  353. 

Where  on  appeal  a  case  is  reversed 
on  account  of  the  insuflSciency  of  the 
complaint,  its  subsequent  amendment 
as  to  the  defects  pointed  out  by  the 
appellate  court  does  not  make  it  good 
with  respect  to  others  not  considered. 
Rinard  v.  West,  92  Ind.  359. 

1.  Parker  v.  Shannon,  121  111.  452; 
Cable  V.  Ellis,  120  111.  136. 

After  Judgment  of  Dismissal. — Where 
the  decision  of  the  court  on  appeal 
operates  as  a  dismissal  of  the  com- 
plaint there  can  be  no  amendment. 
Bleckeley  v.  Branyan,  28  S.  Car.  445. 

2.  Gage  v.  Stokes,  125  111.  40. 
Mandate  Ordering  Certain  Judgment. — 

When  the  mandate  of  the  appellate 
court  orders  the  entry  of  a  certain 
judgment,  it  is  not  error  to  refuse 
permission  to  file  an  amended  answer 
setting  up  facts  sufficient  to  authorize 
the  vacating  of  the  judgment.  Scott 
V.  Scott,  9  Bush  (Ky.)  174. 

Where  Question  Not  Res  Adjudicata. — 
In  an  action  brought  to  recover  for  an 
exaction  of  excessive  charges  for  the 
carriage  of  goods  the  statutory  penalty 
of  three  times  the  excess,  it  was  deter- 
mined in  the  appellate  court  that  by 
reason  of  a  repeal  of  the  statute  such 
an  action  would  not  lie.  After  the 
cause  was  remanded  to  the  court  be- 
low, it  was  held  that  the  complaint 
might  be  amended  so  as  to  demand 
only  the  illegal  excess,  that  question 
not  being  res  adjudicata.  Smith  v. 
Chicago,  etc.,  R.  Co.,  49  Wis.  443. 

Mere  Recital  of  Facts. — The  state- 
ment in  the  original  decree  and  in  the 
opinion  of  the  appellate  court  of  cer- 
tain  facts    alleged    in    the   complaint 

20 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

Matters  Arising  after  Mandate. — Nor  can  a  plaintiff  amend  by  stating 
a  cause  of  action  originating  after  the  return  of  the  record  from 
the  appellate  court.* 

12.  Effect  of  Amendments— «.  Retroactive  Effect — (i)  In 
Gerieral. — When  an  amendment  has  been  properly  made  and  is 
for  the  same  cause  of  action,  the  amended  pleading  is  regarded 
as  a  continuation  of  the  original  pleading  and  takes  effect  as  of 
the  date  when  the  latter  was  filed.* 

(2)  Statute  of  Limitations — Where  Amendment  Does  Not  Introduce  a  New 
Cause  of  Action. — Where  an  amendment  does  not  set  up  a  new  cause 
of  action  or  bring  in  any  new  parties,  the  running  of  the  statute 
of  limitations  is  arrested  at  the  date  of  filing  the  original  plead- 
ine.' 


I 


and  admitted  in  the  answer  is  nov. 
such  an  adjudication  of  those  facts  as 
to  preclude  the  defendant  from  subse- 
quently making  an  issue  upon  them 
by  an  amendment.  Hall  v.  Wood- 
ward, 30  S.  Car.  564. 

1.  Bell  V.  Williams,  10  La.  514. 

2.  Heath  v.  Whidden,  29  Me.  108; 
Brockaway  v.  Thomas,  32  Ark.  311; 
State  V.  Jacksonville,  etc.,  R.  Co.,  15 
Fla.  201;  Schuyler  Nat.  Bank  v.  Bol- 
long,  28  Neb.  684;  Branch  Bank  v. 
Morris,  13  Iowa  136;  Clark  v.  Dela- 
ware, etc.,  Canal  Co.,  Ii  R.  I.  36; 
Fame  Ins.  Co.  v.  Thomas,  10  111.  App. 
545;  Verdery  v.  Barrett,  89  Ga.  349; 
Chattanooga,  etc.,  R.  Co.  v.  White- 
head, 89  Ga.  190;  Agee  v.  Williams, 
30  Ala.  636. 

Amendment  After  Bemand. — Where  a 
judgment  is  reversed  on  appeal,  a 
proper  amendment  filed  after  remand 
to  the  trial  court  relates  to  the  com- 
mencement of  the  suit.  Fleenor  v. 
Taggart,  116  Ind.  189. 

Striking  out  a  Party. — Where  the 
name  of  one  of  two  defendants  was 
stricken  out  by  permission  of  the 
court  on  motion  of  the  plaintiff  and 
with  the  assent  of  the  only  defendant 
appearing  in  defense,  the  action  stood 
as  if  it  had  been  originally  brought 
against  the  only  remaining  defendant, 
and  a  writ  of  review  was  properly 
brought  in  the  name  of  the  latter 
alone.     Fling  v.  Trafton,  13  Me.  295. 

Intervening  Fraudulent  Conveyances. 
— A  suit  upon  the  cause  of  action  set 
forth  in  the  amendment,  provided  it 
be  not  entirely  new,  will  be  consid- 
ered as  pending  from  the  beginning 
as  regards  an  intervening  fraudulent 
conveyance  made  by  the  defendant. 
Cooke  V.  Cooke,  43  Md.  522. 


Amendment  of  Bill  of  Costs. — Where 
an  original  bill  of  costs  is  filed  in  time, 
an  amendment  of  it  relates  back. 
Burnham  v.  Hays,  3  Cal.  115. 

Averment  of  Citizenship. — In  the  fed- 
eral courts  it  is  proper  in  an  amended 
declaration  to  state  the  citizenship  of 
the  parties  in  the  present  tense  with- 
out stating  such  citizenship  as  exist- 
ing at  the  time  of  the  commencement 
of  the  suit,  because  the  amendment 
relates  back.  Birdsall  v.  Perego,  5 
Blatchf.  (U.  S.)  251. 

Correcting  Misnomer  in  Summons. — 
The  amendment  of  a  summons  made 
after  notice  to  the  defendant  by  the 
correction  of  a  mistake  in  the  name  of 
the  plaintiff  relates  back  to  the  time 
of  service.  Martin  v.  Coppock,  4 
Neb.  173. 

Opens  Default. — That  an  amendment 
after  default  opens  the  default,  see 
TuUis  V.  Scott,  38  Tex.  537. 

Notice  of  Trial  Not  Affected. — Where 
a  cause  is  at  issue  and  noticed  for  trial 
and  placed  upon  the  calendar,  an 
amendment  of  the  pleading  does  not 
render  another  notice  of  trial  neces- 
sary.    Stevens  z'.  Curry,  10  Minn.  316. 

New  Process. — Where  the  claim  of 
the  plaintiff  is  not  substantially 
changed  no  new  summons  is  neces- 
sary. Schuyler  Nat.  Bank  v.  Bollong, 
28  Neb.  684. 

3.  Michigan. —  Abbott  v.  Judge,  55 
Mich.  410;  Long  v.  Judge,  27  Mich. 
164;  Wood  V.  Lane,  84  Mich.  521. 

New  York. — Risley  i'.  Phoenix  Bank, 
2  Hun  (N.  Y.)  349;  Elting  v.  Dayton, 
67  Hun  (N.  Y.)  425. 

Nebraska. — McKeighan  v.  Hopkins, 
19  Neb.  33. 

Ohio.  —  Baltimore,  etc.,  R.  Co.  v. 
Gibson,  41  Ohio  St.  145. 


621 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Where  Amendment  Introduces  a  New  Cause  of  Action. — If  an  amendment 
introduces  a  new  cause  of  action  the  statute  of  limitations  runs 
against  it  to  the  time  when  it  is  filed.* 


North  Carolina. — Ely  v.  Early,  94 
N.  Car.  I. 

Georgia. — Tift  v.  Towns,  63  Ga.  237; 
Akin  V.  Bartow  County,  54  Ga.  59; 
South  Carolina  R.  Co.  v.  Nix,  68  Ga. 
572;  Rutherford  v.  Hobbs,  63  Ga.  243; 
Hines  v.  Rutherford,  67  Ga.  606. 

South  Carolina. — Bryce  v.  Massey, 
35  S.  Car.  127. 

Maine. — Heath  v.  Whidden,  29  Me. 
108. 

West  Virginia.  —  Kuhn  v.  Brown- 
field,  34  W.  Va.  252. 

Vermont. — Dana  v.  McClure,  39  Vt. 
197. 

Tennessee. — Burgie  v.  Sparks,  11 
Lea  (Tenn.),  84;  Nauce  v.  Thompson, 
I  Sneed  (Tenn.)  321. 

Minnesota. — Bruns  v.  Schreiber,  48 
Minn.  366. 

Indiana. — Monticello  v.  Grant,  104 
Ind.  168;  Chicago,  etc.,  R.  Co.  v.  Bills, 
118  Ind.  221. 

Alabama.  —  Stringer  v.  Waters,  63 
Ala.  361;  Bradford  v.  Edwards,  32 
Ala.  628;  Bowling  v.  Blackman,  70 
Ala.  303;  American  Union  Tel.  Co. 
V.  Daughtery,  89  Ala.  191;  Evans  v. 
Richardson,  76  Ala.  329;  Louisville, 
etc.,  R.  Co.  V.  Hall,  91  Ala.  112;  Ala- 
bama G.  S.  R.  Co.  V.  Thomas,  89  Ala. 
294;  Alabama  G.  S.  R.  Co.  v.  Arnold, 
80  Ala.  600;  Ricketts  v.  Weeden,  64 
Ala.  548;  Sublett  v.  Hodges,  88  Ala. 
491;  Western  Union  Tel.  Co.  v.  Way, 
83  Ala.  542. 

Illinois. — Blanchard  v.  Lake  Shore, 
etc.,  R.  Co.,  126  111,  416. 

Neia  Hampshire. — Gagnon  v.  Con- 
nor, 64  N.  H.  276. 

Pennsylvania. — Smith  v.  Bellows,  77 
Pa.  St.  441;  Clement  v.  Com.,  95  Pa. 
St.  107. 

California. — Kamm  v.  Bank  of  Cali- 
fornia, 74  Cal.  198;  Cox  V.  McLaughlin, 
76  Cal.  60;  Lorenzana  v.  Camarillo,  45 
Cal.  125;  Link  v.  Jarvis  (Cal.,  1893), 
33  Pac.  Rep.  206;  Preston  v.  Culbert- 
son,  58  Cal.  198. 

Missouri. — Buel  v.  St.  Louis  Trans- 
fer Co.,  45  Mo,  562;  Lottman  v.  Bar- 
nett,  62  Mo,  159;  Smith  v.  Missouri 
Pac,  R.  Co,,  56  Fed,  Rep,  458;  New- 
man V.  Jefferson  City,  etc,  R,  Co,. 
19  Mo,  App,  100;  Lilly  v.  Tobbein, 
103  Mo,  477, 

Iowa. — Myers  v.  Kirt,  68  Iowa,  124; 

62 


Cooper  V.  Mills  County,  69  Iowa,  350; 
Case  V.  Blood,  71  Iowa  632, 

Texas. — Scoby  v.  Sweatt,  28  Tex, 
713;  Foster  v.  Smith,  66  Tex.  680; 
Becker  v.  Gulf  City  St.  R.,  etc.,  Co., 
80  Tex.  475;  Mcllhenny  v.  Lee,  43 
Tex.  205;  Thompson  v.  Swearengin, 
48  Tex.  555;  Rowland  v.  Murphy,  66 
Tex.  534;  Gulf,  etc.,  R.  Co.  v.  Mc- 
Gown,  73  Tex.  355;  Hastings  v.  Kel- 
logg (Tex,  Civ,  App,,  1894),  24  S,  W. 
Rep,  1846;  Tribby  v.  Wokee,  74  Tex, 
142;  Telfener  v.  Dillard,  70  Tex,  139; 
Mayer  v.  Walker,  82  Tex.  222;  Turner 
V.  Brown,  7  Tex,  489;  Thouvenin  v. 
Lea,  26  Tex,  612;  Becton  v.  Alexander, 
27  Tex,  659;  Usher  v.  Skidmore,  28 
Tex,  616;  Hollis  v.  Chapman,  36  Tex, 
i;  Garrett  v.  Muller,  37  Tex.  589; 
Kendall  v.  Riley,  45  Tex,  20;  Jones  v. 
Burgett,  46  Tex,  285;  Killebrew  v. 
Stockdale,  51  Tex.*529;  Western  Union 
Tel.  Co,  V.  Brown,  62  Tex,  536;  I,  & 
G,  R,  Co,  V.  Irvine,  64  Tex,  529, 

New  Jersey. — Guild  v.  Parker,  43  N, 
J.  L,  430, 

Fending  Proceedings  in  Error, — The 
statute  will  not  run  pending  proceed- 
ings in  error,  Hutchinson  v.  Ains- 
worth,  73  Cal.  452, 

Amendment  After  Demurrer  Sustained. 
— The  amendment  relates  back  to 
the  commencement  of  the  suit,  even 
though  a  demurrer  to  the  complaint 
was  sustained  before  permission  given 
to  amend  it,  Zieverink  v.  Kemper,  50 
Ohio  St,  208;  Augusta  R,  Co,  v.  An- 
drews (Ga,,  1893),  19  S,  E,  Rep,  713, 
after  a  demurrer  sustained  on  the 
ground  that  the  complaint  stated  no 
cause  of  action. 

As  to  what  constitutes  a  new  cause 
of  action,  see  supra.  III,  6,  b,  c,d,  where 
many  cases  referred  to  in  this  note  are 
again  cited,  together  with  a  statement 
of  the  nature  of  the  amendments  filed 
therein, 

1,  Michigan. — Wingert  v.  Carpenter 
(Mich,,  1894),  59  N,  W,  Rep.  662;  People 
V.  Judge,  35  Mich.  227  ;  Gorman  v. 
Judge,  27  Mich,  138;  Nugent  z/.Adsit,  93 
Mich.  462;  Long  v.  Judge,  27  Mich,  164, 

Ohio. — Hills  V.  Ludwig,  46  Ohio  St, 

374- 

Maryland.  —  Schulze  z/,Fox,53  Md.37. 

North  Carolina. — Hester  v.  Mullen, 
107  N,  Car,  724, 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Question,  How  Raised. — The  question  whether  an  amended  com- 
plaint introduces  a  new  cause  of  action  barred  by  the  statute  of 
limitations  cannot  be  raised  by  motion  to  strike  out  the  amend- 
ment. The  statute  of  limitations  must  be  pleaded  so  as  to  give 
the  plaintiff  an  opportunity  to  set  up  exceptions.* 

Where  New  Parties  Are  Introduced. — Where  a  pleading  is  amended 
the   statute  of    limitations    runs   against   a   new   plaintiff,*   and 


Tennessee. — Crofford  v.  Cothran,  2 
Sneed  (Tenn.)  492. 

United  States. — Sicard  v.  Davis,  6 
Pet.  (U.  S.)  124. 

Alabatna. — Alabama  G.  S.  R.  Co.  v. 
Smith,  81  Ala.  229;  Barker  v.  Annis- 
ton,  etc.,  R.  Co.,  92  Ala.  314;  Mohr  v. 
Lemle,  69  Ala.  180;  Anniston,  etc.,  R. 
Co.  V.  Ledbetter,  92  Ala.  326;  Lans- 
ford  V.  Scott,  51  Ala.  557. 

Georgia. — Jones  v.  Johnson,  81  Ga. 
293;  Ayers  v.  Daly,  56  Ga.  119. 

Pennsylvania. — Leeds  v.  Lockwood, 
84  Pa.  St.  70. 

California.  —  Atkinson  v.  Amador, 
etc.,  Canal  Co.  53  Cal.  102;  Anderson 
V.  Mayers,  50  Cal.  525;  Buntin  v.  Chi- 
cago, etc.,  R.  Co.  41  Fed.  Rep.  744. 

Missouri. — Holliday  v.  Jackson,  21 
Mo.  App.  660. 

Texas. — McLane  v.  Belvin,  47  Tex. 
493;  Littlefield  v.  Fry,  39  Tex.  299; 
Erskine  v.  Wilson,  20  Tex.  77,  27  Tex. 
117;  Pridgin  v.  Strickland,  8  Tex. 
427;  Beal  V.  Alexander,  6  Tex.  531; 
Governor  v.  Burnett,  27  Tex.  32;  Will- 
iams V.  Randon,  10  Tex.  74;  Ayres  v. 
Cayce,  10  Tex.  99;  Gulf,  etc.,  R.  Co. 
V.  Thompson  (Tex.  App.,  1890),  16  S. 
W.  Rep.  174;  American  Salt  Co.  v. 
Heidenheimer,  80  Tex.  344;  Hopkins 
V.  Wright,  17  Tex.  30. 

See  also  Taylor  v.  Keeler,  51  Conn. 
397;  Delaware  County  v.  Andrews,  18 
Ohio  St.  49;  Trousdale  v.  Thomas,  3 
Lea  (Tenn.)  715;  Kaul  v.  Lawrence,  73 
Pa.  Sl.  410;  Tyrrill  v.  Lamb,  96  Pa.  St. 
464;  Wright  V.  Hart,  44  Pa.  St.  454; 
Stout  V.  Stout,  44  Pa.  St.  457;  Trego 
V.  Lewis,  58  Pa.  St.  463. 

Reasserting  Claim  after  Dismissal. — 
Where  an  action  was  brought  on  two 
promissory  notes  and  during  the 
trial  it  was  dismissed  as  to  one  of 
them  without  prejudice,  and  afterwards 
the  plaintiff  amended  his  petition  and 
claimed  the  same  amount  as  balance 
due  on  a  settlement  which  the  plead- 
ings showed  was  outside  of  the  period 
of  limitations,  it  was  error  to  overrule 
a  demurrer  setting  up  the  statute  of 
limitations.  Parsons  Water  Co.  v. 
Hill,  46  Kan.  145. 


New  Promise. — Where  a  new  promise 
or  acknowledgement  of  the  debt  is 
pleaded  by  amendment  the  statute  of 
limitations  runs  against  it  until  the 
filing  of  the  amendment.  Erskine  v. 
Wilson,  20  Tex.  77,  27  Tex.  117. 

In  New  York  it  has  been  said  that  the 
court  probably  has  power  to  permit  an 
amendment  setting  up  a  new  cause  of 
action  barred  by  the  statute  of  limita- 
tions and  thereby  defeat  that  defense. 
Hatch  V.  Central  Nat.  Bank,  78  N.  Y. 
487;  Eggleston  v.  Beach  (Supreme 
Ct.),  33  N.  Y.  St.  Rep.  835,  II  N.  Y. 
Supp.  525. 

But  that  the  power  should  be  spar- 
ingly exercised,  and  only  under  cir- 
cumstances showing  that  the  plaintiff 
has  pursued  his  rights  with  diligence 
and  is  free  from  fault  or  neglect,  and 
that  the  fact  that  he  has  discovered 
his  inability  to  prove  the  cause  of  ac- 
tion declared  on  is  no  ground  for 
granting  such  relief,  see  Eggleston  v. 
Beach  (Supreme  Ct.),  33  N.  Y.  St. 
Rep.  835,  II  N.  Y.  Supp.  525. 

In  Davis  v.  New  York,  etc.,  R.  Co., 
no  N.  Y.  646,  14  N.  Y.  St.  Rep.  i, 
however,  the  court  said:  "  There  is  no 
doubt  that  the  court  may  at  special 
term  allow  the  amendment  of  a  com- 
plaint by  introducing  therein  even  a 
cause  of  action  barred  by  the  statute 
of  limitations;  but  in  such  case  the 
defendant  must  not  be  deprived  of  his 
defense  of  the  statute."  See  also 
Quimby  v.  Clafiin,  27  Hun  (N.  Y.)  611. 

Statute  of  Limitations,  How  Pleaded. — 
If  the  defendant  desires  to  plead  the 
statute  of  limitations  to  an  amend- 
ment introducing  a  new  cause  of  ac- 
tion, he  should  properly  plead  it  only 
to  the  amendment  and  not  to  the 
original  and  amendment.  Pennsyl- 
vania Co.  V.  Sloan,  125  111.  72. 

1.  Jeffersonville,  etc.,  R.  Co.  v. 
Hendricks,  41  Ind.  48. 

2.  Kille  V.  Ege,  82  Pa.  St.  102;  Flat- 
ley  V.  Memphis,  etc.,  R.  Co.,  9  Heisk. 
(Tenn.)  230;  Telfener  v.  Dillard,  70 
Tex.  139;  Willink  v.  Renwick,  22 
Wend.  (N.  Y.)  608;  Cogdell  v.  Exum, 
69  N.  Car.  464. 


623 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


in  favor  of  a  new  defendant,*  to  the  date  of  filing  the  amend- 
ment by  which  he  is  brought  into  the  case. 

b.  Effect  upon  I N'JUNCTION— without  Prejudice.— An  amended 
complaint  which  does  not  affect  the  identity  of  the  action  may  be 
filed  by  leave  of  court  without  prejudice  to  a  preliminary  injunc- 
tion already  granted.* 

Original  Defects  Cured. — And  if  the  complaint  upon  which  an  injunc- 
tion is  granted  is  defective,  but  the  defects  are  cured  by  an 
amendment  which  states  good  ground  for  an  injunction,  amotion 
to  dissolve  the  injunction  based  upon  the  original  defects  should 
be  overruled.* 

c.  As  A  Waiver  of  Error  in  Previous  Rulings. — Where 
a  party  amends  a  pleading  after  it  has  been  pronounced  insuffi- 
cient he  cannot  assign  the  ruling  of  the  court  as  error.*     But  a 


Plaintiff  Not  Entirely  New.— Where  a 
suit  is  brought  in  the  name  of  an  asso- 
ciation incompetent  to  sue,  an  amend- 
ment substituting  some  of  its  mem- 
bers as  plaintiffs  relates  to  the  com- 
mencement of  the  suit  for  the  purpose 
of  avoiding  the  bar  of  the  statute  of 
limitations.     Lilly  v.  Tobbein,  103  Mo. 

477-  ,     . 

So  where  an  amendment  merely  in- 
serts the  representative  character  of 
plaintiff,  Hines  v.  Rutherford,  67  Ga. 
606;  Rutherford  v.  Hobbs,  63  Ga.  243; 
Tift  V.  Towns,  63  Ga.  237;  or  strikes  it 
out,  Fame  Ins.  Co.  v.  Thomas,  10  111. 
App.  545;  or  where  it  merely  corrects 
an  error  in  assigning  a  party  to  the 
wrong  side  of  the  case.  Buel  v.  St. 
Louis  Transfer  Co.,  45  Mo.  562. 

1  Jeffers  v.  Cook,  58  Cal.  147; 
Seibs  V.  Engelhardt,  78  Ala.  508, 
an  action  against  a  husband  to  en- 
force a  mechanic's  lien  where  the  wife 
was  brought  in  by  amendment  after 
the  statutory  period  had  elapsed. 
Leatherman  v.  Times,  88  Ky.  291,  a 
suit  against  a  corporation  and  an 
amendment  bringing  in  the  individual 
members.  Woodward  v.  Ware,  37 
Me.  563;  Lagow  v.  Neilson,  10  Ind. 
183;  Shaw  V.  Cock,  78  N.  Y.  194. 

Not  a  New  Defendant. — Where  an  ac- 
tion on  a  judgment  against  several 
joint  debtors  is  originally  brought 
against  one  of  them  alone,  a  subse- 
quent amendment  to  the  complaint  by 
inserting  the  names  of  the  other  judg- 
ment debtors  relates  back  to  the  com- 
mencement of  the  suit  as  against 
them.  Lewis  v.  Adams,  70  Cal.  403. 
See  also  the  quczre  in  Woodward  v. 
Ware,  37  Me.  563. 

Where  an  executor  is  a  defendant 

6 


on  a  cause  of  action  founded  on  the 
liability  of  the  testator  and  a  coexec- 
utor  is  added  by  amendment  the 
latter  cannot  set  up  the  statute  of 
limitations  to  save  the  estate  from 
liability.  Burgie  v.  Sparks,  11  Lea 
(Tenn.)  84. 

2.  Barber  v.  Reynolds,  33  Cal.  497; 
Shipman  v.  Superior  Court  (Cal.  ,1887), 
12  Pac.  Rep.  787;  Seldon  v.  Vermilya, 
4  Sandf.  Ch.  (N.  Y.)  573;  Furniss  v. 
Brown,  8  How.  Pr.  (N.  Y.)  59;  Walker 
V.  Walker,  3  Kelley  (Ga.)  302;  Warbur- 
ton  V.  London,  etc.,  R.  Co.,  2  Beav. 
254;  Pratt  V.  Archer,  i  Sim.  &  Stu.  254; 
Pickering  v.  Hanson,  2  Sim.  488. 

3.  Crawford  v.  Paine,  19  Iowa  172; 
Sweatt  V.  Faville,  23  Iowa  321. 

Where  Amendment  Abandons  Original. 
— But  if  the  plaintiff,  instead  of  so 
amending  his  petition  as  to  make  it 
appear  therefrom  that  his  purpose  is 
to  support  his  existing  writ,  files  what 
is  in  fact  a  new  petition,  though  styled 
an  amended  one,  and  asks  therein  for 
a  new  writ,  the  action  of  the  court  in 
sustaining  a  motion  to  dissolve  the 
writ  filed  before  the  amendment  will 
not  be  disturbed.  Des  Moines  N.  & 
R.  Co.  V.  Carpenter,  27  Iowa  487. 

Badical  Defects  not  Cured. — In  Rhodes 
V.  Union  Bank,  7  Rob.  (La.)  63,  it  was 
held  that  after  a  motion  to  dissolve  an 
injunction  the  plaintiff  cannot,  by  filing 
an  amended  petition  containing  new 
allegations,  cure  a  radical  defect  in  his 
original  proceedings,  and  thereby  give 
effect  to  an  injunction  originally  il- 
legal. 

4.  Amendment  of  Complaint  After  De- 
murrer Sustained  waives  an  objection 
to  the  ruling.  Lane  v.  Burlington, 
etc.,  R.    Co.,   52    Iowa    18;  Taylor   v. 

24 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


party  by  amending  one  paragraph  of  a  pleading  does  not  waive 
the  exception  to  a  ruling  upon  a  demurrer  to  another  paragraph 
of  the  same  pleading.* 

d.  Original  Pleading  Superseded, — The  original  complaint  is 
superseded  and  its  effect  as  a  pleading  destroyed  by  filing  an 
amended  complaint  which  is  complete  in  itself  and  does  not  refer 


Galland,  3  Greene  (Iowa)  17;  Smith  v. 
Cedar  Falls,  etc.,  R.  Co.,  30  Iowa  244; 
City  of  Muscatine  z/.  Keokuk,  47  Iowa 
350;  Philips  V.  Hosford,  35  Iowa  593; 
Ford  V.  Jefferson  County,  4  Greene 
(Iowa)  273;  Gale  v.  Tuolumne  Water 
Co.,  14  Cal.  25;  Loveland  v.  Garner,  71 
Cal.  541;  Walsh  v.  McKeen,  75  Cal. 
519;  Earp  V.  Putnam  County,  36  Ind. 
470;  Kennedy  «».  Anderson,  9S  Ind.  151; 
Murphy  v.  Peter,  56  Ind.  545;  Short  v. 
Spotts,  58  Ind.  29;  Mutual  Benefit  L. 
Ins.  Co.  V.  Cannon,  48  Ind.  264;  Scot- 
ten  V.  Longfellow,  40  Ind.  23.  See 
also  Bobb  v.  Bobb,  89  Mo.  411;  Birn- 
baum  V.  Crowinshield,  137  Mass.  177; 
Vaiden  v.  Bell,  3  Rand.  (Va.)  448; 
Moore  v.  Wade,  8  Kan.  380;  Kirk- 
patrick  v.  Holman,  25  Ind.  293. 

In  Alabama  under  the  Code,  §  2255, 
if  the  plaintiff  amends  after  demurrer 
sustained  it  is  no  waiver  unless  the 
record  shows  that  in  consequence  of 
the  amendment  he  sustained  no  injury 
by  the  ruling.  Williams  v.  Ivey,  37 
Ala.  242,  overruling  Sheppard  v.  Shel- 
ton,  34  Ala.  652,  and  limiting  Stall- 
ings  V.  Newman,  26  Ala.  300,  to  cases 
commenced  before  the  Code. 

Amendment  of  Complaint  After  Flea  in 
Abatement. — If  the  plaintiff  amends  by 
leave  after  plea  in  abatement  filed  to 
his  declaration,  it  amounts  to  a  con- 
fession of  the  plea  and  disposes  of  it. 
Webster  z/.Tiernan,  4  How. (Miss.)  352. 

Amendment  of  Plea  or  Answer  After 
Demurrer  Sustained  is  a  waiver  of  error. 
Martin  v.  Capital  Ins.  Co.,  85  Iowa 
643;  McClintock  v.  Crick,  4  Iowa  453; 
Duncan  v.  Hobart,  8  Iowa  336;  Frank- 
lin V.  Twogood,  18  Iowa  515;  Ham  v, 
Carroll,  17  Ind.  442;  Jay  v.  Indian- 
apolis, etc.,  R.  Co.,  17  Ind.  262;  Pat- 
rick V.  Jones,  21  Ind.  249;  State  v. 
Hay,  88  Ind.  74;  White  v.  Garretson, 
34  Ind.  514;  Miles  v.  Buchanan,  36 
Ind.  490;  Wingate  v.  Wilson,  53  Ind. 
78;  Robinson  v.  L'Engle,  13  Fla.  482; 
Sanford  v.  Cloud,  17  Fla.  532;  Mayo  v. 
Keyser,  17  Fla.  744;  Heaton  v.  Myers, 
4  Colo.  59;  Hurd  V.  Smith,  5  Colo.  233; 
Derry  v.  Ross,  5  Colo.  295. 

The  ruling  is  not  brought  up  for  re- 
view from  a  final  judgment  rendered 


for  the  plaintiff  upon  the  amended  an- 
swer.    Forcheimer    v.   Holly,    14  Fla. 

239- 

Striking  Out  an  Answer  or  a  part 
thereof  is  not  assignable  as  error  if 
the  defendant  files  an  amended  an- 
swer. Irvinson  v.  Van  Riper,  34  Ind. 
140;  Hexter  v.  Schneider,  14  Ore- 
gon 184;  Gale  V.  James,  11  Colo.  540, 
And  this  is  so  even  if  the  defend- 
ant excepts  to  the  action  of  the  court. 
Gale  V.  Foss,  47  Mo.  276. 

Waiver  of  Ruling  on  Evidence. — Where 
the  court  refused  to  permit  evidence 
offered  by  the  defendant  to  go  to  the 
jury  on  the  ground  that  it  was  not 
pertinent  to  the  issue  made  by  the 
pleadings,  whereupon  the  defendant 
obtained  leave  to  amend  and  did 
amend  his  answer,  setting  up  the  fact 
sought  to  be  established  by  the  evi- 
dence offered,  it  was  held  that  by 
pleading  over  he  waived  his  objection 
to  the  ruling  of  the  court.  Rees  v. 
Leech,  10  Iowa  439. 

Amendment  of  Application  to  be  Made  a 
Party. — One  who,  after  the  overruling 
of  his  application  to  be  substituted  as 
a  party  to  an  action,  amends  his  appli- 
cation, which  is  then  granted,  waives 
his  right  to  appeal  from  the  former 
ruling.     Bixby  v.  Blair,  56  Iowa  416. 

1.  Washburn  z/.  Roberts,  72  Ind.  213, 
an  amendment  of  a  complaint  after 
demurrer. 

Setting  up  a  New  Defense. — So  where 
an  answer  is  held  bad  on  demurrer  the 
defendant  does  not  waive  his  excep- 
tion to  the  ruling  on  the  demurrer  by 
amending  his  answer  so  as  to  set  up 
new  defenses.  Ingham  v.  Dudley,  60 
Iowa  16,  holding  that  a  waiver  occurs 
only  where  the  amendment  is  designed 
to  supply  the  omission  or  to  cure  the 
defect  pointed  out  by  the  demurrer. 

Abandoning  Counterclaim. — Where  a 
counterclaim  set  up  in  one  paragraph 
of  an  answer  was  held  bad  on  de- 
murrer, the  defendant  did  not  waive 
his  exception  to  the  ruling  by  filing  an 
amendment  to  another  paragraph,  in 
which  amendment  there  was  no  refer*, 
ence  to  the  counterclaim.  Folsom  v. 
Winch,  63  Iowa  477. 


I  Encyc.  PI.  &  Pr.— 40 


625 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 


to  or  adopt  the  original  as  a  part  of  it.*     And  where  a  count  is 
struck  out  of  a  declaration  by  leave  of  the  court,  the  declaration 
must  be  considered  as  if  that  count  had  never  been  introduced.* 
An  Amended  Answer,  complete  in  itself,  is  to  be  considered  as  if  it 


1.  Roderick  v.  Baltimore,  etc.,  R. 
Co.,  7  W.  Va.  54;  Seneca  County  Bank 
V.  Garlinghouse,  4  How.  Pr.  (N.  Y. 
Supreme  Ct.)  174;  Wood  v.  Gibbs,  35 
Miss.  559;  Anderson  v.  Robertson,  32 
Miss.  241;  Hawkins  v.  Massie,  62  Mo. 
552;  Jones  V.  Frost,  28  Cal.  245;  Kay 
V.  Fredrigal,  3  Pa.  St.  221;  White  v. 
Hampton,  9  Iowa  181;  Thompson  v. 
Toohey,  71  Ind.  296;  Westerman  v. 
Foster,  57  Ind.  408;  Yancy  v.  Teter, 
39  Ind.  305;  Specht  v.  Wiliamson,  46 
Ind.  599;  Kirkpatrick  v.  Holman,  25 
Ind.  293;  McFadden  v.  Ellsworth  M. 
&  M.  Co.,  8  Nev.  57;  State  v.  Simp- 
kins,  77  Iowa  676,  holding  that  the 
original  is  so  far  out  of  the  case  that  it 
cannot  be  considered  upon  demurrer 
to  the  substituted  petition.  See  also 
Boisse  V.  Langham,  i  Mo.  572;  Basye 
V.  Ambrose,  28  Mo.  39;  Flint  v.  Gauer, 
66  Iowa  696;  Young  v.  Broadbent,  23 
Iowa  539;  Braindeis  v.  Neustadtl,  13 
Wis.  142. 

Illustration. — Where  a  complaint  in 
foreclosure  names  a  partnership  as  a 
party  defendant,  and  an  amended  com- 
plaint is  filed  naming  each  member  of 
the  partnership  as  a  defendant,  a 
judgment  for  a  deficiency  cannot  be 
rendered  against  the  partnership;  and 
the  fact  that  service  of  summons  and 
the  original  complaint  was  made  on 
the  partnership  is  immaterial.  La 
Societ6,    etc.,  v.  Weidemann,   97   Cal. 

507. 

A  pleading  was  styled  in  the  cap- 
tion, "  the  third  amended  answer," 
and  commenced  as  follows  :  "  Now 
comes  the  defendant  and  for  an 
amended  answer,"  etc.  It  was  held 
that  it  took  the  place  of  and  was  not 
an  amendment  to  the  preceding  an- 
swer filed,  and  that  after  a  demurrer 
was  sustained  thereto  the  defendant 
was  not  entitled  to  a  trial  on  the  issues 
raised  by  the  preceding  answer.  Bates 
•v.  Kemp,  12  Iowa  99. 

The  Original  Complaint  as  Evidence. — 
The  allegations  of  the  original  com- 
plaint are  not  admissible  as  evidence 
for  or  against  the  plaintiff.  Mecham 
V.  McKay,  37  Cal.  154;  Wheeler  v. 
West,  71  Cal.  126;  Ponce  v.  McElvy, 
51  Cal.  222.  See  also  Turner  v.  Mad- 
den, 15   La.  Ann.   510.     Even  though 


they  were  sworn  to  for  the  purpose  of 
obtaining  a  writ  of  sequesiration. 
Coats  V.  Elliott,  23  Tex.  606. 

Contra. — The  statements  and  admis- 
sions in  the  original  pleadings  are  evi- 
dence for  all  the  purposes  of  the  trial. 
Smith  V.  Pelott  (Supreme  Ct.),  8  N. 
Y.  Supp.  301,  citing  Holmes  v.  Jones, 
121  N.  Y.  461.  See  also  Mulligan 
V.  Illinois  Cent.  R.  Co.,  56  Iowa 
181. 

A  party  making  allegations  in  his 
petition  which  constitute  distinct 
items  of  proof  may  be  bound  by  such 
allegations,  notwithstanding  he  may 
have  superseded  the  petition  by  an 
amended  one.  Aliter  where  aver- 
ments are  made  of  the  existence  of 
ultimate  facts  to  be  established  by  evi- 
dence. Johnson  v.  McGrew,  42  Iowa 
555- 

The  Kule  Qualified. — An  original  com- 
plaint is  not  superseded  by  an  amend- 
ment which  alleges  substantially  the 
same  cause  of  action,  and  it  remains 
"a  pleading"  within  the  meaning  of 
the  California  Code  of  Civ.  Pro.  ^  670, 
subd.  2,  which  makes  the  pleadings 
part  of  the  judgment  roll,  and  it  may 
also  be  brought  up  by  bill  of  excep- 
tions. Redingtonz*.  Cornwell,  9oCal. 
49. 

Waiver  of  the  Rule. — Where  a  de- 
fendant treated  both  complaints  as 
one  in  his  answer  by  expressly  answer- 
ing the  allegations  contained  in  both 
he  waived  his  right  to  take  advantage 
of  the  rule  that  an  amended  complaint 
supersedes  the  original.  Kline  v. 
Corey.  18  Hun  (N.  Y.)  524. 

Where  Original  Not  Superseded. — An 
amendment  to  a  complaint  (not  an 
amended  complaint)  must  be  con- 
sidered together  with  the  original. 
Wiggins z/.  Kirkpatrick  (N.  Car.,  1894), 
19  S.  E.  Rep.  152.  See  also  Thomas 
V.  Browder,  33  Tex.  783;  Houston,  etc., 
R.  Co.  V.  Shafer,  54  Tex.  641. 

In  Iowa,  that  filed  as  an  amend- 
ment will  not  be  considered  as  a  sub- 
stitute unless  it  is  therein  so  expressed, 
but  both  will  be  considered  together. 
Cooley  V.  Brown,  35  Iowa  475;  Mont- 
gomery V.  Shockey,  37  Iowa  107. 

2.  Prescott  v.  Tufts,  4  Mass.  146; 
Colvin  V.  Peck,  62  Conn.  155. 


626 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

were  the  only  answer  which  had  been  interposed  in  the  case  ;  * 
and  when  an  answer  is  withdrawn  by  leave  of  the  court  the  case 
is  in  the  same  condition  as  if  no  answer  had  been  filed.* 

Effect  of  Striking  Out. — But  where  an  amended  pleading  is  stricken 
out  the  original  is  restored.* 

e.  Right  to  Plead  DE  Novo — substantial  Amendments. — Where 
a  complaint  to  which  a  plea  or  answer  has  been  filed  is  amended 
in  matter  of  substance  the  defendant  has  an  absolute  right  to  plead 
de  novo.*"     And  if   he  avails   himself  of   the   right,   his  original 


1.  Hanscom  v.  Herrick,  21  Minn.  9; 
Sands  v.  Calkins,  30  How.  Pr.  (N.  Y. 
Supreme  Ct.)  i;  Kapp  z'.  Barthan,  i 
E.  D.  Smith  (N.  Y.)  622;  Cramer  v. 
Mack  (District  of  New  York),  12  Fed. 
Rep.  803;  Dunlop  v.  Robinson,  12  Ohio 
St.  530;  Barnsville  First  Nat.  Bank  v. 
Western  Union  Tel.  Co.,  30  Ohio  St. 
555;  Ticknor  v.  Voorhies,  46  Mo.  no; 
Young  z/.  Woolfolk,  33  Mo.  no;  Wells 
V.  Applegate,  12  Oregon  208,  holding 
that  all  motions  and  demurrers  relat- 
ing to  the  original  cease  to  be  a  part 
of  the  record;  Mecham  v.  McKay,  37 
Cal.  154  ;  Kuhland  v.  Sedgwick,  17 
Cal.  123;  Kentfield  v.  Hayes,  57  Cal. 
409;  Oilman  v.  Cosgrove,  22  Cal.  356; 
Smith  V.  Wigton,  35  Neb.  460;  Lan- 
man  v.  County  of  Des  Moines,  29 
Iowa  310.  See  also  Mitchell  v.  Will- 
iamson, 9  Gill  (Md.)  71. 

Original  as  Evidence.  —  In  Strong  v. 
Dwight.iiAbb.  Pr.N.S.  (N.Y.  Supreme 
Ct.)  319,  it  was  held  that  admissions 
in  a  sworn  answer  struck  out  by 
amendment  may  be  used  as  evidence 
on  the  trial  subject  to  be  rebutted  by 
the  defendant. 

In  Brown  v.  Pickard,  4  Utah  292,  it 
■was  held  that  an  answer  which  has 
been  superseded  by  an  amended  an- 
swer is  still  admissible  in  evidence 
against  the  defendant  as  an  admission 
of  the  facts  alleged  therein. 

Where  Original  Not  Superseded. — When 
an  amended  answer  does  not  take  the 
place  of  the  original  on  file  both  must 
must  be  considered  together  in  deter- 
mining the  issues  joined.  Pharo  v. 
Johnson,  15  Iowa  560.  See  also  Nun- 
nerlyn  v.  Alexander,  38  Tex.  125; 
Kostendader  v.  Pierce,  37  Iowa  645. 

2.  Roberts  v.  State  Ins.  Co.,  26  Mo. 
App.  92. 

3.  Spooner  v.  Cady  (Cal.,  1894),  36 
Pac.  Rep.  104.  See  also  cases  cited 
in  note  2,  page  626. 

4.  Yates  v.  French,  25  Wis.  661;  Gill 
■7/.   Young,   88  N.  Car.   58;   Matlock  z/. 

6 


Gray,  4  Hawks  (N.  Car.)  i,  where  the 
court  said  that  every  substantial 
amendment  in  the  writ  or  declaration 
should  be  accompanied  with  permis- 
sion to  the  defendant  to  amend  his 
plea; and  so  permission  to  the  defend- 
ant to  amend  his  plea  should  be  ac- 
companied with  a  permission  to 
the  plaintiff  to  amend  his  replication. 
Cleveland  v.  Cohrs,  13  S.  Car.  397; 
Adams  v.  Adams,  39  Ala.  603;  Ken- 
nedy z'.  Dear,  4  Port.  (Ala.) 423;  Butler 
V.  Thompson,  2  Fla.  16;  Jones  v. 
Grantham,  80  Ga.  472  ;  Bennett  v. 
Collins.  52  Conn,  i;  Estlin  v.  Ryder, 
20  La.  Ann.  251;  Harney  v.  Appel- 
gate,  57  Cal.  205  ;  Green  v.  Gill, 
5  Mass.  379;  Thompson  v.  Musser,  i 
Dall.  (U.  S.)  464;  Stanton  v.  Ken- 
rick  (Ind.,  1893),  35  N.  E.  Rep.  19;  Nel- 
son V.  Akeson,  i  111.  App.  165;  Logan 
V.  Tibbott,  4  Greene  (Iowa)  389; 
Travis  v.  Peabody  Ins.  Co.,  28  W. 
Va.  583;  Schulze  v.  Fox,  «;3  Md.  37; 
Kenny  v.  Van  Cleef,  i  Hall  (N.  Y.) 
165;  People  V.  New  York  C.  PL,  18 
Wend.  (N.  Y.)  534,  where  a  man- 
damus issued  to  compel  the  allow- 
ance; Bogart  V.  McDonald,  2  Johns. 
Cas.  (N.  Y.)  219  ;  Work  v.  Ogden 
(Supreme  Ct.),  16  N.  Y.  Supp.  268; 
Fink  V.  Manhattan  R.  Co.,  15  Daly 
(N.  Y.)  479,  24  Abb.  N.  Cas.  (N.  Y.) 
81,  holding  that  defendant  may  demur 
and  cannot  be  restricted  to  an  answer; 
Harriott  v.  Wells,  9  Bosw.  (N.  Y.) 
631,  and  State  v.  Green,  4  Gill  &  J. 
(Md.)  381,  holding  that  defendant  has 
a  right  to  plead  the  statute  of  limita- 
tions. Compare,  on  the  last  point, 
Green  v.  Gill,  5  Mass.  379,  and  Shaw 
V.  Brown,  42  Miss.  309. 

Conflicting  Authorities. — But  there  is 
some  confusion  in  the  authorities,  as 
was  pointed  out  in  Yates  v.  French, 
25  Wis.  661.  Thus  in  Barstow  v.  Ran 
dall,  5  Hill  (N.  Y.)  556,  it  was  held 
that  the  opposite  party  is  not  entitled 
to  answer  de  novo  unless  the  right  is 

27 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Sommon  Law,  under  Codes,  etc. 


pleading  is  to  be  considered  as  abandoned  and  may  be  stricken, 
from  the  files  on  motion  ;*  but  he  may  at  his  election  stand  upon 
his  original  pleading  without  pleading  anew.* 


expressly  reserved  in  the  order  grant- 
ing leave  to  amend.  See  also  Good  v. 
Martin,  i  Colo.  406. 

After  Demurrer. — Defendant's  right 
to  plead  anew  is  not  taken  away  be- 
cause a  demurrer  has  been  filed  before 
the  amendment  is  made.  Myrick  v. 
Myrick,  67  Ga.  771. 

Pleading  in  Abatement. — The  defend- 
ant has  no  right  in  pleading  de  novo  to 
plead  in  abatement.  Chapman  v. 
Davis,  4  Gill  (Md.)  166. 

Status  of  Amended  Answer. — The  new 
answer  may  be  amended  to  the  same 
extent  as  an  original  pleading.  Jones 
V.  Grantham,  80  Ga.  472. 

In  Texas  the  defendant  may  answer 
by  exception  or  plea  as  in  the  first 
instance.  Speake  v.  Prewitt,  6  Tex. 
252. 

In  South  Carolina  the  defendant  may 
either  answer  or  demur.  Cleveland  v. 
Cohrs,  13  S.  Car.  397. 

California. — Amending  a  complaint 
in  matter  of  substance  opens  a  default 
on  the  original  pleading,  and  the 
amendment  must  be  served  upon  the 
parties,  including  the  defaulted  defend- 
ant, and  each  is  entitled  to  an  oppor- 
tunity to  answer  it.  Cal.  Code  Cov. 
Pro.  §§  432,  465;  Thompson  v.  John- 
son, 60  Cal.  292;  People  v.  Woods,  2 
Sandf.  (N.  Y.)  652;  Reinhart  v.  Lugo, 
86  Cal.  395,  holding  that  the  bringing 
in  of  new  parties  in  an  action  for 
partition  is  an  amendment  of  sub- 
stance. But  a  defendant  who  appears 
and  answers  has  no  right  to  object  on 
appeal  that  an  amendment  has  not 
been  served  on  codefendants.  Mc- 
Gary  v.  Pedrorena,  58  Cal.  91. 

Mississippi. —  The  plaintiff  opens  a 
default  by  amending  thereafter  and 
the  defendant  has  a  right  to  plead 
anew.  Summers  z*.  Foote,  28  Miss.  671. 
The  defendant  after  an  amendment  by 
plaintiff  may  demur  or  plead  in  abate- 
ment or  in  bar.  Shaw  v.  Brown,  42 
Miss.  309. 

Objection  on  Appeal. — An  objection 
that  the  order  permitting  plaintiff  to 
amend  required  the  defendant  to  an- 
swer the  amended  complaint,  is  not 
available  on  appeal  on  the  ground  that 
it  prevented  the  defendant  from  de- 
murring, nor  because  the  order  re- 
quired  defendant   to    answer   within 

6 


twenty  days  after  service  of  the 
amended  complaint.  The  remedy  in 
such  cases  is  by  motion  for  a  re- 
settlement of  the  order.  Second  Ave. 
R.  Co.  V.  Metropolitan  El.  R.  Co.,  58- 
N.  Y.  Super.  Ct.  172. 

1.  Yates  V.  French,  25  Wis.  661. 

2.  Yates  v.  French,  25  Wis.  661,. 
where  the  amendment  consisted  only 
in  changing  the  ad  dammum  clause. 
See  also  Power  v.  I  vie,  7  Leigh  (Va.) 
147,  holding  that  a  verdict  on  the 
original  issue  will  stand,  and  Butler 
V.  Thompson,  2  Fla.  9,  to  precisely 
the  same  point;  Kennedy  v.  Dear,  4. 
Port.  (Ala.)  423;  Topeka  v.  Sherwood, 
39  Kan.  690;  Stevens  v.  Thompson,  5 
Kan.  305. 

That  no  answer  is  necessary  where 
the  denials  in  the  original  answer  are 
applicable  to  the  amendment,  see  fur- 
ther, Robinson  v.  Williamson,  7  Bush 
(Ky.)  604.  Compare  McAllister  v. 
Ball,  28  III.  210. 

When  New  Answer  Bequired.  —  In 
Robinson  v.  Keys,  9  Heisk.  (Tenn.) 
144,  leave  to  plaintiff  to  amend  his 
declaration  and  to  defendant  for  time 
to  plead  was  held  to  be  an  abandon- 
ment of  all  existing  issues;  and  that  if 
plaintiff  amends  his  declaration  and 
no  plea  be  filed  to  such  amended  dec- 
laration, the  plaintiff  is  entitled  to 
judgment  by  default. 

In  Wilson  v.  Preston,  15  Iowa  240, 
the  defendant  having  answered  and 
the  plaintiff  having  amended  by  add- 
ing a  verification  to  his  complaint,  a 
default  was  granted  against  the  de- 
fendant for  refusing  to  verify  his  an- 
swer or  to  file  a  verified  answer,  as 
the  statute  required  a  verified  answer 
to  a  verified  complaint. 

In  Iowa  an  amendment  to  a  petition 
setting  up  a  material  fact  which  is  not 
denied  by  the  answer  is  regarded  as 
admitted.  Code  of  Iowa,  §  271;  Eslich 
V.  Mason  City,  etc.,  R.  Co.,  75  Iowa 
443;  Cluugh  V.  Adams,  71  Iowa  17. 

In  Wisconsin. — Averments  in  a  com- 
plaint after  answer  will  be  taken  as 
admitted  unless  a  further  answer 
thereto  is  made,  except  where  the  first 
answer  is  sufficiently  broad  to  meet 
them.  Kelly  v.  Bliss,  54  Wis.  187  ; 
Knips  V.  Stefan,  50  Wis.  286,  a  case 
within  the  exception  mentioned. 

28 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  otc. 


Formal  Amendments. — Where  the  amendment  is  in  some  mere 
matter  of  form  and  does  not  affect  the  merits,  the  defendant  is 
not  as  of  right  entitled  to  answer  anew;*  nor,  on  the  other  hand, 
will  the  court  require  him  to  do  so.* 

13.  Leave  to  Amend — a.  Amemdments  of  Course — (i)  Statu- 
tory Provisions — Absolute  Right. — The  statutes  generally  provide 
that  the  party  filing  a  pleading  may  amend  it  once  of  course — 
that  is,  without  application  to  the  court — and  without  costs,'  at 
any  time    before   answer   or  demurrer   thereto,*    or  before  the 


Estoppel  of  Plaintiff.  —  Where  an 
amended  complaint  is  filed  and  the 
plaintiff  tries  the  case  upon  the  theory 
that  answers  to  the  original  complaint 
are  addressed  to  the  complaint  as 
amended,  he  is  bound  by  that  theory 
on  appeal.  McFadden  v.  Fritz,  no 
Ind.  I,  where  it  was  insisted  that  the 
amended  complaint  took  the  answers 
from  the  record  because  they  were  not 
refiled. 

1.  Sinnet  v.  Mulhollan,  3  Martin  (La.) 
398;  Harvey  v.  Corcoran,  60  Cal.  314, 
holding  that  after  plaintiff  had  dis- 
missed as  to  certain  defendants  not 
served,  an  amendment  erasing  their 
names  from  the  title  was  not  such  as 
to  require  service  of  it  upon  the  de- 
fendant, or  which  entitled  the  defend- 
ant to  answer  anew,  although  the  Cal- 
ifornia Code  of  Civ.  Pro.  (§§  432,  465) 
requires  all  amendments  to  the  com- 
plaint to  be  served  and  answered.  See 
also  Brock  v.  Martinovich,  55  Cal.  516; 
Smith  V.  Dorn,  96  Cal.  73,  where  the 
omission  of  the  signature  to  the 
amended  complaint  was  corrected  by 
amendment,  the  court  holding  that  at 
any  rate  the  defendant  could  not  com- 
plain of  denial  of  leave  to  answer 
anew  where  the  error  was  proved  not 
to  be  prejudicial;  Morford  w.  Dieffen- 
backer,  54  Mich.  593;  Stanton  v.  Ken- 
rick  (Ind.,  1893), 35  N.E.  Rep.  19;  Santo 
V.  Maynard,  57  Conn.  157;  Harris  v. 
Wickes,  28  Wis.  198,  holding  that  a 
mere  consolidation  of  two  actions,  in 
each  of  which  a  sufficient  answer  has 
been  filed,  without  change  in  the 
plaintiff's  allegations,  does  not  render 
necessary  a  new  or  amended  answer. 
At  least,  he  is  not  entitled  to  time  to 
answer.  Missouri  River,  etc.,  R.  Co.  v. 
Owen,  8  Kan.  409  ;  Topeka  v.  Sher- 
wood, 39  Kan.  690;  Ellen  v.  Lewison, 
88  Cal.  253;  George  v.  Swafford,  75 
Iowa  491  ;  Estlin  v.  Ryder,  20  La. 
Ann.  251. 

2.  Cohen  v.  Hamill,  8  Kan.  621. 

6 


If  an  amendment  to  a  petition  dees 
not  change  the  issue  and  the  court 
enters  a  default  for  want  of  an  an- 
swer, it  may  in  its  discretion  set  the 
default  aside  on  motion  of  the  defend- 
ant. McQuade  v.  Chicago,  etc.,  R. 
Co.,  78  Iowa  688. 

3.  Where  plaintiff  amends  of  course 
within  the  time  prescribed,  he  cannot 
be  compelled  to  pay  the  costs  of  a  mo- 
tion previously  served  on  him  to  strike 
out  irrelevant  allegations,  although  in 
his  amendment  he  complies  with  the 
requirement  of  the  defendant's  mo- 
tion. Welch  V.  Preston,  58  How.  Pr. 
(N.  y.  Supreme  Ct.)  52.  But  a  party 
cannot  amend  of  course  without 
costs  if  the  opposite  party  has  moved 
to  set  aside  the  first  pleading  for  ir- 
regularity which  is  cured  by  the 
amendment.  Williams  v.  Wilkinson, 
5  How.  Pr.  (N.  Y.  Supreme  Ct.)  357; 
Aj'mar  v.  Chase,  i  Code  Rep.  N.  S. 
(N.  Y.)  141;  Hall  V.  Huntley,  i  Code 
Rep.  N.  S.  (N.  Y.)  21,  note. 

4.  California  Code  Civ.  Pro.  sec. 
472;  New  York  Code,  sec.  542. 

In  California  the  plaintiff  may  amend 
his  complaint  of  course  at  any  time 
before  issuing  a  summons  where  there 
has  been  no  appearance  of  the  de- 
fendant. Allen  V.  Marshall,  34  Cal. 
165. 

In  Kansas  the  plaintiff  may  amend 
his  petition  without  leave,  at  any  lime 
before  the  answer  is  filed,  without  prej- 
udice to  the  proceedings.  Civil  Code, 
§  133;  Pierce  v.  Myers,  28  Kan.  364. 

In  West  Virginia  the  plaintiff  may  as 
of  course  amend  his  declaration  at 
any  time  before  appearance  by  the  de- 
fendant, and  in  such  case  it  is  not  nec- 
essary to  summon  the  defendant  to 
plead  to  the  amended  declaration. 
Phelps  V.  Smith.  16  W.  Va.  522. 

Amendments  of  Course  After  Demurrer. 
— Some  of  the  Codes  also  provide  for 
amendments  of  course  after  demurrer 
and  before  the  trial  of  the  issue  of  law 

29 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


period  for  answering  it  expires.*  And  in  some  jurisdictions  the 
privilege  of  amending  a  pleading  of  course  exists  until  a  certain 
period  after  answer  or  demurrer  thereto,^  Where  the  right  to 
amend  is  thus  conferred,  it  is  an  absolute  right  of  which  a  party 
cannot  be  deprived  except  for  causes  specified  in  the  statute.' 


thereon.  See  California  Code  Civ. 
Pro.  ^  472  ;  Colorado  Code  1887,  § 
73;  McDonald  r.  Hallicy,  i  Colo.  App. 

303- « 

It  is  not  allowable  to  amend  of 
course  after  a  pleading  has  been  held 
bad  on  demurrer  by  filing  another 
which  differs  in  phraseology  but  not 
in  substance 
70. 

In  New  York  prior  to  the  Code, 
under  a  rule  allowing  an  amendment 
after  demurrer,  the  defendant  was  not 
allowed  to  add  new  pleas.  Dole  v. 
Moulton,  Col.  &  Cai.  (N.  Y.)  91;  Ben- 
edict V.  Ripley,  5  Cow.  (N.  Y.)  37. 
And  unless  there  w^as  a  demurrer  to 
the  plea  defendant  could  not  amend  it 
of   course.       Squires    v.   Mallory,     17 


pleading  by  mail  does  not  thereby  se- 
cure twice  the  time  to  serve  an 
amended  pleading  which  he  would 
have  had  if  the  service  had  been  a 
personal  one.  Armstrong  z/.  Phillips, 
60  Hun  (N.  Y.)  243.  See  Evans  v. 
Lichtenstein,  9  Abb.  Pr.  N.  S.  (N.  Y. 
Supreme  Ct.)  141;  Toomey  v.  An- 
Epley  V.  Ely,  68  Iowa  drews,  48  How.  Pr.  (N.  Y.  Supreme 
Ct.)  332;  Washburn  v.  Herrick,  4  How. 
Pr.  (N.  Y.  Supreme  Ct.)  15. 

Where  one  of  several  defendants 
served  with  the  complaint  demurred 
thereto  and  the  demurrer  was  noticed 
for  argument,  and  nearly  three  months 
thereafter  another  defendant  was 
served  with  the  complaint,  it  was 
held  that  the  plaintiff  could  not  amend 
the    complaint    of    course    as    to    the 


Johns.  (N.  Y.)  3;  Benedict  z'.  Ripley,  5  defendant    who    had    demurred,    al- 

Cow.  (N.  Y.)  37.  though  the  amendment  was    claimed 

1.  New  York  Code,  sec.  542.  within  twenty  days  of  the  time  when 

Time     to     Amend. — After    a    motion  the  last  complaint,  was   served,    thus 

made    by    the   plaintiff  for  a   receiver  giving  effect  to  the  words   "without 

has   been  denied,  but   before  the  time  prejudice  to  the  proceedings  already 

for  the  defendant  to  answer  the  com-  had."     George  v.  Grant,  56  How.  Pr. 

plaint  has  expired,  the  plaintiff  may  (N.   Y.    Supreme    Ct.)    244.     See   also 


serve  an  amended  complaint  of 
course.  Fausten  v.  Weishas  (Su- 
preme Ct.),  6  N.  Y.  St.  Rep.  730. 

By   obtaining  an  extension  of  time 
in  which  to  answer  the  defendant  ex- 


Prudden   v.    Lockport,    40   How.    Pr. 
(N.  Y.  Supreme  Ct.)  46. 

Service  of  Amended  Complaint. — 
Where  an  amended  complaint  does 
not  jubstantially  change  the   original 


tends  the  time  of  the  plaintiff  to  amend     con.plaint  it  need  not  be  served  upon 


his  complaint  as  of  course.  Albert 
Palmer  Co.  v.  Shaw,  64  How.  Pr.  (N. 
Y.  Super.  Ct.)  80. 

An  order  extending  the  time  of 
the  plaintiff  to  serve  a  reply  to  a 
counterclaim  set  up  in  the  answer  does 
not  extend  the  time  to  amend  the  com- 
plaint of  course.  Dawson  v.  Bogart, 
10  Civ.  Pro.  Rep.  (N.  Y.  C.  PI.)  56. 

2.  New  York. — The  New  York-Code, 
sec.  542,  provides  for  amendment  of 
course  within  twenty  days  after  an- 
swer   or    demurrer    to    the     original 


defendants  who  have  been  served 
'  with  the  summons  and  complaint  and 
have  appeared  in  the  action.  Weil  v. 
Martin,  24  Hun  (N.  Y.)  645,  distin- 
guishing McMurray  v.  McMurray,  60 
Barb.  (N.  Y.)  117;  People  v.  Woods, 
2  Sandf.  (N.  Y.)  653. 

3.  Stillwell  V.  Kelly,  37  N.  Y.  Super. 
Ct.  417;  Cooper  v.  Jones,  4  Sandf. 
(N.  Y.)  699;  Frank  v.  Bush,  2  Civ. 
Pro.  Rep.  (N.  Y.  Marine  Ct.)  250; 
Clifton  V.  Brown,  2  Civ.  Pro.  Rep. 
(N.  Y.  Supreme  Ct.)  44;  Allen  v.  Bid- 


pleading,    without    prejudice    to    the     well,  35  Iowa  218;  Champion  v.  Rob- 
proceedings  already  had.  ertson,    4   Bush   (Ky.)    17.      See   also 
An  amended    complaint    cannot    be     Spooner  v.   Cady  (Cal.,  1894),  36  Pac. 


served  as  of  course  more  than  twenty 
days  after  the  original,  though  de- 
fendant has  not  answeredordemurred. 
Clark  V.  Humphrey,  2  Month.  L.  Bull. 
(N.  Y.)  21. 


Rep.  104;  Allen  v.  Marshall,  34  Cal. 
165;  Smith  V.  Pfister,  8  Civ.  Pro.  Rep. 
(N.  Y.  Supreme  Ct.)  409. 

Fending  Motion  for  Change  of  Venue. 

—  In  Allen  v.  Bidwell,  35   Iowa  218,  it 

In  New  York  a  party  by  serving  his     was  held  that,  pending  a  motion  for  a 

630 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


(2)  Waiver  of  Right. — The  plaintiff's  right  to  amend  as  of 
course,  after  answer  served,  is  waived  by  an  application  for  leave 
to  amend  and  becomes  discretionary  with  the  court.*  Noticing 
the  cause  for  trial  is  a  waiver,*  or  appealing  from  an  order  giving 
leave  to  amend.*  But  a  proceeding  by  the  plaintiff  for  the  ex- 
amination of  the  defendant  before  trial  within  the  time  allowed 
for  amendments  of  course  is  not  inconsistent  with  the  right  to 
amend  and  is  not  a  waiver.* 

(3)  What  Amendments  May  Be  Made — By  the  Plaintiff. — The 
plaintiff  may  amend  his  complaint  by  changing  the  place  of  trial,** 
or  by  changing  the  prayer  for  relief,®  and,  according  to  some 


change  of  venue  and  before  answer,  it 
was  reversible  error  to  refuse  to  allow 
the  plaintiff  to  amend  his  petition  so 
as  to  remove  the  ground  for  the  mo- 
tion. 

Noticing  a  Cause  for  Trial  does  not 
affect  the  right  of  the  other  party  to 
amend  as  of  course.  Washburn  v. 
Herrick,  4  How.  Pr.  (N.  Y.  Supreme 
Ct.)  15;  Ostrander  v.  Conkey,  20  Hun 
(N.  Y.)  421;  Clifton  V.  Brown,  2  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  44; 
Townsend  v.  Hillman,  18  Civ.  Pro. 
Rep.  (N.  Y.  City  Ct.)  213. 

Where  the  plaintiff  after  noticing  a 
cause  for  trial  amends  his  complaint, 
and  defendant  serves  an  amended 
answer,  the  plaintiff  must  serve  a  new 
notice  ot  trial  and  file  a  new  note  of 
issue.  Graham  v.  Stirling  Ins.  Co. 
(C.  PI.),  13  N.  Y.  Supp.  562. 

Effect  of  Amending  of  Course. — As  to 
the  effect  of  an  amendment  in  defeat- 
ing intervening  motions  by  the  op- 
posite party,  see  Burrall  v.  Moore,  .5 
Duer  (N.  Y.)  654;  Frank  v.  Bush,  63 
How.  Pr.  (N.  Y.  Marine  Ct.)  282; 
Rider  v.  Bates,  66  How.  Pr.  (N.  Y. 
Supreme  Ct.)  129;  and  that  it  super- 
sedes the  original  pleading,  Seneca 
County  Bank  v.  Garlinghouse,  4  How. 
Pr.  (N.  Y.  Supreme  Ct.)  174;  Fry  v. 
Bennett,  3  Bosw.  (N.  Y.)  200,  nffd, 
28  N.  Y.  324;  Dann  z/.  Baker,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  521;  Sands  v. 
Calkins,  30  How.  Pr.  (N.  Y.  Supreme 
Ct.)  i;  Fogg  V.  Edwards,  20  Hun  (N. 
Y.)  90;  Ne.v  York,  etc.,  Transp.  Co.  v. 
Hurd  (Supreme  Ct.),  8  N.  Y  St.  Rep. 
718;  Kelly  V.  Christal,  81  N.  Y.  619, 
aff'g  16  Hun  (N.  Y.)  242;  Cramer  v. 
Mack  (District  of  New  York),  12  Fed. 
Rep.  803;  and  that  it  relates  back  to 
the  commencement  of  the  action.  Ward 
V.  Kalbfleish.  21  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  283. 

The  right  to  amend  of  course  does 

6' 


not  operate  per  se  as  a  stay  of  proceed- 
ings. Cusson  V.  Whalon,  i  Code  Rep. 
N.  S.  (N.  Y.)  27. 

1.  Hamilton  v.  Carrington  (S.  Car., 
1894),  19  S.  E.  Rep.  676. 

The  right  to  amend  of  course  is 
substantial,  and  a  waiver  must  be 
clearly  shown.  Low  v.  Graydon,  14 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  443. 

2.  Phillips  V.  Suydam,6  Abb.  Pr.  N.  S. 
(N.  Y.  Supreme  Ct.)  289,  54  Barb.  (N. 
Y.)  153.  Contra,  Clifton  v.  Brown,  2 
Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.)  44, 
27  Hun  (N.  Y.)  231;  Duychinck  v. 
New  York  El.  R.  Co.,  49  N.  Y.  Super. 
Ct.  244,  5  Civ.  Pro.  Rep.(N.  Y.)  22;  Car- 
penter V.  Adams,  34  Hun  (N.  Y.)  429. 

A  defendant  who  has  accepted  the 
conditions  of  an  order  granting  him 
time  to  answer  by  waiving  notice  of 
trial,  and  consenting  to  place  the  cause 
on  the  calendar  and  consenting  to'a 
reference,  cannot  amend  his  answer  of 
course  so  as  to  raise  new  issues. 
Schwab  V.  Wehrle,  14  N.  Y.  Wkly. 
Dig.  529. 

3.  Shibley  v.  Angle,  37  N.  Y.  626. 

4.  Stillwell  V.  Kelly,  37  N.  Y.  Super. 
Ct.  417. 

5.  Stryker  z'.  New  York  Exch.  Bank, 
42  Barb.  (N.  Y.)  511,  28  How.  Pr.  (N. 
Y.)  20;  Toll  V.  Cromwell,  12  How.  Pr. 
(N.  Y.  Supreme  Ct.)  79;  Rector  v. 
Ridgewood  Ice  Co.,  38  Hun  (N.  Y.) 
293;  on  appeal,  loi  N.  Y.  656;  Moulton 
V.  Beecher,  i  Abb.  N.  Cas  (N.  Y.  Su- 
preme Ct.)  193;  McCosker  v.  Smith 
(Supreme  Ct.),  14  N.  Y.  Supp.  615,  38 
N.  Y.  St.  Rep.  227.  See  also  in  New 
York,  before  the  Code,  Hitchcock  v. 
Post,  I  Wend.  (N.  Y.)  16.  Contra, 
Wadsworth  v.  Georger,  18  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  199.  Compare 
Faherty  v.  Schuyler  Steam  Tow  Boat 
Line,  43  Hun  (N.  Y.)  432. 

6.  Getty  v.  Hudson  River  R.  Co.,  6 
How.    Pr.   (N.   Y.   Supreme   Ct.)   269. 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

authorities,  by  setting  forth  an  entirely  new  cause  of  action.* 
But  he  cannot  introduce  matters  that  occurred  subsequent  to  the 
commencement  of  the  suit.* 

By  the  Defendant. — Whatever  form  of  pleading  the  defendant  con- 
cludes to  be  necessary  to  present  his  defense  may  be  amended  by 
him,  of  course,  within  the  time  prescribed.*  If  it  be  an  answer, 
the  facts  may  be  stated  in  another  way  or  other  facts  added,  or 
some  of  those  first  stated  omitted  entirely.*  If  it  be  a  demurrer, 
its  form  may  be  changed  or  other  additional  grounds  may  be 
alleged.*  But  an  issue  of  law  cannot  be  changed  by  an  amend- 
ment of  course  to  an  issue  of  fact — a  demurrer  cannot  be  amend- 
ed by  serving  an  answer;®  nor  can  an  issue  of  fact  be  converted 


Compare  Gray  v.   Brown,  15  How.  Pr. 
(N.  Y.  Supreme  Ct.)  555. 

1.  Brown  v.  Leigh,  49  N.  Y.  78; 
Sullivan  v.  Sullivan,  24  S.  Car.  474, 
qticere.  See  Mason  v.  Whitely,  I  Abb. 
Pr.  (N.  Y.  Super.  Ct.)  85;  Thompson 
V.  Minford,  11  How  Pr.  (N.  Y.  Supreme 
Ct.)  273;  Spencer  v.  Tooker,  12  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  353,  21  How. 
Pr.  (N.  Y.)  333;  Spuyten  Duyvil 
Rolling  Mills  Co.  v.  Williams,  i  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  280;  Wy- 
man  v.  Remond,  18  How.  Pr.  (N.  Y. 
Supreme  Ct.)  272;  Griffin  v.  Cohen,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)  451; 
Fielden  v.  Carelli,  26  How.  Pr.  (N.  Y. 
Supreme  Ct.)  173;  Townsend  v.  Piatt, 
3  Abb.  Pr.  (N.  Y.  C.  Pi.)  323. 

Jn  New  York,  prior  to  the  Code,  a 
count  in  debt  could  be  substituted  of 
course  for  a  count  in  assumpsit. 
Garlock  v.  Bellinger,  2  How.  Pr.  (N. 
Y.  Supreme  Ct.)  43. 

2.  Hornfager  v.  Hornfager,  6  How. 
Pr.  (N.  Y.  Supreme  Ct.)  13;  Anthony 
V.  Day,  5  N.  Y.  Wkly.  Dig.  296. 

The  objection  may  be  waived.  Beck 
V.  Stephani,  g  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  193. 

Mere  Verification. — A  verification  is 
no  part  of  a  complaint,  and  therefore 
a  new  complaint  served  as  of  course 
which  is  the  same  as  the  original  ex- 
cept that  it  is  verified  is  not  an 
amended  complaint,  and  the  defendant 
may  disregard  it.  George  v.  McAvoy, 
6  How.  Pr.  (N.  Y.  Supreme  Ct.)  200. 

Change  of  Parties  is  not  an  amend- 
ment of  pleadings.  Billings  z'.  Baker, 
6  Abb.  Pr.  (N.  Y.  Supreme  Ct.)2i3. 

8.  Cashman  v.  Reynolds,  123  N.  Y. 
141. 

4.  Cashman  v.  Reynolds,  123  N.  Y. 
141. 

New  Defense. — In  McQueen  v.  Bab- 

63J 


cock,  3  Keyes  (N.  Y.)  428,  it  was  held 
that  the  defendant  may  serve  an 
amended  answer  containing  a  new  de- 
fense. So  in  Brown  v.  Leigh,  49  N. 
Y.  48;  Jackson  z/.  Peer,  4  Cow.  (N.  Y.) 
418;  Wyman  v.  Remond,  18  How.  Pr. 
(N.  Y.  Supreme  Ct.)  272. 

The  defendant  may  withdraw  a 
counterclaim.      Branagan  v.    Palmer, 

5  N.  Y.  Wkly.  Dig.  521. 
An  answer   which  is  of    the   same 

legal  effect  as  the  original  is  not  an 
amended  answer.     Snyder  v.    White, 

6  How.  Pr.  (N.  Y.  Supreme  Ct.)  321. 

5.  Cashman  v.  Reynolds,  123  N.  Y. 
141;  Hedges  v.  Dam,  72  Cal.  520. 

6.  New  York. — Cashman  z/.  Reynolds, 
123  N.  Y.  138,  33  N.  Y.  St.  Rep.  70, 
25  Abb.  N.  Cas.  (N.  Y.)  392,  19  Civ. 
Pro.  Rep.  (N.  Y.)  161,  a_ff'g  56  Hun 
(N.  Y.)  333,  31  N.  Y.  St.  Rep.  143,  24 
Abb.  N.  Cas.  (N.  Y.)455,  18  Civ.  Pro. 
Rep.  (N.  Y.)  317,  9  N.  Y.  Supp.  614. 

The  Foregoing  Decision  Sustains 
Smith  V.  Laird,  44  Hun  (N.  Y.)  530,  g 
N.  Y.  St  Rep.  376;  Wise  v.  Gessner, 
47  Hun  (N.  Y.)  306,  14  N.  Y.  St. 
Rep.  268.  See  also  Bleecker  v. 
Bellinger,  11  Wend.  (N.  Y.)  179. 
//  overrules  Robertson  v.  Bennett, 
52  How.  Pr.  (N.  Y.  Super.  Ct.)  287; 
People  V.  Whitwell,  62  How.  Pr.  (N. 
Y.  C.  PI.)  383;  Adams  v.  West  Shore, 
etc.,  R.  Co.,  65  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  329;  Frank  v.  Bush,  63 
How.  Pr.  (N.  Y.  Marine  Ct.)  282,  2 
Civ.  Pro.  Rep.  (N.  Y.)  250;  Betts  z/. 
Kridell,  20  Abb.  N.  Cas.  (N.  Y.  City 
Ct.)  I,  12  N.  Y.  St.  Rep.  163;  Hovt  v. 
Shelp,  20  Abb.  N.  Cas.  (N.  Y.  City 
Ct.)  10;  Robostelli  !».  Noxon  (Supreme 
Ct.),  5  N.  Y.  Supp.  315,  24  N.  Y.  St. 
Rep.  894;  Carpenter  z*.  Adams,  34  Hun 
(N.  Y.)  429;  Barnes  v.  Gibbons,  20 
Abb.  N.  Cas.  (N.  Y.  City  Ct.)  10. 


Of  Pleadings,  etc. ,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

into  an  issue  of  law — an  answer  cannot  be  amended  by  a  de- 
murrer.* 

(4)  What  Pleadings  May  Be  Amended. — Under  the  statutes 
which  provide  for  the  amendment  of  course  of  any  "  pleading,"  a 
supplemental  complaint  may  be  so  amended.*  But  a  notice  of 
lien  cannot  be  amended,'  nor  an  offer  by  the  defendant  for  the 
plaintiff  to  take  judgment;*  nor  can  the  plaintiff  ame^id  the 
summons  of  course.* 

(5)  Once  Only. — The  Codes  provide  for  amendment  "  once"  of 
course,  and  a  second  amended  pleading  cannot  be  filed  as  of 
course  after  the  first  amended  pleading  has  been  stricken  out,® 
nor,  it  seems,  after  the  pleading  has  been  once  amended  by  an 
order  of  court.'' 


In  California  any  pleading  may  be 
amended  of  course,  and  without  costs, 
after  demurrer  and  before  the  trial  of 
the  issue  of  law  thereon;  and  a  de- 
murrer is  not  waived  by  filing  an  an- 
swer at  the  same  time.  Cal.  Code 
Civ.  Pro.  ^  472. 

1.  Cashman  v.  Reynolds,  123  N.  Y. 
141. 

Belief,  How  Obtained. — When  a  party 
has  made  a  mistake  by  serving  a  de- 
murrer when  he  should  have  served 
an  answer,  or  by  serving  an  answer 
when  he  should  have  served  a  de- 
murrer, he  can  be  relieved  from  the 
consequences  of  his  mistake  by  an 
application  to  the  court,  and  in  that 
way  permitted  to  substitute  an  answer 
for  a  demurrer,  or  vice  versa  ;  which 
the  court  may  allow  to  be  done  when 
satisfied  that  justice  requires  it,  and 
upon  such  terms  as  it  may  consider 
just.  Cashman  v.  Reynolds,  123  N. 
Y.  141. 

2.  Divine  v.  Duncan,  2  Abb.  N. 
Cas.  (N.  Y.)  328,  52  How.  Pr.  (N.  Y.) 
446. 

In  New  York,  prior  to  the  Code,  a 
plea  of  puis  darrein  continuance  could 
be  amended  of  course.  Siver  v.  Smith, 
18  Johns.  (N.  Y.)  310. 

A  pleading  which  had  been  answered 
could  not  be  amended.  Cowles  v.  Cos- 
ter, 4  Hill  (N.  Y.)  550. 

A  declaration  in  ejectment  could  be 
amended  of  course,  Lounsbury  t/.  Ball, 
12  Wend.  (N.  Y.)  247;  and  a  writ  of 
scire  facias  when  used  as  a  pleading. 
Jackson  v.  Tanner,  18  Wend.  (N.  Y.) 
526. 

3.  Diossy  v.  Martin,  6  N.  Y.  Wkly. 
Dig.  54. 

,4.  Vellerman  v.  King,  2  Edm.  Sel. 
Cas.  (N.  Y.)  371. 


Under  the  New  York  Code  of  1849, 
a  pleading  not  requiring  an  answer  or 
demurrerwas  not  amendable  of  course. 
Plumb  V.  Whipples,  7  How.  Pr.  (N.Y. 
Supreme  Ct.)  411;  Lampson  v.  Mc- 
Queen, 15  How.  Pr.  (N.  Y.  Supreme 
Ct.)  345;  Farrand  v.  Herbeson,  3  Duer 
(N.  Y.)  655.  Otherwise  at  the  present 
time.  Townsend  v.  Piatt,  3  Abb.  Pr. 
(N.  Y.  C.  PI.)  323. 

5.  Walkenshaw  v.  Perzel,  32  How. 
Pr.  (N.  Y.  Super.  Ct.)  310;  Diblee  v. 
Mason,  i  Code  Rep.  (N.  Y.)  37;  Mc- 
Crane  v.  Moulton,  3  Sandf.  (N.  Y.) 
736;  Follower  v.  Laughlin,  12  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  105;  Billings 
V.  Baker,  6  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  213;  Russell  V.  Spear,  5  How. 
Pr.  (N.  Y.  Supreme  Ct.)  142.  See  Peo- 
ple V.  Monroe  C.  PI.,  5  Wend.  (N.  Y.) 
105. 

The  pleadings  cannot  be  amended 
as  of  course  in  any  case  in  which  the 
court  would  be  prohibited  from  allow- 
ing an  amendment  on  special  motion. 
Spalding  v.  Spalding,  3  How.  Pr.  (N. 
Y.  Supreme  Ct.)  297. 

6.  Mussinan  w.  Hatton  (N.  Y.  Super. 
Ct  ),  28  N.  Y.  Supp.  1006,  31  Abb.  N. 
Cas.  (N.  Y.)  254;  Schmid  v.  Arguim- 
ban,  46  How.  Pr.  (N.  Y.  Super.  Ct.) 
105,  holding  that  an  answer  cannot  be 
amended  without  leave  after  it  has 
been  stricken  out  as  sham.  Compare 
Ross  V.  Dinsmore,  20  How.  Pr.  (N.  Y. 
Supreme  Ct.)  328,  12  Abb.  Pr.  (N.  Y.) 

4- 

7.  Jeroliman  v.  Cohen,  i  Duer  (N. 
Y.)  629;  Sands  V.  Calkins,  30  How.  Pr. 
(N.  Y.  Supreme  Ct.)  i;  White  v.  New 
York,  5  Abb.  Pr.  (N.  Y.  Super.  Ct.) 
322,  6  Duer(N.  Y.)685.  See  also,  be- 
fore the  Code,  Lewis  v.  Watkins,  6 
Hill  (N.  Y.)  230.     Compare  Lintzenich 


633 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


(6)  For  the  Purpose  of  Delay. — At  least  one  of  the  Codes  pro- 
vides that  if  it  is  made  to  appear  to  the  court  that  the  pleading 
was  amended  for  the  purpose  of  delay,  and  that  the  adverse  party 
will  thereby  lose  the  benefit  of  a  term,  for  which  the  cause  is  or 
may  be  noticed,  the  amended  pleading  may  be  stricken  out,  or 
the  pleading  restored  to  its  original  form.*  Except,  perhaps,  in 
extreme  instances*  an  amendment  made  in  bad  faith  cannot  be 
treated  as  a  nullity,  but  the  question  of  intent  must  be  passed 
upon  by  the  court  upon  motion  and  proof  before  it  can  be 
stricken  out.^ 

(7)  Remedy  for  Unauthorized  Amendment.  —  Where  a  party 
makes  an  unauthorized  amendment  the  remedy  of  the  other 
party  is  to  refuse  to  accept,  or  to  return  promptly  the  amended 
pleading  to  the  attorney  by  whom  it  is  subscribed,^  or  to  give 
notice  that  he  disregards  it,  stating  his  reasons  for  so  doing  ;*  and 
if  the  party  persists  in  serving  it,  motion  may  be  made  to  have  it 
struck  out  or  set  aside.®  It  is  never  necessary  to  return  the 
second  time  a  pleading  which  has  once  been  sent  back  to  the 
pleader  and  by  him  again  served.'' 

h.  When  Leave  Is  Necessary — Implied  Leave. — Except- 
ing such  amendments  as  a  party  is  allowed  to  make  as  of  course,* 


V.  Stevens  (Supreme  Ct.),  17  N.  Y.  St. 
Rep.  862,  3  N.  Y.  Supp.  395;  Cooper 
V.  Jones,  4  Sandf.  (N.  Y.)  699. 

1.  NewYo7-k  Code,  4^  542. 

2.  Allen  v.  Compton,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  251;  Vanderbilt  f. 
Bleeker,  4  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  289.  See  also  Rogers  v.  Rath- 
burn,  8  How.  Pr.  (N.  Y.  Supreme  Ct.) 
466. 

3.  Frank  v.  Bush,  2  Civ.  Pro.  Rep. 
(N.  Y.  Marine  Ct.)  250,  63  How.  Pr. 
(N.  Y.)  282;  Ostrander  v.  Conkey,  20 
Hun  (N.  Y.)  421;  Griffin  v.  Cohen,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)  451; 
Rogers  v.  Rathburn,  8  How.  Pi.  (N. 
Y.  Supreme  Ct.)  466;  Thompson  v. 
Minford.  11  How.  Pr.  (N.  Y.  Supreme 
Ct.)  273;  Burrall  v.  Moore,  5  Duer  (N. 
Y.)  654;  Spencer  v.  Tooker,  21  How. 
Pr.  (N.  Y.  Supreme  Ct.)  333;  Con- 
quest V.  Barnes  (Supreme  Ct.),  21  N. 
Y.  St.  Rep.  112.  See  Minrath  v. 
Teacher's  Land,  etc.,  Co.  (Supreme 
Ct.),  50  N.  Y.  St.  Rep.  39,  21  N.  Y. 
Supp.  204. 

4.  When  such  a  party  is  a  municipal 
corporation  having  a  counsel  chosen 
under  a  statute,  the  papers  should  be 
returned  to  such  counsel.  Taylor  v. 
New  York,  11  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  255. 

5.  Hollister  v.  Livingston,  9  How. 
Pr.  (N.  Y.  Supreme  Ct.)  140.    See  also 

6 


Follower  v.  Laughlin,  12  Abb.  Pr.  (N.* 
Y.  Supreme  Ct.)  105;  Williams  v. 
Sholto,  4  Sandf.  (N.  Y.)  641;  Spencer 
V.  Tooker,  12  Abb.  Pr.  (N-  Y.  Supreme 
Ct.)  353;  Laimbeer  v.  Allen,  2  Sandf. 
(N.  Y.)  648;  Becker  v.  Weisner,  22 
Alb.  L.  J.  156;  Duval  v.  Busch,  14  Civ. 
Pro.  Rep.  (N.  Y.  City  Ct.)  6;  Farrand 
V.  Herbeson,  3  Duer  (N.  Y.)  655  ; 
Chemung  Canal  Bank  v.  Judson,  10 
How.  Pr.  (N.  Y.  Supreme  Ct.)  133; 
Broadway  Bank  v.  Danforth,  7  How. 
Pr.  (N.  Y.  Supreme  Ct.)  264;  Russell 
V.  Spear,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  142;  Walker  v.  Bissell,  3  Month. 
L.  Bull.  (N.  Y.)  16. 

Prior  to  the  Code,  when  amend- 
ments were  made  by  rule  of  course,  it 
saw  not  necessary  that  the  rule  should 
specify  the  amendment  to  be  made. 
Mumford  v.  Stocker,  i  Cow.  (N.  Y.) 
601. 

6.  Follower  z/.  Laughlin,  12  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  105. 

In  Epley  v.  Ely,  68  Iowa  70,  an 
amendment  after  demurrer  sustained 
which  did  not  substantially  differ  from 
the  original  was  stricken  out. 

7.  Jacobs  V.  Marshall,  6  Duer  (N. 
Y.)  6S9;  Richardson  v.  Brooklyn,  etc., 
R.  Co.,  22  How.  Pr.  (N.  Y.  Supreme 
Ct.)  368. 

8.  See  the  preceding  section  on 
Amendments  of  Course,  page  629. 

34 


ef  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


no  alteration  can  be  made  in  the  pleadings  without  leave  of  the 
court  first  obtained.*  Thus  a  pleading  which  requires  verifica- 
tion cannot  be  verified  without  leave  of  the  court  after  it  is 
filed.* 

Effect  of  Filing  without  Leave. — An  amendment  filed  without  leave 
where  leave  is  necessary  may  be  treated  as  a  nullity  by  the  court 
and  counsel,'  or  stricken  from  the  files  on  motion.*  The  irregu- 
larity is  not  reached  by  demurrer.* 

1.  Lewis  V.  Watkins,  6  Hill  (N.  Y.) 
230;  Jones  V.  Ilsley,  i  Allen  (Mass.) 
273;  Clark  V.  Ward,  7  Gray  (Mass.) 
409;  Missouri  River,  etc.,  R.  Co.  v. 
Wilson,  10  Kan.  105;  Kirkland  v.  His 
Creditors,  7  Martin  N.  S.  (La.)  511; 
Rost  V.  St.  Francis's  Church,  5  Martin 
N.  S.  (La.)  191;  Robinson  z'.  Williams, 
3  Martin  N.  S.  (La.)  665;  Baines  v. 
Higgins,  2  La.  220;  Johnston  v.  Mar- 
shall, 14  Tex.  490;  Thomas  v.  Young, 
5  Tex.   253;    Coles  v.   Kelsey,  2  Tex. 

541- 

The  Object  of  requiring  parties  to 
obtain  leave  to  amend  is  to  give  notice 
of  the  amendment  to  the  opposite 
party.     Lee  v.  Hamilton,  12  Tex.  413. 

Mere  Kemark  by  the  Court. — Where 
the  court  of  its  own  motion  during 
the  trial  of  a  case  said,  "  I  will 
allow  the  plaintiff  to  amend,"  with- 
out reciting  the  amendment,  and  no 
amendment  was  made  and  the  trial 
proceeded  as  if  the  remark  had  not 
been  made,  and  no  motion  was  subse- 
quently made  for  the  amendment,  it 
was  held  irregular  for  the  plaintiff  to 
serve  a  proposed  order  reciting  that 
motion  was  made  to  amend,  etc., 
which  was  granted,  and  that  a  motion 
should  have  been  made  for  leave  to 
amend,  so  that  the  defendant  could 
oppose  it.  Poole  v.  Hayes  (Supreme 
Ct.),  17  N.  Y.  St.  Rep.  685. 

No  Prejudice. — A  judgment  will  not 
be  reversed  because  an  amendment 
was  filed  without  leave  where  the 
opposite  party  was  not  prejudiced. 
Bell  V.  Chicago,  etc.,  R.  Co.,  64  Iowa 
321. 

In  Texas  it  is  not  absolutely  neces- 
sary to  obtain  formal  leave  of  court  to 
amend  the  petition  Jinless  the  amend 
ment  will  operate  as  a  continuance  of 
the  case  ;  in  the  latter  event  leave 
must  be  obtained  and  spread  upon  the 
record.  Haynes  v.  Rice,  33  Tex.  167. 
See  also  Connell  v.  Chandler,  11  Tex. 
249. 

Amendment  Before  Service  Completed. — 
Prior  to  the  service  of  a  writ  the 
plaintiff   may  amend    the    declaration 


at  his  pleasure.  Greeley  z/.  Thurston, 
4  Me.  479.  But  whether  it  can  be  so 
amended  after  service  commenced, 
qucere,  in  the  same  case. 

2.  Lee  v.  Hamilton,  12  Tex.  413; 
Missouri  River,  etc.,  R.  Co.  v.  Wilson, 
ID  Kan.  105. 

3.  Cowles  V.  Coster,  4  Hill  (N.  Y.) 
550;  Hyatt  V.  Kirk,  8  Ind.  178;  Best 
V.  Powers,  19  Ind.  85;  Hopkins  v. 
Cothran,  17  Kan.  i73;[Orton  v.  Noonan, 
31  Wis.  90;  Bentleyz/.  Dickson,  i  Ark. 
165. 

4.  Allen  v.  Bidwell,  35  Iowa  86; 
Schoenhofen  Brewing  Co.  v.  Arm- 
strong (Iowa,  1894),  57  N.  W.  Rep. 
436;  Hyatt  V.  Kirk,  8  Ind.  178. 

Where  an  amendment  is  made  with- 
out leave  and  by  interlineation,  it  is 
not  a  ground  for  striking  the  entire 
original  pleading  from  the  files.  Gil- 
more  V.  Nowland,  26  111.  200. 

Amending  in  Excess  of  Leave. — Where 
a  party  amends  in  excess  of  the  order 
granting  him  leave,  so  much  of  the 
amendment  as  is  improper  may  be 
struck  out.  Brotherson  v.  Consaulus 
(Supreme  Ct.),  5  N.  Y.  St.  Rep.  105; 
Kelly  V.  Downing,  2  Brev.  (S.  Car.) 
302. 

Filing  Bad  Pleas. — If  a  party  having 
leave  to  amend  files  bad  pleas,  they 
may  be  stricken  out  on  motion.  Par- 
ker V.  Lewis,  Hempst.  (U.  S.)  72. 
See  also  Pennington  v.  Ware,  16  Ark. 
120. 

Laches  in  Taking  Objection. — Where 
an  amended  answer  was  filed  without 
leave  and  without  notice,  but  no  ob- 
jection was  made  until  the  trial,  it  was 
held  an  abuse  of  discretion  to  refuse 
to  permit  the  defendant  to  refile  the 
amended  answer  on  a  proper  showing. 
Lower  King's  River  Water  Ditch  Co. 
V.  King's  River,  etc..  Canal  Co.,  67 
Cal.  577. 

Motion  to  Strike  Out  After  Jury  Sworn. — 
Where  an  amendment  is  filed  without 
leave  it  is  not  too  late  to  move  to 
strike  it  out  after  the  jury  are  sworn. 
Baines  v.  Higgins,  2  La.  220. 

5.  State  V.  Wright,  80  Ind.  425. 


^35 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


"When  Allowed  to  Stand. — An  amended  pleading  filed  without  leave 
of  court  may  be  allowed  to  stand  where  it  would  be  an  abuse  of 
discretion  to  refuse  to  permit  it  to  be  filed.* 

Waiver  of  Irregularity. — If  the  opposite  party  treats  the  amended 
pleading,  filed  without  leave,  as  if  it  were  properly  filed  the 
irregularity  is  waived.* 

Implied  Leave. — A  refusal  to  strike  out  a  pleading  filed  without 
leave  is  tantamount  to  permission  to  file  it.^ 

Presumption  of  Leave. — Where  a  new  party  is  joined  as  plaintiff  the 
presumption  may  be  indulged  upon  appeal  that  the  amendment 
was  made  by  leave  of  court.* 

c.  Application  for  Leave — suggestion  by  the  court. — While  it 
has  been  held  not  to  be  the  duty  or  within  the  province  of  the 
court  to  make,  suggest,  or  order  amendments  sua  sponte,  but  only 
upon  application,*  there  are  authorities  affirming  the  propriety  of 
3uch  a  course.® 


1.  Miller  v.  Perry,  38  Iowa  301, 
holding  it  reversible  error  to  strike 
out  such  an  amendment. 

2.  Hopkins  v.  Cothran,  17  Kan.  173; 
McCaulla  v.  Murphy,  86  Ga.  475; 
Looney  v.  Looney,  116  Mass.  283, 
where  the  whole  trial  was  had  as  if 
the  amendment  was  made  by  leave; 
Baldwin  v.  Cullen,  51  Mich.  33,  where 
the  objection  for  want  of  leave  was 
made  on  the  trial  after  long  delay; 
Redmond  v.  Peterson  (Cal.,  1894),  36 
Pac.  Rep.  923  ;  Keokuk  County  v. 
Howard,  43  Iowa  354,  where  a  replica- 
tion was  filed  to  an  unauthorized 
amendment  of  an  answer. 

3.  Thomas  v.  Young,  5  Tex.  253. 

4.  Moyle  v.  Landers,  83  Cal.  579. 
Presumption   of  Leave.  —  Where   the 

transcript  on  appeal  shows  an  amend- 
ment to  the  petition  by  interlineation, 
conforming  it  to  the  proof,  but  fails  to 
show  when  the  same  was  made,  it  will 
be  presumed  to  have  been  made  at  the 
time  the  testimony  was  introduced  and 
by  leave  of  the  court.  Giddings  v. 
Giddings,  57  Iowa  297.  See  also  Stur- 
devant  v.  Gains,  5  Ala.  435. 

Where  an  amended  answer  indorsed 
"filed"  by  the  clerk  appears  in  the 
judgment  roll  it  must  be  presumed 
that  it  was  filed  by  leave  of  the  court. 
Livermore  v.  Webb,  56  Cal.  489. 

5.  Parrish  v.  Pensacola,  etc.,  R.  Co., 
28  Fla.  251;  Ten  Broeck  v.  Orchard,  79 
N.  Car.  518,  holding  it  reversible  error 
to  order  an  answer  to  be  amended 
without  application,  on  account  of  in- 
consistent and  contradictory  defenses. 
See  also  Gillespie  v.  Wright,  93  Cal. 
J69;    Clark   V.   Clark,  64  N.  Car.  152; 


Enright  v.  Seymour  (C.  PL),  8  N.  Y. 
St.  Rep.  356.  A  plaintiff  cannot  be 
compelled  to  amend  after  the  sustain- 
ing of  a  demurrer  to  his  declaration. 
Rigg  V.  Parsons,  29  W.  Va.  522. 

6.  Suggestion  Discretionary.  —  In 
Crimm  v.  Crawford,  29  Ala.  623,  it  was 
held  to  be  proper  for  the  court  in  charg- 
ing the  jury  to  suggest  at  the  request  of 
the  defendant  that  the  complaint  may 
be  amended  if  the  plaintiff  desires,  so 
as  to  obviate  the  effect  of  the  charge. 

In  Warder  v.  Nolan  (Ind.,  1S94),  37 
N.  E.  Rep.  821,  where  the  ethics  of  the 
question  are  glanced  at,  it  was  held 
that  the  plaintiff  could  not  complain 
because  the  defendant  was  permitted 
to  file  an  additional  paragraph  to  his 
answer  upon  the  suggestion  of  the 
court. 

In  Reck  v.  Phoenix  Ins.  Co.,  3  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  376,  it 
was  said  that  if  there  is  a  substantial 
defect  in  the  complaint  which  the  de- 
fendant does  not  call  to  the  attention 
of  the  court  until  after  the  evidence 
was  closed,  and  the  evidence  makes  a 
proper  case  for  recovery,  the  court 
should  of  its  own  motion  order  an 
amendment  of  the  complaint  imme- 
diately. 

In  Rhodes  v.  Baird,  16  Ohio.  St. 
580,  it  was  said  that  the  court  below 
"  would  have  been  warranted  sua 
sponte  in  requiring  counsel  to  reform 
their  pleadings  so  as  to  make  the 
issues  sought  to  be  raised  more  defi- 
nite and  certain."  See  also  Sutton  v. 
Van  Akin,  51  Mich.  463. 

Stipulation     for    Amendment.  —  An 
agreement  for  an  amendment  will  not 


636 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  tinder  Codes,  eto;. 


Proposed  Amendment. — An  application  for  leave  to  amend  should 
be  accompanied  by  a  statement  of  the  amendment  which  the 
party  proposes  to  make.* 

A  General  Application  to  amend  an  answer  so  as  to  set  up  fraud, 
without  stating  what  amendment  the  defendant  wishes  to  make,, 
is  properly  denied.*  The  party  should  state  at  least  enough  to 
show  the  materiality  of  the  proposed  amendment.' 

Grounds  Shown  by  Affidavit. — It  is  in  all  cases  proper  to  require  from 
the  party  asking  leave  to  amend  some  reasonable  excuse  for  the 
defect  in  the  pleading  which  it  is  sought  to  correct."*    The  grounds 


be  enforced  if  if  is  disputed  and  not 
clearly  established.  Thompson  v. 
Phelan,    22  N.  H.  339. 

In  a  Divorce  Case  the  court  should,  of 
its  own  motion,  suggest  an  amendment 
setting  up  any  valid  defense  of  which 
it  has  knowledge.  Strong  v.  Strong, 
24  How.  Pr.  (N.  Y.  Supreme  Ct.)  432. 

1.  Barker  v.  Walbridge,  14  Minn. 
469;  Shaw  V.  Binkard,  10  Ind.  227; 
Balch  V.  Smith,  4  Wash.  497  ;  Shaw 
V.  Lawrence,  14  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  94;  Cashman  v.  Anderson, 
26  Mo.  67;  Robinson  v.  Lawson,  26  Mo. 
69 ;  Rainey  v.  Sanders,  4  Humph. 
(Tenn.)  447. 

Indefinite  Motions.  —  In  Stern  v, 
Knapp,  52  N.  Y.  Super.  Ct.  14,  a  mo- 
tion "  for  an  order  permitting  the 
plaintiff  to  amend  his  complaint  here- 
in," without  showing  the  proposed 
amendment,  was  held  insufficient. 

In  Noxon  v.  Glen  (Supreme  Ct.),  2 
N.  Y.  St.  Rep.  661,  a  motion  to  amend 
the  complaint  "  as  far  as  necessary," 
etc.,  was  denied. 

A  motion  by  the  plaintiff  at  the  close 
of  the  testimony  "  to  amend  the  com- 
plaint to  conform  to  the  evidence  so 
far  as  to  allow  the  plaintiff  every  pos- 
sible advantage  under  the  decisions 
upon  the  evidence "  was  denied  be- 
cause it  was  too  indefinite.  Crooks  v. 
Second  Ave.  R.  Co.,  66  Hun  (N.  Y.) 
626,  20  N.  Y.  Supp.  813. 

Maltifarioas  Motion.  —  Leave  will 
not  be  granted  to  serve  a  proposed 
"  amended  and  supplemental  com- 
plaint," as  a  supplemental  and 
amended  complaint  are  distinct  plead- 
ings. Oelberman  z/.  New  York,  etc.,  R. 
Co.  (Supreme  Ct.),  29  N.  Y.  Supp.  864. 

Presumption  in  Favor  of  Court. — Re- 
fusal to  allow  an  amendment  is  pre- 
sumed to  be  right  unless  the  char- 
acter of  the  proposed  amendment  is 
shown  in  the  record.  Jessup  v.  King, 
4  Gal.  331;   Shaw  v.  Qinkard,  10  Ind. 


227;  Perry  v.  Watts,  67  Ga.  602;  Craig 
V.  Blow,  3  Stew.  (Ala.)  448. 

Second  Amendment. — Where  a  party 
has  amended  his  pleadings  once  and 
seeks  to  make  a  second  amendment 
he  must  show  that  the  change  which 
he  offers  to  make  is  substantial.  Har- 
vey V.  Spaulding,  7  Iowa  423. 

2.  Allen  v.  Ranson,  44  Mo.  263. 

3.  State  V.  Homey,  44  Wis.  615. 

An  application  not  alleging  as  facts 
the  matter  proposed  to  be  pleaded  in 
the  amendment  is  properly  denied. 
Newman  v.  Springfield  F.  &  M.  Ins. 
Co.,  17  Minn.  123. 

4.  Harrington  v.  Slade,  22  Barb.  (N. 
Y.)  161;  Deline  v.  Michigan  F.  &  M. 
Ins.  Co.,  70  Mich.  435,  a  motion  toadd 
a  new  notice  of  defense  after  the  open- 
ing of  the  trial;  Johnson  v.  Swayze, 
35  Neb.  117;  Garrison  v.  Goodale,  23 
Oregon  307;  Holladay  v.  Elliott,  3. 
Oregon  340;  Phenix  Ins.  Co.  v.  Stocks, 
149  111.  319;  Foote  V.  Sprague,  13  Kan. 
155;  People  V.  Burton  (Colo.  App., 
1894),  36  Pac.  Rep.  299;  Martin  v. 
Noble,  29  Ind.  216;  Shaw  v.  Binkard, 
10  Ind.  227;  Taylor  v.  Blair,  14  Mo. 
437:  Sweet  V.  Mitchell,  19  Wis.  529. 

Second  Application. — Where  a  party 
has  obtained  leave  to  amend  and  failed 
to  avail  himself  of  it,  and  makes  a 
second  application,  the  court  is  fully 
justified  in  requiring  a  sufficient  show- 
ing. Butcher  v.  Brownsville  Bank,  2 
Kan.  70. 

Amendment  Making  New  Issues. — 
Leave  to  amend  a  pleading  for  the 
purpose  of  raising  a  new  issue  will 
not  be  granted  unless  the  applicant 
establishes  to  the  satisfaction  of  the 
court  that  he  was  not  aware  of  the 
facts  at  the  time  of  pleading  and  ex- 
cuses laches  in  his  application.  Cocks 
V.  Radford,  13  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  207.  See  also  Shropshire 
V.  Kennedy,  84  Ind.  iii;  Burr  v.  Men- 
denhall,  49  Ind.  496. 


637 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


for  the  motion  must  ordinarily  be  shown  by  affidavit.* 

No  Affidavit  is  Necessary  to  authorize  an  amendment  where  it  ap- 
pears from  the  case  as  then  before  the  court  that  it  is  material 
and  in  furtherance  of  justice.* 

Renewal  of  Motion. — Where  a  motion  to  amend  is  made  while  a 
new  trial  is  pending,  an  objection  that  it  is  a  renewal  without 
leave  of  a  motion  already  denied  is  not  tenable  if  the  motion  for- 
merly made  was  for  leave  to  amend  on  the  trial  after  the  evidence 
was  closed  in  order  to  conform  the  pleadings  to  the  proof.* 

Prima  Facie  Case  Sufficient. — The  court  will  not,  as  a  general  rule, 
undertake  to  determine  upon  an  application  for  leave  to  amend  a 
pleading,  whether  the  proposed  amendment  sets  forth  a  cause  of 
action  or  defense  which  can  be  finally  maintained  or  established, 
unless  it  can  be  made  to  appear  conclusively  that  the  amendment, 
if  granted,  can  be  of  no  possible  avail  to  the  party  asking  it.* 

at  the  trial  to  obviate  an  objection  for 
a  variance  does  not  require  an  affi- 
davit. Murdoch  v.  Finney,  21  Mo. 
138;  Wabash  Western  R.  Co.  v.  Mor- 
gan, 132  Ind.  430.  See  also  Buddee  v. 
Spangler,  12  Colo.  216. 

The  allowance  of  a  verified  amended 
complaint  after  defendant  has  an- 
swered, which  is  for  substantially  the 
same  cause  of  action  though  unac- 
companied by  an  affidavit  of  merits,  is 
not  an  abuse  of  discretion.  Ball  v. 
McGeoch,  78  Wis.  355.  See  also  Sweet 
V.  Mitchell,  19  Wis.  524;  Rogers  v. 
Wright,  21  Wis.  681. 

3.  Ehlein  v.  Bravton,  66  Hun  (N. 
Y.)  635,  21  N.  Y.  Supp.  825. 

4.  Campbell  v.  Campbell,  23  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  187  ; 
Mitchell  V.  Allen,  25  Hun.  (N.  Y.) 
543;  Turner  v.  Dexter,  4  Cow.  (N.  Y.) 
555  ;  Miller  v.  McDonald,  13  Phila. 
(Pa.)  27.  See  also  State  v.  Keokuk, 
18  Iowa  388  ;  Mitchell  v.  Joyce,  69 
Iowa  121;  Beard  v.  Young,  2  Overton 
(Tenn.)  54.  Compare  Sweet  v.  Mitch- 
ell, tg  Wis.  524. 

General  Objection. — An  objection  to  a 
motion  for  leave  to  file  an  amended 
count  to  the  complaint  which  slates 
no  reason  for  objection  may  properly 
be  overruled.  Reynolds  v.  Dismuke, 
48  Ala.  209. 

Counter-affidavits. — An  affidavit  con- 
tradicting the  proposed  amendment 
should  not  be  considered  in  determin- 
ing the  question  of  its  allowance. 
Richardson  v.  Chynoweth,  26  Wis. 
656. 

Hearing  on  Motion. — A  motion  to 
amend  a  plea  by  filing  an  affidavit  de- 
nying the  execution  of  written  instru- 


1.  Garrison  v.  Goodale,  23  Oregon 
307;  Canfield  v.  Bates,  13  Cal.  606. 
See  also,  as  indicating  this  practice, 
Koons  V.  Price,  40  Ind.  164;  Carpen- 
ter V.  Knapp  (Supreme  Ct.),  26  N.  Y. 
Supp.  436;  People  V.  Sackett,  14 
Mich.  320;  Goddard  v.  Williamson,  72 
Mo.  131. 

Substance  of  Affidavit.  —  "Leave  to 
amend  ought  never  to  be  given  unless 
the  motion  for  it  be  supported  by  an 
affidavit  that  it  will  affect  the  merits 
of  the  case  and  that  the  change  is  not 
desired  for  any  other  reason."  Hart- 
man  V.  Keystone  Ins.  Co.,  21  Pa.  St. 
475- 

Affidavit  of  Party  Himself.  —  An 
amendment  of  a  verified  answer  which 
is  allowed  upon  affidavit  showing  good 
cause  (Colo.  Civ.  Code,  §  75)  may  be 
refused  where  there  is  no  affidavit  of 
the  defendant  himself  showing  how 
the  misapprehension  occurred.  Bar- 
ton V.  Laws  (Colo.  App.,  1894),  35 
Pac.  Rep.  2S4. 

In  Indiana. — A  party  may  have  leave 
to  amend  his  pleading  after  the  jury 
is  sworn  but  before  the  cause  is  sub- 
mitted, without  placing  on  record  the 
specific  grounds  on  which  the  motion 
is  based,  where  the  amendment  does 
not  change  the  issues;  but  where  the 
amendment  changes  the  issues  or 
makes  a  new  issue  the  amendment 
must  be  made  upon  cause  shown. 
Maxwell  v.  Day,  45  Ind.  509.  See  also 
Kerschbaugher  v.  Slusser,  12  Ind. 
453;  Ostrander  v.  Clark,  8  Ind.  2ir. 

2.  Caldwell  v.  Meshew,  53  Ark.  263, 
an  amendment  to  conform  to  the 
proof. 

An  application  to  amend  a  pleading 


638 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


d.  Notice  of  Motion — when  Required. — Notice  of  motions  to 
amend  is  usually  required  in  accordance  with  statutory  provisions 
relating  to  notice  of  motions  in  general.* 

Service  of  Proposed  Amendment. — The  better  and  more  orderly  prac- 
tice requires  that  where  it  is  sought  to  make  a  substantial  amend- 
ment to  the  complaint  a  copy  of  the  proposed  amendment  should 
be  served  with  the  motion  papers.* 

Prayer  for  General  Relief. — Where  a  notice  of  motion  for  leave  to 
serve  a  supplemental  answer  asks  for  "such  other  and  further 
relief "  as  to  the  court  may  seem  proper,  and  the  case  is  one  in 
which  a  supplemental  answer  is  not  allowable,  the  court  may 
permit  an  amended  answer  to  be  filed.' 

ments  described  in  the  declaration  is 
properly  heard  by  the  circuit  court  be- 
fore whom  the  case  has  been  tried 
and   who   has   reserved    his  decision. 


although  at  the  time  of  the  entry  of 
the  motion  the  county  in  which  the 
suit  was  brought  has  been  made  a 
part  of  another  judicial  circuit.  Ports- 
mouth Sav.  Bank  v.  Hart,  83  Mich. 
646. 

1.  "In  the  Absence  of  Statutory  Pro- 
visions a  defendant  having  been  regu- 
larly brought  into  court  by  service  of 
process  is  in  legal  contemplation  in 
court  until  the  final  disposition  of  the 
cause,  and  is  presumed  to  be  cognizant 
of  every  step  taken  in  its  progress." 
Haynes  v.  Rice,  33  Tex.  167;  Coor  v. 
Smith,  107  N.  Car.  430 ;  Yonge  v. 
Broxson,  23  Ala.  684;  Smith  v.  Brit- 
tenham,  98  111.  188. 

In  Pennsylvania  the  court  said  that 
"no  amendment  except  one  merely 
formal  should  be  allowed  without 
notice  to  the  opposite  party."  Mer- 
cur,  J.,  in  Tyrrill  v.  Lamb,  96  Pa.  St. 
464. 

In  Nevada  a  complaint  cannot  be 
altered  in  a  material  part  without 
notice  to  the  defendant.  Keller  v. 
Blasdel,  2  Nev.  162. 

In  Kansas  it  is  error  for  the  district 
court  to  allow  a  party  to  amend  his 
pleadings  in  a  material  respect  in  the 
absence  of  and  without  notice  to  the 
adverse  party  who  is  in  default.  St. 
Louis,  etc.,  R.  Co.  v.  McReynolds,  24 
Kan.  368. 

In  New  York  a  defendant  who  has 
appeared  is  entitled  to  notice  of  a 
motion  to  strike  out  his  name  from 
the  summons  and  complaint.  Stephens 
V.  Hall,  25  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  300. 

A  defendant  who  has  answered,  al- 
though he  does  not  appear,  is  entitled 
to  notice  of  a  motion  to  amend  by  in- 


creasing the  demand  for  judgment. 
Work  V.  Ogden  (Supreme  Ct.^,  16  N. 
Y.  Supp.  368. 

Allowing  an  amendment  at  the  com- 
mencement of  the  trial  increasing  the 
amount  claimed  in  the  complaint, 
without  previous  notice  of  motion 
therefor,  was  held  to  be  a  matter  rest- 
ing in  the  discretion  of  the  court. 
Hamilton  v.  Third  Ave.  R.  Co.,  13 
Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  318. 

Waiver  of  Notice. — Notice  of  amend- 
ment is  waived  by  an  appearance 
thereto.  Kimball  v.  Bryan,  56  Iowa 
632. 

2.  Shaw  V.  Bryant,  66  Hun  (N.  Y.) 
627,  20  N.  Y.  Supp.  785;  Parsons  v. 
Copland,  5  Mich.  143. 

Where  the  notice  of  motion  for  leave 
to  amend  the  complaint  asks  only  "  for 
an  order  permitting  plaintiff  to  amend 
his  complaint,"  and  no  copy  of  the 
proposed  amendment  is  served  with 
the  motion  papers,  the  motion  should 
be  denied.  Stern  v.  Knapp,  8  Civ. 
Pro.  Rep.  (N.  Y.  Super.  Ct.)  54. 

Where  it  does  not  appear  from  the 
transcript  on  appeal  that  any  proposed 
amendment  was  served  or  presented, 
or  that  the  notice  of  motion  pointed 
out  the  precise  amendment  proposed, 
the  court  cannot  find  an  abuse  of  dis- 
cretion in  refusing  to  allow  the  amend- 
ment. Martin  v.  Thompson,  62  Cal. 
618. 

Where  a  petition  for  the  sale  of  real 
estate  of  a  deceased  person  is  defect- 
ive in  omitting  a  description  of  all  the 
real  estate  of  which  the  decedent  died 
seized,  it  cannot  without  further  no- 
tice be  amended  at  the  hearing  so  as 
to  validate  an  order  of  sale  based 
thereon.  Gharky  v.  Werner,  66  Cal. 
388. 

3.  Myers  v.  Rosenback  (C.  PL),  28 
N.  Y.  Supp.  9,  affirmed  in  29  N.  Y. 
Supp.  34. 


639 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc> 

No  Notice  is  Eequired  of  merely  formal  amendments.*  The  Chris- 
tian name  of  the  plaintiff  may  be  amended  without  notice,  and 
judgment  then  taken  by  default  will  stand.*  No  notice  of  a 
motion  to  supply  lost  pleadings  is  necessary.* 

e.  Orders  Granting  Leave — General  Leave. — In  some  jurisdic- 
tions a  party  may  be  granted  leave  to  "  amend  as  he  may  be  ad- 
vised ;  "^  and  where  a  plaintiff  has  obtained  such  a  general  leave 
to  amend  he  may  join  other  proper  parties  as  defendants  without 
special  permission  so  to  do.*  After  a  general  leave  granted  to 
the  defendant  to  amend  without  qualification  when  the  cause  is 
at  issue,  the  court  will  not  on  motion  strike  out  a  plea  of  the 
statute  of  limitations  filed  under  the  leave.® 

Limiting  Time. — An  order  permitting  an  amendment  should  limit 
the  time  within  which  it  is  to  be  made ;'  but  an  omission  to  do- 
so  is  not  an  error  of  law.® 

A  party  having  leave  to  amend  must  file  his  amendment  within 
the  time  prescribed,  or  not  at  all  unless  further  leave  be  given  ;• 
but  the  failure  to  file  it  in  time  may  be  waived.*® 

14.  Method  of  Making  Amendments — a.  Actual  and  Implied- 
Amendments — Actual  Amendment. — If  a  party  obtains  leave  to 
amend  he  may  elect  to  make  the  amendment  or  not,  as  he 
pleases ;  and  if  he  fails  to  amend,  the  issue  made  by  the  original 
pleading  should  be  tried.**  Permission  to  amend  does  not  per  st 
amount  to  an  amendment,  but  the  amendment  must  be  actually 
made  either  by  altering  the  pleading  or  by  filing  or  serving  a  new 
one.** 

1.  Spencer  v.  McCarty,  46  Tex.  213.     (N.  Y.  Supreme  Ct.)  185;  Gaylord  v. 
An  amendment  may  be  ordered  at  a     Beardsley    (Supreme    Ct.),    19    N.    Y. 

general  term  and  without  formal  no-  Supp.  548. 

tice  of  motion  for  that  purpose  when  5.   Lowvall  v.   Gridley,  70  Cal.   507. 

the  object  of  the  amendment  is  only  Contra,  Salt  Lake  County  v.  Golding,  2 

to  conform  the  pleading  to  the  facts  Utah  319. 

proved  and  when  the  record  furnishes  Under   "leave   to  amend   the   com- 

the  only  grounds  for  and  against  the  plaint  herein  "  the  plaintiff  may  change 

same.     Clark  v.   Dales,   20  Barb.  (N.  the  existing  paragraphs  and  add  new 

Y.)  42.  ones.     State  v.  Wright,  80  Ind.  425. 

2.  Sidway  v.  Marshall,  83  111.  438.  6.   Burton     v.     Rodney,     i     Houst. 

3.  Benedict  v.  Cozzens,  4  Cal.  381.  (Del.)  442. 

4.  Wallace  z/.  Columbia,  etc.,  R.  Co.,  7.  Moore  v.  Christian,  31  S.  Car. 
37  S.  Car.  335.      Compare  Thompson  v.     337. 

Malone,  13  Rich.  (S.  Car.)  252.  8.  Moore   v.    Christian,   31   S.   Car. 

An  order  at  the  trial  permitting  an  338. 

amendment  to  the   complaint    in  cer-  9.   Haight  v.  Schuck,  6  Kan.  192. 

tain  particulars,  "and  otherwise  as  he  10.   Smith  v.  Groverman,  9  Ind.  304; 

may  be  advised  to  be  material  in  his  Brinkley    v.     Duncan,     10    Ark.     252, 

cause    of    action    stated  in   said    com-  where    the    opposite    party   appeared 

plaint,"    is    not    objectionable,  as    the  after  the  amendment  and  consented  to 

words  italicized  limit  the  amendment  a    continuance,    and    entered    into  an 

so  as  not  to  substantially  change  the  agreement  of  record   recognizing  the 

claim.     Moore  v.  Christian,  31  S.  Car.  amended  pleading. 

337.  11.   Fox  z/.  Cosby, 2  Call  (Va.)  I ;  East 

In  New  York  an  order  granting  leave  St.    Louis  v.    Board,  etc.,  6   111.  App. 

to  a  party  to  amend  his  pleadings  as  130;  Collier  ?'.  Wheldon,  i  Mo.  i. 

he    may   be    advised    cannot    be    sus-  12.   Lohrfink    v.     Stll,    10   Md.    530, 

tained.     New   v.  Aland,  62  How.   Pr.  where  it  was  held  reversible  error  for 

640 


Of  Pleadings,  etc.,  at 


AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Implied  Amendment. — But  where  there  is  an  order  granting  leave  to 
amend,  and  the  subsequent  proceedings  in  the  cause  are  based 
upon  the  assumption  that  the  amendment  has  been  made,  the 
course  is  to  consider  the  order  as  standing  for  the  amendment 
itself.*  Where  a  motion  to  amend  has  been  granted,  but  no 
amended  pleading  appears  in  the  judgment  roll,  it  may  be  treated 
on  appeal  as  if  actually  made.* 

Order  Operating  as  an  Amendment. — Under  an  order  allowing  an 
amendment,  when   the    record  furnishes  the  means  of  applying 


the  court  to  treat  the  leave  to  amend 
as  an  actual  amendment.  Kimball  v. 
Gearhart,  12  Cal.  46;  Briggs  v.  Bruce, 
9  Colo.  282.  See  also  Malone  v.  Hund- 
ley, 52  Ala.  147. 

Entry  of  Becord. — Whatever  amend- 
ments are  made  to  the  pleadings  ought 
to  be  entered  of  record  so  as  to  pre- 
vent inconvenience  on  appeal.  Shearin 
V.  Neville,  i  Dev.  &  B.  (N.  Car.)  3. 
See  also  Eshleman  v.  Snyder,  82  Ind. 
498. 

If  leave  to  amend  the  complaint  is 
improperly  granted,  but  the  record 
does  not  show  that  the  amendment 
was  in  fact  made,  the  error  is  without 
injury.  Golden  v.  Conner,  89  Ala. 
59S;  Rooker  v.  Wise,  14  Ind.  276. 

Keith  V.  Cliatt,  59  Ala.  408,  holds 
that  in  the  absence  of  anything  in  the 
record  to  show  that  an  amendment 
was  made  it  cannot  be  presumed  to 
have  been  made  from  the  mere  fact 
that  leave  was  given  to  amend. 

Compare  Seitz  v.  Bufifum,  14  Pa.  St. 
71,  where  the  court  said  that  "  it  is  a 
principle  of  law  well  settled  that  when 
leave  is  given  to  amend  the  court  con- 
siders the  amendment  as  made."  See 
also  Eyster  v.  Rineman,  11  Pa.  St.  147. 

Befiling  Discarded  Pleading. — A  com- 
plaint to  which  a  demurrer  has  been 
sustained  cannot  be  treated  as  an 
amended  complaint  by  simply  filing 
exhibits  at  the  commencement  of  the 
next  term  without  also  refiling  such 
complaint  with  the  exhibits.  Heizer 
V.  Kelly,  73  Ind.  582. 

Notice  of  Amendment  Not  Sufficient. — 
Service  upon  defendant  of  a  proposed 
amendment  to  the  complaint  with  a 
notice  that  the  original  has  been  so 
amended  is  not  sufficient  unless  the 
amendment  has  also  been  put  on  file 
or  has  been  inserted  by  leave  of  the 
court  in  the  original  complaint  on  file. 
Flanders  v.  Wood,  24  Wis.  572. 

Actual  Amendment  When  Dispensed 
With. — In  Hoes  v.  Van  Alstyne,  20  111. 
201,  the  court  said  that  it  is  not  the 


practice  in  Illinois,  when  the  repre- 
sentatives of  a  deceased  party  are 
made  parties,  to  amend  the  declaration 
by  the  insertion  of  their  names. 

Stipulation  for  Amendment.— Where  it 
is  agreed  in  the  trial  court  that  a  com- 
plaint may  be  amended  so  as  to  supply 
necessary  averments,  but  it  is  not 
done,  the  appellate  court  will  allow 
the  amendment  to  be  filed  in  that 
court.  Hines  v.  Wilmington,  etc.,  R. 
Co.,  95  N.  Car.  434. 

1.  Holland  v.  Crow,  12  Ired.  (N. 
Car.)  275;  Ufford  v.  Lucas,  2  Hawks 
(N.  Car.)  214;  Excelsior  Mfg.  Co.  v. 
Boyle,  46  Kan.  202;  Lindsborg  v. 
Hageman,  31  Kan.  599;  Eaton  z/.  Case, 
17  R.  I.  429;  Brantz  v.  Marcus,  73 
Iowa  64;  Hellyer  v.  Bowser,  76  Ind. 
35;  Lyon  f.  Brown,  6  Baxt.  (Tenn.)64. 

Where  an  amendment  is  not  for- 
mally filed,  but  is  taken  down  by  the  re- 
porter, treated  at  the  trial  as  made, 
and  incorporated  into  the  record  on 
appeal  by  bill  of  exceptions,  it  may  be 
deemed  an  effectual  amendment  so  as 
to  support  the  verdict  and  judgment. 
Kretser  v.  Cary,  52  Wis.  374. 

That  the  omission  to  make  a  formal 
amendment  may  be  supplied  by  the 
record  of  the  subsequent  proceedings, 
see  Moore  v.  Lewis,  76  Mich.  300. 

Objection  on  Appeal. — Where  a  plain- 
tiff has  leave  to  amend  and  proceeds 
without  actually  amending  his  decla- 
ration, and  there  is  no  objection  at  the 
time,  the  objection  cannot  be  raised  in 
the  appellate  court.  Hawkesi'.  Daven- 
port, 5  Allen  (Mass.)  390;  Home  v. 
Meakin,  115  Mass.  326;  Kuhn  v.  Gus- 
tafson,  73  Iowa  633. 

2.  Maders  z'.  Whallon  (Supreme  Ct.), 
26  N.  Y.  Supp.  614.  See  also  Kennedy 
V.  Dear,  4  Port.  (Ala.)  423. 

On  appeal  if  the  record  shows  that 
the  amendment  was  allowed  and  made 
it  is  immaterial  that  the  original  plead- 
ing as  it  appears  in  the  rfcord  was  no' 
altered  Fulkerson  v.  State,  14  Mo» 
49- 


I  Encyc.  PI.  &  Pr.— 41. 


641 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Cedes,  etc. 


the  order  so  as  to  show  the  precise  effect  of  the  amendment 
desired,  it  may  be  considered  as  made,  although  the  verbal 
changes  are  not  actually  made  in  the  original  pleading.* 

b.  By  Interlineation. — Slight  alterations  may  be  made  by 
interlineation  in  the  original  pleading,  unless  that  method  is  pro- 
hibited by  statute  or  rule  of  court.* 

An  amendment  to  obviate  a  mere  technical  objection  to  the 
complaint  may  be  made  by  interlining,  notwithstanding  it  has 
been  verified.' 

Where  after  the  filing  of  a  complaint  the  same  was  amended 
by  writing  the  amendment  below  the  signature  of  counsel  to  the 
original  complaint,  and  the  complaint  was  then  resubscribed 
under  the  amendment,  the  proceeding  was  not  objectionable."* 

Discretionary. — It  has  been  held  that  error  cannot  be  predicated 

original.  Missouri  Pac.  R.  Co.  v.  Ivy, 
79  Tex.  444. 

Toleration  of  the  Practice.  —  The 
practice  of  mutilating  pleadings  by 
striking  out  or  inserting  new  mat- 
ter by  way  of  amendment  was  disap- 
proved in  Hill  V.  Road  Dist.  No.  6,  10 
Ohio  St.  621,  and  Schneider  v.  Hosier, 
23  Ohio  St.  98,  the  latter  case  holding, 
however,  that  if  the  amendment  is  so 
made  with  the  permission  of  the  court 
and  no  prejudice  results  to  the  adverse 
party,  the  final  judgment  will  not  be 
reversed  therefor. 

Amendment?  by  interlineation  are 
distinctly  sanctioned  in  Maryland. 
Scarlett  v.  Academy  of  Music,  43  Md. 
208;  Lohrfink  v.  State,  10  Md.  535. 

It  was  said  in  Garrity  v.  Wilcox,  83 
111.  159,  that  the  remark  made  in  Stan- 
berry  V.  Moore,  56  111.  472,  condemn- 
ing amendments  by  erasure  and  inter- 
lineation w?s  simply  intended  to 
indicate  a  be«^ter  practice,  and  was  not 
meant  to  be  prohibitive. 

An  amendment  of  a  complaint  by 
striking  out  of  the  caption  the  name 
of  certain  defendants  who  were  not 
proper  parties,  without  filing  an 
amended  complaint,  while  not  com- 
mendable as  a  method  of  amending, 
is  without  prejudice  to  other  defend- 
ants who  are  proper  parties.  Doane 
V.  Houghton,  75  Cal.  360. 

In  Maddox  v.  Thorn,  60  Fed.  Rep. 
217,  where  the  plaintiff  had  leave  to 
amend  by  alleging  diversity  of  citizen- 
ship of  the  parties,  the  court  ordered 
that  it  be  made  without  rewriting  the 
pleading. 

3.   Meshke  v.  Van   Doren,    16   Wis. 


1.  Ballou  V.  Hill,  23  Mich.  60. 
Order  to  Strike  Out   Parties. — Where 

the  plaintiff  obtains  leave  to  strike 
out  one  of  the  defendants,  the  order 
will  operate  to  effect  the  amendment, 
and  an  actual  amendment  is  not 
necessary.  Palmer  v.  Lesne,  3  Ala. 
741.  See  also  Hawkes  v.  Davenport, 
5  Allen  (Mass.)  390,  where  such  leave 
was  granted  and  an  actual  amendment 
held  to  have  been  waived  by  proceed- 
ing without  objection. 

Sufficiency  of  Record  on  Appeal.  —  If 
the  record  affirms  that  an  amend- 
ment was  made,  and  fully  states 
the  matter  therein,  it  is  sufficiently  be- 
fore the  appellate  court,  although  not 
copied  into  the  transcript.  Booth  v. 
Hubbard,  8  Ohio  St.  248. 

By  Interlineation. — Where  leave  to 
amend  by  interlineation  is  granted  by 
the  trial  court,  the  appellate  court  will 
regard  the  amendment  as  made,  al- 
thi^ugh  the  changes  were  not  actually 
made.      Underwood  v.  Bishop,  67  Mo. 

374- 

2.  Fitzpatrick  v.  Gebhart,  7  Kan. 
35 ;  H  yer  v.  Vaughn,  18  Fla.  647,  where 
the  partnership  name  of  the  defend- 
ants was  inserted  by  interlining. 

That  a  noncompliance  with  rules 
of  court  in  respect  of  the  form  of 
amended  pleadings  is  not  a  ground  of 
demurrer,  see  Lewis  v.  Alexander,  51 
Tex.  578. 

In  lo'iva  amendments  by  interlinea- 
tion are  prohibited  by  the  Code,  g  2692, 
and  on  application  a  sworn  answer  by 
striking  out  a  word  therein  was  re- 
fused.    Simmons  v.  Rust,  39  Iowa  241. 

In  Texas  the  rules  of  practice  do  not 
apply  to  cases  on  appeal  from  justice 
courts,  and  in  these  cases  amendments 
may  be    made   without  rewriting  the 


319- 
4. 

564- 


Nicodemus  v.    Simons,   121  Ind. 


642 


Cf  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

of  ail  exercise  of  a  discretionary  power  to  allow  amendments  to 
be  made  by  way  of  interlineation  ;  *  and  clearly,  if  a  party  desires 
to  question  the  propriety  or  legality  of  an  amendment  by  the 
adverse  party  because  it  was  made  by  interlineation,  he  should 
move  to  strike  the  amended  pleading  from  the  files  and  save  the 
point  in  a  bill  of  exceptions.* 

Not  a  Ground  of  Demurrer. — Making  an  amendment  by  interlineation 
instead  of  rewriting  the  original  pleading,  where  the  latter  method 
would  be  preferable,  is  not  a  ground  of  demurrer.' 

c.  By  a  Separate  Pleading. — Where  the  whole  structure  of 
a  pleading  is  to  be  changed  by  amendment  it  is  usually  re- 
written ;*  but  where  the  amendment  is  not  so  radical  it  may  be 
proper  to  file  a  statement  of  the  amendment  and  designate  by 
reference  where  the  new  matter  is  to  be  inserted  or  what  is  to  be 
considered  as  stricken  out.* 

By  Reference. —  A  pleader  may  by  reference  to  one  count  in  a 
complaint  adopt  a  certain  specified  portion  of  another  and  add 
to  it  averments  so  as  to  constitute  another  and  separate  count  ; 
but  this  method  would  be  objectionable  after  a  demurrer  has 
been  sustained  to  the  count  to  which  reference  is  made.® 

d.  Form  of  Amended  Pleading — ^nue. — Where  a  suit  is  in- 
stituted in  one  county  and  removed  to  another,  and  the  declara- 
tion is  amended,  the  venue  should  be  laid  as  of  the  county  in 
which  the  suit  was  instituted.' 

Averments.— An  amended  petition  should  state  the  date  of  the 
original  petition,  but  the  omission  may  be  cured  by  a  statement 
of  it  in  the  answer  to  the  amendment.**     An  amended  petition 

1.  South  Joplin  Land  Co.  v.  Case,  6.  Hill  v.  Road  Dist.  No.  6,  lo  Ohio 
104  Mo.  572.  See  also  Schneider  v.  St.  621;  Eigenman  v.  Rockport,  etc., 
Hosier,   23  Ohio    St.  98;    Simpson  v.     Assoc,  79  Ind.  41. 

Greeley,  8  Kan.  586.  A  party  amending  a  pleading  should 

2.  Teutonia  L.  Ins.  Co.  v.  Mueller,  indicate  the  precise  part  which  is 
77  111.  22.  See  Gilmore  v.  Nowland,  26  amended  and  not  leave  to  the  court  to 
111.  200.  decide  where   the  amendment  should 

3.  Payne  v.  Crawford  (Ala.,  1892),  be  inserted;  otherwise  it  may  be  dis- 
10  So.  Rep.  911.  regarded.     Bourland  v.  Sickles,  26  111. 

4.  Eigenman  v.  Rockport,  etc.,  497;  Ransome  i'.  Bearden,  50  Tex.  119, 
Assoc,  79  Ind.  41;  Hill  z/.  Road  Dist.  where  the  new  averments  contra- 
No.  6,  10  Ohio  St.  621.  dieted  averments  in  the  original  plead- 

It  is  the  better  practice  when  acorn-  ing  without  showing  the  exact  extent 

plaint  is  amended  to  set  out  in  full  the  of  the  amendment, 

complaint  or  count  as  amended  unless  6.   Birmingham  R.,  etc.,  Co.  r/.AlIen 

the  amendment  is  of  such  a  character  99  Ala.  359.    Compare  Mahaska  County 

that  it  may  be  readily  made  by  inter-  Sav.  Bank  v.  Crist  (Iowa,  1893),  54  N. 

lineation.     Birmingham  R.,  etc.,  Co.  W.  Rep.  450,  where  it  was  held  that 

V.  Allen,  99  Ala.  359.  an  amendment  to  a  pleading  may  by 

In  Missouri  the  Code  provides  that  reference    to    the    original    pleading 

every  answer  amendatory  or  supple-  adopt   its    allegations,    although    the 

mental  must  be  entire  and  separate;  originalpleading  was  stricken  from  the 

and  the  courts  will  not  permit  parties  files  before  the  amendment  was  filed, 

to  dispense  by  agreement   with   that  7.  Calvert  County  z/.  Gibson,  36  Md. 

provision,    as    by   agreeing   that   the  229. 

original  and   amended  answers  shall  8.  Walter   A.  Wood   Mowing,  etc., 

be  considered  as  one.     Basye  v.  Am-  Mach.  Co.  v.  Hancock,   4   Tex.    Civ. 

brose,  28  Mo.  39.  App.  302. 

643 


Of  Pleadings,  etc.,  at  AM  EN D  M EjS  TS.   Common  Law,  under  Codes,  etc. 

must  set  out  all  the  facts  necessary  to  constitute  a  cause  of 
action.*  Where  an  amended  declaration  in  an  action  by  an  ad- 
ministrator is  only  an  additional  count,  a  repetition  of  the  pro- 
fert  of  plaintiff's  letters  of  administration  is  unnecessary.* 

Signature.— An  amended  petition  to  county  commissioners  may 
be  signed  by  the  petitioners'  attorney,  although  the  petitioners 
signed  their  own  names  to  the  original  petition.^  Where  an 
amended  complaint  was  not  signed  by  the  party  or  his  attorney, 
it  was  held  that  as  the  defect  was  amendable  in  the  trial  court,  it 
would  be  regarded  as  amended  on  appeal  unless  the  objection 
was  presented  to  the  court  below  by  a  motion  to  strike  it  from 
the  files.*  An  amended  answer  is  properly  disregarded  where  it 
is  not  subscribed  by  the  attorney  serving  it.* 

Verification.— Where  the  statute  requires  a  complaint  to  be  veri- 
fied, an  amendment  thereto  should  also  be  verified  ;®  and,  follow- 
ing the  practice  in  chancery,  it  has  been  held  that  where  a  sworn 
answer  is  amended,  the  original  should  remain  on  file  and  not  be 
altered,  and  the  amendment  should  be  made  by  verifying  and 
filing  an  entire  new  amended  answer.'' 


Failure  to  Comply  with  Rule  of  Court. 

— In  Lewis  v.  Alexander,  51  Tex.  578, 
it  was  held  that  a  failure  to  comply 
with  a  rule  of  court  requiring  that  an 
amended  pleading  shall  give  the  dates 
and  descriptions  of  the  abandoned 
pleadings  would  not  be  sufficient  of  it- 
self to  sustain  a  general  judgment 
upon  general  and  special  demurrers  to 
the  amended  pleading. 

1.  Hagood  V.  Hutton,  33  Mo.  244. 

2.  McMillan  Marble  Co.  v.  Black,  89 
Tenn.  118. 

3.  New  Marlborough  v.  Berkshire 
County,  9  Met.  (Mass.)  423. 

4.  Lowry  v.  Dutton,  28  Ind.  473. 
Ommission  of  Signature  Not  Fatal. — 

The  omission  of  the  signature  of  the 
plaintiff's  attorney  to  an  amended  dec- 
laration, where  his  name  appears  in 
the  record  and  defendant  pleads  to  the 
amendment,  is  no  ground  for  arrest- 
ing or  reversing  the  judgment.  Hu- 
ling  V.  Florida  Sav.  Bank,  19  Fla.  695. 
In  Stewart  v.  Sonneborn,  49  Ala. 
178,  it  was  held  that  when  an  amend- 
ment of  the  complaint  is  allowed  by 
the  court,  it  is  not  necessary  that  it 
should  be  marked  "  filed  "  by  the  clerk 
nor  that  it  should  be  signed  by  counsel. 

5.  Duval  V.  Busch,  13  Civ.  Pro.  Rep. 
(N.  Y.  City  Ct.)366. 

6.  Where  a  petition  for  divorce  is 
amended  the  facts  averred  by  the 
amendment  must  be  sworn  to  as  the 
statute  requires  or  they   will  not   be 


regarded.  Foy  v.  Foy,  13  Ired.  (N. 
Car.)  90. 

Compare  Hamill  v.  Phenicie,  9  Iowa 
525,  where  it  was  held  that  an  amend- 
ment to  a  sworn  petition  for  an  attach- 
ment need  not  be  verified  where  it 
does  not  change  the  cause  of  action  or 
the  cause  for  an  attachment,  as  alleged 
in  the  original  petition;  and  Matthews 
V.  Roundtree,  20  Mo.  282,  where  the 
appellate  court  refused  to  reverse  a 
judgment  because  the  plaintiff  did  not 
swear  anew  to  his  petition  after  an 
amendment  in  the  caption. 

In  Illinois  it  was  held  that  a  petition 
under  the  Burnt  Records  Act,  if 
amended  in  a  material  respect,  should 
be  sworn  to;  but  if  the  amendment 
was  merely  formal  it  was  not  neces- 
sary.    McCabe  v.  Porter,   73   111.  244. 

An  amended  complaint,  where  the 
original  complaint  and  the  answer 
thereto  are  verified,  is  not  a  "  subse- 
quent pleading  "  within  §  523  of  the 
Neiu  York  Code,  which,  with  certain 
exceptions,  requires  verification  of 
each  pleading  subsequent  to  a  verified 
pleading.  Duval  v.  Busch,  13  Civ. 
Pro.  Rep.  (N.  Y.  City  Ct.)  366. 

7.  Strong  v.  Dwight,  11  Abb.  Pr.  N. 
S.  (N.  Y.  Supreme  Ct.)  319,  so  that 
the  plaintiff  might  use  the  existing 
original  answer  as  evidence  on  the 
trial  to  prove  the  defendant's  admis- 
sion, which  he  had  leave  to  strike 
out. 


644 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


15.  Service  of  Amended  Pleadings. — An  order  granting  leave  to 
amend  a  complaint  need  not  be  served  on  the  defendant  unless  it 
so  directs,  where  the  statute  does  not  require  it.*  But  in  many 
of  the  states  service  of  amended  pleadings  is  required  by 
statute.* 

An  amended  petition  claiming  a  larger  amount  than  in  the 
original  should  be  served  upon  the  defendant ;  *  and  judgment  by 
default  for  the  increased  demand  without  such  service  is  errone- 
ous.'* 

A  mere  formal  amendment  does  not  require  service  of  the 
amended  petition.* 


1.  Holmes  v.  Campbell,  12  Minn. 
221;  Sidway  v.  Marshall,  83  111.  438; 
Ward  V.  Lathrop,  11  Tex.  287;  Free- 
land  V.  Lanfea:-,  2  Martin  N.  S.  (La.) 
257;  Barrow  v.  Wright,  3  La.  Ann.  130. 

In  Kansas,  under  ^  136  of  the  Civil 
Code,  a  plaintiff  who  is  compelled  to 
file  an  amended  petition  by  an  order  of 
court,  such  petition  being  challenged 
by  a  motion  directed  against  it,  is  not 
required  to  serve  a  copy  of  theamended 
petition  on  the  defendant.  Cross  v. 
Stevens,  45  Kan.  443. 

2.  That  material  amendments  must 
be  served,  see  Allaben  v.  Wakeman, 
10  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  162; 
McMurray  v.  McMurray,  60  Barb.  (N. 
Y.)  117;  People  V.  Woods,  2  Sandf.  (N. 
Y.)  652;  Alvey  v.  Wilson,  9  Kan.  401; 
Leavenworth,  etc.,  R.  Co.  v.  Van 
Riper,  19  Kan.  817;  Reinhart  z/.  Lugo, 
86  Cal.  395;  Thompson  v.  Johnson,  60 
Cal.  292;  Ball  V.  Danforth,  63  N.  H. 
420;  Cleveland  v.  Cohrs,  13  S.  Car. 
402;  Tyrrill  v.  Lamb,  96  Pa.  St.  464; 
Schuttler  v.  King,  12  Mont.  149;  Bar- 
ber V.  Briscoe,  8  Mont.  214.  See  also 
Phillips  ».  Atlanta  (Ga.,  1887),  4  S.  E. 
Rep.  256. 

Kansas. — Notice  of  the  filing  of  an 
amendment  to  the  complaint  must  be 
given  to  the  defendant  unless  such 
notice  is  waived.  Haight  v.  Schuck, 
6  Kan.  192. 

The  rule  applies  where  the  original 
service  was  by  publication.  Wood  v. 
Nicolson,  43  Kan.  461. 

California. — An  amended  complaint 
must  be  served  on  all  the  adverse  par- 
ties who  are  to  be  bound  by  the  judg- 
ment whether  it  materiallyaffects  them 
or  not.    Elder  v.  Spinks,  53  Cal.  293. 

A  defendant  who  appears  and  an- 
swers an  amended  complaint  cannot 
object  on  appeal  that  the  complaint  as 
amended  was  not  served  on  the  other 
defendants.  McGary  v.  Pedrorena, 
58  Cal.  91. 


New  York. — Under  the  provisions  of 
the  New  York  Code  an  amended  plead- 
ing is  to  be  served  on  the  attorney  of 
a  party  if  he  has  one,  and  if  not,  on  the 
party  personally.  Mercier  v.  Pearl- 
stone,  7  Abb.  Pr.  (N.  Y.  Super.  Ct.) 
325. 

As  to  what  constitutes  an  office  let- 
ter-box of  an  attorney  within  the 
meaning  of  §  979  of  the  New  York 
Code  relating  to  service  of  pleadings, 
see  Duval  v.  Busch,  13  Civ.  Pro.  Rep. 
(N.  Y.  City  Ct.)  366. 

Ohio. — When  a  bill  for  divorce  is 
amended  there  must  be  service  of  the 
amendment.  Smith  v.  Smith,  Wright 
(Ohio)  643. 

Iowa. — Notice  of  an  amendment  filed 
in  vacation  must  be  given  to  the  oppo- 
site party.  Allen  v.  Bidwell,  35  Iowa 
86. 

3.  Clark  v.  Holbrook,  14  La.  Ann. 
581,  holding  that  it  will  be  considered 
as  abandoned  if  not  served.  Hittson 
V.  Gentry,  2  Tex.  Civ.  App.  670; 
Meyer  v.  North  River  Const.  Co.,  53 
N.  Y.  Super.  Ct.  387;  Schuttler  v. 
King,  12  Mont.  149.  See  also  Leaven- 
worth, etc.,  R.  Co.  V.  Van  Riper,  19 
Kan.  317. 

4.  Hittson  V.  Gentry,  2  Tex.  Civ. 
App.  670. 

5.  Chaffe  v.  Thornton,  28  La.  Ann. 
837;  Barber  v.  Briscoe,  8  Mont.  214; 
King  V.  Goodson,  42  Tex.  8r. 

Immaterial  Amendment. — Where  an 
amendment  is  immaterial,  and  gives 
to  the  plaintiff  no  more  or  greater 
rights  than  he  would  have  without 
the  amendment,  the  judgment  will  not 
be  affected  for  want  of  service  of  the 
amendment.  Alvey  v.  Wilson,  9  Kan. 
401. 

A  Rule  of  Court,  requiring  service  of 
a  copy  of  an  amended  declaration,  will 
not  be  construed  to  require  such  ser- 
vice where  the  amendment  is  slight 
and  cannot  affect  the  merits  of    the 


645 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


An  amendment  of  the  complaint  relating  only  to  the  parties  to 
the  action  and  not  to  the  subject  of  litigation  need  not  be  served 
upon  parties  appearing,  but  in  default.* 

Where  a  pleading  is  amended  at  the  trial  it  need  not  be  served, 
unless  the  service  is  a  condition  of  allowing  the  amendment.* 

16.  Terms — a.  Power  to  Impose  or  Dispense  With. — Unless 
the  court  is  restrained  by  statute  or  rules  of  court,'  it  has  power 
when  granting  leave  to  amend  to  impose  proper  terms  upon  the 
applicant,  for  the  purpose  of  preventing  prejudice  to  the  opposite 
party,  or  to  compensate  him  for  injury  or  delay  caused  by  the 
amendment,*  or  to  discourage  an  obnoxious  practice;*  and  the 
power  to  grant  amendments  upon  terms,  where  such  terms 
are  left  to  the  discretion  of  the  court,  includes  the  power  to  allow 
an  amendment  without  terms.®     Where  amendments  are  to  be 


Ritten,  4   McLean 


case.     Spofford 
(U.  S.)  253-- 

1.  Weil  V.  Martin,  24  Hun  (N.  Y.) 

645. 

California. — Striking  from  the  title 
of  the  action  the  names  of  one  or 
more  defendants  without  changing  the 
issues  is  not  an  amendment  which 
needs  to  be  served.  Harney  v.  Cor- 
coran, 60  Cal.  314. 

So  where  one  party  is  substituted 
for  another  by  order  of  the  court. 
Kittle  V.  Bellegarde,  86  Cal.  556.. 

Where  a  complaint  is  amended 
under  Cal.  Code  Civ.  Pro.  §  474,  by 
inserting  the  true  name  of  a  defend- 
ant sued  by  a  fictitious  name,  service 
of  a  copy  of  the  amended  complaint  on 
such  defendant  is  not  required.  Brock 
V.  Martinovich,  55  Cal.  516. 

In  an  action  for  partition  the  bring- 
ing in  of  new  parties,  alleging  that 
they  have  or  claim  an  interest  in  the 
subject-matter,  is  an  amendment  of 
substance  which  must  be  served. 
Reinhart  v.  Lugo,  86  Cal.  395. 

Texas. — Adding  the  name  of  one  of 
the  members  of  a  partnership  in  a  suit 
by  the  partnership  does  not  require 
service,  Roberson  v.  Mcllhenny,  59 
Tex.  615;  nor  an  amendment  changing 
the  Christian  name  of  the  plaintiff, 
Williams  v.  Huling,  43  Tex.  113. 

An  amendment  introducing  a  new 
cause  must  be  served,  McRee  v. 
Brown,  45  Tex.  503;  Hewitt  z/.  Thomas, 
46  Tex.  232,  37  Tex.  520;  King  v. 
Goodson,  42  Tex.  152  ;  McNeil  v. 
Childress,  34  Tex.  370;  Erskine  v. 
Wilson,  27  Tex.  117;  unless  the  de- 
fendant has  appeared  and  answered, 
Erskine  v.  Wilson,  27  Tex.  117  ; 
Weatherford  v.  Van  Alstyne,  22  Tex. 
22. 


Omission  may  be  waived  by  failing 
to  make  proper  objection.  Carter  v. 
Eames,  44  Tex.  544. 

Amendment  not  introducing  a  new 
cause  of  action  need  not  be  served. 
Perkins  v.  Wood,  63  Tex.  396. 

2.  Lane  v.  Hayward,  28  Hun  (N.  Y.) 
583. 

3.  See  supra.  III,  13,  a.,  in  respect  of 
Amendments  of  Course. 

Where  plaintiff  amends  of  course 
within  the  time  prescribed  he  cannot 
be  compelled  to  pay  the  costs  of  a  mo- 
tion previously  served  on  him  to  strike 
out  irrelevant  allegations,  although  in 
his  amendment  he  complies  with  the 
requirements  of  the  defendant's  mo- 
tion. Welch  V.  Preston,  58  How.  Pr. 
(N.  Y.  Supreme  Ct.)  52.  But  see  Will- 
iams V.  Wilkinson,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)  357. 

4.  Harkins  v.  Edwards,  i  Iowa  296; 
Burns  v.  Scooffv,  98  Cal.  271;  Gilchrist 
V.  Gilchrist,  44  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  317. 

Election  of  Party. — Where  the  court 
grants  leave  to  amend  upon  payment 
of  costs  the  party  asking  leave  may 
elect  not  to  accept  the  privilege.  Smith 
V.  Powers,  15  N.  H.  546. 

Effect  of  Payment. — Costs  ordered  to 
be  paid  by  a  party  on  obtaining  leave 
to  amend  should  not  afterwards  be 
taxed  and  included  in  the  final  judg- 
ment. Kellogg  V.  Graham,  Wright 
(Ohio)  87. 

5.  McQuestion  z/.  Young, 21  N.H.  462. 

6.  Maine. — Bolster  v.  China,  67  Me. 
551;  Ham  V.  Ham,  37  Me.  261. 

Wiscottsin. — Moll  v.  Semler,  28  Wis. 
589;  Wells  V.  American  Express  Co., 
49  Wis.  224. 

California.  —  Tormey  v.  Pierce,  49 
Cal.  306. 

646 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 

allowed  "  on  such  terms  as  may  be  just,"  the  court  may  allow  an 
amendment  of  the  complaint  after  demurrer  without  costs.' 
But  where  an  amendment  is  allowed  upon  the  motion  of  one 
party  it  is  error  to  adjudge  the  costs  of  the  motion  against  the 
other  party.* 

b.  Discretionary — Review  for  Abuse. — The  imposition  of 
terms  upon  granting  leave  to  amend  is  a  matter  resting  in  the 
discretion  of  the  trial  court,  the  exercise  of  which  is  not  a  subject 
of  review  by  an  appellate  tribunal,  except  in  a  clear  case  of 
abuse, ^  or  where  a  positive  statutory  provision  or  rule  of  court 
has  been  violated.* 


Colorado.  —  Cooper  v.  McKeen,  ii 
Colo.  41. 

South  Carolina. — Green  v.  Iredell, 
31  S.  Car.  588;  Wallace  v.  Columbia, 
etc.,  R.  Co.,  37  S.  Car.  335;  Stallings 
V.  Barrett,  26  S.  Car.  474. 

Iowa.  —  Harrison  v.  Colton,  31  Iowa 
16;  Thomson  v.  Wilson,  26  Iowa  120. 

JVew  York. — Cayuga  County  Baink 
V.  Warden,  6  N.  Y.  19;  Hagins  v.  De 
Hart,  12  How.  Pr.  (N.  Y.  Supreme 
Ct.)  322;  Miller  v.  Garling,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  203. 

Delaware.  —  Doe  v.  Prettyman,  i 
Houst.  (Del.)  334. 

Massachusetts. — Harrington  v.  Har- 
rington, 107  Mass.  329;  Hartwell  v. 
Hemmenway,  7  Pick.  (Mass.)  117; 
Munroe  v.  Cooper,  5  Pick.  (Mass.)  412. 

See  also  Beneway  v.  Thorp,  77 
Mich.  181. 

1.  Stallings   v.  Barrett.    26  S.   Car. 

474- 

2.  Mohr  V.  Sherman,  25  Ark.  7. 

3.  California.  —  Clune  v.  Sullivan, 
56  Cal.  249;  Culverhouse  v,  Crosan, 
94  Cal.  544. 

Michigan.  —  Borden  v.  Clark,  26 
Mich.  410. 

Colorado. — Miller  v.  Thorpe  (Colo. 
App.,  1894),  36  Pac.  Rep.  891;  Cole- 
man V.  Davis,  13  Colo.  98. 

New  York. — Felix  v.  Van  Slooten 
(City  Ct.),  46  N.  Y.  St.  Rep.  791; 
Schermerhorn  v.  Wood,  30  How.  Pr. 
(N.  Y.  C.  PI.)  316;  Minton  v.  Home 
Ben.  Soc.  (Supreme  Ct.),  16  N.  Y.  St. 
Rep.  looi;  Smith  v.  Rathbun,  75  N. 
Y.  122;  Van  Ness  v.  Bush,  22  How. 
Pr.  (N.  Y.  Supreme  Ct.)  481 ;  Bausch  v. 
Ingersoll,  61  Hun  (N.  Y.)627.  16  N.  Y. 
Supp.  336. 

South  Carolina. — Green  v.  Iredell,  31 
S.  Car.  588;  Stallings  v.  Barrett,  26  S. 
Car.  474. 

Wisconsin. — Smith  v.  Dragert,  65 
Wis.    507 ;   Mcllquham  v.   Barber,  83 


Wis.  500;  Jones  .  v.  Walker,  22  Wis. 
220;  McHenry  v.  Grant,  84  Wis.  311. 

North  Carolina. — Robinson  v.  Will- 
oughby,  67  N.  Car.  84;  Clements  v. 
Van  Norden,  4  Dev.  &  B.  (N.  Car.)  235; 
Hinton  v.  Deans,  75  N.  Car.  18. 

Minnesota. — Caldwell  v.  Brugger- 
man,  8  Minn.  2S6. 

Georgia. — Renew  v.  Redding,  56  Ga. 
311. 

Texas. — Turner  v.  Lambeth,  2  Tex. 
365. 

Illinois. — Heslep  v.  Peters,  4  111.  45; 
Jackson  v.  Warren,  32  111.  331. 

Kansas. — First  Nat.  Bankz'.  Tappan, 
6  Kan.  456;  Wands  v.  School  Dist.,  19 
Kan.  204. 

Indiana. — Burk  v.  Andis,  98  Ind.  59. 

Iowa. — Harrison  v.  Colton,  31  Iowa 
16. 

See,  further,  as  to  abuse  of  dis- 
cretion, supra.  III,  4,  a. 

Order  Affecting  Substantial  Bight. — It 
was  held,  in  Cramer  v.  Lovejoy,  41 
Hun  (N.  Y.)  581,  that  a  question  of 
terms  decided  in  a  county  court,  if  it 
affects  a  substantial  right,  is  review- 
able on  appeal  by  the  general  term ;  and 
a  decision  was  reversed  for  improvi- 
dently  allowing  an  amendment  with- 
out terms.  See  also  Marsh  v.  McNair, 
40  Hun  (N.  Y.)2i6. 

No  Prejudice.  —  The  taxing  of  ac- 
crued costs  to  the  plaintiff  upon  allow- 
ing an  amendment  of  his  petition 
could  not  have  prejudiced  him  where 
he  failed  upon  the  trial  and  thus  be- 
came liable  for  all  the  costs.  Keller 
V.  Bare,  62  Iowa  468. 

4.  New  Hampshire. — It  was  held,  in 
Gale  V.  French,  16  N.  H.  95,  upon  a  con- 
struction of  the  New  Hampshire  stat- 
ute that  the  court  could  not  impose 
terms  for  an  amendment  in  matters  of 
form. 

In  Massachusetts  it  seems  that 
rule  15  of  the  Superior  Court,  which 


647 


Of  Pleadings,  etc.,  at  AMENDMENTS.    Common  Law,  under  Codes,  etc. 


Objections  to  Eulings  relating  to  terms  of  amendment  should  be 
made  in  the  trial  court  in  order  to  be  available  on  appeal.* 

Effect  of  Accepting  Terms. — A  party  cannot  accept,  so  far  as  it  is  for 
his  benefit,  a  conditional  order  granting  him  leave  to  amend  and 
then  question  the  validity  of  the  order  ;*  and  where  a  party 
accepts  the  terms  imposed  upon  him  the  appellate  court  will  not 
modify  those  terms,  although  it  should  appear  that  the  amend- 
ment  was  unnecessary.* 

c.  Proper  Terms — customary  to  Exact  Terms. — It  is  the  ordinary 
course  of  the  court,  in  granting  leave  to  amend,  to  impose 
terms  of  some  kind  upon  the  party  at  whose  instance  tht 
amendment  is  made.*  And  where  an  amendment  is  allowed 
before  trial,   it  is  customary  to  exact    from   the  party  applying 


requires  payment  of  costs  upon 
amendments  of  substance,  does  not 
apply  to  a  plea  puis  darrein  continu- 
ance. Burton  v.  Frye,  139  Mass.  131; 
Goodrich  v.  Bodurtha,  6  Gray  (Mass.) 
323.  See  further,  in  regard  to  the  same 
rule,  Webber  v.  Davis,  5  Allen  (Mass.) 
393.  See  State  v.  Moses,  20  S.  Car. 
465.  where  it  was  said  that  leave  to 
amend  an  answer  by  pleading  matter 
puis  darrein  continuance  should  always 
be  upon  payment  of  costs. 

In  Maine  it  is  error  to  permit  an 
amendment  of  a  declaration  held  in- 
sufficient on  demurer  except  on  pay- 
ment of  costs  from  the  time  when  the 
demurrer  was  filed,  the  statute  being 
imperative.  Colton  v.  Stanwood,  67 
Me.  25.  Fiedler  v.  Carpenter,  2  Woodb. 
&  M.  (U.  S.)  211,  was  decided  under  a 
similar  rule. 

And  an  amendment  to  a  declaration 
cannot  be  allowed  except  upon  pay- 
ment of  costs  when  exceptions  have 
been  taken  to  the  overruling  of  a  gen- 
eral demurrer,  until  the  exceptions 
have  been  passed  upon  by  the  law 
court.  Shorey  v.  Chandler,  80  Me. 
409. 

1.  Teberg  v.  Swenson,  32  Kan.  224; 
Griggs  V.  Howe,  31  Barb.  (N.  Y.)  100. 
See  also  Tupper  v.  Kilduff,  26  Mich. 

394- 

If  a  party  wishes  to  except  to  the 
allowance  of  an  amendment  without 
terms  he  should  show  to  the  trial 
court  that  he  is  prejudiced  thereby. 
Ruege  V.  Gates,  71  Wis.  634. 

Noncompliance  with  Terms. — When 
leave  to  amend  is  conditional,  the 
terms  must  be  complied  with  before 
the  party  can  proceed.  Smith  v. 
Johnson,  4  Harr.  (Del.)  541.  But  see 
McCabe  v.  Gentes,  18  La.  31,  where 
it    was   held   that    costs   awarded   on 


leave  to  amend  are  not  required  to  be 
paid  up  before  the  suit  proceeds,  as  in 
case  of  nonsuit  or  discontinuance. 

Objection  for  noncompliance  with 
terms  required  should  be  made  in  the 
trial  court  and  not  for  the  first  time 
on  appeal.  Woods  v.  Durrett,  28  Tex. 
429 ;  Washington  County  Mut.  Ins. 
Co.  V.  Dawes,  6  Gray  (Mass.)  376. 

If  a  case  is  submitted  to  the  jury 
without  objection  because  terms  im- 
posed upon  plaintiff  for  amending 
have  not  been  complied  with,  it  is  too 
late  for  defendant  to  object  after  ver- 
dict in  plaintiff's  favor,  especially  if 
the  court  orders  judgment  not  to  be 
entered  until  the  terms  are  complied 
with.  Cannon  v.  Leonard,  10  Allen 
(Mass.)  247. 

Waiver  of  Exceptions. — An  exception 
to  the  allowance  of  an  amendment  to 
a  complaint  without  terms  is  waived 
by  asking  a  continuance  as  a  condi- 
tion thereof.  Ruege  v.  Gates,  71  Wis. 
634,  where  it  was  so  held,  although 
the  request  for  a  continuance  was 
subsequently  withdrawn. 

After  a  party  has  answered  an 
amendment  it  is  too  late  for  him  to 
object  that  terms  should  have  been 
imposed  on  the  party  amending.  Dai- 
ley  V.  Wynn,  33  Tex.  614. 

2.  Smith  V.  Rathbun,  75  N.  Y.  122; 
Austin  V.  Wauful  (Supreme  Ct.),  36 
N.  Y.  St.  Rep.  779. 

3.  Simpson  v.  Norton,  45  Me.  281. 

4.  Heslep  v.  Peters,  4  111.  45;  Hunt- 
ington V.  Sheldon,  3  Day  (Conn.)  497; 
Baxter   v.  Baxter,  3   Jones  (N.   Car.) 

305- 

If  the  amendment  is  material  and 
calculated  to  surprise  the  other  party, 
a  continuance  is  granted  if  demanded. 
Jackson  v.  Warren,  32  111.  331;  Atkin- 
son V.  State  Bank,  5  Blackf.  (Ind.)  84. 


648 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


the  payment  of  the  costs  of  the  motion,*  and  such  other  costs 
and  expenses,  if  any,  as  the  opposite  party  will  lose  by  reason  of 
the  desired  amendment.* 

There  Is  No  Precise  Kuie  governing  the  discretion  of  the  court,  ex- 
cept that  it  must  be  a  judicial  discretion,*  and  not  be  exercised 
arbitrarily."*  The  terms  must  not  be  so  onerous  as  to  amount  to 
a  deprivation  of  the  right  to  amend  ;*  nor  can  they  be  inflicted 


1,  Saltus  V.  Bayard,  12  Wend.  (N. 

Y.)  223. 

When  Dispensed  With. — A  motion  to 
amend  is  sometimes  denied  without 
costs  where  the  practice  was  unsettled, 
or  the  question  raised  was  new  and 
not  free  from  difficulty.  Daguerre  v. 
Orser,  3  Abb.  Pr.  (N.  Y.  C.  PI.)  89; 
Boington  v.  Lapham,  14  How.  Pr.  (N. 
Y.  Supreme  Ct.)36o;  Field  v.  Morse,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)47.  See 
also  Barstow  v.  Randall,  5  Hill  (N. 
Y.)  559;  Williamson  v.  Updike,  14  N. 
J.  L.  270. 

Tender  before  Application. — Where  a 
reasonable  offer  to  pay  costs  is  made 
before  application  for  an  amendment 
which  the  opposite  party  declines  to 
accept,  be  will  not  be  entitled  to  the 
costs  of  resisting  the  motion.  Bell  v. 
Judson,  2  How.  Pr.  (N.  Y.)  42. 

2.  Gilchrist  v.  Gilchrist,  44  How. 
Pr.  (N.  Y.  Supreme  Ct.)  317;  Burns  v. 
Scooffy,  98  Cal.  271;  Turner  v.  Hiller- 
line,  14  How.  Pr.  (N.  Y.  Supreme  Ct.) 
231;   Culverhouse  v.  Crosan,  94  Cal. 

544- 

Taxable  Costs  up  to  Amendment. — 
"The  general  rule  in  ordinary  cases 
is  conceded  to  be  that  the  party 
amending  his  pleading  will  be  re- 
quired to  pay  all  taxable  costs  up  to 
the  time  of  amending,  and  also  costs 
for  opposing  the  motion."  Smith  v. 
Dragert,  65  Wis.  507.  See  also  Wolht- 
man  v.  Goft,  15  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  39;  Mitreaud  v.  Delas- 
size,  13  La.  416;  Street  v.  Bushnell, 
24  Mo.  328. 

Costs  of  New  Plea. — The  plaintiff  was 
allowed  to  amend  after  the  case  was 
noticed  for  trial  on  payment  of  the 
costs  of  a  new  plea,  should  the  same 
be  required,  and  also  on  payment  of 
the  costs  of  the  motion.  George  v. 
Orcutt,  19  Wend.  (N.  Y.)  648. 

A  similar  amendment  was  allowed 
on  paying  the  costs  of  the  motion. 
Jackson  v.  Tuttle,  6  Cow.  (N.  Y.)  590. 

Production  of  Witness  Required. — In 
Knauth  v.  Heller,  ^8  Hun  (N.  Y.)  570, 
23  N.  Y.  Supp.  106,  a  motion  to  amend 


an  answer  under  special  circumstances 
was  allowed  on  condition  that  the  de- 
fendant produce  his  agent  for  examina- 
tion and  pay  the  costs  of  the  motion. 

Bestriction  of  Claim. — In  Freeman  v. 
Fogg,  82  Me.  408,  an  amendment  of 
the  complaint  by  adding  a  special 
count  was  allowed  upon  condition 
that  a  sum  greater  than  that  origi- 
nally claimed  should  not  be  recovered. 

Striking  Out  Defendant. — Where  one 
who  had  been  improperly  made  a  de- 
fendant in  an  action  of  covenant  died 
pending  the  action,  the  court  refused 
to  strike  out  his  name  except  upon 
payment  of  costs.  Parsons  v.  Plaisted, 
13  Mass.  189. 

After  Argument  of  Demurrer.  —  In 
Walker  v.  Maxwell,  i  Mass.  104,  the 
defendant  had  leave  to  amend  his  plea 
after  argument  of  a  demurrer  upon 
payment  of  costs. 

3.  The  terms  should  be  such  as  the 
circumstances  may  require.  Glick  v. 
Hartman,  10  Iowa  410;  Grafton  Bank 
V.  White,  17  N.  H.  389;  Beneway  v. 
Thorp,  77  Mich.  181;  Caldwell  v. 
Bruggerman,  8  Minn.  286. 

4.  People  V.  Judges  (Mich.,  1888), 
38  N.  W.  Rep.  322;  Tate  v.  Hamilton, 
81  Mich.  221.  See  also  Ser  v.  Bobst,  9 
Mo.  29. 

5.  Misch  V.  McAlpine,  78  111.  507, 
where  it  was  held  reversible  error  to 
require  as  a  condition  of  an  amend- 
ment by  defendant  that  he  refrain 
from  asking  a  continuance  when  it 
appeared  that  he  could  not  submit  to 
such  terms  without  abandoning  his 
defense. 

"Just  and  Beasonable." — The  terms 
"just  and  reasonable,"  as  employed 
by  the  legislature  in  authorizing  the 
imposition  of  costs,  have  reference  to 
the  rules  of  practice  existing  at  com- 
mon law,  and  contemplate  no  other  or 
different  terms  than  would  be  just  and 
reasonable,  as  adjudged  by  that  prac- 
tice. Empire  F.  Ins.  Co.  v.  Real  Estate 
Trust  Co.,  I  111.  App.  391,  where  it 
was  held  reversible  error  to  require,  as 
a  condition  to   the   amendment  of    a 


649 


Of  Pleadings,  etc  ,  at  AMENDMENTS.   CommoH  Law,  under  Codes,  etc. 


by  way  of  punishment.* 

Where  Prejudice  or  Surprise  would  be  wor.ked  by  an  amendment, 
strong  terms  should  be  fixed  even  to  requiring  payment  of  full 
costs  up  to  the  time  of  amendment.^ 


plea  after  demurrer  sustained  thereto, 
that  the  defendant  make  a  sufficient 
showing  by  affidavit  of  merits. 

1.  In  People  v.  Judges  (Mich.,  1888), 
38  N.  W.  Rep.  322,  mandamus  issued 
to  compel  the  judge  to  annul  an  order 
made  by  his  predecessor  which  per- 
mitted the  defendant  to  amend  the  no- 
tice attached  to  his  plea  in  an  action 
for  libel,  but  required  him  to  pay 
$1000,  and  also  allowed  the  plaintiff  to 
increase  the  ad  damnutu,  and  the  court 
was  ordered  to  hear  the  application 
upon  its  merits. 

2.  Harkins  v.  Edwards,  i  Iowa  296. 
Notice     of    Amendment. — The    court 

may  require  notice  to  be  given  to  the 
party  to  be  affected  by  the  amend- 
ment. Sidway  v.  Marshall,  83  111. 
433. 

Where  Opposite  Party  Misled. — If  the 
defendant  makes  it  appear  that  he  is 
surprised  or  misled,  an  amendment 
will  be  allowed  at  the  trial  only  upon 
terms — usually  that  the  trial  be  post- 
poned and  the  party  asking  the  favor 
pay  the  costs.  Wilde  v.  Hexter,  50 
Barb.  (N.  Y.)  448;  McHenry  v.  Grant, 
84  Wis.  311. 

Reducing  the  Ad  Damnum. — Where  an 
amendment  reducing  the  ad  damnum 
was  allowed,  it  was  deemed  to  be  rea- 
sonable to  require  the  plaintiff  to  pay 
costs  to  the  time  of  the  amendment,  be- 
cause if  the  amount  had  been  so 
stated  originally,  the  defendant  could 
have  paid  it  and  thus  escape  the  sub- 
sequent costs.  Pierce  v.  Strickland,  2 
Story  (U.  S.)  292. 

Increasing  the  Ad  Damnum. — Amend- 
ment increasing  the  ad  damnum  after 
issue  joined,  should  be  allowed  only 
upon  payment  of  costs  accruing  after 
issue  joined.  Gaff  v.  Hutchinson,  38 
Ind.  341. 

Upon  a  new  trial  after  reversal,  the 
plaintiff  was  allowed  to  amend  by  in- 
creasing the  amount  demanded  upon 
payment  of  S300  and  stipulating  to 
waive  costs  of  all  former  trials  and 
appeals.  Brady  v.  Cassidy  (C.  PI.), 
37  N.  Y.  St.  Rep.  501. 

Costs  10  Time  of  Amendment. — In  Gulp 
V.  Steere,  47  Kan.  746,  a  material 
amendment  of  the  complaint  was  al- 
lowed upon  payment  of  substantially 

65 


all  the  costs  up  to  the  time  of  amend- 
ment. 

An  amendment  of  the  answer  may 
be  allowed  upon  payment  of  the  costs 
of  the  cause  up  to  the  time  of  amend- 
ment.   Coleman  v.  Davis,  13  Colo.  98. 

After  Special  Demurrer. — In  Davis  v. 
Evans,  2  Murph.  (N.  Car.)  202,  the 
court  allowed  an  amendment  of  the 
declaration  upon  payment  of  costs 
after  sustaining  a  special  demurrer. 

And  in  Condit  v.  Neighbor,  12  N.  J. 
L.  320,  the  plaintiff  upon  amending 
after  a  special  demurrer  had  been 
filed  was  required  to  pay  the  costs. 

Misnomer  of  Plaintiff. — Misnomer  of 
the  plaintiff  corporation  was  amended 
on  the  election  by  the  defendant  of 
the  costs  of  the  action  to  the  time  of 
amendment  or  a  continuance.  Sher- 
man V.  Connecticut  River  Bridge,  11 
Mass.  338. 

On  Filing  New  Plea  on  Appeal. — In 
North  Carolina  the  Superior  Court  on 
appeal  from  a  justice  may  allow  a  new 
plea  to  be  filed  and  require  payment 
of  all  costs  up  to  that  time.  Hinton 
V.  Deans,  75  N.  Car.  18. 

Amendment  in  Appellate  Court. — In 
Weed  V.  Richardson,  2  Dev.  &  B.  (N. 
Car.)  535,  the  plaintiff,  upon  amend- 
ing in  the  appellate  court,  in  a  case 
where  an  actual  amendment  was  nec- 
essary, was  required  to  pay  the  costs 
in  both  courts. 

To  the  same  effect,  see  Grist  v. 
Hodges,  3  Dev.  (N.  Car.)  198. 

In  Stone  v.  White,  8  Gray  (Mass.) 
589,  the  plaintiff  was  allowed  to 
amend  in  the  appellate  court  so  as  to 
conform  to  the  proof,  he  taking  no 
costs  since  the  trial. 

Obviating  Technical  Objection.  —  On 
granting  leave  to  amend  the  com- 
plaint so  as  to  cure  a  technical  objec- 
tion, the  court  need  not  impose  all  the 
costs  of  action  as  a  condition.  Min- 
ton  V.  Home  Ben.  Soc.  (Supreme  Ct.), 
16  N.  Y.  St.  Rep.  looi. 

Changing  a  Date. — Where  the  plain- 
tiff was  allowed  to  amend  by  chang- 
ing the  date  of  an  alleged  transaction 
in  his  bill  of  particulars,  the  defend- 
ant having  no  ground  to  claim  sur- 
prise, it  was  erroneous  to  require  the 
plaintiff  to  pay  the  costs  and  permit  a 

o 


Of  Pleadings,  etc.,  at  AMENDM ENTS.   Common  Law,  under  Codes,  etc. 


Controlling  Considerations. — The  severity  of  the  terms  imposed  is 
largely  determined  by  the  materiality  of  the  amendment  and  the 
stage  of  the  case  at  which  it  is  offered.* 


continuance.      Tate   v.    Hamilton,    8i 
Mich.  221. 

1.  Costs  and  Continuance. — In  Jack- 
son V.  Warren,  32  111.  331,  the  action 
of  the  trial  court  in  granting  leave  to 
amend  a  complaint  in  forcible  entry 
and  detainer  upon  payment  of  all  the 
costs  up  to  the  time  of  amendment, 
and  thereupon  granting  a  continu- 
ance, was  held  to  be  proper. 

After  Nonsuit. — Where,  after  non- 
suit for  want  of  a  special  count,  the 
plaintiff  was  permitted  to  amend,  he 
was  required  to  pay  the  defendant's 
costs  of  the  plea  and  the  subsequent 
proceedings,  together  with  the  costs 
of  opposing  the  motion.  Bennett  v. 
New  York,  i  Sandf.  (N.  Y.)  658. 

In  Downer  v.  Thompson,  6  Hill  (N. 
Y.)  377,  a  plaintiff  nonsuited  at  the 
circuit  was  not  allowed  to  amend  by 
adding  a  count  adapted  to  the  nature 
of  the  case  without  payment  of  all 
costs  subsequent  to  the  plea. 

Introducing  New  Cause  of  Action. — 
Where  leave  is  given  to  introduce  a 
new  cause  of  action  after  trial  before 
a  referee,  the  plaintiff  should  be  re- 
quired to  stipulate  to  set  aside  the  re- 
port and  vacate  the  order  of  reference, 
with  costs  to  abide  the  event;  and  the 
order  should  provide  for  service  of  the 
amended  complaint  and  summons  and 
for  time  for  defendant  to  answer. 
Allaben  v.  Wakeman,  10  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  162. 

And  generally  an  amendment  set- 
ting up  a  new  cause  of  action  should 
be  allowed  only  upon  payment  of  all 
costs  previously  incurred.  Woods  v. 
Durrett,  28  Tex.  429. 

Changing  Entire  Form  of  Action. — 
Where  plaintiff's  amendment  changes 
the  entire  form  of  action,  the  practice 
is  to  require  him  to  pay  all  the  defend- 
ant's costs.  Carrier  z^.  Dellay,  3  How. 
Pr.  (N.  Y.  Supreme  Ct.)  173.  distin- 
guishing Alston  V.  Mechanics'  Mut. 
Ins.  Co.,  I  How.  Pr.  (N.  Y.)  82. 

After  New  Trial  Granted. — In  Spawn 
V.  Veeder,  4  Cow.  (N.  Y.)  503,  the 
plaintiff  was  allowed  to  amend  his 
bill  of  particulars  after  the  granting 
of  a  new  trial  and  after  two  notices  of 
trial,  on  payment  of  costs  to  the  t'me 
of  amendment,  if  the  defendant  should 
vary  his  defense;  otherwise  upon  pay- 
ment only  of  the  costs  of  the  motion. 


See  also  Chapman  v.  Webb,  6  How. 
Pr.  (N.  Y.  C.  PI.)  390;  Jackson  v.  San- 
ders, 2  Edm.  Sel.  Cas.  (N.  Y.)  12. 

Amendment  of  Declaration  After  Flea. 
— In  Holmes  v.  Lansing,  i  Johns. 
Cas.  (N.  Y.)  248,  the  court  established 
the  practice  of  allowing  an  amend- 
ment of  the  declaration  after  plea  only 
upon  payment  of  costs  and  giving  im- 
parlances. 

Bringing  in  New  Flaintiffs. — Where 
new  parties  plaintiff  are  brought  in  by 
amendment,  it  is  proper  to  tax  costs 
on  the  party  amending.  Lanes  v. 
Squyres,  45  Tex.  382  ;  Clawson  v. 
Cone,  2  Handy  (Ohio)  67;  Boyd  v. 
Steamboat  Falcon,  i  Handy  (Ohio) 
362. 

But  if  the  new  plaintiff  be  merely 
formal  and  no  objection  was  taken  in 
the  trial  court,  it  has  been  held  that 
the  requisite  amendment  could  be 
made  in  the  appellate  court  without 
terms.     Grant  v.   Rogers,  94  N.  Car. 

755. 

Striking  Out  Coplaintiff. — Where  an 
unnecessary  party  is  joined  as  plain- 
tiff, either  through  ignorance  or  care- 
lessness, the  party  responsible  should 
not  be  allowed  to  strike  him  out  by 
amendment  without  being  taxed  with 
all  the  costs  up  to  the  time  of  the 
amendment.  Andrus  v.  Pettus,  36 
Tex.  108. 

Striking  Out  a  Defendant  in  Effect. — 
A  party  should  not  be  allowed  to 
amend  on  the  trial  by  striking  out  all 
the  allegations  referring  to  one  of  the 
defendants,  so  as  to  virtually  discon- 
tinue the  action  as  to  him,  except  upon 
payment  of  all  costs  in  the  action, 
whether  awarded  to  him  on  appeal 
from  a  former  judgment  or  otherwise. 
Kent  V.  Popham,  6  Civ.  Pro.  Rep.  (N. 
Y.  Supreme  Ct.)  336. 

Costs  or  Continuance  at  Option. — On 
the  trial  the  defendant  was  allowed 
to  annex  an  affidavit  to  his  plea  of  non 
est  factum  upon  payment  of  costs  or 
consenting  to  a  continuance  at  the 
plaintiff's  option.  Taylor  v.  Colvin, 
Wright  (Ohio)  449. 

Election  and  Waiver. — Upon  an  ap- 
plication at  the  trial  for  leave  to  file 
an  amended  answer  containing  two 
inconsistent  defenses,  the  court  may 
require  that  the  defendant  elect  on 
which  defense  he  will  rely,  and  also 


651 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


After  Verdict. — The  plaintiff  will  not  be  allowed  to  amend  after 
verdict  in  his  favor  by  increasing  the  damages  claimed  unless  he 
abandons  his  verdict,  pays  the  defendant's  costs  of  the  trial  and 
of  resisting  the  motion,  and  consents  to  a  new  trial.* 


that  a  written  reply  shall  be  waived. 
Caldwell  v.  Bruggerman,  8  Minn.  2S6. 

Filing  New  Eejoinder. — Upon  affida- 
vit that  a  rejoinder  tendering  a  mere 
question  of  law  was  filed  under  a  mis- 
take, the  defendant  had  leave  to  re- 
join anew  on  the  terms  of  paying  the 
plaintiffs  their  costs  since  the  rejoin- 
der and  taxing  no  costs  for  the  same 
period  in  the  case  after  being  ulti- 
mately the  prevailing  party.  Rixford 
V.  Wait,  II  Pick.  (Mass.)  339. 

Second  Amended  Answer. — The  de- 
fendant should  not  have  leave  to  serve 
a  second  amended  answer  just  before 
trial  without  paying  taxable  term  fees 
and  filing  and  serving^  an  affidavit  of 
merits.  Haggerty  v.  Phelan  (Super. 
Ct.),  18  N.  Y.  Supp.  789. 

After  Referee's  Report. — In  Proctor  v. 
Andrew,  i  Sandf.  (N.  Y.)  70,  a  refer- 
ee's report  was  set  aside  and  the  plain- 
tiff permitted  to  amend,  but  upon  pay- 
ment of  the  costs  of  the  reference  and 
of  the  subsequent  proceedings,  the  ob- 
jection which  made  the  amendment 
necessary  having  been  taken  before 
the  referee  on  the  first  opportunity. 
See  also  Smith  v.  Proctor,  i  Sandf. 
(N.  Y.)  72. 

Costs  Divided. — In  the  federal  court 
an  amendment  curing  a  defective 
averment  of  diverse  citizenship  was 
allowed  pending  a  motion  in  arrest  of 
judgment,  each  party  paying  half  the 
costs  as  then  taxed.  Maddox  v.  Thorn, 
60  Fed.  Rep.  217. 

Costs  of  Former  Appeal. — Where  the 
court  allowed  the  plaintiff  to  amend 
his  original  petition  and  taxed  all  the 
costs  of  the  district  court  up  to  the 
time  of  the  amendment  against  him, 
it  properly  refused  to  tax  against  him 
the  costs  of  the  Supreme  Court  on  a 
former  appeal  which  was  decided 
against  the  defendant.  Armstrong 
V.  O'Brien,  83  Tex.  635. 

Adding  New  Defendant. — Plaintiff  as 
a  condition  of  being  allowed  to  amend 
his  petition  at  the  hearing  by  intro- 
ducing a  necessary  party  defendant 
may  be  required  to  give  security  for 
costs  and  to  pay  a  solicitor's  fee  and 
witness  fees  to  be  taxed.  Rugg  v. 
Bassett  (Mich.,  1894),  59  N.  W.  Rep. 
645.     . 

Striking  Out  a  Defendant. — In  Bemis 


V.  Bronson,  i  Code  Rep.  (N.  Y.)  27, 
the  plaintiff  was  allowed  to  strike  out 
the  name  of  a  defendant  after  the  evi- 
dence was  closed  and  in  order  to  con- 
form to  the  proof,  upon  payment  of  his 
costs  and  allowing  the  trial  to  stand 
over  if  the  other  defendant  should  so 
desire. 

After  Verdict  Set  Aside. — In  Hopf  v. 
U.  S.  Baking  Co.  (Super.  Ct.),  '21  N. 
Y.  Supp.  589,  the  plaintiff  was  allowed 
to  amend  after  a  verdict  in  his  favor 
was  set  aside,  upon  paying  defend- 
ant's attorney's  fees,  a  trial  fee,  and 
$10  costs  for  opposing  the  motion  to 
amend. 

An  amendment  at  that  stage  was  al- 
lowed upon  full  payment  of  costs  in 
Troy,  etc.,  R.  Co.  v.  Tibbits,  11  How. 
Pr.  (N.  Y.  Supreme  Ct.)  168,  and 
Utica  Ins.  Co.  v.  Scott,  6  Cow.  (N.  Y.) 
606.  See  also  Prindle  v.  Aldrich,  13 
How.  Pr.  (N.  Y.  Supreme  Ct.)  466; 
Downer  v.  Thompson,  6  Hill  (N.  Y.) 
377;  Carrier  v.  Dillaye,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  173  ;  Hare  v. 
White,  3  How.  Pr.  (N.  Y.  Supreme 
Ct.)  297;  Hallf.  Snowhill,i4N.  J.  L.  8. 

In  Rogers  v.  Phinney,  13  N.  J.  L.  i, 
the  plaintiff  upon  amending  was  re- 
quired to  pay  the  costs  of  the  motion 
and  the  costs  of  the  defendant  in  the 
court  of  appeals. 

After  Reversal  on  Appeal. — So,  after  a 
reversal  by  the  appellate  court,  and 
where  the  defendant  was  allowed  to 
amend  his  answer  and  was  in  fault 
for  not  applying  sooner,  it  was  upon 
payment  of  all  the  plaintiff's  disburse- 
ments, as  well  as  the  costs  of  service 
of  summons  and  complaint.  Ferris  v. 
Hard  (Super.  Ct.),  27  N.  Y.  Supp. 
222,  6  Misc.  Rep.  359. 

Where  an  amendment  is  asked  for 
after  reversal  and  remand  in  order  to 
obviate  an  error  which  was  the  ground 
of  reversal,  the  party  should  be  re- 
quired to  pay  the  costs  of  the  motion 
and  the  costs  of  the  opposite  party  in 
the  appellate  court.  Rogers  v.  Phin- 
ney, 13  N.  J.  L.  I. 

The  terms  should  in  all  cases  be 
consistent  with  the  judgment  of  the 
appellate  court.  Ireland  v.  Metropoli- 
tan El.  R.  Co.  (Super.  Ct.),  8  N.  Y.  St. 
Rep.  127. 

1.  Dox  V.  Dey,  3  Wend.  (N.  Y.)  356; 


652 


Of  Pleadings,  etc.,  at  AMENDMENTS.  Common  Law,  under  Codes,  etc. 


Without  Terms. — But  the  imposition  of  terms  presupposes  the 
party  to  whom  leave  is  granted  to  be  resting  under  neglect  or  in- 
attention to  his  rights ;  and  where  an  amendment  is  trivial  and 
offered  in  due  time,  or  for  other  reasons  cannot  be  prejudicial  to 
the  adverse  party,  it  is  frequently  allowed  without  terms.' 


Brown  v.  Smith,  24  111.  196,  where  it 
was  declared  that  all  amendments  of 
substance  after  verdict  must  be  made 
only  upon  the  terms  stated  in  the  text, 
citing  Tomlinson  v.  Blacksmith,  7 
T.  R.  128.  See  also  Hoffnagle  v. 
Leavitt,  7  Cow.  (N.  Y.)  517;  Bowman 
V.  Earle,  3  Duer  (N.  Y.)  691. 

To  Cure  a  Variance. — In  Carpenter  z*. 
Payne,  10  Wend.  (N.  Y.)6o4,  the  plain- 
tiff was  permitted  to  amend  after  ver- 
dict so  as  to  cure  a  variance  without 
costs;  but  the  verdict  was  vacated  in 
order  to  give  the  defendant  an  oppor- 
tunity to  contest  the  case  on  the  merits, 
which  he  had  neglected  to  do,  because 
he  had  relied  upon  the  variance. 

Correcting  Description  of  Locus. —  In 
Bannon  v.  Angier,  2  Allen  (Mass.)  128, 
an  action  in  tort  for  the  obstruction  of 
a  way,  the  plaintiff  was  allowed  to 
amend  after  verdict  by  changing  the 
description  of  the  way,  the  plaintiff 
taking  no  costs  up  to  the  time  of  filing 
the  amendment. 

1.  Brinkley  v.  Mooney,  9  Ark.  445, 
where  the  trial  court  was  reversed 
for  imposing  terms. 

Preventing  Immaterial  Issue. — Where 
the  court  permits  an  amendment 
for  the  purpose  of  preventing  the 
jury  from  finding  upon  an  imma- 
terial issue,  it  is  allowed  without 
costs  to  either  party.  Ham  v.  Ham, 
37  Me.  261. 

Informality  in  Replication. — Where  a 
replication  was  demurred  to  specially 
for  informality  in  the  conclusion,  the 
plaintiff  was  allowed  to  amend  with- 
out any  terms.  Hartwell  v.  Hemmen- 
way,  7  Pick.  (Mass.)  117. 

Mere  Clerical  Mistakes. — In  Munroe 
V.  Cooper,  5  Pick.  (Mass.)  412,  the 
plaintiff  was  allowed  to  amend  with- 
out costs  by  setting  up  the  true  date 
and  place  of  execution  of  the  note  in 
suit. 

It  was  not  an  abuse  of  discretion  to 
allow  the  plaintiff  on  the  trial,  and 
without  costs,  to  correct  a  clerical  error 
in  the  ad  damnum  clause  of  the  declara- 
tion where  the  merits  of  the  case  could 
not  be  affected.  Borden  v.  Clark,  26 
Mich.  410. 

In   Cbandos   v.    Edwards,    86  Wis. 


493,  it  was  held  reversible  error  to  re- 
fuse to  permit  the  plaintiff  to  amend 
on  the  trial  without  costs  or  delay  in 
order  to  correct  a  "mere  slip  of  the 
pen." 

It  was  held  in  Tate  v.  Hamilton,  81 
Mich.  221,  to  be  an  abuse  of  discre- 
tion to  refuse  to  allow  a  mere  formal 
amendment  of  plaintiff's  bill  of  par- 
ticulars except  upon  condition  of  his 
paying  the  costs  and  submitting  to  a 
continuance. 

Where  Defendant  was  Misled.  —  The 
defendant  having  been  misled  by  the 
plaintiff's  declaration,  he  was  per- 
mitted to  amend  without  terms  by 
pleading  the  statute  of  limitations. 
Brickett  v.  Davis,  21  Pick.  (Mass.) 
404. 

Prayer  for  Belief. — The  prayer  for 
relief  may  be  amended  at  any  stage  of 
the  case  without  terms.  Draper  v. 
Moore,  2  Cin.  Sup.  Ct.  Rep.  (Ohio) 
167. 

But  in  People  v.  Fields,  50  How.  Pr. 
(N.  Y.  Supreme  Ct.)  481,  where  the 
prayer  was  amended  on  a  second  trial, 
it  was  upon  payment  of  costs  to  the 
defendant  up  to  that  trial. 

Striking  Out  Plaintiffs. — Amendments 
by  striking  out  the  names  of  several 
plaintiffs  may  be  made  on  payment 
of  the  costs  of  the  term.  Collins  v. 
Townsend,  2  Harr.  (Del.)  317,  n.  a. 
But  it  is  not  an  abuse  of  discretion 
to  allow  the  amendment,  without 
costs.     Tormey  v.  Pierce,  49  Cal.  306. 

During  the  Trial. — The  court  may  al- 
low a  libel  for  divorce  to  be  amended 
during  the  trial  without  terms.  Har- 
rington V.  Harrington,  107  Mass.  329. 

In  Hagins  v.  DeHart,  12  How.  Pr. 
(N.  Y.  Supreme  Ct.)322,  the  plaintiff 
was  permitted  to  amend  on  the  trial 
without  costs  unless  the  defendant 
could  show  that  he  was  not  prepared 
to  meet  the  new  issue.  So  in  Miller  v. 
Garling,  12  How.  Pr.  (N.  Y.  Supreme 
Ct.)203.  See  also  Beneway  v.  Thorp, 
77  Mich.  181. 

In  Cooper  v.  McKeen,  ir  Colo.  41, 
the  plaintiff  was  allowed  to  amend 
during  the  trial  without  terms  so  as  to 
allege  the  date  when  the  claim  sued 
upon  became  due. 


653 


Of  Pleadings,  etc.,  at 


AMENDMENTS.   Common  Law,  under  Codes,  etc. 


Government  Pays  No  Costs. — It  is  not  according  to  rule  for  the  gov- 
ernment to  be  ordered  to  pay  costs  upon  being  granted  leave  to 
amend.* 

17.  Amendments  in  Miscellaneous  Proceedings — a.  Great  Lati- 
tude Allowed. — Under  the  statute  of  amendments  the  courts 
may  correct  defects  not  only  in  the  ordinary  pleadings  in  civil 
causes,  but  may  allow  amendments  in  almost  every  species  of  pro- 
ceeding before  judicial  or  quasi-judicial  tribunals.* 

b.  Affidavits. — Affidavits  incident  to  judicial  proceedings,  such 
as  that  of  merits  or  for  a  continuance,  are  usually  amendable  ^ 


In  Bonner  v.  Home  Ins.  Co.,  13  Wis. 
677,  an  amendment  was  allowed  at  the 
trial,  without  costs,  describing  with 
greater  exactness  the  policy  of  insur- 
ance upon  which  the  suit  was  founded. 

Pending  Motion  in  Arrest. — An  amend- 
ment after  verdict  and  pending  a  mo- 
tion in  arrest  of  judgment  curing  a 
variance  between  the  name  of  defend- 
ant as  stated  in  the  petition  and  as 
signed  to  the  promissory  note  sued  on, 
was  properly  allowed  without  terms, 
the  defendant  not  being  prejudiced. 
Thomson  v.  Wilson,  26  Iowa  120. 

After  Error  Brought. — If  there  is  an 
agreement  by  attorneys  in  the  trial 
court  for  an  amendment  the  court  will 
give  leave  to  amend  after  error 
brought  and  without  terms.  Johnson 
V.  Chaffant,  i  Binn.  (Pa.)  75. 

After  Remand  from  Appellate  Court. — 
On  remand  from  the  appellate  court 
after  a  decision  that  the  complaint 
stated  a  cause  of  action  defectively,  it 
is  within  the  discretion  of  the  court  to 
allow  an  amendment  without  terms. 
Wallace  v.  Columbia,  etc.,  R.  Co.,  37 
S.  Car.  335;  Wells  v.  American  Express 
Co.,  49  Wis.  224. 

Absence  of  Delay. — If  an  amendment 
require  a  continuance,  leave  will  be 
granted  only  on  payment  of  the  costs 
of  the  term.  King  z/.  Phillips,  i  Houst. 
(Del.)  349;  Doe  v.  Prettyman,  i  Houst. 
(Del.)  334.  Otherwise,  it  may  be 
granted  without  conditions.  Doe  v. 
Prettyman,  i  Houst.  (Del.)  334. 

1.  State  V.  Folsom,  26  Me.  209. 

2.  What  Constitutes  Pleading.  —  In 
Snelling  v.  Darrell,  17  Ga.  141,  where 
a  motion  for  a  new  trial  was  deemed 
to  be  a  part  of  the  pleadings  in  the 
case,  and  therefore  amendable,  Lump- 
kin. J.,  said:  "  Pleadings  have  a  re- 
stricted as  well  as  a  general  meaning. 
The  one  is  denominated  regular  and 
the  other  irregular  or  collateral  plead- 
.ing.      The  former    begins    with     the 


declaration  and  terminates  with  the 
issue  of  fact  or  of  law,  or  both.  The 
latter  includes  bills  of  exceptions, 
writs  of  error,  motions  for  new  trials, 
and  everything  which  transpires  dur- 
ing the  progress  of  the  cause  from  its 
inception  to  its  consummation."  See 
also  Roundtree  v,  Rutherford,  65  Ga. 
444. 

Quo  Warranto  Proceedings  are  in  the 
nature  of  civil  proceedings  and  amend- 
able.    Com.  V.  Gill,  3  Whart.  (Pa.)  228. 

The  statutes  usually  authorize  the 
amendment  of  "  pleadings  or  proceed- 
ings." 

Basis  of  Action  Not  Amendable. —  Pro- 
ceedings under  the  California  Code 
Civ.  Pro.  §§  989-994,  for  the  purpose 
of  binding  a  partner  by  a  judgment 
against  his  copartner,  are  in  the  nature 
of  an  action  upon  a  judgment,  and 
neither  the  pleadings  nor  the  judgment 
in  the  original  action  can  be  amended. 
Waterman  v.  Lipman,  67  Cal.  26. 

3.  Clerical  errors  are  amendable; 
Murphy  v.  Hall,  38  Hun  (N.  Y.)  528; 
or  omissi'  -^  of  jurat,  Hees  v.  Snell,  8 
How.  Pr  (N.  Y.  Supreme  Ct.),  185, 
note;  or  omission  of  certificate  of  sec- 
retary ot  state,  Lawton  v.  Kiel,  51 
Barb.  (N.  Y.)  30.  See  also  Bowman  v. 
Sheldon,  5  Sandf.  (N.  Y.)  657,  com- 
menting on  Clickman  v.  Clickman,  i 
N.Y.  611. 

An  affidavit  of  merits  is  amend- 
able. Wells  V.  Booth,  35  Mich.  424; 
and  also  an  affidavit  of  publication. 
In  re  Newman,  75  Cal.  213;  Burr  v. 
Seymour,  43  Minn.  401;  Higgs  v. 
Huson,  8  Ga.  317;  or  of  service.  Den 
V.  Fen,  12  N.  J.  L.  321;  and  an  affida- 
vit in  bastardy  proceedings.  State  v. 
Giles,  103  N.  Car.  391;  and  a  laborer's 
affidavit  for  writ  of  seizure.  May  v. 
Williams,  6i  Miss.  126;  and  an  affida- 
vit to  the  truth  of  a  plea.  Baker  v. 
Wahrmund,  5  Tex.  Civ.  App.  268; 
Taylor  v.  Colvin,  Wright  (Ohio),  449; 


6S4 


Ot  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


where  the  defect  is  not  jurisdictional.*  (See  article  Affidavits.) 
c.  Petitions. — Petitions  by  interveners  may  be  amended  ;^ 
and  a  petition  for  condemnation  by  eminent  domain,*  a  petition 
to  lay  out  a  road,*  a  petition  for  partition,*  a  petition  to  require 
an  executor  to  give  bond,®  a  petition  for  reestablishment  of  lost 
papers,''  a  petition  for  a  rehearing*  or  writ  of  review,®  a  petition 
for  mandamus,*®  a  petition  by  an  insolvent  debtor**  and  a  return 
to  the  alternative  writ,*^  a  petition  under  a  statute  to  foreclose  a 
mortgage,**  a  petition  under  a  statute  to  enforce  payment  of  a 


and  an  affidavit  in  proceedings  sup- 
plementary to  execution,  Burkett  v. 
Bowen,  ii8  Ind.  379;  and  an  affidavit 
in  replevin,  Frink  v.  Flanagan,  6  111. 
35;  Cutler  V.  Rathbone,  i  Hill  (N.  Y.) 
204;  Cassidy  v.  Fleak,  20  Kan.  54; 
Hauf  V.  Ford,  37  Ark.  544;  Applewhite 
V.  Allen,  8  Humph.  (Tenn.)  697;  Mar- 
tinez V.  Martinez,  2  N.  Mex.  464; 
Romero  v.  Luna  (N.  Mex.,  1892),  30 
Pac.  Rep.  855. 

Affidavits  to  foreclose  mortgages 
are  amendable,  Nicholson  v.  Har- 
ris, 90  Ga.  257,  compare  Lewis  v. 
Frost,  69  Ga.  755;  and  an  affidavit 
for  a  continuance,  Lucas  v.  Sevier, 
I  Overt.  (Tenn.)  105;  but  it  will  not  be 
amended  after  the  court  has  passed 
upon  the  motion.  Pence  v.  Christman, 
15  Ind.  257. 

As  to  amendments  of  affidavits  of 
illegality  in  Georgia,  see  Inman  v. 
Miller,  71  Ga.  293;  County  of  Lee  v. 
Walden,  68  Ga.  664. 

1.  Jurisdictional  Defect. — In  Harris 
V.  Durkee,  50  N.  Y.  Super.  Ct.  202, 
where  the  jurat  of  an  affidavit  to 
procure  an  order  of  arrest  was  not  in 
proper  form,  it  was  held  that  the  de- 
fect was  jurisdictional  and  could  not 
be  amended.  But  see  Hudson  v. 
Fishel,  17  R.  I.  69,  and  Baker  Mfg. 
Co.  V.  Knotts,  30  Kan.  356,  the  latter 
case  holding  that  a  district  judge  at 
chambers  has  power  to  permit  an 
amendment  of  an  affidavit  for  an  order 
of  arrest. 

In  Georgia  a  claim  affidavit  is  the 
foundation  of  a  legal  proceeding  and 
cannot  be  amended.  Blackwell  v. 
Pennington,  66  Ga.  240.  See,  how- 
ever, Goldie  V.  McDonald,  78  111. 
605;  Veal  V.  Perkerson,  47  Ga.  92. 

2.  Gillis  V.  Carter,  29  La.  Ann.  698. 
See  Taylor  v.  Gillean,  23  Tex.  508. 

3.  Contra  Costa  Coal  Mines  R.  Co. 
V.  Moss,  23  Cal.  324,  by  express 
statute.  See  also  Pittsburgh,  etc.,  R. 
Co.  V.  Swinney,  59  Ind.  100.  But  the 
court  may  refuse  to  allow  an  amend- 


ment by  joining  other  persons  having 
interest  in  the  land.  Wood  v.  West 
Boston,  etc..  Bridges,  122  Mass.  394. 
See  further,  for  amendment  in  pro- 
ceedings by  eminent  domain.  In  re 
Rochester  R.  Co.,  19  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  421;  Colorado  Cent. 
R.  Co.  V.  Allen,  13  Colo.  230;  Bow- 
man V.  Venice,  etc.,  R.  Co.  102  111. 
459;  Chicago,  etc.,  R.  Co.  v.  Gates, 
120  11;.  86. 

4.  Pridgen  v.  Anders,  7  Jones  (N. 
Car.)  257,  holding  that  it  is  an 
"action;"  In  re  Patten's  Petition,  16 
N.  H.  277.  See  also  In  re  Melton's 
Petition,  20  N.  H.  261. 

5.  Swanton  v.  Crooker,  52  Me.  415. 

6.  Phillips  V.  Smith,  62  Ala.  575. 

7.  Hart  v.  Smith,  20  Fla.  58. 

8.  Dothard  v.  Teague,  40  Ala.  583, 
after  a  demurrer  to  the  original 
petition. 

9.  Elwell  V.  Sylvester,  27  Me.  536; 
Winch  V.  Hosmer,  122  Mass.  438, 
under  authority  to  allow  amendments 
in  any  civil  suit  or  proceeding;  Daven- 
port V.  Holland,  2  Cush.  (Mass.)  i,  the 
court  holding  that  though  not  strictly 
a  "  civil  action,"  it  is  a  "  proceeding." 

10.  State  V.  Bailey,  7  Iowa  390;  State 
V.  Slavan,  11  Wis.  153;  State  v.  Pierce 
County,  71  Wis.  321,  holding  that  it 
may  be  amended  to  conform  to  the 
proof;  Fornoff  v.  Nash,  23  Ohio  St. 
335;  State  V.  Baggott  (Mo.,  1888),  8 
S.  W.  Rep.  737,  by  express  statute. 

11.  /«r^  Johnson,  I  Ashm.  (Pa.)  157. 

12.  Springfield  v.  Hampden  County, 
10  Pick.  (Mass.)  59. 

The  alternative  and  peremptory 
writs  were  amended  in  State  v.  Fran- 
cis, 95  Mo.  44,  and  the  alternative 
writ  in  State  v.  Minneapolis,  etc.,  R. 
Co.,  39  Minn.  219;  Johnes  v.  State 
Auditor,  4  Ohio  St.  493.  See  also 
State  V.  Bailey,  7  Iowa  390;  Wheeler 
V.  Northern  Colo.  I.  Co.,  10  Colo.  582; 
State  V.  Milwaukee,  22  Wis.  397. 

13.  Ledbetter  v.  McWilliams,  90  Ga. 
43,  it  is  a  "  pleading." 


65s 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 


mechanic's  lien,*  the  petition  by  a  claimant  in  an  action  for  the 
trial  of  a  right  to  property,*  a  petition  for  removal  of  a  cause  to 
a  federal  court, ^  a  petition  to  the  probate  court  in  behalf  of  an 
infant  to  have  land  set  apart  for  his  benefit,'*  or  by  an  adminis- 
trator for  the  sale  of  lands  belonging  to  the  estate,*  a  petition  in 
drainage  proceedings,®  a  petition  to  county  commissioners  to 
alter  a  town  way,''  or  to  assess  damages  for  the  construction  of  a 
railroad,**  and  a  petition  to  the  mayor  and  aldermen  for  the 
assessment  of  damages  for  a  local  improvement.® 

d.  Miscellaneous. — Bills  of  particulars  are  amendable;*"  and  a 
copy  of  the  note  sued  on  and  attached  to  the  declaration,*  *  a  speci- 
fication of  claim,**  a  statement  of  an  account  against  the  estate  of 
a  decedent  on  a  hearing  before  the  probate  court,**  a  notice  of 
special  matter  accompanying  a  plea  of  the  general  issue,*'*  special 
denials  required  by  statute,**  complaints  in  forms  prescribed  by 
statute,*®  a  referee's  report,*''  a  motion  for  anew  trial,***  a  report  of 
the  evidence  made  upon  a  motion  to  set  aside  a  verdict  as  against 
the  evidence,*®  an  assignment  of  errors,***  a  caveat,**  scire  facias  on 
a  recognizance,**  the  pleadings  by  which  an  issue  is  formed  be- 
tween the  plaintiff  and  the  trustee  in  foreign  attachment,**  notices 
of  pendency  and   returns  to  attachments,*'*  offers  of  judgment,** 

1.  McGee  v.  Piedmont  Mfg.  Co.,  7 
S.  Car.  263;  Challoner  v.  Howard,  41 
Wis.  355;  Witte  V.  Meyer,  11  Wis.  295; 
Huse  V.  Washburn,  59  Wis.  414. 

2.  Cleveland   v.  Tufts,  69  Tex.  580. 

3.  Hall  z/.  Chattanooga  Agricultural 
W^orks,  48  Fed.  Rep.  599;  Glover  v. 
Sheppard,  15  Fed.  Rep.  833. 

.   Hudson  V.  Stewart,  48  Ala.  204. 

5.  Brown  v.  Powell,  45  Ala.  149. 
See  also  Fennell  v.  Tucker,  49  Ala. 
453;  Lucich  V.  Medin,  3  Nev.  93. 

6.  Metty  v.  Marsh,  124  Ind.  18; 
Turns  v.  Simmons,  loi  Ind.  557;  Will- 
iams V.  Stevenson,  103  Ind.  243;  Cool- 
man  V.  Fleming,  82  Ind.  117. 

7.  New  Marlborough  v.  Berkshire 
County,  9  Met.  (Mass.)  424;  Dart- 
mouth V.  Bristol  County,  153  Mass. 
12.  See  also  McKeen  v.  Porter,  134 
Ind.  483.  Compare  Spencer  jy.  Graham, 
5  Ind.  158,  decided  before  the  enact- 
ment of  the  Indiana  Practice  act. 

8.  Grand  Junction  R.,  etc.,  Co.  v. 
Middlesex,  14  Gray  (Mass.)  553 — "in 
the  nature  of  a  civil  action  and  within 
the  spirit  if  not  the  letter  of  the  stat- 
ute." See  also  Sanger  v.  Newton,  134 
Mass.  308. 

9.  Porter  v.  Newton,  133  Mass.   56. 

10.  S^t.  post.  Bills  of  Particulars. 

11.  Chapman  v.  Skellie,  65  Ga.  124; 
Stevens  v.  Campbell,  6  Iowa  538. 

12.  Pierce  v.  Wood,  23  N.  H.  519. 

13.  In  re  Hidden,  23  Cal.  362. 


14.  Rosevelt  v.  Gardiner,  3  N.  J.  L. 
571;  Hopkins  v.  Briggs,  41  Mich.  175; 
Minnock  v.  Eureka,  F.,  etc.,  Ins.  Co., 
90  Mich.  236;  Mason  z/.  Peter,  58  Mich. 
554;  People  V.  Judges  (Mich.,  1888). 
38  N.  W.  Rep.  322. 

15.  Ham  v.  Kerwin,  146  Mass.  378. 

16.  Kennedy  z/.  Vandiver, 55  Ga.  171; 
Akin  V.  Bartow  County,  54  Ga.  59; 
Bailey  v.  Jones,  14  Ga.  384;  Vreeland 
V.  Ryerson,  28  N.  J.  L.  205. 

17.  Wilson  V.  Schorop,  62  Hun  (N. 
Y.)62i,  16  N.  Y.  Supp.  823. 

It  is  always  competent  for  the  court 
to  send  a  referee's  report  back  to  him 
to  make  such  corrections  and  supply 
such  inadvertent  omissions  as  may  be 
made  from  the  report  itself  even  where 
no  exceptions  are  taken.  Runnels  v. 
Moffat,  73  Mich.  188;  Bryant  z'.  Hen- 
dee,  40  Mich.  543. 

A  referee  may  by  permission  of  the 
judge  amend  the  form  of  his  report 
after  it  has  been  filed  in  court  without 
a  formal  order  to  recommit.  Fales  v. 
Hemenway,  64  Me.  373. 

18.  Sec  post.  New  Trial. 

19.  Treatz'.Union  Ins.Co.,56Me.23i. 

20.  See/<7j/,  Assignment  OF  Errors. 

21.  Daniel  v.  Phelps,  86  Ga.  363. 

22.  Peacock  v.  People,  83  111.  331. 

23.  Butman  v.  Hobbs,  35  Me.  227. 

24.  Vanderheyden  v.  Gary,  38  How. 
Pr.  (N.  Y.  Supreme  Ct.)  367. 

25.  Eagan  v.  Moore,  2  Civ.  Pro.  Rep. 


656 


Of  Pleadings,  etc.,  at  AMENDMENTS.   Common  Law,  under  Codes,  etc. 

the  statement  required  to  be  signed  and  verified  upon  confession 
of  judgment,*  a  rule  upon  which  money  has  been  brought  into 
court, *-*  a  motion  and  notice  in  proceedings  against  a  sheriff  for 
failing  to  pay  over  on  demand,^  a  bill  of  costs  and  the  affidavit 
accompanying  it,*  a  bond  in  replevin,*  a  bond  for  a  ne  exeat,^ 
interrogatories  filed  on  the  return  of  an  attachment  against  a 
sheriff  for  not  returning  process,''  pleadings  in  civil  suits  to  re- 
cover penalties  for  violation  of  municipal  ordinances,*  a  summary 
proceeding  by  notice  and  motion,®  plaintiff's  sworn  statement  in 
an  action  for  injuries  from  a  defective  highway,*®  the  pleadings  in 
proceedings  for  judgment  against  delinquent  lands  for  taxes,**  a 
notice  served  with  the  summons  stating  the  amount  for  which 
judgment  will  be  taken  in  case  of  default,**  a  citation  to  a  creditor 
in  a  poor  debtor's  disclosure.*^ 

A  general  notice  of  appearance  may  be  amended  so  as  to  make 
it  special.**  A  notice  of  motion  may  be  amended  so  as  to  make  it 
conform  to  a  rule  of  court  by  stating  the  grounds  of  the  motion.** 
In  an  election  contest  the  statement  of  the  grounds  of  contest 
may    be    amended,**    and     the    specifications     in    an     answer 


(N.  Y.  C.  PI.)  300;  Stark  v.  Stark,  2 
How.  Pr.  N.  S.  (N.  Y.  Supreme  Ct.) 
360.  Compare  the  earlier  cases  of 
Riggs  V.  Waydell,  17  Hun  (N.  Y.) 
515,  affirmed,  78  N.  Y.  586. 

1.  Mitchell  V.  Van  Buren,  27  N.  Y. 
300;  Cook  V.  Whipple,  55  N.  Y.  150; 
Symson  v.  Silheimer,  40  Hun  (N.  Y.) 
116;  Thorp  'J.  Piatt,  34  Iowa  314. 

Where  a  confession  of  judgment 
does  not  state  a  cause  of  action  an 
amendment  cannot  be  allowed  after 
trial  unless  the  evidence  shows  a  suf- 
ficient cause  of  action.  Southern 
Porcelain  Mfg.  Co.  v.  Thew,  5  S. 
Car.  5. 

2.  Freeze  v.  Marston,  5  N.  H.  220. 
See  also  Jones  v.  Hoar,  5  Pick.  (Mass.) 
285. 

3.  Walker  v.  Turnipseed,  8  Ala. 
679. 

4.  Burnham  v.  Hays,  3  Cal.  115,  be- 
cause it  is  a  "  proceeding."  But  see 
Jeffery  v.  Hursh,  58  Mich.  247. 

5.  Dale  v.  Gilbert  (Ct.  of  App.),  40 
N.  Y.  St.  Rep.  353;  Smith  v.  Howard, 
23  Ark.  203.  Contra,  Simpson  v.  Wil- 
cox (R.  I.,  1892),  25  Atl.  Rep.  391. 

G.   Fitzgerald  v.  Gray,  59  Ind.  254. 

7.  People  V.  Brown,  6  Cow.  (N.  Y.) 
41. 

8.  Bristol  V.  Burrow,  5  Lea  (Tenn.) 
128;  Childress  v.  Nashville,  3  Sneed 
(Tenn.)  347;  Washington  v.  Frank,  i 
Jones  (N.  Car.)  436. 

9.  Palmer  v.  Fitts,  51  Ala.  489. 


10.  Harvey  v.  Northwood,  65  N.  H. 
117. 

11.  Walsh  V.  People,  79  111.  521,  by 
express  statute,  however. 

12.  Cassidy  v.  Boyland,  15  Civ.  Pro. 
Rep.  (N.  Y.  City  Ct.)  320,  holding  that 
the  amendment  should  be  made  only 
upon  notice. 

13.  Driscoll  v.  Stanford,  74  Me.  103. 
See  Perry  v.  Plunkett,  74  Me.  328. 

14.  Hohorst  v.  Hamburg-American 
Packet  Co.,  38  Fed.  Rep.  273;  U.  S. 
V.  Yates,  6  How.  (U.  S.)  605. 

Where  an  infant  defendant  appears 
by  attorney  the  proceedings  may  be 
amended  by  entering  an  appearance 
by  guardian.  Smith  v.  Minor,  i  N.  J. 
L.  416. 

15.  Sweeney  v.  Stanford, 60  Cal. 362, 
holding  it  reversible  error  to  refuse 
where  the  grounds  of  the  motion  were 
stated  in  an  affidavit  attached  to  the 
notice. 

16.  Minor  v.  Kidder,  43  Cal.  229; 
Preston  v.  Culbertson,  58  Cal.  198; 
In  re  Contested  Election,  10  Phila. 
(Pa.)  579;  In  re  Contested  Elections, 
2  Brewst.  (Pa.)  i ;  In  re  Election  Cases, 
65  Pa.  St.  20,  holding  that  the  court 
may  amend  as  at  common  law.  Con- 
tra. Ford  V.  Wright,  13  Minn.  518. 

In  Halstead  v.  Rader,  27  W.  Va.  818, 
it  was  held  that  a  notice  which  does 
not  state  some  substantial  ground  of 
contest  cannot  be  amended.  See  also 
Ralston  v.  Meyer,  34  W.  Va.  737. 


I  Encyc.  PI.  &  Pr.— 42. 


657 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Summons. 


therein.*  The  statement  of  the  parties  in  an  agreed  case  cannot  in 
general  be  amended.®  In  proceedings  lo  collect  a  local  assessment 
an  informal  special  tax  bill  cannot  be  amended  by  the  court. ^ 
■Exceptions  to  an  auditor's  report  are  not  pleadings  in  such  a  sense 
as  to  give  the  right  of  amendment  by  adding  new  exceptions 
after  other  exceptions  have  been  filed  and  disallowed  and  the 
time  for  excepting  has  elapsed.^ 

Where  no  sum  is  mentioned  in  the  minutes  of  the  recognizance 
for  costs  upon  a  writ,  or  where  the  name  of  the  person  recognized 
is  omitted,  the  court  has  no  power  to  amend  the  defect.* 

It  has  been  held  that  a  petition  for  certiorari  must  set  forth 
specifically  the  ground  of  error,  and  is  not  amendable.® 

IV.  Of  Process— 1.  Of  Writ  or  Summons — a.  L\  General. — By 
the  Common  Larv,  process  was  not  amendable  where  it  appeared  upon 
the  face  of  it  that  it  was  absolutely  void.''  If  it  were  not  a 
nullity,  the  old  rule  w^as  that  an  amendment  would  be  allowed 
where  there  was  anything  to  amend  by ;  **  but  even  this  was  not 


In  Loomis  v.  Jackson,  6  W.  Va.  617, 
it  was  held  that  where  the  proceed- 
ings are  before  a  body  which  has  no 
common  law  jurisdiction,  but  becomes 
functus  offi.cio  as  soon  as  the  cause  is 
determined,  there  can  be  no  amend- 
ment whatever. 

1.  Ill  re  Contested  Elections,  i 
Brewst.  (Pa.)  67. 

2.  See  ante.  Agreed  Case,  V,  3. 

3.  Galbreath  v.  Newton,  45  Mo. 
App.  312.  See  also  Chemung  Nat. 
Bank  v.  Elmira,  39  How.  Pr.  (N.  Y. 
Supreme  Ct.)  373. 

4.  Suttles  V.  Smith,  75  Ala.  830. 
6.   Peck  V.  Smith,  3  Vt.  265. 

6.  Western,  etc.,  R.  Co.  v.  Jackson, 
81  Ga.  478;  Singer  Mfg.  Co.  v.  Walker, 
77  Ga.  649.  Contra  in  New  York, 
People  V.  Cook,  62  Hun  (N.  Y.)  303. 

7.  Leetch  v.  Atlantic  Mut.  Ins.  Co., 
4  Daly  (N.  Y.)  521;  Brigham  v.  Este,  2 
Pick.  (Mass.) '-420;.  Kyles  v.  Ford,  2 
Rand.  (Va.)  i.' 

Void  Process. — The  Georgia  Code,  § 
3490, provides  that  "void  process,  or 
where  there  is  no  process  or  waiver 
thereof,  cannot  be  amended." 

In  Scarborough  v.  Hall,  67  Ga.  576, 
it  was  held  that  where  the  clerk  failed 
to  attach  any  process  to  the  declara- 
tion, and  it  •vas  servedalone,  it  was  not 
competent  to  amend  at  a  subsequent 
term  by  attaching  process  and  order- 
ing service. 

In  such  a  case,  if  there  has  been  an 
acknowledgement  of  service  without  a 
waiver  of  process,  it  is  necessary  to  show 
that   the  process   was  intended  to  be 


waived,  and  that  by  accident  t  r  mis- 
take the  entry  of  such  waiver  was 
omitted  in  crder  to  entitle  the  plaintiff 
to  supply  the  omission  by  a  nunc  pro 
tunc  amendment.  Ross  v.  Jones,  52 
Ga.  22. 

Where  a  complaint  and  summons 
are  served  without  the  name  of  any 
court  appearing  therein  the  summons 
is  not  amendable.  Ward  v.  Stringham, 
I  Code  Rep.  (N.  Y.  Supreme  Ct.)  118. 

An  amendment  of  a  summons  in  the 
superior  court  that  would  if  made  in 
the  justice  court  have  given  the  justice 
jurisdiction  which  he  did  not  possess 
before  the  amendment  will  not  be  al- 
lowed. Allen  V.  Jackson,  86  N.  Car. 
321.  Compare  McLean  v.  Breece,  113 
N.  Car.  390. 

Process  Not  Void. — A  summons  which 
states  that  the  complaint  is  "annexed," 
when  in  fact  no  complaint  is  annexed, 
and  which  omits  to  state  when  and 
where  a  complaint  will  be  filed,  is  not 
a  nullity  and  may  be  amended.  Keeler 
V.  Belts,  3  Code  Rep.  (N.  Y.)  183; 
Foster  v.  Wood,  i  Abb.  Pr.  N.  S.  (N. 
Y.  C.  PI.)  150. 

In  Georgia,  under  the  judiciary  act 
of  1799,  which  required  the  process  to 
be  "annexed"  to  the  writ,  if  it  were 
indorsed  on  the  back  of  the  writ  and 
omitted  to  state  the  case  or  name  the 
defendant  it  was  amendable.  Smith 
V.  Morris,  29  Ga.  339. 

8.  Leetch  v.  Atlantic  Mut.  Ins.  Co., 
4  Daly  (N.  Y.)  523. 

Something  to  Amend  By. — In  Dean  v. 
Swift,  II  Vt.  331,  an  original  writ  con- 


658 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Sammons. 


adhered  to,  and  amendments  have  been  allowed  where  there  was 
nothing  to  amend  by.* 

Under  the  Modern  statutes  authorizing  amendments  of  any  pleading, 
process,  or  proceeding,'"^  in  form  or  substance,  an  amendment  will 
generally  be  allowed  whenever  it  is  in  furtherance  of   justice,' 

are  defective  neither  can  be  amended, 
as  there  is  nothing  to  amend  by. 

1.  I  Tidd  Pr.  130;  Rutherford  v. 
Mein,  2  Smith  392,  where  it  was  urged 
that,  the  writ  being  radically  defective, 
the  application  was  not  to  amend,  but 
to  supply;  but  the  court  allowed  it 
upon  the  authority  of  Carr  v.  Shaw,  7 
T.  R.  295,  where  it  was  said  that  "  the 
amendment  was  allowed  without  any- 
thing dehors  to  amend  by." 

2.  Commission  to  Take  Testimony. — In 
Leetch  v.  Atlantic  Mut.  Ins.  Co.,  4 
Daly  (N.  Y.)  518,  it  was  held  that  a 
commission  to  take  testimony  was 
either  a  "process"  or  "proceeding," 
and  therefore  amendable  under  the 
New  York  statute;  and  after  it  had 
been  executed  and  returned  the  court 
indorsed  upon  it  the  allowance  of  the 
interrogatories  and  a  direction  as  to 
the  return,  such  as  he  would  have 
done  had  he  been  applied  to  before 
the  commission  was  dispatched. 

In  Nicks  v.  Rector,  4  Ark.  251,  a 
commission  to  take  testimony  was 
held  to  be  amendable  as  process. 

3.  Without  Prejudice  to  Acquired 
Bights. — Process  will  not  be  amended 
where  third  parties  have  acquired 
rights  which  will  be  prejudiced  there- 
by.    Phillips  V.   Holland,   78   N.   Car. 

31- 

Summons  Changed  to  Attachment. — It 
was  held  in  Matthews  v.  Blossom,  15 
Me.  400;  Ordway  v.  Wilbur,  16  Me. 
263,  and  Carter  v.  Thompson,  15  Me. 
464,  that  the  court  could  permit  a 
writ  of  original  summons  to  be 
changed  to  a  writ  of  attachment. 

Description  of  the  Justice. — An  omis- 
sion in  a  justice's  summons  to  de- 
scribe the  justice  as  of  the  county  for 
which  he  was  elected  is  amendable 
after  appearance  by  the  defendant. 
Drake  v.  Berry,  42  N.  J.  L.  60. 

Writ  of  Beplevin. — A  writ  of  replevin 
was  amended  on  terms  by  changing  it 
from  cepit  and  detinet  to  detinet  alone 
after  its  execution  and  appearance  by 
defendant,  where  it  appeared  that  the 
attorney  issuing  it  misapprehended 
the  facts  in  the  case.  Smith  v.  Fri- 
2ell,'i  How.  Pr.  (N.  Y.)  148. 

In   Jaques  v.   Sanderson,   8    Gush. 


tained  a  wrong  return  day,  but  it  was 
returnable  to  the  right  term,  and  it  was 
held  sufficient  to  amend  by. 

In  Dwight  V.  Merritt,  iS  Blatchf. 
(U.  S.)  305,  it  was  said  that  there  must 
be  something  to  amend  and  to  amend 
by.  See  also  U.  S.  v.  Turner,  50  Fed. 
Rep.  734. 

In  Course  v.  Stead,  4  Dall.  (U.  S.) 
22,  a  writ  of  error  was  directed  to  the 
judges,  etc.,  of  the  district  aforesaid, 
and  no  district  was  previously  named, 
but  the  [attestation  of  the  record  was 
in  the  proper  district,  and  it  was  prop- 
erly indorsed,  etc.  It  was  held  that 
there  was  enough  to  amend  by. 

In  U.  S.  V.  Rose,  14  Fed.  Rep.  681, 
an  amendment  was  refused  apparently 
because  there  was  nothing  to  amend 
by. 

In  Kavanaugh  v.  Brown,  i  Tex.  481, 
the  writ  was  amended  by  the  petition. 
But  in  Texas  the  petition  is  filed  be- 
fore issuing  the  writ. 

In  Jones  v.  Cox,  7  Mo.  173,  an 
amendment  was  allowed  to  conform 
to  the  declaration,  the  latter  preceding 
the  writ  in  Missouri. 

In  Emmons  v.  Bailey,  i  Strobh.  (S. 
Car.)  422,  the  writ  was  amended  to 
conform  to  the  declaration;  also  in 
Wilday  v.  Wight,  71  111.  374. 

In  Benner  z/.  Frey,  i  Binn.  (P^.)366, 
habeas  corpus  for  the  removal  of  a  case 
was  amended  by  the  praecipe. 

In  Porter  v.  Miller,  7  Tex.  468,  a 
writ  of  sequestration  was  amended  by 
the  petition. 

In  Jackson  v.  Fletcher,  i  Morr. 
(Iowa)  304,  a  clerical  mistake  in  suing 
out  a  writ  in  assumpsit  instead  of  debt 
was  amended  by  the  praecipe. 

In  Knapp  v.  Palmer,  i  Cai.  (N.  Y.) 
486,  a  writ  of  certiorari  was  amended 
according  to  the  affidavit  on  which  it 
was  obtained. 

In  Tice  v.  Monfort,  3  N.  J  L.  632, 
it  was  held  that  an  original  writ  is  not 
amendable,  as  there  is  nothing  to 
amend  by.  Hence,  in  Anonymous,  6 
N.  J.  L.  166,  a  writ  of  dower  was  held 
not  to  be  amendable. 

In  Johnson  v.  Kentucky  Bank,  5  T. 
B.  Mon.  (Ky.)  119,  it  was  held  that 
where  both  the  writ   and  declaration 


659 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Sammons. 


if  the  court  has  jurisdiction  of  the  parties  and  of  the  action  in 
which  the  amendment  is  sought  to  be  made.*  And  defects  in 
the  process  amendable  in  the  trial  court  will  be  regarded  as 
amended  in  the  appellate  court.* 

b.  Federal,  How  Far  Controlled  by  State  Practice. 
— A  federal  statute  provides  that  the  practice  pleadings,  and 
forms  and  modes  of  proceeding  in  civil  causes,  other  than  equity 
and  admiralty  causes,  in  the  circuit  and  district  courts,  shall  con- 
form as  near  as  may  be  to  the  pleadings  and  forms  and  modes  of 


(Mass.)  271,  a  writ  of  replevin  was 
amended  by  inserting  an  averment  of 
the  value  of  the  property. 

In  Judson  v.  Adams,  8  Cush. 
(Mass.)  556,  a  writ  of  replevin  in  an 
action  pending  in  Norfolk,  which  al- 
leged the  taking  of  the  goods  to  have 
been  in  Suffolk,  was  amended  by  alleg- 
ing the  taking  to  have  been  in  Nor- 
folk. 

The  amendment  of  a  writ  of  replev- 
in, after  the  execution  of  the  statu- 
tory bond,  by  inserting  other  property 
in  the  writ  without  the  knowledge  or 
consent  of  the  sureties,  by  stipulation 
of  the  respective  parties  discharges 
the  sureties  from  liability.  Bolton  v. 
Nitz,  88  Mich.  354. 

Showing  Sammons  to  Be  an  Alias. — 
An  original  summons  may  be  amended 
so  as  to  show  that  it  was  an  alias. 
Huss  V.  Central  R.  &  B.  Co.,  66  Ala. 
472;  Alabama,  etc.,  R.  Co.  v.  Hawk, 
72  Ala.  112. 

Audita  Querela. — In  Stone  v.  Cham- 
berlain, 7  Gray  (Mass.)  206,  a  writ 
of  audita  querela  improperly  called  in 
the  declaration  an  action  of  tort  was 
amended  by  striking  out  those  words. 

Writ  of  Right. — In  Boston  Poor  Over- 
seers V.  Otis,  20  Pick.  (Mass.)  38,  it 
was  held  that  a  writ  of  right  is  amend- 
able. 

Writs  of  Mandamus. — Alternative  and 
peremptory  writs  of  mandamus  may 
be  amended.  State  v.  Francis,  95  Mo. 
44;  State  V.  Minneapolis,  etc.,  R.  Co., 
39  Minn.  219. 

Changing  Form  of  Capias. — In  Maine 
a  capias  writ  may  be  amended  by 
changing  its  form  to  capias  or  attach- 
ment. Cameron  v.  Tyler,  71  Me. 
27. 

Changing  Civil   to  Penal  Action. — In  . 
Walton  V.    Kirby,    2   Hayw.  (N.  Car.) 
174,  it  was  held  that  a  writ  could  not 
be  amended  so  as  to  convert  a  civil 
into  a  penal  action. 

Covenant  to  Debt. — And    in    Anonyr 


mous,  I  Hayw.  (N.  Car.)  401,  that  the 
writ  could  not  be  altered  from  cove- 
nant to  debt. 

1.  Leetch  v.  Atlantic  Mut.  Ins.  Co., 
4  Daly  (N.  Y.)  523:  White  v.  Hart,  35 
Ga.  269;  State  v.  Bryant,  5  Ind.  192; 
Polack  7/.  Hunt,  2  Cal.  193;  Culvert/. 
Whipple,  2  Greene  (Iowa)  365;  Jones 
V.  Miller,  i  Swan  (Tenn.)  319.  See 
also  Anonymous,  4  Hill  (N.  Y.)  603; 
Burton  v.  Buckeye  Ins.  Co.,  26  Ohio 
St.  467. 

In  New  York,  the  Marine  Court, 
being  a  court  of  record,  has  authority 
to  amend  an  irregularity  in  a  sum- 
mons.     Gribbon   v.    Freel,    93    N.  Y. 

93- 

Want  of  Jurisdiction. — The  New  York 
Code  Civ.  Pro.,  §  3165,  subd.  2,  pro- 
vides that  when  an  order  from  the 
City  Court  of  New  York  directing  ser- 
vice of  summons  without  the  city  or 
by  publication  is  granted,  the  sum- 
mons must  state  that  the  defendant  is 
required  to  answer  within  ten  days; 
but  that  if  a  summons  requiring  de- 
fendant to  answer  within  a  shorter 
time  has  been  issued  before  an  order 
is  granted,  the  justice  may  direct  that 
the  summons  be  amended,  and  there- 
upon the  summons  published  or  served 
without  the  city,  pursuant  to  the  or- 
der, must  correctly  state  the  time.  It 
was  held  that  service  of  summons  upon 
a  non-resident  requiring  him  to  answer 
within  six  days,  where  no  subsequent 
order  of  amendment  was  made,  con- 
ferred no  jurisdiction  over  the  defend- 
ant, and  tliat  an  amendment  of  such 
summons  could  not  be  made  after 
entry  of  judgment  on  defendant's  de- 
fault. Bell  V.  Good  (City  Ct.),  19  N.  Y. 
Supp.  893. 

2.   Kaufman  v.  Sampson,  9  Ind.  520. 

It  was  held  in  Glisson  v.  Herring,  2 
Dev.  (N.  Car.)  156,  that  where  there 
was  a  fatal  variance  between  the  writ 
and  declaration  the  Supreme  Court  had 
no  Power  of  amendment. 


660 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Sammons. 


proceeding  existing  at  the  time  in  like  causes  in  the  courts  of 
record  of  the  state  within  which  such  circuit  or  district  courts  are 
held,  any  rule  of  court  to  the  contrary  notwithstanding.*  Another 
federal  statute  provides  for  the  amendment  of  defects  in  process  ;* 
and  it  has  been  held  that  while  the  practice  in  the  state  courts 
may  enlarge  the  power  of  amendment  in  the  federal  courts,  it 
cannot  diminish  such  powers  as  are  conferred  by  the  statute  last 
mentioned.^  And  where  Congress  has  by  statute  pointed  out  a 
specific  course  of  procedure,  or  has  legislated  generally  upon  the 
subject-matter  embraced  or  involved  in  the  proceeding  sought  to 
be  pursued,  such  legislation  must  be  followed  although  opposed 
to  the  forms  and  modes  of  proceeding  prevailing  in  the  state 
courts  and  established  by  the  state  statutes."* 

c.  Title,  Caption,  Indorsement — Title. — Where  the  title  of 
the  action  is  wrong  in  the  process  it  may  be  amended  on  applica- 
tion to  the  court.® 


1.  U.  S.  Rev.  Stat.,§  914.  See  also 
supra.  III,  I,  c. 

Actions  for  penalties  brought  in  the 
name  of  the  United  States  in  a  federal 
court  sitting  in  New  York  correspond 
with  those  brought  by  the  state  in  the 
name  of  "the  People  of  the  State  of  New 
York,"  and  the  summons  served  must 
be  indorsed  with  a  reference  to  the 
statute  by  which  the  action  for  penalty 
is  given,  as  required  by  the  New  York 
statute.  This  indorsement  is  a  ma- 
terial part  of  the  process,  and  if  omit- 
ted it  cannot  be  inserted  by  amend- 
ment. U.  S.  V.  Rose,  14  Fed.  Rep. 
63i,  where  the  reference  to  the  statute 
was  not  supplied  by  the  praecipe; 
Brown  v.  Pond,  5  Fed.  Rep.  31,  5  Fed. 
Rep.  41. 

2.  U.  S.  Rev.  Stat.,  §954- 

3.  Norton  v.  City  of  Dover,  14  Fed. 
Rep.  106.  See  also  Tobey  v.  Clafiin, 
3  Sumn.  (U.  S.)  379. 

4.  Dwight  V.  Merritt,  18  Blatchf. 
(.U.  S.)  305.  In  that  case  a  suit  at 
common  law  was  commenced  in  the 
federal  Circuit  Court  sitting  in  New 
York  by  serving  on  the  defendant  a 
paper  purporting  to  be  a  summons  in 
the  form  prescribed  by  the  statute  of 
New  York  for  commencing  civil  ac- 
tions, signed  by  the  plaintiff's  attorney, 
but  not  under  the  seal  of  the  court  nor 
signed  by  the  clerk  of  the  court.  The 
defendant  moved  before  appearing 
generally  in  the  suit  to  set  aside  the 
summons,  and  the  plaintiff  asked  to  be 
allowed  to  amend  the  summons  nunc 
pro  tunc  by  having  the  seal  and  the 
signature  added.  It  was  held  (i)  that 
the  summons  is  process  and  did  not 


conform  to  §  911  of  the  U.  S.  Rev. 
Stat,  and  was  void;  (2)  the  provisions 
of  said  §  911  are  not  abrogated  by  § 
914  of  the  U.  S.  Rev.  Stat.,  providing 
that  the  federal  courts  shall  follow 
the  state  practice  as  near  as  may  be; 
(3)  that  the  summons  could  not  be 
amended  under  the  federal  statutes  of 
amendment,  §§  948  and  954  Rev.  Stat., 
because  it  was  not  process  of  and  had 
not  been  issued  from  the  court;  (4) 
that  the  summons  must  be  set  aside. 

5.  Allen  v.  Allen,  14  How.  Pr.  (N. 
Y.  Supreme  Ct.)  24S;  Dexter  v.  Hoo- 
ver, 2  Cow.  (N.  Y.)  526;  State  v.  Jus- 
tice, 24  N.  J.  L.  413;  Readington  v. 
Dilley,  24  N.  J.  L.  209.  See  also  Bishop 
V.  Weber,  139  Mass.  411. 

Partnership  Instead  of  Corporation. — 
Where  a  summons  was  issued  in  the 
name  of  a  partnership  instead  of  a 
corporation,  the  mistake  being  mani- 
fest, it  was  properly  corrected  on  mo- 
tion after  judgment.  Thurber-Why- 
land  Co.  v.  Klittner  (Supreme  Ct.),  16 
N.  Y.  Supp.  828. 

Corporation  Instead  of  Voluntary  Asso- 
ciation.— Where  an  action  was  brought 
against  a  defendant  described  as  a 
corporation  which  was  in  fact  a  volun- 
tary association,  the  title  of  the  sum- 
mons was  amended  by  inserting  the 
names  of  the  members.  Evoy  v.  Ex- 
pressmen's Aid  Soc.  (Supreme  Ct.),  21 
N.  Y.  Supp.  641. 

Striking  Out  Deceased  Party.  —  The 
summons  may  be  amended  by  striking 
out  the  name  of  a  party  plaintiff  who 
died  before  the  summons  was  served. 
Fink  V.  Mahattan  R.  Co.  (C.  PI.),  29 
N.  Y.  St.  Rep.  153- 


661 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Summons. 


Caption. — Where  the  process  does  not  run  in  the  name  of  the 
proper  authority  it  is  amendable.* 

Indorsement. — The  indorsement  on  a  writ  may  be  amended.* 
d.  The  Direction. — The  omission  to  insert  a  proper  direc- 
tion ni  a  writ  is  not  fatal  if  it  is  served  by  the  proper  officer  *  in 
a  regular  manner,*  and  an  objection  based  thereon  may  be  obvi- 


1.  An  original  summons  not  running 
in  the  name  of  the  state  may  be 
amended  even  after  plea  in  abatement. 
Mitchell  V.  Conley,  13  Ark.  414.  See 
also  Johnson  v.  Provincial  Ins.  Co.,  12 
Mich.  216;  McFadden  v.  Fortier,  20 
111.    509;    Harris    v.    Jenks,    2    Scam. 

(3  111.)  475- 

An  Order  of  Arrest  of  the  defendant  in 
a  suit  is  a  writ  or  process  within  the 
meaning  of  the  constitution  and  should 
run  in  the  name  of  the  state;  but  such 
style  is  matter  of  form,  and  may  be 
amended  on  motion.  Ilsley  v.  Harris, 
10  Wis.  95. 

See  also  infra,  V.,  5. 

2.  So  as  to  Add  Special  Counts. — 
It  is  not  error  to  permit  the  plain- 
tiff to  amend  the  indorsement  on 
his  writ  so  that  he  may  add  special 
counts  to  his  declaration.  Moore  v. 
Smith,  19  Ala.  774. 

Date  of  Copy  of  Note. — Where  the  date 
of  the  note  in  the  copy  indorsed  upon 
the  process  differed  from  the  note 
upon  which  the  action  was  brought 
the  plaintiff  was  allowed  to  amend. 
Kennedy  v.  Holden,  3  Strobh.  (S. 
Car.)  175. 

To  Conform  to  the  Declaration. — It 
is  not  a  defense  in  an  action  on  a 
recognizance  of  special  bail  that  the 
plaintiff  was  permitted  to  amend  the 
indorsement  on  the  writ  to  correspond 
with  the  facts  and  the  declaration,  the 
amendment  only  changing  the  descrip- 
tion and  not  the  cause  of  action.  Enos 
V.  Aylesworth,  8  Ohio  St.  322.  See 
also  Miller  v.  Gages,  4  McLean  (U.  S.) 
436. 

3.  Campbell  v.  Stiles,  9  Mass.  217; 
Hearsey  v.  Bradbury,  9  Mass.  95; 
Woods  V.  Ross,  II  Mass.  276;  Chad- 
wick  V.  Divol,  12  Vt.  499,  where  the 
writ  was  directed  to  the  sheriff  of  the 
wrong  county,  but  properly  served  by 
the  sheriff  of  another  county;  Smets 
V.  Wethersbee,  R.  M.  Charlt.  (Ga.)  537; 
Mitchell  V.  Long,  74  Ga.  94;  Telford 
V.  Coggins,  76  Ga.  683;  State  v.  Hall, 
78  Me.  37  ;  Simcoke  v.  Frederick, 
I  Ind.  54;  Brown  v.  Dudley,  33  N. 
H.    511  ;    Parker    v.     Barker,   43    N. 


H.  35,  where  it  was  said  that  "the 
motion  to  amend  could  be  properly 
granted  only  upon  its  being  shown 
by  affidavit  that  it  might  properly 
have  been  so  made  originally,  unless 
that  appears  on  the  face  of  the  writ 
and  return." 

Showing  Disqualification  of  Regular 
Officers. — Where  a  writ  was  directed  to 
the  coroner  instead  of  the  sheriff,  the 
plaintiff  was  allowed  to  amend,  after  a 
motion  to  quash,  by  stating,  as  a  rea- 
son why  it  was  so  directed,  that  the 
sheriff  was  disqualified  on  account  of 
interest.  Moss  v.  Thompson,  17  Mo. 
405;  Thompson  v.  Bremage,  14  Ark. 
59;  Oliphant  v.  Dallas,  15  Tex.  138; 
Gay  V.  State,  20  Tex.  504. 

Amendment  Cannot  Create  Authority. — 
Where  a  writ  returnable  to  the  County 
Court  was  directed  by  the  magistrate 
who  signed  it  in  these  words,  "To 
any  sheriff  or  constable  in  the  state, 
or  to  E.  K.  G.,  constable  of  G.,"  omit- 
ting to  state  therein  the  statute  rea- 
sons for  making  a  special  authoriza- 
tion, and  the  writ  was  served  by  G. 
out  of  the  town  of  which  he  was  con- 
stable, it  was  held  that  the  service  by 
him  was  void  and  that  the  court  had 
no  power  to  permit  the  magistrate 
who  signed  the  writ  to  amend  the 
direction,  after  the  case  bad  been 
entered  in  court,  by  inserting  therein 
the  statute  reasons  for  making  the 
authorization — "there  was  neither  a 
general  nor  special  authority  when 
the, service  was  made,  and  without  3. 
judicial  act  of  the  magistrate  no  au- 
thority could  be  conferred."  Dolbear 
V.  Hancock,  19  Vt.  388. 

4.  Direction  Concerning  Repleyin  Bond. 
— An  officer  who  was  directed  by  a 
writ  of  replevin  to  take  certain  goods 
provided  the  plaintiff  should  give  a 
bond  to  the  defendant  "with  suffi- 
cient surety  or  sureties  in  the  sum  of 

dollars,  being  twice  the  value  of 

the  said  goods,"  took  a  bond  with  two 
sureties  and  served  the  writ.  It  was 
held  that  the  plaintiff  might  amend 
his  writ  by  striking  out  the  v.ords 
"surety  or,"  and  that  tht  service  was 


662 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Summons. 


ated  by  amendment.* 

e.  Misnomer. — The  common  Law  does  not  sanction  the  use  of 
anything  else  than  the  true  Christian  and  surnames  of  the  parties 
to  the  suit ;  *  and  a  mistake  in  either  is  fatal  to  the  validity  of 
legal  process  where  no  statutory  power  of  amendment  exists,  un- 
less there  is  something  in  the  record  to  amend  by.' 

By  statute. — But  under  the  statutes  of  amendment  all  kinds  of 
misnomer  are  generally  amendable  where  the  change  does  not 
result  in  an  unauthorized  alteration  of  the  real  parties.* 


\ 


valid.  Poyen  v.  McNeill,  lo  Met. 
(Mass.)  291. 

Direction  to  Attach  the  Body. — If  a 
writ  erroneously  contain  a  direction 
to  arrest  the  defendant,  but  is  served 
by  summons,  it  may  be  amended. 
Harvey  v.  Cutts,  51  Me.  604,  without 
terms;  Clement  v.  Clement,  18  N.  H. 
611.  See  also  Turner  v.  Friend,  59 
Me.  290 ;  Matthews  v.  Blossom,  15 
Me.  400. 

Inserting  Defendant's  Name. — Where 
the  writ  directed  the  officer  to  "  attach 

the  goods  or  estate  of ,  and  for 

want  thereof  to  take  the  body  of  the 
said  W.  D.,"  it  was  held  amendable  by 
inserting  the  defendant's  name  in  the 
blank  space.  McGuire  v.  Davis,  8 
Cush.  (Mass.)  356. 

1.  Cases  cited  in  the  preceding 
notes. 

In  Anthony  v.  Beebe,  7  Ark.  447,  it 
was  held  that  an  amendment  could 
not  be  made  after  a  plea  in  abatement 
filed  on  account  of  the  defect.  But 
that  case  is  overruled  by  Mohr  v. 
Sherman,  25  Ark.  7. 

See  also  infra,  V.,  5. 

2.  Barber  v.  Smith,  41  Mich.  138. 

3.  Crafts  v.  Sikes,  4  Gray  (Mass.) 
194.  See  also  Final  v.  Backus,  18 
Mich.  218;  Albers  v.  Whitney,  i  Story 
(U.   S.)  310;    Lake  v.   Morse,    11   111. 

587. 

In  Thanhauser  v.  Savins,  44  Md. 
410,  the  plaintiff  having  declared  in 
the  name  of  "  B.  Savins"  was  not 
allowed  to  amend  by  inserting  "Ben- 
jamin Savins,"  his  full  name,  the 
Maryland  statute  providing  only  for 
amendment  in  case  of  misnomer  of  a 
defendant. 

In  Furniss  v.  Ellis,  2  Brock.  (U.  S.) 
14,  a  mistake  in  the  name  of  one  of 
the  plaintiffs  was  amended  by  the  prae- 
cipe. 

4.  Final  v.  Backus,  18  Mich.  218; 
Elliott  V.  Clark,  18  N.  H.  422. 

Uassachusetts.  —  A     writ     against 


Charles  Langmaid  actually  served  upon 
Chase  Langmaid  was  amended,  after 
default  of  the  defendant  and  without 
notice  to  Chase,  by  substituting  Chase 
for  Charles.  Langmaid  v.  Puffer,  7 
Gray  (Mass.)  378. 

In  Crafts  v.  Sikes,  4  Gray  (Mass.) 
194,  a  writ  sued  out  in  the  name  of 
Justus  Crafts  was  amended  by  substi- 
tuting therefor  the  name  of  Justus 
Stark. 

In  Wight  V.  Hale,  2  Cush.  (Mass.) 
486,  "Wight"  was  substituted  for 
"Wright,"  as  the  name  of  one  of  the 
plaintiffs,  without  affecting  the  attach- 
ment. 

In  Diettrich  v.  Wolffsohn,  136  Mass. 
335.  a  writ  against  "William  Robin- 
son "  was  amended  by  inserting  the 
words  "otherwise  called  William  J. 
Robinson  "  without  affecting  the  lien 
of  an  attachment. 

An  amendment  of  a  writ  of  attach- 
ment by  changing  the  name  of  the 
plaintiff  from  "  Mary  Cain  "  to  "  Ann 
Cain  "  does  not  vacate  an  attachment 
of  funds  in  the  hands  of  a  person  sum- 
moned as  trustee  so  as  to  give  an 
assignment  to  a  third  person,  made 
before  the  amendment,  priority  over 
the  attachment.  Cain  v.  Rockwell, 
132  Mass.  193. 

Indiana. — Misnomer  of  the  plaintiff 
was  held  to  be  amendable  in  Wood- 
ward V.  Wous,  18  Ind.  296,  provided 
the  real  plaintiff  is  not  changed. 

In  Nimmon  v.  Worthington,  i  Ind. 
376,  the  writ  was  amended  by  insert- 
ing the  plaintiff's  Christian  name  so 
as  to  conform  to  the  praecipe. 

And  in  Beck  v.  Williams,  5  Blackf. 
(Ind.)  374,  by  changing  the  plaintiff's 
surname,  the  same  being  right  in  the 
praecijpe. 

In  Weaver  v.  Jackson,  8  Blackf. 
(Ind.)  5,  misnomer  of  the  defendant's 
Christian  name  was  corrected  by 
amendment   after  plea  in  abatement. 

A  like  amendment  was  allowed   in 


663 


Of  Proccs. 


AMENDMENTS. 


Of  Writ  or  Sammons. 


Inserting  Christian  Names. — It  has  been  held  that  a  writ  in  favor 
of  persons  whose  surnames  only  were  given  in  the  writ,  but  who 
were  otherwise  identified  on  the  face  of  the  process,  could  be 
amended  by  inserting  the  full  names  of  the  plaintiffs.* 


Shackman  v.  Little,  87  Ind.  181,  after 
a  motion  to  quash  the  summons. 

In  Haines  v.  Bottorff,  17  Ind.  348, 
the  Christian  name  of  the  plaintiff  in 
the  summons  was  amended  by  the 
complaint. 

In  Chicago,  etc.,  R.  Co.  v.  Johnston, 
8q  Ind.  88,  misnomer  of  the  defendant 
corporation  vas  amended. 

New  York. — Misnomer  of  the  defend- 
ant was  amended  in  Evoy  v.  Express- 
men's Aid  Soc.  (Supreme  Ct.),  21  N.  Y. 
Supp.  641. 

In  Reilly  v.  World  Pub.  Co.  (Supreme 
Ct.),  14  N.  Y.  St.  Rep.  390,  misnomer 
of  the  defendant  was  amended  after 
his  appearance. 

Where  a  summons  was  issued  in  the 
name  of  a  copartnership  instead  of  a 
corporation,  there  being  a  manifest 
mistake,  it  was  amended  on  motion 
after  judgment.  Thurber-Whyland 
Co.  V.  Klittner  (Supreme  Ct.),  16  N.  Y. 
Supp.  828. 

In  Brace  v.  Benson,  10  Wend.  (N. 
Y.)  214,  mesne  process  in  a  justice 
court,  the  Christian  name  of  one  of 
the  plaintiffs  was  amended  from 
"Joseph"  to  "Jasper." 

Georgia. — Misnomer  of  the  defend- 
ant was  amended  in  Baldwin  v.  Mc- 
Michael.  68  Ga.  82S. 

Misnomer  was  amended  by  the  in- 
dorsement in  Smith  v.  Morris,  29  Ga. 

339- 

Misnomer  of  the  plaintiff  was 
amended  in  Scudder  v.  Massengill,  88 
Ga.  245. 

North  Carolina. — Misnomer  of  the  de- 
fendant was  amended  in  Lane  v.  Sea- 
board, etc.,  R.  Co.,  5   Jones  (N.  Car.) 

25- 

In  process  of  attachment  the  de- 
fendant was  described  as  "  C.  E. 
Thorburn"  and  "  Charles  E.  Thor- 
burn;"  his  full  name  was  substituted 
by  amendment.  Hall  v.  Thorburn, 
Phill.  (N.  Car.)  158. 

Michigan. — Misnomer  of  the  plaintiff 
was  amended  in  Final  v.  Backus,  18 
Mich.  218,  a  well-considered  case. 

Misnomer  of  the  defendant  in  re- 
plevin was  amended  in  Parks  v.  Bark- 
ham,  I  Mich.  95. 

In  Other  States  —  West  Virginia. — 
Misnomer  of   the  plaintiff's  Christian 


name  was  amended  in  Hoffman  v. 
Dickinson,  31  W.  Va.  142. 

Wisconsin. — Misnomer  of  a  garnishee 
was  amended  in  Bushnell  v.  Allen,  48 
Wis.  460,  the  process  having  been 
properly  served  upon  the  real  gar- 
nishee, who  appeared  and  answered. 

Where  the  defendant  was  described 
as  the  "  W.  S.  Railway  Co."  instead  of 
the  "  W.  S.  Railroad  Co."  an  amend- 
ment was  allowed.  Parks  v.  West 
Side  R.  Co.,  82  Wis.  219,  a  case  pre- 
cisely like  Chicago,  etc.,  R.  Co.  v. 
Johnston,  89  Ind.  88. 

A^ebraska. — Misnomer  of  the  plain- 
tiff's Christian  name  was  amended  in 
Martin  v.  Coppock,  4  NeJ).  173. 

Ohio. — In  Burton  v.  Buckeye  Ins. 
Co.,  26  Ohio  St.  467,  a  suit  against  a 
corporation,  where  the  name  of  an- 
other corporation  was  inserted  in  the 
summons  by  mistake,  an  amendment 
was  allowed  by  substituting  the  real 
defendant,  who  had  entered  a  general 
appearance,  the  mistake  being  evident 
from  the  indorsement  and  entitling  of 
the  summons. 

Misnomer  of  the  plaintiff's  Christian 
name  was  held  not  to  be  amendable  in 
Lyons  v.  Donges,  i  Disney  (Ohio)  142, 
where  it  was  said  to  be  different  be- 
fore the  Code. 

Tennessee.  —  In  Jones  v.  Miller,  i 
Swan  (Tenn.)  319.  process  issuing  from 
a  justice  of  the  peace,  the  surname  of 
the  plaintiff  was  omitted  and  supplied 
by  amendment. 

Neic  Hampshire.  —  Misnomer  of  a 
corporation  defendant  was  corrected 
in  Burnham  v.  Savings  Bank,  5  N.  H. 

573- 

Texas. — In  Tryon  v.  Butler,  9  Tex. 
553,  misnomer  of  a  plaintiff  was  held 
curable  by  amendment  where  the  de- 
fendant failed  to  appear  after  being 
duly  served. 

Illinois. — After  appearance  by  the 
defendant,  a  misnomer  of  the  Chris- 
tian name  of  the  plaintiff  was  amended. 
Moss  V.  Flint,  13  111.  570. 

Vermont. — Misnomer  of  a  defendant 
corporation  was  amended  after  ap- 
pearance in  Hosford  v.  New  York, 
etc.,  R.  Co.,  47  Vt.  533. 

1.  Barber  v.  Smith,  41  Mich.  138,  dis- 
tinguishing Smith  V.  Canfield,  8  Mich. 


664 


Of  Process. 


AMENDMENTS. 


Of  Wri^  or  Summons. 


The  Want  of  an  Appearance  by  the  defendant  does  not  deprive  the 
court  of  the  power  to  make  such  amendments  if  process  has  been 
legally  served  upon  him.* 

Eetroactive  Effect. — The  amendment  of  a  summons  by  correcting 
a  misnomer  of  the  plaintiffs  relates  back  to  the  time  of  service.* 

/.In  Respect  of  Parties. — a  Misdescription  of  a  party*,  or  of 
the  character  in  which  he  sues  or  is  sued,  may  be  amended  where 
the  real  parties  remain  the  same.  Thus  the  plaintiff  may 
amend  by  striking  out  the  representative  capacity  in  which  he 

served   and    before   the 


493.  See  also  Bentley  v.  Smith,  3 
Cai.  (N.  Y.)  170;  Pate  v.  Bacon,  6 
Munf.  (Va.)  219;  Totty  v.  Donald,  4 
Munf.  (Va.)  430;  Harnett  v.  Watson,  i 
Wash.  (Va.)  372. 

Use  of  Partnership  Name. — In  Martin 
V.  Godwin,  34  Ark.  682,  it  was  held 
that  a  summons  against  several  part- 
ners in  the  partnership  name  may  be 
amended  by  inserting  the  names  of  the 
individual  partners. 

Michigan  Comp.  Laws,  §  5307,  per- 
mits a  partnership  suit  to  be  instituted 
in  the  firm  name  if  the  names  of  the 
partners  are  not  known,  and  allows  an 
amendment  at  any  time  before  the 
pleadings  are  closed  by  inserting  the 
names  of  the  partners.  It  was  held 
that  this  statute  can  apply  only  in 
cases  of  actual  partnership;  and 
where  a  writ  of  replevin  was  issued 
in  a  partnership  name  and  the  amend- 
ment showed  that  there  was  only  one 
plaintiff,  the  action  failed.  Stirling  z'. 
Heintzman,  42  Mich.  449. 

1.  Langmaid  v.  Puffer,  7  Gray 
(Mass.)  378,  and  Chicago,  etc.,  R.  Co. 
V.  Johnston,  89  Ind  88.  in  both  of 
which  cases  a  misnomer  of  the  de- 
fendant was  cured  by  amendment. 

Contra. — In  Atwood  v.  Landis,  22 
Minn.  358,  the  defendant  was  named 
William  A.  Landers  in  the  summons. 
No  appearance  was  entered,  and  an 
amendment  was  allowed  by  changing 
his  name  to  William  A.  Landis.  It 
v.as  held  that  the  judgment  rendered 
therein  was  void.  The  same  ruling 
was  made  in  McGill  v.  Weil  (Co.  Ct.), 
10  N.  Y.  Supp.  246.  See  also  Farnham 
V.  Hildreth,  32  Barb.  (N.  Y.)  277. 

2.  Martin  v.  Coppock,  4  Neb.  173. 

3.  Charging  Partners  Individually. — 
In  Johnson  v.  Somerville  Dyeing,  etc., 
Co.,  15  Gray  (Mass.)  216,  it  was  held 
that  a  writ  against  a  manufacturing 
corporation  summoning  in  two  per- 
sons under  the  Mass.  Stat.,  1851,  c.  315, 
as  copartners  might  be  amended  by 
charging  them    individually,  both   of 


them    being 
court. 

Striking  Out  Allegation  of  Partnership. 

— In  Babcock  v.  Fowles,  32  Me.  592, 
the  plaintiffs  were  allowed  to  amend 
by  striking  out  the  averments  that 
they  were  partners  in  trade. 

Charging  Estate  of  Intestate. — Where 
a  writ  describes  the  defendant  as  ad- 
ministrator, but  declares  against  him 
personally,  and  the  verdict  is  that  the 
defendant's  intestate  promised,  it  is 
proper  to  allow  an  amendment  to  sup- 
port the  verdict.  Perkins  v.  Hix  (Me., 
18S8),  13  Atl.  Rep.  131. 

Suits  By  or  Against  Corporations. — 
In  Barnet  v.  School  Directors,  6  \V. 
&  S.  (Pa.)  46,  where  a  praecipe  and 
writ  were  in  the  individual  names  of 
public  officers  when  they  should  have 
been  sued  in  the  name  of  the  corpora- 
tion, an  amendment  was  allowed. 

In  Lebanon  v.  Griffin,  45  N.  H. 
558,  a  writ  in  favor  of  "the  inhabit- 
ants of  the  town  of  L."  was  held  to  be 
amendable  so  as  to  describe  the  cor- 
poration properly. 

In  a  suit  against  a  corporation  the 
writ  commanded  the  officer  to  sum- 
mon "the  proper  officer  of"  the  cor- 
poration, and  it  was  held  to  be  amend- 
able by  striking  out  the  words  quoted. 
Stone  V.  Travelers'  Ins.  Co.,  78  Mo. 
655. 

Place  of  Besidence. — In  Patten  v. 
Starrett,  20  Me.  145,  it  was  held  that  a 
misdescription  of  the  place  of  resi- 
dence of  a  defendant  in  a  writ  was 
curable  by  amendment. 

And  the  description  or  addition  of 
the  plaintiff  may  be  amended.  Gooch 
V.  Bryant,  13  Me.  386. 

Suit  by  Assignee. — In  Thompson  v. 
Malone,  13  Rich.  (S.  Car.)  252,  it  was 
held  that  in  an  action  by  the  as- 
signee on  a  non-negotiable  note  the 
plaintiff  must  style  himself  in  the 
writ  assignee  of  the  payee,  and  if  he 
does  not  he  cannot  amsnd,  for  there 
is  nothing  to  amend  by. 


665 


Of  Process. 


A  MENDMENTS. 


Of  Writ  or  Sammons. 


sues.*  An  infant  suing  in  his  own  name  may  amend  by  in- 
serting the  name  of  a  guardian  or  next  friend.*  A  writ 
against  a  defendant  individually  may  be  amended  so  as  to 
charge  him  in  the  capacity  of  an  administrator  ;*  and  a  writ 
against  a  defendant  as  executor  may  be  amended  by  describing 
him  as  surviving  executor.'*  Where  a  defendant  who  was  sued 
as  administrator  pleaded  in  abatement  that  he  was  executor  in- 
stead of  administrator,  the  plaintiff  was  permitted  to  amend.* 

Entire  Omission  of  Party. — But  a  writ  which  is  not  in  the  name  of 
any  plaintifif  is  not  amendable  either  at  common  law  or  by  statute.® 

Adding  Parties. — Under  the  Codes  a  summons  may  be  amended 
by  adding  a  new  party  or  parties.'' 

g.  The  Return  Time  or  Place. — A  mistake  as  to  the  time 
or  place  at  which  a  writ  or  summons  is  made  returnable  may  be 
amended  on  motion  after  a  general  appearance  by  the  defendant;** 


1.  First  Freewill  Baptist  Church  v. 
Bancroft,  4  Cush.  (Mass.)  2S1;  Metcalf 
V.  Yeaton,  51  Me.  198;  Winningham  v. 
Crouch,  2  Swan  (Tenn.)  170;  National 
Ben.  Assoc,  v.  Jackson,  114  111.  533. 

2.  Blood  V.  Harrington,  8  Pick. 
(Mass.)  552,  after  plea  in  abatement 
on  account  of  the  defect  ;  Young  v. 
Young,  3  N.  H.  345;  Wheeler  v.  Smith, 
18  Wis.  651. 

3.  Lester  v.  Lester,  8  Gray  (Mass.) 
■437.     See   also  In  re  Estate  of  Soule, 

13  Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.) 
171. 

4.  Barnes   v.    Scott,  29  Fla.  285. 

5.  Randolph  v.  Barrett,  16  Pet. 
(U.S.)  138. 

6.  Jones  v.  Sutherland,  73  Me.  157. 
But  in  Galbreath  v.  Mitchell,  32  Ark. 
27S,  an  action  of  forcible  entry  and 
detainer,  the  names  of  the  parties 
were  properly  set  out  in  the  complaint 
and  wholly  omitted  from  the  writ,  and 
the  plaintiff  was  permitted  to  amend. 

7.  Hancock  v.  Oxford  First  Nat. 
Bank,  93  N.  Y.  82;  Arthur  v.  Allen, 
22  S.  Car.  432;  Plemmons  v.  Southern 
Improvement  Co.,  108  N.  Car.  614. 

It  was  held  in  North  Carolina  at  an 
early  date,  under  a  statute  authorizing 
amendments  of  process  either  in  form 
or  substance,  that  a  writ  could  be 
amended  by  adding  new  plaintiffs. 
Green  v.  Deberry,  2  Ired.  (N.  Car.) 
344;  but  that  such  amendment  could 
not  be  made  in  the  appellate  court. 
Wilcox  z/.  Hawkins,  3  Hawks (N.  Car.) 

84. 

Something  to  Amend  by. — The  court 
has  a  discretion  to  allow  a  writ 
to  be  amended  by  the  insertion  of 
the    name  of   a   party   as   defendant, 


even  after  plea  in  abatement  for  want 
of  proper  parties,  the  name  being  sug- 
gested in  the  plea.  Coombs  v.  Low, 
R.  M.  Charlt.  (Ga.)  395. 

Necessitates  Amendment  of  Complaint. 
— Where  new  parties  are  brought  in 
by  amendment  of  the  complaint  the 
summons  must  be  amended  accord- 
ingly; otherwise  the  amended  com- 
plaint may  be  struck  out  on  motion, 
and  such  motion  may  be  made  by  the 
original  defendant.  Follower  v. 
Laughlin,  12  Abb.  Pr.  (N.  Y.)  105. 

Striking  Out  Parties. — In  Pickett  v. 
King,  4  N.  H.  212,  it  was  held  that  a 
writ  of  entry  could  not  be  amended 
by  striking  out  one  of  the  defendants. 
Compare  Chadbourne  v.  Rackliff,  30 
Me.  354. 

In  Maine  an  amendment  of  a  writ  by 
striking  therefrom  one  or  more  of 
several  plaintiffs  will  not  be  allowed, 
especially  where  the  relations  of  the 
parties  and  the  character  of  the  claim 
have  not  been  changed  since  the  suit 
was  brought.  Roach  v.  Randall,  45 
Me.  438.  Compare  Treat  v.  Strickland, 
23  Me.  234;  Chadbourne  v.  Rackliff, 
30  Me.  3:4. 

Leave  to  amend  by  striking  out  the 
name  of  a  party  will  be  refused  where 
the  writ  would  be  defective  after  the 
amendment.  Jones  v.  Sharpton,  7 
Rich.  (S.  Car.)  343. 

8.  Lawrence  v.  Chase,  54  Me.  196; 
Ames  V.  Weston,  16  Me.  266;  Barker 
V.  Norton,  17  Me.  416,  where  the  writ 
was  made  returnable  on  the  fourth 
Tuesday  of  the  month,  the  court  being 
holden  on  the  first  Tuesday.  Guptill 
V.  Home,  63  Me.  405;  Pattee  v.  Lowe, 
35  Me.  121,  holding  that  a  plea  of  the 


666 


Of  Process 


AM  EN  DM  EN  TS. 


Of  Writ  or  Stunmons. 


and,  according  to  some  of  the  authorities,  even  after  a  special 


general  issue. waives  the  defect;  Dun- 
kle  V.  Elston,  71  Ind.  585,  a  summons, 
but  properly  indorsed;  Harrison  v. 
Agricultural  Bank,  2  Smed.  &  M. 
(Miss.)  307  ;  Wellover  v.  Soule,  30 
Mich.  481;  Jackson  v.  McLean,  oo  N. 
Car.  64;  Cheatham  v.  Crews,  81  N. 
Car.  343;  Thomas  v.  Womack,  64  N. 
Car.  65-,  Fisher  v.  Collins,  25  Ark.  97. 

In  Covington  v.  Cothrans,  35  Ga. 
156,  an  attachment  returnable  to  the 
"inferior"  court  was  amended  by  in- 
serting the  word  "county  "  instead  of 
"  inferior." 

In  Pitcher  v.  Pierce,  2  Cow.  (N.  Y.) 
586,  a  certiorari  returnable  out  of 
term,  but  returned  by  the  justice,  was 
amended. 

In  Simmons  v.  Norfolk,  etc.,  Steam- 
boat Co.  (N.  Car.), 16  S.  E.  Rep.  117,  it 
was  held  that  where  a  summons  in  a 
special  proceeding  was  improperly 
made  returnable  to  the  superior  court 
in  term,  the  court  could  remand  the 
proceedings  with  directions  to  amend 
by  making  the  summons  returnable 
before  the  clerk  on  a  day  certain.  See 
also  Cheatham  v.  Crews,  81  N.  Car. 

343- 

Writ  Keturnable  on  Sunday. — Where 
a  writ  is  made  returnable  on  Sunday 
it  may  be  amended  if  the  defendant 
appears.  Norton  v.  Dover,  14  Fed. 
Rep.  106,  decided  in  the  United  States 
Circuit  Court  for  New  Hampshire,  but 
controlled  by  the  federal  statute  of 
amendments. 

In  McEvoy  v.  School  Dist.  No.  8,  38 
N.  J.  Eq.  420,  a  subpoena  to  answer  a 
bill  in  equity  was  made  returnable  on 
Sunday,  but  was  served  the  required 
number  of  days  before  the  return  day. 
The  defendant  did  not  appear,  and  the 
plaintiff  was  permitted  to  amend  by 
making  the  subpoena  returnable  on 
the  following  Monday,  and  a  decree 
pro  confesso  was  sustained. 

Wrong  Place. — Where  a  writ  was  by 
mistake  made  returnable  at  Salem  in- 
stead of  Ipswich,  and  before  the  expi- 
ration of  the  time  of  service  the  plain- 
tiff caused  the  defendant  to  be  notified 
of  the  mistake  and  to  be  served  with  a 
new  summons  in  which  the  mistake 
was  corrected,  and  the  action  was  le- 
gally entered,  it  was  held  that  the  writ 
might  be  amended.  Kimball  v.  Wil- 
kins,  2  Cush.  (Mass.)  555. 

A  summons  issued  by  the  clerk  of 
the  circuit  court  of  Lowndes  county, 
with  the  county  of  Lowndes  inserted 


in  the  margin,  was  held  sufficient  to 
support  a  judgment  by  default  when 
the  body  of  the  summons  recited  that 
the  defendant  was  required  "to  ap- 
pear at  the  next  term  of  the  circuit 
court  of  Montgomery"  to  be  held  for 
said  county  at  the  place  of  holding 
the  same,  the  words  "of  Montgom- 
ery "  being  treated  as  surplusage. 
Relfe  V.  Valentine,  45  Ala.  286. 

Mesne  Process  Against  the  Body  re- 
turnable out  of  term  was  held  not  to 
be  amendable  in  Miller  v.  Gregory,  4 
Cow.  (N.  Y.)  504.  See  also  Kelly  v. 
Gilman,  29  N.  H.  3S5. 

Something  to  Amend  by. — In  Dean  v. 
Swift,  II  Vt.  331,  the  writ  contained  a 
wrong  return  day,  but  was  returnable 
to  the  right  term,  and  thecourt  allowed 
an  amendment  on  the  ground  that 
there  was  something  to  amend  by. 

In  Mossman  v.  Higginson,  4  Dall. 
(U.  S.)  12,  a  writ  of  error  regularly  at- 
tested with  a  blank  for  the  return  day 
was  amended  where  the  term  to  which 
it  was  returnable  and  the  time  when  it 
was  filed  in  the  court  below  appeared 
by  indorsement  on  the  writ. 

A  declaration  prayed  for  process  re- 
quiring the  defendant  to  appear  at  the 
August  term.  The  process  attached 
was  dated  July  16,  and  required  the 
defendant  to  appear  at  the  court  next 
to  be  holden  "  on  the  first  Tuesday  in 
July "  in  the  same  year.  The  de- 
fendant appeared  at  the  regular  term 
on  the  first  Tuesday  of  August  and 
moved  to  dismiss.  The  plaintiff  was 
allowed  to  amend.  Richmond,  etc., 
R.  Co.  V.  Benson,  86  Ga.  203. 

Conflicting  Authorities. — A  writ  tested 
on  the  I2th  of  May  and  made  returna- 
ble on  the  17th  of  May  next  was  held 
to  be  a  nullity  and  not  amendable. 
Bunn  V.  Thomas,  2  Johns.  (N.  Y.)  190. 

In  Wood  V.  Hill,  5  N.  H.  229,  it  was 
held  that  a  writ  returnable  upon  a  day. 
out  of  term  was  void  and  could  not  be 
amended.  See  the  comments  on  this 
case  in  Norton  v.  Dover,  14  Fed.  Rep. 
106. 

In  Hoxie  v.  Payne,  41  Conn.  539, 
where  the  year  of  the  return  term 
was  wrong,  it  was  held  that  the  defect 
was  not  amendable,  as  the  court  had 
no  jurisdiction. 

In  Kyles  v.  Ford,  2  Rand.  (Va.)  i,  it 
was  held  that  a  scire  facias  returnable 
to  a  day  which  was  not  a  proper  re- 
turn day  was  void  and  could  not  be 
amended. 


667 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Sammons. 


appearance  by  the  defendant  solely  for  the  purpose  of  moving  to 
quash  the  process  on  account  of  the  defect.*  But  if  the  defend- 
ant does  not  appear,  it  has  been  held  that  the  court  acquires  no 
jurisdiction  over  the  person  and  has  no  authority  to  allow  an 
amendment  in  the  return  day  or  term.* 

h.  The  Ad  Damnum. — A  writ  in  which  the  amoun.t  of  the 
plaintiff's  damages  is  wholly  omitted  may  be  amended  by  leave 
of  the  court  by  filling  the  blank  with  the  proper  sum.^  And 
where  the  court  to  which  the  writ  is  returnable  has  jurisdiction  of 
the  parties  and  the  subject-matter,  and  the  ad  damiiinn  is  for  an 
amount  exceeding  the  jurisdiction  of  the  court,  it  may  be  amended 
by  making  the  necessary  reduction.*  Under  similar  conditions 
the  ad  daninmn  may  be  increased  by  amendment.* 

i.  The  Teste — fc  General. — The  general  rule  is  that  the  teste  in 
process  is  matter  of  form  only  and  may  be  amended.® 

1.  Hamilton  v.  Ingraham,  121  Mass. 
562,  where  the  word  "current"  was 
substituted  ^r  the  word  "  next."  See 
also  People  v.  Brotherhood  of  Station- 
ary Engineers,  19  Civ.  Pro.  Rep.  (N.  Y. 
Supreme  Ct.)  175  ;  Jones  v.  Williams,  4 
Hill  (N.  Y. )  34,  a  capias  ad  respondendum 
returnable  at  the  wrong  place;  Mc- 
Iniffe  V.  Wheelock,  i  Gray{Mass.)  600. 

2.  Bell  V.  Austin,  13  Pick.  (Mass.) 
90;  Brainard  v.  Mitchell,  5  R.  I.  iii, 
where  the  writ  was  made  returnable 
to  a  term  to  be  holden  on  the  second 
Monday  of  February,  the  regular 
term  beginning  on  the  third  Monday 
of  February. 

The  foregoing  cases  were  distin- 
guished from  those  where  there  was 
no  appearance  in  Norton  v.  Dover,  14 
Fed.  Rep.  106. 

Contra. — See  McEvoy  v.  School  Dist. 
No.  8,  38  N.  J.  Eq.  420,  cited  in  the 
last  note  but  one. 

3.  Cragin  v.  Warfield,  13  Met. 
(Mass.)  215;  Lamphere  v.  Covven,  42 
Vt.  175;  Flanders  v.  Atkinson,  18  N. 
H.  167,  an  excellent  case  in  view  of 
the  conflicting  authorities  cited  below; 
State  V.  Hood,  6  Blackf.  (Ind.)  260, 
and  Campbell  v.  Chaffee,  6  Fla.  724, 
where  it  was  amended  by  the  praecipe. 

Contra. — Where  the  amount  of  the 
ad  damnum  determines  the  jurisdiction 
of  the  court  and  is  wholly  omitted,  it 
has  been  held  that  the  court  has  no 
authority  to  amend  it.  Hoit  v.  Molony, 
2  N.  H.  322;  Deveau  v.  Skidmore, 
47  Conn.  19.  These  cases  were  distin- 
guished in  Campbell  v.  Chaffee,  6  Fla. 
724,  and  Eaton  v.  Case,  17  R.  I.  429. 

In  regard  to  amendment  of  the  ad 
damnum  in  the  declaration  or  com- 
plaint, see  supra.  III,  10. 


4.  Hart  v.  Waitt,  3  Allen  (Mass.) 
532;  Converse  v.  Damariscotta  Bank, 
15  Me.  431.  See  also  Holloway  v. 
School  Dist.  No.  9,  62  Mich.  153. 

A  writ  brought  in  the  police  court 
with  the  ad  damnum  beyond  its  juris- 
diction cannot  be  amended  in  the 
court  of  common  pleas  on  appeal.  Mc- 
Quade  v.  O'Neil,  15  Gray  (Mass.)  52, 
where  the  court  refrained  from  decid- 
ing whether  it  could  have  been  amend- 
ed in  the  police  court. 

5.  Danielson  v.  Andrews,  i  Pick. 
(Mass.)  156;  Messervey  v.  Beckwith, 
41  111.  452,  amended  by  the  praec- 
ipe. See  also  Fowlkes  v.  Webber, 
8  Humph.  (Tenn.)  530;  Thompson  v. 
Turner,  22  111.  389;  Richmond,  etc., 
R.  Co.  V.  Rudd,  88  Va.  648;  Ellis  v. 
Ridgway,  i  Allen  (Mass.)  501;  State  v. 
Broughton,  7  Ired.  (N.  Car.)  96. 

In  Deane  v.  O'Brien,  13  Abb.  Pr.  (N. 
Y.  Super.  Ct.)  11,  the  ad  damnum  was 
increased,  the  cause  of  action  being 
single  and  entire,  although  the  effect 
was  to  defeat  the  statute  of  limitations 
as  to  the  additional  claim. 

After  Verdict. — In  Porteous  v.Givens, 
2  McCord  (S.  Car.)  49,  the  ad  damnum 
was  increased  so  as  to  cover  the  t^r- 
dict. 

Where  a  verdict  was  rendered  for 
more  than  the  amount  claimed  in  the 
writ  in  a  case  where  the  measure  of 
damages  was  certain  and  there  was 
no  sure  criterion  by  which  to  show  a 
mistake  or  misapprehension,  it  was 
held  improper  tp  allow  an  amendment 
of  the  writ  by  increasing  the  damages. 
Ashe  V.  Derosset,  8  Jones  (N.  Car.) 
240. 

6.  Reynolds  v.  Damrell,  19  N.  H. 
394;  Ripley  v.  Warren,  2  Pick  (Mass.) 


668 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Sainmons. 


Name  or  Style. — A  mistake  in  the  name  or  style  of  the  authority 
in  whose  name  the  process  is  tested  may  be  corrected  by  amend- 
ment.* 

Place  of  Teste. — A  mistake  as  to  the  place  at  which  the  process 
was  tested  is  amendable.* 

The  Date  of  the  process  may  be  amended.* 

Signature. — The  omission  of  the  signature  to  an  original  writ  by 
the  clerk  of  the  court  is  a  defect  which  may  be  amended,*  even 
where  the  constitution  requires  that  all  process  shall  be  so 
signed.*  And  where  the  clerk  of  a  court  by  mistake  signed  a 
writ  returnable  to  that  court  as  "deputy  clerk,"  he  was  allowed 
to  amend  after  plea  in  abatement  by  annexing  to  his  signature 
the  word  "clerk."®  The  signature  of  an  attorney  to  a  summons 
may  also  be  amended.'' 


592;  Converse  v.  Damariscotta  Bank, 
15  Me.  431. 

It  was  held  in  Andrews  v.  Ennis,  16 
Tex.  45,  that  the  omission  by  the  clerk 
of  the  attestation  clause  in  a  citation 
was  a  mere  formal  defect  and  curable 
by  amendment. 

1.  Harris  v.  Jenks,  3  111.  475;  Con- 
verse V.  Damariscotta   Bank,   15  Me. 

431- 

A  capias  ad  respondendum  may  be 
amended  by  correcting  the  teste  as  to 
the  name  of  the  chief  justice,  by  sub- 
stituting the  name  of  another  chief 
justice  who  was  then  in  office.  Brown 
V.  Aplin,  I  Cow.  (N.  Y.)  203. 

In  Converse  v.  Damariscotta  Bank, 
15  Me.  431,  an  amendment  was  al- 
lowed where  the  writ  was  tested  in 
the  name  of  a  judge  who  had  re- 
signed. Likewise  in  Reynolds  v. 
Damrell,  19  N.  H.  394. 

A  summons  issued  out  of  the  United 
States  District  Court  and  bearing  the 
seal  of  that  court  but  the  teste  of  the 
chief  justice,  instead  of  the  district 
court  judge,  as  required  by  U.  S.  Rev. 
Stat.,  §  911,  is  amendable.  U.  S.  v. 
Turner,  50  Fed.  Rep.  734. 

2.  Raymond  v.  Hinman,  4  Cow. 
(N.  Y.)  41,  where  a  capias  ad  respond- 
endum was  tested  at  Utica  when  it 
should  have  been  tested  at  Albany. 

S.  Fay  V.  Hayden,  7  Gray  (Mass.) 
41,  where  the  wn"t  was  antedated  one 
year  Jackson  v.  Bowling,  10  Ark. 
578,  where  the  same  error  was 
amended;  McGlarren  v.  Thurman,  8 
Ark.  313;  Hainos  v.  McCormick,  5 
Ark.  663,  and  Austin  v.  Clapp,  5  Tex. 
130,  where  the  process  was  dated  on 
Sunday;  Mathews  v.  Bowman,  25  Me. 
157,  where  the  process  was  not  dated. 


Gardiner  v.  Gardiner,  71  Me.  266; 
Bray  v,  Libby,  71  Me.  276;  Mclniffe 
V.  Wheelock,  i  Gray  (Mass.)  600; 
Huss  V.  Central  R.  &  B.  Co.,  66  Ala. 
472. 

A  writ  may  be  amended  by  altering 
its  date  to  a  subsequent  date,  although 
prior  to  the  amendment  the  action  ap- 
peared to  have  been  commenced  be- 
fore the  cause  of  action  accrued. 
Bragg  V.  Greenleaf,  14  Me.  395. 

A  writ  of  certiorari  may  be  amended 
by  inserting  the  date.  Jackson  v. 
Crane,  i  Cow.  (N.  Y.)  38;  Brink  v. 
Fulton,  I  Cow.  (N.  Y.)  41.  See  also 
Bartholemew  v.  Chautauqua  County 
Bank,  19  Wend.  (N.  Y.)99;  Parkman 
V.  Crosby,  16  Pick  (Mass.)  297.  Com- 
pare Lynch  v.  Mechanics'  Bank,  13 
Johns.  (N.  Y.)  127;  Ellis  v.  Ewbanks, 
4  111.  190. 

Mesne  process  against  the  body 
tested  out  of  term  cannot  be  amended. 
Chandler  v.  Brecknell,  4  Cow.  (N.  Y.) 
49.  But  see  People  v.  New  York,  18 
Wend.  (N.  Y.)  675;  Parke  v.  Heath, 
15  Wend.  (N.  Y.)  301. 

4.  Austin  V.  Lamar  F.  Ins.  Co.,  108 
Mass.  338;  Pepoon  v.  Jenkins,  Col. 
&  Cai.  (N.  Y.)  60.  See  also  Norton 
V.  Dow,  10  111.  459. 

5.  Austin  V.  Lamar  F.  Ins.  Co.,  108 
Mass.  338. 

6.  Johnson  v.  Nash,  20  Vt.  40. 

7.  Amendment  of  Sammons  After  Judg- 
ment.— Where  a  summons  in  an  action 
is  signed  by  the  firm  name  of  two  at- 
torneys who  are  in  partnership,  and 
the  complaint  served  with  the  sum- 
mons is  signed  with  the  individual 
name  of  one  of  such  attorneys  only, 
and  all  subsequent  notices  and  papers 
in  the  action  are  signed  by  such  indi- 


669 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Su'nmoto. 


j.  By  Affixing  a  Seal. — At  common  law  a  writ  issuing  from 
a  court  must,  in  order  to  be  considered  as  regular  and  authentic, 
be  attested  by  the  seal  of  the  court  from  which  it  issues.*  Some 
of  the  cases  hold  that  a  writ  lacking  the  seal  of  the  court  is  ab- 
solutely void  ;*  but  the  omission  has  been  more  generally  regarded 
as  a  defect  merely  which  is  curable  by  amendment.* 

k.  Amendment  of  Scire  Facias. — By  the  ancient  practice  it 
was  considered  that  a  scire  facias  was  not  in  general  amendable.^ 
But  it  is  now  the  practice  to  allow  the  writ  and  declaration  to  be 
amended    even    after    plea    of    ;////   tiel  record,^    or  after  error 


vidual  name,  the  court  has  power  after 
judgment  to  amend  the  summons  by 
substituting  the  individual  name  of 
the  attorney.  Sluyter  v.  Smith,  2 
Bosw.  (N.  Y.)  673. 

Amending  Old  Summons. — Where  a 
summons  signed  by  a  nonresident 
attorney  was  set  aside,  it  was  not 
prejudicial  to  the  defendant  to  allow 
the  summons  to  be  amended  and 
served  anew,  with  the  signature  of 
resident  attorneys  thereto.  Prentice 
V.  Stefan,  72  Wis.  151. 

1.  Williams  v.  Vanmetre,  19  111. 
293;  State  V.  Flemming,  66  Me.  142; 
Wheaton  v.  Thompson,  20  Minn.  196; 
Reeder  v.  Murray,  3  Ark.  450;  .^tna 
Ins.  Co.  V.  Hallock,  6  Wall.  (U.  S.) 
556;  Jones  V.  Frost,  42  Ind.  543;  Hin- 
ton  V.  Brown,  i  Blackf.  (Ind.)  429; 
Sanford  v.  Sinton,  34  Ind.  539;  State 
V.  Davis,  73  Ind.  359. 

2.  Original  writs  lacking  a  seal 
were  held  not  to  be  amendable  in 
Witherel  v.  Randall,  30  Me.  168  ; 
Bailey  v.  Smith,  12  Me.  196,  Tibbetts 
V.  Shaw,  19  Me.  204,  and  Witherel  v. 
Randall,  30  Me.  168,  where  the  writ 
bore  the  seal  of  the  wrong  court;  Hall 
V.  Jones,  9  Pick.  (Mass.)  446. 

In  Shaffer  v.  Sandwall,  33  Iowa  579, 
it  was  held  that  a  writ  of  attachment 
issuing  from  one  court,  with  the  seal 
of  a  different  court  impressed  thereon, 
could  not  be  amended.  And  in  Foss 
V.  Isett,  4  Greene  (Iowa)  76,  the  want 
of  a  seal  to  a  writ  of  attachment  was 
held  incurable.  But  see  Murdough 
V.  Pherrin,  49  Iowa  479,  decided  after 
a  change  in  the  statute. 

3.  Potter  V.  Smith,  7  R.  I.  55,  dis- 
approving the  Maine  and  Massachu- 
setts cases  cited  in  the  preceding  note 
and  citing  Foot  v.  Knowles,  4  Met. 
(Mass.)  386,  as  indicating  that  in  the 
latter  state  the  earlier  cases  therein 
decided  would  not  be  followed.  Clark 
V.    Hellen,    i     Ired.    (N.    Car.)    421  ; 

67 


Henderson  v.  Graham,  84  N.  Car. 
496;  Jump  V.  Batton,  35  Mo.  193; 
Strong  V.  Catlin,  3  Pin.  (Wis.)  121; 
Cartwright  v.  Chabert,  3  Tex.  261. 

Indiana. — The  Indiana  Rev.  Stat.. 
1876,  p.  49,  provides  that  "  no  summons 
or  service  shall  be  set  aside  or  be  ad- 
judged insufficient  where  there  is  suffi- 
cient substance  about  either  to  inform 
the  party  on  whom  it  may  be  served 
that  there  is  an  action  instituted 
against  him  in  court." 

Under  that  statute  it  was  held  that 
after  judgment  and  the  term  passed  a 
summons  sufficient  in  substance  could 
be  amended  vttnc  pro  tunc  by  affixing 
the  seal  of  the  clerk.  State  v.  Davis, 
73  Ind.  359. 

The  same  amendment  was  allowed 
in  Boyd  v.  Fitch,  71  Ind.  306;  Hunter 
V.  Burnsville  Turnpike  Co.,  56  Ind. 
213,  after  a  judicial  sale  of  property 
on  a  writ  not  attested  by  the  seal  of 
the  court. 

Mississippi. — Under  the   Mississippi 
Code  of  1871,  §  712,  a  writ  issued  with- 
out a  seal  was  held  to  be  amendable. 
Spratley  v.  Kitchens,  55  Miss.  578. 

New  York. — In  People  v.  Steuben,  5 
Wend.  (N.  Y.)  103,  where  the  seal  at- 
tached to  a  certiorari  was  not  the  seal 
of  the  court  out  of  which  the  writ 
issued,  an  amendment  by  affixing  the 
right  seal  was  allowed. 

In  Jackson  v.  Brown,  4C0W.  (N.  Y.) 
550,  a  venue  for  the  circuit  was 
amended  by  adding  a  seal. 

4.  2  Tidd  Pr.  1036;  Johnston  v.  Hub- 
bell,  Wright  (Ohio)69;  Condit  v.  Greg- 
ory, 21  N.  J.  L.  429. 

In  Vavasor  v.  Baile,  i  Salk.  52,  and  in 
Hillier  z/.  Frost,  i  Str.401,  such  motions 
were  denied.  See  also  Kyles  v.  Ford, 
2  Rand.  (Va.)  i. 

6.  Condit  v.  Gregory,  21  N.  J.  L. 
429;  Williams  v.  Lee,  Term  (N.  Car.'* 
146;  White  V.  Stanton,  3  Jones  (N. 
Car.)  41;  Pounds  v.  State,  60  Miss. 
O 


Of  Process. 


AMENDMENTS. 


Of  Writ  or  Summons. 


brought,*  so  as  to  conform  to  the  record;*  and  when  2.  scire  facias 
is  used  as  a  declaration  it  may  be  amended  in  the  same  way 
as  other  pleadings  are  amended.^  But  a  scire  facias  which  issues 
from  a  court  other  than  that  which  has  the  record  is  a  nullity  and 
cannot  be  amended  so  as  to  read  as  if  it  issued  from  the  proper 
court.* 

/.  Application  and  Leave  to  Amend — Leave  Necessary. — 
Process  cannot  be  amended  without  leave  of  the  court.' 

Waiver  of  Objection. — But  an  irregularity  in  serving  an  amended 
summons  without  leave  first  obtained  may  be  waived  by  defend- 
ant's retaining  the  amended  summons,  or  it  may  be  cured  in  an- 
swer to  a  motion  to  strike  out  the  amended  summons  by  granting 
a  cross-motion  for  leave  to  amend  it.* 


925;  Smith  V.  Brisbane  i  Brev.  (S. 
Car.)  455;  Berlin  v.  Highberger,  104 
Pa.  St.  143,  and  Rainey  v.  Com.,  10 
Watts  (Pa.)  343,  where  it  was  amended 
to  conform  to  the  praecipe;  Miller  v. 
Hower,  2  Rawle(Pa.)  56;  Sweetland  v. 
Beezley,  Barnes  4;  Perkins  v.  Pettit, 
2  Bos.  &  Pul.  440 ;  Rex  v.  Scott,  4 
Price  181.  See  Bucksom  v.  Hoskins, 
I  Salk.  52,  and  the  cases  cited  in  the 
next  note  but  one. 

1.  Burrows  v.  Heysham,  i  Dall.  (U. 

S.)  133- 

2.  Scire  facias  on  a  recognizance 
may  be  amended  so  as  to  recite  the 
date  or  term  of  the  court  at  which  the 
judgment  nisi  was  taken.  Marx  v. 
State,  61  Miss.  478.  Or  otherwise  to 
conform  to  the  judgment  nisi.  Gwynn 
V.  State,  64  Miss.  324;  Pounds  v.  State, 
60  Miss.  925  ;  Sartin  v.  Weir,  3  Stew. 
&  Port.  (Ala.)  421. 

The  Caption  may  be  amended  so  as 
to  run  in  the  name  of  the  people  of 
the  state.  McFadden  v.  Fortier,  20 
111.  509. 

After  Jury  Sworn.  —  After  the  jury 
were  sworn  the  court  permitted  the 
writ  to  be  amended  to  avoid  a  vari- 
ance between  it  andUhe  record  of  the 
recognizance.  Stateif/.JSpicer,  4  Houst. 
(Del.)  100.  See  also  Maus  v.  Maus,  5 
Watts  (Pa.)  315;  Whitworth  v.  Thomp- 
son, 8  Lea  (Tenn.)  480. 

3.  Johnston  v.  Hubbell.  Wright 
(Ohio)  69 ;  Jackson  v.  Tanner,  18 
Wend.  (N.  Y.)  526;  Peacock  v.  People, 
83  111.  331;  Lowry  v.  Newson,  51  Ala. 
570;  Orput  V.  Hardy,  6  Blackf.  (Ind.) 
456;  Berry  v.  McDonald,  7  Blackf. 
(Ind.)  371;  Clark  v.  Perkins,  3  N.  H. 
339.  See  Willink  v.  Renwick,  22 
Wend.  (N.  Y.)  608,  where  the  plain- 
tiff was  not   permitted   to  amend  by 


adding  new  parties  after  the  statute 
of  limitations  had  attached  in  their 
favor;  Carter  z^.  Thompson,  15  Me.  464, 
where  an  amendment  was  denied  in 
the  exercise  of  discretion,  as  also  in 
Farnum  v.  Bell,  3  N.  H.  72. 

In  Phelps  z/.Ball,!  Johns.  Cas.  (N.Y.) 
31,  a  scire  facias  was  amended  after  it 
had  been  returned  satisfied. 

4.  Osgood  V.  Thurston,  23  Pick. 
(Mass.)  no. 

5.  Allen  v.  Allen,  14  How.  Pr.  (N. 
Y.  Supreme  Ct.)  248;  Maine  Bank  v. 
Hervey,  21  Me.  38;  Childs  v.  Ham,  23 
Me.  74. 

Presumptive  Date  of  Order  for  Amend- 
ment.— Independently  of  any  showing 
of  the  date  on  which  an  order  for  the 
amendment  of  process  is  procured  it 
will  be  taken  to  have  been  on  the  last 
day  of  the  term.  Burns  v.  First  Nat. 
Bank,  45  Vt.  269. 

Not  Amendable  of  Course. — The  plain- 
tiff cannot  amend  a  summons  of 
course.  Walkenshaw  v.  Perzel,  32 
How.  Pr.  (N.  Y.  Super.  Ct.)  310;  Dib- 
lee  V.  Mason,  i  Code  Rep.  (N.  Y.)  37; 
McCrane  v.  Moulton,  3  Sandf.  (N.  Y.) 
736;  Follower  v.  Laughlin,  12  Alab.  Pr. 
(N.  Y.  Supreme  Ct.)  105;  Billings  v. 
Baker,.6  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
213;  Russell  V.  Spear,  5  How.  Pr.  (N. 
Y.  Supreme  Ct.)  142,  3  Code  Rep.  (N. 
Y.)  189. 

Amendment  by  Another  Court. — Leave 
to  amenS  original  process  issued  out  of 
the  Circuit  Court  will  not  be  granted 
in  the  Supreme  Court.  Hildreth  v. 
Hough,  19  111.  403;  Ellis  V.  Ewbanks, 
4  111.  190. 

6.  Mapes  v.  Brown.  14  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  94. 

Failure  to  Take  Proper  Objection. — 
In  Bray  v.  Libby,  71  Me.  276,  it  was 


67] 


Of  Process. 


AMENDMENTS. 


Of  Executions. 


Leave  Discretionary. — The  allowance  or  refusal  of  leave  to  amend 
process  is  discretionary  with  the  trial  court,  and  will  be  reviewed 
only  for  an  abuse  of  discretion  *  or  where  the  ruling  was  based 
upon  an  erroneous  view  as  to  the  power  of  the  court.*'* 

Notice  of  Motion. — An  application  for  leave  to  amend  a  summons 
should  be  upon  notice,  where  there  has  been  a  general  ap- 
pearance.* 

2.  Of  Executions — To  Conform  to  Judgment. — An  execution  may  be 
amended  to  conform  to  the  judgment  if  it  can  be  so  identified 
with  the  judgment  and  the  record  on  which  that  judgment  is 
founded  that  the  court  can  find  data  by  which  to  make  the  amend- 
ment.^ 


held  that  the  defendant  will  be  held  to 
hav  waived  his  rights  depending  upon 
an  unauthorized  and  irregular  change 
of  the  writ,  unless  he  takes  advantage 
of  the  same  by  plea  in  abatement  or 
when  the  defects  appear  of  record  by 
motion  seasonably  filed;  and  when  the 
defendant  thus  waives  his  right  the 
court  will  not  dismiss  the  writ  unless 
it  perceives  that  justice  requires  it. 
See  also  Maine  Bank  v.  Hervey,  21 
Me.  38. 

1.  Kagay  v.  School  Trustees,  68  111. 

75- 

2.  A  refusal  of  leave  to  amend  a 
summons  on  the  ground  of  want  of 
power  may  be  reviewed  on  appeal. 
Henderson  v.  Graham,  84  N.  Car.  496. 

3.  Hewitt  V.  Howell,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  346. 

Under  Prayer  for  General  Relief. — On 
a  motion  to  add  parties  defendant  and 
for  an  injunction  and  receiver  the 
plaintiff  can  obtain  leave  to  amend 
the  summons  under  the  general  prayer 
"  for  such  other  order  or  relief  as  the 
court  shall  see  fit  to  grant."  Walkin- 
shaw  V.  Perzel,  7  Robt.  (N.  Y.)6o6. 

Leave  Granted  on  Motion  to  Quash. — 
It  is  proper  to  give  leave  to  amend 
upon  the  hearing  of  a  motion  to  quash 
for  the  defect.  Shackman  v.  Little, 
87  Ind.  181,  where  a  misnomer  was 
amended. 

And  in  Jones  7'.  Williams,  4  Hill  (N. 
Y.)  34,  on  a  motion  to  set  aside  a 
capias  ad  respondendum,  because  of  its 
being  returnable  at  a  wrong  place  the 
plaintiff  was  allowed  to  amend  with- 
out a  cross-motion  for  that  purpose, 
and  the  court  said  that  it  was  "set- 
tled practice  to  allow  trifling  mistakes 
of  this  kind  to  be  amended  on  the 
motion  to  set  aside." 

Without     Motion. — It     was    said    in 


Kahn  v.  Kuhn,  44  Ark.  404,  that  a 
mistake  in  not  making  the  process  run 
in  the  name  of  the  state  ought  to  be 
corrected  by  the  court  without  a 
motion. 

4.  Dewey  v.  Peeler  (Mass.,  1894), 
36  N.  E.  Rep.  800;  Fries  z/.  Woodworth, 
31  N.  J.  L.  273  ;  Black  v.  Wistar.  4 
Dall.  (U.  S.)  267;  Sanders  v.  Kentucky 
Ins.  Co.,  4  Bibb  (Ky.)  471,  where 
the  execution  issued  for  one  cent 
more  than  the  judgment;  Kentucky 
Bank  v.  Lacy,  i  T.  B.  Mon.  (Ky.)  7; 
Johnston  v.  Lynch,  3  Bibb  (Ky.)  334; 
Bender  v.  Askew,  3  Dev.  (N.  Car.)  150; 
Holmes  v.  Williams,  3  Cai.  (N.  Y.)  98, 
2i  ca.  sa.  in  which  the  costs  were  larger 
than  the  amount  actually  entered  ; 
Tasker  v.  Wallace,  6  Daly  (N.  Y.) 
364, after  the  execution  had  been  served 
and  returned;  De  Lancey  z/.  Piepgras 
(Supreme  Ct.),  26  N.  Y.  Supp.  806;  Hall 
z'.Clagett,63  Md.  57, a  venditioni  exponas 
amended  to  conform  to  the  record; 
Jones  V.  Dove,  7  Oregon  467,  after 
a  sale  on  the  execution;  Andress  v. 
Roberts,  18  Ala.  387;  Sheppard  v.  Mel- 
loy,  12  Ala.  561;  McCollum  z*.  Hub- 
bert,  13  Ala.  282;  Goodman  z/.  Walker, 
38  Ala.  142,  by  striking  out  the  name 
of  a  defendant;  Hunt  v.  Loucks,  38 
Cal.  372;  Durham  v.  Heaton,  28  111. 
264,  and  Lewis  v.  Lindley,  28  111.  147, 
the  two  cases  last  cited  holding  it  to 
be  amendable  after  as  well  as  before 
a  sale,  where  the  execution  called 
for  too  much  money;  Vogtz/,  Ticknor, 
48  N.  H.  242;  Jones  v.  Parker,  60  Ga. 
500;  Gross  V.  Mims,  63  Ga.  563;  Saf- 
fold  V.  Wade,  56  Ga.  174;  Lamar  v. 
Grier,  3  Ga.  I2r  ;  Smith  v.  Keen, 
26  Me.  411  ;  Caldwell  v.  Blake,  69 
Me.  458;  Corthell  v.  Egery,  74  Me. 
41;  Chase  v.  Gilman,  15  Me.  64;  Sil- 
ner  v.    Butterfield,  2  Ind.   24,  holding 


67: 


Of  Process. 


AMENDMENTS. 


Of  Executions. 


The  execution  may  be  thus  amended  so  as  to  conform  to  a 
judgment  which  has  been  amended.* 

To  Conform  to  Praecipe. — In  Hke  manner  an  execution  may  be 
amended  by  the  praecipe.* 

The  Caption  of  an  execution  is  amendable.' 

Direction.— An  error  in  the  direction  may  be  amended.'* 


that  a  justice  of  the  peace  has  power 
to  amend  an  execution  issued  by  him; 
Hutchens  v.  Doe,  3  Ind.  528;  Tatem 
2/.  .Potts,  5  Blackf.  (Ind.)  534;  M'Call 
V.  Trevor,  4  Blackf.  (Ind.)  496;  Doe  v. 
Rue,  4  Blackf.  (Ind.)  263,  where  the 
execution  and  judgment  differed  in 
amount  ;  Owen  v.  Simpson,  3  Watts 
(Pa.)  87;    Mohn   v.  Heister,   6  Watts 

(Pa.)53. 

Error  in  Name. — An  error  in  the 
name  of  the  plaintiff  in  an  execution, 
there  being  enough  in  the  record  to 
amend  by,  may  be  corrected  after  a 
delivery  bond  taken  in  the  proper 
name  and  execution  issued  on  it. 
Kentucky  Bank  v.  Lacy,  i  T.  B.  Mon. 
(Ky.)  7. 

In  Tasker  v.  Wallace,  6  Daly  (N.  Y.) 
364,  an  error  in  the  name  of  a  party 
was  corrected  in  the  judgment  and  a 
corresponding  change  then  made  in 
the  execution  after  it  had  been  served 
and  returned.  In  Porter  v.  Goodman, 
I  Cow.  (N.  Y.)  413,  a  fi.  fa.  was  cor- 
rected by  adding  the  name  of  a  party. 

In  Gross  v.  Mims,  63  Ga.  563,  an 
error  in  the  Christian  name  of  the  de- 
fendant was  amended.  Also  in  Vogt 
V.  Ticknor,  48  N.  H.  242,  not  followed 
in  Battle  v.  Guedry,  58  Tex.  iii) 
where  it  was  held  that  an  execution 
against  J.  B.  Clements  was  not  sup- 
ported by  a  judgment  against  J.  P. 
Clements,  and  that  a  sale  under  the 
execution  did  not  pass  title.  The 
case  last  cited  was  not  approved  in 
Morris  v.  Balkham,  75  Tex.  iii. 

In  Andress  v.  Roberts,  18  Ala.  387, 
an  execution  was  amended  by  striking 
out  the  name  of  a  person  not  a  party 
to  the  judgment,  the  change  being 
also  held  not  to  affect  the  lien. 

To  Correct  a  Mistake. — In  New  York 
an  execution  inadvertently  issued  for 
too  small  an  amount  by  failing  to  in- 
clude interest  may  even  after  satisfac- 
tion and  return  be  amended  so  as  to 
include  interest,  §  723  of  the  Code  de- 
claring that  the  court  may  on  the  trial 
or  any  other  time  before  or  after  judg- 
ment amend  any  process,  pleading,  or 
proceeding   by  correcting  a  mistake. 


Kokomo  Strawboard  Co.  v.  Inman,  67 
Hun  (N.  Y.)  648,  21  N.  Y.  Supp.  705. 

Void  Execution — Nothing  to  Amend  By. 
— An  execution  issued  out  of  the  cir- 
cuit court  upon  a  judgment  recovered 
in  the  Court  of  Common  Pleas  is  abso- 
lutely void  and  cannot  be  amended  in 
the  common  pleas.  Clarke  v.  Miller, 
18  Barb.  (N.  Y.)  269. 

Mistake  in  Sheriff's  Deed. — The  execu- 
tion being  a  record  of  the  court  may 
be  amended,  but  a  mistake  in  the  sher- 
iff's deed  being  matter  in  pais  cannot 
be  amended.  Murphy  v.  Price, 
Cheves  (S.  Car.)  14. 

1.  De  Lancey  v.  Piepgras  (Supreme 
Ct.),  26  N.  Y.  Supp.  806;  Tasker  v. 
Wallace,  6  Daly  (N.  Y.)  364.  See  also 
Jones  V.  Parker,  60  Ga.  500;  Gross  v. 
Mims,  63  Ga.  563. 

2.  In  Shoemaker  z'.Knorr,  iDall.  (U. 
S.)  197,  the  teste  and  return  of  an  alias 
venditioni  exponas  were  amended  by 
the  praecipe. 

Venditioni  exponas  is  amendable  by 
the  praecipe  by  inserting  the  name  of 
one  of  the  defendants  during  the  trial 
of  an  ejectment  under  the  sheriff's 
deed,  and  a  sale  under  such  writ  passes 
the  title.  Sickler  v.  Overton,  3  Pa.  St. 
325- 

3.  Although  the  constitution  re- 
quires that  all  process  shall  run  in  the 
name  of  the  people  of  the  state,  yet 
the  insertion  of  the  word  "territory  " 
instead  Of  state  in  an  execution  was 
held  to  be  amendable.  Carnahan  v. 
Pell,  4  Colo.  190. 

4.  Benedict,  etc.,  Mfg.  Co.  v. 
Thayer,  20  Hun  (N.  Y.)  547;  Cheney 
V.  Beall,  69  Ga.  533,  where  the  execu- 
tion should  have  been  directed  to  "  all 
and  singular  the  sheriffs  of  said  state 
and  their  lawful  deputies,"  but  was 
directed  simply  to  "all  and  singular 
the  sheriffs  of  said  state." 

Omission  of  Direction. — If  an  execu- 
tion be  executed  by  one  having  official 
power  for  the  purpose,  an  omission  of 
the  direction  to  the  officer  may  be  sup- 
plied by  an  amendment.  Rollins  v. 
Rich,  27  Me.  557. 

The  omission   in  a  levari  facias   of 


I  Encyc.  PI.  &  Pr.— 43. 


673 


Of  Process. 


AMENDMENTS. 


Of  Ezecations. 


Eeturn  Day,  Term,  or  Place. — An  error  in  respect  of  the  return  day 
or  term  may  be  amended,*  or  where  the  execution  is  returnable 
at  a  wrong  place. ''^ 

The  Teste  of  an  execution  may  be  amended  ;*  and  where  the  testa- 
tum clause  was  omitted  in  a  ca.  sa.  on  which  the  defendant  had 
been  taken,  the  court  allowed  it  to  be  inserted  by  amendment.* 

Signature. — The  want  of  a  signature  by  the  clerk  may  be  cured 
by  an  amendment,'  and  the  defect  will  be  treated  as  amended 
whenever  the  process  is  collaterally  assailed.® 

Want  of  Seal. — The  want  of  a  seal  in  an  execution  issued  by  a 
court  of  record  ''  does  not  render  it  void,  and  the  defect  may  be 
cured  by  amendment.* 


the  command  to  levy  the  debt  may  be 
amended.  Peddle  v.  Hollinshead,  9 
S.  &  R.  (Pa.)  277. 

After  Sale. — In  Treasurer  v.  Bor- 
deaux,3  McCord  (S.Car.)  142,  an  execu- 
tion was  amended  after  a  sale  of  lands 
had  been  made  under  it,  the  usual 
words  of  authority  to  the  sheriff  hav- 
ing been  omitted. 

Keview  in  Federal  Court. — Where  a 
state  court  has  amended  an  execution 
by  inserting  a  direction  to  the  proper 
officer,  the  ruling  will  not  be  reviewed 
in  a  federal  court.  Kent  v.  Roberts, 
2  Story  (U.  S.)  591. 

1.  Goode  V.  Miller,  78  Ky.  235. 
Where  an  execution  is  upon  its  face 

returnable  at  a  time  anterior  to  the 
term  to  which  by  law  it  should  have 
been  made  returnable,  it  may  be 
amended;  but  until  amended  the  se- 
curity of  the  deputy  sheriff  is  not 
liable  for  money  collected  on  it  by 
such  deputy  after  the  day  on  which  it 
was  on  its  face  returnable,  and  which 
he  has  failed  to  pay  over.  Forward  v. 
Marsh,  18  Ala.  645. 

2.  On  a  motion  to  set  aside  a  ca.  sa. 
for  irregularity,  on  the  ground  that  it 
was  returnable  at  a  wrong  place,  the 
court  allowed  it  to  be  amended  with- 
out giving  notice  of  a  cross-motion  for 
the  purpose.  Inman  v.  Griswold,  i 
Cow.  (N.  Y.)  199. 

3.  Baker  v.  Smith,  4  Yeates  (Pa.) 
185,  where  an  erroneous  teste  in  a 
fi.  fa.  was  amended  after  it  had  been 
executed.  Berthon  v,  Keeley,  4 
Yeates  (Pa.)  205,  where  the  teste  of  a 
fi.  fa.  was  amended  by  the  praecipe; 
Cherry  v.  Woolard,  i  Ired.  (N.  Car.) 
438,  where  an  execution  was  tested  on 
the  wrong  day. 

A  fi.  fa.  tested  out  of  term  is  not 
absolutely  void,  but  may  be  amended. 
Den  V.  Lecony,  i  N.  J.  L.  iii. 


Where  an  execution  is  tested  on 
Sunday  it  is  amendable.  Williams  v. 
Hogeboom,  22  Wend.  (N.  Y.)648. 

The  omission  in  an  execution  of  a 
teste  in  the  name  of  a  judge  of  the 
court  or  of  a  direction  as  to  the  time 
of  its  return  may  be  amended  or  dis- 
regarded. Douglas  V.  Haberstro,  88 
N.  Y.  611. 

In  Porter  v.  Goodman,  i  Cow.  (N.Y.) 
413,  2t.fi.  fa.  was  amended  by  correct- 
ing the  name  of  the  place  at  which  it 
was  tested  after  an  action  of  trespass 
brought  for  a  levy  under  it. 

4.  Mclntyre  v.  Rowan,  3  Johns. 
(N.  Y.)r44. 

5.  Whiting  v.  Beebe,  12  Ark.  421. 

6.  Jett  V.  Shinn,  47  Ark.  373. 

7.  A  justice  of  the  peace  has  no  au- 
thority after  a  sale  and  return  of  exe- 
cution and  action  commenced  against 
the  officer  to  allow  an  amendment  of 
an  execution  by  affixing  a  seal.  Toof 
V.  Bentley,  5  Wend.  (N.  Y.)  276;  Por- 
ter V.  Haskell,  11  Me.  177,  which  holds 
that  there  is  a  distinction  in  respect 
of  the  power  to  allow  the  amend- 
ment by  a  justice  of  the  peace  and 
that  of  courts  where  process  is  issued 
by  the  clerks;  that  in  the  latter  case 
the  court  orders  the  clerk  to  correct 
his  errors,  but  that  in  justice  courts 
it  is  not  permissible. 

8.  Rose  z/.  Des  Moines  Valley  R.  Co., 
47  Iowa  420;  Purcell  v.  McFarland,  i 
Ired.  (N.  Car.)  34;  Taylor  v.  Courtnay, 
15  Neb.  190;  Bridewell  v.  Mooney,  25 
Ark.  524 ;  Corwith  v.  Slate  Bank, 
18  Wis.  560;  Arnold  v.  Nye,  23  Mich. 
289;  Sawyer  v.  Baker,  3  Me.  29,  where 
the  execution  was  amended  after  it 
had  been  extended  on  lands  and  the 
extent  recorded.  See  also  Clark  v. 
Hellen,  i  Ired.  (N.  Car.)  42. 

And  the  amendment  will  relate  back 
to  the  date  of  the  process.     Hall  v. 


674 


In  Attachment  Proceedings.     AMENDMENTS. 


In  General, 


Amendment  Discretionary. — The  amendment  of  an  execution  so  as  to 
cure  defects  therein  is  a  matter  addressed  to  the  sound  discretion 
of  the  court,  and  will  be  allowed  or  disallowed  according  as  it  is 
or  is  not  in  furtherance  of  justice;*  and  an  allowance  or  refusal 
will  not  be  reviewed  by  an  appellate  court  unless  in  a  case  of 
flagrant  abuse  of  discretion,*  or  where  the  decision  was  based 
upon  an  erroneous  view  as  to  the  power  of  the  court.^ 

Eetroactive  Effect  of  Amendment. — An  amendment  of  an  execution 
nunc  pro  tunc  makes  it  as  between  the  parties  as  if  the  defect  had 
never  existed.^ 

Regarded  as  Amended. — When  a  defect  in  final  process  is  amend- 
able it  will  be  regarded  as  amended  in  proceedings  involving  the 
validity  of  acts  done  by  virtue  of  it,  unless  the  rights  of  third 
parties  have  intervened  or  injustice  will  be  done  thereby,* 

V.  In  Attachment  Peoceedings  — 1.  In  General.  —  Allowing 
amendments  is  incidental  to  the  exercise  of  all  judicial  power; 
and  where  no  local  statute  or  rule  of  local  law  is  involved,  the 
power  to  amend  is  the  same  in  attachment  suits  as  in  others.® 

Taylor    v.     judgment  debtor  is  defective  in  that 


Lackmond,    50    Ark.    113; 
Courtnay,  15  Neb.  190. 

1.    Hayford  v.  Everett,  68  Me.  505. 

In  Maine  the  statute  requires  that 
an  execution  against  a  town  shall  run 
against  the  real  estate  therein,  and 
against  the  personal  property  of  its 
inhabitants.  If  it  is  issued  only 
against  real  and  personal  property 
owned  by  the  inhabitants  of  the  town, 
the  land  of  a  nonresident  cannot  be 
legally  sold  thereon.  But  where  the 
land  of  a  nonresident  was  sold  under 
an  execution  running  against  the  in- 
habitants only,  and  the  owner  knew 
nothing  of  the  sale  until  it  was  too 
late  to  redeem  therefrom,  and  the 
value  of  the  land  greatly  exceeded  the 
price  bid  for  it,  and  the  purchaser  and 
seller  could  be  restored  substantially 
to  their  former  condition  if  the  sale 
were  not  upheld,  the  court  refused  to 
allow  the  execution  to  be  amended  so 
as  to  run  against  the  land  of  the  non- 
resident. Hayford  v.  Everett,  6S  Me. 
505.  See  also  Cape  Fear  Bank  v. 
Williamson,  2  Ired.  (N.  Car.)  147. 

In  Hunt  V.  Pasman,  4  M.  &  S.  329, 
the  court  refused  to  allow  the  plaintiff 
to  amend  a  fi.  fa.,  because  the  de- 
fendant had  become  a  bankrupt  be- 
fore the  sale  of  goods  under  it  was 
made  and  the  rights  of  third  parties 
had  intervened;  but  it  was  intimated 
that  had  the  application  been  made 
earlier,  the  favor  of  the  court  might 
have  been  extended  to  him. 

Defect  in  Recital. — Where  an  execu- 
tion  issued  against  the    person  of   a 


it  fails  to  specify  by  name  the  county 
to  which  the  execution  against  the 
property  has  been  issued  and  returned 
unsatisfied,  the  defect  may  be  cured 
by  an  amendment  under  the  general 
provision  relating  to  amendments.  § 
723  of  the  Code;  Walker  v.  Isaacs,  36 
Hun  (N.  Y.)233. 

Amendment  of  Indorsement. — Where 
after  land  has  been  sold  under  an  ex- 
ecution there  is  found  a  discrepancy 
between  the  amount  indorsed  on  the 
execution  and  the  amount  really  due, 
such  indorsement  may  be  amended. 
Lane  v.  Potter  (N.  J.,  1892),  23  Atl. 
Rep.  420. 

2.  Lamar  v.  Grier,  3  Ga.  121. 

3.  Hayford  v.  Everett,  68  Me.   505. 
In  McCollum   v.   Hubbert,    13    Ala. 

282,  it  was  held  that  the  refusal  of  the 
court  to  permit  a  sheriff  to  amend  an 
execution  pending  the  trial  of  a  cause 
cannot  be  assigned  for  error  upon  the 
judgment  in  the  cause;  and  in 
Casky  v.  Haviland,  13  Ala.  314,  that 
if  a  party  is  prejudiced  by  the  refusal, 
his  remedy  is  by  mandamus. 

4.  Adams  v.  Higgins,  23  Fla.  14; 
Saffold  V.  Wade,  56  Ga.  174. 

It  was  held  in  Jones  v.  Hawkins,  60 
Ga.  52,  that  if  a  fi.  fa.  be  amended 
after  levy,  the  levy  falls;  but  that  if 
the  order  granting  leave  to  amend  be 
not  carried  out  and  theyf.  fa.  proceed 
without  amendment,  it  does  not.  See 
also  Jones  v.  Parker   60  Ga.  500. 

6.  Corthell  v.  Egery,  74  Me.  41. 

6.  Tilton   V.   Cofield,   93    U.  S.  163. 


675 


In  Attachment  Proceedings.    AMENDMENTS.        Declaration  or  Complaint. 

2.  Of  the  Declaration  or  Complaint — For  the  Same  Cause  of  Action.— 
Any  proper  amendment  may  be  made  provided  the  action  be 
still  for  the  same  demand  upon  which  it  was  brought ;  and  neither 
bail,  nor  receiptors,  nor  subsequent  attaching  creditors  have  any 
right  to  complain  when  the  amendment  does  not  in  fact  prejudice 
their  rights,  by  increasing  the  responsibility  of  bail  or  receiptors, 
or  tend  to  diminish  the  surplus  property  to  which  such  subsequent 
attaching  creditor  may  be  entitled,  according  to  the  conditions  of 
the  action  at  the  time  of  the  attachment.* 


See  also  Page  v.  Jewett,  46  N.  H.  441; 
Nelson  v.  Webb,  54  Ala.  436;  Gucken- 
heimer  v.  Day,  74  Ga.  i;  Phillips  v. 
Taber,  S3  Ga.  565;  Christal  v.  Kelly, 
88  N.  Y.  285;  Muth  V.  Erwin  (Mont., 
1894),  36  Pac.  Rep.  43;  Sweetzer  v. 
Claflin,  82  Tex.  513;  Pearce  v.  Bell, 
21  Tex.  688;  Tarkinton  v.  Broussard, 
51  Tex.  550;  Mendes  v.  Freiters,  16 
Nev.  388;  Tully  z/.  Herrin,  44  Miss.  626; 
McCarn  v.  Rivers,  7  Iowa  404;  Murphy 
V.  Adams,  71  Me.  113;  Suksdorff  v. 
Bigham,  13  Oregon  369;  Dalton  v.  Bar- 
nard, 150  Mass.  473;  Townsend  Nat. 
Bank  z'.  Jones,  151  Mass.  454;  Hender- 
son V.  Stetter,  31  Kan.  56;  Crerar  v. 
Milwaukee,  etc.,  R.  Co.,  35  Wis.  67; 
Jayne  v.  Piatt,  47  Ohio  St.  262;  Con- 
stable V.  White,  I  Handy  (Ohio)  44; 
Hathaway  v.  Davis,  33  Cal.  168;  Ham- 
mond V.  Starr,  79  Cal.  556. 

Answer  by  Garnishee. — The  garnishee 
should  be  allowed  to  amend  his  an- 
swer whenever  it  appears  that  he  has 
committed  a  mistake  or  fallen  into  an 
error  which  could  not  reasonably  be 
avoided.     Smith  v.  Brown,  5  Cal.  118. 

In  Simon  v.  Ash,  i  Tex.  Civ.  App. 
202 ;  Crerar  v.  Milwaukee,  etc. ,  R.  Co. , 
35  Wis.  67;  Hennen  v.  Forget,  27  La. 
Ann.  381,  and  Buford  v.  Welborn,  6 
Ala.  818 — in  the  latter  case  even  after 
the'issue  had  been  tried  between  the 
plaintiff  and  one  to  whom  the  debt 
was  supposed  to  have  been  trans- 
ferred— the  garnishee  was  allowed  to 
amend  a  defective  answer. 

Application  for  Writ. — An  application 
for  a  writ  of  attachment  may  be 
amended.     Langstaff  v.  Miles,  5  Mont. 

554. 

1.  Page  V.  Jewett,  46  N.  H.  445; 
Laighton  v.  Lord,  29  N.  H.  257;  Smith 
V.  Brown,  14  N.  H.  67;  Tilton  v.  Co- 
field.  93  U.  S.  163. 

The  Rule  Restated. — In  Townsend 
Nat.  Bank  v.  Jones,  151  Mass.  454, 
where  it  was  contended  that  the  surety 
in  a  bond  to  dissolve  an  attachment 


was  discharged  by  an  amendment  of 
the  complaint,  the  court  held  that 
"unless  the  effect  of  the  amendment 
would  be  to  impose  a  greater  liability 
than  he  had  originally  assumed  by 
letting  in  a  new  cause  of  action,  he  is 
not  released  because  of  its  allowance." 
The  following  cases  support  the  same 
rule  :  Fairfield  v.  Baldwin,  12  Pick. 
(Mass.)  388;  Wood  v.  Denny,  7  Gray 
(Mass.),  540;  Lord  v.  Clark,  14  Pick. 
(Mass.)  223;  Kellogg  v.  Kimball,  142 
Mass.  124;  Doran  v.  Cohen,  147  Mass. 
342  ;  Lanahan  v.  Porter,  148  Mass. 
596;  Miller  v.  Clark,  8  Pick.  (Mass.) 
412;  Haven  v.  Snow,  14  Pick.  (Mass.) 
33;  Ball  V.  Claflin,  5  Pick.  (Mass.) 
303;  Wentworth  v.  Sawyer,  76  Me. 
434;  Merrick  v.  Greely,  10  Mo.  106; 
Wright  V.  Brownell,  3  Vt.  435. 

Fending  Motion  to  Dissolve. — If  the 
complaint  can  be  made  good  by  amend- 
ment, the  plaintiff  should  be  allowed 
to  amend  pending  a  motion  to  dissolve 
the  attachment.  Hathaway  v.  Davis, 
33  Cal.  168. 

Amendment  of  One  Count.  —  The 
amendment  of  one  of  two  counts  in  a 
declaration  does  not  discharge  a  surety 
on  a  bond  given  to  dissolve  the  attach- 
ment from  liability  for  the  amount 
sued  for  in  the  count  not  affected  by 
the  amendment.  Warren  v.  Lord,  131 
Mass.  560. 

Insufficient  Amendment.  —  An  allega- 
tion in  an  amended  petition  that  the 
defendants  were  "  then  "  about  to  dis- 
pose of  their  property  with  intent,  etc., 
was  held  insufficient  to  support  a  writ 
of  attachment  issued  at  the  commence- 
ment of  the  action.  Wadsworth  v. 
Cheeny,  10  Iowa  257. 

And  in  Bundy  v.  McKee,  29  Iowa 
253,  it  was  held  that  an  amendment 
which  does  not  refer  to  the  time  when 
the  action  was  commenced  does  not 
cure  a  defect  of  substance  therein. 
See  also  Crouch  v.  Crouch,  9  Iowa 
269. 


676 


In  Attachment  Proceedings.     AMENDMENTS.        Declaration  or  Complaint. 

Demurrable  Complaint. — A  complaint  SO  defective  as  to  be  bad  on 
general  demurrer  may  be  amended  so  as  to  support  the  attach- 
ment where  it  is  accompanied  by  an  affidavit  in  proper  form.* 

New  Cause  of  Action. — An  amendment  introducing  a  new  cause  of 
action  should  not  be  allowed.- 


1,  Tarkinton  v.  Broussard,  51  Tex. 
550. 

2.  Furness  v.  Read,  63  Md.  i ;  Smead 
V.  Chrisfield,  i  Handy  (Ohio)  573; 
Peck  V.  Sill,  3  Conn.  157;  Green  v. 
Jackson,  66  Ga.  250;  and  the  cases 
cited  in  the  following  notes. 

Curing  defective  allegations  is  not 
introducing  a  new  cause  of  action  and 
does  not  discharge  bail.  Brown  v. 
Howe,  3  Allen  (Mass.)  528.  Nor  does 
a  merely  formal  amendment.  Lord  v. 
Clark,  14  Pick.  (Mass.)  223.  Nor  the 
correction  of  a  mere  clerical  error. 
Putnam  v.  Hall,  3  Pick.  (Mass.)  445. 

In  Massachusetts  an  attachment  is 
discharged  as  to  a  subsequent  pur- 
chaser by  an  amendment  made  with- 
out notice  to  him  which  adds  a  new 
cause  of  action.  Freeman  v.  Creech, 
112  Mass.  180. 

In  Texas,  where  an  instrument  shows 
upon  its  face  that  it  had  not  matured 
when  suit  was  brought,  the  petition 
may  be  amended  without  prejudice  to 
the  attachment  by  alleging  its  maturity 
pending  the  suit.  Panhandle  Nat. 
Bank  v.  Still,  84  Tex.  339. 

Adding  New  Count. — An  amendment 
adding  to  a  declaration  on  the  money 
counts  a  count  on  a  guaranty  of  a 
debt  of  a  third  person  discharges  bail. 
Wood  V.  Denny,  7  Gray  (Mass.)  540. 

But  it  was  held  in  the  same  case 
that  bail  are  not  discharged  by  allow- 
ing a  declaration  on  the  money  counts 
to  be  amended  by  adding  counts 
upon  promissory  notes  which  were  in 
fact,  though  not  so  appearing  on  the 
record,  the  same  cause  of  action.  Com- 
pare, on  the  last  point,  Fairfield  v. 
Baldwin,  12  Pick.  (Mass.)  388;  Willis 
V.  Crooker,  i  Pick.  (Mass.)  204. 

In  Mendes  v.  Freiters,  16  Nev.  388, 
it  was  held  that  an  amendment  chang- 
ing the  form  of  action  merely  or  ad- 
ding a  new  count  for  the  same  cause 
of  action  would  not  dissolve  the  at- 
tachment as  to  interveners. 

Special  Contract  and  Common  Count. — 
An  amendment  to  a  declaration  for 
use  and  occupation  under  a  special 
contract  of  renting  by  adding  a  com- 
mon count  for  use  and  occupation  is 


not  a  new  cause  of  action.  Nelson  v. 
Webb,  54  Ala.  436. 

Mere  Amplification. — An  amendment 
merely  amplifying  the  averments  in 
the  original  complaint  does  not  dis- 
charge a  bond  substituted  for  the 
attachment.  Jaynes  z/.  Piatt,  41  Ohio 
St.  262. 

Description  of  Notes. — Plaintiffs  in  an 
attachment  suit  upon  several  claims 
described  one  note  as  having  been 
"made,  executed,  and  delivered  and 
indorsed  to  said  plaintiffs,"  and  "in- 
dorsed as  follows,  to  wit,  Dreben  & 
Lewis."  By  amendment  the  plaintiffs 
alleged  that  the  note  of  Dreben  & 
Lewis  was  made  payable  to  them- 
selves and  was  thereafter  indorsed 
by  them  in  blank  to  Isaac  Lewis,  and 
that  it  was  afterward  indorsed  and  de- 
livered by  said  Lewis  to  plaintiffs. 
The  original  and  amendment  contained 
an  accurate  description  of  the  note. 
Upon  motion  by  an  intervenor  to  set 
aside  the  attachment,  it  was  held  that 
the  amended  and  original  petition 
were  for  the  same  cause  of  action,  and 
the  motion  was  denied.  Sweetzer  v. 
Claflin,  82  Tex.  513. 

Setting  Out  Title.— Where  the  com- 
plaint was  based  upon  a  note  and  ac- 
count assigned  to  the  plaintiff,  but  did 
not  set  out  the  assignment  and  al- 
leged ownership  in  the  plaintiff,  it  was 
held  to  be  amendable.  McCarn  v. 
Rivers,  7  Iowa  404. 

Making  more  Specific. — Amendments 
which  simply  make  the  causes  for  at- 
tachment more  specific  are  permis- 
sible. Gourley  v.  Carmody,  23  Iowa 
212. 

Defects  of  Substance.  —  In  Natchez 
First  Nat.  Bank  v.  Moss,'  41  La. 
Ann.  227,  it  was  held,  upon  a  motion 
to  dissolve  an  attachment  and  a  mo- 
tion by  the  plaintiff  to  amend,  that  an 
amendment  after  issue  joined  setting 
forth  substantial  averments  not  con- 
tained in  the  original  pleadings  could 
not  be  allowed. 

And  in  Gordon  v.  Maureau,  9  La. 
Ann.  586,  it  was  held  that  an  amend- 
ment cannot  cure  a  complaint  defective 
for  want  of  a  prayer  for  attachment. 


677 


In  Attachment  Proceedings.     AMENDMENTS.        Declaration  or  Complaint. 


Title  Acquired  Pending  Suit. — If  the  plaintiff  at  the  date  of  commenc- 
ing the  suit  does  not  own  the  claim  upon  which  it  is  brought,  he 
cannot  afterwards  purchase  the  claim  and  set  it  up  by  amendment 
against  the  property  seized  under  the  attachment.* 

Tort  to  Contract  and  Vice  Versa. — A  complaint  plainly  in  tort  cannot 
be  changed  by  amendment  into  a  complaint  on  contract,^  nor 
vice  versa.^  But  where  a  complaint  was  so  indefinite  and  uncer- 
tain that  it  could  not  be  determined  whether  it  was  in  tort  or 
contract,  but  the  facts  alleged  were  such  as  would  sustain  an 
action  on  contract,  an  amendment  was  allowed  and  the  proceed- 
ings upheld  as  against  a  subsequent  attachment.* 

Effect  of  Improper  Amendment. — Where  an  amendment  is  made  which 
introdr.ces  a  new  and  additional  cause  of  action,  if  in  the  end 
judgment  be  taken  only  upon  the  demand  originally  included  in 
and  covered  by  the  first  declaration,  the  attachment  will  not  be 
dissolved  ;^  but  if  judgment  be  taken  for  the  original  and  new 
demand,  the  attachment  is  vacated,  that  part  of  the  judgment 
which  is  good  being  vitiated  by  that  which  is  bad.® 

Change  of  Parties. — An  amendment  by  changing  some  of  the 
parties  to  the  suit  does  not  necessarily  affect  the  attachment.' 


After  Trial  of  Case. — Where  a  right  to 
an  attachment  under  one  section  of 
the  statute  has  been  determined 
against  the  plaintiff  he  cannot  amend 
his  complaint  so  as  to  change  his 
ground  and  retry  his  case.  Jaffray  v. 
Wolfe,  I  Okla.  312. 

1.  Farwell  Co.  v.  Wright,   38   Neb. 

445. 

An  amendment  will  not  be  allowed 
on  the  trial  by  adding  a  claim  for  a 
debt  not  due  at  the  commencement  of 
the  suit,  but  due  at  the  time  of  the  pro- 
posed amendment.  Correll  v.  Geor- 
gia Const.,  etc.,  Co.,  37  S.  Car.  444. 

2.  Suksdorff  v.  Bigham,   13  Oregon 

369- 

3.  Lane  v.  Beam,  ig  Barb.  (N.  Y.) 
51,  where  it  was  held  that  such  an 
amendment  would  discharge  the  sure- 
ties in  the  bond  to  dissolve  the  attach- 
ment. 

4.  Suksdorff  v.  Bigham,  13  Oregon 

369- 

5.  Page  V.  Jewett,  46  N.  H.  441; 
Seeley  v.  Brown,  14  Pick.  (Mass.)  177. 

6.  Page  V.  Jewett,  46  N.  H.  446; 
Fairfield  v.  Baldwin,  12  Pick.  (Mass.) 
398;  Peirce  v.  Partridge,  3  Met. 
(Mass.)  49;  Quillen  v.  Arnold,  12  Nev. 

234- 

Collateral  Attaek. — It  was  held  in 
Hammond  v.  Starr,  79  Cal.  556,  that 
an  objection  that  an  amendment  stated 
a  different  cause  of  action  from   that 


declared  on  in  the  original  complaint 
could  not  be  urged  for  the  first  time 
in  a  collateral  suit  on  a  bond  given  to 
release  the  attachment. 

It  is  perhaps  doubtful  whether  one 
who  purchases  property  under  attach- 
ment can  contest  the  validity  of  the 
lien  although  a  new  cause  of  action 
was  introduced  by  amendment  and 
judgment  rendered  thereon.  See  Til- 
ton  V.  Cofield,  93  U.  S.  163. 

7.  Striking  Out  a  Plaintiff.  —  An 
amendment  by  striking  out  the  name 
of  a  plaintiff  improperly  joined  will 
not  vitiate  the  attachment.  Johnson 
V.  Huntington,  13  Conn.  47. 

Adding  a  Defendant.  —  In  Christal 
V.  Kelly,  88  N.  Y.  285,  it  was  held 
that  the  sureties  in  an  undertaking 
given  to  discharge  an  attachment 
in  an  action  originally  commenced 
against  two  defendants  as  copartners 
to  recover  on  a  firm  note  were  liable 
to  pay  the  judgment  subsequently 
recovered  on  the  note  against  the 
original  defendants  and  another  per- 
son, a  partner  in  the  firm,  who  was 
brought  in  after  plea  in  abatement. 

Nominal  Change  of  Parties. — In  Tully 
V.  Herrin,  44  Miss.  626,  where  the 
plaintiff  declared  in  his  own  name 
on  a  chose  in  action  of  which  he 
was  the  equitable  owner,  he  was 
allowed  to  amend  by  adding  the  name 
of  the  person   holding  the  legal   title. 


678 


In  Attachment  Proceedings.     AMENDMENTS.        Declaration  or  Complaint. 


Misnomer  of  the  Parties  may  be  cured  by  amendment  ;*  but  not 
where  it  would  prejudice  the  rights  of  third  parties  acquired  in 
good  faith  before  the  amendment  was  made,  and  where  the  mis- 
nomer was  of  such  a  character  as  to  mislead  them.* 

Increasing  Ad  Damnum. — An  amendment  increasing  the  amount 
claimed  will  not  affect  the  attachment  if  the  error  in  stating  the 
amount  was  merely  clerical;'  but  if  it  does  not  clearly  appear 

1.  Barmon  v.  Clippert,  58  Mich. 
377,  and  Anglo-Amer.  P.  &  P.  Co.  v. 
Turner  Casing  Co.,  34  Kan.  340,  mis- 
nomer of  the  plaintiff.  But  see  Flood 
V.  Randall,  72  Me.  439,  where  it  was 
held  that  an  attachment  to  enforce  a 
lien  for  wages  was  lost  by  an  amend- 
ment changing  the  Christian  name  of 
the  plaintiff  from  Edward  to  Edmund. 

A  person  having  funds  of  S.  R.  in 
his  hands  may  be  charged  as  trustee 
in  an  action  brought  originally  against 
S.  R.,  but  after  the  trustee's  answer 
changed  by  amendment  into  an  action 
against  "  S.  R.,  otherwise  called  L. 
R.,"  and  the  liability  of  the  trustee  is 
not  affected  by  an  assignment  by  the 
defendant  after  the  service  of  the  writ 
and  before  the  amendment.  Vermil- 
yea  v.  Roberts,  103  Mass.  410. 

The  omission  in  a  complaint  and 
proceedings  upon  attachment  against 
a  corporation  defendant  of  the  word 
"company"  from  its  corporate  name 
is  amendable  without  affecting  the  at- 
tachment lien.  Hammond  v.  Starr,  79 
Cal.  556. 

2.  In  Terry  v.  Sisson,  125  Mass. 
560,  a  writ  was  sued  out  against  S.  S., 
and  a  savings  bank  summoned  as 
trustee.  The  process  was  in  fact 
served  on  S.  F.  S.,  and  was  afterward 
amended  accordingly.  After  service 
on  the  bank  and  before  the  amend- 
ment, the  bank,  acting  in  good  faith 
and  with  no  notice  or  knowledge  that 
the  person  intended  to  be  sued  was  S. 
F.  S.,  paid  over  to  the  latter  the  funds 
in  its  hands  belonging  to  him.  It  was 
held  that  although  the  misnomer  was 
curable  as  between  the  plaintiff  and 
defendant,  the  bank  was  not  charge- 
able as  trustee. 

In  Moore  v.  Davis,  58  Mich.  25,  it 
was  held  that  an  amendment  in  gar- 
nishment proceedings  by  substituting 
Jonathan  for  John  in  the  name  of 
the  principal  defendant  discharged 
the  attachment  as  against  an  inter- 
vening claimant. 

3.  Suksdorff  v.  Bigham,  13  Oregon 
369.  See  also  Page  v.  Jewett,  46  X. 
H.  441. 


The  amendment  was  held  not  to  in- 
troduce a  new  cause  of  action. 

An  amendment  by  substituting  the 
names  of  the  real  parties  for  the 
nominal  parties  will  not  discharge  the 
sureties  on  a  bailbond.  Phillips  v. 
Taber,  S3  Ga.  565. 

Discontinuing  as  to  One  Defendant. — 
If  one  partner  is  arrested  in  a  suit 
against  the  partnership  and  gives  a 
bail-bond,  the  surety  thereon  is  not 
discharged  by  a  discontinuance  of  the 
action  as  to  another  partner.  Sander- 
son V.  Stevens,  116  Mass.  133. 

A  discontinuance  as  to  one  of 
several  defendants  will  not  discharge 
the  obligees  in  a  bond  to  dissolve  the 
attachment.  Dalton  v.  Barnard,  150 
Mass.  473. 

Striking  Oat  a  Defendant.  —  Where 
the  statute  allows  the  name  of  one 
of  two  or  more  defendants  in  an 
action  to  be  struck  out,  such  amend- 
ment may  be  made  in  an  attach- 
ment suit  without  discharging  the  re- 
ceiptor. Smith  V.  Brown,  14  N.  H. 
67. 

Nonjoinder  of  necessary  parties  de- 
fendant may  be  cured  by  amendment. 
Sullivan  v.  Langley,  128  Mass.  235, 
holding  that  the  garnishee  was  not 
discharged. 

Misjoinder.  —  In  Denny  v.  Ward,  3 
Pick.  (Mass.)  199,  it  was  held  that  an 
amendment  by  inserting  the  name  of 
a  party  so  as  to  cure  a  misjoinder  will 
vacate  the  attachment  as  against  an 
intervening  attaching  creditor. 

Adding  a  Plaintiff. — In  Moulton  v. 
Chapin,  28  Me.  505,  an  action  of  as- 
sumpsit, it  was  held  that  an  amend- 
ment by  adding  a  coplaintiff  dissolved 
the  attachment. 

Entire  Change  of  Parties. — In  Quillen 
V.  Arnold,  12  Nev.  234,  a  change 
of  parties  under  the  circumstances 
therein  set  forth  was  held  to  con- 
stitute a  new  cause  of  action,  and 
the  sureties  in  an  undertaking  to  dis- 
solve the  attachment  were  not  bound 
by  the  judgment. 

Amendments  in  Respect  of  Parties  Oen- 
•rally,  see  supra,  III,  5. 


\ 


679 


In  Attachment  Proceedings.    AMENDMENTS. 


Of  Affidavits. 


that  the  error  was  a  mere  clerical  mistake,  the  lien  of  the 
attachment  as  against  a  subsequent  attachment  will  extend  only 
to  the  amount  originally  claimed.* 

A  Defective  Verification. — A  defective  verification  in  a  complaint 
may  be  amended.^ 

3,  Of  Affidavits — in  the  Absence  of  Express  Statute. — In  some  of  the 
States  where  there  is  no  statute  specifically  providing  for  the 
amendment  of  affidavits,  they  cannot  be  amended  to  cure  defects 
in  substance.* 


Where  the  complaint  fails  to  claim 
an  amount  within  the  jurisdiction  of 
the  court,  but  the  affidavit  and  writ  of 
attachment  issued  thereon  are  regular 
and  sufficient  in  that  respect,  the  at- 
tachment may  be  validated  by  an 
amendment  of  the  complaint  to  con- 
form to  the  affidavit  and  writ.  Greer 
V.  Richardson  Drug  Co.,  I  Tex.  Civ. 
App.  634. 

1.  Suksdorff  v.  Bigham,  13  Oregon 
369,  decided  on  a  rehearing.  See  also 
Page  V.  Jewett,  46  N.  H.  441;  Clough 
V.  Monroe,  34  N.  H.  3S1. 

In  Townsend  Nat.  Bank  v.  Jones, 
151  Mass.  454,  it  was  held  that  an  in- 
crease in  the  ad  datnuiim  so  as  to  re- 
cover accrued  interest  on  a  draft 
which  was  the  subject  of  the  suit  did 
not  discharge  the  surety  on  a  bond  to 
dissolve  the  attachment. 

2.  Lowenstein  v.  Monroe,  52  Iowa 
231. 

3.  In  Texas  an  affidavit  for  an  at- 
tachment cannot  be  amended.  Marx 
V.  Abramson,  53  Tex.  204;  Sydnor  v. 
Chambers,  Dall.  (Tex.)  601. 

California.  —  The  California  Code 
Civ.  Pro.,  §  558,  provides  that  if  upon 
an  application  to  discharge  a  writ  of 
attachment  it  appears  that  the  writ 
was  improperly  or  irregularly  issued, 
it  must  be  discharged.  Under  this 
statute  the  affidavit  cannot  be 
amended.  Winters  v.  Pearson,  72 
Cal.  553- 

In  Maryland  the  affidavit  cannot  be 
amended  in  a  substantial  matter. 
Halley  v.  Jackson,  48  Md.  254,  where 
the  court  refused  to  allow  the  name 
of  one  of  the  defendants  to  be  struck 
out  of  the  affidavit. 

The  omission  of  the  word  "  dollars  " 
in  the  justices'  certificate  of  the  affi- 
davit may  be  treated  as  a  clerical  mis- 
prision when  the  warrant  for  the  at- 
tachment supplies  the  omission.  De 
Bebian  v.  Gola,  64  Md.  262. 

In  Michigan  there  is  no  statute  now 


in  force  permitting  amendments  to  at- 
tachment affidavits,  and  such  amend- 
ments have  never  been  deemed  ad- 
missible under  the  statute  of  amend- 
ments (How.  Stat.,  Mich.,  g  7631), 
which  provides  that  "the  court  in 
which  any  action  shall  be  pending 
shall  have  power  to  amend  any  pro- 
cess, pleading,  or  proceeding  in  such 
action  either  in  form  or  substance  for 
the  furtherance  of  justice."  Freer  v. 
W^hite,  91  Mich.  74.  In  that  case  it 
was  held  that  the  omission  of  the 
word  "not"  from  the  statutory  aver- 
ment that  the  defendant  is  a  non- 
resident and  has  not  resided  in  this 
state  for  one  year  next  preceding  the 
date  of  the  affidavit  renders  the  affi- 
davit a  nullity. 

In  Greenvault  v.  Farmers',  etc.. 
Bank,  2  Dougl.  (Mich.)  498,  it  was 
held  that  where  the  original  affidavit 
is  void  and  is  amended  under  a  statute, 
the  attachment  will  be  postponed  to 
an  intervening  mortgage  made  by 
the  defendant. 

In  Louisiana  it  seems  that  the  Chris- 
tian name  of  the  defendant  as  con- 
tained in  the  petition,  affidavit,  and 
bond  cannot  be  changed  by  amend- 
ment.    Purdee  v.  Cocke,  18  La.  482. 

In  Florida  material  defects  in  an 
affidavit  in  attachment  cannot  be 
amended.  Tanner,  etc.,  Engine  Co. 
V.  Hall,  22  Fla.  391;  Work  v.  Titus,  12 
Fla.  62S. 

Ohio. — Where  plaintiff's  affidavit  was 
insufficient  because  fraud  was  sworn 
to  on  belief  without  stating  the  facts, 
an  amended  affidavit  was  held  to  be  of 
no  avail.  Garner  v.  White,  23  Ohio 
St.  192.  See  also  Pope  v.  Hibernia 
Ins.  Co.,  24  Ohio  St.  481. 

Tennessee. — The  Tennessee  Code,  § 
3477,  allows  amendments  in  affidavits 
only  for  "defect  in  form,"  and  a  sub- 
stantial defect  cannot  be  amended. 
Lillard  v.  Carter,  7  Heisk.  (Tenn.)  604. 
A  fortiori,  where  there  is  no  affidavit 


680 


In  Attachment  Proceedings.     AMENDMENTS. 


Of  Affidavits. 


Under  General  Statute  of  Amendments. — In  Others  it  is  held  that  the  stat- 
utes providing  for  the  amendment  of  the  pleadings,  process,  or 
proceeding  in  civil  actions  apply  to  attachment  proceedings  and 
authorize  an  amendment  of  substantial  defects  in  affidavits 
therein.* 


a  new  one  cannot  be  filed.  McReyn- 
olds  V.  Neal,  8  Humph.  (Tenn.)  12. 

Georgia. — In  Brown  v.  McCluskey, 
26  Ga.  577,  it  was  held  that  an  affi- 
davit in  attachment  could  not  be 
amended,  the  Attachment  Act  of  1855 
evidently  restricting  the  right  to 
amend  to  the  "attachment,"  "bond," 
"declaration,"  and  "warrant." 

Wisconsin. — It  was  held  in  Slaugh- 
ter V.  Bevans,  i  Pin.  (Wis.)  348,  that 
an  affidavit  for  attachment  is  not 
amendable   under  any  circumstances. 

West  Virginia. — A  mistake  in  the 
date  of  an  affidavit  may  be  amended. 
Anderson  v.  Kanawha  Coal  Co.,  12 
W.  Va.  526. 

1.  Nebraska. — An  affidavit  for  at- 
tachment may  be  amended  even  after 
a  motion  to  quash  the  proceedings  be- 
cause of  that  particular  defect.  Struth- 
ers  V.  McDowell,  5  Neb.  491,  holding 
also  that  the  court  may  permit  the 
officer  before  whom  the  affidavit  was 
made  to  attach  a  venue  according  to 
the  fact.  The  latter  point  was  also 
decided  in  Rudolf  v.  McDonald,  6 
Neb.  163. 

An  objection  that  the  affiant's  name 
was  omitted  from  the  body  of  the  affi- 
davit, he  having  duly  signed  it,  may 
be  obviated  by  amendment.  Rudolf 
V.  McDonald,  6  Neb.  163. 

While  an  amendment  of  an  affidavit 
for  an  attachment  may  be  permitted 
when  in  furtherance  of  justice  even  on 
the  hearing  of  the  case,  yet  no  new 
cause  of  attachment  which  existed 
when  the  action  was  brought  can  be 
brought  in  by  amendment.  Brook- 
mire   V.   Rosa,  34  Neb.  227. 

North  Carolina. — Under  the  North 
Carolina  Code  it  is  settled  that  the 
affidavit  may  be  amended  even  though 
the  first  affidavit  were  wholly  insuf- 
ficient. Brown  v.  Hawkins,  65  N.  Car. 
645;  Pope  V.  Frank,  81  N.  Car.  180; 
New  Hanover  Bank  v.  Blossom,  92 
N.  Car.  695;  Penniman  v.  Daniel,  93 
N.  Car.  332;  Cushing  v.  Styron,  104 
N.  Car.  338;  Sheldon  z/.  Kivett,  110  N. 
Car.  408;  Clark  v.  Clark,  64  N.  Car. 
150. 

In  the  case  last  cited  the  proceed- 


ings were  begun  before  a  justice  of 
the  peace,  and  the  affidavit  against  a 
nonresident  failed  to  state  that  the 
debt  was  due  and  that  the  defendant 
could  not  after  due  diligence  be  found 
in  the  state. 

Under  §  251  of  the  Code  such 
amendments  may  be  allowed  by  the 
clerk  01  the  court.  Cushing  v.  Styron, 
104  N.  Car.  33S. 

Where  the  affidavit  and  process  in  a 
case  of  original  attachment  described 
the  defendant  as  "  C.  E.  Thorburn," 
his  name  in  full  being  "Charles  E. 
Thorburn,"  the  court  allowed  them 
to  be  amended.  Hall  v.  Thorburn, 
Phill.  (N.  Car.)  158. 

In  Kontana  the  affidavit  may  be 
amended  without  prejudice  to  the  at- 
tachment. Muth  V.  Erwin  (Mont., 
1894),  36  Pac.  Rep.  43. 

An  affidavit  which  sets  forth  in  the 
language  of  the  statute  fraudulent  in- 
tent in  disposing  of  the  property  may 
be  amended  on  the  trial  so  as  to  set 
forth  the  facts  relied  on.  Josephi  v. 
Mady  Clothing  Co.  (Mont.,  1893),  33 
Pac.  Rep.  I. 

In  Arkansas,  under  a  statute  provid- 
ing that  "  the  court  must  in  every 
stage  of  the  action  disregard  any 
error  or  defect  in  the  proceedings 
which  does  not  affect  the  substantial 
rights  of  the  adverse  party,"  an  affi- 
davit made  on  belief  only  is  amend- 
able and  therefore  not  assailable  by 
an  intervener  in  the  action.  Sannoner 
V.  Jacobson,  47  Ark.  31. 

And  an  amendment  was  allowed  in 
Rogers  v.  Cooper,  33  Ark.  406,  where 
the  attachment  was  issued  by  a  justice 
of  the  peace  upon  an  affidavit  which 
stated  none  of  the  grounds  for  attach- 
ment prescribed  by  the  statute.  See 
also  Nolen  v.  Royston,  36  Ark.  565; 
Fletcher  v.  Menken,  37  Ark.  206; 
Sherill  v.  Bench,  37  Ark.  560;  Forten- 
heim  v.  Claflin,  47  Ark.  49,  where  it 
was  held  that  the  omission  of  a  jurat 
was  amendable,  and  the  court  declared 
that  the  want  of  plaintiff's  signature 
would  be  amendable. 

Kansas. — The  following  cases  were 
decided  under  the  general  provisions 


68 1 


In  Attachment  Proceedings.     AMENDMENTS. 


Of  Affidavits. 


By  Express  Statute. — In  many  jurisdictions  affidavits  are  amendable 
under  express  statutory  authority.* 


of  the  Code  for  amendments  of  any 
process  or  proceeding  in  furtherance 
of  justice: 

In  Robinson  v.  Burton,  5  Kan.  293, 
it  was  held  that  if  the  plaintiff,  after 
having  ample  time  and  opportunity  to 
amend  a  defective  or  informal  affidavit, 
fail  to  comply  with  an  order  of  the 
court  requiring  the  same  to  be  done, 
the  court  may  then  dissolve  the  at- 
tachment; also  that  an  amended  affi- 
davit which  does  not  relate  back  to 
the  time  of  filing  the  original,  and  the 
averments  in  which  are  in  the  present 
tense,  does  not  cure  the  defects  in  the 
original. 

An  affidavit  may  be  amended  so  as 
to  state  formally  and  definitely  what 
is  therein  stated  informally  and  in- 
definitely. Burton  v.  Robinson,  5 
Kan.  287. 

Where  the  statement  of  the  nature 
of  the  plaintiff's  claim  in  an  affidavit 
for  an  attachment  is  not  sufficiently 
definite  and  certain,  a  motion  to  dis- 
solve the  attachment  for  such  cause 
should  state  wherein  and  in  what  par- 
ticulars such  statement  is  insufficient, 
so  as  to  give  the  plaintiff  an  oppor- 
tunity to  amend  the  affidavit.  Fer- 
guson V.  Smith,  10  Kan.  397. 

An  affidavit  for  attachment  made  by 
one  who  is  in  fact  the  agent  or  attor- 
ney of  the  plaintiff,  but  which  fails  to 
show  that  the  party  making  it  is  the 
agent  or  attorney,  may  be  amended  so 
as  to  show  that  fact.  Tracy  v.  Gunn, 
29  Kan.  509;  Cassidy  v.  Fleak,  20 
Kan.  54. 

Where  the  grounds  for  the  attach- 
ment are  not  sufficiently  stated  in  the 
affidavit  it  is  error  to  discharge  the  at- 
tachment without  giving  the  plaintiff 
an  opportunity  to  amend.  Baker  Wire 
Co.  V.  Kingman,  44  Kan.  270;  Wells, 
Fargo  &  Co.  v.  Danford,  28  Kan. 
487. 

New  York. — It  was  held  in  Furman 
V.  Walter,  13  How.  Pr.  (N.  Y.  Supreme 
Ct.)  348,  that  an  affidavit  in  an  attach- 
ment under  the  provisions  of  the  re- 
vised statutes  was  jurisdictional,  and 
that  a  defect  therein  could  not  be 
amended;  but  that  the  contrary  rule 
prevails  in  attachments  under  the 
Code,  the  attachment  and  original 
affidavits  being  proceedings  in  an 
action  within  the  general  statute  of 
amendments    which     authorizes 


amendment  of  any  pleading  or  pro- 
ceeding by  the  insertion  of  material 
allegations  therein. 

1.  Mississippi. — The  Mississippi  Code, 
§  2464,  provides  for  the  filing  of  a  new 
affidavit  or  bond  where  the  original  is 
defective  or  insufficient  in  any  re- 
spect. 

In  an  attachment  sued  out  in  the 
county  where  the  debtor  resided  and 
his  property  was  found,  the  affidavit 
and  writ  alleged  a  debt  due,  whereas 
the  declaration  was  for  a  debt  in  part 
not  due.  The  defendant  moved  to 
quash  theaffidavitand  writ, whereupon 
the  plaintiff  moved  to  amend  by  insert- 
ing the  amount  not  due  and  dismiss- 
ing as  to  the  part  due.  The  grounds 
alleged  were  those  applicable  to  either. 
Held,  that  the  amendment  should  have 
been  allowed  and  the  motion  to  quash 
denied,  the  fault  in  the  affidavit  being 
only  a  "defect"  within  the  meaning 
of  the  Code.  Dalsheimer  v.  McDaniel, 
6g  Miss.  339. 

A  misrecital  of  the  defendant's 
Christian  name  in  one  part  of  an  af- 
fidavit for  attachment  is  a  mere  clerical 
error  and  amendable.  Davidson  v. 
Martin,  33  Miss.  530. 

In  Shaw  v.  Brown,  42  Miss,  309,  the 
bond  and  affidavit  were  amended  so  as 
to  bring  in  the  proper  parties,  but  the 
interests  of  third  parties  were  not  in- 
volved. 

The  affidavit  may  be  amended  by 
adding  a  new  ground  for  attachment. 
Fitzpatrick  v.  Flannagan,  106  U.  S. 
648,  a  case  controlled  by  the  Missis- 
sippi Code. 

Colorado. — The  Colorado  Code,  §  117, 
provides  that  "  no  attachment  shall  be 
quashed  on  account  of  any  informality 
or  insufficiency  of  the  original  affidavit 
if  the  plaintiff  shall  file  a  sufficient  af- 
fidavit in  the  case."  Hence  a  defect 
in  an  affidavit  will  not  sustain  a  col- 
lateral attack  on  the  proceedings  by  a 
stranger.   Leppel  v.  Beck,  2  Colo.  App. 

390. 

In  Skinner  v.  Beshoar,  2  Colo.  383, 
it  was  held  that  the  affidavit  might  be 
amended  by  affixing  a  jurat,  but  that 
if  there  was  no  affidavit  made  or  filed 
before  the  writ  issued  it  should  be 
quashed  on  motion. 

Iowa. — The    Iowa  statute   provides 

that    "the    attachment    law  shall   be 

the    liberally  construed,  and  the    plaintiff 

682 


In  Attachment  Proceedings.     AMENDMENTS. 


Of  Bonds. 


4.  Of  Bonds. — In  one  state  at  least  attachments  are  regarded 
as  having  so  little  affinity  with  remedies  at  common  law  that 
material  defects  in  a  bond  cannot  be  amended.*     But  accordincf 


before  or  during  the  trial  shall  be  per- 
mitted to  amend  any  defect  of  form  in 
theaffidavit,  bond,  attachment, orother 
proceeding." 

An  affidavit  for  an  attachment 
may  be  amended  in  substance  as 
well  as  in  form.  Langworthy  v. 
Waters,  ii  Iowa  432;  Stout  v.  Folger, 
34  Iowa  71,  where  the  affidavit  was 
signed  but  not  sworn  to  or  certified; 
Shaffer  v.  Sundwall,  33  Iowa  579; 
VVadsworth  v.  Cheeney,  13  Iowa  576; 
Bunn  V.  Pritchard,  6  Iowa  58,  where 
it  was  held  reversible  error  to  refuse 
to  allow  an  amendment  by  inserting  a 
single  word  omitted  by  the  mere  over- 
sight of  counsel.  Graves  v.  Cole,  i 
Greene  (Iowa)  405,  holding  that  orders 
to  dissolve  an  attachment  and  also  to 
amend  the  defect  for  which  it  is  dis- 
solved are  not  consistent.  On  the  last 
point,  see  Stadler  v.  Parmlee,  14  Iowa 

175- 

In  Lowenstein  v.  Monroe,  52  Iowa 
231,  the  verification  of  the  grounds  of 
attachment  having  been  made  upon 
belief  only,  the  affidavit  was  amended 
against  the  protest  of  an  intervener. 

Illinois. — Under  the  Illinois  statute 
providing  specifically  for  the  amend- 
ment of  affidavits  in  attachment,  it  is 
the  duty  of  the  court,  however  de- 
fective the  original  affidavit  may  be, 
to  permit  a  sufficient  affidavit  to  be 
filed.  Campbell  v.  Whetstone,  4  111. 
361;  Bailey  v.  Valley  Nat.  Bank,  127 
111.  332. 

An  affidavit  for  an  attachment  be- 
fore a  justice  of  the  peace  asserting 
on  "  information  and  belief"  that  the 
defendant  is  not  a  resident  of  the 
state  is  amendable  where  an  indebt- 
edness is  positively  sworn  to.  Booth 
V.  Reed,  26  111.  45. 

Where  an  attachment  is  brought  in 
aid  of  a  suit  at  law,  but  is  docketed 
separately,  there  is  no  error  in  allow- 
ing an  amendment  of  the  affidavit 
showing  the  attachment  to  be  in  aid 
of  the  suit  at  law  and  thus  avoid  a 
motion  to  dismiss  the  attachment  for 
want  of  a  separate  declaration  at  the 
return  term.  Roberts  v.  Dunn,  71  111. 
46. 

Alabama. — §  2998  of  the  Alabama 
Code  authorizes  the  amendment  of 
affidavits  in  form  or  substance. 


A  plaintiff  corporation  having  stated 
its  name  correctly  in  the  original  af- 
fidavit may  file  an  amended  affidavit 
avering  its  corporate  character. 
Rosenberg  v.  Claflin  (Ala.,  1892),  10 
So.  Rep.  521. 

Under  the  statute  prior  to  the  one 
quoted  above,  affidavits  were  amend- 
able only  to  cure  defects  of  form. 
Sims  V.  Jacobson,  51  Ala.  186;  Hall  z*. 
Brazelton,  46  Ala.  359;  Tommey  v. 
Gamble,  66  Ala.  469,  where  a  state- 
ment that  the  defendants  "  are  or  will 
be  justly  indebted,"  etc.,  was  amended 
by  striking  out  the  words  "  or  will 
be,"  the  defect  being  regarded  as  one 
of  form;  Shield  v.  Dothard,  59  Ala. 
595;  Staggers  v.  Washington,  56  Ala. 
225;  Hall  V.  Brazleton,  40  Ala.  406; 
Flexner  v.  Dickerson,  65  Ala.  129; 
Watts  V.  Womack,  44  Ala,  605,  where 
the  party  who  made  the  affidavit  was 
permitted  to  subscribe  his  name  to  it 
in  open  court  although  the  judge  of 
the  court  was  not  the  officer  or  judge 
before  whom  it  was  originally  sworn 
to. 

Hissonri. — Rev.  Stat.,  Missouri,  1879, 
§  445,  provides  that  when  the  affidavit 
for  attachment  is  adjudged  insuf- 
ficient, the  attachment  shall  not  be  dis- 
solved if  the  plaintiff  shall  file  a  pood 
and  sufficient  affidavit. 

It  was  held  in  Musgrove  v.  Mott,  90 
Mo.  107,  that  the  affidavit  on  which  an 
attachment  proceeding  was  instituted 
before  a  justice  of  the  peace  may  be 
amended  pending  an  appeal  in  the 
Circuit  Court;  that  an  amended  af- 
fidavitmay  embrace  thesame  and  other 
grounds  of  attachment;  and  that  if  the 
affidavit  be  defective,  the  plaintiff  need 
not  wait  until  it  is  held  insufficient,  but 
may  amend  in  advance.  See  also 
Henderson  v.  Drace,  30  Mo.  358; 
Middleton  v.  Frame,  21  Mo.  412; 
Hackney  v.  Williams,  3  Mo.  455. 

It  is  error  to  dissolve  an  attachment 
without  giving  the  plaintiff  a  reason- 
able opportunity  to  file  a  new  affidavit. 
Claflin  V.  Hoovee,  20  Mo.  App.  314. 

1.  Roulhac  V.  Rigby.  7  Fla.  336; 
Tanner,  etc.,  Engine  Co.  v.  Hall,  22 
Fla.  391. 

It  was  held  in  Houston  v.  Belcher, 
12  Smed.  &  M.  (Miss.)  514,  that  if  an 
attachment  bond  given  by  the   plain* 


683 


In  Attachment  Proceedings.     AMENDMENTS. 


Of  Bonds. 


to  the  prevailing  rule,  sanctioned  in  some  cases  by  the  general 
statutes  of  amendments  and  in  others  by  express  statutory  pro- 
visions, bonds  in  attachment  are  amendable  both  in  form  and 
substance.* 


tiff,  on  suing  out  the  attachment,  be 
insufficient,  the  substitution  of  another 
bond  afterward,  under  an  order  of  the 
court  to  which  the  attachment  is  re- 
turnable, will  not  cure  the  defect;  nor, 
it  seems,  will  the  waiver  of  the  parties 
to  the  bond  of  an  alleged  defect  in  it 
be  efficacious  in  upholding  the  attach- 
ment. 

^  2464  of  the  Mississippi  Code  now 
provides  for  amendment  of  bonds 
to  cure  a  defect  or  insufficiency  in  any 
respect. 

1.  Missouri. — An  insufficient  bondmay 
be  amended  regardless  of  the  charac- 
ter of  the  defect.  Van  Arsdale  v. 
Krum,  9  Mo.  397.  See  also  Middleton  v. 
Frame,  21  Mo.  412;  Claflin  v.  Hoover, 
20  Mo.  App.  314;  Henderson  v.  Drace, 
30  Mo.  358. 

A  bond  executed  by  a  firm  in  the 
partnership  name  is  not  a  nullity,  and 
it  is  error  not  to  allow  a  sufficient 
bond  to  be  filed.  Tevis  v.  Hughes,  10 
Mo.  380. 

In  an  attachment  suit  commenced 
in  the  names  of  the  members  of  the 
firm  of  "Wood,  Bacon  &  Co."  the  at- 
tachment bond  purported  to  be  the 
bond  of  "  Wood,  Bacon  &  Co."  as 
principals  and  "  Northrup  &  Co."  as 
sureties,  and  was  signed  thus:  "  Wood, 
Bacon  &  Co.  [seal]  by  their  attorney, 
P.  S.  Brown  [seal];  Northrup  &  Co. 
by  H.  M.  Northrup  [seal]."  It  was  held 
that  the  bond  was  not  a  nullity,  and 
could  be  amended.  Wood  v.  Squires, 
28  Mo.  528. 

New  York. — In  Kissam  v.  Marshall, 
ID  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  424, 
it  was  held  that  an  undertaking  given 
on  the  issuing  of  the  warrant  for  an 
attachment  which  is  insufficient  in 
amount  may  be  amended  by  filing  a 
new  one — under  the  statute  providing 
for  the  amendment  of  pleadings  and 
proceedings  in  general — and  that  such 
amendment  may  be  made  on  the  hear- 
ing of  a  motion  to  vacate  the  attach- 
ment on  the  ground  of  the  defect. 

A  justice  of  the  peace  has  authority 
to  allow  an  amended  undertaking  to 
be  filed.  Riley  v.  Skidmore,  2  Silv. 
(N.  Y.  Supreme  Ct.)  573. 

In  Alabama  there  is  no  difference  be- 
tween a  void  and  a  defective  bond  in 


attachment,  and  in  either  case  it  is  the 
duty  of  the  court  to  permit  the  plain- 
tiff to  substitute  a  sufficient  bond. 
Jackson  v.  Stanley,  2  Ala.  326;  Alford 
V.  Johnson,  g  Port.  (Ala.)  320.  See 
also  Code  of  1S86,  ^  2998. 

But  if  the  plaintiff  when  required 
by  the  court  to  amend  declines  to  do 
so,  the  attachment  may  be  quashed. 
Lowry  v.  Stowe,  7  Port.  (Ala.)  483. 

In  Illinois  an  insufficient  bond  may 
be  amended  under  the  provisions  of 
the  Attachment  act.  Bailey  v.  Valley 
Nat.  Bank,  127  111.  332. 

In  Georgia,  under  the  Attachment 
act  of  1856,  a  bond  in  attachment  was 
amendable  in  matters  of  form.  Oliver 
V.  Wilson,  29  Ga.  642.  And  the  plain- 
tiff with  the  assent  of  his  sureties  was 
allowed  to  amend  his  bond  by  increas- 
ing it.     Irvin  v.  Howard,  37  Ga.  18. 

In  Iowa,  if  the  bond  is  not  filed  for  a 
sufficient  amount  it  may  be  cured  by 
filing  a  new  bond,  the  authority  being 
conferred  by  a  specific  provision  in  the 
statute.  Van  Winkle  v.  Stevens,  9 
Iowa  264;  Cheever  v.  Lane,  9  Iowa 
193;  Gourley  v.  Carmody,  23  Iowa 
212. 

When  a  new  bond  is  substituted  it 
will  be  treated  as  if  filed  when  'the 
action  was  commenced.  Branch  Bank 
V.  Morris,  13  Iowa  136. 

Where  an  attachment  bond  recited 
that  the  proceedings  were  had  in  the 
district  court  of  a  county  which  was 
not  the  one  in  which  the  suit  was 
actually  commenced,  it  was  held  that 
the  defect  could  be  cured  by  an 
amended  bond.  Holmes  v.  Budd,  11 
Iowa  186. 

In  Montana,  where  the  bond  is  de- 
fective or  even  void  a  new  bond  may 
be  filed  without  prejudice  to  the  at- 
tachment, under  the  statute  authoriz- 
ing an  amendment  of  any  pleading  or 
proceeding  for  the  correction  of  any 
mistake  in  furtherance  of  justice. 
Pierse  v.  Miles,  5  Mont.  549. 

In  Michigan  the  statute  permits  a  new 
bond  to  be  filed  where  the  original  is 
defective.  Kidd  v.  Dougherty,  59 
Mich.  240. 

In  Tennessee,  where  the  bond  is  de- 
fective it  may  be  amended.  Alex- 
ander V.  Lisby,  2  Swan  (Tenn.)  107. 


684 


In  Attachment  Proceedings.     AMENDMENTS. 


Of  the  Writ. 


An  attachment  based  upon  an  undertaking  not  signed  by  the 
plaintiff  is  void  and  cannot  be  cured  by  subsequent  amendment.* 

5.  Of  the  Writ — in  General. —A  writ  of  attachment  cannot  be 
amended  in  such  a  manner  as  to  change  essentially  the  nature  of 
the  action  ;*  and  an  amendment  of  the  writ  by  substituting  en- 
tirely different  parties  will  operate  as  a  discharge  of  bail.'  But  in 
other  respects  it  is  in  general  amendable  to  the  same  extent  as  a 
writ  in  ordinary  actions,*  and  without  affecting  the  attachment.* 


* 


In  Minnesota  the  court  may  permit  a 
bond  to  be  amended  nunc  pro  tunc. 
Blake  v.  Sherman,  12  Minn.  420. 

In  Arkansas  bonds  in  attachment  are 
amendable  under  the  general  statute 
of  amendments.  Mandel  v.  Peet,  18 
Ark.  236. 

In  Colorado  a  defective  bond  may  be 
amended  and  the  proceeding  then  be- 
comes valid  from  the  beginning. 
McCraw  v.  Welch,  2  Colo.  284. 

1.  Wagenerz'.  Booker,  31  S.Car.  375. 

2.  Changing  Form  of  Action. — An 
amendment  of  the  writ  by  altering 
the  form  of  action,  where  the  nature 
of  the  action  is  thereby  changed,  will 
discharge  bail.  Bradhurst  v.  Pear- 
son, ID  Ired.  (N.  Car.)  55. 

3.  Smith  V.  Shaw,  8  Ired  (N. 
Car.)  233.  In  that  case  the  writ  was 
issued  in  the  name  of  A.  B.  &  Co., 
and  the  names  of  A.  B.,  C.  D.,  and  E. 
F.,  composing  the  firm,  were  substi- 
tuted by  amendment. 

In  Moulton  v.  Chapin,  28  Me.  505, 
the  attachment  was  dissolved  by  add- 
ing another  person  as  coplaintiff. 

4.  See  supra,  IV. 

5.  Indorsement. — It  is  not  a  defense 
in  an  action  on  a  recognizance  of 
special  bail  that  the  plaintiff  was  per- 
mitted to  amend  the  indorsement  on 
the  writ  to  correspond  with  the  facts 
and  the  declaration,  where  the  amend- 
ment only  changed  the  description 
and  not  the  cause  of  action.  Enos  v. 
Aylesworth,  8  Ohio  St.  322. 

Becital  of  Grounds.  —An  attachment 
recited  as  the  ground  thereof  that 
defendant,  "a  resident  of  this'state, 
has  departed  therefrom  with  intent  to 
defraud  his  creditors."  It  appeared, 
however,  that  he  had  left  the  state  to 
escape  imprisonment  for  a  crime  of 
which  he  had  been  convicted,  and  had 
permanently  taken  up  his  residence  in 
another  country.  It  was  held  under 
the  Ne7u  York  Code  Civ.  Pro.,  g§  721- 
723.  providing  for  the  correction  by 
amendment  of  irregularities   in    any 


process,  pleading,  or  other  proceed- 
ing, that  the  plaintiff  would  be  al- 
lowed to  amend  the  attachment  by 
stating  defendant's  nonresidence  as 
the  ground.  Thames,  etc.,  Ins.  Co. 
V.  Dimmick  (Supreme  Ct.),  22  N.  Y. 
Supp.  1096. 

Inserting  Name  of  Trustee. — An 
amendment  of  a  writ  by  inserting  the 
name  of  a  trustee  may  be  allowed 
against  the  objection  of  subsequent 
attaching  creditors  when  it  is  shown 
that  the  trustee  was  duly  served  and 
he  appears  and  answers  and  is  ad- 
judged chargeable,  and  that  a  part  of 
the  funds  for  which  he  is  chargeable 
has  been  paid  over  to  the  plaintiff 
without  objection  from  the  creditors, 
and  when  neither  the  defendant  nor 
the  trustee  objects  to  the  amendment. 
Johnson  v.  Abbott,  60  N.  H.  150. 

Changing  Garnishee. — Where  a  mem- 
ber of  a  firm  is  a  garnishee,  the  writ 
cannot  be  amended  after  it  is  entered 
in  court  so  as  to  reach  a  debt  due 
from  the  firm.  Knapp  v.  Levanway, 
27  Vt.  298. 

A  Mere  Clerical  Error  in  the  writ  may 
be  amended.  Hagerstown  First  Nat. 
Bank  w.Weckler,  52  Md.  30;  McCoy  v. 
Boyle,  10  Md.  391,  an  error  in  the  date 
of  the  writ  manifest  from  an  inspection 
of  the  record  of  the  court. 

Void  Attachment. — An  attachment 
of  real  estate  invalid  when  made  can- 
not be  rendered  valid  by  an  amend- 
ment of  the  writ.  Drew  v.  Alfred 
Bank,  55  Me.  450. 

Amendment  Discretionary. — The  ap- 
plication to  amend  the  writ  is  within 
the  discretion  of  the  court;  and  where 
an  application  to  amend  the  original 
writ  in  a  suit  by  attachment  is  resisted 
by  the  defendant  and  no  notice  of  the 
application  is  given  to  the  garnishee, 
it  is  not  an  abuse  of  discretion  to  re- 
fuse leave  to  amend.  Thompson  v. 
McHenry,  18  Ark.  537. 

Essential  Defects. — In  Barber  v. 
Swan,  4  Greene   (Iowa)  352,  it   was 


685 


In  Attachment  Proceedings.     AMENDMENTS, 


Of  the  Writ. 


Direction,  andKeturn  Time  or  Place. — The  direction  of  the  writ  may  be 
amended,*  and  under  some  circumstances  an  error  in  the  time, 
place,  or  court  to  which  the  writ  is  returnable.* 

Caption. — A  writ  not  running  in  the  name  of  the  state  is  amend- 
able"* and  should  be  amended  by  the  court  of  its  own  motion.* 

Misnomer  of  the  parties  may  be  cured  by  amendment.* 


held  that  a  writ  of  attachment  essen- 
tially defective  could  not  be  amended. 

1.  Warren  v.  Purtell,  63  Ga.  428. 
Where  an  attachment  was  directed 

to  the  "sheriff  of  the  county  of  Chat- 
ham "  instead  of  "to  all  and  singular 
the  sheriffs  and  constables  of  this 
state,"  it  was  held  that  it  might  be 
amended,  it  having  been  addressed  to 
one  of  the  individuals  entrusted  by 
law  with  its  execution,  and  there  being 
something,  therefore,  to  amend  by. 
Smets  V.  Wethersbee,  R.  M.  Charlt. 
(Ga.)  537. 

Where  the  office  of  sheriff  and 
coroner  are  both  vacant,  or  where 
there  is  no  coroner  and  the  sheriff  is 
interested  in  the  suit  and  process  is 
directed  to  a  constable  in  accordance 
with  a  statute,  the  fact  of  such  va- 
cancy or  disqualification  ought  to  be 
suggested  and  recited  in  the  writ. 
But  the  omission  of  such  recital  does 
not  make  the  writ  void,  and  it  may  be 
supplied  by  amendment.  Thompson 
V.  Bremage,  14  Ark.  59. 

Contra. — A  writ  which  contained  no 
direction  to  the  sheriff  to  summon  the 
defendant  as  required  by  the  statute 
was  held  to  be  void  and  not  amend- 
able so  as  to  affect  the  rights  of 
third  persons.  Whitney  v.  Brunette, 
15  Wis.  61. 

2.  Time. — Where  the  return  day  in 
a  writ  is  amended  with  the  consent  of 
the  defendant  and  the  trustee,  the 
latter  cannot  be  discharged  on  motion 
of  the  defendant  upon  the  ground  that 
there  has  been  no  valid  attachment. 
Barry  v.  Hogan,  no  Mass.  209. 

A  mistake  in  the  year  when  it  was 
returnable  was  amended  by  other  parts 
of  the  record.  McClanahan  v.  Brack, 
xi  Miss.  246. 

A  writ  returnable  on  a  wrong  day 
was  amended  in  Tapley  v.  Doane, 
3  Colo.  22,  and  in  Archibald  v.  Thomp- 
son, 2  Colo.  388,  where  it  was  return- 
able to  the  wrong  term. 

In  Moss  V.  Herring,  2  Miles  (Pa.) 
93,  the  writ  was  amended  by  the 
praecipe  in  respect  of  the  return  day. 

Where  an  attachment  is  sued  out  as 


an  auxiliiry  to  a  suit  commenced  in 
the  ordinary  mode,  a  mistake  in  the 
writ  of  attachment  of  the  time  when 
the  court  is  held  in  which  the  original 
suit  is  pending  is  amendable.  Scott 
V.  Macy,  3  Ala.  250. 

Court. — In  Mohr  v.  Chaffe,  75  Ala. 
387,  the  writ,  which  was  originally 
made  returnable  to  the  circuit  court, 
was  amended  after  appearance  of  the 
defendant  in  the  city  court  by  making 
it  returnable  to  the  latter  court. 

An  attachment  issued  on  the  3d  of 
April,  1866,  returnable  to  the  "in- 
ferior" court  is  amendable  by  insert- 
ing the  word  "county"  instead  of 
"inferior."  Covington  v.  Cothrans, 
35  Ga.  156. 

3.  Livingston  v.  Coe,  4  Neb.  379. 

4.  Kahn  v.  Kuhn,  44  Ark.  404. 

5.  Christian  Names  Omitted. — In  Bar- 
ber V.  Smith,  41  Mich.  138,  the  plain- 
tiffs' surnames  only  were  given  in  the 
writ,  but  they  were  identified  by  de- 
scription, and  an  amendment  was  al- 
lowed by  inserting  their  full  names. 

Changing  Surname. — A  writ  on  which 
an  attachment  has  been  made  may  be 
amended  by  substituting  Wight  for 
Wright,  as  the  name  of  one  of  the 
plaintiffs,  without  affecting  the  attach- 
ment. Wight  z/.  Hale,  2  Cush.  (Mass.) 
486. 

Inserting  Alias. — An  amendment  of  a 
writ  against  "  William  Robinson"  by 
inserting  the  words,  "  otherwise  called 
William  J.  Robinson"  does  not  vacate 
an  attachment  so  as  to  give  an  inter- 
vening mortgagee  priority.  Diettrich 
V.  Wolffsohn,  136  Mass.  335,  distin- 
guishingl^rry  v.  Sisson,  125  Mass.  560. 

Changing  Middle  Initial  in  the  name 
of  the  defendant  will  not  dissolve  an 
attachment  of  personal  property  when 
no  rights  of  third  parties  have  inter- 
vened.    Wentworth  v.  Sawyer,  76  Me. 

434- 

Misnomer  of  Garnishee. — Where  the 
firm  of  "  J.  Allen  &  Bro."  consisted  of 
Joseph  and  John  Allen,  and  upon  an 
affidavit  that  "John  Allen  &  Bros." 
were  indebted,  etc.,  a  summons  in 
garnishment  was    served    upon    one 


686 


In  Attachment  Proceedings.     AMENDMEiYTS. 


Of  the  Writ. 


Ad  Damnum. — An  inadvertent  error  in  stating  the  amount  of  the 
indebtedness  in  a  warrant  of  attachment  may  be  amended  without 
vacating  the  attachment.  But  where  an  amendment  is  allowed, 
the  attachment  will  be  vacated  on  motion  of  a  junior  attachment 
creditor  unless  the  utmost  good  faith  on  the  part  of  the  plaintiff 
is  established.* 

Signature,  Seal,  Date. — The  want  of  a  signature,*  or  a  defect 
therein,*  or  the  want  of  a  seal,^  may  be  cured  by  amendment. 
Where  the  date  in  the  attestation  was  left  in  blank  it  was 
amended  by  other  parts  of  the  writ.* 

Teste. — If  the  writ  is  not  properly  attested  it  is  amendable.® 


member  of  the  firm,  and  the  firm  ap- 
peared and  answered  by  one  of  its 
members — held,  that  the  misnomer 
of  the  garnishee  in  the  affidavit  and 
summons  was  of  no  importance,  and 
an  amendment  in  that  respect  was 
properly  allowed.  Bushnell  v,  Allen, 
48  Wis.  460. 

If  the  trustee  is  served  by  a  wrong 
name  in  the  writ,  which  is  afterwards 
amended,  and  instead  of  pleading  in 
abatement  he  answers  to  the  merits, 
the  objection  is  waived.  Sears  v. 
Columbian  Ins.   Co.,  12  Allen  (Mass.) 

367- 

Allowed  by  Justice  of  the  Peace. — A 
justice  of  the  peace  may  allow  an 
amendment  to  cure  a  misnomer  of  the 
defendant.  Morse  v.  Barrows,  37 
Minn.   239. 

Names  of  Partners.  —  North  Dakota 
Comp.  Laws,  §4940,  provides  that 
"  when  the  plaintiff  shall  be  ignorant  of 
the  name  of  the  defendant,  such  de- 
fendant may  be  designated  in  any 
pleading  or  proceeding  by  any  name; 
and  when  his  true  name  shall  be  dis- 
covered, the  pleading  or  proceeding 
may  be  amended  accordingly."  It  was 
held  that  a  summons  otherwise  in  due 
form,  in  which  the  defendants  were 
designated  only  by  their  firm-name, 
was  amendable  so  as  to  show  the 
names  of  the  parties,  and  an  attach- 
ment issued  thereon  was  sustained. 
Gans  V.  Beasley  (N.  Dak.,  1894),  59  N. 
W.  Rep.  714. 

Misdescription  of  Defendant. — The  de- 
scription of  the  defendant  may  be 
changed  from  "The  R.  Grocery  Co., 
a  corporation,"  to  "  E.  R.,  a  married 
woman  doing  business,"  by  the  duly 
recorded  consent  of  her  husband, 
"under  the  name  and  style  of  the  R. 
Grocery  Co.,"  where  the  identity  of 
the  defendant  is  not  changed.  Ex  p. 
Nicrosi  (Ala.,  1894),  15  So.  Rep.  507. 


1.  Peiffer  v.  Wheeler  (Supreme  Ct.), 
27  N.  Y.  Supp.  771,  where  the  attach- 
ment was  vacated  for  want  of  a  suffi- 
cient showing  of  good  faith.  See  also 
Gourley  v.  Carmody,  23  Iowa  212; 
Atkins  V.  Womeldorf,  53  Iowa  150. 

2.  A  warrant  of  attachment  issued 
under  the  Code  as  a  provisional 
remedy  may  be  amended  by  supplying 
the  omission  of  the  signature  of  the 
attorney.  Kissam  v.  Marshall,  10  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  424. 

3.  Where  a  justice  of  the  peace  in 
issuing  an  attachment  neglects  to  add 
to  his  signature  words  or  letters  de- 
noting his  office,  they  may  be  added 
on  motion  after  proof  that  he  was  duly 
authorized  to  issue  attachments,  that 
he  had  signed  in  his  official  capacity 
and  had  omitted  the  words  of  addition 
accidentally.  Dickson  v.  Thurmond, 
57  Ga.  153.' 

4.  See  supra,  IV,  i,/. 

In  Foss  V.  Isett,  4  Greene  (Iowa)  76, 
it  was  held  that  the  want  of  a  seal  to 
a  writ  of  attachment  could  not  be  sup- 
plied by  amendment. 

So  where  the  writ  bore  the  seal  of 
the  wrong  court.  Shaffer  v.  Sund- 
wall,  33  Iowa  579. 

But  in  Murdough  v.  McPherrin,  49 
Iowa  479,  decided  after  the  statute  was 
changed  so  as  authorize  a  defect  of 
form  in  the  affidavit  to  be  amended, 
it  was  held  that  a  writ  of  attachment 
issued  under  the  seal  of  one  court 
while  the  action  was  pending  in  an- 
other was  amendable  by  attaching  the 
proper  seal. 

In  Whittenberg  v.  Lloyd,  49  Tex. 
633,  a  seal  was  allowed  to  be  affixed 
after  motion  to  quash  the  writ  was 
sustained,  the  latter  order  being  set 
aside. 

6.   Brack  v.  McMahan,  61  Tex.  i. 

6.  Skinner  v.  Beshoar,  2  Colo. 
383- 


687 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Indictments. 


VI.  In  Criminal  Proceedikgs—1.  Of  Indictments— ^.  At  Common 
Law — (i)  In  Substance. — An  indictment  cannot,  except  in  cases 
where  tlie  law  has  specially  authorized  such  proceeding  and  in 
matters  of  form  which  are  not  matters  of  substance,  be  amended 
by  the  court  without  the  concurrence  of  the  grand  jury,*  even 
with  the  consent  of  the  accused.*  But  an  order  of  the  court 
sustaining  a  demurrer  to  a  count  cannot  be  treated  as  an  amend- 
ment to  the  indictment.* 

Lost  Indictment. — If  an  indictment  is  lost  at  any  time  before  the 
trial,  though  after  arraignment  and  plea,  the  accused  cannot  be 
tried  upon  it."* 


1.  Ex  p.  Bain,  121  U.  S.  i;  United 
States  V.  Davis,  6  Fed.  Rep.  682;  Haw- 
thorn V.  State,  56  Md.  530;  Patrick  v. 
People,  132  111.  529;  Allen  v.  State,  5 
Wis.  329;  State  v.  McCarty,  2  Pin. 
(Wis.)  513;  Hite  v.  State,  9  Yerg. 
(Tenn.)  198;  State  v.  Squire,  10  N.  H. 
558;  State  V.  Sexton,  3  Hawks  (N. 
Car.)  184;  State  v.  Springer,  43  Ark. 
91;  People  V.  Herman,  45  Hun  (N.  Y.) 
175;  State  V.  Chamberlain,  6  Nev.  257; 
Com.  V.  Seym.our,  1  Brewst.  (Pa.)  567; 
State  V.  McCormack,  22  Tex.  297. 
See  also  Com.  v.  Drew,  3  Cush. 
(Mass.)  279. 

"At  common  law  clerical  errors  only 
in  an  indictment  could  be  amended." 
State  V.  Lyon,  47  N.  H.  416. 

In  the  Federal  Courts. — In  Ex  p.  Bain, 
121  U.  S.  I,  it  was  held  that  in  the 
courts  of  the  United  States  no  part  of 
the  body  of  an  indictment  can  be 
amended  after  it  has  been  found  and 
presented  by  a  grand  jury,  either  by 
order  of  the  court  or  on  the  request 
of  the  prosecuting  attorney,  without 
being  resubmitted  to  them  for  their 
approval. 

After  a  Writ  of  Error  the  appellate 
court  cannot  amend  an  indictment, 
even  to  correct  a  clerical  error. 
Cruiser  v.  State,  18  N.  J.  L.  206. 

Rex  V.  Darley,  4  East  174,  and  the 
case  referred  to  in  the  note  to  that 
case,  were  upon  removals  of  the  in- 
dictments by  certiorari  before  judg- 
ment and  rtol  in  error. 

Eemand  for  Purpose  of  Amendment. — 
Amendments  must  be  made  during 
the  progress  of  the  trial  and  before 
the  case  is  submitted  to  the  jury.  It 
cannot  be  remanded  by  the  appellate 
court  upon  reversal  of  the  conviction 
with  authority  to  amend.  State  v. 
Joseph,  40  La.  Ann.  5. 

2.  People  V.  Campbell,  4  Park.  Cr. 
Rep.  (N.  Y.)3S7- 


In  a  Capital  Case  it  was  held  that  the 
indictment  could  not  be  amended  even 
with  the  consent  of  the  accused. 
Com.  V.  Mahar,  16  Pick.  (Mass.)  120, 
an  indictment  for  arson,  where  the 
prisoner's  counsel  consented  that  the 
name  of  the  owner  of  the  house 
should  be  inserted. 

Cnanging  Forgery  to  False  Pretences. 
— The  court  has  no  authority  even 
with  the  defendant's  consent  to  direct 
an  indictment  for  forgery  to  be 
changed  to  obtaining  money  by  false 
pretenses  and  trial  to  be  had  thereon. 
Com.  V.  Adams,  92  Ky.  134. 

Consenting  to  Change  of  Date.  — 
Where  the  defendant,  to  obviate  the 
necessity  of  returning  the  indictment 
to  the  grand  jury  for  a  correction  of 
the  date  at  which  the  offense  was  al- 
leged as  having  been  committed,  con- 
sented to  the  correction  in  open  court 
and  to  a  waiver  of  record  of  all  ob- 
jection and  then  pleaded  to  the  indict- 
ment, and  afterwards  moved  to  quash 
on  account  of  the  correction,  it  was 
held  that  the  motion  should  be  over- 
ruled.    McCorkle  v.  State,  14  Ind.  39. 

Record  Must  Show  Consent.  —  Under 
the  Alabama  Code  of  1886,  sec.  4389, 
providing  that  an  indictment  may 
be  amended  with  the  consent  of  the 
defendant  when  the  name  "of  the 
defendant  is  incorrectly  stated,"  it  is 
reversible  error  to  allow  an  indict- 
ment to  be  amended  so  as  to  cor- 
rect a  misnomer  set  up  by  the  de 
fendant's  plea  in  abatement  where  the 
record  does  not  show  affirmatively 
that  defendant  consented  to  the 
amendment.     Shiff   v.   State,  84  Ala. 

454- 

3.  State  V.  McKiernan,  17  Nev.  224. 

4.  Bradshaw  v.  Com.,  16  Gratt. 
(Va.)  507,  following  Ganaway  v.  State, 
22  Ala.  772  (decided  by  a  divided 
court),  and  Harrison  z/.  State,  10  Ycg. 

S8 


In  Criminal  Proceedings.  AMENDMENTS. 


Of  Indictments. 


Kecommitting  for  Amendment. — An  indictment  may  be  withdrawn  by 
leave  of  the  court  and  recommitted  for  amendment  to  the  grand 
jury  by  which  it  was  found,*  and  returned  by  them  into  court.* 
But  there  is  no  authority  for  withdrawing  an  indictment  at  a 
term  of  the  court  subsequent  to  that  at  which  it  was  found  and 
recommitting  it  to  a  different  grand  jury.* 

(2)  In  Matters  of  Form. — In  a  few  instances  it  has  been  held 
that  the  court  may,  at  common  law  and  before  the  commence- 
ment of  the  trial,  amend  an  indictment  in  matters  of  form  without 
the  concurrence  of  the  grand  jury.* 


(Tenn.)  542,  and  holding  that  the  pro- 
vision of  the  Virginia  Code  authorizing 
a  lost  record  or  paper  to  be  substituted 
by  an  authentic  copy  or  proof  of  its 
contents  applies  only  to  civil  actions 
and  does  not  extend  to  records  or 
papers  in  criminal  proceedings. 

Harrison  v.  State,  10  Yerg.  (Tenn.) 
542,  holds  that  a  lost  indictment  may 
be  supplied  during  the  term  by  making 
a  copy  from  the  recollection  of  the 
judge. 

Nunc  Pro  Tunc  Entry. — The  defendant 
in  a  criminal  prosecution  cannot  be 
put  upon  trial  on  a  nunc  pro  tunc  entry 
made  by  order  of  the  court  showing 
the  return  into  court  by  the  grand 
jury  of  an  indictment  against  the  de- 
fendant, and  that  it  has  been  de- 
stroyed. But  under  the  Indiana  statute, 
where  a  record  has  been  made  of  an 
indictment  which  has  been  destroyed, 
the  defendant  may  be  put  to  trial  on  a 
certified  copy  of  the  same.  Buckner 
V.  State,  56  Ind.  208. 

1.  State  V.  Withrow,  47  Ark.  551. 

Inserting  Word  "  Dollars." — Where  in 
an  indictment  the  word  "dollars" 
was  omitted,  it  is  competent  for  the 
grand  jury  at  the  same  term  of  the 
court  at  which  the  indictment  was  re- 
turned by  them  to   come   into    court 


the  grand  jury  or  of  the  court,  or  after- 
wards by  the  consent  of  the  defendant, 
with  the  permission  of  the  court." 
It  is  error  for  the  court  to  allow  a 
material  amendment  at  a  subsequent 
term.     Kline  v.  State,  44  Miss.  317. 

4.  Cain  v.  State,  4  Blackf,  (Ind.) 
512;  Hawthorn  v.  State,  56  Md.  530. 
See  also  Hite  v.  State,  9  Yerg.  (Tenn.) 
198. 

Consent  in  Advance. — "  It  is  the  com- 
mon practice  for  the  grand  jury  to 
consent,  at  the  time  they  are  sworn, 
that  the  court  shall  amend  matters 
of  form,  altering  no  matter  of  sub- 
stance ;  and  mere  informalities  may 
therefore  be  amended  by  the  court  be- 
fore the  commencement  of  the  trial." 
I  Chitty  Crim.  Law,  297. 

In  Cain  v.  State,  4  Blackf.  (Ind.) 
512,  it  was  said  that  "  the  settled  prac- 
tice when  an  amendment  is  returned 
into  court  is  to  obtain  the  consent  of 
the  grand  jury  that  the  court  may 
amend  it  in  matters  of  form,  not  alter- 
ing the  substance." 

This  practice  has  not  been  adopted 
in  New  Hampshire,  where  "an  indict- 
ment once  found  is  unalterable "  by 
the  court.  State  v.  Squire,  10  N.  H. 
558. 

And  Mr.  Bishop  inclines  totheopin- 


and  amend  the  indictment  by  insert-     ion  that  the   practice  is  not  supported 


ing  the  word    "dollars."     Garvin 
State,  52  Miss.  207. 

2.  Lawless  v.  State,  4  Lea  (Tenn.) 
173  ;  State  v.  Davidson,  2  Coldw. 
(Tenn.)  184. 

The  record  must  verify  the  fact  of 
the  return  into  court  of  the  amended 
indictment.  McKinley  v.  State,  8 
Humph.  (Tenn.)  72. 

3.  State  V.  Davidson,  2  Coldw. 
(Tenn.)  184.  See  also  Anger  v.  State, 
42  Miss.  642. 

Rev.  Code  of  Mississippi,  615,  art. 
257,  provides  that  "the  indictment 
may  be  amended  with  the  consent  of 


by  sound  reason,  i  Bishop  Cr.  Pro. 
(3d  ed.)  §  710. 

Signature  of  Foreman. — In  State  v. 
Squire,  10  N.  H.  558,  it  was  held  that 
where  an  indictment  was  returned 
into  court,  but  the  signature  of  the 
foreman  was  by  accident  omitted,  it 
could  not  afterwards  be  affixed  by  the 
foreman  or  amended,  except  on  re- 
commitment to  the  jury. 

Becommitment,  When  Prudent. — 
Where  the  prosecuting  attorney  moves 
to  amend  and  the  court  decides  against 
him,  he  should  recommit  the  matter 
to  the  grand  jury.    Where  appeals  are 


I  Encyc.  PI.  &  Pr.— 44. 


689 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Indictments. 


(3)  TJie  Caption. — The  caption  of  an  indictment  is  no  part  of 
the  finding  of  the  grand  jury,  and  may  be  amended  at  any  time 
before  the  case  is  removed  to  a  higher  court.*  It  may  be 
amended  by  the  minutes  of  the  court  or  by  what  appears  on  the 
•bill  itself,  even  after  conviction  and  after  motion  in  arrest  of  judg- 
ment.* 

(4)  What  Co7istitutes  Substance — In  General.— Matter  that  is  essen- 
tial to  be  set  forth  or  to  show  that  an  offense  has  been  committed 
is  matter  of  substance,  and  cannot  be  amended  without  the  con- 
currence of  the  grand  jury.^ 


allowed  in  behalf  of  the  state  in  crim- 
inal cases,  they  are  discouraged  by 
the  appellate  courts  in  cases  involving 
the  mere  right  to  amend.  State  v. 
Withrow,  47  Ark.  551. 

1.  U.  S.  V.  Thompson,  6  McLean 
(U.  S.)  56;  Moody  z/.  State,  7  Blackf. 
(Ind.)424;  State  v.  Gilbert,  i3Vt.  647; 
State  V.  Williams,  2  McCord  L.  (S. 
Car.) 301,  where  it  was  amended  after 
conviction;  State  v.  Moore,  24  S.  Car. 
150;  State  V.  McCarty,  2  Pin.  (Wis.) 
513;  State  V.  McCarty,  2  Chand.  (Wis.) 
199;  State  V.  Emmett,  23  Wis.  632; 
Allen  V.  State,  5  Wis.  329,  where  the 
caption  was  amended  so  as  to  show 
that  the  actual  presentment  of  the  in- 
dictment was  subsequent  to  the  date 
on  which  the  oflfense  was  charged  to 
have  been  committed.  State  v.  So- 
ciety, etc.,  42  N.  J.  L.  504.  See  also 
State  V.  Jones,  9  N.  J.  L.  2;  Osborne 
V.  State,  23  Tex.  App.  431,  24  Tex. 
App.  398;  Bosshard  v.  State,  25  Tex. 
Supp.  207;  Banks  v.  State,  7  Tex.  App. 
591;  Walker  v.  State,  7  Tex.  App.  52; 
Sharp  V.  State,  6  Tex.  App.  650.  Corn- 
fare  State  V.  Davidson,  36  Tex.  325. 

In  State  v.  Jenkins,  64  N.  H.  375,  an 
erroneous  statement  in  the  caption  of 
an  indictment  of  the  year  in  which  it 
was  found  was  amended. 

After  Bemoval  by  Certiorari. — The 
caption  may  be  amended  after  the 
case  has  been  removed  into  the 
Supreme  Court  by  certiorari,  and  the 
amendment  may  be  made  upon  proper 
evidence  of  the  facts  and  entries  on 
the  minutes  of  the  oyer  and  ter- 
miner; or  the  certiorari  may  be  re- 
turned to  that  court  and  the  amend- 
ment made  there.  In  this  case  the 
record  was  returned  for  that  purpose. 
State  V.  Jones,  9  N.  J.  L.  357. 

Kane  Pro  Tunc. — Where  the  journals 
of  the  court  furnish  something  to 
amend  by,  the  caption  may  be 
a-nended   at  any  time  nunc  pro  tunc. 


Vandyke  v.  Dare,  i  Bailey  (S.  Car.) 
66,  where  it  was  said  that  "it  has 
become  so  much  a  matter  of  course 
that  it  is  usually  left  in  blank  until 
some  occasion  occurs  which  renders 
its  perfection  necessary,  and  then 
leave  is  obtained  for  filling  it  up  as  a 
matter  of  course." 

What  Constitutes  the  Caption. — Starkie 
Cr.  PI.,  p.  258,  describing  what  is 
meant  by  the  phrase  "caption  of  an 
indictment,"  says:  "Where  an  in- 
ferior court,  in  obedience  to  a  writ  of 
certiorari,  from  the  king's  bench, 
transmits  the  indictment  to  the  crown 
office,  it  is  accompanied  with  a  formal 
history  of  the  proceeding,  describing 
the  court  before  which  the  indictment 
was  found,  the  jurors  by  whom  it  was 
found,  and  the  time  and  place  where 
it  was  found.  This  instrument,  termed 
a  schedule,  is  annexed  to  the  indict- 
ment, and  both  are  sent  to  the  crown 
oflSce.  The  history  of  the  proceed- 
ings, as  copied  or  extracted  from  the 
schedule,  is  called  the  caption,  and  is 
entered  of  record  immediately  before 
the  indictment." 

2.  State  V.  Creight,  i  Brev.  (S.  Car.) 
169. 

Erroneous  Title. — In  Brown  v.  Com., 
78  Pa.  St.  122,  an  indictment  was  found 
in  the  quarter  sessions,  but  entitled 
as  in  the  oyer  and  terminer,  where 
it  was  tried.  Held,  that  the  caption 
might  be  amended  after  trial,  convic- 
tion, sentence,  and  writ  of  error,  but 
before  the  record  had  been  returned. 

3.  State  V.  Startup,  39  N.J.  L.  423; 
State  V.  Lyon,  47  N.  H.  416. 

Single  Material  Word. — Where  an  in- 
dictment omits  a  material  word,  al- 
though it  be  but  a  preposition  or  a 
helping  verb,  the  court  will  not  from 
a  knowledge  of  the  language  supply 
the  missing  word  so  as  to  support  the 
probable  intention  of  the  grand  jury, 
but  will  sustain  a  judgment  quashing 


690 


Tn  Criminal  Proceedings. 


AMENDMENTS. 


Of  I  ndictments. 


Date  of  Offense. — The  allegation  of  the  date  at  which  the  offense 
\va.s  committed  is  emphatically  matter  of  substance.* 

Names. — The  name  of  the  accused  is  matter  of  substance,*  and 
the  name  of  the  owner  of  goods  in  an  indictment  for  larceny.' 

Value  of  Goods. — And  the  allegation  of  the  value  of  the  goods 
where  the  distinction  between  grand  and  petit  larceny  is  deter- 
mined by  the  value  is  material."* 

Venue  of  Offense. — Under  a  statute  which  was   construed   to  au- 


the  indictment.  State  v.  Daugherty,  30 
Tex.  360;  State  v.  Hutchinson,  26  Tex. 
II,  in  both  of  which  cases  the  word 
"did"  was  omitted  in  charging  the 
commission    of    the   offense. 

After  going  to  trial  an  indictment  for 
robbery  cannot  be  amended  by  in- 
serting the  word  "  feloniously  "  before 
the  word  *'  rob."  State  v.  Durbin,  20 
La.  Ann.  408. 

Striking  Out  Material  Words. — Where 
the  defendant  was  indicted,  in  the  lan- 
guage of  the  statute,  for  an  "  attempt 
to  set  at  liberty  or  rescue"  a  person, 
it  was  error  to  allow  the  state's  attor- 
ney after  the  argument  to  strike  out 
the  words  "or  rescue  "  and  to  enter 
nol.  pros,  on  that  charge.  Patrick  v. 
People,  132  111.  529. 

Name  of  Owner  of  House. — An  indict- 
ment for  burglary  of  the  house  of  Jere- 
miah B.  Fuller  cannot  be  amended  to 
conform  to  proof  that  the  owner  's 
name  was  Jedediah  B.  Fuller,  unless 
in  the  presence  and  with  the  concur- 
rence of  the  grand  jury  or  with  the 
consent  of  the  accused,  under  Rhode 
Island  Pub.  Stat.,  c.  248,  §  4.  It  is 
matter  of  substance.  State  v.  Mc- 
Carty,  17  R.  I.  370. 

Time  of  Death. — An  indictment  for 
murder  which  charges  that  "of  said 
mortal  wounds  said  A.  did  immediately 
languish,  and  languishing  did  die,"  is 
defective  in  not  specifically  alleging 
when  and  how  long  after  the  wound- 
ing the  death  occurred.  The  defect 
is  not  cured  by  the  statute  of  jeofails 
and  will  authorize  the  quashing  of  the 
indictment.     State    v..  Sides,   64   Mo. 

383- 

1.  Sanders  v.  State,  26  Tex.  119; 
State  I/.  Davidson,  36  Tex.  325;  Dick- 
son V.  State,  20  Fla.  800.  See  also 
State  V.  Beckwith,  i  Stew.  (Ala.)  318; 
Com.  V.  Seymour,  2  Brewst.  (Pa.)  567; 
State  V.  Roach,  2  Hayw.  (N.  Car.) 
352;  State  V.  Sexton,  3  Hawks  (N. 
Car.)  184.  Compare  State  v.  Elliot, 
34  Tex.  148;  State  v.  Pierre,  39  La. 
Ann.  915. 


Mere  Clerical  Error. — Under  the  lo-wa 
Code,  §  4538,  which  provides  that  on 
appeal  the  court  must,  without  regard  to 
technical  errors  not  affecting  substan- 
tial rights,  render  judgment,  where, 
by  a  clerical  error,  an  indictment 
charged  the  defendant  with  larceny  on 
a  day  in  1890  which  was  an  impossible 
date,  a  conviction  was  not  disturbed 
for  allowing  an  amendment  placing 
the  date  in  1888,  as  it  was  sufficiently 
alleged  in  another  part  of  the  indict- 
ment. State  V.  Brooks  (Iowa,  1892), 
52  N.  W.  Rep.  240. 

In  New  Hampshire.^An  indictment 
charging  the  commission  of  a  burglary 
on  a  day  subsequent  to  the  time  of 
finding  the  indictment  may  be  amended 
under  the  statute  on  demurrer  or  on 
motion  so  as  to  state  the  true  date; 
and  if  not  thus  amended,  it  will  be 
cured  by  verdict.  State  v.  Blaisdell, 
49  N.  H.  81. 

2.  Com.  V.  Buzzard,  5  Gratt.  (Va.) 
694,  where  it  was  held  not  to  be 
amendable,  although  the  record  of  the 
court  and  the  indorsement  on  the  in- 
dictment showed  the  correct  name. 
See  State  v.  New  Jersey  Turnpike  Co., 
16  N.  J.  L.  222. 

In  McGuire  v.  State,  35  Miss.  366, 
it  was  held  that  the  court  has  no  power 
to  amend  an  indictment  by  correcting 
a  mistake  in  the  Christian  name  of  the 
defendant  without  the  consent  of  the 
grand  jury  which  found  the  indict- 
ment. The  case  was  decided  before 
the  enactment  of  the  Mississippi  sldituic 
of  amendments. 

3.  State  V.  Lyon,  47  N.  H.  416,  hold- 
ing that  a  defect  therein  could  not 
be  amended  under  the  New  Hamp- 
shire statute  authorizing  amendments 
"  where  the  person  or  cause  may  be 
rightly  understood  by  the  court,"  "or 
for  defect  or  want  of  form  or  addition 
only." 

4.  State  V.  Goodrich,  46  N.  H.  186. 
See  also  State  v.  Chamberlain,  6  Nev. 
257;  Collins  V.  State,  6  Tex.  App. 
647. 


691 


In  Criminal  Proceedings.  AMENDMENTS.  Of  Indictments. 

thorize  amendments  of  form  only,  an  amendment  by  inserting  the 
name  of  the  county  in  which  the  offense  was  committed  was  held 
to  be  erroneous.* 

(5)  What  Constitutes  Form — in  General.— A  defect  that  does  not 
affect  the  merits  of  the  case  or  the  evidence  necessary  to  be  given 
to  maintain  the  indictment  can  be  regarded  as  only  formal.* 

Defective  Introduction. — Where    an   indictment    read,  "  The    grand 

jurors  impaneled  and  sworn,"  etc.,  "upon  their present,"  the 

attorney  for  the  state  was  properly  given  leave  to  amend  by  insert- 
ing the  word  "oath."^ 

Informal  Conclusion. — An  indictment  "  against  the  peace  of  the 
state  "  may  be  so  amended  by  the  prosecuting  attorney,  with 
leave  of  the  court,  as  to  read  "against  the  peace  and  dignity  of 
ihe  state  "  so  as  to  conform  to  the  constitution.*  So  the  entire 
omission  of  that  conclusion  may  be  remedied  by  amendment, 
although  the  clause  is  required  by  the  constitution  of  the  state.* 

Name  of  Person  Defrauded. — An  indictment  for  forgery  with  intent  to 
cheat  and  defraud  a  certain  person  may  be  amended  by  striking 
out  tiie  name  of  the  person.® 

Signature  of  District  Attorney. — Where  there  is  no  law  requiring  the 
district  attorney  to  sign  a  bill  of  indictment,  an  amendment  by 
affixing  his  signature  is  regarded  as  merely  formal.'' 

b.  By  Statute — (i)  Constitutionality  of  Acts — Changing  the  Crime. 
— It  is  plain  that  the  legislature  cannot  constitutionally  authorize 
an  amendment  in  substance  which  will  change  an  indictment 
found  by  a  grand  jury  so  as  to  substitute  one  crime  for  another 
charged  therein  ;**  nor,  if  the  indictment  fail  to  set  out  any  crime, 

1.  State  V.  Armstrong,  4  Minn.  335.  which  described  the  particeps  as  Rox- 

2.  State  V.  Arnold,  50  Vt.  731.  See  cena  Whitney,  by  inserting  after  that 
also  State  f.  Hilton,  41  Tex.  565;  Long  name  the  words  "otherwise  called 
V.  State,  I  Tex.  App.  466.  Rosa  Whitney,"  and  it  was  held  to  be 

Unnecessary  Amendment. — Allowance  only  formal.     State   v.  Arnold,  50  Vt. 

of  an  amendment  which  was  not  neces-  731. 

sary  is  not  error.     Hammond  !».  State,         4.  State  v.    Cain,   4   Blackf.   (Ind.) 

14  Md.  135.  512. 

3.  The  amendment  was  of  no  conse-        6.  State  v.  Amidon,  58  Vt.  524. 
quence.     State  v.  Moore,  i  Ind.  548.  6.   Hawthorn  v.  State,  56  Md.  530. 

Under  the  Louisiana  statute  of  1855  7.   State   v.   Crenshaw,  45   La.   Ann. 

providing  against  the  crime  of  arson,  496. 

the  state  will  be  allowed  to  amend  the  In  Texas,  Paschal's  Dig.,  art.  2977, 

indictment  in  all  matters    relating  to  provides  that  "  when  the  exception  to 

the  form  thereof.  an  indictment  is  merely  on  account  of 

After  the  jury  was  impaneled  and  form,  the  same  shall  be  amended  if 
the  trial  commenced,  the  district  attor-  decided  to  be  defective,  and  the  cause 
ney  moved  to  amend  the  indictment  proceed  upon  such  amended  indict- 
by  inserting  the  words  "the  aforesaid  ment." 

barn  and  stable  being,"  which  was  al-  It  seems  that  if  an  indictment  does 

lowed   by  the  court.       Held,  that    the  not  show  on  its  face  that  it  was  found 

amendment    did    not    alter   the    sub-  in  the  "  district  court "  of  the   proper 

stance   of  the   indictment  or  create  a  county,  the    defect    is  merely    formal 

new    or    different    charge.       State    v.  and    may    be    cured    by    am'-ndment. 

Elder,  21  La.  Ann.  157.  Mathews  v.  State, 44  Tex.  376;  Walker 

On    the  trial  of  an   indictment    for  v.  State,  7  Tex.  App.  52;  Long  v.  State, 

adultery  the  prosecution  was  properly  i  Tex.  App.  466. 

allowed    to     amend     the     indictment  8.  State  v.  Startup,  39  N.  J.  L.  432. 

692 


In  Criminal  Proceedings.  AMENDMENTS. 


Of  Indictments. 


can  the  court  so  amend  it  as  to  charge  the  crime  which  it  is  sup- 
posed the  jury  intended.* 

Variance  in  Particulars. — But  statutes  have  been  declared  constitu- 
tional which  provide  that  when  a  variance  between  the  allegation 
contained  in  the  indictment  and  the  proof  shall  arise  in  respect 
to  time  or  in  the  name  or  description  of  any  place,  person,  or 
thing,  the  court  may  direct  an  amendment  according  to  the  proof, 
if  it  shall  be  of  opinion  that  the  defendant  cannot  be  prejudiced 
thereby  in  his  defense  on  the  merits.*  A  similar  statute  was 
held  to  apply  to  indictments  pending  at  the  time  of  its  enact- 
ment, and  not  to  be  an  ex  post  facto  law.' 

Misnomer  of  Accused. — A  statute  directing  that  where  the  accused 
is  indicted  under  a  wrong  name  and  he  gives  his  true  name  when 
arraigned,  it  shall  be  so  entered  on  the  minutes,  and  he  shall  be 
tried  under  his  true  name,  is  constitutional.'* 

Allegation  of  Former  Conviction. — The  validity  of  a  statute  allowing 
the  amendment  of  an  allegation  of  a  former  conviction  was 
upheld.' 

Amendment  in  Defendants  Absence. — The  absence  of  the  accused,  when 
the  hearing  of  a  motion  for  amendment  is  had,  will  not  vitiate  the 
proceedings.® 

(2)  Navies,  Dates,  Descriptions,  etc. — In  many  of  the  states  the 
statute  provides  for  an  amendment  to.  correct  an  error  in  names, 
dates,  or  descriptions  of  persons  or  things,'  or  to  cure  variances 


See    also   Ex  p.    Bain,    I2r    U.    S.    i; 
State  V.  Springer,  43  Ark.  91. 

A  statute  allowing  amendments  in 
those  cases  where  the  "defendant 
will  not  be  unjustly  prejudiced 
thereby"  was  construed  to  confine 
amendments  to  matters  of  form. 
State  V.  Armstrong,  4  Minn.  335. 

1.  State  V.  Startup,  39  N.  J.  L.  423. 

2.  People  V.  Johnson,  104  N.  Y.  213; 
People  V.  Herman,  45  Hun  (N.  Y.) 
175;  Peebles  v.  State,  55  Miss.  434. 

3.  State  V.  Manning,  14  Tex.  402. 

4.  People  V.  Kelly,  6  Cal.  210.  See 
also  Morris  v.  State,  4  Tex.  App.  589. 

The  Missouri  statute  providing  that 
if  a  defendant  be  indicted  by  a  wrong 
name  and  he  does  not  declare  his  true 
name  before  pleading,  he  shall  be 
proceeded  against  by  the  name  in  the 
indictment,  and  if  he  allege  that 
another  name  is  his  true  name  it  must 
be  entered  on  the  minutes  of  the 
court,  and  after  such  entry  the  trial 
and  all  other  proceedings  shall  be  had 
against  him  by  that  name,  referring 
also  to  taht  name  by  which  he  is  in- 
dicted, etc,,  is  constitutional.  State 
V.  Schricker.  29  Mo.  265. 

5.  Com.   V.   Holley,  3  Gray  (Mass.) 


458,  holding  that  it  was  not  a  violation 
of  the  I2th  article  of  the  Declaration 
of  Rights,  which  directs  that  no  sub- 
ject shall  be  held  to  answer  for  any 
crime  or  offense  until  the  same  is 
fully,  plainly,  substantially,  and  for- 
mally described  to  him. 

6.  State  V.  Dominique,  39  La.  Ann. 

323- 

7.  New  York. — By  §  293  of  the  New 
York  Code  of  Criminal  Procedure 
power  is  given  to  the  court  to  allow 
certain  amendments  to  obviate  the 
difficulties  presented  by  a  "  variance 
between  the  allegations  therein  and 
the  proof,"  viz.,  (i)  "  in  respect  to  time 
or  (2)  in  the  name  or  description  of 
any  place,  person,  or  thing." 

In  a  prosecution  for  burglary  the 
court  properly  allowed  an  amendment 
to  cure  a  variance  between  the  names 
of  the  owners  of  the  property  entered 
and  the  proof,  and  also  in  the  descrip- 
tion of  such  persons.  People  v.  Rich- 
ards, 44  Hun  (N.  Y.)  278. 

The  name  of  the  owner  of  property 
stolen  was  changed  in  People  v.  Her- 
man, 45  Hun  (N.  Y.)  175. 

Where  an  indictment  for  seduction 
under  promise  of  marriage  is  defective 


693 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Indictments. 


ip  not  giving  the  correct  surname  of 
the  female,  the  court  on  the  trial  has 
power  to  cure  the  defect  by  directing 
an  amendment.  People  v.  Johnson, 
104  N.  Y.   213,  afg  4  N.  Y.   Ct.   Rep. 

591- 

New  Jersey. — Under  a  statute  pro- 
viding that  any  defect  of  form  or 
substance  apparent  on  the  face  of 
the  indictment  may  be  amended, 
an  indictment  charging  that  the  de- 
fendant did  send  and  convey  an  inde- 
cent letter,  etc.,  is  amendable  by  in- 
serting send  or  convey  so  as  to  accord 
with  the  language  of  the  statute  cre- 
ating the  offense.  Larison  v.  State, 
49  N.  J.  L.  256. 

Alabama. — The  Alabama  Code  pro- 
viding for  amendments  of  indictments 
in  certain  particulars  with  the  consent 
of  the  defendant  was  construed  to  for- 
bid any  amendment  even  in  an  imma- 
terial matter  without  the  defendant's 
consent.  Gregory  v.  State,  46  Ala. 
151;  Johnson  v.  State,  46  Ala.  212. 

An  indictment  containing  a  single 
count  charged  that  the  defendant 
feloniously  took  and  carried  away 
three  one-dollar  bills  and  also  two  five- 
dollar  bills,  and  the  proof  showed  that 
he  took  two  five-dollar  bills  and  three 
ten-dollar  bills,  but  no  one-dollar  bills 
It  was  held  to  be  a  case  of  a  mis- 
description within  the  meaning  of 
the  Code,  and  amendable  with  the  con- 
sent of  the  defendant,  or  that  the 
prosecution  might  be  dismissed  on  his 
refusal  to  consent,  as  provided  by  the 
Code.     Reynolds  v.  State,  92  Ala.  44. 

An  indictment  for  larceny  or  for  re- 
ceiving stolen  goods  may  be  amended 
with  the  consent  of  the  defendant  in 
the  averment  of  the  Christian  name  of 
the  person  to  whom  the  goods  belong; 
and  the  fact  that  the  defendant  ob- 
jected to  the  amendment,  and  only  con- 
sented to  it  in  order  to  avoid  being 
bound  over  to  answer  a  new  indict- 
ment at  the  next  term,  does  not  render 
the  allowance  of  the  amendment  im- 
proper.    Ross  V.  State,  55  Ala.  177. 

Missouri. — A  mistake  in  an  indict- 
ment which  stated  that  the  defendant 
with  a  knife  did  feloniously  assault 
and  wound  one  Dunlop,  by  means  of 
which  wounding  the  life  of  the  said 
Craighead  was  then  and  there  endan- 
gered, etc.,  is  cured  by  §  27,  art.  4  of 
the  act  of  Practice  in  Criminal  Cases, 
Rev.  Code,  1170,  the  mistake  being 
merely  clerical  and  in  no  way  tending 
to  prejudice  the  substantial  rights  of 


the  defendant.  State  v.  Craighead, 
32  Mo.  561. 

Florida. — Under  the  Florida  statute 
the  inserting  of  a  middle  letter  in  the 
name  of  the  accused  may  be  struck 
out.      Burroughs  v.  State,  17  Fla.  643. 

Pennsylvania. — The  statute  provides 
for  an  amendment  to  correct  a  vari- 
ance "in  the  name  or  descriptionof  any 
person  or  persons  *  *  *  stated  or  al- 
leged to  be  the  owner  or  owners  of 
any  property  *  *  *  which  shall  be  the 
subject  of  any  offense  charged 
therein." 

An  indictment  laid  the  property 
stolen  as  the  property  of  A.  and  B. 
On  the  trial,  the  evidence  showing 
that  the  property  was  stolen  at  the 
same  time  and  place,  it  was  not  error 
to  amend  by  laying  special  portions  as 
the  goods  of  A.  and  other  portions  as 
the  goods  of  B.  Rosenberger  v.  Com., 
118  Pa.  St.  77. 

An  indictment  may  be  amended  by 
striking  out  the  name  of  the  alleged 
owner  of  stolen  goods  and  inserting 
the  words  "  some  person  unknown." 
Com.  V.  O'Brien,  2  Brewst.  (Pa.)  566. 

In  an  indictment  for  selling  liquor, 
the  name  of  the  person  to  whom  the 
liquor  was  sold  was  left  blank.  On  the 
trial,  after  a  witness  had  been  exam- 
ined, the  court  allowed  a  name  to  be 
inserted,  and  the  decision  was  sus- 
tained under  a  statute  providing  that 
"  It  shall  and  may  be  lawful  for  the 
court  before  whom  the  trial  shall  be 
had,  if  it  shall  consider  such  variance 
not  material  to  the  merits  of  the  case, 
and  that  the  defendant  cannot  be  prej- 
udiced in  his  defense,  upon  such 
merits  to  order  such  indictment  to  be 
amended  according  to  the  proof." 
Rough  V.  Com.,  78  Pa.  St.  495. 

After  the  jury  are  impaneled  on  the 
trial  for  a  homicide,  an  amendment 
changing  the  time  laid  in  the  indict- 
ment may  be  made.  Myers  v.  Com., 
79  Pa.  St.  308. 

Louisiana.— The  statute  authorizes 
the  correction  of  a  variance  in  the 
statement  of  the  ownership  of  prop- 
erty. An  indictment  for  larceny  may 
be  amended  in  this  respect,  not  merely 
in  the  name  but  in  the  ownership  it- 
self. State  z/.  Dominique,  39  La.  Ann. 
323;  State  V.  Ware,  44  La.  Ann.  954; 
State  V.  Hanks,  39  La.  Ann.  234. 

An  indictment  for  burglary  ana  lar- 
ceny may  be  repeatedly  amended 
during  the  trial  of  the  case,  in  order  to 
set  forth  the  names  of  the  real  owners 


694 


In  Criminal  Proceeding^. 


AMENDMENTS, 


Of  Indictments. 


of  the  property  charged  to  have  been 
stolen.  State  v.  Christian,  30  La. 
Ann.  (Pt.  I.)  367. 

Where  a  party  indicted  as  E.  Bu- 
chanan is  arraigned  and  pleads  as 
Amos  Buchanan,  which  is  his  true 
name,  the  state,  during  the  progress  of 
the  trial,  may  amend  the  indictment 
by  setting  out  the  true  name  under  the 
express  terms  of  Louisiana  Rev.  Stat., 
^  1047.  State  V.  Buchanan,  35  La. 
Ann.  8g. 

Where  an  indictment  correctly  con- 
tains the  defendant's  name,  but  there 
is  a  variance  on  the  endorsement,  the 
latter  may  be  corrected  at  any  time  to 
conform  to  the  description  in  the  body 
of  the  indictment.  No  advantage  can 
be  taken  of  the  defective  endorsement 
corrected  and  amended  with  the  con- 
sent of  the  defendant  in  open  court, 
aided  and  assisted  by  his  counsel. 
State  V.  Anderson,  45  La.  Ann.  651. 

An  indictment  for  forgery  contain- 
ing the  purport  or  tenor  of  the  instru- 
ment stated  to  have  been  forged,  and 
setting  forth  the  words  of  such  instru- 
ment, may  be  amended  during  the 
trial  by  substituting  the  word  "oblige" 
for  the  word  "  charge  "  at  the  conclu- 
sion thereof.  Variance  not  material. 
Section  1047,  R.  S.  Laws,  provides  for 
amendments  to  correct  variances  "in 
the  name  or  description  of  any  matter 
or  thing,  if  such  a  variance  is  not  ma- 
terial, or  the  defendant  is  not  preju- 
diced," etc.  State  v.  Sullivan,  35  La. 
Ann.  844. 

Virginia. — Code,  §  3999,  gives  the 
court  authority  to  correct  a  misnomer. 

An  indictment  against  "  S.  C."  may 
be  amended  so  as  to  be  against  "  S.  S., 
alias  S.  C."  Shifflett  v.  Com.  (Va., 
1894),  18  S.  E.  Rep.  838. 

Vermont. — The  statute  provides  that 
when  a  variance  appears  between  the 
averments  and  evidence  offered  in 
proof  in  the  name  of  any  person  al- 
leged to  be  the  owner  of  any  property 
which  forms  the  subject  of  the  offense 
charged,  etc.,  the  court,  if  it  considers 
such  variance  not  material  to  the 
merits,  and  the  amendment  cannot  be 
prejudicial,  may  order  an  amendment. 

An  indictment  for  the  larceny  of  a 
trunk  which  was  part  of  an  estate,  as 
first  presented,  alleged  ownership 
thereof  in  the  administrator  of  the 
estate,  who  was  taking  it  to  the  person 
to  whom  it  had  been  assigned.  The 
administrator  was  a  passenger,  and 
the  trunk  baggage,  on  the  train  of  a 


railroad  company,  in. whose  posses- 
sion the  trunk  was  when  stolen.  It 
was  held  that  the  court  properly  al- 
lowed the  indictment  to  be  amended 
by  substituting  as  owner  the  name  of 
the  railroad  company  for  that  of  the 
administrator.  Acts  1882  permitting 
amendments  in  such  cases  when  the 
trial  court  considers  the  amendment 
not  prejudicial  to  the  defendant.  State 
V.  Casavant,  64  Vt.  405. 

Mississippi. — The  Mississippi  Code  of 
1880,  g  30S1,  provides  that  "Whenever, 
on  the  trial  of  an  indictment  for  any 
offense,  there  shall  appear  to  be 
any  variance  between  the  statement 
in  such  indictment  and  the  evidence 
offered  in  proof  thereof,  in  the  name 
of  any  person  alleged  to  be  the  owner 
of  any  property,  real  or  personal, 
which  shall  form  the  subject  of  any 
offense  charged  therein,  it  shall  be 
lawful  for  the  court,  if  it  shall  con- 
sider such  variance  not  material  to 
the  merits  of  the  case  and  that  the  de- 
fendant will  not  be  prejudiced  there- 
by in  his  defense  on  the  merits,  to 
order  such  indictment  to  be  amended 
according  to  the  proof  on  such  terms, 
as  to  postponing  the  trial,  as  such 
court  shall  think  advisable."  Under 
this  statute,  an  indictment  for  going 
upon  the  land  of  another  may  be 
amended  by  striking  out  the  name  of 
the  owner  of  the  land  as  therein  stated 
and  inserting  that  of  the  true  owner 
as  developed  by  the  proof.  Knight  v. 
State,  64  Miss.  802. 

The  name  of  the  owner  of  stolen 
property  may  be  amended.  Haywood 
V.  State,  47  Miss,  i;  Garvin  v.  State, 
52  Miss.  207.  See  also  Murrah  v. 
State,  51  Miss.  675. 

An  amendment  of  an  indictment  for 
selling  liquor  by  striking  out  "and  to 
divers  other  persons  "  is  allowed. 
Rocco  V.  State,  37  Miss.  357. 

If,  on  a  trial  for  murder,  the  defend- 
ant discloses  that  the  Christian  name 
of  the  deceased  is  erroneously  written 
in  the  indictment,  the  court,  upon  mo- 
tion of  the  district  attorney,  may 
order  it  amended  by  substituting  the 
real  Christian  name,  and  the  trial 
should  proceed  unless  the  amendment 
causes  surprise  and  consequent  prej- 
udice to  the  defendant.  Miller  v. 
State,  68  Miss.  221. 

The  name  of  the  person  assaulted 
may  be  changed,  provided  it  is  the 
same  person.  Miller  v.  State,  53  Miss. 
403;  Wood  V.  State,  64  Miss.  761. 


695 


In  Criminal  Proceedings.  AMENDMENTS. 


Of  Informations. 


in  other  respects  where  the  defendant  will  not  be  prejudiced 
on  the  merits.*  Where  the  identity  of  the  particular  indi- 
vidual is  material  and  made  a  part  of  the  offense  charged — 
as,  for  instance,  the  name  of  the  female  in  an  indictment  for 
rape,*  or  the  name  of  the  person  to  whom  liquor  was  sold  in  an 
indictment  for  an  unlawful  sale' — a  change  in  the  name  of  the 
person  has  not  been  permitted. 

2.  Of  Informations — Distinguished  from  indictments. — Criminal  informa- 
tions which  are  not  found  upon  the  oath  of  a  jury  may  be 
amended  by  the  court,  and  even  by  a  single  judge  at  chambers, 
at  any  time  before  trial  ;*  and  the  reason  assigned  for  the  differ- 
ence between  indictments  and  informations  in  this  respect  is  that 
the  latter  are  originally  framed  by  an  ofificer  of  the  government, 
while  the  former  are  the  accusations  of  a  number  of  men  sworn 
to  inquire  and  decide  according  to  the  evidence.* 


The  mere  omission  of  the  word 
"manner"  after  the  words  "rude, 
angry,  and  threatening,"  in  an  indict- 
ment for  exhibiting  a  deadly  weapon, 
is  a  formal  defect  and  the  subject  of 
amendment.  Gomblin  v.  State,  45 
Miss.  658,  decided  under  a  statute  pro- 
viding that  "  After  objection  has  been 
made  by  demurrer  or  motion  to  quash 
for  any  formal  defect,  the  court  may, 
if  thought  necessary,  cause  the  indict- 
ment to  be  forthwith  amended." 

1.  English  Authorities. — Statutory 
provisions  of  a  similar  description 
are  contained  in  chap.  100  of  14 
and  15  Vic.  sec.  i,  and  chap.  45 
of  12  and  13  Vic.  sec.  10.  And  under 
these  provisions  in  Reg.  v.  Fullarton, 
6  Cox  C.  C.  194,  where  the  title  to 
stolen  property  was  laid  in  the  wrong 
person,  it  was  held  that  the  indictment 
might  be  amended  in  this  respect  upon 
the  trial.  This  practice  was  also  fol- 
lowed in  Reg.  v.  Vincent,  2  Den.  C.  C. 
464.  There  the  change  was  made 
from  the  name  of  Matthew  Archard  to 
London  Dock  Company.  And  a  some- 
what similar  change  was  allowed  in 
Reg.  V.  Pritchard,  8  Cox  C.  C.  461, 
under  a  still  earlier  statute  enacted 
during  the  reign  of  George  IV. 
This  practice  was  also  followed  in  the 
case  of  an  indictment  with  intent  to 
kill  in  Reg.  v.  Welton,  9  Cox  C.  C. 
297.  And  the  addition  of  the  word 
"  trustees  "  to  the  names  of  the  per- 
sons mentioned  in  the  indictment  was 
permitted  in  Reg.  v.  Marks,  10  Cox 
C.  C.  367.  And  in  the  description  of 
the  offices  of  certain  justices  named  in 
an  indictment  for  perjury  in  Reg.  v. 
Western,  11  Cox  C.  C.  93. 


2.  State  V.  Morgan,  35  La.  Ann. 
II39- 

3.  Blumenberg  v.  State,  55  Miss. 
528. 

4.  State  z/.  White,  64  Vt.  372,  where, 
after  plea  and  jury  sworn,  the  defend- 
ant moved  to  dismiss  on  the  ground 
that  the  prosecution  was  barred  by  the 
statute  of  limitations,  and  the  court 
allowed  the  information  to  be  amended 
by  changing  the  date  of  the  alleged 
offense. 

After  Plea  in  Abatement. — In  State 
V.  Washington,  15  Rich.  (S.  Car.) 
39,  it  was  held,  upon  a  construction 
of  statutory  provisions,  that  an  infor- 
mation for  larceny  was  amendable 
after  plea  in  abatement  for  misnomer 
by  inserting  the  real  name. 

After  Plea  in  Bar. — Under  the  Eng- 
lish practice,  amendments  of  informa- 
tions are  allowed  after  a  plea  in  bar. 
Rex  V.  Wilkes,  4  Burr.  2527.  And 
even  after  objection  by  plea  in  abate- 
ment. Rex  V.  Seaward,  2  Ld.  Raym. 
1472. 

On  the  Trial. — Although  it  is  the 
general  rule  that  no  amendment  of 
an  information  can  be  allowed  after 
the  trial  has  begun,  it  is  the  practice 
in  Connecticut  to  allow  an  amendment 
in  such  a  case  after  the  trial  has  com- 
menced, the  court  in  its  discretion 
allowing  reasonable  delay  if  requested 
by  the  defendant.  State  v.  Stebbins, 
29  Conn.  463. 

5.  Rex  z/.  Wilkes,  4  Burr.  2527;  State 
V.  Weare,  38  N.  H.  314;  Thomas  v. 
State,  58  Ala.  365. 

Information  to  Bemove  Attorney. — An 
information  in  proceedings  to  remove 
an  attorney  is  amendable  the  same  as 


696 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Informations. 


Amendments  Discretionary. — In  the  absence  of  statutory  provisions 
regulating  amendments  of  informations,  the  court  may  permit 
them  to  be  amended  to  any  extent  consistent  with  the  orderly 
conduct  of  judicial  business,  with  the  public  interests,  and  with 
private  rights.*  But  the  court  may  refuse  leave  to  amend;  *  and 
appeals  by  the  state  from  adverse  rulings  are  frowned  upon  in  the 
appellate  court,  because  the  prosecuting  officer  may  expedite  the 
trial  by  submitting  to  the  decision  and  instantly  framing  a  new 
information.^ 


I 


I 


a  complaint  in  a  civil  action.     Thomas 
V.  State,  58  Ala.  365. 

1.  Bishop  Cr.  Pro.  (3d  ed.)  §  714, 
quoted  in  State  v.  Terrebonne,  45  La. 
Ann.  25,  and   State   v.   Doe,   50  Iowa 

541- 

Trivial  Amendments. — An  informa- 
tion charging  the  illegal  sale  of  liquor 
may  be  amended  by  inserting  the 
word  "liquor"  in  the  clause  alleging 
a  prior  conviction  when  the  informa- 
tion would  be  sufficient  without  it. 
State  V.  Nulty,  57  Vt.  543. 

In  State  v.  Weare,  38  N.  H.  314,  an 
information  for  neglect  to  build  a 
highway  was  amended  by  changing 
the  alleged  termini  of  the  highway. 

On  Appeal  from  a  Justice. — In  State 
V.  Merchant,  38  Iowa  375,  it  was 
held  proper  to  amend  an  information 
by  affixing  the  signature  of  the  prose- 
cuting witness  after  trial  before  a 
justice  and  appeal  to  and  before  trial 
in  the  district  court.  And  in  State  v. 
Doe,  50  Iowa  541,  after  conviction  in 
the  justice  court  and  after  a  demurrer 
to  the  information  had  been  sustained 
by  the  district  court  on  appeal. 

After  Motion  to  Qnash. — In  Com. 
V.  Lodge,  6  Gratt.  (Va.)  699,  an 
information  for  perjury  was  amended 
so  as  to  conform  to  the  presentment 
of  the  grand  jury  on  which  it  was 
founded  after  the  appearance  of  the 
defendant  and  motion  to  quash. 

After  Verdict  an  information  can- 
not be  amended  so  as  to  allege  the 
material  facts  constituting  the  offense. 
State  V.  Butcher,  79  Iowa  no. 

Date  of  Offense. — Where  the  original 
information  laid  the  date  of  the  offense 
on  a  day  subsequent  to  the  date  of 
the  information  and  the  latter  was 
amended  by  alleging  the  correct  date, 
a  trial  under  the  amended  information 
without  arraignment  or  plea  was  held 
to  be  erroneous,  as  no  issue  was  joined. 
People  V.  Moody,  69  Cal.  184. 

In  a  prosecution  for  a  misdemeanor 


commenced  in  the  county  court  and 
transferred  to  the  circuit  court  at  the 
instance  of  the  defendant,  the  state- 
ment of  the  cause  of  complaint  which 
the  solicitor  is  required  to  make  and 
which  is  analogous  to  an  information 
at  common  law  may  be  amended  by 
leave  of  the  court  by  averring  the 
time  when  the  offense  was  committed. 
Tatum  V.  State,  66  Ala.  465,  after  plea 
of  the  statute  of  limitations. 

Price  of  Liquors  Sold. — An  informa- 
tion for  selling  liquors  without  a 
license  was  amended  by  inserting  an 
allegation  of  the  price  for  which  the 
liquors  were  sold.  Miles  v.  State,  5 
Ind.  215. 

2.  State  V.  Terrebonne,  45  La.  Ann. 

25- 

After  Offense  Barred  by  Limitation. — 
In  Stale  v.  Rowley,  12  Conn.  loi,  it 
was  held  that  an  information  is  not 
amendable  by  adding  a  new  count  for 
the  offense  already  charged  after  the 
statute  of  limitations  has  run  against 
such  offense. 

Additional  Charges.  —  In  Com.  v. 
Rodes,  I  Dana  (Ky.)  595,  the  court 
refused  to  allow  an  information  to 
be  amended  by  making  additional 
charges. 

Of  Affidavits. — An  amendment  of  af- 
fidavits made  as  a  part  of  criminal  in- 
formations cannot  be  allowed.  U.  S. 
V.  Tureaud,  20  Fed.  Rep.  621. 

Where  no  Offense  Charged. — If  the 
offense  charged  in  the  presentment 
does  not  amount  to  a  misdemeanor, 
the  court  ought  not  to  allow  infor- 
mation to  be  amended.  Com.  v.  Will- 
iamson, 4  Gratt.  (Va.)  554. 

Changing  Name  of  Alleged  Owner. — 
In  State  v.  Van  Cleve,  5  Wash.  642,  it 
was  held  that  the  Christian  name  of 
the  owner  of  property  alleged  to  have 
been  stolen  could  not  be  changed  from 
"  Wm."  to  "  Walter." 

3.  State  V.  Terrebonne,  45  La.  Ann. 
25.     See,  however.  State  v.  Merchant, 


697 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Informations. 


Filing  New  Information.  —  The  prosecutor  may  be  permitted  to 
withdraw  an  information  and  file  a  new  one  irrespective  of  any 
question  of  amendment.* 

By  statute. — In  several  states  the  amendment  of  informations  is 
regulated  by  statute.* 


38  Iowa  375.  where  the  refusal  to  al- 
low an  amendment  was  reversed  upon 
appeal  by  the  state. 

1.  State  V.  Gile,  8  Wash.  12. 

2.  Texas. — The  Texas  statute  pro- 
vides that  no  matter  of  substance  can 
be  amended.  Whether  the  substance 
can  be  amended  by  consent  of  the  de- 
fendant, qu(€re.  Brown  v.  State,  11 
Tex.  App.  451. 

Failure  to  Allege  Offense. — An  infor- 
mation which  fails  to  state  an  offense 
cannot  be  amended.  Bates  v.  State, 
12  Tex.  App.  26. 

Date  of  Offense.  —  An  amendment 
changing  the  allegedidate  of  the  offense 
cannot  be  allowed.  Goddard  v.  State, 
14  Tex.  App.  566;  Huff  V.  State,  23 
Tex.  App.  291. 

Complaint. — If  the  complaint  upon 
which  the  information  is  based  is  de- 
fective, a  new  one  cannot  be  filed  so 
as  to  sustain  the  information  without 
bringing  a  new  information.  Paschal 
V.  State,  9  Tex.  App.  205. 

Showing  the  Court. — If  the  informa- 
tion does  not  show  that  it  was  pre- 
sented in  a  court  of  competent  juris- 
diction, as  the  statute  requires,  the 
defect  is  curable  by  amendment. 
Bowen  v.  State,  28  Tex.  App.  498. 

Indorsement.  —  Where  by  inadver- 
tence the  county  attorney  indorsed  on 
a  substituted  information  a  different 
number  from  that  by  which  the  case 
was  originally  entered  upon  the  docket 
and  the  defense  objected  to  the  sub- 
stitute, it  was  held  that  the  mistake 
should  have  been  corrected  upon  mo- 
tion or  by  the  court  upon  its  own 
motion.     Stiff  v.  State,  21   Tex.   App. 

255. 

Kansas. — The  Kansas  Code  Crim. 
Pro.,  §  72,  provides  that  "any  infor- 
mation may  be  amended  in  matter  of 
substance  or  form  at  any  time  before 
the  defendant  pleads,  without  leave. 
The  information  may  be  amended  on 
the  trial  as  to  all  matters  of  form  at 
the  discretion  of  the  court  when  the 
same  can  be  done  without  prejudice 
to  the  rights  of  the  defendant.  No 
amendment  shall  cause  any  delay  of 
the  trial  unless  for  good  cause  shown 
by  affidavit."  See  State  v.  Spencer, 
43  Kan.  114. 


Implied  Leave. — An  amendment  filed 
without  leave  may  by  reason  of  sub- 
sequent motions  and  orders  be  con- 
sidered as  having  the  leave  of  the 
court.  State  v.  Spendlove,  47  Kan. 
160. 

Date  of  Offense. — It  was  held  proper, 
after  the  jury  had  been  impaneled 
and  sworn,  to  permit  an  amendment 
of  the  information  charging  the  offense 
as  committed  at  a  date  prior  to  the 
date  of  the  information  instead  of  sub- 
sequently thereto  as  in  the  original 
information,  the  information  thus 
amended  being  reverified  and  refiled. 
State  V.  Cooper,  31  Kan.  505. 

Name  of  Accused. — The  court  may 
allow  an  information  to  be  amended 
by  inserting  the  name  of  the  defend- 
ant in  the  body  of  the  same  before 
the  defendant  pleads  thereto.  State 
V.  McLain,  43  Kan.  439. 

Verification. — In  State  v.  Gould,  40 
Kan.  258,  it  was  held  not  to  be  error 
to  permit  a  slight  amendment  to  be 
made  to  the  verification  of  the  infor- 
mation. 

Where  the  clerk  fails  to  attach  his 
signature  and  seal  to  the  jurat  of  an 
affidavit  verifying  an  information,  and 
the  defendant  pleads  not  guilty  to  the 
information  while  so  defective,  it  is 
not  error  for  the  court  to  permit  the 
clerk,  before  the  jury  is  called,  to  per- 
fect the  jurat  by  attaching  his  signa- 
ture and  seal;  and  this,  notwithstand- 
ing the  only  evidence  that  the  county 
attorney  in  fact  swore  to  the  affidavit 
subscribed  by  him  before  the  filing  of 
the  information  is  the  oral  statement 
of  the  clerk,  not  under  oath,  that  such 
was  the  fact.  State  v.  Adams,  20 
Kan.  311. 

Michigan. — By  express  statute  the 
defendant  in  an  information  has  the 
same  rights  as  to  all  proceedings 
therein  as  if  prosecuted  for  the  same 
offense  upon  indictment.  Howell's 
Ann.  Stat.,  1882,  §§9550,  9551- 

The  statute  allows  amendments  to 
cure  variances  in  the  name  of  any 
county  or  place,  *  *  *  in  the 
name  or  description  of  any  person  or 
body  stated  to  be  the  owner  of  any 
property  which  is  the  subject  of  the 
offense   charged   or   alleged   to    have 


698 


In  Criminal  Proceedings. 


AMENDMENTS. 


Of  Infcrmations. 


3.  Complaints,  Warrants,  etc- 
may  be  amended  by  leave  of 

been  injured  by  the  commission  of 
the  offense,  or  the  Christian  or  sur- 
name of  any  person,  the  name  or  de- 
scription of  any  thing,  or  the  owner- 
ship of  any  property,  and  in  all  cases 
whenever  the  variance  is  not  material 
to  the  merits  of  the  case;  and  also 
where  misnomer  has  been  pleaded. 
Howell's  Ann.  Stat.,  1882,  §  7537. 

Describing  Offense. — An  amendment 
which  only  renders  the  charge  more 
specific  by  describing  the  acts  consti- 
tuting the  same  offense  is  proper. 
People  V.  McCullough,  81  Mich.  25. 

Intent. — An  information  for  embez- 
zling may  be  amended  upon  objection 
being  raised  before  plea  by  charging 
the  statutory  intent.  People  v. 
Schultz,  85  Mich.  114. 

Date  of  Death. — In  an  information 
for  murder  an  amendment  showing 
the  true  date  of  the  death  of  the  de- 
ceased is  permissible.  People  v. 
Hamilton,  76  Mich.  212. 

Description  of  Property. — In  an  in- 
formation for  larceny  a  more  particu- 
lar description  of  the  property  stolen 
may  be  set  forth  by  amendment. 
People  V.  Price,  74  Mich.  37. 

Place  of  Offense. — And  an  informa- 
tion charging  larceny  in  one  township 
may  be  amended  by  charging  it  to  have 
been  committed  in  another  township 
in  the  same  county.  People  v.  Waller, 
70  Mich.  237. 

Description  of  Note. — In  People  v. 
Mott,  34  Mich.  81,  certain  words 
omitted  in  the  description  of  a  note 
which  was  alleged  to  have  been 
fraudulently  obtained  were  added  by 
amendment. 

Forrner  Marriage  in  Bigamy. — In 
People  V.  Perriman,  72  Mich.  184,  an 
information  for  bigamy  was  amended 
by  changing  the  name  of  the  county 
where  the  first  marriage  was  alleged 
to  have  taken  place. 

Date  of  Offense. — An  information 
charging  the  commission  of  an  offense 
at  a  date  subsequent  to  the  filing  of 
the  information  is  cured  by  the  statute 
which  provides  that  no  indictment 
shall  be  insufficient  which  states 
among  other  things  that  the  offense 
was  committed  on  an  "impossible 
day."     Cole  v.  People,  37  Mich.  544. 

Charging  Different  Offense. — Where 
the  accused  waives  a  preliminary  ex- 
amination and  is  informed  against  for 


-A  complaint    of   a   grand  juror 
the  court,  where    an  indictment 

one  offense,  the  information  cannot  be 
amended  so  as  to  charge  him  with  a 
different  offense  subject  to  a  different 
penalty.  People  v.  Handley,  93  Mich. 
46. 

After  Evidence  Closed. — And  an  in- 
formation alleging  no  offense  of  which 
the  court  has  jurisdiction  cannot  be 
amended,  after  the  proofs  are  in,  so 
as  to  charge  a  cognizable  offense. 
Byrnes  v.  People,  37  Mich.  515. 

After  Verdict.  —  An  information 
charging  a  statutory  offense  cannot 
be  amended  after  verdict  so  as  to  in- 
clude another  offense  found  by  the 
jury.  Turner  v.  Muskegon  Circuit 
Judge,  88  Mich.  359. 

^f(er  Judgment.  —  An  information 
which  does  not  allege  an  offense  known 
to  the  law  cannot  after  judgment  be 
so  amended  as  to  charge  one  and  sus- 
tain a  conviction.  Bickford  v.  Pec  le, 
39  Mich.  209. 

Wisconsin — To  Conform  to  Proof. — 
An  information  charging  the  de- 
fendant with  stealing  a  certain  sum, 
the  property  of  A.,  may  be  amended 
at  the  trial  so  as  to  charge  the  theft 
of  a  different  sum,  the  property  of 
A.  and  B. ,  under  Wisconsin  Rev.  Stat., 
§  4703,  authorizing  amendments  of  in- 
formations to  conform  to  the  proof 
where  the  variance  is  immaterial  or 
relates  to  the  ownership  of  property 
described.  Bakers/.  State  (Wis.,  1894), 
59  N.  W.  Rep.  570. 

Name  of  Thief. — The  failure  in  an 
information  for  receiving  stolen  goods 
to  aver  who  stole  the  property,  or  to 
negative  knowledge  on  that  subject, 
may  be  remedied  by  amendment.  State 
V.  Jenkins,  60  Wis.  599. 

Amendment  Ex  Mero  Motu.  —  A 
proper  amendment  of  the  information 
may  be  directed  by  the  trial  judge  of 
his  own  motion.  State  v.  Jenkins,  60 
Wis.  599. 

Missouri. — Under  the  Missouri  stat- 
ute an  informality  in  the  afliidavit  may 
be  cured  by  filing  a  new  one.  State  v, 
McCray,  74  Mo.  303. 

Nebraska. — The  statute,  after  enu- 
merating certain  imperfections  which 
will  not-  invalidate  an  information, 
concludes:  "Nor  for  any  other  de- 
fect or  imperfection  which  does  not 
tend  to  the  prejudice  of  the  substan- 
tial rights  of  the  defendant  upon  the 
merits.      Where   an   amendment    was 


699 


In  Criminal  Proceedings.  AM  A  A  DMEI\  TS.      Complaints,  Warrants,  etc. 


or  an  information  can  be  so  amended.*  But  the  complaint 
being  upon  the  oath  of  the  grand  juror,  it  cannot  be  amended  in 
the  appellate  court  in  substance  where  an  indictment  cannot  be 
so  amended.*  Cases  in  various  jurisdictions  relating  to  the 
amendment  of  complaints,  warrants,  and  other  proceedings  in 
inferior  courts,  or  on  appeal  therefrom,  are  cited  in  the  note.^ 


allowed  which  was  unnecessary  there 
can  be  no  prejudice.  Braithwait  v. 
State,  28  Neb.  832. 

Louisiana. — On  the  trial  under  an 
information  for  shooting  with  a  dan- 
gerous weapon,  to  wit,  a  pistol,  the 
information  may  be  amended  by  sub- 
stituting the  word  "  gun"  for  "  pistol." 
State  V.  Finn,  31  La.  Ann.  408. 

/?afe  of  Forged  Bill. — An  amendment 
changing  the  date  of  the  bill  alleged 
to  have  been  forged  was  allowed  dur- 
ing the  trial.  State  v.  Snow,  30  La. 
Ann.  401. 

Indiana. — In  Indiana,  where  a  de- 
fendant is  charged  before  a  justice  of 
the  peace  with  the  offense  of  receiv- 
ing stolen  goods  and  is  recognized  to 
appear  in  the  circuit  court,  the  state 
may  there  file  an  amended  affidavit 
and  information  in  which  the  accused 
is  charged  in  separate  counts  with  re- 
ceiving stolen  goods  and  with  the  lar- 
ceny of  the  same  goods.  Kennegar  v. 
State,  120  Ind.  176. 

1.  State  V.  Batchelder,  6  Vt.  479. 

2.  State  V.  Wheeler,  64  Vt.  569. 

3.  In  North  Carolina. — The  court  may 
amend  a  justice's  warrant  in  a  crim- 
inal action  in  form  or  substance,  but 
the  amendment  must  not  change  the 
nature  of  the  offense.  North  Carolina 
Code,  §908;  State  v.  Vaughan,  91  N. 
Car.  532;  State  v.  Crook,  91  N.  Car, 
536;  State  V.  Smith,  103  N.  Car.  410; 
State  V.  Sykes,  104  N.  Car.  695;  State 
V.  Wilson,  106  N.  Car.  718;  State  v. 
Baker,  106  N.  Car.  758;  State  v.  Muse, 
4  Dev.  &  B.  (N.  Car.),  319;  State  v. 
Cauble,  70  N.  Car.  62;  State  v.  Norman, 
no  N.  Car.  484,  holding  that  it  is  not 
necessary  that  the  amendment  should 
have  the  concurrence  of  the  justice  or 
that  the  amended  charge  be  resworn. 

The  affidavit  and  warrant  for  selling 
liquors  without  a  license  may  be 
amended.  State  v.  Davis,  in  N.  Car, 
729. 

The  superior  courts  have  the  power 
to  amend  a  warrant  by  a  justice  of  the 
peace  against  a  person  refusing  to 
work  the  road  by  inserting  the  state 
as  plaintiff  instead  of  the  overseer. 
State  V.  Cauble,  70  N,  Car,  62. 


Kansas.  —  Where  a  complaint  be- 
fore a  justice  was  defective  but  was 
amended  and  trial  had  without  verifi- 
cation, it  was  proper  for  the  district 
court  on  appeal  to  permit  the  filing  of 
a  new  and  verified  complaint.  State 
V.  Hinkle,  27  Kan.  308. 

It  was  held  in  Burlington  v.  James, 
17  Kan.  221,  that  where  a  defendant  is 
tried,  convicted,  and  sentenced  by  a 
police  judge  for  the  violation  of  a  city 
ordinance  and  the  defendant  then" ap- 
peals to  the  district  court  and  there 
the  original  complaint  is  quashed,  it 
is  error  for  the  district  court  to  per- 
mit a  new  and  amended  complaint  to 
be  filed  in  that  court  and  to  allow 
defendant  to  be  tried,  convicted,  and 
sentenced  on  the  new  complaint,  as  the 
district  court  has  no  original  jurisdic- 
tion therein. 

In  Massachusetts  the  copies  certified 
by  a  magistrate  to  the  superior  court 
in  a  criminal  case  maybe  amended  by 
him  according  to  the  truth,  after  the 
commencement  of  the  trial  there,  and 
the  defendant  may  be  arraigned  and 
tried  on  the  amended  papers.  Com. 
V.  Magoun,  14  Gray  (Mass.)  398. 

In  Michigan  a  justice  may  before  a 
trial  for  larceny  permit  the  amendment 
of  a  warrant  so  as  to  show  the  value 
of  the  property  stolen;  but  if  he  does 
not  do  so,  the  circuit  court  on  appeal 
cannot  allow  such  amendment.  Peo- 
ple V.  Belcher,  58  Mich.  325. 

After  the  examination  of  a  respond- 
ent on  a  charge  of  larceny,  a  variance 
between  the  complaint  and  warrant  in 
stating  the  name  of  the  owner  of  the 
property,  he  being  described  as  Allen 
Bricker  in  the  complaint  and  as  Allen 
Brinker  in  the  warrant,  is  properly 
corrected  by  the  justice  by  amending 
the  warrant  to  correspond  with  the 
complaint  and  the  testimony  given  on 
the  examination;  and  if  such  amend- 
ment is  not  made,  the  circuit  court  may 
make  it  under  How.  Stat.,  §  9537. 
People  V.  Hilderbrand,  71  Mich.  313. 

Wisconsin, — The  Wisconsin  statute 
provides  that  any  court  of  record  in 
which  the  trial  of  an  indictment  or  in- 
formation is  had  may  forthwith  allow 


700 


In  Criminal  Proceedings.  AMENDMENTS.      Complaints,  Warrants,  etc. 

Amendment  of  Plea  in  Abatement. — Following  the  practice  in  civil  pro- 
ceedings, it  has  been  held  that  a  plea  in  abatement  in  a  criminal 
case  is  not  amendable.* 


an  amendment  in  case  of  a  variance 
between  the  statement  in  the  indict- 
ment or  information  and  the  proof  in 
the  name  or  description  of  the  person. 
On  appeal  from  a  conviction  in  a  jus- 
tice court  for  an  assault  the  circuit 
court  may  permit  the  complaint,  war- 
rant, and  proceedings  to  be  amended 
so  as  to  state  correctly  the  name  of  the 
complaining  witness.  Rasmussen  v. 
State,  63  Wis.  i. 

An  amendment  of  a  misnomer  in  a 
complaint  will  relate  back  so  as  to 
protect  the  officer  serving  the  warrant. 
Keehn  v.  Stein,  72  Wis.  196. 

Mississippi.  —  In  Rocco  v.  State,  37 
Miss.  357,  a  prosecution  for  a  misde- 
meanor, the  state's  attorney  was  per- 
mitted to  withdraw  his  replication  and 
file  a  new  one  after  issue  joined  on  the 
first. 

Vermont.  —  Under  Vermont  Rev. 
Laws  §  3857,  authorizing  amendments 
tocomplaints  by  the  district  attorney  in 
either  a  city  or  county  court  "ex- 
cept as  to  matters  of  substance,"  a 
complaint  in  the  city  court  charging 
the  defendant  with  keeping  intoxicat- 
ing  liquors  contrary  to  law,  and  that 


70 


he  had  been  convicted  for  a  like  of- 
fense at  a  term  of  the  county  court 
"  begun  and  holden  at  B.  in  this 
county  on  the  first  Tuesday"  of  a  cer- 
tain month  and  year,  may  be  amended 
on  appeal  to  the  county  court  so  as  to 
correspond  with  the  record  of  such 
conviction  when  introduced  in  evi- 
dence, which  showed  that  the  term  of 
court  was  begun  on  the  third  Tuesday 
of  that  month  and  year.  State  v. 
Sutton,  65  Vt.  439. 

When  the  complaint  of  a  private 
prosecutor  was  sworn  to  before  the 
warrant  was  issued,  but  no  certificate 
of  the  oath  was  appended  thereto,  the 
defect  was  held  to  be  one  of  form  and 
amendable.  State  v.  Freeman,  59  Vt. 
66r. 

Georgia. — An  accusation  in  a  city 
court  was  amended  after  the  jury 
were  sworn  to  conform  to  a  prior 
agreement  for  such  amendment  by 
counsel  for  the  prisoner,  the  first 
amendment  under  the  agreement  be- 
ing defective.  Barlow  v.  State,  77  Ga. 
448. 

1.  Newman  v.  State,  14  Wis.  393; 
King  V.  Cooke,  9  E.  C.  L.  263. 

I 


AMOUNT    IN    CONTROVERSY. 

By  Richard  F.  Kimball. 

I.  Scope  of  Subject,  703- 
II.  Amount  Claimed,  703- 

1.  In  General,  703. 

2.  When  Claitn  is  Unliquidated,  704. 

3.  In  Actions  Ex  Delicto,  705. 

4.  In  Suits  on  Bonds,  706. 

nL  Amount  Remitted,  707- 

1.  Jurisdiction  Conferred,  707. 

2.  Jurisdiction  Unaffected,  708. 

3.  Jurisdiction  Ousted,  709. 

4.  Jurisdiction  Not  Conferred  on  Appeal,  710. 

IV.  Fictitious  Amount,  710. 
V.  Real  Amount,  712. 

1.  In  General,  712. 

2.  Amount  Must  Appear,  716. 

3.  Amount  Unaffected  by  Agreetnent  of  Parties,  Jiy. 

4.  Atnoioit  Not  Dependent  on  Collateral  Effect  of  Judgment.  718. 

VI.  Amount  Must  Be  Pecuniaey,  719. 
Vn.  AccEUED  Interest,  719- 

1.  When  Calculable,  719. 

2.  When  Not  Calculable — Excluded  by  Statute,  720. 

7in.  Aggregated  Amount,  721. 

1.  Several  Plaintiffs,  721. 

2.  Several  Defendants,  722. 

3.  Several  Claims  in  One  Suit,  722. 

IX.  UN  aggregated  Amount,  724- 
X.  Value  Distinguished  from  Amount,  726. 
XI.  Amount  Immaterial,  728. 
XII.  Appealable  Amount,  731- 

1.  When  Plaintiff  Appeals,  731. 

2.  When  Defendant  Appeals,  732. 

a.  No  Counterclaim  Filed,  732. 

b.  Counterclaim  Filed,  734. 

3.  In  hifermediate  Appeals,  735. 

XIII.  Statutory  Amount— Local  Provisions,  735. 

As  to  Removal  of  Causes  Affected   by  Amount,  see  REMOVAL    OF 

CA  USES. 
As  to  Costs  Affected  by  Amount,  see  COSTS. 

702 


Seope  of  Subject.      AMO  UNT  IN  CONTRO  VERS  V.    Amount  Claimed. 


I.  Scope  of  Subject. — While  the  subject  of  "  Amount  in  Con- 
troversy "  is  exceedingly  extended  in  its  applications  and  rich  in 
illustrations,  it  is  necessarily  at  the  same  time  limited  to  the  set- 
tlement of  no  very  large  number  of  legal  principles.  To  enunciate 
these,  so  far  as  they  may  be  clearly  deducible  from  reported  cases, 
and  to  set  forth  the  local  and  statutory  provisions  as  appearing 
therein,  will  be  the  purpose  of  the  following  article,  the  scope  of 
which  will  be  found  to  be  practically  coincident  with  and  de- 
pendent almost  wholly  upon  a  consideration  of  the  question  of 
the  amount  in  controversy  as  affecting  the  jurisdiction  of  courts, 
original  and  appellate. 

II.  Amount  Claimed— 1.  In  General— It  is  the  claim  as  pre- 
sented, not  the  claim  as  decided  or  allowed,  which  primarily  de- 
termines the  question  of  jurisdiction  in  the  trial  or  lower  court, 
and  hence  constitutes  therein  the  amount  in  controversy.* 


1.  In  the  leading  case  of  Kanouse  v. 
Martin,  15  How.  (U.  S.)  198,  Curtis, 
J.,  said:  "The  words  'matter  in  dis- 
pute' *  *  *  do  not  refer  to  dis- 
putes in  the  country,  or  the  intentions 
or  expectations  of  the  parties  con- 
cerning them,  but  to  the  claim  pre- 
sented on  the  record  to  the  legal  con- 
sideration of  the  court." 

And  in  Gordon  v.  Longest,  16  Pet. 
(U.  S.)  97,  McClean,  J.,  said:  "The 
damages  claimed  by  the  plaintiff  in 
his  writ  gives  the  jurisdiction  to  the 
court  whether  it  be  an  original  suit  in 
the  circuit  court  or  brought  here  on 
petition  from  a  state  court."  West  v. 
Woods,  18  Fed.  Rep.  665. 

To  same  effect  see: 

United  States.  —  Hardin  v.  Cass 
County,  42  Fed.  Rep.  652. 

California. — Jackson  v.  Whartenby, 
5  Cal.  94;  Lord  v.  Thomas  (Cal.,  1891), 
27  Pac.  Rep.  410. 

Connecticut. — Judd  v.  Bushnell,  7 
Conn.  205;  Skinner  v.  Bailey,  7  Conn. 
496;  Nichols  V.  Hastings,  35  Conn. 
546;  Grether  v.  Keock,  39  Conn.  133; 
Hunt  V.  Rockwell,  41  Conn.  51;  Sulli- 
van V.  Vail,  42  Conn.  90. 

South  Dakota. — Plunkett  v.  Evans 
(S.  Dak.,  1892),  50  N.  W.  Rep.  961. 

Florida. — McLean  v.  State,  23  Fla. 
281. 

Illinois. — Bates  v.  Bulkley,  7  111. 
389;  Thompson  v.  Turner,  22  111.  389; 
Wilson  V.  McKenna,  52  111.  43. 

Indiana. — Chandler  v.  Davidson,  6 
Blackf.  (Ind.)  367;  Guard  v.  Circle,  16 
Ind.  401. 

Iowa. — Bush  V.  Elsor,  Morris  (Iowa) 
316;  Galley  v.  Tama  County,  40  Iowa 
49;  Moran  v.  Murphy,  49  Iowa  68. 

703 


Kentucky. — Howke  v.  Buford,  8  B. 
Mon.  (Ky.)  38;  Sams  v.  Stockton,  14 
B.  Mon.  (Ky.)  187;  Burbage  v.  Squires, 
3  Mete.  (Ky.)  77. 

Louisiana. — McDowell's  Succession, 

35  La.  Ann.  1025. 
Maine. — Cole  v.  Hayes,  78  Me.  539. 
Maryland. — Abbott  v.  Gatch,  13  Md. 

314,  71  Am.  Dec.  635. 

Michigan. — Raymond  v.  Hinkson, 
15  Mich.  113;  Cilley  v.  Van  Patten,  68 
Mich.  80. 

Minnesota. — Hecklinz/.  Ess,  16  Minn. 
51- 

Mississsippi. — May  v.  Williams,  61 
Miss.  125,  48  Am.  Rep.  80. 

Missouri. — Langham  v.  Boggs,  I 
Mo.  337;  Henks  v.  Debertshauser,  i 
Mo.  App.  402. 

Nebraska. — Spielman  v.  Flynn,  19 
Neb.  342;  Beach  v.  Cramer,  5  Neb,  98. 

New  Hampshire. — Haynesw.  Brown, 

36  N.  H.  545. 
New  Jersey. — Johnson  v.  Colbaugh, 

I  N.  J.  L.  55- 

New  York.  —  Cahill  v.  Dolph,  i 
Johns.  Cas.  (N.  Y.)  333;  Stillson  v. 
Sanford,  3  Cai.  (N.  Y.)  174;  Vaughn 
V.  Ely,  4  Barb.  (N.  Y.)  159;  Shackel- 
ton  V.  Hart,  12  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  325,  note;  Jaynes  v.  Jaynes 
(Orleans  County  Ct.)  8  Civ.  Proc. 
Rep.  99;  Farley  v.  Gibbs  (Supreme 
Ct  )  4  N.  Y.  Supp.  353. 

North  Carolina.  —  Katzenstein  v. 
Raleigh,  etc.,  R.  Co.,  84  N.  Car.  688; 
Brantley  v.  Finch,  97  N.  Car.  91. 

Ohio. — McKibben  v.  Lester,  9  Ohio 
St.  627. 

Pennsylvania. — Odell  v.  Culbert,  9 
W.  &  S.  (Pa.)  66,  42  Am.  Dec.  317; 
Curtis  V.  Kearney,  2  Pitts.  (Pa.)  87. 


Amount  Claimed.    AMO  UNT  IN  CONTRO  VERS  Y. 


Unliquidated. 


Counterclaims  and  Set-ofiFs  when  introduced  by  a  defendant  are  as 
to  him  the  amount  in  controversy.* 

2.  When  Claim  is  Unliquidated. — The  rule  is  almost  without 
exception  that  the  amount  demanded  by  the  plaintiff,  and  not  the 
amount  of  his  recovery,  determines  the  question  of  the  court's 
jurisdiction  when  the  suit  is  for  unliquidated  damages,  irrespective 
of  the  character  of  the  action,  whether  it  be  in  contract  or  in 
tort.* 


South  Carolina.  —  Goldthwaite  v. 
Dent,  3  McCord  (S.  Car.)  296. 

Texas. — Austin  v.  Jordan,  5  Tex. 
130;  Sherwood  v.  Douthit,  6  Tex.  224; 
Little  V.  State,  75  Tex.  616;  Lemar  v. 
Borden,  83  Tex.  620. 

Tennessee. — Spurlock  v.  Fulks,  I 
Swan  (Tenn.)  289. 

Vermont. — Doubleday  v.  Marstin, 
27  Vt.  488. 

Virginia. — Meflf  v.  Talbot,  i  Va, 
Cas.  140. 

Washington.  —  Ebey  v.  Engle,  i 
Wash.  Ter.  72. 

Wisconsin. — Elderkin  v.  Sperbeck,  i 
Chand.  (Wis.)  69;  McCormick  v.  Rob- 
inson, I  Chand.  (Wis.)  254;  Keegan  v. 
Singleton,  5  Wis.  115. 

England.  —  Branker  v.  Massey,  2 
Price  8;  Oulton  v.  Perry,  3  Burr.  1592. 

Amount  Need  Not  Be  in  Declaration. — 
It  may  be  set  forth  in  a  summons  or  in 
the  writ.  Clay  v.  Barlow,  123  Mass. 
378;  Allen  V.  Stokes,  i  Hayw.  (N. 
Car.)  142:  Morris  v.  O'Briant,  94  N. 
Car.  72;  Brantley  v.  Finch,  97  N.  Car. 
92;  Todd  V.  Gates,  20  W.  Va.  464.  Or 
in  interrogatories  filed  in  a  garnish- 
ment proceeding.  Moore  v.  Woodruff, 
5  Ark.  214. 

Erroneous  Claim. — Even  when  the 
amount  as  claimed  is  manifestly  an 
error,  still  it  is  determinative  of  the 
jurisdiction.  Vlitchell  v.  Smith,  24 
Ind.  252;  Wood  V.  Lovett,  i  Penny 
(Pa.)  51. 

Amount  Alternatively  Stated,  as,  for 
instance,  "not  more  than  $500  or  less 
than  $400,"  sufficiently  shows  the 
amount  claimed  as  being  within  a 
court's  jurisdiction  whose  maximum 
is  $500.  Welles  v.  Allen,  41  Conn. 
140. 

The  words  "and  over"  in  a  claim 
"of  $100  and  over,"  held  to  be  void 
for  uncertainty,  the  amount  in  contro- 
versy, as  affecting  jurisdiction,  being 
$100.  Rockwell  V.  Perine,  5  Barb. 
(N.  Y.)  573.  See  also  Dwyer  v.  Rath- 
bone  (Supreme  Ct.)  2  N.  Y.  Supp.  170; 
Deloatch  v.  Coman,  90  N.  Car.  186 


Wrong  Amount  Claimed  cannot  be 
subsequently  cured  by  a  verdict  or 
judgment  for  a  correct  jurisdictional 
amount.  Hoit  v.  Molony,  2  N.  H. 
322;  Gillett  V.  Richards,  46  Iowa  652. 
Nor  by  any  subsequent  act  of  the 
plaintiff  pendettte  lite.  Hynds  v.  Fay, 
70  Iowa  433;  Burbage  v.  Squires,  3 
Mete.  (Ky.)  77;  Talbot  v.  Robinson, 
42  Vt.  698. 

1.  Nichols  V.  Ruckells,  4  111.  298; 
Gharkey  v.  Halstead,  i  Ind.  389  ; 
State  V.  Neumeyer,  51  N.  J.  L.  299; 
Wood  V,  O'Ferrall,  19  Ohio  St.  427; 
Holden  v.  Wiggins,  3  P.  &  W.  (Pa.) 
469;  Milliken  v.  Gardner,  37  Pa.  St. 
456. 

Sum  Becovered  and  not  the  damages 
claimed  was  held  to  be  the'  test  of  a 
justice's  jurisdiction  in  an  action  on  a 
quantum  meruit.  ■  Power  z/.  Rockwell, 
39  Wis.  585;  Darling  v.  Conklin,  42 
Wis.  478;  Crabtree  v.  Moore,  7  Ark. 
74;  Page  V.  Ellis,  9  Cal.  248;  Brady 
V.  Smith,  I  Rob.  C.  C.  (N.  Y.)  175. 

In  Maryland,  in  actions  ex  contractu, 
as  distinguished  from  those  arising  ex 
delicto,  it  is  the  recovery  and  not  the 
claim  which  determines  the  jurisdic- 
tion. O'Reilley  v.  Murdoch,  i  Gill 
(Md.)  23;  Beall  v  Black,  i  Gill  (Md.) 
203;  Carter  v.  Tuck,  3  Gill  (Md.)  248; 
Ott  V.  Dill,  7  Md.  251.  Compare  Bushey 
V.  Culler,  26  Md.  552. 

2.  Alabama. — Carters.  Dade,  I  Stew. 
(Ala.)  18;  Howard  v.  Wear,  Minor 
(Ala.)  84;  Curtis  v.  Gary,  Minor  (Ala.) 
no;  Cummings  v.  Edmunson,  5  Port. 
(Ala.)  145. 

California. — Bradley  v.  Kent,  22  Cal. 
169;  Solomon  v.  Reese,  34  Cal.  28; 
Bailey  v.  Sloan,  65  Cal.  387;  Perkins 
V.  Ralls,  71  Cal.  87. 

Connecticut. — Nichols  z/.  Hastings,  35 
Conn.  546;  Andrew  v.  Babcock,  63 
Conn.  109. 

Georgia. — Tyler  Cotton  Press  Co.  v. 
Chevalier,  56  Ga.  494. 

Kentucky. — Singleton  v.  Madison,  i 
Bibb  (Ky.)  342;  Hume  v.  Ben,  i  Bibb 
(Ky.)    402;    Hambell    v.    Hamilton,    3 


704 


Amount  Claimed.     A  MO  UNT  IN  CONTRO  VERS  V. 


£z  Delicto. 


'  3.  In  Actions  Ex  Delicto. — Actions  ex  delicto  are  from  their  very 
nature  usually  actions  for  the  recovery  of  unliquidated  and  prob- 
lematical damages;  hence  the  rule  already  enunciated,  that  it  is 
the  sum  demanded  and  not  the  amount  of  recovery  which  deter- 
mines the  jurisdiction  vel  non  of  the  trial  court,  is  peculiarly 
applicable  to  them.* 


Dana(Ky.)  501;  Craig  w.  Street,  2  Bibb 
(Ky.)  265;  Johnston  v.  Louisville,  11 
Bush  (Ky.)  527. 

Louisiana. — Groebel  v.  Risetroph,  35 
La.  Ann.  490. 

Minnesota. — Barber  v.  Kennedy,  18 
Minn.  216. 

Mississippi. — May  v.  Williams,  61 
Miss.  125,  48  Am.  Rep.  80. 

Nevada. — Kleni  v.  Allenbach,  6  Nev. 

159- 

North  Carolina. — Winslow  v.  Weith, 
66  N.  Car.  432;  Latham  v.  Rollins,  72 
N.  Car.  454;  Burbank  v.  Beaufort 
County,  92  N.  Car.  257;  Powell  v. 
Allen,  103  N.  Car.  46. 

Oregon. — Corbellz/.  Childers,  17  Ore- 
gon, 528. 

Pennsylvania. — Kline  v.  Hood,  9  S. 
&  R.  (Pa.)  294. 

Texas. — Dwyer  v.  Brenham,  70  Tex. 
30;  Tidball  v.  Eichoff,  66  Tex.  58. 

United  States. — Martin  v.  Taylor,  i 
Wash.  (U.  S.)  i;  Culver  v.  Crawford 
County,  4  Dill.  (U.  S.)  239;  Lee  v. 
Watson,  I  Wall.  (U.  S.)  339;  Kanouse 
v.  Martin,  15  How.  (U.  S.)  198; 
Schacker  v.  Hartford  F.  Ins.  Co.,  93 
U.  S.  S41;  Gray  v.  Blanchard,  97  U.  S. 
565;  Schunk  V.  Moline,  etc.,  Co.,  147 
U.  S.  500;  West  V.  Woods,  18  Fed. 
Rep.  665;  American  Fertilizing  Co.  v. 
Board  of  Agriculture,  43  Fed.  Rep. 
609;  Hat-Sweat  Mfg.  Co.  v.  Porter,  46 
Fed.  Rep.  757. 

Vermont. — Bell  v.  Mason,  10  Vt.  509; 
Spafford  v.  Richardson,  13  Vt.  245; 
Wrightman  v.  Carlisle.  14  Vt.  296; 
Brainard  v.  Austin,  17  Vt.  650;  Joyal 
v.  Barney,  20  Vt.  154;  Stanley  v. 
Barker,  25  Vt.  507;  Powers  z'.  Thayer, 
30  Vt.  361;  Miller  v.  Livingston,  37 
Vt.  467;  Scott  V.  Moore,  41  Vt.  205,  98 
Am.   Dec.   581;  Drown  v.  Forrest,  63 

Vt.  557. 

Virginia. — Newsum  v.  Pendred,  2 
Va.  Cas.  93. 

Wisconsin. — Du  Bay  v.  Gould,  3  Pin. 
(Wis.)  468. 

Compare  Fortune  v.  Howard,  4  J.  J. 
Marsh.  (Ky.)i7i. 

Amendments  Allowed. — In  an  action 
for  the  specific  performance  of  a  con- 


tract for  the  sale  of  land,  where  the 
bill  is  silent  as  to  the  value  thereof, 
which  in  such  a  case  is  the  amount  in 
controversy,  and  the  contract  pro- 
duced discloses  such  value  to  be  only 
$1000,  the  bill  can  be  amended  so  as 
to  give  a  Circuit  Court  of  the  United 
States  jurisdiction  under  act  of  March 
3,  1887,  which  fixes  minimum  limit  at 
sums  in  excess  of  $2000  by  alleging 
present  value  of  land  to  have  increased 
to  $3000.  Johnson  v.  Trippe,  33  Fed. 
Rep.  530;  State  v.  Voorhies,  34  La. 
Ann.  1151.  So  likewise  where  a  suit 
in  damages  to  property  is  brought  in 
a  Circuit  Court  of  the  United  States 
subsequent  to  the  passage  of  the  act 
of  March  3,  1887,  and  the  ad  damnum 
is  laid  at  I1500,  in  ignorance  of  the 
change  made  by  said  act  in  the  juris- 
dictional amount  requisite,  namely, 
from  sums  in  excess  of  $500  to  sums  in 
excess  of  $2000,  the  plaintiff  may  ob- 
tain, when  defendants  move  to  dismiss 
the  cause,  leave  to  amend  his  ad  dam- 
num so  as  to  give  the  court  jurisdic- 
tion, as  it  does  not  appear  but  that  the 
damages  recovered  might  be  larger 
than  originally  claimed.  Davis  v. 
Kansas  City  R.  Co.,  32  Fed.  Rep.  863. 
See  also  Van  Clief  v.  Van  Vechten,  130 
N.  Y.  571;  McDonald  v.  Truesdale 
(unreported),  in  N.  Y.  Superior  Court 
in  the  year  1876.  Compare  Mclntyre 
V.  Carriere,  17  Hun  (N.  Y.)  64.  See 
Amendments. 

1.  Alabama. — Kingw.  Parmer,  34  Ala. 
416;  Mills  V.  Long,  58  Ala.  458;  Haws 
V.  Morgan,  59  Ala.  508;  Morris  v. 
Robinson,  80  Ala.  291;  Memphis,  etc., 
R.  Co.  V.  Hembree,  84  Ala.  182. 

Arkansas. — Little  Rock,  etc.,  R.  Co. 
V.  Manees,  44  Ark.  100. 

California. — Solomon  v.  Reese,  34 
Cal.  28;  Gorton  v.  Ferdinando,  64  Cal. 
11;    Greenbaum  v.  Martinez,   86  Cal. 

459- 

Georgia. — Velvin  v.  Hall,  78  Ga.  136. 

Indiana. — Short  v.  Scott,  6  Ind.  430. 

Kentucky. — Singleton  v.  Madison,  i 
Bibb  (Ky.)  342;  Hambell  v.  Hamilton, 
3  Dana  (Ky.)  501;  Aulick  v.  Adams, 
12  B.  Mon.  (Ky.)  104. 


I  Encyc.  PI.  &  Pr.— 45. 


705 


Amount  Claimed.     A  MO  UNT  IN  CONTRO  VERSY.    in  Suits  on  Bonds. 


4.  In  Suits  on  Bonds. — In  suits  on  bonds  it  is  as  a  rule  not  the 

penalty  named  therein  which  determines  jurisdiction,  but  the 
amount  of  the  damages  claimed,  the  penalty  being  considered  in 
the  nature  of  a  collateral  security  for  the  debt.* 


Massachusetts. — Hapgood  v.  Doherty, 
8  Gray  (Mass.)  373  ;  Ladd  v.  Kimball, 
12  Gray  (Mass.)  139;  Ashuelot  Bank 
V.  Pearson,  14  Gray  (Mass.)  521. 

Louisiana. — Oakey  v.  Aiken,  12  La. 
Ann.  II. 

Michigan. — Rosevelt  v.  Hanold,  65 
Mich.  414. 

Minnesota. — Turner  v.  Holleran,  8 
Minn.  451;  Greenman  v.  Smith,  20 
Minn.  418. 

Nebraska. — Lawrence  v.  Curtis,  13 
Neb.  515. 

New  York. — Bellinger  v.  Ford,  14 
Barb.  (N.  Y.)  250;  Yager  v.  Hannah,  6 
Hill  (N.  Y.)  631. 

North  Carolina. — Bullinger  v.  Mar- 
shall, 70  N.  Car.  520 ;  McDonald  v. 
Cannon,  82  N.  Car.  245;  Womble  v. 
Leach,  83  N.  Car.  84;  Ashe  v.  Gray, 
88  N.  Car.  190;  Noville  v.  Dew,  94  N. 
Car.  43;  Harvey  v.  Hambright.  98  N. 
Car.  446;  Edwards  v.  Couper,  99  N. 
Car.  421;  Long  v.  Fields,  104  N.  Car. 
221  ;  Bowers  v.  Richmond,  etc.,  R. 
Co.,  107  N.  Car.  721. 

Pennsylvania. — Byrne  v.  Gordon,  2 
Brown  (Pa.)  271;  Strutzer  v.  Morgan, 
2  Brown  (Pa.)  38;  Matlack  v.  Brown, 
2  Miles  (Pa.)  15;  Ancora  v.  Burns,  5 
Binn.  (Pa.)  522;  McKinney  v.  Allen,  31 
Leg.  Int.  (Pa.)  373;  Richards  v.  Gage, 
I  Ashm.  (Pa.)  192. 

Rhode  Island.  —  Edwards  v.  Hop- 
kins, 5  R.  L  138. 

Texas. — Bridge  v.  Ballew,  ii  Tex. 
269;  Ellett  V.  Powers,  8  Tex.  113; 
Dwyer  v.  Bassett,  63  Tex.  276. 

United  States.  —  Murphy  v.  How- 
ard, I  Hempst.  (U.  S.)  205;  Hynes  v. 
Briggs,  41  Fed.  Rep.  468;  Smith  v. 
Greenhow,  109  U.  S.  669 ;  Barry  v. 
Edmunds,  116  U.  S.  550. 

Vermont. — Montgomery  v.  Edwards, 
45  Vt.75;  Smith  z'. Fitzgerald, 59  Vt.451. 

Compare  Froelich  v.  Southern  Ex- 
press Co.,  67  N.  Car.  i. 

Thus,  in  an  action  on  the  case  in 
•which  damages  were  laid  at  a  sum 
sufficient  to  give  jurisdiction  to  the 
court,  the  court  said:  "The   plaintiff 

*  *  *  is  prima  facie   entitled  to  sue, 

*  *  *  his  demand  being  above  thai 
fixed  by  the  act  in  such  cases.  But 
even  if  he  should  obtain  a  verdict  for 
a  less  sum  *  *  *  it  would  seem  to  be 
straining  the  interpretation  of  the  act 


Ind.  548; 
49  ;  Gott- 
App.  410; 


to  suffer  the  jurisdiction  of  the  court 
to  depend  upon  a  rule  so  uncertain 
and  capricious  as  the  amount  of  dam- 
ages in  cases  of  tort."  McGehee  v. 
Draughon  (1816-1818),  2  Law  Repos. 
(N.  Car.)  260. 

Eeplevin. — Value  as  Claimed  in  actions 
of  replevin,  being  the  equivalent  of 
the  damage  claimed  in  actions  of  tort, 
generally  forms  the  amount  in  contro- 
versy as  distinguished  from  what  may 
be  the  real  value  of  the  property. 
Markin  v.  Jornigan,  3  "  ' 
Bainum  v.  Small,  4  Ind. 
schalk  V.  Klinger,  33  Mo. 
Malone  v.  Hopkins,  40  Mo.  App.  331; 
Stevens  v.  Chase,  61  N.  H.  340;  Fen- 
ton  V.  Harred,  17  Pa.  St.  158;  Darling 
V.  Conklin,  42  Wis.  478.  Compare 
Rochester  v.  Roberts,  29  N.  H.  360. 

Damage  Claim  not  Allegations  of  value, 
prevails  on  a  question  of  jurisdiction. 
Smith  V.  Northern  Pac.  R.  Co.  (N. 
Dak.,  1892),  53  N.  W.  Rep.  173.  And 
where  in  an  attachment  for  a  debt 
affecting  property  it  is  not  the  value 
thereof  but  the  amount  of  debt  claimed 
to  be  satisfied  thereout  which  forms 
the  amount  in  controversy.  Hoppe  v. 
Byers,  39  Iowa  573.  Compare  De 
Camp  V.  Miller,  44  N.  J.  L.  617. 

Damage  Claim  and  not  the  Evidence 
thereof  produced  at  the  trial  consti- 
tutes the  jurisdictional  amount  in  con- 
troversy. Henderson  v.  Desborough, 
28  Mich.  170;  Adams  v.  Spaulding,  64 
N.  H.  384;  Dennis  v.  Crittenden,  42 
N.  Y.  542;  Burr  v.  Bayne,  10  Watts 
(Pa.)  299;  Stewart  v.  Baltimore,  etc., 
R.  Co.,  33  W.  Va.  88.  But  on  the 
other  hand,  in  Bazire  v.  Barry,  3  S.  & 
R.  (Pa.)  461,  in  which  case  plaintiff 
sued  in  trespass  q.  c.  f.  and  d.  b.  a., 
and  the  cause  was  arbitrated  under  a 
special  act  which  made  it  unnecessary 
to  file  in  such  cases  any  declaration, 
and  it  was  held  that,  inasmuch  as  no 
claim  was  therefore  made  by  the  plain- 
tiff, he  should  not  be  thereby  preju- 
diced, but  that  the  amount  of  his  de- 
mand could  be  shown  by  parol  evidence 
of  what  was  exhibited  before  the  arbi- 
trators in  order  to  determine  the  juris- 
diction of  the  court  vel  non  to  finally 
adjudicate  the  matter.  But  see  Warfel 
V.  Beam,  3  P.  &  W.  (Pa.)  397. 

1.  Thus,  for  example,  in  Shattuck  v. 


706 


Amount  Eemitted.  AMOUNT  IN  CONTROVERSY. 


Jurisdiction. 


III.  Amount  Remitted— 1.  Jurisdiction  Conferred.— The  rule  also 
pretty  generally  obtains  that  one  may  waive  a  portion  of  the 
amount  in  controversy  where  that  amount  is  greater  than  the 
court's  jurisdiction  in  order  to  confer  jurisdiction,  provided  this 
is  done  boyia  fide  and  with  no  fraudulent  intent.* 


Miller,  50  Miss.  386,  where  "a  bond  of 
indemnity  had  been  given  the  sheriff, 
who  had  levied  on  personal  property 
which  was  claimed  by  J.,  upon  trial  of 
the  claimant's   issue,  the  verdict  and 
judgment  were  in  her  favor.     She  and 
her  husband  then  brought  suit  before 
the  justice  of  the  peace  on  the  bond 
(which  was  in  the  penalty  of  $500)  for 
illegal  levy  on  her  property,"  in  which 
suit  the  demand  was  for  $150  damages, 
and  the  court  said:   "The  amount   in 
controversy    is    the    principal    of    the 
amount  demanded  *  *  *  the   $150  as 
damages  for  the   tortious   act   of  the 
sheriff  *  *  *  which  sum  is  within  the 
justice's  jurisdiction."  State  z/.Luckey, 
51  Miss.  528;  Rawles  v.  People,  2  Colo. 
App.   501;  Bowden  v.  Taylor,   81   Ga. 
199.     So  also  Paul  v.  Arnold,  12  Ind. 
197,   was    "  an    action    on    a    delivery 
bond,"  in  which  "the  complainant  set 
out  a  judgment  for  a  certain  sum,  and 
then   the   bond   and  then  the   breach; 
the  penalty  was  for  an  amount  beyond 
the  jurisdiction  of  the  court,  but  the 
judgment  was  not,"  and  it  was  held 
that  the  latter  was  the  amount  in  con- 
troversy determinative  of  the  court's 
jurisdiction.      Washburn  v.   Payne,  2 
Blackf.  (Ind.)  216;  Anderson  v.  Farns, 
7    Blackf.   (Ind.)    343  ;    Snowhook    v. 
Dodge,  28  111.  63;  Stone  v.  Murphy.  2 
Iowa  35;   Murfree  on  Official   Bonds, 
pars.  479,  480;   Holt  v.  McLean,  75  N. 
Car.   347;  Gray  v.  Stafford,  52   Mich. 
497;  Sharpless  v.  Hopkins,  i  T.  &  H. 
Pr.    (Pa.)    26;    Bloomer   v.    Laine,    10 
Wend  (N.  Y.)525;  Cavender  v.  Ward 
28  S.  Car.  470;  Fowler  v.  McDaniel,  6 
Heisk.  (Tenn.)  529;  State  v.  Lambert, 
24  W.  Va.  399;  U.   S.  V.  McDowell,  4 
Cranch  (U.  S.)  316;   Postmaster-Gen. 
V.  Cross,  4  Wash.  (U.  S.)  326;  Buechel 
V.  Buechel,  65  Wis.  532.     And  in  Dick 
V.    Gaskill,    2   Whart.    (Pa.)   184,   the 
amount    in    controversy,   as    affecting 
jurisdiction,  was  held  to  be  the  dam- 
ages   claimed,    although    these    were 
treble  the  amount  of  the  penalty  named 
in  the  bond  in  litigation. 

But  on  the  other  hand,  in  Morris  v. 
Saunders,  85  N.  Car.  138,  the  court 
said:  "The  principal  of  the  bond  sued 
on  was  properly  the  sum  demanded; 


*  *  *  the  question  of  jurisdiction  could 
not  be  allowed  to  depend  upon  the 
claim  made  in  the  plaintiff's  complaint 
or  in  anywise  to  fluctuate  according 
to  the  will  of  the  parties  or  subsequent 
circumstances,  but  must  be  fixed  at  the 
time  of  the  contract  made."  Hedge- 
cock  V.  Davis,  64  N.  Car.  650;  Fell  v. 
Porter,  69  N.  Car.  140;  State  v.  Rous- 
seau, 71  N.  Car.  194;  Coggins  v.  Har- 
rell,  86  N.  Car.  317;  Joyner  v.  Roberts, 
108  N.  Car.  174;  Joyner  v.  Roberts, 
112  N.  Car.  iii;  Snowhook  v.  Dodge, 
28  111.  63;  Com.  V.  Bohon,  i  Litt.  (Ky.) 
22;  Sims  V.  Harris,  8  B.  Mon.  (Ky.) 
55;  Bishop  V.  Freeman,  42  Mich.  533; 
Heath  v.  Blaker,  2  Va.  Cas.  215;  Pit- 
man V.  Dwyer,  8  Mo.  App.  570;  St. 
Louis  V.  Fox,  15  Mo.  71. 

The  Beal  Debt.  Not  the  Claim  or  the 
Penalty. — In  an  action  of  covenant  on 
a  writing  obligatory  for  $28  in  a  court 
whose  minimum  limit  in  amount  was 
$100,  to  which  there  was  a  plea  in 
abatement  to  the  jurisdiction,  and  to 
this  a  demurrer  by  the  plaintiff,  this 
demurrer  sustained  below  was  upon 
an  appeal  by  the  defendant  reversed 
and  overruled,  the  appellate  court 
holding  that  the  amount  of  the  debt 
on  penalty,  being  a  sum  certain,  con- 
stituted the  amount  in  controversy. 
Crabtree  v.  Moore,  7  Ark.  74;  Free- 
denbery  v.  Meteer,  4  Clark  (Pa,)  182; 
Coates  V.  Cork,  i  Miles  (Pa.)  270; 
Edgerton  v.  Smith,  35  Vt.  573. 

Penalty  Eaises  a  Presumption  of  the 
Claim. — In  a  suit  on  a  replevin  bond 
the  penalty  therein  raises  the  pre- 
sumption that  the  value  of  the  prop- 
erty is  one-half  the  amount  thereof, 
and  this  value  so  presumed  and  not 
the  value  alleged  furnishes  the  amount 
in  controversy.  Tyler  v.  Bowlus,  54 
Ind.  333. 

Amount  of  Claim  Uncertain  or  Not  Al- 
leged.— Where  the  amount  of  the  claim 
is  uncertain  or  there  is  a  failure  to  set 
forth  any  claim,  the  penalty  governs 
on  a  question  of  jurisdictional  amount. 
Beard  v.  Kinney,  6  Blackf.  (Ind.)  425; 
Forrester   v.    Alexander,    4   W.    &    S. , 

(Pa.)  311. 

1.  Texas. — Alexander  v.  Thompson, 
38  Tex.533;  Fuller  z/.Sparks, 39 Tex.136. 


707 


Amount  Remitted.    AMOUNT  IN  CONTROVERSY. 


Jurisdiction. 


2.  Jurisdiction  Unaffected. — Based  upon  the  well-established  prin- 
ciple that,  jurisdiction  having  once  attached,  every  presumption 


Alabama. — King  v.  Dougherty,  2 
Stew.  (Ala.)  487;  Crabtree  v.  Cliatt, 
22  Ala.  181;  Solomon  v.  Ross,  49  Ala. 
198;  Wharton  v.  King,  69  Ala.  365. 

Georgia. — Wilhelms  v.  Moble,  36  Ga. 
599;  Stewart  v.  Thompson,  85  Ga.  829. 

Illinois. — Bates  v.  Bulkley,  7  111. 
389;  Ellis  V.  Snider,  i  111.  336;  Hugue- 
nin  V.  Nicholson,  2  111.  575;  Simpson 
V.  Updegraff,  2  111.  594;  Korsoski  v. 
Foster,  20  111.  32;  Raymond  z/.  Strobel, 
24  111.  113;  Carpenter  v.  Wells,  65  111. 

451- 

Indiana. — Epperly  v.  Little,  6  Ind. 

344- 

Iowa. — Culbertson  v.  Tomlinson, 
Morris  (Iowa)  404;  Stone  v.  Murphy, 
2  Iowa  35. 

Kentucky. — Tudder  v.  Warren,  6  J. 
J.  Marsh.  (Ky.)  93. 

Minnesota. — Lamberton  v.  Raymond, 
22  Minn.  129. 

Missouri. — Hempler  v.  Schneider, 
17  Mo.  258;  Denny  v.  Eckelkamp,  30 
Mo.  140;  Matlack  v.  Lare,  32  Mo,  262; 
Burden  v.  Hornsby,  50  Mo.  238. 

New  York. — Bowditch  v.  Salisbury, 
9  Johns.  (N.  Y.)366;  Bennett  f.  Inger- 
soll,  24  Wend.  (N.  Y.)  113. 

North  Carolina. — M'Rae  v.  M'Rae,  3 
Dev.  &  B.  (N.  Car.)  85;  Derr  v. 
Stubbs,  83  N.  Car.  539. 

Pennsylvania. — Herbert  v.  Conrad 
(Pa.),  I  Am.  L.  Reg.  440;  Baer  v.  Gar- 
rett, 2  Leg.  Chron.  (Pa.)  207;  Cleaden 
V.  Yeats,  5  Whart.  (Pa.)  94;  Evans  v. 
Hall,  45  Pa.  St.  235. 

Tennessee. — Carraway  v.  Burton,  4 
Humph.  (Tenn.)  108. 

United  States.— '^'iXX  v.  Hereth,  6 
Biss.  (U.  S.)  474. 

Vermont. — Stevens  v.  Howe,  6  Vt. 
572;  Herren  v.  Campbell,  19  Vt.  23; 
Danforth  v.  Streeter,  28  Vt.  490. 

England. — Hill  v.  Swift,  10  Exch. 
726;  Isaacs  V.  Wyld,  15  Jur.  1135. 

Contra,  Tolbert  v.  Yocum,  2  Leg. 
Chron.  (Pa.)  319. 

Thus,  for  example,  it  was  held  in 
Blakenship  v.  Adkins,  12  Tex.  536, 
"  where  it  becomes  necessary  to  sue 
for  the  recovery  of  an  amount  remain- 
ing due  upon  an  indebtedness,  origin- 
ally within  the  jurisdiction  of  the  Dis- 
trict Court,  if  the  suit  is  upon  the 
'original  cause  of  action,  it  must  be 
brought  in  that  court,  though  the 
debt  may  have  been  reduced  by  pay- 


ment to  a  sum  within  the  jurisdiction 
of  a  justice  of  the  peace." 

Credits  or  Payments  admitted  or 
proven  pendente  lite,  by  which  the 
amount  originally  in  excess  of  the 
jurisdictional  limit  is  reduced  to  a  sum 
within  that  limit,  will  cause  the  court's 
jurisdiction  to  attach.  Baird  v.  Nich- 
ols, 2  Port.  (Ala.)  186;  Nichols  v.  Mc- 
Abee,  30  Ga.  8;  Harris  v.  Jenks,  3  111. 
475;  Seymour  v.  Seymour,  31  111.  App. 
227;  Newland  v.  Nees,  3  Blackf.  (Ind.) 
460;  Collins  V.  Shaw,  8  Ind.  516; 
IBrown  v.  Lewis,  10  Ind.  232;  Harvey 
V.  Ferguson,  10  Ind.  393;  Hall  v. 
Biever,  Morris  (Iowa)  113;  Cochran  v. 
Glover,  Morris  (Iowa)  151;  Glass  v. 
Moss,  I  How.  (Miss.)  519;  State  v. 
Neumeyer,  51  N.  J.  L.  299;  Hearman 
V.  Snyder  (Supreme  Ct.),  3  N.  Y.  Supp. 
94;  Duer  V.  Seydell,  20  Tex.  61;  Bower 
V.  McCormick,  73  Pa.  St.  427;  Felt  v. 
Felt,  19  Wis.  193;  Howard  v.  Mans- 
field, 30  Wis.  75. 

Compare,  contra.  Askew  v.  Askew, 
49  Miss  301;  Martin  v.  Harden,  52 
Miss.  694;  Fenn  v.  Harrington,  54 
Miss.  733;  Stephen  v.  Eiseman,  54 
Miss.  535;  Milbanks  v.  Coonley  (Su- 
preme Ct.),  2  N.  Y.  Supp.  167;  Waldo  v. 
Jolly,  4  Jones  (N.  Car.)  173;  Moore  v. 
White,  II  W.  N.  C.  (Pa.)  206;  Wood- 
ward V.  Garner,  2  Pin.  (Wis.)  28; 
Donohoe  v.  Donohoe,  16  L.  R.  (Ir.) 
135;  Abney  v.  Whitted,  28  La.  Ann. 
818. 

A  Voluntary  Credit  may  be  entered 
by  the  plaintiff  upon  his  cause  of  ac- 
tion for  the  purpose  of  conferring 
jurisdiction  upon  a  justice  of  the 
peace.  Phillips  r*.  Fitzpatrick,  34  Mo. 
276.     See  contra,Ca.rey  v.  Garardville, 

1  Leg.  Chron.  (Pa)  170;  James  v. 
Frick,  12  Phila.  (Pa.)  443;  Avards  v. 
Rhodes,  8  Exch.  312. 

A  Discount  may  be  made  by  the  de- 
fendant upon  a  plaintiff's  demand  in 
an  action  ex  contractu,  and  by  this 
means  the  jurisdiction  of  a  court  se- 
cured. Coldwell  V.  Garmany,  3  Hill 
(S.  Car.)  202. 

"Waiver  of  Interest. — Interest  which  is 
due  and  demandable  may  be  volun- 
tarily relinquished  in  order  to  reduce 
the  amount  to  a  sum  within  a  court's 
jurisdiction.     Simpson   v.    Updegraff, 

2  111.  594;  Bates  V.  Bulkley,  7  111.  389; 
Hopper  V.  Steelman,  3   N.  J.   L.  466; 


708 


Amount  Eemitted.  AMOUNT  IN  CONTROVERSY. 


Jurisdiction. 


of  law  is  in  favor  of  its  continuance,  is  the  generally  accepted  doc- 
trine that  where  a  suit  is  commenced  for  an  amount  within  the 
jurisdiction  of  a  court,  although  that  amount  be  reduced  below 
the  limited  sum,  nevertheless  the  jurisdiction  to  hear  and  deter- 
mine the  cause  remains  unaffected.* 

3.  Jurisdiction  Ousted. — But  while  the  weight  of  authority  pre- 
ponderates in  favor  of  the  continuance  of  jurisdiction,  notwith- 


Saddle  River  v.  Colfax,  6  N.  J.  L.  115; 
De  Camp  v.  Miller.  44  N.  J.  L.  617; 
Bower  v.  McCormick,  73  Pa.  St.  427; 
Evans  v.  Hall,  45  Pa.  St.  235;  Kraus 
V.  Bickhart,  i  Chester  Co.  Rep.  (Pa.) 
479;  Quigley  v.  Quigley,  10  W.  N.  C. 
(Pa.)  388;  Varney  v.  Vosch,  3  Hill  (S. 
Car.)  237;  Parkhurst  v.  Spalding,  17 
Vt.  527;  Paige  V.  Morgan,  28  Vt.  565. 
But  compare  Hampton  v.  Dean,  4  Tex. 

455- 

Waiver  of  Amount  of  Recovery. — Where 
the  judgment  is  in  such  a  sum  that 
the  court  cannot  enforce  it  and  can 
entertain  no  further  proceedings  with 
reference  to  it,  the  plaintiffs  may  re- 
linquish the  excess  and  restore  the 
jurisdiction.  Henderson  v.  Plumb, 
18  Ala.  74;  Hunter  v.  Sherman,  3  III. 
539;  Stephens  v.  Sweeney,  7  111.  375; 
Linder  v.  Monroe,  33  111.  388;  Hill  v. 
Wilkinson,  25  Neb.  103.  But  see,  con- 
tra, Eacrit  v.  Keen,  4  N.  J.  L.  203;  Put- 
nam V.  Shelop,  12  Johns.  (N.  Y.)  435. 
So  also  the  court  may  of  its  own  mo- 
tion, in  such  a  case,  remit  the  excess 
or  presume  the  excess  to  be  remitted. 
Litchfield  v.  Daniels,  i  Colo.  268; 
Giles  V.  Spinks,  64  Ga.  205;  Velvin  v. 
Hall,  78  Ga.  136;  Shaw  v.  Roberts 
(Supreme  Ct.),  14  N.  Y.  Supp.  579; 
Porter  v.  Grimsley,  98  N.  Car.  550; 
Bodger  v.  Nicholls,  28  L.  T.  N.  S. 
441. 

Divided  Debt. — In  Herrin  v.  Bucke- 
lew,  37  Ala.  585,  it  was  held  that  where 
several  notes  each  on  its  face  within 
a  justice's  jurisdiction,  but  in  the  ag- 
gregate in  excess  thereof,  are  made  to 
secure  the  payment  of  a  single  debt, 
nevertheless  a  justice  may  entertain 
two  separate  suits  thereon,  instituted 
on  the  same  day,  because  one  may 
split  up  his  debt  into  several  demands, 
it  being  equivalent  to  remitting  a  por- 
tion of  a  claim.  Dews  v.  Eastham, 
5  Yerg.  (Tenn.)  297.  But  see,  contra. 
More  V.  Woodruff,  5  Ark.  214;  Walton 
V.  Vanhorn,  i  Phila.  (Pa.)  377;  Rich- 
ards V.  Marten,  23  W.  R.  93.  See 
aIso/«'j/,  notes  to  VIII.  Aggregated 
Amount,  3.  Several  Claims  in  one  Suit, 
pp.  722,  723- 


Amount  Reduced  by  Set-off. — When 
the  amount  has  been  reduced  by  a  set- 
off successfully  pleaded  or  admitted 
by  the  plaintiff,  it  was  held  that  such 
reduction  did  not  avail  to  confer  juris- 
diction. Jones  V.  Stauffer,  i  Leg.  Gaz. 
(Pa.)  91;  James  v.  Frick,  3  W.  N.  C. 
(Pa.)  291.  See  post,  this  article,"  Juris- 
diction Unaffected,"  and  notes. 

1.  Sanborn  v.  Contra  Costa  County,  60 
Cal.  425;  McVey  v.  Johnson.  75  Iowa 
165;  Wright  V.  Potomska  Mills  Corp., 
138  Mass.  328;  Best  v.  Best,  16  Mo. 
530;  Funk  V.  Funk,  35  Mo.  App.  246; 
Butcher  v.  Smith,  29  Ohio  St.  604; 
Davis  V.  Pinckney,  20  Tex.  340.  See 
also  Goldthwaite  v.  Dent,  3  McCord 
(S.  Car.)  296;  Watts  v.  Harding,  5  Tex. 
386. 

Payments  Pendente  Lite  proven  or  ad- 
mitted do  not  affect  a  jurisdiction  once 
acquired.  Rae  v.  Grand  Trunk  R. 
Co.,  14  Fed.  Rep.  402;  Lozano  v. 
Wehmer,  22  Fed.  Rep.  755;  Fuller  v. 
Metropolitan  L.  Ins.  Co.,  37  Fed.  Rep. 
163;  Cilley  V.  Van  Patten,  68  Mich.  80; 
Simmons  v.  Terrell,  75  Tex.  275.  See 
also  Bonner  v.  Watson,  6  Tex.  172. 

A  Set-off  Successfully  Interposed  will 
not  oust  the  jurisdiction  of  a  court. 
Anonymous,  2  Hayw.  (N.  Car.)  275; 
Ross  V.  Jackson,  Cooke  (Tenn.)  406; 
Jordan  v.  Barry,  4  Hayw.  (Tenn.)  103; 
Ferguson  v.  Highley,  2  Va.  Cas.  255. 
Compare  Ware  v.  Fambro,  67  Ga.  515. 

A  Demurrer  Sustained  does  not  affect 
the  jurisdiction,  although  such  a  de- 
murrer reduces  the  amount  below  the 
limit.  Brickell  v.  Bell,  84  N.  Car.  82; 
Ursey  v.  Suit,  91  N.  Car.  406;  Martin 
V.  Goode,  III  N.  Car.  288. 

Amount  Remitted  on  Appeal. — A  plain- 
tiff cannot,  by  remitting  a  portion  of 
his  claim,  deprive  the  defendant  of  his 
right  of  appeal,  when  but  for  this 
remission  the  amount  in  contro- 
versy is  sufficient  for  that  purpose. 
Lord  V.  Parmela,  i  Root  (Conn.)  158; 
Butler  V.  Brace,  i  Root  (Conn.)  30Z; 
Mehle  v.  Bensel,  39  La.  Ann.  680; 
North  V.  Holroyd,  L.  R.  3  Exch.  69; 
Finch  V.  Hartpence,  29  Neb.  368;  State 
V.  Judge,  24  La.  Ann.  601. 


709 


Fictitious  Amount.  AMOUNT  IN  CONTROVERSY.  Fictitious  Amount. 


standing  the  reduction  of  the  amount  in  controversy,  a  very  re- 
spectable minority  support  a  contrary  opinion.* 

4.  Jurisdiction  Not  Conferred  on  Appeal. — Where  the  sum  recov- 
ered and  in  controversy  exceeds  the  amount  of  which  the  appel- 
late court  may  take  cognizance,  jurisdiction  cannot  be  conferred 
thereupon  by  remitting  the  excess.* 

IV.  Fictitious  Amount.— ^It  is  a  well-settled  rule,  and  of  course 
in  harmony  both  with  reason  and  justice,  that  one  cannot  know- 
ingly allege  a  fictitious  amount  for  the  sole  purpose  of  bringing 
his  case  within  the  jurisdiction  of  a  court,  as  such  would  mani- 
festly be  a  fraud  upon  that  jurisdiction.^ 


1.  Illinois. — Sands  v.  Delap,  2  111.  i68; 
Simpson  v.  Rawlings,  2  111.  28;  Clark 
V.  Cornelius,  i  111.  46;  Blue  v.  Weir,  i 
111.  372. 

Pennsylvania. — Hayes  v.  Robb,  i 
Clark  (Pa.)  394;  Meredith  v.  Pierie,  i 
Clark  (Pa.)  195;  Williams  v.  Beatty,  I 
T.  &  H.  Pr.  (Pa.)  20;  Cahill  v.  Naulty, 
I  T.  &  H.  Pr.  (Pa.)  19;  Stroh  v.  Uhrich, 
I  W.  &  S.  (Pa.)  57;  Collins  v.  Collins, 
37  Pa.  St.  387;  Bower  z/.  McCormick,  73 
Pa.  St.  427;  Peter  v.  Schlosser,  81  Pa. 
St.  439- 

South  Carolina. — Ramsay  v.  Court  of 
Wardens,  2Bay(S.  Car.)  180;  Simpson 
V.  M'Million,  i  Nott  &  M.  (S.  Car.)  192. 

Compare  Cox  v.  Stanton,  58  Ga. 
406.  See  dicta  in  Ex  p.  Gale,  R.  M. 
Charlt.  (Ga.)  214;  Pilotage  Com'rs  v. 
Low,  R.  M.  Charlt.  (Ga.)  298;  Tyler 
Cotton  Press  Co.  v.  Chevalier,  56  Ga. 
494. 

Thus,  for  example,  where  by  a  writ- 
ten instrument  at  the  trial  the  plaintiff 
admits  a  portion  of  the  claim  to  have 
been  paid,  by  which  it  is  reduced  be- 
low the  U.  S.  Circuit  Court's  jurisdic- 
tional amount,  the  court,  on  defend- 
ant's motion,  must  dismiss  the  suit. 
Lozano  v.  Wehmer,  22  Fed.  Rep.  755; 
Rae  V.  Grand  Trunk  R.  Co.,  14  Fed. 
Rep.  402. 

Amount  Remitted  Prevents  Appeal. — 
Where  in  a  suit  on  119  interest  cou- 
pons cut  from  24  bonds  of  the  city  of 
Opelika,  which  bonds  aggregated 
$24,000,  in  which  suit  more  than 
$5000  was  demanded,  but  plaintiff 
amended  his  complaint,  reducing  his 
claim  to  only  90  coupons,  and  recov- 
ered a  judgment  for  $4755.64,  it  was 
held  that  the  U.  S.  Supreme  Court 
was  without  jurisdiction  on  a  writ  of 
error,  inasmuch  as  the  said  amend- 
ment amounted  to  a  remittitur  by  the 
plaintiff  of  a  portion  of  his  claim. 
Opelika  City  v.  Daniel,  109  U.  S.  108; 


Alabama  Gold  L.  Ins.  Co.  v.  Nichols, 
109  U.  S.  232;  First  Nat.  Bank  v. 
Redick,  no  U.  S.  224;  Wimbush  v. 
Chinault,  58  Miss.  234;  Singer  v.  Mc- 
Guire,  40  La.  Ann.  638;  Guidry  v. 
Garland,  41  La.  Apn.  756;  State  v. 
Judge,  21  La.  Ann.  728.  See  als» 
Pritchard  v.  Bartholomew,  45  Ind.219. 
Reduction  by  Amendments. — Where  one 
prior  to  an  appeal  reduces  the  amount 
by  amendments  there  can  be  no  appeal. 
Wilson  V.  Hawkeye  Ins.  Co.,  74  Iowa 
212;  Martine  v.  Hopkins,  40  La.  Ann. 
322. 

2.  Vorwald  v.  Marshall,  71  Iowa  576; 
Schultz  V.  Chicago,  etc.,  R.  Co.,  75 
Iowa  240;  Nevada  v.  Klum,  76  Iowa 
428;  Giger  z/.  Chicago,  etc.,  R.  Co.,  80 
Iowa  492;  Bateman  v.  Sisson,  70  Iowa 
518;  Batchelor  v.  Best,  22  Mo.  402; 
Boyett  V.  Vaughan,  85  N.  Car.  363; 
Ijams  V.  McClamroch,  92  N.  Car.  362; 
Dixon  V.  Caruthers,  g  Yerg.  (Tenn.) 
30;  Hearn  v.  Cutberth,  10  Tex.  216; 
Texas,  etc.,  R.  Co.  v.  Overheiser,  151 
U.  S.  105.  Compare  Plunkett  v.  Evans 
(S.  Dak.,  1892),  50  N.  W.  Rep.  961. 

3.  Alabama. — Carter  v.  Alford,  64 
Ala.  236. 

Georgia. — Cox  v.  Stanton,  58  Ga.  406. 

Michigan. — Fix  v.  Sissung,  83  Mich. 
561. 

Mississippi. — Griffin  v.  McDaniel,  63 
Miss.  121. 

New  Jersey. — Eacrit  v.  Keen,  4  N. 
J.  L.  203. 

North  Carolina. — Froelich  v.  South- 
ern Express  Co.,  67  N.Car.  i;  Wiseman 
V.  Witherow,  90  N.  Car.  140. 

Pcnnsylvaiiia. — Peter  v.  Schlosser, 
81  Pa.  St.  439. 

South  Carolina. — Ramsay  v.  Court 
of  Wardens,  2  Bay  (S.  Car.)  180, 
Simpson  v.  M'Million,  i  Nott  &  M. 
(S.  Car.)  192;  Gracy  v.  Wright,  2  Mc- 
Cord(S.  Car.)  278;  St.  Amand  v.  Gerry. 
2  Nott  &  M.  (S.  Car.)  487. 


710 


Fictitious  Amount.  AMOUNT  IN  CONTROVERSY.  Fictitious  Amount. 


Question  Discretionary.— Where  a  plaintiff's  claim  is  for  more  and 
his  recovery  for  less  than  the  statutory  jurisdictional  amount,  it 
lies  within  the  sound  discretion  of  the  court  to  decide  the  ques- 
tion whether  his  object  was  to  evade  the  law  requiring  him  to 
make  afifidavit  to  the  bona  fides  of  his  claim.* 


Texas. — Swigley  v.  Dickson,  2  Tex. 
193;  Austin  V.  Jordan,  5  Tex.  130; 
Sherwood  v.  Douthit,  6  Tex.  224;  Tid- 
ball  V.  Eichoff,  66  Tex.  58;  Ratigan  v. 
Holloway,  69  Tex.  468;  Burke  v. 
Adone,  3  Tex.  Civ.  App.  494;  Baker 
V.  Guinn,  4  Tex.  Civ.  App.  539;  So- 
zaya  v.  Patterson  (Tex.  Civ.  App., 
1893),  23  S.  W.  Rep.  745;  Bent  v. 
Graves,  3  McCord  (S.  Car.)  280,  15 
Am.  Dec.  632;  Ciapp  v.  Spokane,  53 
Fed.  Rep.  515. 

United  States. — Herbert  v.  Rainey, 
54  Fed.  Rep.  248;  Wilson  v.  Daniel,  3 
Dall.  (U.  S.)40i;  Hilton  z/.  Dickinson, 
108  U.  S.  166;  Barry  v.  Edmunds,  116 
U.  S.  550;  Gorman  v.  Havird,  141  U. 
S.  206;  Peeler  v.  Lathrop,  2  U.  S.  App. 
40. 

Vermont. — Putney  v.  Bellows,  8  Vt. 
272. 

West  Virginia. — James  v.  Stokes,  77 
Va.  225;  Todd  v.  Gates,  20  W.  Va.  464. 
Compare  Askew  v.  Askew,  49  Miss. 
301;  Stephen  v.  Eiseman,  54  Miss.  535. 
And  contra,  Wright  v.  Smith,  76  111. 
216;  Wilson  V.  Hawkeye  Ins.  Co.,  74 
Iowa  212;  Hapgood  v.  Doherty,  8 
Gray  (Mass.)  373. 

Thus  in  the  case  of  Edwards  v^ 
Bates  County,  55  Fed.  Rep.  436, 
"where  in  November,  1889,  H.  com- 
menced a  suit  in  the  U.  S.  Circuit 
Court  for  the  W.  D.  of  Missouri 
against  a  county  on  two  bonds  for  the 
sum  of  $1000,  and  on  a  demurrer  it  was 
held  that  the  court  had  no  jurisdic- 
tion, as  the  amount  involved  did  not 
exceed  $2000,  exclusive  of  interest  and 
costs,  as  required  by  act  of  Congress; 
and  afterward,  but  before  the  dismis- 
sal of  said  cause,  E.  commenced  suit 
on  the  same  coupons  and  also  on 
other  coupons  which  had  matured 
prior  to  1880,  in  which  suit,  on  de- 
murrer, it  was  held  that  said  last- 
named  coupons  were  barred  by  the 
statute  of  limitations;  and  then,  with- 
out dismissing  this  suit  either,  E.  in- 
stituted a  third  suit  on  the  same 
bonds  and  all  coupons  from  1873  to 
18S6,  and  in  addition  thereto  on  seven 
funding  bonds  of  the  county  for  $100 
each,  .  .  .  not  maturing  until  1905;" 
and  it  was  finally  held  that  said  fund- 


ing bonds  were  clearly  added  solely  to 
bring  the  amount  in  controversy  up 
to  a  sum  exceeding  $2000,  and  thus  to 
confer  a  fictitious  jurisdiction,  and 
that  consequently  the  court  was  with- 
out jurisdiction  in  the  premises,  for, 
said  the  court,  "parties  cannot  make 
up  feigned  or  simulated  matters  of 
controversy  to  give  jurisdiction  nor 
confer  jurisdiction  by  claiming  a  sum 
eo  nomine  above  $2000,  where  in  fact 
the  true  amount  in  dispute  is  less." 

It  was  said  in  Mabry  v.  Little,  19 
Tex.  339,  that  it  was  questionable  if 
plaintiff,  even  before  suit  was  brought, 
could  lessen  or  remit  his  real  claim 
to  secure  jurisdiction.  Compare  Ram- 
sour  V.  Barrett,  5  Jones  (N.  Car.)  409; 
Fuller  V.  Sparks,  39  Tex.  138. 

A  Fictitious  Set-oflf  cannot  be  pleaded 
by  a  defendant  in  order  to  deprive  a 
justice  of  jurisdiction.  Alexander  v. 
Peck,  5  Blackf.  (Ind.)  308. 

Honest  Mistakes,  however,  made  in 
allegations  of  amount  in  actions  of 
tort  will  not  deprive  a  court  of  its  jur- 
isdiction. Grether  z..  Klock,  39  Conn; 
133;  Graham  v.  Roder,  5  Tex.  146; 
International,  etc.,  R.  Co.  v.  Nichol- 
son, 61  Tex.  551;  Dwyer  v.  Bassett, 
63  Tex.  275;  Roper  v.  Brady,  80  Tex. 
588;  Maxfield  v.  Scott,  17  Vt.  634; 
Sanborn  v.  Chittenden,  27  Vt.  171; 
.  Clark  V.  Crosby,  37  Vt.  188.  But  com- 
pare Doubleday  v.  Marstin,  27  Vt.  488. 

1.  Cummings  v.  Edmunson,  5  Port. 
(Ala.)  145.  Compare  Boggs  v.  Near, 
20  Ind.  395;  Miller  v.  Beal,  26  Ind. 
234;  Parkham  v.  Hardin,  11  Ired.  (N. 
Car.)  219. 

No  Presumption  of  Bad  Faith. — Thus 
where  the  demand  amounts  to  more 
than  $200  (the  court's  minimum  juris- 
dictional limit),  and  less  is  recovered, 
the  presumption  is  that  plaintiff 
brought  suit  in  good  faith,  and  in  the 
absence  of  any  showing  to  the  con- 
trary the  court  will  be  clothed  with 
jurisdiction.  Worcester  v.  Lampson, 
55  Vt.  350;  Fortescue  v.  Spencer,  2 
Ired.  (N.  Car.)  63. 

Exemplary  Damages  Claimed. — Thus 
also  the  claiming  of  exemplary  dam- 
ages in  an  action  for  damages  ckused 
by  injury  to  ahorse  from  a  wire  fence 


711 


Eeal  Amount. 


AMO  UNT  IN  CONTRO  VERS  V. 


In  General. 


V.  Real  Amount — 1.  In  General. — While,  as  has  already  been 
stated,  the  amount  in  controversy  is  generally  deemed  to  be  the 
amount  as  claimed  where  there  is  no  bad  faith  on  the  part  of  the 
plaintiff,  nevertheless  a  rule  more  perhaps  in  consonance  with 
absolute  justice  widely  prevails  in  the  federal  courts,  and  finds 
also  support  elsewhere,  that  wherever  the  real  amount  is  made 
to  appear,  it  is  the  all-controlling  criterion  of  jurisdiction.*  Under 


where  gross  negligence  is  averred, 
which  exemplary  damages  swelled  the 
amount  claimed  to  a  sum  sufficient  to 
give  the  court  jurisdiction  otherwise 
inadequate,  cannot  raise  the  presump- 
tion againstplaintiff  that  he  fraudulent- 
ly claimed  more  than  he  could  possibly 
recover  for  the  sole  purpose  of  con- 
ferring jurisdiction.  Connellee  v. 
Drake  (Tex.  App.,  1890)  16  S.  W. 
Rep.  175.  On  the  other  hand,  where 
the  items  of  a  plaintiff's  demand  were 
more  than  $200,  the  jurisdictional 
minimum,  but  it  appeared  that  a  note 
of  plaintiff's  in  favor  of  the  defendant 
had  been  agreed  to  be  applied  in  par- 
tial liquidation  of  plaintiff's  demand, 
and  sufficiently  so  that  the  amount 
claimed  would  be  reduced  below  $200, 
the  court  was  held  to  be  divested  of  its 
jurisdiction.  Abbott  v.  Chase,  55  Vt. 
466;  Wiseman  v.  Witherow,  90  N.  Car. 
140. 

On  Appeal. — The  amount  in  contro- 
versy cannot  be  increased  fictitiously 
for  the  sole  purpose  of  conferring  ap- 
pellate jurisdiction. 

Connecticut. — Lockwood  v.  Knapp,  4 
Conn.  257. 

Indiana. — Williamson  v.  Branden- 
berg,  133  Ind.  594. 

Kentucky. — Burbage  v.  Squires,  3 
Mete.  (Ky.)77. 

Louisiana. — Copley  v.  Ross,  i  La. 
Ann.  310;  Vogel  v.  Retaud,  4  La.  Ann. 
213;  Cabrara  z'.Dinkgrave,  6  La.  Ann. 
735;  King  V.  Reed,  7  La.  Ann.  492; 
Hagenberger  v.  Wild,  9  La.  Ann.  3; 
Thornhill  v.  Lloyd,  10  La.  Ann.  282; 
Rutherford  v.  Hennen,  13  La.  Ann. 
336;  Poree  v.  Valische,  15  La.  Ann. 
292;  Pritchard  v.  Parker,  21  La.  Ann. 
745;  Michoud  V.  Nolan,  24  La.  Ann. 
117^  State  V.  Judge,  24  La.  Ann.  601; 
Pointer's  Succession,  30  La.  Ann.  370; 
Cushing  V.  Sambola,  30  La.  Ann.  426; 
March  v.  McNeely,  36  La.  Ann.  287; 
Hall  V.  Curtis,  39  La.  Ann.  504;  Mul- 
ler  V.  Zuberbier,  39  La.  Ann.  888; 
Block  V.  Kearney,  43  La.  Ann.  381. 

United  States. — Agnew  v.  Dorman, 
Taney  (U.  S.)  386;  Clay  Center  v. 
Farmer's  L.  &  T.  Co.,  145  U.  S.  224. 


Virginia. — Hansbrough  v.  Stinnet, 
22  Gratt.  (Va.)593;  McCarty  v.  Hama- 
ker,  82  Va.  471. 

Compare  Fink  v.  Denny,  75  Va.  663; 
and,  contra.  State  v.  Judge,  9  La.  Ann. 
353;  Carrollton  Co.  v.  Harper,  12  La. 
Ann.  212. 

Fictitious  Set-off. — A  defendant  can- 
not acquire  a  right  of  appeal  by  filing 
a  set-off  manifestly  specious  and  un- 
provable. Societa  Italiana  Di  Ben- 
eficenza  v.  Sulzer,  138  N.  Y.  468; 
Manchester  Paper  Mills  Co.  v.  Heth 
(Va.,  1893),  18  S.  E.  Rep.  189.  Nor 
will  such  a  set-off  assist  a  plaintiff 
appealing  from  a  judgment  for  de- 
fendant. Schultz  V.  Holbrook,  86 
Iowa  569. 

1.  United  States. — Symonds  w.Greene, 
28  Fed.  Rep.  834;  Simon  v.  House,  46 
Fed.  Rep.  317;  Texas,  etc.,  R.  Co.  v. 
Kuteman,  54  Fed.  Rep.  547;  U.  S. 
Bank  v.  Moss,  6  How.  (U.  S.)  31;  Stin- 
son  V.  Dousman,  20  How.  (U.  S.)46i; 
Williams  v.  Nottawa,  104  U.  S.  209; 
Jenness  v.  Citizens'  Nat.  Bank,  no 
U.  S.  52:  Dows  V.  Johnson,  no  U.  S. 
223;  Wabash,  etc.,  R.  Co.  v.  Knox,  no 
U.  S.  304;  Bowman  v.  Chicago,  etc., 
R.  Co.,  115  U.  S.  611. 

Connecticut. — Andrew  v.  Babcock,63 
Conn.  109. 

Delaware. — Guenford  v.  Loose,  5 
Del.  596. 

Indiana. — Murphy  v.  Evans,  11  Ind. 
517;  Keadle  v.  Siddens,  131  Ind.  597; 
Williamson  v.   Brandenberg,   133  Ind. 

594. 

Illinois. — Baber  v.  Pittsburg,  etc., 
R.  Co.,  93  111.  342. 

Iowa. — Marlow  v.  Marlow,  56  Iowa 
299;  Young  V.  McWaid,  57  Iowa  loi; 
Madison  v.  Spitsnogle,  58  Iowa  369; 
Centerville  v.  Drake,  58  Iowa  564; 
Bradenberger  v.  Rigler,  68  Iowa  300; 
Thurston  v.  Lamb  (Iowa,  1894),  57  N. 
W.  Rep.  875. 

Kansas.  —  Adams  v.  Douglass 
County,  McCahon  (Kan.)  235;  Stinson 
V.  Cook  (Kan.,  1894),  35  Pac.  Rep. 
1118. 

A'entucky. — Cobb  v.  Com.,  3  T.  B. 
Mon.  (Ky.)  391;  Hoskins  v.  Roberts, 


712 


Seal  Amount. 


AMOUNT  IN  CONTROVERSY. 


In  General. 


this  rule  the  real  amount  as  shown  by  the  evidence  produced  at 
the  trial  governs  on  a  question  of  jurisdiction  when  the  allegations 
are  in  conflict  with  it.*      And  the  amount  shown  by  the  record 


2  B.  Mon.  (Ky.)  263;  Mullins  v.   Bul- 
lock (Ky.,  1892),  19  S.  W.  Rep.  8. 

Louisiana. — Williams  v.  Vance,  2  La. 
Ann.  908;  Holland  v.  Duchamp,  12 
La.  Ann.  784;  Gustine  v.  New  Orleans 
Oil  Co.,  13  La.  Ann.  510;  Vicksburg, 
etc.,  R.  Co.  V.  Hamilton,  15  La.  Ann. 
521;  Vincent  v.  Schweitzer,  17  La. 
Ann.  199;  Gayarre  v.  Hays,  21  La. 
Ann.  307;  Espinola's  Succession,  21  La. 
Ann.  264;  Blanchard  v.  Kenison,  25  La. 
Ann.  385;  Wilkins  v.  Gantt,  32  La. 
Ann.  929;  Thompson  v.  Lemelle,  32  La. 
Ann.  932;  Wood  v.  Rocchi,  32  La.  Ann. 
1120;  State  z/. Bonny,  32  La.  Ann.  1187; 
Gillis  V.  Clayton,  33  La.  Ann.  285; 
Hearsay  v.  Booth,  33  La.  Ann.  300; 
Schmidt  v.  Brown,  33  La.  Ann.  416; 
Lemle  v.  Routon,  33  La.  Ann.  1005; 
Guss  V.  Routon,  33  La,  Ann.  1046; 
Meyer  v.  Logan,  33  La.  Ann.  1055; 
Smith  V.  Merchants'  Mut.  Ins.  Co.,  33 
La.  Ann.  1071;  Stubbs  v.  McGuire,  33 
La.  Ann.  1089;  Loeb  v.  Arent,  33  La. 
Ann.  1085;  Bier  J/.  Gautier,  35La.  Ann. 
206;  Cousley's  Succession,  39  La.  Ann. 
570;  Merchants',  etc.,  Ins.  Co.  v.  Levi, 
40  La.  Ann.  135;  Cassidy's  Succession, 
40  La.  Ann.  827;  Romero's  Succession, 
43  La.  Ann.  975. 

New  Jersey. — State  v.  Neumeyer,  51 
N.  J.  L.  299. 

New  York. — Abernathy  v.  Aber- 
nathy,  2  Cow.  (N.  Y.)4i3;  Williams  z/. 
Bitner,  i  Lans.  (N.  Y.)200. 

Pennsylvania.  —  Freedenbery  v. 
Meeteer,  4  Clark  (Pa.)  182;  Lelar  v. 
Gault,  2  Phila.  (Pa.)  78;  Baer  v.  Gar- 
rett, 2  Leg.  Chron.  (Pa.)  207. 

Texas. — Marshall  v.  Taylor,  7  Tex. 
235;  Dyer  v.  Dement,  37  Tex.  431; 
Clark  V.  Brown,  48  Tex.  212;  Cotter  z/. 
Parks,  80  Tex.  539. 

Vermont. — Thompson  v.  Colony,  6 
Vt.  91;  Briggs  V.  Beach,  18  Vt.  115; 
Bank  of  Rutland  v.  Cramton,  28  Vt. 
330.  . 

Virginia. — Batchelder  v.  Richard- 
son, 75  Va.  835;  Whitmer  v.  Spitzer, 
81  Va.  64. 

West  Virginia. — Morrison  v.  Good- 
win, 28  W.  Va.  328;  Currey  v.  Lawler, 
29  W.  Va.  hi;  Berry  z/.  Cunningham, 
37  W.  Va.  302. 

England. — Mayer  v.  Burgess,  4  El. 
&  Bl.  655,  82  E.  C.  L.  655. 

Compare  Levy  v.  Collins,  32  La.  Ann. 
1003. 


Thus,  in  an  action  of  trespass  on 
the  case  to  recover  damages  for  an 
alleged  expulsion  from  the  cars,  where 
plaintiff's  own  statement  and  the  testi- 
mony produced  by  him  disclose  that 
he  is  not  entitled  to  recover  $2000,  a 
U.  S.  Circuit  Court  should  dismiss  the 
case  for  want  of  jurisdiction,  the  court 
saying:  "While  the  general  rule  an- 
nounced in  Gordon  v.  Longest,  16  Pet. 
(U.  S.)  97,  is  unquestioned  that  in  ac- 
tions of  tort  the  amount  claimed  in 
the  declaration  is  the  test  of  jurisdic- 
tion, this  case  must  be  construed  in 
connection  with  the  act  of  Congress  of 
1875,  the  fifth  section  of  which  makes 
it  the  duty  of  the  court  to  dismiss  the 
case  when  it  shall  appear  to  its  satis- 
faction that  the  suit  does  not  really 
*  *  *  involve  a  *  *  *  contro- 
versy properly  within  its  jurisdic- 
tion." Maxwell  v.  Atchison,  etc.,  R. 
Co.  34  Fed.  Rep.  286.  And  in  Wol- 
cott  V.  Sprague,  55  Fed.  Rep.  545, 
where  S.  gave  B.  a  mortgage  on  his 
property  to  secure  $4000  and  then  ex- 
ecuted to  the  cashier  of  a  bank  a  deed 
absolute  on  its  face,  but  in  reality  to 
secure  a  loan  of  $1000.  S.  insured  the 
property  for  $4000,  and  delivered  the 
policy  to  B.  Subsequently,  a  fire  oc- 
curring,B.  sued  the  insurance  company 
on  the  policy,  and,  upon  a  compromise 
of  said  suit,  the  company  purchased 
B.'s  interest  in  the  mortgage.  Then 
the  bank  cashier  instituted  an  action 
to  foreclose  his  mortgage,  making  the 
insurance  company  a  party,  which 
filed  a  cross-bill,  setting  up  its  $4000 
mortgage,  in  which  suit,  on  a  plea  to 
the  jurisdiction,  it  was  held  that  the 
real  amount  in  controversy  Was  not 
only  the  $1000  mortgage,  but  also  the 
one  for  $4000,  and'  that  consequently 
the  court  was  clothed  with  jurisdiction. 

1.  Ballerino  v.  Bigelow,  90  Cal.  500; 
Williams  v.  Leeds,  Kirby  (Conn.)  278; 
Strong  V.  Meacham,  i  Root  (Conn.) 
525;  Shelton  v.  Dutton,  2  Root  (Conn.) 
440;  Clark  V.  Whitbeck,  14  111.  393; 
Happel  V.  Brethauer,  70  111.  i56;  Bozell 
V.  Hauser,  9  Ind.  522;  New  Orleans  z/. 
McArthur,  12  La.  Ann.  47;  People  v. 
Marine  Court.  36  Barb.  (N.  Y.)  341; 
Brisbane  v.  Batavia  Bank,  36  Hun 
(N.  Y.)  17:  Blake  v.  Krom,  128  N.  Y. 
64;  Caldwell  v.  Garmany,  3  Hill  (S. 
Car.)  202;  Allen  v.  Singleton,  i    Rice 


713 


Beal  Amount. 


AMOUNT  IN  CONTROVERSY. 


In  GeneraL 


and  the  pleadings,  taken  as  a  whole,  when  these  disclose  the  real 
sum  in  dispute,  is  determinative  of  the  question  of  jurisdiction.* 


(S.  Car.)  289;  Lipsmeier  v.  Vehslage, 
29  Fed.  Rep.  175;  Sharon  v.  Terry,  36 
Fed.  Rep.  337;  Greene  v.  Tacoma,  53 
Fed.  Rep.  562;  Horst  v.  Merkley,  59 
Fed.  Rep.  502;  Elgin  v.  Marshall,  106 
U.  S.  578;  Bradsireet  Co.  v.  Higgins, 
112  U.  S.  227;  Quebec  F.  Assur.  Co.  v. 
Anderson,  13  Moore  P.  C.  C.  477. 
Compare  Sullivan  v.  Vail,  42  Conn. 
90;  The  Jesse  Williamson,  Jr.,  108 
U.  S.  305. 

1.  Alabama. — Wagnor  v.  Turner,  73 
Ala.  197. 

Connecticut.  —  Moultrop  v.  Bennett, 
Kirby  (Conn.)  351;  Gates  v.  Jones,  i 
Root  (Conn.)  238;  Lord  v.  Merwin,  I 
Root  (Conn.)  276;  Lord  z/.  Waterhouse, 
I  Root  (Conn.)  430;  Guille  v.  Brown, 
38  Conn.  237;  Welles  v.  Allen,  41  Conn. 
140. 

Illinois.  —  Hargrave  v.  Penrod,  i  111. 
401,  12  Am.  Dec.  201;  Burst «'.  Wayne, 
13  111.  599;  Mattingly  v.  Darwin,  23 
111.  618;  Cox  V.  McGuire,  26  111.  App. 
315;  Seafkas  v.  Evey,  29  111.  178. 

Indiana. — Epperly  v.   Little,  6  Ind. 

344- 

Iowa. — Davis  v.  Upright,  54  Iowa 
752;  Reed  v.  Shum,  63  Iowa  378;  Ar- 
dery  v.  Chicago,  etc.,  R.  Co.,  65  Iowa 
723;  Kurtz  V.  Hoffman,  65  Iowa  260; 
Brock  V.  Barr,  70  Iowa  399. 

Louisiana. — Grogreve  v.  Windhorst. 
21  La.  Ann.  296;  Crescent  City  Live 
Stock,  etc.,  Co.  V.  Larrieux,  30  La. 
Ann.  798;  Miller  v.  Gidiere,  36  La. 
Ann.  201. 

Michigan. — Raymond  v.  Hinkson,  15 
Mich.  113. 

Minnesota.  —  Goncelier  v.  Foret,  4 
Minn.  13;  Stevers  v.  Gunz,  23  Minn. 
520. 

Missouri. — Kerr  v.  Simmons,  11  Mo. 
App.  595;  Owens  v.  Branson,  28  Mo. 
App.  584;  Colvin  V.  Sutherland,  32  Mo. 
App.  77;  Stephenson  z/.  Porter,  45  Mo. 
358. 

Rhode  Island. — Edwards  t/.  Hopkins, 

5  R.  I.  138. 

Texas. — Lowe  v.   Dowbarn,  26  Tex. 

507. 

United  States. — Sewall  v.  Chamber- 
lain, 5  How.  (U.  S.)6;  Jenks  v.  Lewis, 
3  Mason  (U.  S.)  503;  Lee  v.  Watson,  i 
Wall.  (U.  S.)  337;  Schacker  v.  Hart- 
ford F.  Ins.  Co.,  93  U.  S.  241;  Peyton 
V.  Robertson,  9  Wheat.  (U.  S.)  527; 
New  Jersey  Zinc  Co.  v.  Trotter,  108 
U.  S.  564;  Opelika  City  v.  Daniel,  109 


U.  S.  108;  Bruce  v.  Manchester,  etc., 
R.  Co.,  117  U.  S.  514;  Street  v.  Ferry, 
119  U.  S.  385;  Gibsonlz/.  Shufeldt,  122 
U.  S.  27;  Cox  V.  Western  Land,  etc., 
Co.,  123  U.  S.  375;  U.  S.  V.  Hill,  123  U. 
S.  681;  Harris  v.  Barber,  129  U.  S. 
366. 

Vermont. — Bishop  v.  Warner,  22  Vt. 
591;  Paul  V.  Burton,  32  Vt.  148;  Mason 
V.  Hutchins,  32  Vt.  780. 

Thus  in  the  case  of  Bowman  r.  Chi- 
cago,etc., R.  Co.  ,115  U.  S.  611,  in  which 
plaintiffs  sought  damages  for  a  refusal 
by  defendant  to  receive  and  carry 
1000  kegs  of  beer,  the  declaration 
contained  two  counts,  each  claiming 
$1200  damages.  Subsequently  plaintiffs 
amended  their  declaration  by  inserting 
an  ad  damnum  clause  in  the  sum  of 
$10, 000, and  judgment  was  rendered  for 
thedefendant.  Plaintiffs  appealed,  and 
although  there  was  an  agreement  of 
counsel  that  only  the  declaration  as 
amended  should  be  transmitted,  the 
Supreme  Court  held  that  it  was  with- 
out jurisdiction,  because  the  mere  fact 
that  an  ad  damnum  larger  than  the 
minimum  limit,  i.e.  $5000,  is  filed  when 
the  record  discloses  that  the  amount 
in  dispute  is  smaller,  will  not  clothe  it 
with  jurisdiction  in  error. 

The  Amount  Eecovered  is  frequently 
the  index  of  the  real  amount,  espe- 
cially in  suits  where  the  relief  sought 
is  of  a  liquidatable  character,  and  in 
questions  of  appellate  jurisdiction. 
Thus  in  Stevens  v.  Bafs,  i  Root  (Conn.) 
127,  there  was  an  action  on  a  note  for 
;^20  and  interest  (;^20  being  the  statu- 
tory minimum  limit  of  appellate  juris- 
diction at  the  time),  said  note  being 
given  to  oblige  defendant  to  abide  an 
award.  The  sum  demanded  was  ;^30, 
but  the  recovery  was  only  ;^I3  5s.  5d., 
and  it  was  held  that  there  was  no 
right  of  appeal.  Pettibone  v.  Phelps, 
2  Root  (Conn.)  137;  Fuller  v.  Reed, 
2  Root  (Conn.)  188;  Bateman  v.  Sis- 
son,  70  Iowa  51S;  Brillis  v.  Blumen- 
thal,  13  Fla.  577;  Turner  v.  Pash 
(Ky.,  1891),  17  S.  W.  Rep.  809;  State 
V.  Judge,  24  La.  Ann.  601;  State  v. 
Shakespeare  (La.,  1889),  6  So.  Rep. 
592;  Myers  v.  Myers,  22  Mo.  App.  94; 
McCauly  v.  Barnes,  i  N.  J.  L.  52; 
Petrie  v.  Adams,  71  N.  Y.  79;  Mc- 
Millan V.  Cronin,  75  N.  Y.  474; 
Schenck  v.  Marx,  125  N.  Y.  703;  The 
Steamship  Haverton,   137  U.   S.   145  ; 


714 


Real  Amount.         AMO  UNT  IN  CONTRO  VERS  Y, 


In  General. 


The  mere  fact  that  the  cause  of  action  arises  out  of  a  demand 
whose  total  sum  exceeds  the  jurisdictional  limit,  will.not  prevent 
the  attaching  of  that  jurisdiction,  provided  the  real  amount  due 
in  the  particular  case  is  alone  claimed.* 

The  Real  Value  and  not  the  alleged  value  of  property  is  the  touch- 
stone of  jurisdiction  in  actions  where  value  is  the  gravamen,  such 
as  replevin.* 

Exemplary  Damages  allowed  in  actions  of  malicious  trespass  are 
calculable  in  addition  to  the  actual  damage  in  determining  the 
jurisdictional  amount.*^ 

Attorney's  Fees  especially  stipulated  for  in  promissory  notes  are 
not  considered  costs,  but  are  calculable  in  determining  the  amount 
in  controversy."* 

Courts  Will  Investigate  the  question  in  every  instance  in  order  to 
determine  the  real  amount,  and  they  will  not  be  bound  by  allega- 
tions, but  will  carefully  weigh  and  scrutinize  the  proceedings  as  a 
whole.* 


Whitmer  v.  Spitzer,  8i  Va.  64;  Neal  v. 
Van  Winkle,  24  W.  Va.  401.  See  also 
Blakeslee  v.  Murphy,  44  Conn.  188; 
Beard  v.  Kinney,  6  Blackf.  (Ind.)  425. 

1.  Winston  v.  Majors,  6  Ala.  659; 
Wilhelmst/.  Noble,  36  Ga.  599;  Maurer 
V.  Derrick,  i  111.  197;  Culley  v.  Lay- 
brook,  8  Ind.  285;  Inhabitants  of  Con- 
gressional Tp.  V.  Weir,  9  Ind.  224; 
Guards/.  Circle,  16  Ind.  401;  Pate  z'. 
Shafer,  19  Ind.  173;  Brown  v.  Cain,  79 
Ind.  93;  Hapgood  v.  Doherty.  8  Gray 
(Mass.)  373;  Best  v.  Best,  16  Mo.  530; 
Thompson  z/.  Gibson,  2  Overt.  (Tenn.) 
235;  Bridge  v.  Ballew,  11  Tex.  269; 
Dalby  v.  Murphy,  25  Tex.  354. 

2.  Sanford  v.  Scott,  38  Conn.  244; 
Tylef  V.  Bowlus,  54  Ind.  333;  Leslie 
V.  Reber,  4  Kan.  315;  Leonard  v.  Han- 
non,  105  Mass.  113;  Blake  v.  Darling, 
116  Mass.  300;  Octo  V.  Teahan,  133 
Mass.  430;  The  Sydney,  139  U.  S.  331. 
But  compare  Maxfield   v.   Scott,  17  Vt. 

634- 

3.  Barry  v.  Edmunds,  116  U.  S.  550. 
But  in  actions  of  contract  such  dam- 
ages are  excluded  from  the  determina- 
tion. Peterson  v.  Thomas  (Tex.  Civ. 
App.,  1893),  24  S.  W.  Rep.  1124. 

Double  Damages  and  other  statutory 
allowances  of  extra  damages  are  gen- 
erally excluded  in  computing  the  juris- 
dictional sum  as  indicated  by  the  real 
amount.  Hussey  v.  King,  83  Me.  568; 
Grau  V.  St  Louis,  etc.,  R.  Co.,  54 
Mo.  240  ;  Natchez  v.  Mallery,  54 
Miss.  498;  Morris  v.  Rucks,  62  Miss. 
76;  Nelson  V.  Nelson,  2  Munf.  (Va.) 
542. 


4.  Blankenship  7/.  Wartelsky  (Tex., 
1887),  6  S.  W.  Rep.  140;  Murrah  v. 
Brichta  (Tex.,  1888),  9  S.  W.  Rep.  185; 
Altgeltz/.  Harris  (Tex.,  1889),  11  S.  W. 
Rep.  857;  Waters  z/.  Walker  (Tex.  App., 
1891),  17  S.  W.  Rep.  1085.  Compare 
Simmons  v.  Terrell,  75  Tex.  275.  C^m- 
/ra,  Moore  w.  Foy  (Tex.  App.,  1891),  15 
S.  W.  Rep.  199;  Baker  v.  Howell,  44 
Fed.  Rep.  113;  Spiesberger  v.  Thomas, 
59  Iowa  606.  See    Promissory  Notes. 

5.  Connecticut. — Bridgeport  v.  Blinn, 
43  Conn.  274. 

Illinois. — Clark  v.  Cornelius,  i  111. 
46;  Brant  v.  Gallup,  iii  111.  487,  53 
Am.  Rep.  638. 

Indiana. — Indianapolis,  etc.,  R.  Co. 
V.  Elliott,  20  Ind.  430;  Indianapolis, 
etc.,  R.  Co.  V.  Kerchival,  24  Ind.  139; 
Toledo,  etc.,  R.  Co.  v.  Tilton,  27  Ind. 
71;  Jeffersonville,  etc.,  R.  Co.  v.  Bre- 
voort,  30  Ind.  324;  Louisville,  etc.,  R. 
Co.  V.  Johnson,  67  Ind.  546. 

loTna. — Ruiter  v.  Plate,  77  Iowa  17; 
Nash  V.  Beckman,  86  Iowa  249. 

Louisiana. — Lanier  v.  Gallatas,'  13 
La.  Ann.  175;  Wilkins  v.  Gantt,  32  La. 
Ann.  929;  State  v.  Voorhies,  34  La. 
Ann.  1142;  Denegre  v.  Moran,  36  La. 
Ann.  423;  Breaux  v.  Recorder,  36  La. 
Ann.  742. 

Missouri. — Kerrz/.  Simmons,  11  Mo. 
App.  595  ;  Anchor  Milling  Co.  v. 
Walsh,  97  Mo.  287;  Wolff  v.  Mat- 
thews, 98  Mo.  246. 

New  York. — People  v.  Horton,  64 
N.  Y.  58;  Campbell  v.  Mandeville, 
no  N.  Y.  628;  Shaw  v.  Roberts  (Su- 
preme Ct.),  14  N.  Y.  Supp.  579. 


715 


Beal  Amoant. 


AMOUNT  IN  CONTROVERSY. 


Hust  Appear. 


An  Appellant's  Right  to  an  appeal  is  determined  by  the  amount 
shown  by  him  to  be  really  and  legally  due,  and  not  by  the  re- 
covery.* 

2.  Amount  Must  Appear. — Following  almost  as  a  corollary  on 
the  principle  enunciated,  that  the  real  amount  is  a  very  important 
element  in  determining  the  question  of  jurisdiction,  is  the  well- 
settled  doctrine  that  the  record  must  affirmatively  show  the 
amount  in  controversy  in  order  that  the  court  may  take  jurisdic- 
tion.* 


Pennsylvania. — Byrne  v.  Gordon,  2 
Brown  (Pa.)  271. 

South  Carolina. — Allen  v.  Singleton, 
I  Rice  (S.  Car.)  289. 

United  States. — Street  v.  Ferry,  119 
U.  S.  385;  Culver  z/.  Crawford  County, 
4  Dill.  (U.  S.)  239;  Gray  v.  Blanchard, 
97  U.  S.  564;  U.  S.  V.  Hill,  123  U.  S. 
681:  Davie  v.  Heyward,  33  Fed.  Rep. 

93- 

Affidavits  Showing  Amoant. — A  rule 
prevails  in  the  Supreme  Court  of  the 
U.  S.  in  appeals  thereto,  when  the  real 
amount  can  be  determined  in  no  other 
way,  to  allow  affidavits  of  value  to  be 
made  in  order  that  the  court  may  be 
apprised  of  its  jurisdiction  vel  non. 
Williamson  v.  Kincaid,  4  Dall.  (U.  S.) 
19;  Youngstown  Bank  v.  Hughes,  106 
U.  S.  523;  Wilson  V.  Blair,  119  U.   S. 

387. 

In  an  early  case  it  was  even  held 
that  the  amount  could  be  shown  by 
viva  voce  testimony.  U.  S.  v.  Brig 
Union,  4  Cranch  (U.  S.)  216. 

In  Missouri. — By  Gen.  St.  1865,  when 
the  amount  does  not  appear,  the  de- 
fendant is  entitled  to  a  verbal  state- 
ment provided  thereby.  Gillihan  v. 
Wren,  44  Mo.  377.  Compare  Agn&w  v. 
Dorman,  Taney  (U.  S.)  386. 

1.  Crabtree  v.  Cliatt,  22  Ala.  181; 
House  V.  Lassiter,  49  Ala.  307;  Lan- 
gan  V.  Langan,  86  Cal.  132;  Purcell  v. 
Booth,  6  Dakota  17;  Halpin  v.  Max- 
well, 24  La.  Ann.  94;  Beirne  v.  Gill,  34 
La.  Ann. 7;  Imhofif  v.  ImhofT(La.,  1893), 
13  So.  Rep.  90;  Wolff  V.  Matthews, 
98  Mo.  246;  State  v.  Gill,  107  Mo.  44; 
King  V.  Galvin,  62  N.  Y.  238;  Pennie 
V.  Continental  Ins.  Co.,  67  N.  Y.  278; 
Rosevelt  v.  Linkert,  67  N.  Y.  447; 
Brown  v.  Sigourney,  72  N.  Y.  122; 
Wilevz'.  Brigham,  81  N.  Y.  13;  Knapp 
V.  Deyo,  108  N.  Y.  518  ;  A.  Hall 
Terra  Cotta  Co.  v.  Doyle,  133  N.  Y. 
603;  Gorman  v.  Havira,  141  U.  S. 
206;  American  Express  Co.  v.  Gray, 
62  Vt.  421.  See  post,  this  article, 
JXII.  Appealable  Amount. 

71 


In  New  York.— By  Code  of  Proced- 
ure, wherever  there  come  in  litigation 
the  mutual  accounts  of  plaintiff  and 
defendant,  a  justice  has  no  jurisdiction 
when  their  sum  total  exceeds  $400; 
but  he  is  made  the  arbiter  of  that 
question,  and  it  is  only  when  such 
accounts  shall  "  be  proven  to  his  satis- 
faction "  to  be  in  excess  of  that  sum 
that  his  jurisdiction  is  ousted.  Glackin 
V.  Zeller,  52  Barb.  (N.  Y.  Super.  Ct.) 
147;  Boston  Mills  v.  Eull,  6  Abb.  Pr. 
N.  S.  (N.  Y.)  319;  Burdick  v.  Hale.  13 
Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.)  60; 
Lamoure  v.  Caryl,  4  Den.  (N.  Y.)  370; 
White  V.  Place,  40  Hun  (N.  Y.)  481; 
Fuller  V.  Conde,  47  N.  Y.  89. 

2.  Alabama. — Cahuzac  v.  Samini,  29 
Ala.  288. 

Arkansas. — McClure  v.  Hill,  36  Ark. 
268. 

California.  —  Hoyt  v.  Stearns,  39 
Cal.  92;  Heinlen  v.  Heilbron,  71  Cal. 
557- 

Connecticut. — Miles  v.  Troop,  i  Root 
(Conn.)  148;  Lord  v.  Parmela,  i  Root 
(Conn.)  158;  Melfon  v.  Hammond,  i 
Root  (Conn.)  518. 

Illinois. — Trader  v.  McKee,  2  111. 
558;  McGuirk  v.  Burry,  93  111.  118; 
Lewis  V.  Shear,  93  111.  121;  Hancock 
V.  Tower,  93  111.  150;  Morris  v.  Pres- 
ton, 93  111.  215;  Piper  V.  Jacobson,  98 
111.  389. 

Kansas. — Loomis  v.  Bass,  48  Kan. 
26. 

Kentucky. — Farron  v.  Summers,  3 
Litt.  (Ky.)  460. 

Louisiana. — Gardere  v.  Garvey,  2 
La.  Ann.  136;  Plique  v.  Bellome,  2 
La.  Ann.  293;  Webb  v.  Kemp,  2  La. 
Ann.  337;  McDonogh  v.  Derbigny,  2 
La.  Ann.  956;  Spangenberg  v.  Bige- 
low,  3  La.  Ann.  70;  McDonogh  v. 
Nugent,  4  La.  Ann.  28;  Lemoine  v. 
Garcia,  4  La.  Ann.  366;  Second  Muni- 
cipality V.  Corning,  4  La.  Ann.  407; 
Kellar  v.  Palfrey,  8  La.  Ann.  282; 
Bersheim  v.  Hudson,  8  La.  Ann.  456; 
Le  Blanc  v.  Pittman,  16  La.  Ann.  430; 

6 


Beal  Amount. 


AMO  UNT  IN  CONTRO  VERS  Y. 


Unaffected. 


3.  Amount  UnafEected  by  Agreement  of  Parties. — No  agreement  of 
parties  or  consent  on  their  part,  either  express  or  by  implication,. 


New  Orleans  v.  Imley,  12  La.  Ann. 
87;  Boutte  V.  Maillard,  ig  La.  Ann. 
276;  State  V.  Levee  Steam  Cotton 
Press  Co.,  22  La.  Ann.  622;  State  v. 
Laresche,  24  La.  Ann.  148;  State  v. 
Friedlander,  25  La.  Ann.  43;  State  v. 
Judge,  27  La.  Ann.  676;  Lallande  v. 
Trezevant,  39  La.  Ann.  830;  Goodrich 
V.  Newell,  43  La.  Ann.  378;  Miller  v. 
Cappel,  39  La.  Ann.  881;  Adams  v. 
Starks,  33  La.  Ann.  304. 

Missouri. — Cook  v.  Decker,  63  Mo. 
328;  State  V.  Gill,  107  Mo.  44. 

New  Jersey, — Coyle  v.  Coyle,  26  N. 
J.  L.  132. 

Ohio.  —  Aten  v.  Morgan,  Tapp. 
(Ohio)  232. 

United  States. — U.  S.  v.  Pratt  Coal, 
etc.,  Co.,  18  Fed.  Rep.  708;  Oleson  v. 
Northern  Pac.  R.  Co.,  44  Fed.  Rep.  i; 
Home  Ins.  Co.  v.  Nobles,  63  Fed.  Rep. 
641;  Simon  v.  House,  46  Fed.  Rep.  317; 
Continental  Ins.  Co.  v.  Rhoads,  119 
U.  S.  237;  Halsted  v.  Buster,  119  U. 
S.  341;  Mansfield,  etc.,  R.  Co.  v. 
Swan,  III  U.  S.  379;  Bors  v.  Preston, 
III  U.  S.  252;  Morris  v.  Gilmer,  129 
U.  S.  315;  Menard  v.  Goggan,  121  U. 
S.  253;  Everhartr/.  Huntsville  College, 
120  U.  S.  223;  Johnson  v.  Wilkins,  116 
U.  S.  392;  Reynolds  v.  Burns,  141  U.  S. 
117;  Cameron  v.  U.  S.,  146  U.  S.  533; 
Washington,  etc.,  R.  Co.  v.  District 
of  Columbia,  146  U.  S.  227;  Abadie  v. 
U.  S.,  149  U.  S.  261;  El  Paso  Water 
Co.  V.  El  Paso  (1894),  152  U.  S.  157. 

Vermont. — Perkins  v.    Rich,   12  Vt. 

595- 

Virginia. — Maitland  v.  McDearman, 
I  Va.  Cas.   131. 

West  Virginia. — Rymer  v.  Hawkins, 
18  W.  Va.  309;  Aspinwall  v.  Barrick- 
man,  29  W.  Va.  508;  McCoy  v.  McCoy, 
33  W.  Va.  60. 

Amount  is  not  Presumed. — It  is  the 
real  and  not  the  problematical  amount 
which  governs;  the  law  raises  no  pre- 
sumption, in  the  absence  of  the  affirm- 
ative showing  of  the  amount  in  con- 
troversy, as  to  what  the  real  amount 
may  be.  Thus  it  was  held  in  Rich  v. 
Bray,  37  Fed.  Rep.  273,  that  a  decla- 
ration that  the  amount  involved  was 
\inknown,  but  that  it  was  largely  in 
excess  of  the  jurisdictional  minimum, 
was  not  sufficient  to  confer  jurisdic- 
tion. Peters  v.  Goodrich,  3  Conn. 
146;  Griswold  v.  Mather,  5  Conn.  435; 
Abbe  V.  Goodwin,  7  Conn.   377;  Um- 


lauf  V.  Umlauf,  103  111.  651;  Swan  v. 
Bry,  21  La.  Ann.  481;  Wade  v.  Lou- 
don, 30  La.  Ann.  660;  Lane  v.  Doak, 
48  Tex.  227;  Mawthe  v.  Crozier,  50 
Tex.  153;  Murphy  v.  East  Portland, 
42  Fed.  Rep.  308;  Olney  v.  Steamship 
Falcon,  17  How.  (U.  S.)  19.  Compare, 
contra,  Hefflin  v.  Bell,  30  Vt.  134. 

The  Burden  of  Proving  Jurisdiction 
rests  upon  the  party  seeking  a  revision 
of  the  case.  Hagan  v.  Foison,  lO' 
Pet.  (U.  S.)  160.     See  art.  Evidence. 

Want  of  Jurisdiction,  when  caused  by 
the  fact  that  the  amount  involved 
falls  below  the  minimum  limit,  must 
affirmatively  appear.  Babcock  v.  Clay- 
ton County,  65  Iowa  no;  Henkle  v. 
Keota,  68  Iowa  334  ;  District  Tp.  v. 
Independent  Dist.,  72  Iowa  687;  Cook 
V.  Decker,  63  Mo.  328;  Parker  v. 
Eaton,  25  Barb.  (N.  Y.)  122;  Williams 
V.  Shields,  2  W.  N.  C.  (Pa.)  176. 

The  Court  Will  Dismiss  the  case  when 
the  real  amount  involved  in  contro- 
versy does  not  affirmatively  appear. 
Perkins  7/.  Perkins,  7  Conn.  558, 18  Am. 
Dec.  120;  Home  v.  Duff,  5  Colo.  574; 
Spangenberg  v.  Bigelow,  3  La.  Ann. 
70;  State  V.  Judge,  22  La.  Ann.  49 ; 
Case  V.  Hurley,  22  La.  Ann.  333  ; 
State  V.  Dopf,  22  La.  Ann.  400;  Zach- 
arie  v.  Lyons,  22  La.  Ann.  618  ;  Hite 
V.  Hinsel,  39  La.  Ann.  113;  Pinckney 
V.  Wolf,  41  La.  Ann.  306;  Schwartz  v. 
Firemen's  Charitable  Assoc,  41  La. 
Ann.  404;  Webb  v.  Hoth  (La.,  1888), 
15  So.  Rep.  536;  Stephen  v.  Eiseman, 
54  Miss.  535;  Eacrit  v.  Keen,  4  N.  J. 
L.  203;  Gulf,  etc.,  R.  Co.  v.  Buford, 
85  Tex.  430;  Kenyon  v.  Knipe,  46  Fed. 
Rep.  309;  Parker  v.  Morrice,  106  U. 
S.  i;  Hunt  v.  Blackburn,  127  U.  S. 
774;  Walter  v.  Chichester,  84  Va.  723; 
Henry's  Succession,  45  La.  Ann.  156; 
Martin  v.  Harvey,  54  Miss.  685;  Ed- 
wards V.  Hopkins,  5  R.  I.  138;  Ontario, 
etc.,  R.  Co.  V.  Marcheterre,  17  Can. 
Sup.  Ct.  Rep.  141.  Compare,  contra. 
Democrat  Pub.  Co.  v.  Lewis  (Iowa, 
1894),  57  N.  W.  Rep.  869. 

In  Home  Ins.  Co.  v.  Nobles,  63  Fed. 
Rep.  641,  it  was  held  that  a  bill  for  an 
injunction  restraining  defendants  from 
further  issuing  a  certain  circular  al- 
leged to  be  detrimental  to  complain- 
ant's business,  and  from  in  any  way 
interfering  with  that  business  by 
threats,  etc.,  which  does  not  contain 
any  statement  of  the  amount  of  dam- 


717 


Real  Amount.  AMO  UNT  IN  CONTRO  VERS  Y.        Not  Dependent. 

can  affect  the  real  amount  in  controversy  so  as  to  render  it  within 
a  court's  jurisdiction,  when  without  such  consent  or  agreement  it 
would  not  be.* 

4.  Amount  Not  Dependent  on  Collateral  Effect  of  Judgment. — 
Naturally  ensuing  from  what  has  already  been  said  on  the  ques- 
tion of  real  amount  is  the  further  principle  that  neither  the  pro- 
bative force  of  a  judgment  nor  its  collateral  effect  on  another  suit 
or  suits  can  in  any  manner  influence  the  determination  of  the 
amount  in  controversy,  that  being  only  the  sum  in  dispute  in  the 
case  then  on  trial.* 


ages  sustained  or  apprehended,  or  of 
the  value  of  the  matter  in  controversy, 
or  of  the  object  sought  to  be  obtained, 
is  not  sufficient  to  give  the  court  juris- 
diction. But  such  a  bill  will  not  be 
dismissed  where  it  does  not  affirma- 
tively appear  that  the  court  is  with- 
out jurisdiction,  but  complainant  will 
be  given  leave  to  move  to  amend. 

1.  Leigh  V.  Mason,  2  111.  249;  Will- 
iams V.  Blankenship,  12  111.  122;  Hor- 
ton  V.  Sawyer,  59  Ind.  587;  Denegre 
V.  Moran,  35  La.  Ann.  346;  Gamber  v. 
Holben,  5  Mich.  331;  Stone  v.  Corbett, 
20  Mo.  353;  Aten  v.  Morgan,  Tapp. 
(Ohio)  232;  Haynes  v.  Briggs,  41  Fed. 
Rep.  468;  Gruner  v.  U.  S.,  ri  How. 
<U.  S.)  163;  Glidden  v.  Elkins,  2 
Tyler  (Vt.)  218.  See  also  Miller  v. 
Gidiere,  36  La.  Ann.  201;  Groves  v. 
Janssens,  9  Exch.  481. 

Neither  Appearance  in  a  lower  court 
nor  appealing  to  a  higher  can  confer 
jurisdiction  when  the  real  amount  in- 
volved is  insufficient.  Sons  of  Amer- 
ica, etc.,  Assoc.  V.  Denver,  15  Colo.  592; 
Crane  v.  Farmer,  14  Colo.  294;  Mc- 
Closkey  f.  Lake  View  Min.,  etc.,  Co.,  18 
Colo.  65;  Perkins  v.  Perkins,  7  Conn. 
558,  18  Am.  Dec.  120;  Brondberg  v. 
Babbott,  14  Neb.  517.  Nor  the  filing 
of  an  answer.  Citizens'  Bank  v. 
Condran,  22  La.  Ann.  53;  Connors  v. 
Citizens'  Mut.  Ins.  Co.,  22  La.  Ann. 
330;  Southern  Pac.  Co.  v.  Burns  (Tex. 
Civ.  App.,  1893),  25  S.  W.  Rep.  2^8. 
Nor  confessing  judgment.  Feillett  v. 
Engler,  8  Cal.  76;  Bellinger  v.  Ford,  14 
Barb.  (N.  Y.)  250;  Slocumb  v.  Cape 
Fear  Shingle  Co.,  no  N.  Car.  24.  Nor 
on  an  appeal  increasing  the  ad  damnum 
in  a  case  otherwise  unappealable. 
Hurlbut  V.  Rogers,  2  Root  (Conn.)  60; 
Savage  v.  White,  2  Root  (Conn.)  377; 
Webster  v.  Buffalo  Ins.  Co.,  no  U.  S. 
386.  But  compare  Tintsman  v.  Na- 
tional Bank,  100  U.  S.  6. 

In  Iowa,  by  special  statute,  parties 


may  by  consent  extend  the  jurisdiction 
of  a  justice  of  the  peace  to  sums  in 
excess  of  his  ordinary  maximum  limit. 
Hodge  V.  Ruggles,  36  Iowa  42;  Long 
V.  Loughran,  41  Iowa  543;  Marshall- 
town  Bank  v.  Kennedy,  53  Iowa  357; 
Brown  v.  Davis,  59  Iowa  641;  Schlie- 
man  v.  Webber,  65  Iowa  114;  Houghton 
V.  Bauer,  70  Iowa  314;  Edwards  v. 
Cosgro,  71  Iowa  296. 

In  Ohio  a  similar  rule  prevailed. 
Deming  v.  Austen,  Wright  (Ohio)  717. 

In  Pennsylvania,  see  Deming  v. 
Holler,  3  Luz.  Leg.  Obs.  (Pa.)  226; 
Boon  V.  Collins,  i  Phila.  (Pa.)  43S, 
Butler  V.  Urch,  2  Grant's  Cas.  (Pa.)  247. 

2.  Hartford  F.  Ins.  Qo.v.  Bowner  Mer- 
cantile Co.  (1893),  56  Fed.  Rep.  378; 
Grant  v.  M'Kee,  r  Pet.  (U.S.)  248;  Elgin 
V.  Marshall,  106  U.S.  578;  Bruce  z'.  Man- 
chester, etc.,  R.  Co.,  117  U.  S.  514; 
Gibson  v.  Shufeldt,  122  U.  S.  27; 
Hilton  V.  Dickinson,  108  U.  S.  165;  The 
Jesse  Williamson,  Jr.,  108  U.  S.  305; 
New  Jersey  Zinc  Co.  v.  Trotter,  108 
U.  S.  564;  Opelika  Citv  v.  Daniel,  109 
U.  S.  108;  Wabash,  etc.,  R.  Co.  v. 
Knox,  no  U.  S.  304 ;  New  England 
Mortgage  Security  Co.  v.  Gay,  145 
U.  S.  123;  Washington,  etc.,  R.  Co.  v. 
District  of  Columbia,  146  U.  S.  227; 
U.  S.  V.  Wanamaker,  147  U.  S.  149; 
Lamar  Ins.  Co.  v.  Gulick,  96  111.  619; 
Lotz  V.  Mason  County  (Wash.,  1893), 
6  Wash.  166.  Compare  Troy  v.  Evans, 
97  U.  S.  i;  Richardson  v.  Green,  130 
U.  S.  104.  See  also  Endom  v.  Lude- 
ling,  34  La.  Ann.  1024;  State  v.  Cole, 
34  La.  Ann.  1215. 

Difference  Between  Value  Found  and 
Judgment. — In  a  collision  case  in  ad- 
miralty, where  the  District  Court  gives 
a  judgment  for  value  of  the  effects,  to 
wit,  the  sum  of  $6057,  but  the  Circuit 
Court  awards  a  judgment  for  only 
$3028.50,  the  Supreme  Court  is  with- 
out jurisdiction  on  libellant's  appeal, 
because  the  real  amount  in  controversy 

18 


Accrued  Interest.      AMO  UNT  IN  CONTRO  VERS  V.    When  Calculable. 

VI.  Amount  Must  Be  Pecuniasy. — The  amount  in  controversy 
must  always  be  an  amour.t  either  consisting  of  money  or  readily 
calculable  in  money.* 

VII.  Accrued  Interest — 1.  When  Calculable— In  the  absence 
of  statutory  inhibition  on  claims  naturally  bearing  interest,  such 
as  promissory  notes,  coupon  bonds,  and  the  like,  interest  accruing 
after  suit  is  brought  forms  a  part  of,  and  is  calculable  in  deter- 
mining, the  amount  in  controversy.* 


is  the  difference  between  the  latter 
judgment  and  the  value  as  found  by 
the  former.  The  Steamship  Haverton, 
137  U.  S.  145;  Dows  V.  Johnson,  no 
U.  S.  223  ;  Hilton  v.  Dickinson,  io8 
U.  S.  165.  Contrast  Irvine  v.  Steam- 
ship Hesper,  122  U.  S.256;  Metcalfe  v. 
Steamship  Alaska,  130  U.  S.  201. 

Contingent  Loss  Not  Calculable. — It  is 
not  any  contingent  loss  which  a  party 
may  suffer  by  reason  of  judgment 
going  against  him  which  affects  juris- 
diction, but  the  amount  actually  in 
dispute.  Ross  v.  Prentiss,  3  How. 
(U.  S.)77i. 

For  an  Exhaustive  Review  of  the 
cases  in  the  Supreme  Court  of  the 
United  States  and  an  interesting  and 
learned  discussion  of  the  principle  of 
real  amount  as  applied  in  that  court, 
see  the  opinion  of  Waite,  C.J.,  in 
Hilton  V.  Dickinson  (1882),  108  U.  S. 
165. 

1.  Blakeslee  v.  Murphy,  44  Conn. 
188;  Farrow  v.  Summers,  3  Litt.  (Ky.) 
460;  Barry  v.  Mercein,  5  How.  (U.  S.) 
103;  Youngstown  Bank  ?'.  Hughes,  106 
U.  S.  523;  Hoadley  v.  San  Francisco, 
124  U.  S.  639;  Farnsworth  v.  Montana, 
129  U.  S.  104;  Wineberg  v.  Hampson, 
19  Can.  Sup.  Ct.  Rep.  369;  Pratt  v. 
Fitzhugh,  I  Black  (U.  S.)27i;  DeKrafft 
V.  Barney,  2  Black  (U.  S.)  704;  Smith 
V.  Adams,  130  U.  S.  167;  Sanx  v.  Pat- 
ton,  34  La.  Ann.  1155;  State  z/.  Miscar, 
34  La.  Ann.  834;  Bell  v.  West  Point, 
51  Miss.  262.  Compare  Burke  v.  Wall, 
29  La.  Ann.  38,  29  Am.  Rep.  316; 
Ritchie  v.  Mauro,  2  Pet.  (U.  S.)  243; 
Grant  v.  M'Kee,  i  Pet.  (U.  S.)  248; 
Scott  V.  Lunt,  6  Pet.  (U.  S.)  349;  Ross 
V.  Prentiss,  3  How.  (U.  S.)  772.  See 
note  to  Richmond  v.  Van  Clief,  16  Abb. 
Pr.  N.  S.  (N.  Y.  Supreme  Ct.)  97. 
Compare  also  Smith  v.  Whitney,  116  U. 
S.  167;  Columbian  Ins.  Co.  v.  Wheel- 
right,  7  Wheat.  (U.  S.)  534;  U.  S.  v. 
Addison,  22  How.  (U.  S.)  174;  Lee  v. 
Lee,  8  Pet.  (U.  S.)  44;  Weston  v. 
Charleston,  2  Pet.  (U.  S.) 449;  Holmes 


V.  Jennison,  14  Pet.  (U.  S.)  540 — partly 
a  money  judgment. 

The  Appellate  Court  may  acquire  juris- 
diction although  the  entire  judgment 
is  not  calculable  in  money.  Vonder- 
weit  i'.  Centerville,  15  Ind.  447.  See 
also  Farrow  v.  Summers,  3  Litt.  (Ky.) 
460,  holding  that  under  ancient  stat- 
utory jurisdictional  limits,  the  amount 
might  be  either  in  money  or  in  kind. 

Market  Value  Not  Essential.  —  A 
market  value  is  not  necessary  to  bring 
the  subject-matter  within  the  jurisdic- 
tional amount  of  the  U.  S.  Supreme 
Court.  Sparrow  v.  Strong,  3  Wall. 
(U.  S.)  97.  Compare  Lownsdale  v.  Par- 
rish,  21  How.  (U.  S.)  290. 

In  Indiana.  —  By  statute  it  is  pro- 
vided that  the  mere  fact  that  another 
matter,  not  of  a  pecuniary  character 
per  se,  is  also  involved  in  addition  to 
a  money  claim,  will  not  affect  the 
exclusive  jurisdiction  of  the  appellate 
court.  Harris  v.  Howe,  129  Ind.  72; 
Wysor  V.  Johnson,  i  Ind.  App.  419; 
Hallett  V.  Hallett  (Ind.  App.,  1892),  30 
N.  E.  Rep.  534;  Durham  v.  State,  133 
Ind.  422. 

In  Virginia  also.  Cook  v.  Bondu- 
rant,  85  Va.  47. 

2.  Thus,  for  example,  in  Wilson  v. 
Sparkman,  17  Fla.  871,  which  was  a 
suit  upon  a  note,  the  principal  of 
which,  without  the  addition  of  the  in- 
terest, was  insufficient  to  confer  juris- 
diction, and  the  court  said:  "  After 
searching  all  the  authorities  at  hand, 
we  find  no  case  in  which,  where  the 
jurisdiction  is  limited  to  a  certain 
'  amount  in  controversy,'  such  an 
amount  is  determined  by  the  amount 
01  principal  of  a  note  or  bond  in  terms 
bearing  interest,  unless  so  provided 
by  statute."  And  it  was  held  that 
interest  should  be  added  in  this  case. 
Hempstead  v.  Collins,  6  Ark.  533; 
Malsof  V.  Vaughn,  23  Cal.  61;  Skillman 
V.  Lachman,  23  Cal.  198,  83  Am.  Dec. 
96;  Denver  Brick  Mfg.  Co.  v.  Mc- 
Allister, 6    Colo.   326;  Cramer  v.  Mc- 


719 


Accrued  Interest.      A  MO  UNT  IN  CONTRO  VERS  V.        Not  Calculable. 


2.  When  Not  Calculable — Excluded  by  Statute. — Interest  forms  no 
part  of  the  amount  in  controversy,  so  far  as  affecting  jurisdiction, 
when  a  statute  defining  a  court's  jurisdiction  excludes  it  eo 
nomine  from  computation.^ 


Dowell,  6  Colo.  369;  Tindall  v.  Meeker, 
2  111.  137;  Dowling  V.  Stewart,  4  111. 
194;  Welsh  V.  Karstens,  60  111.  118; 
Gregg  V.  Wooden,  7  Ind.  499;  Con- 
gressional Tp.  V.  Weir,  9  Ind.  224; 
Schienker  v.  Taliaferro,  20  La.  Ann. 
565;  Barber  v.  Kennedy,  18  Minn. 
216;  Reese  z/.  Hawks,  63  Md.  130;  Scott 
V.  Russell,  8  Mo.  407;  Stone  v.  Murphy, 
2  Iowa  35;  Sweeny  z'.  Lowe,  6  B.  Mon. 
(Ky.)  314;  Orth  v.  Clutz,  18  B.  Mon. 
(Ky.)  223;  Bracy  v.  Bracy,  12  Bush 
(Ky.)  153;  Kleni  v.  Allenback,  6  Nev. 
159;  Fake  v.  Addy,  15  Wend.  (N.  Y.) 
76;  Ansley  v.  Alderman,  Phill.  (N. 
Car.)  215;  Simpson  v.  M'Million,  i 
Nott.  &  M.  (S.  Car.)  192;  Collier  v. 
Rogers,  2  Brev.  (S.  Car.)  41;  Melton 
V.  Ellison,  2  Brev.  (S.  Car.)  399;  Mose- 
ley  V.  Farrell,  31  Tex.  613;  Sherman 
V.  Clark,  3  McLean  (U.  S.)  91;  Smith 
V.  Smith,  15  Vt.  620.  Compare  Rohr  v. 
Anderson,  51  Md.  205;  Hedgecock  v. 
Davis,  64  N.  Car.  650.  See  contra, 
Chatten  v.  Heffley,  21  Ark.  313;  Sher- 
rill  V.  Wilson,  29  Ark.  384;  Jackson  v. 
Whitfield,  51  Miss.  202;  McDaniels  v. 
Johnson,  36  Vt.  687. 

In  Assumpsit  on  a  simple  contract  in 
a  court  whose  minimum  jurisdiction 
was  $100,  where  in  a  suit  the  bill  of 
particulars  filed  showed  a  balance  due 
below  that  minimum,  the  court  allowed 
interest  to  be  calculated  in  determin- 
ing its  jurisdiction.  Stone  v.  Haw- 
kins, 56  Conn,  iii;  Crabtree  v.  Cliatt, 
22  Ala.  181.  Contra,  Blake  v.  Knom, 
128  N.  Y.  64. 

In  Debts,  Covenants,  and  all  con- 
tracts whose  amount  and  value  is  fixed 
and  determinable,  interest  is  generally 
calculable  in  estimating  the  amount  in 
controversy.  Howell  v.  Milligan,  13 
Ark.  40;  Carter  7/.  Dade,  i  Stew.  (Ala.) 
18;  Hogan  V.  Adam,  3  Stew.  (Ala.)  58; 
Howard  v.  Wear,  Minor  (Ala.)  84;  Cur- 
tis V.  Gary,  Minor  (^Ala.)  118;  Fidler 
V.  Hall,  2  Mete.  (Ky.)  461;  Stone  v. 
Ware,  6  Munf.  (Va.)  541;  Stratton  v. 
Mutual  Assur.  Soc,  6  Rand.  (Va.)  22; 
Woodward  v.  Jewell,  140  U.  S.  247. 
Contra,  Insley  v.  Jones,  4  Exch.  Div. 
16. 

Judgments. — Interest  generally  runs 
on  recovered  judgments,  and  unless 
forbidden  by  statute  is  calculable  in 


determining  the  amount  in  contro- 
versy on  appeal.  State  v.  Police  Jury, 
34  La.  Ann.  95;  Dryden  v.  Wyllis,  51 
Iowa  534;  Clapham  v.  Lewis,  i  Va. 
Cas.  182;  Boswell  v.  Kilborn,  12  Moore, 
P.  C.  C.  467. 

Interest  Does  Not  Necessarily  Oust  Ju- 
risdiction of  a  court  when  principal 
sued  on  independent  thereof  falls 
within  that  jurisdiction,  but  the  inter- 
est, if  added,  would  swell  the  amount 
in  excess.  State  v.  Westbrook,  7 
Blackf.  (Ind.)i3S;  BakewelU.  Howell, 
2  Mete.  (Ky.)  268;  Hager  v.  Boswell, 
4  J.  J.  Marsh.  (Ky.)  61.  But  see  contra, 
in  Tennessee,  Dixon  v.  Caruthers,  9 
Yerg.  (Tenn.)  30;  Morrow  v.  Collo- 
way.  Mart.  &  Y.  (Tenn.)  240. 

Interest  Accruing  After  Suit  Brought- 
in  an  Appeal  from  a  Justice  of  the  Peace. 
— Where  interest  which  had  accrued 
after  suit  was  brought  was  added  to 
the  amount  recovered  before  a  justice 
of  the  peace,  whereby  on  appeal  there- 
from a  larger  amount  is  recovered 
than  was  recovered  before  the  justice, 
the  jurisdiction  of  the  court  will  not 
thereby  be  ousted,  although  its  juris- 
tion  depends  on  the  sum  demanded. 
Mitcheltree  v.  Sparks,  2  111.  198; 
Haight  V.  McVeagh,  69  111.  624;  Bargis 
V.  Farrar,  45  Ind.  41;  Trego  v.  Lewis, 
58  Pa.  St.  463;  Linton  v.  Vogel,  98  Pa. 
St.  459;  Shaw  V.  Squires,  153  Pa.  St. 
150;  Factors,  etc.,  Ins.  Co.  v.  New 
Harbor  Protection  Co..  39  La.  Ann. 
583. 

1.  The  act  of  Congress  of  1887  lim- 
its the  jurisdiction  of  the  U.  S.  Circuit 
Courts  to  cases  "  in  which  the  matter 
in  dispute  exceeds,  exclusive  of  inter- 
est and  costs,  the  sum  or  value  of 
$2000."  This  clause  was  construed  to 
inhibit  jurisdiction  to  such  courts  of 
actions  on  bonds,  coupons,  and  interest 
thereon,  the  aggregate  amount  of 
which  bonds  and  coupons  was  less 
than  said  sum  of  $2000,  although 
with  the  interest  added  it  amounted 
to  more.  Moore  v.  Edgefield,  32  Fed. 
Rep.  498;  Howard  v.  County,  43  Fed. 
Rep..  276;  Walker  v.  \j .  S.,  4  Wall. 
(U.  S.)  163;  Knapp  v.  Banks,  2  How. 
(U.  S.)  73;  Fisher  v.  Hall,  i  Ark. 
275;  Nelson  v.  Ladd  (S.  Dak.,  1893), 
54  N.  W.  Rep,  809;  Ball  v.  Biggam,  43, 


720 


Aggregated. 


AMOUNT  IN  CONTROVERSY.  Several Plaintiffij. 


VIII.  Aggeegated  Amount— 1.  Several  PlaintifFs.— Where  several 
parties  sue  jointly  for  the  recovery  of  money  or  property,  claim- 
ing under  one  common  right,  and  the  adverse  party  is  wholly 
unaffected  by  the  manner  in  which  it  may  be  apportioned  in  case 
of  recovery,  it  is  the  aggregate  sum  of  their  several  claims  which 
determines  the  amount  in  controversy.* 

Can.  327;  Decklarz/.  Frankenberger,  30 
La.  Ann.  410;  Breaux  v.  Recorder,  33 
La.  Ann.  14;  Breaux  z/.  Recorder,  36  La. 
Ann.  742;  Conger  v.  Nesbitt,  30  Minn. 
436;  Hedgecock  v.  Davis,  64  N.  Car. 
650.  Contra,  Bloom  v.  Kern,  30  La. 
Ann.  1263. 

On  appeal  interest  is  not  calcu- 
lable on  judgments  when  it  is  espe- 
cially excluded  by  statute.  Denison 
V.  Denison,  16  Conn.  34;  Cincinnati, 
etc.,  R.  Co.  V.  Grames  (Ind.,  1893),  33 
N.  E.  Rep.  896  ;  Ryan  v.  Waule,  63 
N.  Y.  57;  Produce  Bank  v.  Morton,  67 
N.  Y.  igg;  Van  Gelder  v.  Van  Gelder, 
81  N.  Y.  128;  Northern  Pac.  R.  Co.  v. 
Booth,  152  U.  S.  671. 

Under  act  of  Congress,  1875,  increas- 
ing the  appellate  jurisdiction  of  the 
U.  S.  Supreme  Court  to  a  minimum 
limit  of  $5000,  interest  cannot  be  added 
to  a  judgment  both  rendered  and  en- 
tered up  below,  even  when  it  is  for 
exactly  $5000,  in  order  to  secure  the 
jurisdiction  of  that  court.  Western 
Union  Tel.  Co.  v.  Rogers,  93  U.  S.  565; 
Baltimore,  etc.,  R.  Co.  v.  Trook,  100 
U.  S.  112.  But  contra  if  judgment  is 
rendered  but  not  entered  up.  New 
York  El.  R.  Co.  v.  Fifth  Nat.  Bank, 
118  U.  S.  608;  The  Patapscoz/.  Boyce, 
12  Wall.  (U.  S.)  451;  U.  S.  Bank  v. 
Daniel,  12  Pet.  (U.  S.)  32;  Quebec 
Steamship  Co.  v.  Merchant,  133  U.  S. 
375;  Zeckendorf  v.  Johnson, 123  U.  S. 
617;  Benson  Min.  Co.  v.  Alta  Min. 
Co.,  145  U.  S.  428;  Sloan  v.  Lewis,  22 
Wall.  (U.  S.)  150;  Massachusetts  Ben. 
Assoc.  V.  Miles,  137  U.  S.  689;  Brown 
V.  Shannon,  20  How.  (U.  S.)  55;  Mc- 
Ginnity  v.  White,  3  Dill.  (U.  S.)  350. 
Compare  KmoXd,  v.  Lewis  County  Ct., 
38  W.  Va.  142;  Quebec  F.  Assur.  Co. 
V.  Anderson,  13  Moore  P.  C.  C.  477: 
Ex  p.  Sweeney,  126  Ind.  583. 

Interest  Accruing  Pendente  Lite  is 
not  calculable  in  determining  the  sum 
necessary  to  secure  the  appealable 
amount.  Keiser  v.  Cox,  116  111.  26; 
Hays  V.  Chicago,  etc.,  R.  Co.,  64  Iowa 
593;  Josuez  V.  Conner,  75  N.  Y.  156; 
Mason  v.  Oglesby,  2  La.  Ann.  793; 
Frellsen  v.  Copley,  2  La.  Ann.  911; 
Owen  V.  Boyd,  7  La.  Ann.  109;  Cor- 

I  Encyc.  PI.  &  Pr.— 46.  7 


nell  V.  Geddes,  10  La.  Ann.  170; 
Klein  v.  Wild,  12  La.  Ann.  87;  Wolf 
V.  Witherell,  22  La.  Ann.  25;  Rogers 
V.  Goldthwaite,  32  La.  Ann.  48. 

Interest  Prior  to  Suit  Brought  can- 
not be  added  in  Louisiana  in  a  suit  to 
annul  a  sale  of  property  in  fraud  of  a 
creditor,  for  in  that  state  the  jurisdic- 
tion depends  on  amount  of  the  princi- 
pal of  the  debt  claimed.  Schwartz  v. 
Schmidt,  37  La.  Ann.  41;  Buffington 
V.  Blouin,  36  La.  Ann.  326;  Boagni  v. 
Gordon,  34  La.  Ann.  1052.  But  com- 
pare, contra,  in  New  York,  Mitchell  v. 
Pike,  17  Hun  (N.  Y.)  142. 

1.  Thus  in  a  suit  by  a  portion  of  the 
distributees  and  heirs  at  law  of  an  in- 
testate against  the  administrator,  the 
amount  in  controversy  was  held  to  be 
the  amount  in  the  administrator's 
hands,  and  not  the  separate  sums  de- 
creed to  the  distributees.  Thornton  v. 
Tison,  95  Ala.  592.  So  also  in  Hartford 
F.  Ins.  Co.  V.  Bonner  Mercantile  Co., 
56  Fed.  Rep.  378,  which  was  a  bill  by 
several  insurance  companies  to  set 
aside  an  award  made,  under  a  certain 
arbitration,  in  the  case  of  a  loss,  it  was 
held  that  the  whole  amount  of  the  loss, 
and  not  the  several  liabilities  of  the 
several  insurance  companies,  consti- 
tuted the  jurisdictional  amount  in  con- 
troversy. And  see  State  v.  Judges,  41 
La.  Ann.  56;  Prince  v.  Towns,  33  Fed. 
Rep.  161;  Lovett  v.  Prentice,  44  Fed. 
Rep.  459;  Hill  V.  Glasgow  R.  Co.,  41 
Fed.  Rep.  610;  Herbert  v.  Rainey,  54 
Fed.  Rep.  248;  Shields  v.  Thomas,  17 
How.  (U.  S.)  3;  Handley  v.  Stutz,  137 
U.  S.  366;  Washington  Market  Co.  v. 
Hoffman,  loi  U.  S.  112;  The  Conne- 
mara,  103  U.  S.  754;  Davies  v.  Corwin, 
112  U.  S.  36;  Estes  V.  Gunter,  121 
U.  S.  183;  Stuart  v.  Boulware,  133 
U.  S.  78.  Compare  The  Mamie,  105 
U.  S.  773- 

In  Appeals. — Similarly,  where  the 
judgment  recovered  is  a  common  one, 
the  appellate  court's  jurisdiction  is  de- 
termined by  the  amount  of  the  whole 
judgment,  and  not  by  the  proportionate 
share  of  the  several  parties  interested 
therein.  Saunders  v.  Waggoner,  82 
Va.  316;  Atkinson  v.  McCormick,  76 


Aggregated. 


A  MO  UN  T  IN  CON  TRO  VERS  Y.       several  ClaimB. 


2.  Several  Defendants. — In  like  manner,  where  two  or  more  per- 
sons are  jointly  and  not  severally  liable  in  one  and  the  same  suit, 
the  amount  in  controversy  is  the  cumulated  liability.  * 

3.  Several  Claims  in  One  Suit. — And  similarly  the  sum  of  all  the 
demands  constitutes  the  jurisdictional  amount,  where  the  plaintiff 
sues  to  recover  several  claims,  which  from  their  character,  or 
owing  to  the  fact  that  they  arise  out  of  one  and  the  same  trans- 
action or  circumstances,  are  in  reality  joint  and  not  several.* 


Va.  791;  Martin  v.  Fielder,  82  Va.  455; 
Alexander  v.  Byrd,  85  Va.  690;  Wirtz 
V.  Osburn,  83  Va.  227;  Craig  v.  Will- 
iams (Va.,  1894),  18  S.  E.  Rep.  899; 
Colt  V.  O'Callaghan,  2  La.  Ann.  984; 
Ruthenberg  v.  Helberg,  43  La.  Ann. 
410;  Brierre  v.  Creditors,  43  La.  Ann. 
423;  Dougart's  Succession,  42  La. 
Ann.  516;  Duran's  Succession,  34  La. 
Ann.  585;  Goh's  Succession,  37  La. 
Ann.  429;  Harmony  Club  v.  Gas  Light 
Co.,  42  La.  Ann.  453;  Oxford  v.  Bar- 
ron (La.,  1891),  9  So.  Rep.  479;  State 
V.  Judges  (La.,  1892),  11  So.  Rep.  148; 
Sedgwick  v.  Johnson,  107  111.  385; 
Powers  V.  Yonkers,  114  N.  Y.  145; 
Freeman  v.  Dawson,  no  U.  S.  264; 
New  Orleans  Pac.  R.  Co.  v.  Parker, 
143  U.  S.  42.  Compare  Friend  v.  Wise, 
III  U.  S.  797. 

In  Admiralty  Cases. — In  Clay  v.  Field, 
138  U.  S.  479,  the  court  said:  "  If  sev- 
eral persons  be  joined  in  a  suit  in 
*  *  *  admiralty,  and  have  a  common 
and  undivided  interest,  though  sepa- 
rable as  between  themselves,  the 
amount  of  their  joint  claim  or  lia- 
bility will  be  the  test  of  jurisdiction; 
but  where  their  interests  are  distinct, 
and  they  are  joined  for  the  sake  of 
convenience  only,"  their  claims  or 
liabilities,  as  the  case  may  be,  cannot 
be  aggregated.  The  Propeller  Bur- 
lington, 137  U.  S.  386;  Ex  p.  Balti- 
more, etc.,  R.  Co.,  106  U.  S.  5;  Met- 
calf  V.  The  Alaska,  130  U.  S.  201;  Rodd 
V.  Heartt,  17  Wall.  (U.  S.)  354.  Com- 
pare also  The  Rio  Grande,  19  Wall. 
(U.  S.)  178;  Stuart  v.  Valley  R.  Co.,  32 
Gratt.  (Va.)  146. 

Cases  Consolidated  by  Order  of  Court. — 
Where  by  order  of  court  separate 
cases  are  consolidated  on  trial,  ap- 
peals will  lie  from  each  although  the 
several  amounts  in  controversy  are 
insufficient  to  confer  jurisdiction. 
Devries  v.  Johnston,  27  Gratt.  (Va.) 
805;  Marshall   v.  Fall,  9  La.   Ann.  92. 

Cases  Consolidated  by  Agreement  of 
Parties. — Similarly  appeals  will  lie 
from  cases  consolidated  by  agreement 


of  parties.  Neal  v.  Reynolds,  91  Ga.- 
6og;  Brock  v.  Barr,  70  Iowa  399;  Ed- 
wards V.  Cosgro,  71  Iowa  296;  Tuthill 
Spring  Co.  v.  Smith  (Iowa,  1894),  57 
N.  W.  Rep.  853;  Bowman  *v.  New 
Orleans,  27  La.  Ann.  501;  Ammons  v. 
Whitehead,  31  Miss.  99. 

Cases  Improperly  Joined.  —  Appeals 
will  lie  for  the  defendant  even  when 
two  causes  are  improperly  joined 
below  and  there  is  a  demurrer  sus- 
tained and  plaintiff  has  not  amended. 
Penter  v.  Staight,  i  Wash.  365;  Ex  p. 
Sweeney,  126  Ind.  583. 

1.  Lampton  v.  Bruner,  2  Litt.  (Ky.) 
142;  Lartigue  v.  White,  25  La.  Ann. 
291;  Ready  v.  New  Orleans,  27  La. 
Ann.  169;  State  v.  Cousin,  31  La.  Ann. 
297;  Dalcour  v.  McCan,  37  La.  Ann. 
7;  Cotter  V.  Parks,  80  Tex.  539;  Clay 
V.  Field,  138  U.  S.  464.  Thus  in  Wilde 
V.  Haycraft,  2  Duv.  (Ky.)  309,  where 
several  signers  of  one  contract  were 
joined  in  one  suit  thereon  for  separate 
amounts,  the  sum  of  these  amounts 
was  held  to  be  the  jurisdictional  test. 
So  in  like  manner  in  appeals  where 
several  defendants  appeal  from  sepa- 
rate judgments  against  each,  it  is  the 
aggregate  of  all  the  judgments  which 
determines  the  jurisdiction  of  the  ap- 
pellate tribunal.  Priest  v.  Deaver,  21 
Mo.  App.  209. 

2.  Thus,  for  example,  in  Martin  v. 
Goode,  III  N.  Car.  288,  an  adminis- 
tratrix c.  t.  a.  was  sued,  in  a  court 
whose  jurisdictional  minimum  limit 
was  $200,  upon  two  demands,  one  for 
$150,  being  an  annuity  charge  on  tes- 
tator's estate,  the  other  for  $359.46, 
being  the  value  of  certain  board, 
which  by  the  terms  of  the  will  the 
administratrix  was  bound  to  pay;  and 
it  was  held  these  two  claims,  rightfully 
joined  in  one  action,  conferred  juris- 
diction on  the  court. 

Another  familiar  illustration  of 
claims  which  from  their  character  are 
properly  aggregated  is  of  suits  like 
State  Bank  v.  Brooks,  4  Blackf.  (Ind.) 
485,  in  which   a  suit  was   held  right- 


722 


Aggregated. 


A  MO  UNT  IN  CONTRO  VERS  Y.      Several  Claims. 


Several  Items  in  One  Demand. — Where  a  person  honestly  possesses  a 
demand  which  is  proved  to  have  been  made  up  at  one  time  of 
several  small  items,  each  less  than  the  jurisdictional  amount,  he 
should  not  thereby  be  restricted  from  prosecuting  such  claim 
when  its  sum  total  is  of  sufficient  amount  to  enable  the  court  to 
entertain  it.* 

Divided  Claims  or  Debt. — Where  a  claim  is  in  its  character  one  and 
indivisible,  jurisdiction  cannot  be  conferred  by  splitting  it  up 
into  smaller  claims,  each  within  a  certain  court's  cognizance, 
while  the  claim  as  a  unit  is  in  excess  thereof.* 


fully  instituted  in  a  Circuit  Court  on 
several  promissory  notes,  some  of 
which  alone  would  have  been  in  the 
exclusive  jurisdiction  of  a  justice  of 
the  peace.     And  see  Jones  v.  Buntin, 

1  Blackf.  (Ind.)  322;  New  London 
City  Nat.  Bank  v.  Ware  River  R. 
Co.,  41  Conn.  542;  Floyd  v.  Cox, 
72    Ga.     147  ;     Bakewell    v.    Howell, 

2  Mete.  (Ky.)  268;  Brown  v.  Brown, 
10  B.  Mon.  (Ky.)  247;  State  v. 
Third  Justice,  15  La.  660;  Scofield  v. 
Pensons,  26  Miss.  402;  McCasten  v. 
Quinn,  4  Ired.  (N.  Car.)  43;  Boyle  v. 
Robbins,  71  N.  Car.  130;  Moore  v. 
Nowell,  94  N.  Car.  265  ;  State  v. 
Roberts,  108  N.  Car.  174 ;  Mays  v. 
Lewis,  4  Tex.  38;  Lott  v.  Adams,  4 
Tex.  426;  Ferguson  v.  Culton,  8  Tex. 
283;  Eude  V.  Spencer,  38  Tex.  114; 
Gulf,  etc.,  R.  Co.  V.  Washington,  4  U. 
S.  App.  121;  Keyes  v.  Weed,  i  D. 
Chip.  (Vt.)  379.  Compare  Gregory  v. 
Williams,  24  Ark.  177.  See  also  Fen- 
ton  V.  St.  Louis,  etc.,  R.  Co.,  72  Mo. 
259;  Kline  z/.-Wood,  9  S.  &  R.  (Pa.) 
294. 

Several  Penalties  arising  out  of  and 
enforceable  against  a  single  crime  each 
by  itself  below  a  court's  jurisdiction 
may  be  cumulated  to  confer  such 
jurisdiction  in  a  suit  to  recover  the 
same.  Barkhamsted  v.  Parsons,  3 
Conn,  i;  Mobile,  etc.,  R.  Co.  v.  State, 
51  Miss.  137  ;  Prussia  v.  Guenther 
(Orleans  County  Ct.),  16  Abb.  N.  Cas. 
(N.  Y.)  230;  Gibson  v.  Gault,  33  Pa. 
St.  44.  Contra,  semble,  Gault  v.  Vin- 
yard,  26  Pa.  St.  282. 

1.  Stanley  v.  Albany  County,  15 
Fed.  Rep.  483  ;  Armstrong  v.  Ettle- 
sohn,  36  Fed.  Rep.  209;  Gulf,  etc.,  R. 
Co.  V.  Washington,  49  Fed,  Rep.  347; 
O'Connell  v.  Reed,  56  Fed.  Rep.  531; 
Judson  V.  Macon  County,  2  Dill.  (U. 
S.)  213;  Yon  V.  Baldwin,  76  Ga.  769; 
Green  v.  Lester,  78  Ga.  86;  Living- 
stone V.  L'Engle,  27  Fla.  502;  Palmer 


V.  Assessors,  42  La.  Ann.  1122;  Wild 
V.  Haycraft,  2  Duv.  (Ky.)  309;  Sayre 
V.  Lewis,  5  B.  Mon.  (Ky.)  90;  Wood- 
ruff V.  Chambers,  13  Pa.  St.  132;  Curry 
V.  Spink,  23  Pa.  St.  58;  Farmers'  Mut. 
F.  Ins.  Co.  V.  Marshall,  29  Vt.  23; 
Windham  County  Ins.  Co.  v.  Pierce, 

36  Vt.  16;  Sauvageau  v.  Gauthier,  22 
W.  R.  667;  Grimbley  v.  Aykroyd,  12 
Jur.  357. 

Several  Counts  in  a  declaration,  each 
claiming  separate  damage,  where  there 
is  no  general  ad  datnnttm,  may  be 
aggregated  to  form  the  jurisdictional 
amount  in  controversy.  Swift  v. 
Woods,  5*  Blackf.  (Ind.)  97;  Wetherill 
V.  Congressional  Tp.,  5  Blackf.  (Ind.) 
357;  Bainum  v.  Small,  4  Ind.  49;  Mays 
V.  Dooley,  59  Ind.  287;  Edwards  v. 
Hopkins,  5  R.  I.  138.  Compare  Long- 
with  V.  Riggs,  123  111.  258;  Smith  v. 
Clark  County,  54  Mo.  58;  Fickle  v. 
St.  Louis,  etc.,  R.  Co.,  54  Mo.  225; 
Hunt  V.  Hopkins,  66  Mo.  98;  Vineyard 
V.  Lynch,  86  Mo.  684. 

2.  Moore  v.  Woodruff,  5  Ark.  214; 
Grayson  v.  Williams,  Walk.  (Miss.) 
298,  12  Am.  Dec.  568;  Morris  v.  Shry- 
ock,  50  Miss.  590;  Ash  v.  Lee,  51 
Miss.  loi;  Willard  v.  Sperry,  16  Johns. 
(N.  Y.)  121;  Boyle  v.  Robbins,  71  N. 
Car.  130;  McPhail  v.  Johnson,  109  N. 
Car.  571;  Walton  v.  Vanhorn,  i  Phila. 
(Pa.)  377;  Richards  v.  Marten,  23  W. 
R.   93.      Contra,   Herrin  v.   Buckelew, 

37  Ala.  585;  Dews  v.  Eastham,  5  Yerg. 
(Tenn.)  297;  Reed  v.  Stockwell,  34  Vt. 
206.  See  ante,  notes  to  III.  Amount 
Remitted,  Jurisdiction  Conferred, 
p.  707. 

Claim  Acquired  by  Assignment. — Un- 
der act  of  Congress  of  March  3,  1887, 
U.  S.  Circuit  Courts  have  jurisdiction 
where  the  matter  in  dispute  is  suffi- 
cient to  confer  jurisdiction  upon  those 
courts,  although  such  amount  is  made 
up  of  several  demands  acquired  by  as- 
signment.    Stanley  v.  Albany  County, 


723 


Unaggregated 


AMO  UA'  T  IN  CON  TRO  VERS  Y. 


Amount. 


IX.  Unaggregated  Amount— several  claims  in  One  suit. — Whenever 
there  are  several  distinct  demands  united  in  one  suit  in  which 
separate  judgments  should  be  rendered,  or  two  cases  are  united 
in  one,  and  are  so  united  for  convenience  or  to  avoid  multiplicity 
of  suits,  the  several  amounts  of  each  cannot  be  aggregated  to  con- 
fer jurisdiction.* 

Separate  Promises  on  One  Instrument. — It  is  immaterial  that  one  instru- 
ment contains  the  separate  promises  of  several  defendants  when 
the  same  is  put  in  suit.* 


15  Fed.  Rep.  483;  Hammond  v.  Cleave- 
land,  23  Fed.  Rep.  i;  Bernheim  v. 
Birnbaum,  30  Fed.  Rep.  885;  Judson 
V.  Macon  County,  2  Dill.  (U.  S.)  213. 

In  Louisiana  similarly  also  on  ap- 
peal. State  V.  Judge,  21  La.  Ann.  65; 
State  V.  Judge,  28  La.  Ann.  935;  Pease 
V.  Police  Jury,  34  La.  Ann.  137;  Palmer 
V.  Assessors,  42  La.  Ann.  1122.  See 
also  Fink  v.  Denny,  75  Va.  663. 

Value  and  Damages  Consolidated. — In 
an  action  of  replevin,  where  the  prop- 
erty was  alleged  to  be  worth  $200,  and 
$500  damages  were  claimed,  it  was 
held  on  plaintiff's  appeal  that  the 
amount  in  controversy  was  the  sum 
of  the  value  and  the  damages  com- 
bined. Freeburger  v.  Caldwell,  5 
Wash.  769;  Hargrave  v.  W^ilson,  39 
La.  Ann.  1116;  Stevers  v.  Gunz,  23 
Minn.  520. 

Judgment  and  Counterclaim  Consoli- 
dated.— On  appeal  to  the  U.  S.  Supreme 
Court  by  defendant  from  a  judgment 
against  him,  it  was  held  that  he  could 
add  his  counterclaim  to  said  judg- 
ment in  order  to  confer  jurisdiction  on 
the  court.  Clark  v.  Sidway,  142  U.  S. 
682.  See  also  Lovell  v.  Craigin,  136 
U.  S.  130;  Telford  v.  Garrels,  132  111. 
550;  Francis  v.  Leak  (Ind.  App.,  1892), 
31  N.  E.  Rep.  212;  Bowlus  v.  Brier, 
87  Ind.  391;  Wysor  v.  Johnson,  i  Ind. 
App.  419;  Hutts  V.  Williams,  55  Ind. 
237;  Shriver  v.  Bowen,  57  Ind.  266; 
Little  V.  Danville,  etc.,  Plank  Road 
Co.,  18  Ind.  86;  Parsley  v.  Eskew,  73 
Ind.  558;  Uplinger  v.  Kettering,  43 
Iowa  483  ;  Crawford  v.  West  Side 
Bank,  92  N.  Y.  631  ;  Cass  v.  Higen- 
botam,  100  N.  Y.  248.  But  see  also 
below,  note  i  to  Unaggregated 
Amount — Several  Claims,  etc.;  and 
contra,  Madison  v.  Spitsnogle,  58  Iowa 
369;  Fox  V.  Duncan,  60  Iowa  321. 

1.  Arkansas. — Berry  z'. Linton, i  Ark. 
252;  Wilson  z/.  Mason,  3  Ark.  494;  Col- 
lins V.  Woodruff,  9  Ark.  463;  Gregory 
V.  Williams,  24  Ark.  177;  Mannington 
V.  Young,  35  Ark.  287. 


-Epsten 


Levenson,    79- 


Georgia. 
Ga.  718. 

Indiana. — Stater/.  Forry,  64 Ind.  260;. 
Luce  V.  Shoff,  70  Ind.  152. 

Kentucky. — Lightfoot  v.  Payton^ 
Hardin  (Ky.)  3. 

Louisiana. — Stevenson  v.  Weber,  2^ 
La.  Ann.  105;  Larrieuxz-.Crescent  City 
Live-Stock,  etc.,  Co.,  30  La.  Ann.  609. 

Mississippi. — Grayson  v.  Williams, 
Walk.  (Miss.)  298,  12  Am.  Dec.  568; 
Ash  V.  Lee,  51  Miss.  loi. 

Missouri. — Gerber  v.  McCoy,  23  Mo, 
App.  295;  Bridle  v.  Grau,  42  Mo.  36a 

Pennsylvania. — Gault  v.  Vinyard,  26 
Pa.  St.  282. 

Texas. — Ferguson  v.  Culton,  8  Tex. 
283;  Nichols  V.  Snow,  42  Tex.  72. 

United  States. — Woodman  v.  Lati- 
mer, 2  Fed.  Rep.  842;  Massa  v.  Cut- 
ting, 30  Fed.  Rep.  1;  Rich  v.  Bray,  37 
Fed.  Rep.  273;  King  v.  Wilson,  i  Dill. 
(U.  S.)  556;  Seaver  v.  Bigelows,  5 
Wall.  (U.  S.)  208;  Terry  z/.  Hatch,  93 
U.  S.  44;  Ballard  Paving  Co.  v.  Mul- 
ford,  100  U.  S.  147;  Chatfield  v.  Boyle, 
105  U.  S.  231;  McMurray  v.  Moran, 
134  U.  S.  150;  Handley  v.  Stutz,  137 
U.  S.  366;  Walter  v.  Northeastern  R. 
Co.,  147  U.  S.  370;  Keels  v.  Central 
R.  Co.,  147  U.  S.  374;  Russell  v.  Stan- 
sell,  105  U.  S.  303. 

Wisconsin. — Howard  v.  Mansfield.. 
30  Wis.  75. 

England. — Brunskill  v.  Powell,  19 
L.  J.  Exch.  362.  See  also  Caldwell  v. 
Beatty,  69  N.  Car.  365. 

Thus,  for  example,  in  Northern 
Pac.  R.  Co.  V.  Walker,  148  U.  S.  391,  a 
bill  in  equity  was  filed  by  which  an 
injunction  was  prayed  to  restrain  the 
collection  of  taxes  from  a  railroad 
company,  by  separate  counties  under 
distinct  assessments,  and  it  was  held 
that  the  whole  amount  of  such  taxes 
could  not  be  cumulated  to  confer  ju- 
risdiction upon  the  Circuit  Court,  but 
that  the  claim  in  each  individual  case 
determined  the  amount  in  controversy. 

2.  Thomas  v.  Anderson,  58  Cal.  99; 


724 


TJnaggregated         AM0UN7  IN  CONTROVERSY. 


Amount. 


Separate  Lien  Claims  in  One  Suit. — In  suits  to  enforce  separate  Hen 
<:laims  it  is  the  several  amounts  of  each  claim,  and  not  the  aggre- 
gate sum  of  all  in  one  suit,  which  determine  the  jurisdictional 
amount.' 

Claim  and  Set-off  Cannot  be  United. — When  in  a  suit  the  court  is  with- 
out jurisdiction  because  the  amount  in  dispute  is  too  small,  an 
off-set  in  a  larger  amount  pleaded  cannot  be  added  to  the  claim 
to  confer  jurisdiction.* 

On  Appeah  Judgments  Cannot  Be  United. — The  appellate  court  cannot 
acquire  jurisdiction  by  uniting  on  an  appeal  thereto  two  judg- 
ments wholly  separable  and  distinct.' 

an  amount  sufficient.  Denison  v.  Den- 
ison,  i6  Conn.  34;  Nichols  v.  Hastings, 
35  Conn.  546;  Hoey  v.  Hoey,  36  Conn. 
386;  Hunt  V.  Rockwell,  41  Conn.  51; 
Camp  V.  Stevens  45  Conn.  92;  Davis 
V.  Seymour,  59  Conn.  531.  See  also 
Richards  v.  Marten,  23  W.  R.  93; 
Kimpton  v.  Willey,  9  C.  B.  719.  But 
compare  Main  v.  First  School  Dist.,  18 
Conn.  214,  and  Conn.  Gen.  Sts.  sec. 
812,  according  to  which  any  number  of 
separatecontracts  can  be  joined  to  give 
jurisdiction,  although  each  is  less  than 
the  jurisdictional  minimum. 

2.  Myers  v.  Lienning,  13  Cal.  650. 
On   Appeals,  for  same  principle,  see 

Smith  V.  Merchants'  Mut.  Ins.  Co.,  33 
La.  Ann.  1071;  Prejeanz/.  Lecompte,4i 
La.  Ann.  747;  State  v.  Judge,  42  La. 
Ann.  1084;  Gore  v.  Kendig,  3  Rob. 
(La.)  387;  Hanna  v.  Bartlette,  10  Rob. 
(La.)  438;  Ex  p.  Goodwin,  11  Rob. 
(La.)  12;  Lamorere  v.  Avery,  32  La. 
Ann.  loio;  Dean  v.  Clarke,  5  La.  Ann. 
105;  Tardos  v.  Toulon,  14  La.  Ann. 
432,  74  Am.  Dec.  435  ;  Stevenson  v. 
Whitney,  33  La.  Ann.  658;  Colomb  v. 
McQuaid.  36  La.  Ann.  327;  St.  Clair  v. 
Day,  89  N.  Y.  357.  Contra,  semble,  in 
the  case  of  appeals,  see  ante,  notes 
to  VIII.  Aggregated  Amount,  Sev- 
eral Claims,  p.  722,  note  2. 

3.  Thompson  v.  Adams,  82  Va.  672; 
Hartsook  v.  Crawford,  85  Va.  413; 
Gee  V.  Thompson,  39  La.  Ann.  310; 
Marshall  v.  Holmes,  39  La.  Ann.  313; 
State  Bank  v.  Allen,  39  La-  Ann.  806; 
Farwell  v.  Becker,  129  111.  261,  16  Am. 
St.  Rep.  276;  Kellar  v.  Palfrey,  8  La. 
Ann.  282;  Riddell  v.  Smith,  6  La.  Ann. 
431;  Armitage  v.  Barrow,  10  La.  Ann. 
78;  Bazoni  v.  Marcera,  18  La.  Ann. 
136;  State  V.  Judge,  18  La.  Ann.  398; 
Louisiana,  etc.,  R.  Co.  v.  Hopkins,  33 
La.  Ann.  806;  Gohs*  Succession,  37  La. 
Ann.  428;  Akin  v.  Cassiday,  105  111.  22; 
Aultman,  etc.,    Co.    v.  Weir,   134  111. 


Tague  V.  Royal  Ins.  Co.,  38  La.  Ann. 
456;  Merritt  v.  Hozey,  4  Rob.  (La.) 
319;  U.  S.  V.  Cochrane,  5  Rob.  (La.) 
120;  Armitage  v.  Barrow,  10  La.  Ann. 
78;  Broadwell  v.  Smith,  28  La.  Ann. 
172;  Louisiana,  etc.,  R.  Co.  v.  Hop- 
kins, 33  La.  Ann.  806;  Prevost  v. 
Greig,  5  Martin  N.  S.  (La.)  87.  Com- 
pare People  V.  Love,  25  Cal.  520;  State 
V.  King,  5  Ind.  439. 

1.  Keystone  Min.  Co.  v.  Gallagher, 
5  Colo.  23;  Partlow  v.  Lawson,  2  B. 
Mon.  (Ky.)  46;  Copley  v.  Edwards,  5 
La.  Ann.  650;  Harrison  v.  Moss,  41 
La.  Ann.  239;  Davis  v.  Bargas,  41  La. 
Ann.  313;  Adler  v.  Cannon,  42  La. 
Ann.  835;  Lyons  v.  Blum,  42  La.  Ann. 
838;  Rymer  v.  Hawkins,  18  W.  Va. 
309;  Bee  V.  Burdett,  23  W.  Va.  744; 
Love  V.  Pickens,  26  W.  Va.  341;  Ayers 
■V.  Blair,  26  W.  Va.  558;  Morrison  v. 
Goodwin,  28  W.  Va.  328.  But  compare 
Rhods     V.     Scholfield,     6     La.    Ann. 

251- 

In  California. — By  the  constitution 
stockholders  of  a  corporation  are  lia- 
ble only  in  severalty  to  creditors  for 
corporate  debts,  and  consequently,  in 
a  District  Court  whose  jurisdictional 
minimum  was  $300,  when  several  ac- 
tions against  separate  stockholders 
were  consolidated,  it  was  held  that 
the  court  was  without  jurisdiction  as 
to  those  stockholders  against  whom 
less  than  said  minimum  was  claimed. 
Derby  v.  Stevens,  64  Cal.  287;  Hy- 
man  v.  Coleman,  82  Cal.  650.  Compare 
Sioux  Falls  Nat.  Bank  v.  Swenson,  48 
Fed.  Rep.  621;  Dakota,  etc.,  Bank  v. 
Swenson,  48  Fed.  Rep.  626. 

In  Connecticut. — Different  and  dis- 
tinct demands  in  separate  counts  in 
one  suit  cannot  be  cumulated  to  con- 
fer jurisdiction  when  the  several 
claims  themselves  are  too  small  for 
that  purpose,  and  this  obtains  even  in  a 
case  where  the  final  damage  claim  is  in 


725 


Value  Distinguished  AMO  UNT  IN  CONTRO  VERS  V.        from  Amount. 


X.  Value  Distinguished  feom  Amount— Property  Eights  involved.— 
Where  property  itself  or  its  title  is  in  litigation,  or  some  question 
J>er  se  ari'ecting  its  enjoyment  and  possession,  its  value  is  the  real 
matter  in  controversy,  as  distinguished  from  the  claims  of  the 
contending  parties.* 

(U.  S.)  354;  Ballard  Paving  Co.  v.  Mul- 
ford,  100  U.  S.  147;  Tupper  v.  Wise, 
no  U.  S.  398;  Farmers'  L.  «&  T.  Co.  v. 
Waterman,  106  U.  S.  265;  Adams  v. 
Crittenden,  106  U.  S.  576;  Schwed  v. 
Smith,  106  U.  S.  188;  Ex  p.  Baltimore, 
etc.,  R.  Co.,  106  U.  S.  5;  Fourth  Nat. 
Bank  v.  Siout,  113  U.  S.  684;  Ex p 
Phcenix  Ins.  Co.,  117  U.  S.  367;  Hassall 
V.  Wilcox,  115  U.  S.  598;  McMurray  v. 
Moran,  134  U.  S.  150;  Wheeler  v. 
Cloyd,  134  U.  S.  537;  Miller  v.  Clark, 
138  U.  S.  223. 

In  Admiralty  the  same  doctrine  ap- 
plies. Thus  in  another  leading  case, 
that  of  Oliver  v.  Alexander,  6  Pet.  (U. 
S.)  143,  which  was  a  libel  in  admiralty 
against  the  owners  of  a  vessel  to  re- 
cover seamens'  wages,  and  also  an  at- 
tachment of  the  proceeds  of  a  vessel  in 
the  hands  of  assignees,  the  libellants 
obtained  a  decree  for  the  payment  out 
of  the  proceeds  to  them  respectively  of 
sums  each  less  than  $1000,  but  amount- 
ing in  all  to  more  than  $2000  (the  then 
jurisdictional  minimum  of  the  U.  S.  Su- 
preme -Court),  and  the  assignees  ap- 
pealed. The  appeal  was  dismissed  for 
want  of  jurisdiction,  for  the  reason 
that  the  shipping  articles  constituted 
a  several  contract  with  each  seaman, 
and  although  the  libel  was  in  form 
joint,  yet  the  decree  to  each  libellant 
was  in  reality  several.     Spear-z/.  Place, 

11  How.  (U.  S.)  525;  Rich  v.  Lambert, 

12  How.  (U.  S.)  352;  The  Nevada, 
106  U.  S.  154;  Clifton  V.  Sheldon,  23 
How.  (U.  S.)  481;  Stratton  v.  Jarvis,  8 
Pet.  (U.  S.)4. 

1.  California. — Cullen  v.  Langridge, 
i7Cal.  67;  Shealorz-.  Amador  County, 
70  Cal.  564. 

Connecticut. — Scripture  v.  Johnson, 
3  Conn.  211;  Griswold  v.  Mather,  5 
Conn.  438. 

.Michigan. — Fuller  v.  Grand  Rapids, 
40  Mich.  395.  • 

Louisiana. — Renneberg's  Succession, 
15  La.  Ann.  661;  Werlein  v.  Merchants' 
Mut.  Ins.  Co.,  30  La.  Ann.  1399; 
Queyrouze  v.  Thibodeaux,  30  La.  Ann. 
II 14;  Meyer  v.  Logan,  33  La.  Ann. 
1055;  State  V.  Judges,  33  La.  Ann. 
1051;  Bouligny  v.  White,  5  La.  Ann. 
31;  State  V.  Judge,    12  La.   Ann.    48; 

26 


137;  Zatle  v.  Harris,  82  Ky.  473;  Os- 
wald V.  Morris,  92  Ky.  48;  Fleshman  v. 
Fleshman,  24  W.  Va.  342;  Umbarger  z/. 
Watts,  25  Gratt.  (Va.)  167;  Whitmer  v. 
Shitzer,  81  Va.  64.  Compare  State  v. 
Burke,  33  La.  Ann.  969;  State  v.  Mac- 
Kenzie,  39  La.  Ann.  508;  Wimbish  v. 
Gross,  7  Leigh  (Va.)  331. 

Thus  where  two  wards  sued  their 
guardian's  estate,  and  together  ob- 
tained a  decree  for  $639.79,  but  the 
amount  decreed  to  each  was  less  than 
$500,  it  was  held  that  the  appellate 
court  was  without  jurisdiction,  because 
the  amount  decreed  to  each  was  the 
amount  in  controversy,  and  the  consti- 
tution of  Virginia,  in  which  state  the 
case  arose,  fixed  the  appellate  court's 
jurisdiction  at  a  minimum  of  $500. ' 
Martin  v.  Fielder  (Va.,  1887),  4  S.  E. 
Rep.  602. 

On  Appeals  to  the  Supreme  Court  of  the 
United  States. — "  The  rule  is  well  settled 
*  *  *  that  when  distinct  causes  of 
action  in  favor  of  distinct  parties  are 
united  in  one  suit,  and  distinct  judg- 
ments are  rendered  for  or  against  sev- 
eral parties,  their  judgments  cannot 
be  united  to  give  us  jurisdiction."  Per 
Waite,  C.J.,  in  Hawley  v.  Fairbanks, 
108  U.  S.  543- 

The  leading  case  of  Gibson  v.  Shu- 
feldt,  122  U.  S.  27,  was  one  in  which  a 
debtor  had  assigned  his  property  to 
secure  a  preferred  debt,  and  other  cred- 
itors sued  the  debtor,  the  trustee,  and 
the  preferred  creditor,  and  the  defend- 
ants sought  no  affirmative  relief;  the 
assignment  was  adjudged  to  be  void  in 
the  lower  court  as  against  the  plain- 
tiffs, and  the  decree  ordered  a  distri- 
bution among  them.  On  defendant's 
appeal  it  was  held  that  the  U.  S.  Su- 
preme Court  was  without  jurisdiction, 
except  as  to  those  plaintiffs  who  had 
individually  recovered  more  than 
$5000.  Chatfield  v.  Boyle,  105  U.  S.  231. 
See  also  McCarthy  v.  Provost,  103  U. 
S.  673;  Henderson  t/.Wadsworth,  115  U. 
S.  264;  Henderson  v.  Carbondale  Coal, 
etc.,  Co.,  140  U.  S.  25;  Chapman  v. 
Handley,  151  U.  S.  443;  Merrill  v. 
Petty,  16  Wall.  (U.  S.)  338;  Terry  v. 
Hatch,  93  U.  S.  44;  Stewart  v.  Durham, 
115  U.  S.  6x;  Rodd  v.  Heartt,  17  Wall. 


Value  Distij  guished  AMO  UNT  IN  CONTRO  VERS  Y.        from  Amount. 

Suits  in  Ejectment. — Thus  in  ejectment  cases  the  matter  in  dispute 
is  the  value  of  the  property,  either  as  set  forth  in  the  declaration 
or  as  established  by  the  proof.* 

In  Bills  Quia  Timet. — So  also  in  bills  to  quiet  the  title  of  prop- 
erty, whose  possession  and  enjoyment  is  threatened,  the  amount 
in  controversy  is  the  whole  value  of  the  property.* 

Enforcing  Liens  Against  Land. — In  suits  the  object  of  which  is  to 
sell  land  to  pay  debts  or  to  enforce  a  lien  of  judgment  or  attach- 
ment thereoii,  the  value  of  the  land,  apart  from  the  debt  or  debts 
or  the  claim  of  damages,  is  the  amount  in  controversy.* 

In  Suits  Annulling  Instruments. — Where  a  creditor  of  the  grantor 
sues  the  grantee  of  a  deed  of  certain  property  for  the  purpose  of 
setting    the    deed    aside  as   fraudulent,    the    value  of   the  land 


Thompson  v.  Lemelle,  32  La.  Ann.  932; 
Rhodes  v.  Black,  34  La.  Ann.  406; 
Lombard  v.  Belanger,  35  La.  Ann.  311; 
State  V.  LappeyroUerie,  38  La.  Ann. 
264;  Godshaw  v.  Judges,  38  La.  Ann. 
643;  Schliederz'.  Martinez,  38  La.  Ann. 
847;  Pasley  v.  McConnell,  40  La.  Ann. 
6og;  Wickham  v.  Nalty,  42  La.  Ann. 
423;  Simon  v.  Richard,  42  La.  Ann. 
842;     Hoggs    V.    Hays,    44   La.    Ann. 

859- 

Missouri. — Gartside  v.  Gartside,  42 
Mo.  App.  513;  Evens,  etc.,  Fire  Brick 
Co.  V.  St.  Louis  Smelting,  etc.,  Co. ,48 
Mo.  App.  634. 

United  States. — Simon  v.  House,  46 
Fed.  Rep.  317;  Mississippi,  etc.,  R. 
Co.  z/.  Ward,  2  Black.  (U.  S.)  485; 
Parker  v.  Morrill,  106  U.  S.  i;  Smith 
V.  Adams,  130  U.  S.  175;  Kenaday  v. 
Edwards,  134  U.  S.  117;  Vicksburg, 
etc.,  R.  Co.  V.  Smith,  135  U.  S.   195. 

Virginia. — Barker  v.  Jenkins,  84  Va. 
895. 

West  Virginia. — Ayers  v.  Blair,  26 
W.  Va.  558;  Stanley  v.  Hubbard,  27  W. 
Va.  740.  See  also  Burke  v.  Grace,  53 
Conn.  513;  Bruneau  v.  Haughton,  16 
La.  Ann.  47;  Rainey  v.  Herbert,  55 
Fed  Rep.  443,  as  modifying  and  affirm- 
ing Herbert  v.  Rainey,  54  Fed.  Rep. 
248. 

Thus  in  Smith  v.  Bivens,  56  Fed. 
Rep.  352,  in  a  bill  for  an  injunction  to 
restrain  the  trespassing  of  cattle  on 
complainant's  land,  which  bill  alleged 
that  the  land  was  only  good  for  pastur- 
age, and  that  he,  complainant,  is  en- 
tirely deprived  of  his  property  rights 
therein,  the  amount  in  dispute  was 
held  to  be  the  value  of  the  land,  in  fix- 
ing the  question  of  jurisdiction.  And 
in  Chaffe  v.  De  Moss,  37  La.  Ann.  186. 


where  a  judgment  creditor  of  a  hus- 
band, whose  claim  was  less  than 
$2000,  sought  to  have  the  purchase  of 
a  plantation  in  the  name  of  the  wife 
declared  a  "  simulation  "  and  as  really 
made  for  the  husband's  benefit,  it  was 
held  that  the  case  was  appealable  to 
the  supreme  court  in  Louisiana,  whose 
minimum  jurisdiction  was  $2000,  be- 
cause the  property  was  worth  ?6ooo. 

Contra,  semble. — Harris  v.  Stockett, 
35  La.  Ann.  387;  Farmers'  Bank  v. 
Hooff.  7  Pet.  (U.  S.)  168. 

1.  Crawford  v.  Burnham,  i  Flip. 
(U.  S.)  116;  Eaton  v.  Calhoun,  2  Flip. 
(U.S.)  593;  Lanningz/.  Dolph,  4Wash. 
(U.  S.)  624;  Green  v.  Liter,  8  Cranch 
(U.  S.)  242;  Duwell  V.  Bohmer,  2  Flip. 
(U.  S.)  168;  Vicksburg,  etc.,  R.  Co.  v. 
Smith,  135  U.  S.  195;  Grant  v.  M'Kee, 
I  Pet.  (U.  S.)  248;  Den  v.  Wright,  i 
Pet.  (C.  C)  64;  Simon  v.  House,  46 
Fed.  Rep.  317;  Greene  v.  Tacoma,  53 
Fed.  Rep.  562. 

2.  Lehigh  Zinc,  etc.,  Co.  v.  New 
Jersey  Zinc,  etc.,  Co.,  43  Fed.  Rep. 
545. 

3.  Peters  v.  Goodrich,  3  Conn.  146; 
Walker  v.  Malin,  94  111.  596;  Curtis  v. 
Blacketer,  13  La.  Ann.  592;  Danjean 
V.  Blafcketer,  13  La.  Ann.  595;  Tertrou 
V.  Comeau,  28  La.  Ann.  633;  Wood  v. 
Rocchi,  32  La.  Ann.  1120;  Francisco 
V.  Gauthier,  35  La.  Ann.  393;  Testant 
V.  Belot,  33  La.  Ann.  1469;  Phillips  v. 
Hoffman,  5  Coldw.  (Tenn.)  251;  Lane 
V.  Howard,  22  Tex.  7;  Hargrave  v. 
Simpson,  25  Tex.  396;  Buckner  v. 
Metz,  77  Va.  107.  See  also  Casey  v. 
Harvey,  14  111.  45.  Compare  Vaughan 
V.  Thompson,  15  111.  39.  Contra,  Hoppe 
V.  Byers,  39  Iowa  573;  May  v.  Will- 
iams, 61  Miss.  125,  48  Am.  Rep.  80. 


727 


Immaterial. 


AMOUNT  IN  CONTROVERSY. 


Immaterial. 


conveyed,  and  not  the  debt,  is  the  amount  in  controversy  on 
appeal.^ 

Specific  Personal  Property. — In  suits  to  test  the  title  to,  or  for  the 
recovery  of,  specific  personal  property,  the  damages  claimed  or 
recovered  are  generally  merely  an  incidental  matter ;  it  is  the 
value  of  the  property  which  is  the  determinative  factor  upon  a 
question  of  jurisdiction  vel  noti^ 

XI.  Amount  Immateeial. — An  exception  to  the  general  rule 
hereinbefore  laid  down,  as  governing  the  question  of  the  amount 
in  controversy,  is  to  be  found  in  a  certain  class  of  cases  controlled 
by  special  statutory  enactments,  which  render  the  jurisdiction  of 
courts,  under  certain  circumstances,  wholly  independent  of  the 
amount  in  controversy.' 

1.   Kahn  v.   Kerngood,  80  Va.   342;  In  Texas. — By  Tex.   Rev.    Sts.    art. 

Black    V.   McStea,   37    La.    Ann.    620;  4823,    in    suits  affecting    the  value  of 

Solari   v.     Barras   (La.,    1893),    13  So.  property   in    the  District  and  County 

Rep.  627;  Handy  v.   New  Orleans,  39  Courts,  it  was  enacted  that  it  was  not 

La.  Ann.  107;  Livingstone  v.   Hardie,  the  value   of  the  property  as  proven, 


41  La.  Ann.  311;  Moore  v.  Ringuet 
(La.,  1893),  13  So.  Rep.  670.  See  also 
Sharon  v.  Terry,  36  Fed.  Rep.  337. 

2.  Astell  V.  Phillippi,  55  Cal.  265; 
Shealor  v.  Amador  County,  70  Cal. 
564;  Fowler  v.  Bishop,  32  Conn.  199; 
Cummins  v.  Holmes,  107  111.  552; 
Tyler  v.  Bowlus,  54  Ind.  333;  Garrett 
V.  Wood,  3  Kan.  231;  Leslie  v.  Reber, 
4  Kan.  315;  State  v.  Lagarde,  21  La. 
Ann.  18;  State  v.  Judge,  21  La.  Ann. 
107;  Lallande  v.  Ball,  21  La.  Ann.  186; 
Gogreve  v.  Windhorst,  21  La.  Ann. 
296;  State  V.  Richardson  (La.,  1894), 
14  So.  Rep.  915;  Ridlon  v.  Emery,  6 
Me.  261;  Natchez  v.  Mallery,  54  Miss. 
499;  Neibardt  v.  Kilmer,  12  Nev.  35; 
Godsey  v.  Weatherford,  86  Tfenn.  670; 
Peyton  v.  Robertson,  9  Wheat.  (U.  S.) 
527;  The  Sydney,  139  U.  S.  331 ;  Vaiden 
-V.  Bell,  3  Rand.  (Va.)  448.  Compare 
State  V.  Pitot,  21  La.  Ann.  336;  Payne 
V.  Weems,  36  Mo.  A  pp.  54. 

Value  of  an  Office.  —  In  State  v. 
Owens,  63  Tex.  261,  which  was  an  ac- 
tion of  quo  warranto  to  oust  an  incum- 
bent from  his  office,  it  was  held  that 
the  test  of  the  court's  jurisdiction  was 
the  value  of  the  office.  Ritchie  v. 
Mauro,  2  Pet.  (U.  S.)243. 

The  Salary  of  an  Office  is  determina- 
tive of  its  value  in  controversy.  State 
V.  Judge,  20  La.  Ann.  574;  Smith  v. 
Whitney,  116  U.  S.  167;  Smith  v. 
Adams,  130  U.  S.  175. 

The  Business  Value,  not  the  sum  for 
which  a  property  would  sell  at  a  forced 
sale,  is  the  jurisdictional  value  in  con- 
troversy. Berthold  v.  Hoskins,  38 
Fed  Rep.  772. 


but  the  value  assessed  by  the  ofl5cer 
serving  the  writ  which  fixed  the 
amount  in  controversy.  Cleveland  v. 
Tufts,  69  Tex.  580.  Compare  Minor  v, 
Budd,  38  La.  Ann.  99. 

3.  In  Alabama. — Circuit  Courts  are 
not  limited  to  their  ordinary  jurisdic- 
tional amount  in  suits  against  an 
officer  for  failure  to  return  an  execu- 
tion to  the  Supreme  Court.  Huggins 
V.  Ball,  19  Ala.  587. 

In  California. — The  Supreme  Court 
on  appeal,  where  the  question  is  not 
one  on  the  merits,  but  is  only  as  to 
whether  an  inferior  tribunal  had  or 
had  not  jurisdiction.  Heinlen  v. 
Phillips,  88  Cal.  557;  reversing  Wit.n^xv- 
field  V.  Fresno  Milling  Co.,  82  Cal. 
425;  Winter  v.  Fitzpatrick,  35  Cal. 
269;  Morley  v.  Elkins,  37  Cal.  456; 
Palache  7/.  Hunt,  64  Cal.  474.  District 
Court  when  title  to  real  estate  is  in- 
volved, unless  property's  value  is  too 
small.  Cullen  v.  Langridge  (i860),  17 
Cal.  67. 

In  Colorado. — The  Supreme  Court  in 
suits  relating  to  a  freehold  or  a  fran- 
chise. Crane  v.  Farmer  (1890),  14 
Colo.  294. 

In  Connecticut — Supreme  Court. — In 
actions  of  trespass  involving  title  to 
land  an  appeal  may  be  had  although 
the  sum  claimed  is  below  the  ordinary 
jurisdictional  amount.  Dunton  v. 
Mead,  (1827),  6  Conn.  418.  Compare 
Fuller  V.  Topliff,  10  Conn.  60;  Scovill 
V.  Seeley,  14  Conn.  238;  Richards  v. 
Eno,  23  Conn.  413. 

In  Illinois. — The  Supreme  Court  in 
appeals  from  appellate  court  in  ques- 


728 


Immaterial. 


A  MO  UN  T  IN  CONTRO  VERS  Y. 


Immaterial. 


Statutes   rendering    jurisdiction    independent   of   amount   are 
strictly  construed.     Matters  not  properly  contained  therein  will 


tions  involving  a  freehold  or  a  fran- 
chise. Lequatte  v.  Drury  (iS8o),  6 
111.  App.  389;  Patterson  v.  McKinney, 
6  111.  App.  394;  Daly  v.  St.  Patrick 
Catholic  Church,  6  111.  App.  458  ; 
Trustees  v.  Beale,  6  111.  App.  536; 
Baber  v.  Pittsburg,  etc.,  R.  Co.,  93  111. 
342;  Gage  V.  Busse,  94  111,  590;  Rich- 
ards V.  People,  100  111.  423;  Peck  v. 
Herrington,  104  111.  88;  Chicago,  etc., 
R.  Co.  V.  Dunbar,  95  111.  571.  Compare 
Talcott  V.  Schuh,  95  111.  201;  Graham 
V.  People,  104  III.  321. 

In  Indiana  (1879)  Supreme  Court,  on 
appeal  in  cases  originating  in  circuit 
or  superior  courts,  but  not  those  heard 
before  justices  of  the  peace  or  mayors 
of  cities.  Hill  v.  Shannon,  68  Ind. 
470;  Hancock  County  v.  Binford,  70 
Ind.  208  ;  Plymouth  v.  Milner,  117 
Ind.  324.  Courts  of  Common  Pleas. 
Ordinary  jurisdiction  is  unlimited  in 
amount  by  Act  of  1859.  Jenkinson  v. 
Ewing  (1861),  17  Ind.  505.  Justices  of 
the  peace  in  distraint  proceedings  by 
Rev.  Sts.  1838.  Ezra  v.  Manlove  (1843), 
6  Blackf.  (Ind.)  454.  In  proceedings 
against  tenants  for  holding  over  by 
act  of  1838.  Ricketts  v.  Ash  (1844),  7 
Blackf.  (Ind.)  274;  Dougherty  v. 
Thompson,  7  Blackf.  (Ind.)  277.  In 
proceedings  to  try  right  of  property 
taken  on  execution.  Grifhn  v.  Ma- 
lony  (1859),  13  Ind.  402. 

In  Iowa  Supreme  Court,  where  real 
estate  is  involved.  See  Code,  §  3173; 
McBurney  v.  Graves  (1885),  66  Iowa 

314- 

In  Kentucky — Court  of  Appeals.  — 
Where  the  case  involves  title  to  real 
property  either  party  may  appeal  irre- 
spective of  the  amount  in  controversy. 
Moore  v.  Boner,  7  Bush  (Ky.)  26; 
Caskey  v.  Lewis  (1854),  15  B.  Mon. 
(Ky.)  27.  Circuit  Courts  in  cases  of 
liens  affecting  land.  Bush  v.  Williams 
(1869),  6  Bush  (Ky.)405. 

In  Louisiana — Supreme  Court. — In  ac- 
tions of  nullity  of  judgments  where 
there  is  no  pecuniary  amount.  Bryant 
V.  Austin  (1884),  36  La.  Ann.  808  ; 
Cobb  V.  McGuire,  36  La.  Ann.  801  ; 
New  Orleans  v.  Arthurs,  36  La.  Ann. 
98;  Sweeney  v.  Seller,  37  La.  Ann. 
585.  Compare  New  Orleans  v.  Schoen- 
hausen,  39  La.  Ann.  237;  Johnson  v. 
Cavanac  (1S88),  40  La.  Ann.  773. 

In  Maine.  —  The  supreme  j-udicial 
court  on  appeal,  sitting  as  the  Supreme 


Court  of  Probate  by  Rev.  Sts.  ch.  66, 
sec.  II.  Merrill  z/.  Grossman  (1878),  68 
Me.  412.  Also  original  as  well  as  con- 
current jurisdiction  with  justices  of 
the  peace  in  actions  of  trespass  q.  c.  /., 
without  reference  to  amount.  Burn- 
ham  V.  Ross  (i860),  47  Me.  456. 

In  Massachasetts,  in  interlocutory 
questions  of  law,  appeals  will  lie  to 
supreme  judicial  court,  although  the 
ad  damnum  be  for  less  than  the  requi- 
site amount,  and  although  on  a  trial  of 
the  case  on  its  merits  no  appeal  would 
lie  because  of  that  fact.  Hovey  v. 
Crane  (1830),  10  Pick.  (Mass.)  440. 

In  Minnesota. — District  Courts  under 
the  constitution  have  a  general  orig- 
inal jurisdiction,  unlimited  in  amount 
in  civil  actions.  Agin  v.  Heyward,  6 
Minn,  no;  Southern  Minn.  R.  Co. 
V.  Stoddard,  6  Minn.  150;  Fowler  v. 
Atkinson,  6  Minn.  503;  Cressey  v.  Gier- 
man,  7  Minn.  398  ;  Thayer  v.  Cole 
(1865),  ID  Minn.  215. 

In  Missouri.  —  Circuit  Courts  have 
exclusive  jurisdiction  to  enforce  liens 
against  railroads  to  an  unlimited 
amount.  Cranston  v.  Union  Trust 
Co.  (1881),  75  Mo.  29.  Justices  of  the 
peace  are  unrestricted  in  amount  to 
enter  judgments  on  motion  on  bonds 
in  attachment  suits  commenced  before 
them  by  Rev.  Code,  1855.  McDowell 
V.  Morgan  (1863),  33  Mo.  555.  And 
also  in  collateral  matters,  such  as  in- 
terpleas,  growing  out  of  suits  over 
which  originally  they  had  jurisdic- 
tion. Mills  V.  Thomson  (1875),  61 
Mo.  415. 

In  Mississippi. — Justices  of  the  peace 
have  a  similar  unlimited  jurisdiction 
in  incidental  matters  to  suits  regularly 
before  them.  Bernheimer  v.  Martin 
(1889),  66  Miss.  486. 

In  North  Carolina — Supreme  Court. — 
In  suits  affecting  enforcement  of  claims 
against  real  estate.  Charlotte  Plan- 
ing Mills  V.  McNinch,  99  N.  Car.  517; 
Dougherty  v.  Sprinkle,  88  N.  Car. 
300;  Webster  v.  Laws,  89  N.  Car.  224; 
Smaw  V.  Cohen,  95  N..Car.  85;  Neville 
V.  Pope  (1886),  95  N.  Car.  346.  Justices 
of  the  peace,  in  actions  on  former  jus- 
tices' judgments.  Jones  v.  Jones,  3 
Dev.  (N.  Car.)  360;  Bryan  v.  Wash- 
ington, 4  Dev.  (N.  Car.)  479;  Morgan 
V.  Allen  (1844),  5  Ired.  (N.  Car.)  156. 

In  New  York  Supreme  Court,  in  ap- 
peals, where  the  action  is  "affecting 


729 


Immaterial. 


AMO  UN T  IN  CON TRO  VERS  Y. 


Immaterial. 


not  be  read  into  the  statutes  in  order  to  prevent  the  ordinary  and 
statutory  attaching  of  a  court's  jurisdiction.* 


the  title  to  real  property  or  an  interest 
therein,"  under  Code  Civ.  Proc.  sec. 
191,  subsec.  3.  Warren  v.  Wilder,  114 
N.  Y.  2og;  Getman  v.  IngersoU  (1889), 
117  N.  Y.  75. 

City  Courts  of  N'ew  York. — In  all 
actions  which  seek  a  judgment  for 
money  only.  Root  v.  Meyer  (1S85),  2 
How.  Pr.  N.  S.  (N.  Y.  City  Ct.)  20. 

Justices  of  the  Peace. — Over  counter- 
claims which  clearly  arise  out  of  the 
same  transaction  as  the  claim  sued  on, 
when  the  latter  is  within  the  jurisdic- 
tion. Heigel  v.  Willis  (Supreme  Ct., 
18S9),  3  N.  Y.  Supp.  497. 

Equitable  Actions. — The  N.  Y.  Code 
of  Civ.  Proc.  and  the  constitution  of 
1846,  by  implication,  abolished  all 
limitations  as  affecting  the  jurisdiction 
of  courts  in  equitable  actions.  Sars- 
field  V.  Van  Vaughner  (1862),  38  Barb. 
(N.  Y.)  444. 

In  Pennsylvania  Courts  of  Common 
Pleas  had  a  general  civil  jurisdiction 
to  any  amount.  Palmer  z/.  Com.  (1820), 
6  S.  &  R.  (Pa.)  245. 

In  Texas  District  Courts,  in  suits  in- 
volving questions  of  license  taxes. 
Aulanier  v.  Governor  (1846-47),  i  Tex. 
653;  also  in  questions  affecting  real 
estate.  Jenkins  v.  Cain  (Tex.,  1889), 
12  S.  W.  Rep.  1114;  and,  having  once 
acquired  jurisdiction,  retains  it  to  fully 
adjudicate  all  collateral  matters,  irre- 
spective of  amount.  Peticolas  v.  Car- 
penter (1880),  53  Tex.  23  ;  Heiden- 
heimer  v.  Johnson  (1890),  76  Tex. 
200. 

Federal  Courts — U.  S.  Supre?ne  Court. 
— On  appeals  from  Circuit  Courts  of 
the  United  States  in  questions  touch- 
ing the  revenue  laws,  by  act  of  May  31, 
1844,  U.  S.  V.  Carr,  8  How.  (U.  S.)  i; 
also  in  cases  "  touching  patent  rights," 
under  Rev.  Sts.  sec.  699,  St.  Paul 
Plough  Works  v.  Starling  (1888),  127 
U.  S.  376;  also  in  appeals  from  the  Su- 
preme Court  of  Utah  Territory  in  a 
suit  drawing  in  question  the  power  of 
the  territorial  governor  under  the  or- 
ganic act  to  appoint  a  person  to  be 
auditor  of  public  accounts,  Clayton 
V.  Utah  (1889),  132  U.  S.  632.  Circuit 
Courts  in  suits  affecting  revenue  laws, 
under  U.  S.  Rev.  Sts.  sec.  629.  Ames 
V.  Hager(i888),  36  Fed.  Rep.  129;  U. 
S.  V.  Huffmaster,  35  Fed.  Rep.  81; 
Yardley  v.  Dixon  (1S91),  47  Fed.  Rep. 
835;  Wetmore  v.  Rice,  i   Biss.  (U.  S.) 

73° 


237;  U.  S.  V.  Davidson  (1864),  i  Biss. 
(U.  S.)433. 

Where  Untied  States  is  a  plaintiff  the 
federal  courts  have  jurisdiction  en- 
tirely independent  of  what  amount 
may  be  involved  in  controversy; 
neither  the  act  of  Congress  of  March 
3,  1875,  nor  that  of  March  3,  1S87,  de- 
fining its  jurisdiction  as  to  the  amount 
involved,  have  any  application.  U.  S. 
V.  Shaw,  39  Fed.  Rep.  433;  U.  S.  v. 
Kentucky  River  Mills  (1891),  45  Fed. 
Rep.  273.  See  also  an  old  case  in 
N^orth  Carolina,  holding  a  similar  doc- 
trine as  to  the  sovereign  state.  State  v. 
Garland,  7  Ired.  (N.  Car.)  48. 

Where  United  States  is  Appellant,  in  a 
case  of  judgment  rendered  against  it 
in  the  Court  of  Claims,  appealing  to  the 
Supreme  Court.  U.  S.  v.  Davis,  131 
U.  S.  36;  U.  S.  V.  Mosby.  133  U.  S. 
273- 

In  Vermont,  in  the   Supreme  Court, 
on  appeal,  in  a  case  involving  a  ques- 
tion of  building  and  repairing  a  parti- 
tion fence,  involving  also    a    question, 
of  title.     Hall    v.   Niles   (1872),  44  Vt. 

439- 

In  Virginia — Supreme  Court  of  Ap- 
peals.— Where  a  freehold  or  franchise  is 
in  question  in  a  suit,  the  sum  recovered 
need  not  amount  to  $150,  the  appellate 
jurisdictional  minimum,  to  enable  the 
appellate  court  to  take  cognizance. 
Cooke  V.  Piles,  2  Munf.  (Va.)  151; 
Minor  v.  Goodall,  3  Call.  (Va.)  393; 
Staunton  v.  Stout  (1889),  86  Va.  321; 
but  the  matter  of  franchise  must  be 
directly,  not  collaterally,  involved. 
Hutchinson  v.  Kellam  (iSii),  3  Munf. 
(Va.)  202.  Similarly  when  the  constitu- 
tionality of  an  act  is  involved,  under 
provision  of  the  constitution  the 
amount  involved  is  immaterial.  Nor- 
folk, etc.,  R.  Co.  V.  Pendleton  (1890), 
86  Va.  1004. 

In  West  Virginia — Supreme  Court  of 
Appeals. — On  appeal  in  an  action  to  set 
aside  a  deed  as  fraudulent  and  to  sub- 
ject land  for  a  debt,  irrespective  of  the 
amount  of  the  debt.  McClaugherty  v. 
Morgan  (1892),  36  W.  Va.  191. 

In  Washington. — An  action  to  fore- 
close a  mechanic's  lien  is  an  equitable 
one  and  is  appealable,  without  regard 
to  the  amount  in  controversy.  Fox  v. 
Nachtsheim  (1892),  3  Wash.  684. 

1.  Thus,  for  example,  in  a  suit  to  re- 
cover damages  for  a  personal  injury 


Appealable. 


AMO  UNT  IN  CONTRO  VERS  Y. 


Appealable. 


XII.  Appealable  Amount— 1.  When  Plaintiff  Appeals. — Much  of 
the  apparent  conflict  as  to  what  constitutes  the  amount  in  contro- 
versy on  appeal  vanishes  if  the  principle  already  laid  down,  that 
the  real  amount  is  after  all  the  final  and  controlling  jurisdictional 
question,  be  borne  constantly  in  mind  and  applied  to  the  chang- 
ing circumstances  of  particular  cases.  For  this  reason,  when  the 
plaintiff  appeals  from  a  judgment  against  him  or  for  less  than  his 
claim,  the  amount  claimed  by  him  below  is  manifestly  still  that 
which  he  is  seeking  to  enforce  and  therefore  constitutes  prima 
facie  the  amount  in  controversy  in  the  appellate  court.* 


brought  against  the  District  of  Colum- 
bia, said  injury  being  caused  by  de- 
fective streets  in  the  city  of  Washing- 
ton, in  which  the  court  refused  to 
charge  that  the  District  is  not  re- 
sponsible for  its  government  because 
the  United  States  has  imposed  the 
same  upon  it,  does  not  "draw  in  ques- 
tion "  any  statute  of  the  United  States 
in  the  sense  of  that  clause  as  con- 
tained in  the  statute,  and  thus  confer 
jurisdiction  on  the  U.S.  Supreme  Court 
on  appeal  irrespective  of  the  amount 
recovered  below  in  judgment.  Dis- 
trict of  Columbia  v.  Gannon,  136  U.  S. 
227;  Baltimore,  etc.,  R.  Co.  v.  Hop- 
kins, 130  U.  S.  210;  In  re  Craft,  124  U. 
S.  370;  U.  S.  V.  Hill,  123  U.  S.  681; 
U.  S.  V.  Broadhead,  127  U.  S.  212; 
Cogswell  V.  Fordyce,  128  U.  S.  391. 
Compare  Bowman  v.  Chicago,  etc.,  R. 
Co.,  115  U.  S.  611;  U.  S.  V.  Carr,  8 
How.  (U.  S.)  I. 

Local  statutory  provisions  are  large- 
ly controlling,  of  necessity,  whenever 
jurisdiction  is  held  to  be  independent 
of  some  specific  amount  made  requisite 
also  by  local  enactment.  Such  local 
statutory  provisions,  it  is  quite  ap- 
parent, frequently  do  not  even  come 
into  litigation.  Recourse  must  there- 
fore be  had  to  the  statutes  and  Codes 
of  the  various  states  for  anything  like 
an  exhaustive  examination  of  the  im- 
materiality of  amount  as  affecting  ju- 
risdiction. Such  an  examination  is 
naturally  beyond  the  scope  of  this 
article,  which  professes  to  deal  only 
with  adjudged  cases. 

1.  In  the  case  of  Walker  v.  U.  S. ,  4 
Wall.  (U.  S.)  163,  Chase,  C.J.,  said: 
"It  has  been  a  good  deal  controverted 
whether  the  sum  or  value  in  contro- 
versy is  to  be  determined  by  refer- 
ence to  the  amount  claimed  or  the 
amount  of  the  judgment  or  the 
amount  in  dispute  in  this  court. 
It      has     long     been     settled,     how- 


ever, that  when  the  judgment  is  for 
the  defendant,  or  for  the  plaintiff  and 
less  than  $2000"  (the  then  maximum 
jurisdictional  amount  of  the  U.  S.  Su- 
preme Court),  "and  the  plaintiff  sues 
out  a  writ  of  error,  the  court  has  jur- 
isdiction if  the  damages  claimed  in 
the  declaration  exceed  that  sum." 

United  States. — McCormick  v.  Gray, 
13  How.  (U.  S.)  26;  Cooke  v.  Wood- 
row,  5  Cranch  (U.  S.)  13;  Wise  v. 
Columbian  Turnpike  Co.,  7  Crancli 
(U.  S.)  276;  Gordon  v.  Ogden,  3  Pet. 
(U.  S.)  33;  Smith  V.  Honey,  3  Pet.  (U. 
S.)  469;  Hulsecamp  v.  Teel,  2  Dall. 
(U.  S.)  358;  Scott  V.  Lunt,  6  Pet.  (U.  S.) 
349;  Farmers'  Bank  v.  Hooff,  7  Pet. 
(U.  S.)  168;  Clark  v.  Bever,  139  U.  S. 
96;  Lee  V.  Watson,  i  Wall.  (U.  S.)  337; 
Schacker  v.  Hartford  F.  Ins.  Co.,  93 
U.  S.  241;  U.  S.  V.  Mosby,  133  U.  S. 
273;  Johnson  v.  St.  Louis,  etc.,  R.  Co., 
141  U.  S.  602. 

Illinois. — Brant  v.  Gallup,  iii  111. 
487,  53  Am.  Rep.  638. 

Indiana. — Morton  v.  Gravel  Road 
Co.  V.  Wysong,  51  Ind.  4;  Flora  v. 
Russell  (Ind.  App.,  1892),  31  N.  E. 
Rep.  936. 

Iowa. — Ormsby   v.    Nolan,  69  Iowa 

130- 

Kentucky. — Vance  v.  Cox,  2  Dana 
(Ky.)  152;  Com.  v.  Fugate,  i  T.  B. 
Mon.  (Ky.)  i;  Miller  v.  Yocum,  12  T. 
B.  Mon.  (Ky.)  421;  Searcy  v.  Switzer, 
13  T.  B.  Mon.  (Ky.)  352;  Brandies  v. 
Stewart,  i  Mete.  (Ky.)395;  Williams  v. 
Wilson,  5  Dana  (Ky.)  596;  Evans  v. 
Sanders,  10  B.  Mon.  (Ky.)  291. 

Louisiana. — State  v.  Strickland,  35 
La.  Ann.  215;  Aymar  v.  Bourgeois,  36 
La.  Ann.  392. 

Missouri. — Mathews  v.  Danahy,  25 
Mo.  App.  354;  Willi  V.  Lucas,  40  Mo. 
App.  70. 

New  York. — Burleigh  v.  Center,  74 
N.  Y.  608;  Miele  v.  Deperino,  135  N. 
Y.  618. 


731 


Appealable. 


AMOUNT  IN  CONTROVERSY. 


Appealable. 


On  Appeal  from  a  Refusal  by  Court  to  Enter  a  Judgment. — An  exception 
arises  where  plaintiff's  demand  below  is  enough  to  confer  juris- 
diction, but  his  recovery  is  not,  for  in  such  a  case  no  appeal  will  lie 
from  the  refusal  by  the  lower  court  to  enter  judgment  on  the 
verdict  if  that  verdict  is  below  the  appellate  jurisdictional 
amount.* 

2.  When  Defendant  Appeals— «.  No  Counterclaim  Filed. — 
On  the  other  hand,  the  sum  recovered  in  judgment  below  furnishes 
the  amount  in  controversy  when  the  defendant  appeals,  provided 
he  has  filed  no  counterclaim  and  sought  no  affirmative  relief  in 
the  trial  court.* 


Virginia, — Umbarger  v.  Watts,  25 
Gratt.  (Va.)  167;  Harman  v.  Lynch- 
burg, 33  Gratt.  (Va.)  37;  Fink  v.  Den- 
ny. 75  Va.  663;  McCrovvell  v.  Burson, 
79  Va.  290;  Duffy  v.  Figgat,  80  Va. 
664;  Wirtz  V.  Osburn,  83  Va.  227:  Haw- 
kins V.  Gresham,  85  Va.  34;  Pitts  v. 
Spotts,  86  Va.  71. 

West  Virginia. — Marion  Machine 
Works  V.  Craig,  18  W.  Va.  559;  Love 
-V.  Pickens,  26  W.  Va.  341;  Arnold  v. 
Lewis   County  Court,  38  W.  Va.  142. 

England. — Harris  v.  Dreesman,  9 
Exch.  485. 

But  compare  Leahy  v.  Davis,  49  Mo. 
App.  519- 

Defendant's  Counterclaim  when  filed 
does  not  in  any  manner  affect  the 
amount,  when  the  plaintiff  appeals. 
Bowman  v.  Gary,  Minor  (Ala.)  326; 
Overton  v.  Simon,  10  La.  Ann.  685; 
Pickett  V.  Hollingsworth  (1893),  6  Ind. 
App.  436.  Contra,  semble,  Kerr  v.  Sim- 
mons, 82  Mo.  269;  Mackay  v.  Banister, 
53  L.  T.  N.  S.  567. 

The  Evidence  Produced,  although  in 
conflict  with  the  claim,  in  no  manner 
can  affect  plaintiff's  right  to  appeal  as 
fixed  by  the  amount  of  the  latter. 
Zoellert/.  Riley,  98  N.  Y.  668.  Compare, 
contra,  semble,  Thomson  v.  Wales, 
Kirby  (Conn.)  35;  Williams  v.  Leeds 
(1787),  Kirby  (Conn.)  351. 

1.  Jewell  V.  Sullivan,  130  Ind.  574; 
Hancock  v.  Barton,  i  S.  &  R.  (Pa.) 
269;  Wilson  V.  Daniel,  3  Dall.  (U.  S.) 
401;  Cooke  V.  Woodrow,  5  Cranch 
(U.  S.)  13;  Cooke  V.  Piles,  2  Munf. 
(Va.)  151;  Minor  v.  Goodall,  3  Call 
(Va.)  393;  Henry  v.  Elcan,  2  Munf. 
(Va.)  541;  Hepburn  v.  Lewis  (1800),  2 
Call  (Va.)  498;  Lewis  v.  Long,  3  Munf. 
(Va.)  136. 

The  Recovery  and  Not  the  Claim  is 
the  Appellate  Amount  in  Controversy 
where  there  is  a  special  verdict  for 
plaintiff   but  a  general  judgment   for 


defendant.  Buscher  v.  La  Fayette 
(Ind.  App. ,1894),  36  N.E.  Rep.  371.  See 
also  McCrowell  v.  Burson,  79  Va.  290. 

The  recovery  is  also  the  test  where 
a  plaintiff  appeals  from  an  affirmative 
judgment  against  him,  that  is,  a  judg- 
ment not  only  refusing  his  claim,  but 
finding  him  liable  to  defendant. 
Holmes  v.  Hull,  48  Iowa  177. 

The  recovery  in  the  lower  court  be- 
comes also  the  appellate  amount  in 
controversy  where  plaintiff  appeals 
from  the  judgment  of  an  intermediate 
appellate  court  reversing  a  judgment 
found  for  him  in  said  lower  court. 
Thus  the  case  of  The  D.  R.  Mar- 
tin, 91  U.  S.  365,  was  a  suit  by  B., 
the  libellant,  to  recover  damages  for 
his  wrongful  eviction  from  the  steam- 
boat D.  R.  M.  He  demanded  in  his 
libel  825,000  damages,  but  in  the 
District  Court  recovered  only  $500. 
From  this  decree  the  claimant  ap- 
pealed. B.,  the  libellant,  did  not  ap- 
peal. The  Circuit  Court  reversed  the 
decree,  and  dismissed  the  libel.  B. 
then  appealed  to  the  U.  S.  Supreme 
Court,  and  the  court  said:  "  B.,  having 
failed  to  appeal  from  the  decree  of  the 
District  Court,  is  concluded  by  the 
amount  there  found  in  his  favor.  *  *  * 
In  the  Circuit  Court,  the  matter  in 
controversy  was  his  right  to  recover 
the  sum  which  had  been  awarded  him 
as  damages.  *  *  *  The  matter  in  dis- 
pute here  is  that  which  was  in  dispute 
in  the  Circuit  Court."  Wagner  v. 
Long  Island  R.  Co.,  70  N.  Y.  614; 
Schenck  v.  Marx,  125  N.  Y.  703; 
Dominion  Salvage  Co.  v.  Brown,  20 
Can.  Sup.  Ct.  Rep.  203;  Cossette  v. 
Dun,  18  Can.  Sup.  Ct.  Rep.  222. 

2.  Waite,  C.J.,  said  in  the  case  of 
Hilton  V.  Dickinson  (1887),  108  U.  S. 
165:  "  It  has  always  been  assumed 
since  Cooke  v.  Woodrow,  5  Cianch  (U. 
S.)  13,  that  when  a  defendant  brought 


732 


Appealable. 


AMO  UN  T  IN  CONTRO  VERS  Y. 


Appealable. 


The  Amount  Claimed  Below. — In  some  states  a  different  rule  prevails, 
although  with  some  conflict  of  opinion;  and  the  amount  claimed 
in  the  lower  court  is  frequently,  if  not  invariably,  the  amount  in 
controversy,  even  when  the  defendant  is  the  appellant.* 


a  case  here  the  judgment  or  decree 
against  him  governed  our  jurisdiction, 
unless  he  had  asked  affirmative  relief 
which  was  denied,  and  this  because,  as 
to  him,  jurisdiction  depended  on  the 
matter  in  dispute  here.  (If  the  origi- 
nal demand  against  him  was  for  more 
than  our  jurisdictional  limit  and  the 
recovery  for  less,  the  record  would 
show  *  *  *  that  his  object  in  bring- 
ing the  case  here  *  *  *  was  to  get 
more.)  " 

United  States, — Knapp  v.  Banks,  2 
How.  (U.  S.)  73;  Sampson  v.  Welsh, 
24  How.  (U.  S.)  207;  Walker  v.  U.  S., 
4  Wall.  (U.  S.)  163;  Merrill  v.  Petty, 
16  Wall.  (U.  S.)  338;  Gordon  v.  Ogden, 
3  Pet.  (U.  S.)  33;  U.  S.  Bank  v.  Daniel, 
12  Pet.  (U.  S.)  32;  Thompson  v.  But- 
ler, 95  U.  S.  694;  Troy  v.  Evans,  97 
U.  S.  i;  Pierce  v.  Wade,  100  U.  S.  444; 
Lamar  v.  Micou,  104  U.  S.  465;  Dodge 
V.  Knowles,  114  U.  S.  430;  Williams- 
port  Bank  v.  Knapp,  119  U.  S.  357; 
District  of  Columbia  v.  Gannon,  130 
U.  S.  227;  District  of  Columbia  v. 
Emerson,  130  U.  S.  229;  Keller  v.  Ash- 
ford,  133  U.  S.  610;  The  Propeller 
Burlington,  137  U.  S.  386. 

Alabama. — Cothran  v.  Weir,  3  Ala. 
24. 

Arizona. — Grounds  v.  Ralph,  i  Ari- 
zona 227. 

Illinois. — Emerson  v.  Clark,  3  111, 
489;  Lake  Erie,  etc.,  R.  Co.  v.  Faught, 
129  111.  257;  Martin  t.  Stubbins,  126 
111.  387,  9  Am.  St.  Rep.  620;  Svanoe  v. 
Jurgens  (1893),  144  111.  507. 

Indiana. — Bogart  v.  New  Albany,  i 
Ind.  38;  Tripp  v.  Elliott,  5  Blackf. 
(Ind.)  168;  Reed  v.  Se/ing,  7  Blackf. 
(Ind.)  135;  Jones  v.  Yetman,  6  Ind.  46; 
Overton  v.  Overton,  17  Ind.  226;  Mof- 
fitt  V.  Wilson,  44  Ind.  476;  Bowers  v. 
Elwood,  45  Ind.  234;  Quigley  v.  Au- 
rora, 50  Ind.  28;  Dailey  v.  Indianap- 
olis, 53  Ind.  483;  Hall  v.  Spurgeon, 
23  Ind.  73;  Painter  v.  Guirl,  71  Ind. 
240;  Baltimore,  etc.,  R.  Co.  v.  John- 
son, 83  Ind.  57;  Galbreath  v.  Trump, 
83  Ind.  381;  Baker  v.  Groves,  126  Ind. 
593;  Cincinnati,  etc.,  R.  Co.  v.  Mc- 
Dade,  iii  Ind.  23;  Louisville,  etc.,  R. 
Co.  V.  Steele  (1893),  6  Ind.  App.  183. 

Iowa. — Cooper  v,  Dillon,  56  Iowa 
367. 


Kentucky. — Moore  v.  Boner,  7  Bush 
(Ky.)  26;  Tipton  v.  Chambers,  i  Mete. 
(Ky.)  565;  Revill  v.  Pettit,  3  Mete. 
(Ky.)  314;  Louisville,  etc.,  R.  Co.  v. 
Wade,  89  Ky.  255 ;  Brandies  v.  Stewart, 
I  Mete.  (Ky.)  395;  Williams  v.  Wilson, 
5  Dana  (Ky.)  596;  Turner  v.  Pash 
(Ky.,  i89i),i7  S.  W.  Rep.  809;  Mullins 
V.  Bullock  (Ky.,  1892),  19  S.  W.  Rep. 
8. 

Kansas. — Richmond  v.  Brummie,  52 
Kan.  247. 

Mississippi. — Ward  z*.  Scott,  57  Miss. 
826. 

Missouri. — State  v.  St.  Louis  Ct., 
87  Mo.  569  ;  Reichenbach  v.  United 
Masonic  Ben.  Assoc,  112  Mo.  22; 
Ellis  V.  Harrison,  104  Mo.  270. 

New  York. — Brown  v.  Sigourney,  72 
N.  Y.  122;  Graville  v.  New  York,  etc., 
R.  Co.,  104  N.  Y.  674. 

Utah. — Openshaw  v.  Utah,  etc.,  R. 
Co.,  6  Utah  268. 

West  Virginia.  —  Marion  Machine 
Works  V.  Craig,  18  W.  Va.  559. 

Virginia.  —  Gage  v.  Crockett,  27 
Gratt.  (Va.)  735;  Harman  v.  Lynch- 
burg, 33  Gratt.  (Va.)  37;  Skipwith  v. 
Young,  5  Munf.  (Va.)  276;  Duffy  v. 
Figgat,  80  Va.  664. 

Canada. — Ontario,  etc.,  R.  Co.  v. 
Marcheterre,  17  Can.  Sup.  Ct.  Rep. 
141. 

England. — Macfarlane  v.  Leclaire,  15 
Moore  P.  C.  C.  i8r;  The  Doctor  Van 
Thumnen  Tellon,  20  L.  T.  N.  S.  960; 
The  Elizabeth,  L.  R.  3  Adm.  33. 

Compare  Campbell  v.  Smith,  32 
Gratt.  (Va.)  288;  Washington  County 
V.  Parlier,  9  111.  353. 

Amount  Not  Aided  by  Other  Question 
Involved.  —  In  an  action  for  assault, 
where  less  than  the  jurisdictional 
amount  is  recovered,  there  is  no  ap- 
peal from  the  Supreme  Court  in  New 
York,  without  leave,  even  though  the 
case  involves  also  a  question  of  the 
right  to  use  a  private  way.  McMillen 
V.  Cronin,  57  How.  Pr.  (N.  Y.  Ct.  of 
Appeals)  53.  See  also  Kurtz  v.  Hoff- 
man, 65  Iowa  260;  Cook  V.  Bondurant, 
85  Va.  47;  Greathouse  v.  Sapp,  26  W. 
Va.  87. 

1.  In  California  the  decisions  are 
conflicting.  See,  in  support  of  re- 
covery    below    the     appellate     juris- 


733 


Appealable. 


AMOUNT  IN  CONTROVERSY. 


Appealable. 


b.  Counterclaim  Filed. — When  the  defendant  files  a 
counterclaim  in  the  trial  court  and  then  appeals  from  a  judgment 
against  him,  he  occupies  substantially  the  position  of  a  plaintiff 
appealing  from  an  adverse  judgment,  and  therefore  the  amount 
so  claimed  affirmatively  by  him  becomes  the  appellate  amount  in 
controversy.* 

dictional  amount,  Maxfield  v.  John- 
son, 30  Cal.  545  ;  Pennybecker  v. 
McDougal,  48  Cal.  161;  Solomon  v. 
Reese,  34  Cal.  33;  Bailey  v.  Sloan,  65 
Cal.  387;  Lord  v.  Goldberg,  81  Cal. 
596,  15  Am.  St.  Rep.  82;  Dashiell  v. 
Slingerland,  60  Cal.  653.  But  co7n- 
pare  the  able  dissenting  opinion  of 
Morrison,  C.J.,  in  the  latter  case;  and 
see,  contra,  Votan  v.  Reese,  20  Cal.  89; 
Zabriskie  v.  Torrey,  20  Cal.  173  ; 
Meeker  v.  Harris,  23  Cal.  286;  Dumphy 
V.  Guindon,  13  Cal.  28. 

In  Louisiana  it  is  the  rule.  Prieur 
v.  Commercial  Bank,  7  La.  509;  State 
V.  Hackett,  5  La.  Ann.  91  ;  McKee  v. 
Ellis,   2  La.  Ann.  163;  State  v.  Wiltz, 

11  La.  Ann.  439;  Holland  v.  Duchamp, 

12  La.  Ann.  784;  State  v.  Lagarde,  21 
La.  Ann.  18;  Hendricks  v.  Wood,  33 
La.  Ann.  1051;  Smith  v.  Merchants' 
Mut.  Ins.  Co.,  33  La.  Ann.  1071;  State 
V.  Judges,  34  La.  Ann.  1046;  Fran- 
cisco V.  Gauthier,  35  La.  Ann.  393; 
Munday  v.  Lyons,  35  La.  Ann.  990; 
Zuberbier  v.  Morse,  36  La.  Ann.  970; 
State  V.  Judges,  37  La.  Ann.  372  ; 
Johnson  v.  Cavanac,  40  La.  Ann.  773; 
Flower  v.  Prejean,  42  La.  Ann.  897. 

Iti  Iowa. — In  appeals  from  justices 
of  the  peace,  where  by  statute  "any 
person   aggrieved    by  the   final  judg- 


may  appeal,"  it  was  held 
that  if  the  plaintiif  could  appeal  be- 
cause his  claim  was  in  an  amount  suf- 
ficient, although  his  recovery  was  be- 
low the  appealable  amount,  the  de- 
fendant was  entitled  to  the  same 
privilege,  the  plaintiff's  claim  availing 
for  him.  Lundak  v.  Chicago,  etc.,  R. 
Co.,  65  Iowa  473;  Hays  v.  Chicago, 
etc.,  R.  Co.,  64  Iowa  593;  Perry  v. 
Conger,  65  Iowa  588;  Curran  v.  Excel- 
sior Coal  Co.,  63  Iowa  94;  Nichols  v. 
Wood,  66  Iowa  225;  Sterner  v.  Wilson, 
68  Iowa  714. 

Iti  Missouri  a  similar  rule  prevails. 
Ellis  V.  Harrison,  104  Mo.  270.  See 
semble,  contra,  Bateman  v.  Sisson,  70 
Iowa  518. 

In  Illinois,  under  the  Rev.  Sis.  of 
1891,  in  actions  arising  ex  delicto  and 
tried  on  the  merits,  the  jurisdiction  of 
the  Supreme    Court   depends  on   the 


amount  recovered,  no  matter  who  ap- 
peals. Fitzpatrick  v,  Chicago,  etc., 
R.  Co.,  139  111.  248;  Baber  v.  Pitts- 
burg, etc.,  R.  Co.,  93  111.  342;  Brad- 
shaw  V.  Standard  Oil  Co.,  114  111.  172. 

The  right  of  a  Court  of  Chancery  to 
give  relief  against  the  decisions  of 
courts  of  record  or  justices  of  the 
peace  depends  upon  the  amount  of  the 
judgment  recovered  therein.  Ballen- 
tine  V.  Beall,  4  111.  203.  Compare 
Bailey  v.  Green,  8  Wend.  (N.  Y.)  339. 

In  Massachusetts. — In  suits  on  simple 
contracts,  appeals  in  which  are,  by 
statute,  limited  to  cases  wherein 
'■plaintiff  claims  more  than  §50,"  it 
is  invariably  the  amount  claimed 
which  tests  appellate  jurisdiction. 
Stone  V.  Kelly,  8  Mass.  98.  See  also, 
arising  under  Mass.  statutes  of  1820, 
Chamberlain  v.  Cochran,  8  Pick. 
(Mass.)  522;  Hemmenway  v.  Hickes, 
4  Pick.  (Mass.)  499. 

In  Connecticut  a  similar  rule  obtains. 
Pitkin  V.  Flowers,  2  Root  (Conn.)  42; 
Newton  v.  Danbury,  3  Conn.  553. 

In  Washington,  by  statute,  appellate 
jurisdiction  being  made  to  depend,  in 
certain  actions,  on  "the  original" 
amount  in  controversy,  this  language 
is  construed  to  include  all  cases,  no 
matter  who  appeals.  Bleecker  v.  Sat- 
sop  R.  Co.,  3  Wash.  77. 

In  Wisconsin. — By  the  organic  law 
of  Wisconsin  while  still  a  Territory, 
in  force  in  1847,  the  amount  recovered 
determined  the  right  of  appeal  vel  non 
to  the  U.  S.  Supreme  Court.  Oakley 
V.  Hibbard,  2  Pin.  (Wis.)  21,  52  Am. 
Dec.  139. 

1.  Illinois. — Capen  v.  De  Steiger 
Glass  Co.,  105  111.  185. 

Iowa. — Mash  v.  Beckman,  86  Iowa 
249;  Sterner  v.  Wilson,  68  Iowa  714. 

Indiana. — Lake  Shore,  etc.,  R.  Co. 
V.  Van  Auken,  i  Ind.   App.  492. 

Louisiana. — Lamorere  v.  Avery,  32 
La.  Ann.  1008;  Davenport  v.  Knox, 
35  La.  Ann.*486;  New  Orleans,  etc., 
R.  Co.  V.  Barton,  43  La.  Ann.  171; 
Young  V.  Wilson,  34  La.  Ann.  385; 
Miller  v.  Gidiere,  36  La.  Ann.  201; 
Colomb  V.  McQuaid,  36  La.  Ann.  370; 
Citizens'  Bank  v.  Webre,  44  La.  Ann. 


734 


statutory  Amount.    AMOUNT  IN  CONTROVERSY.     Local  Provisions. 


3.  In  Intermediate  Appeals.— Where  the  jurisdiction  of  a  justice 
of  the  peace  or  a  court  of  similar  standing  has  failed  for  want  of 
a  sufificient  amount  in  controversy,  and  an  appeal  is  taken  to  some 
intermediate  appellate  court,  the  latter,  according  to  the  current 
weight  of  authority,  is  without  power  to  review  the  case,  its 
jurisdiction  being  solely  dependent  upon  that  of  the  former.*  See 
"  Jurisdiction." 

XIII.  Statutoey  Amotint— Local  Peovisions.— From  the  very 
nature  of  the  case  the  amount  in  controversy  as  affecting  the  ju- 
risdiction of  courts,  both  original  and  appellate,  is  largely  depend- 
ent upon  constitutional  and  statutory  enactment  of  a  purely  local 
and  limited  character,  and  differing  to  a  greater  or  less  degree  ia 
the  various  states.  So  far  as  these  provisions  have  been  con- 
strued or  applied  in  the  adjudicated  cases  they  are  collated  in 
the  notes.* 

no  part  of  the  amount  in  controversy. 
Kurtz  V.  Hoffman,  65  Iowa  260; 
Campbell  v.  Lewis,  83  Iowa  583;  Bled- 
soe V.  Gulf,  etc.,R.  Co.  (Tex.  Civ.  App.,' 
1894),  25  S.  W.  Rep.  314;  Blanchard  v. 
Kenison,  25  La.  Ann.  385;  Wiley  v. 
Brigham,  81  N.  Y.  13;  Blake  z/.  Krom, 
128  N.  Y.  64. 

Claiming  a  Reduction  of  Judgment  is 
not  equivalent  to  the  filing  of  a  counter- 
claim by  defendant,  so  as  to  entitle 
him  to  an  appeal  as  for  affirmative 
relief  sought.  Lamar  v.  Micou,  104 
U.  S.  465. 

In  Virginia  disallowed  counterclaims 
cannot  be  included  in  the  amount  in 
controversy  when  the  defendant  ap- 
peals from  a  judgment  for  the  plaintiff. 
Lewis  V.  Long,  3  Munf.  (Va.)  136; 
Umbarger  v.  Watts,  25  Gratt.  (Va.) 
167;  Harman  v.  Lynchburg,  33  Gratt. 
(Va.)  37;  Hawkins  v.  Gresham,  85  Va. 
34;  Kendrick  v.  Spotts  (Va.,  1893),  17 
S.  E.  Rep.  853. 

Alternative  and  General  Statements  of 
the  law  upon  the  question  of  the 
amount  in  controversy  on  appeal  are 
to  be  found  in  the  following  cases  : 
Wilson  V.  Daniel  (1798),  3  Dall.  (U.S.) 
401;  Lee  V.  Watson,  i  Wall.  (U.  S.) 
337;  Knapp  v.  Banks  (1844),  2  How. 
(U.  S.)  73;  Merrill  v.  Petty,  16  Wall. 
(U.  S.)338;  Gage  v.  Crockett.  27  Gratt. 
(Va.)  735;  Harman  v.  Lynchburg,  33 
Gratt.  (Va.)  37;  Reynolds  v.  Sneed,  i 
Ark.  199;  Skillman  v.  Lachman,  23 
Cal.  198,  83  Am.  Dec.  96;  Poland  v. 
Carrigan,  20  Cal.  174. 

2.  Alabama — Circuit    Courts. — Origi- 
nal jurisdiction  in  civil  cases  limited 
to  cases  where  sum  involved  exceed 
$50,     by    constitution.      Huggins     v. 


334;  McKnight's  Succession,  44  La. 
Ann.  399. 

Missouri. — Forster  Vinegar  Co.  v. 
Guggemos,  24  Mo.  App.  444. 

New  York. — Dudley  v.  Brinkerhoff 
(Supreme  Ct.),2  N.Y.  Supp.  321;  Reed 
V.  Trowbridge,  106  N.  Y.  657. 

United  States. — Dushane  v.  Bene- 
dict, 120  U.  S.  630;  Ryan  v.  Bindley, 
I  Wall.  (U.  S.)  66;  Sire  v.  Ellithorpe 
Air  Brake  Co.,  137  U.  S.  579;  Block  v. 
Darling,  140  U.  S.  234;  Buckstaff  v. 
Russell  (1894),  151  U.  S.  626. 

Vermont. — Sherwin  v.  Colburn,  25 
Vt.  613;  Church  v.  French.  54  Vt.  420. 
See  also  Myers  v.  Myers,  22  Mo.  App. 
94;  Mackay  v.  Banister,  53  L.  T.  N.  S. 
567.  Contra,  Fowler  v.  Stocking  (1813), 
5  Day  (Conn.)  539. 

1.  The  Difference  between  the  Counter- 
claim and  the  Amount  Allowed  thereon 
constituted  the  amount  in  controversy, 
on  an  appeal  by  the  defendant,  when 
the  said  counterclaim  was  sufficient  to 
confer  jurisdiction,  but  the  amount 
recovered  thereon  was  insufficient. 
Carne  v.  Russ  (1894),  152  U.  S.  250; 
Peyton  v.  Robertson,  9  Wheat.  (U.  S.) 

527'. 

The  difference  between  the  amount 
allowed  plaintiffs  and  the  amount  al- 
lowed the  defendants  on  their  counter- 
claim was  held  to  be  the  amount  in 
controversy  on  the  defendants'  appeal. 
Purcell  V.  Booth,  6  Dakota  17;  State 
i\  Lewis  (Mo.  i.  888),  8  S.  W.  Rep.  770; 
Ryan  v.  Bindley,  i  Wall.  (U.  S.)  66. 
See  also  Thompson  v.  French,  57  Iowa 

559- 

The  Counterclaim  Must  be  Provable. — 
A  counterclaim  which  presents  no  case 
and  is  unsupported  by  evidence  forms 


735 


statutory  Amount.  AMOUNT  IN  CONTROVERSY.    Local  Provisions,. 


The  notes  to  this  section,  however,  do  not  give,  and  do  not  pro- 
fess to  give,  a  reference  to  all  the  multitudinous  and  constantly 


Ball,  19  Ala.  587;  Camp  v.  Marion 
County,  91  Ala.  240.  Affidavit  is  req- 
uisite alleging  bona  fides  of  plaintiff's 
claim  in  all  cases  where  a  greater  sum 
than  is  due  is  demanded.  Cavender 
V.  Funderburg,  9  Port.  (Ala.)  460.  So 
also  where  a  sum  below  the  court's  ju- 
risdiction is  recovered  in  such  actions, 
unless  recovery  is  reduced  by  a  set-off 
successfully  interposed.  McClure  v. 
Lay,  30  Ala.  208;  Camp  v.  Marion 
County,  91  Ala.  240. 

Chancery  Courts  have  jurisdiction  in 
claims  of  a  purely  equitable  nature, 
where  the  sum  demanded  exceeds  $20 
and  is  less  than  $50.  Hall  v.  Canute, 
22  Ala.  650. 

Justices  of  the  Peace. — By  statute 
their  maximum  jurisdiction  in  actions 
ex  contractu  not  sounding  in  damages 
was  $50.  Cavender  v.  Fundebourg 
(1839),  9  Port.  (Ala.)  460;  Williams  v. 
Hinton  (1841),  i  Ala.  297.  In  other 
civil  cases  §50  was  also  the  maximum 
limit.  Crabtree  v.  Cliatt  (1853),  22 
Ala.  181;  Carter  v.  Alford,  64  Ala.  236; 
Brown  v.  Alabama,  etc.,  R.  Co.  (1880), 
87  Ala.  370.  The  constitution  of  1S65 
increased  their  jurisdiction  in  contract 
cases  to  $100,  also  in  attachment. 
Pearce  v.  Pope,  42  Ala.  319;  Solomon 
V.  Ross,  49  Ala.  198.  But  jurisdiction 
in  other  civil  cases  is  not  increased 
thereby.  Taylor  v.  Woods,  52  Ala. 
474.  By  sec.  3378  of  Code  of  1886 
they  have  original  jurisdiction  of 
actions  of  unlawful  detainer  up  to 
$100,  the  constitutional  limit  of  civil 
jurisdiction  in  the  year  1890.  Sykes  v. 
Schwartz  (Ala.,  1890),  8  So.  Rep.  71. 

Montgomery  City  Courtis  given  by  the 
constitution  concurrent  jurisdiction 
with  the  Circuit  Court  and  justices  of 
the  peace  where  the  amount  involved 
is  a  sum  between  S50  and  $100.  Carew 
zi.  Lillienthall,  50  Ala.  44.  • 

Arkansas — County  Courts  of  Common 
Pleas. — Original  jurisdiction  is  limited 
to  $500  and  under,  exclusive  of  inter- 
est. Street  v.  Stuart  ( 1881),  38  Ark. 
159.  Circuit  and  county  courts  have 
as  a  minimum  limit  of  their  original 
jurisdiction  $100.  Huddleston  v. 
Spear,  8  Ark.  406;  Crabtree  v.  Moore, 
7  Ark.  74;  Blackwell  v.  State,  3  Ark. 
320. 

Justices  of  the  Peace. — Original  juris- 
diction in  all  civil  cases  in  contract 
except  covenant  limited   .0  ^iCX)  and 


under,  by  constitution.  Crabtree  v. 
Moore,  7  Ark.  74;  Howell  v.  Milligan, 
13  Ark.  40;  Chatten  v.  Heffley,  21  Ark. 
313;  Dicus  V.  Bright,  23  Ark.  no; 
Sherrill  v.  Wilson,  29  Ark.  384.  By 
Ark.  new  constitution,  art.  7,  sec. 
3,  jurisdiction  in  contract  extended  to 
a  maximum  limit  of  $200  and  a  concur- 
rent jurisdiction  with  the  Circuit 
Courts  where  the  amount  claimed  ex- 
ceeds $100  and  does  not  exceed  $500. 
Rogers  v.  Glascock,  25  Ark.  24;  Sherrill 
V.  Wilson,  29  Ark.  384.  In  criminal 
cases  they  have  concurrent  jurisdiction 
with  the  Circuit  Courts  when  fine  does 
not  exceed  $100,  but  exclusive  of  such 
courts  and  concurrent  with  police  and 
city  courts  in  cases  involving  fines  not 
exceeding  $10.  State  v.  Smith,  26 
Ark.  149.  By  constitution,  as  in  force 
in  1881,  wherever  the  sum  claimed  oa 
an  open  account  is  less  than  $300,  it  is 
within  the  jurisdiction  of  a  justice  of 
the  peace.  Hibbard  v.  Kirby,  38  Ark. 
102.  So  also  in  cases  for  the  recovery 
of  personal  property  whose  value  does 
not  exceed  $300,  and  in  such  cases 
where  damages  do  not  exceed  $100. 
Stanley  v.  Bracht,  42  Ark.  210.  By 
constitution,  art.  7,  sec.  40,  in  actions 
for  damages  the  maximum  limit  of 
justices'  jurisdiction  is  to  claims  of 
$100.  Little  Rock,  etc.,  R.  Co.  v. 
Manees,  44  Ark.  100. 

Circuit  Court. — Appellate  jurisdic- 
tion in  appeals  thereto  from  justices 
of  the  peace  only  attaches  when  the 
sum  in  controversy  exceeds  fioo,  by 
organic  law,  p.  38.  McCamy  v.  Smith, 
I  Ark.  142. 

California. — Supreme  Court  has  con- 
current original  jurisdiction,  by  the 
constitution,  of  all  cases  in  which  the 
amount  demanded  exceeds  $200,  with 
the  district,  county,  probate  courts, 
and  court  of  sessions.  Zander  v.  Coe, 
5  Cal.  230.  Same  court  had  appellate 
jurisdiction  where  matter  in  dispute 
exceeded  S200.  Adams  v.  Town  (1853), 
3  Cal.  247;  Conant  v.  Conant  (1858),  10 
Cal.  249,  70  Am.  Dec.  717;  Bolton  v. 
Landers  (1864),  27  Cal.  106.  By  a  sub- 
sequent constitutional  provision  its 
minimum  limit  in  appeals  was  in- 
creased to  $300.  Hopkins  v.  Cheese- 
man  (1865),  28  Cal.  180;  People  v. 
Perry  (Cal.,  1889),  21  Pac.  Rep.  423; 
Bienenfeld  v.  Fresno  Milling  Co. 
(1890),  82  Cal.  425.     But  the  question 


736 


statutory  Amount.  ^4 MO  UJS'T  IN  CONTRO  VERSY.     Local  Provisions. 


changing  statutes  in  all  the  various  jurisdictions  which  affect  the 
jurisdictional  amount  of  local  courts.     Nothing  short  of  a  corn- 


is  only  one  of  costs;  the  jurisdiction 
extends  to  a  demand  for  less  than  $300. 
Oullahan  v.  Morrissey  (1887),  73  Cal. 
297.  And  also  in  cases  involving  title  to 
real  estate.  Doherty  v.  Thayer,  31 
Cal.    140. 

District  Courts  were  without  original 
jurisdiction  in  cases  involving  less  than 
$200,  exclusive  of  interest.  Arnold  v. 
Van  Brunt  (1854),  4  Cal.  89;  Brock  v. 
Bruce,  5  Cal.  279;  Page  v.  Ellis  (1858), 
9  Cal.  248.  Subsequently  the  mini- 
mum limit  of  jurisdiction  was  fixed  at 
$300.  People  V.  Mier,  24  Cal.  61;  Bell 
V.  Crippen,  28  Cal.  327;  Brown  v.  Rice, 
52  Cal.  489;  Derby  f.  Stevens  (1883),  64 
Cal.   287. 

Justices  of  the  Peace  Z.X&  limited  to  a 
maximum  jurisdiction  of  $100.  Small 
V.  Gwinn  (1856),  6  Cal.  447;  Van  Etten 
V.  Jilson,  6  Cal.  19;  Freeman  v.  Pow- 
ers (1857),  7  Cal.  104;  Ballerino  v. 
Bigelovv  (1891),  90  Cal.  500.  "A  sec- 
ond alcalde"  is  limited  under  the 
Mexican  law  in  California  to  demands 
not  exceeding  $100.  Norrell  v.  Gray, 
I  Cal.  133. 

Colorado — Supreme  Court. — Is  limited 
in  its  appellate  jurisdiction  to  cases  in 
which  the  judgment  recovered  below, 
exclusive  of  costs,  amounts  to  $100. 
Meyer  v.  Brophy  (1890),  15  Colo.  572. 
Sons  of  America  Bldg. ,  etc.,  Assoc,  v. 
Denver,  15  Colo.  592;  Crane  v.  Farmer 
(1890),  14  Colo.  294;  McClaskey  v. 
Lake  View  Min.   Co.  (1892),   18  Colo. 

65. 

Court  of  Appeals. — The  act  of  18S7 
makes  the  same  limitation  applicable 
to  the  Court  of  Appeals  as  the  suc- 
cessor of  the  Supreme  Court.  Pitkin 
County  V.  Aspen  Min.,  etc.,  Co.  (1891), 
I  Colo.  App.  125;  Stevenson  v.  Clarke 
(1893),  2  Colo.  App.  108. 

Dakota. — District  Courts  which  by 
the  organic  law  have  original  jurisdic- 
tion in  chancery  and  common  law  are 
not  impliedly  limited  in  the  amount 
thereof  to  $50  because  the  law  only 
allows  a  plaintiff  costs  when  his  re- 
covery equals  that  sum.  St.  Paul, 
etc.,  Ins.  Co.  v.  Coleman,  6  Dakota 
458. 

Connecticut. — Superior  Courts  prior 
to  1852  had  appellate  jurisdiction  in 
appeals  from  a  county  court  where 
the  matter  in  dispute  exceeded  $70. 
Huntley  v.  Davis  (1815),  i  Conn.  391. 
Compare  Houghton  v.    Havens  (1826), 


6  Conn.  305.  The  act  of  1852,  by  giv- 
ing county  courts  original  jurisdiction 
in  cases  wherein  demand  did  not  ex- 
ceed $200,  absolutely  repealed  the 
former  appellate  jurisdiction  of  supe- 
rior courts.  Brown  v.  Payne,  22  Conn. 
565;  Imlay  v.  Judges,  23  Conn.  445. 
Equity  suits,  where  matter  in  demand 
exceeds  $335,  may  be  entertained  by 
superior  courts.  Where  it  is  less  than 
that  sum  the  jurisdiction  belongs  to 
the  county  courts.  Wheat  v.  GriflSn 
(i8ro),  4  Day  (Conn.)  419. 

Courts  of  Common  Pleas,  by  general 
statutes,  have  jurisdiction  in  suits  in 
equity  where  demand  does  not  exceed 
$500.  Of  sums  in  excess  of  this  the  su- 
perior courts  have  cognizance.  Stone 
V.  Piatt  (1874),  41  Conn.  285;  Boyle  v. 
Rice,  41  Conn.  418;  Blakeslee  v.  Mur- 
phy (1876),  44  Conn.  188. 

Florida  —  Supreme  Court.  —  By  act 
1845  has  appellate  jurisdiction  only 
where  the  amount  in  controversy  is  in 
excess  of  $50.  Curry  v.  Marvin  (1849), 
2  Fla.  411;  Anderson  v.  Brown  (1855), 
6  Fla.  299. 

Justices  of  the  Peace  have  exclusive 
jurisdiction  in  suits  to  collect  debts 
not  exceeeding$5o  by  act  of  1842.  Mc 
Millan  v.  Savage  (1856),  6  Fla.  748. 
They  have  jurisdiction  in  larceny 
cases  where  property  stolen  does  not 
exceed  $20.  McLean  v.  State  (1887), 
23  Fla.  281. 

Georgia. — Superior  Courts,  by  the 
Constitution  of  1868,  had  concurrent 
original  jurisdiction  with  justices  of 
the  peace  in  all  civil  cases  where  the 
amount  of  debt  or  claim  was  less  than 
$100.  McDonald  v.  Feagin,  43  Ga. 
360.  By  same  constitution  the  appel- 
late jurisdiction  of  said  courts  extends 
to  all  claim  cases  wherein  the  amount 
ceeds  $50.  Burts  v.  Farrar,  50  Ga. 
601. 

District  Courts,  by  the  act  of  1870, 
sec.  12,  have  cognizance  of  claims  in 
debt  and  contract  not  exceeding  $100. 
Forbes  v.  Owens,  45  Ga.  132. 

Justices  of  the  Peace,  by  the  consti- 
tution, may  entertain  civil  cases  aris- 
ing ex  contractu  only  where  the  prin- 
cipal sum.  exclusive  of  interest,  costs, 
and  other  charges,  does  not  exceed 
$100.  Baxter  v.  Bates  {1882),  6g  Ga. 
587;  Johnson  v.  Stephens,  69  Ga.  756; 
Beach  v.  Atkinson,  87  Ga.  288.  The 
jurisdiction  of  justices'  courts  in  the 


I  Encyc.  PI.  &  Pr.— 47- 


737 


statutory  Amount.  AMOUNT  IN  CONTROVERSY.     Local  Provisions. 


plete  transcript  of  those  statutes  would  accomplish  this  result, 
for,  as  can  readily  be  seen,  the  cases  adjudicated  construe  only  a 


city  of  Macon  was  enlarged  by  the 
act  of  1852  from  a  S30  to  a  ^50  limit. 
Freeman  v.  Carhart  (1855),  17  Ga.  348. 
Illinois — Supreme  Courts. — Appellate 
jurisdiction  from  appellate  court  in 
cases  of  tort  where  damages  are  capable 
of  direct  proof  is  limited  to  where  those 
damages  exceed  $1000;  but  where  they 
are  not  so  ascertainable  it  is  suflBcient, 
whether  action  be  ex  delicto  or  ex  con- 
tractu, if  they  amount  to  $1000.  Han' 
kins  V.  Chicago,  etc.,  R.  Co.  (1881),  100 
111.  466;  Hutchinson  v.  Howe,  100  111. 
11;  Brant  v.  Gallup  (1885),  iii  111.  487, 
53  Am.  Rep.  638;  Ives  v.  Hulce{i885), 
17  111.  App.  38;  Moore  v\  Sweeney 
(1889),  128  111.  204;  Scharf  v.  People 
(1890),  134  111.  240,  overruling  Raw- 
lings  V.  People,  102  111.  475;  Common 
V.  People  (1891),  137  111.  601;  Umlauf 
V.  Umlauf,  103  111.  651;  Seelye  v.  See- 
lye  (1892),  143  111.  264.  By  a  statute 
in  force  in  1832  there  could  be  an  ap- 
peal from  a  Circuit  Court  to  the  Su- 
preme Court,  where  a  judgment  in  the 
former,  exclusive  of  costs,  amounted 
to  $20,  but  there  could  be  a  writ  of 
error  although  judgment  was  less 
than  that  sum.  Bowers  v.  Green  (1832), 
2  111.  42,  overrulittg  Clark  v.   Ross,  i 

111.  334- 

Justices  of  the  Peace. — By  statute  of 
1836  their  maximum  jurisdiction  of 
actions  by  or  against  administrators 
is  $20.  Leigh  v.  Mason  (1836),  2  111. 
249;  Williams  v.  Blankenship  (1850), 
12  111.  122.  By  Justices  Act,  sec.  17, 
this  was  changed  so  that  in  suits  in 
which  administrators  were  plaintiffs 
the  jurisdiction  was  enlarged  to  $100. 
Miller  v.  McCray  (1865),  37  111.  428.  In 
attachment  their  jurisdiction  was  for- 
merly limited  to  S30  and  less,  and  then 
increased  to  $50.  Hull  v.  Blaisdell 
(1837),  2  111.  332.  In  trespass  d.  b.  a. 
there  was  also  a  limit  of  S30.  Hyatt 
V.  Harmon  (1844),  6  111.  379.  In  ac- 
tions for  debts  due  upon  verbal  con- 
tracts they  had  by  statute  in  force  in 
1841  a  maximum  limit  of  §100.  Dow- 
ling  V.  Stewart,  4  111.  193.  So  also  in 
a  suit  upon  the  judgment  of  another 
justice  the  highest  limit  was  §100. 
Chicago,  etc.,  R.  Co.  v.  Whipple  (1859), 
22  111.  337.  The  proposed  bill  of  1871 
to  increase  justices'  jurisdiction  in 
civil  cases  to  8200  failed  to  become  a 
law.  People  v.  De  Wolf  (1871),  62  111. 
253.     Compare  Hensoldt  v.  Petersburg 


(1872),  63  111.  157.  In  Peoria  county, 
by  Rev.  Stats,  ch.  49,  §  17,  the  ju- 
risdictions of  justices  and  police  mag- 
istrates over  all  complaints,  suits,  and 
prosecutions  in  said  statute  mentioned 
extends  to  where  the  claim  does  not 
exceed  $300;  and  a  similar  limit  was 
fixed  in  all  cases  of  debts,  penalties, 
and  demands  in  which  debt,  or  as- 
sumpsit and  trover,  or  trespass  to  per- 
sonal property  would  lie.  Steamboat 
Delta  V.  Walker  (i860),  24  111.  233; 
Campbell  v.  Conover,  26  111.  64.  The 
constitution  of  1870  abolished  all  local 
jurisdictional  limits  of  amount  in  the 
jurisdiction  of  justices,  and  rendered 
it  uniform  throughout  the  state,  the 
maximum  limit  by  the  act  of  1871 
being  fixed  at  $100.  Markham  v. 
Heffner  (1873),  67  111.  loi;  Johnson  v. 
Logan,  68  111.  313;  Phillips  v.  Quick 
(1872),  63  111.  445;  Taylor  v.  Smith 
(1872),  64  111.  445.  In  garnishment  on 
judgment  recovered  before  him  a  jus- 
tice of  the  peace  has  jurisdiction  with- 
out regard  to  the  statutory  limit. 
Nesbitt  V.  Dickover  (1886),  22  111.  App. 
140.  By  a  statute  of  1890  the  maxi- 
mum limit  of  jurisdiction  in  replevin 
is  fixed  to  where  property  is  not  worth 
over  $200.  Vogel  v.  People,  37  111. 
App.  388. 

County  Courts.  —  Have  concurrent 
jurisdiction  with  Circuit  Courts  in  all 
cases  where  amount  does  not  exceed 
§500.  Lachman  v.  Deisch  (1873),  71 
111.  59- 

Indiana — Supreme  Court. — Has  appel- 
late jurisdiction  only  where  amount 
involved,  exclusive  of  interest  and 
costs,  exceeds  §50,  by  Practice  Act 
of  March,  1877.  Louisville,  etc.,  R. 
Co.  V.  Jackson,  64  Ind.  398;  Cowley 
V.  Rushville,  60  Ind.  327;  Halleck  v. 
Weller,  72  Ind.  342.  See  also  Hall  v. 
Durham,  113  Ind.  327. 

Appellate  Court. — Has  exclusive  ju- 
risdiction of  appeals  fom  circuit,  supe- 
rior, and  criminal  courts  in  cases  orig- 
inating before  a  justice  where  sum 
involved  exceeds  $50,  and  in  cases  for 
the  recovery  of  money  only  wherein 
amount  does  not  exceed  $1000.  Baker 
V.  Groves  (1890),  126  Ind.  593;  Parker 
V.  Indianapolis  Nat.  Bank,  126  Ind. 
595;  Harris  v.  Howe  (1891),  129  Ind. 
72;  Wysor  V.  Johnson,  i  Ind.  App. 
419;  Hallett  V.  Hallett  (Ind.  App., 
1892),  30  N.   E.    Rep.  534;  Durham  v. 


738 


statutory  Amount.  ^MO  UNT  IN  CONTRO  VERS  Y.     Local  Provisions. 


portion  of  the  statutory  enactments,  and  these  adjudicated  cases 
fulfil  the  whole  purpose  of  this  article. 


State,  133  Ind.  422.  By  acts  of  1893, 
p.  29,  sec.  I,  the  appellate  jurisdiction 
was  extended  in  money  actions  to  a 
maximum  limit  of  $3500.  Bible  v. 
Voris  (Ind.  App.,  1893),  34  N.  E.  Rep. 
128;  Miller  v.  Hart,  6  Ind.  App.  557. 

Court  of  Common  Pleas. — Had  a  stat- 
utory jurisdiction  of  less  than  $1000. 
Fleece  v.  Indiana,  etc.,  R.  Co.  (1856), 
8  Ind.  460;  Vawter  v.  Grant  (1857),  10 
Ind.  7;  May  v.  Crawford  (1859),  14 
Ind.  5;  Lambdin  v.  Miller  (i860),  14 
Ind.  514.  By  a  subsequent  statute, 
act  of  1859,  this  jurisdiction  was  en- 
larged to  sums  of  $1000  and  over,  ex- 
cept in  special  cases.  Murdock  v. 
Wheelock,  13  Ind.  472;  Stevenson  v. 
Gould  (1861),  17  Ind.  406;  Schoonover 
V.  Bennett  (1862),  18  Ind.  223. 

Circuit  Courts.— The  minimum  limit 
of  their  jurisdiction  was  $50.  Proctor 
V.  Bailey  (1841),  5  Blackf.  (Ind.)  495. 
Their  minimum  limit  was  afterwards 
by  statute  $1000.  State  v.  Turner 
(1858),  ID  Ind.  411;  Marsh  v.  Sher- 
man (1859),  12  Ind.  358. 

Justices  of  the  Peace. — By  statute  of 
1823  their  general  jurisdictional  maxi- 
mum limit  was  $50.  M'Fadin  v.  Gill 
(1824),  I  Blackf.  (Ind.)  309;  Parkins 
V.  Smith  (1837),  4  Blackf.  (Ind.)  299; 
Middleton  v.  Harris,  6  Blackf.  (Ind.) 
397;  Forshaz'.  Watkins,4  Blackf.  (Ind.) 
520;  Markin  v.  Jornigan  (1852),  3  Ind. 
548;  White  Water  Valley  Canal  Co-  "v. 
Dow,  I  Ind.  141;  Falkner  v.  lams,  5 
Ind.  200;  Wilcox  v.  Hogan,  5  Ind.  546. 
By  statutes  of  1827,  p.  30,  this  jurisdic- 
tion in  actions  of  debt  or  assumpsit  was 
extended  to  cases  in  which  the  claim 
was  for  an  amount  not  exceeding  Sioo. 
Cowgillz/.  Wooden, 2  Blackf.  (Ind.) 332; 
Evans  v.  Shoemaker,  2  Blackf.  (Ind.) 
237;  State  V.  Westbrook,  7  Blackf. 
(Ind.)  138.  By  Rev.  Stats,  of  1852  the 
maximum  limit  was  fixed  at  claims  of 
$100,  inclusive  of  interest,  both  in  ac- 
tions arising  ex  contractu  and  ex  delicto. 
Gregg  V.  Wooden  (1856),  7  Ind.  499; 
Rodman  v.  Kelly  (1859),  I3  Ind.  377. 
By  act  of  1861  jurisdiction  in  actions  of 
tort  extended  where  claim  amounted 
to  $200,  concurrently  with  courts  of 
common  pleas.  Leathers  v.  Hogan, 
17  Ind.  242.  See  also  Harrell  v.  Ham- 
mond, 25  Ind.  104;  Caffreyi'.  Dudgeon, 
38  Ind.  512,  ID  Am.  Rep.  126;  Deam 
V.  Dawson  (1878),  62  Ind.  22.  By 
act  of  1876,  §  10,  and  of  1881,  §  1433, 


jurisdiction  is  given  both  in  contract 
and  tort  to  sums  up  to  $200.  State  v. 
Forry  (1878),  64  Ind.  260;  Second  Nat. 
Bank  v.  Hutton  (1881),  81  Ind.  loi; 
Fawkner  v.  Baden  (1883),  89  Ind.  587. 
By  the  same  acts  in  judgments  con- 
fessed, the  jurisdictional  maximum 
limit  is  fixed  at  $300.  Calloway  v. 
Byram,  95  Ind.  423.  In  actions  of  as- 
saults, batteries,  affrays,  and  other 
breaches  of  the  peace  they  may  im- 
pose a  fine  not  exceeding  $20,  by  Rev. 
Stats.  1830  and  1843.  Henry  v.  Hamil- 
ton, 7  Blackf.  (Ind.)  506. 

Idaho — Probate  Court. — By  the  act  of 
Congress,  Dec.  13,  1870,  has  concurrent 
jurisdiction  with  the  District  Court 
where  the  amount  in  controversy,  ex- 
clusive of  interest,  does  not  exceed 
$500.  Greathouse  v.  Heed,  i  Idaho 
494. 

Iowa — Supreme  Court. — Has  a  mini- 
mum limit  in  its  appellate  jurisdiction 
of  $100,  with  certain  specified  statu- 
tory exceptions.  Wilson  v.  Iowa 
County  (1879),  52  Iowa  339;  Hakes  v. 
Dott  (18S0),  54  Iowa  17;  Mohme  v.  Liv- 
ingston, 54  Iowa  458;  Davis  v.  Up- 
right, 54  Iowa  752;  Andrews  v. 
Burdick  (1883),  62  Iowa  714;  Kurtz  v. 
Hoffman  (1884),  65  Iowa  260;  Hays  v. 
Chicago,  etc.,  R.  Co.  64  Iowa  593; 
McBurney  v.  Graves  (1885),  66  Iowa 
314;  Ardery  v.  Chicago,  etc.,  R.  Co., 
65  Iowa  723;  Bradenberger  v.  Rigler 
(1886),  68  Iowa  300;  Cooper  v.  Wilson 
(1887),  71  Iowa  204;  Ellithorpe  v. 
Reidesil,  71  Iowa  315;  Riddle  v. 
Fletcher,  72  Iowa  454;  Chilton  v.  Chi- 
cago, etc.,  R.  Co.,  72  Iowa  689;  Hutch- 
inson V.  Hutchinson,  73  Iowa  763; 
Harrington  v.  Pierce,  38  Iowa  260; 
District  Tp.  v.  Independent  Dist., 
72  Iowa  687.  {N.B. — That  in  this 
case  the  court  says,  in  construing  the 
statute  conferring  the  appellate  juris- 
diction, that  the  same  is  limited  to  $100 
aM</LESS,  whereas,  as  per  statute  and 
all  other  cases,  it  is  "  $100  and  over.") 
State  V.  McCulloch  (1889),  77  Iowa 
450. 

District  Courts,  by  act  of  February, 
1843,  have  jurisdiction  where  debt  or 
demand  as  claimed  is  for  $50  and  over. 
Bush  V.  Elson(i844),  Morris  (Iowa)  316. 
They  have  concurrent  jurisdiction,  in 
cases  for  $50  and  less,  with  justices  of 
the  peace.  Koonsz/.  Dyer  (1841), Morris 
(Iowa)  93;  Hudson  z/.  Matthews,  Morris 


739 


statutory  Amount.  AMO  UNT  IN  CONTRO  VERS  Y.     Local  Provisions. 


(Iowa)  94;  Hutton  v.  Drebilbis  (1850),  2 
Greene  (Iowa)  593.  Subsequently  it 
was  held  that  this  concurrent  jurisdic- 
tion with  justices  extended  to  $100  and 
under.  Nelson  v.  Gray,  2  Greene 
(Iowa)  397. 

Justices  of  the  Peace  are  by  statute 
limited  to  a  maximum  jurisdiction  of 
$100,  which  may  be  extended  by  con- 
sent and  agreement  of  parties  to  $300. 
Hodge  V.  Ruggles  (1872),  36  Iowa  42; 
Galley  z'.  Tama  County  (1874),  40  Iowa 
49;  Long  V.  Loughran  (1875),  41  Iowa 
543;  Gillett  V.  Richards  (1877),  46  Iowa 
652;  Marshalltown  Bank  v.  Kennedy 
(1880),  53  Iowa  357;  Brown  v.  Davis 
(1882),  59  Iowa  641;  Schlisman  v. 
Webber  (1884),  65  Iowa  114;  Houghton 
V.  Bauer  (1886),  70  Iowa  314. 

Kansas — Supreme  Court.  —  Prior  to 
act  of  1889  its  jurisdiction  attached 
although  the  amount  in  controversy 
was  less  than  $100.  By  that  act,  chap. 
245,  §  I,  it  was  made  necessary  that 
the  amount  should  exceed  $100,  ex- 
clusive of  costs,  in  civil  cases,  save  in 
certain  cases  especially  made  excep- 
tional thereby.  Hite  v.  Stimmel  (1891), 
45  Kan.  469. 

District  Courts. — By  act  of  1855  their 
minimum  limit  of  jurisdiction  in  civil 
cases  was  $100.  Sattig  v.  Small  (1862), 
I  Kan.  170.  See  also  Henderson  v. 
Kennedy,  9  Kan.  163.  And  their 
maximum  limit  %yx>-  Norton  v. 
Foster,  12  Kan.  44. 

Justices  of  the  Peace  have  jurisdic- 
tion in  replevin  only  where  value  of 
property  is  less  than  $100.  Garrett  v. 
Wood  (1865),  3  Kan.  231;  Leslie  v. 
Reber  (1868),  4  Kan.  270.  So  also  in 
actions  of  trespass  to  real  estate  where 
the  damages  demanded  do  not  exceed 
that  sum.  Missouri  Pac.  R.  Co.  v. 
Atchison  (1890),  43  Kan.  529.  In  civil 
matters  for  money  demands  only,  the 
maximum  limit  is  $300.  Ball  v.  Big- 
gam  (1890),  43  Kan.  327;  Missouri  Pac, 
R.  Co.  V.  Atchison,  43  Kan.  529. 

Kentucky — Court  of  Appeals. — By  acts 
1824,  sec.  16,  its  minimum  jurisdic- 
tional limit  was  $20  exclusive  of  costs. 
Clarke  v.  Chiles  (1825),  2  T.  B.  Mon. 
(Ky.)  105.  This  was  subsequently  ex- 
tended to  a  minimum  of  $100.  Nichols 
V.  Hansel  (1830),  3  J.  J.  Marsh.  (Ky.) 
442;  Kendall  v.  Spradling  (1854),  15  B. 
Mon.  (Ky.)  33.  By  Gen.  Statutes,  chap. 
28,  art.  22,  sec.  2,  in  suits  for  the  re- 
covery of  money  or  personal  property 
the  value  thereof  must  amount  to  $50. 
Bracyv.Bracy  (i876),i2  Bush(Ky.)i53. 


Superior  Court  has  appellatejurisdic- 
tion  to  enforce  land  liens  where  de- 
mand is  for  less  than  $3000.  Stultzz/. 
Farthing,  91  Ky.  372. 

Circuit  Courts  have  a  general  mini- 
mum of  original  jurisdiction,  by  the 
constitution,  of  $50. 

Circuit  Courts  —  Original  Jurisdic- 
tion.— By  statutes  their  minimum  ju- 
risdiction was  £1^,  and  between  that 
amount  and  $50  they  exercised  con- 
curent  jurisdiction  with  justices  of  the 
peace.  Sayre  v.  Lewis  (1844),  5  B. 
Mon.  (Ky.)  90.  See  also  Sams  v.  Stock- 
ton(i853),  14  B.  Mon.  (Ky.)  187;  Harris 
V.  Smith  (1828),  7  T.  B.  Mon.  (Ky.)  310. 
Subsequently  it  was  held,  in  accord- 
ance with  statute,  that  they  were 
without  jurisdiction  where  the  amount 
in  controversy,  exclusive  of  interest 
and  costs,  did  not  exceed  $50.  Gris- 
wold  V.  Peckenpaugh  (1866),  i  Bush 
(Ky.)  220. 

Equity  Jurisdiction.  —  The  circuit 
judge  sitting  in  chancery  could  only 
enjoin  judgments  for  ;^5  and  over. 
Cummins  v.  Carter  (1827),  5  T.  B. 
Mon.  (Ky.)  493.  The  judgment  of  a 
quarterly  court  amounting  to  $50 
may  be  enforced  in  equity,  as  per  Rev. 
Stats.,  chap.  40,  sec.  10.  Hopkins  v. 
Stout,  6  Bush  (Ky.)  375;  Craig  z/.  Gar- 
nett,   9  Bush  (Ky.)  97. 

Circuit  Courts  —  Appellate  Jurisdic- 
tion in  appeals  from  a  justice  de- 
pends upon  whether  the  sum  claimed 
before  the  latter  exceeds  £^.  Williams 
V.  Wilson  (1837),  5  Dana  (Ky.)  596; 
Partlow  V.  Lawson,  2  B.  Mon.  (Ky.) 
46.  If  less  than  £^,  the  appeal  is  to  the 
County  Court.  Bassett  v.  Oldham 
(1838),  7  Dana(Ky.)  168. 

County  Courts  z.xe.,  by  a  construction  of 
statutes  in  force  in  1840,  without  ju- 
risdiction of  attachment  for  rents  ex- 
ceeding ;^5.  Poer  V.  Peebles,  i  B. 
Mon.  (Ky.)  i.  It  was  held  doubt- 
ful if  the  Virginia  act  of  1748,  pro- 
"hibiting  the  jurisdiction  of  county 
courts  from  an  action  for  f^\o  for 
deceitful  gaming,  was  in  force  in  the 
year  1840.  Parks  v.  Munford,  g  Dana 
(Ky.)3i9. 

The  General  Court,  by  act  of  1802, 
has  a  jurisdiction  where  matter  in  dis- 
pute exceeds  $20  in  all  controversies 
between  citizens  and  non-residents. 
Turner  v.  O'Bannon  (1829),  2  J.  J. 
Marsh.  (Ky.)i86. 

Justices  of  the  Peace. — By  statute  in 
force  in  1809  their  maximum  jurisdic- 
tional limit  in  arctions  ex  contractu  was 


740 


statutory  Amount.  AMOUNT  IN  CONTROVERSY.      Local  Provisions. 


;^5,  but  in  actions  ex  delicto  and  tort, 
except  in  the  action  of  trover, their  min- 
imum limit  was  £<i.  Singleton  v. 
Madison,  i  Bibb  (Ky.)  342.  See  also 
Evans  z'.  Sanders  (1850),  10  B.  Mon. 
(Ky.)  291.  By  statute  subsequently 
their  maximum  jurisdiction  in  ac- 
tions ex  contractu  was  extended  to  $50. 
Coonrod  v.  Doan,  3  J.  J.  Marsh.  (Ky.) 
510;  Coleman  v.  Cason,  3  J.  J.  Marsh. 
(Ky.)  234;  Latham  v.  Ford,  i  A.  K. 
Marsh.  (Ky.)4ii;  Thomas  v.  Thomas 
(1826),  2  A.  K.  Marsh.  (Ky.)  430; 
Owens  V.  Starr  (1822),  2  Litt.  (Ky.) 
230;  Hawkins  v.  Com.  (1824).  i  T.  B. 
Mon.  (Ky.)  144;  Florrance  v.  Goodin 
(1844),  5  B.  Mon.  (Ky.)  iii;  Howke  z/. 
Buford  (1847),  8  B.  Mon.  (Kv)  38; 
Smith  V.  Terrill  (1853),  M  B.  Mon. 
(Ky.)  207;  Fleming  v.  Limebaugh 
(1859),  2  Mete.  (Ky.)  265.  The  same 
limit  also  appertains  to  actions  for  the 
recovery  of  money  and  personal  prop-, 
erty.  Fidler  v.  Hall  (1859),  2  Mete. 
(Ky.)46i;  Burnes  v.  Cade  (1874),  10 
Bush  (Ky.)  251.  By  statute  in  force 
in  1869,  in  offenses  for  erecting  and 
continuing  a  fence  across  a  public 
road,  a  justice  has  jurisdiction  if  the 
whole  fine  does  not  exceed  $10;  if  it  is 
more  than  this,  the  Circuit  Court  takes 
cognizance.  Com.  v.  Mills,  6  Bush 
(Ky.)  296. 

Louisiana — Supreme  Court.  — Former- 
ly minimum  limit  on  appeal  was  $300, 
save  in  certain  excepted  cases.  Jar- 
vis's  Succession  (1854),  9  La.  Ann.  370; 
Police  Jury  v.  Villaviabo  (1857),  12  La. 
Ann.  788;  State  v.  Third  Justice  (1857), 

12  La.  Ann.  789;  Fletcher  v.  Henley 
(1858),  13  La.  Ann.  150;  State  v.  Fabre, 

13  La.  Ann.  279;  State  v.  Judge  (1862), 
16  La.  Ann.  416.  Subsequently  this 
minimum  limit  was  increased  to  $500 
by  the  constitution  of  1868.  Myers  v. 
Mitchell  (1868),  20  La.  Ann.  533;  Cush- 
ing  V.  Hickle,  20  La.  Ann.  567;  Rooney 
V.  Brown  (1869),  21  La.  Ann.  51;  Ma- 
lone  V.  Casey,  25  La.  Ann.  466;  Ed- 
wards V.  Edwards,  29  La.  Ann.  597; 
Newan  v.  Carney,  30  La.  Ann.,  Part 
II.  1201;  Lamarque  v.  New  Orleans 
(1880),  32  La.  Ann.  276;  Fendler  v. 
Bates  (1882),  34  La.  Ann.  595.  A 
further  increase  was  made  to  a 
minimum  limit  of  $1000  in  certain 
cases.  Renshaw  v.  Stafford  (1882),  34 
La.  Ann.  1138;  State  v.  Judges  (1883). 
35  La.  Ann.  736.  And  this  was  still 
further  increased  to  the  present  juris- 
dictional minimum  limit  of  §2000. 
Sweenev  v.  Sailer,  37  La.  Ann.  585; 


Denis  v.  Houston,  38  La  Ann.  39; 
State  V.  New  Orleans  (1887),  39  La. 
Ann.  342;  Conery  v.  New  Orleans 
Water  Works  Co.,  39  La.  Ann.  770; 
Bush  V.  Berard,  39  La.  Ann.  899; 
Pochelu  V.  Catonnet  (1888),  40  La. 
Ann.  327;  Bedford's  Succession,  38 
La.  Ann;  244;  Young  v.  Duncan,  39 
La.  Ann.  86;  Emancipation  of  Po- 
chelu (1889),  41  La.  Ann.  331;  Ellis 
V.  Silverstein,  26  La.  Ann.  47;  Barry 
Garnier,  31  La.  Ann.  831;  Mayer  v. 
Stahr,  35  La.  Ann.  57;  Forstall  v. 
Larche,  39  La.  Ann.  286;  Barnett  v. 
Gill  (1891),  43  La.  Ann.  1041, 

Court  of  Appeals  has  a  minimum 
limit  of  $200  and  a  maximum  limit  of 
$1000.  State  V.  Mayo  (1881),  33  La. 
Ann.  1070;  State  v.  Judges,  33  La.  Ann. 
1096;  State  V.  Judges  (1883),  35  La. Ann. 
736.  See  also  Louisiana  Ice  Co.  v. 
State  Nat.  Bank,  32  La.  Ann.  597. 

District  Courts. — Minimum  jurisdic- 
tional limit  by  the  constitution  is 
$500.  Choppin  V.  Forstall,  28  La.  Ann. 
303;  State  V.  De  Vargas,  28  La.  Ann. 
342;  Gay  V.  New  Orleans  Pac.  R.  Co., 
31  La.  Ann.  274. 

Parish  Courts. — Maximum  jurisdic- 
tional limit  is  $500  by  the  constitu- 
tion. Swan  V.  Gayle,  21  La.  Ann.  478; 
Bartlett's  Succession,  21  La.  Ann.  531; 
Mayer  v.  Dayries,  24  La.  Ann.  206; 
Fellers  v.  Brown,  24  La.  Ann.  300;  In 
re  Brown,  28  La.  Ann.  716;  Flournoy 
V.  Flournoy,  29  La.  Ann.  737;  Fields 
V.  Gague,  31  La.  Ann.  182. 

City  Courts  in  the  Parish  of  New 
Orleans  are  by  the  constitution  lim- 
ited to  cases  in  which  the  amount  in- 
volved is  $100.  State  v.  Judge,  32 
La.  Ann.  1222;  State  v.  Judge,  33  La. 
Ann.  15;  Fredricks  v.  Skinner,  33  La. 
Ann.  146;  State  v.  Voorhies,  34  La. 
Ann.  99;  State  v.  Voorhies,  34  La. 
Ann.  1142;  State  v.  Judge,  37  La.  Ann. 
583. 

Justices  of  the  Peace  have  a  maxi- 
mum jurisdictional  limit  of  $100. 
State  V.  Third  Justice  (i860),  15  La. 
Ann.  660;  Clerc  v.  Boudreaux  (1886), 
38  La.  Ann.  732;  State  v.  Judge  (1889), 
41  La.  Ann.  403. 

Maine. — Court  of  Appeals  may  en- 
tertain appeals,  in  accordance  with 
statutes  and  their  construction,  in  per- 
sonal actions  where  sum  demanded 
exceeds  $200.  Wherever  the  amount 
claimed  falls  below  this  sum,  the  only 
method  of  bringing  the  matter  before 
this  court  is  by  bill  of  exceptions. 
Kimball  v.  Moody  (1841),  18  Me.  359. 


741 


statutory  Amount.  A  MO  UNT  IN  CONTRO  VERS  V.     Local  Provisions. 


T/ie  Supreme  Judicial  Court  has 
original  as  well  as  concurrent  juris- 
diction with  justices  of  the  peace  of 
actions  of  trespass  q.  c.  f.  although 
damages  demanded  are  less  than  §20. 
Burnham  v.  Ross  (i36o),  47  Me.  456. 

District  Court. — Both  before  and 
after  the  passage  of  the  act  of  August 
ID,  1846,  this  court  had  original  juris- 
diction of  all  civil  suits  in  which  the 
amount  claimed  was  between  $20  and 
§100;  and  the  act  by  which  justices  of 
Waldo  County  obtained  original  juris- 
diction in  civil  suits  in  which  debt  or 
demand  did  not  exceed  $50,and  concur- 
rent jurisdiction  with  District  Courts 
in  actions  wherein  the  amount  was  be- 
tween $50  and  $100,  h.->.d  no  impairing 
effect  upon  the  said  general  jurisdic- 
tion of  the  latter  courts.  Abbott  v. 
Knowlton  (1849),  31  Ale.  77. 

Justices  of  the  Peace,  by  act  of  1829, 
ch.  443,  were  given  a  maximum  juris- 
diction in  replevin  of  $20;  but  this  act 
also  construed  as  giving  them  not  an 
exclusive  but  a  concurrent  jurisdiction 
with  Courts  of  Common  Pleas  in  such 
actions  within  said  limit.  Ridlon  v. 
Emery  (1830),  6  Me.  261. 

Maryland. — Circuit  Courts  in  the 
counties  have  concurrent  jurisdiction 
with  justices  of  the  peace  where  the 
amount  claimed  or  the  thing  in  action 
exceeds  $50.  Harris  z/.  Dorsey,  i  Har. 
&  J.  (Md.)  416;  Baltimore,  etc.,  Turn- 
pike Co.  V.  Barnes,  6  Har.  &  J.  (Md.) 
57;  Barger  v.  Collins,  7  Har,  &  J. 
(Md.)  220;  Offutt  V.  Offutt,  2  Har.  & 
J.  (Md.)  178;  Schindel  v.  Suman,  13 
Md.  310;  Deitrich  v.  Swartz,  41  Md. 
196;  Randle  v.  Sutton,  43  Md.  64. 

Justices  of  the  Peace. — Jurisdiction 
limited  to  cases  both  of  contract  and 
tort  where  debt  or  damages  claimed 
do  not  exceed  $100.  O'Reilly  v.  Mur- 
dock,  I  Gill  (Md.)  32;  Beall  v.  Black,  i 
Gill  (Md.)  203;  Carter  v.  Tuck,  3  Gill 
(Md.)  248;  Brumbaugh  v.  Schnebly,  2 
Md.  325;  Ott  V.  Dill,  7  Md.  251;  Ab- 
bott V.  Gatch,  13  Md.  336,  71  Am.  Dec. 
635;  Bushey  z/..  Culler,  26  Md.  534; 
Herzberg  v.  Adams,  39  Md.  309;  Dei- 
trich V.  Swartz,  41  Md.  196;  State  v. 
Tabler,  41  Md.  236;  Randle  v.  Sutton, 
43  Md.  64;  Rohr  v.  Anderson,  51  Md. 
212;  Reese  v.  Hawks,  63  Md.  130. 

Courts  of  Equity  cannot  "  hear, 
try,  determine,  or  give  relief  in  any 
cause  *  *  *  wherein  the  original  debt 
or  damages  does  not  amount  to  $20." 
Reynolds  v.  Howard,  3  Md.  Ch.  331; 
Pentz  V.  Citizens'  F.Ins.Co.,35  Md.  73. 


sive 
Md. 
147; 


Baltimore  City  Courts. — By  the  con- 
stitution of  1864  Superior  Court  of 
Baltimore  City  had  jurisdiction  when 
debt  or  damage  claimed  exceeded 
$1000.  Reidel  v.  Turner,  28  Md.  362; 
Abbott  V.  Gatch,  13  Md.  314,  71  Am. 
Dec.  635.  And  the  Court  of  Common 
Pleas  when  the  claim  exceeded  $100 
and  did  not  exceed  $1000,  exclu- 
of  interest.  State  v.  Mace,  5 
337;  Blimline  v.  Cohen,  8  Md. 
Abbott  V.  Gatch,  13  Md.  314, 
71  Am.  Dec.  635;  Miller  &  Barroll, 
14  Md.  173;  Baltimore  Cannel,  etc.. 
Coal  Co.  V.  Stewart,  28  Md.  365. 
Constitution  of  1867  gives  both  of 
these  courts  and  the  Baltimore  City 
Court  concurrent  jurisdiction  in  all 
cases  where  the  debt  or  damage 
claimed  exceeds  Sioo,  below  which 
sum  justices  of  the  peace  take  cog- 
nizance under  general  statutory  law. 
See  Rohr  v.  Anderson,  51  Md.  206. 

Appeals  from  Justices  in  Baltimore 
City. — Such  cases  are  triable  in  Balti- 
more City  Court  de  novo,  and  a  judg- 
ment beyond  justices'  jurisdiction  can 
be  rendered.  Zitzer  v.  Jones,  48  Md. 
115.  Contra,  Louisville,  etc.,  R.  Co.  v. 
Breckenridge,  64  Ind.  113. 

County  Courts  had  jurisdiction  in 
cases  where  an  executor  or  adminis- 
trator was  defendant  and  in  which 
debt  or  demand  did  not  exceed  S50. 
Hale  V.  Howe  (1815),  4  Har.  &.  J.  (Md.) 
448. 

Massachusetts. — Superior  Court  of 
Judicature  of  the  Province  of  Massachu- 
setts between  the  years  1761  and  1772. 
No  appeal  would  lie  therefrom  grant- 
ing a  prohibition  to  the  admiralty  to 
the  king  in  council  unless  the  matter 
in  controversy  exceeded  ;^300.  Scol- 
lay  V.  Dunn  (1763),  Quincy  (Mass.)  74. 

Supreme  Judicial  Court. — Ordinary 
minimum  limit  of  appellate  jurisdic- 
tion is  8100.  Sibley  v.  Smith  (1837), 
19  Pick.  (Mass.)  546.  Contrast  Hovey 
V.  Crane,  10  Pick.  (Mass.)  440.  By  con- 
struction of  the  statutes  of  1838  and 
1840,  $300  is  the  minimum  jurisdic- 
tional limit  in  appeals  from  decisions 
of  commissioners  allowing  or  reject- 
ing creditors'  claims  against  estates  of 
deceased  insolvent  debtors.  Sabine 
V.  Strong  (1843),  6  Met.  (Mass.)  270. 
This  court  also  has  original  jurisdic- 
tion of  actions  to  foreclose  mortgages 
in  which  the  real  amount  sought  to  be 
recovered  exceeds  the  value  of  S600. 
Hyde  v.  Greenough  (1853),  11  Cush. 
(Mass.)  87. 


742 


statutory  Amount.  A  MO  UNT  IN  CONTRO  VERS  Y.     Local  Provisions. 


Court  of  Common  Pleas  for  the  coun- 
ties, by  statutes  1782,  ch.  11,  had  a 
minimum  jurisdictional  limit  in  civil 
actions  of  40  shillings.  Cleveland  v. 
Welsh  (x8o8),  4  Mass.  591;  Briggs  v. 
Nantucket  Bank  (18O9),  5  Mass.  94. 

District  and  Police  Courts  may  hear 
aud  determine  cases  of  tort  where 
damages  demanded  are  more  than  $20 
and  less  than  $300.  Bossidy  v.  Bran- 
niff,  135  Mass.  290. 

Justices  of  the  Peace,  by  Stat.  17S3 
have  a  maximum  limit  of  ^4.  Blood  v. 
Kemp  (1826),  4  Pick.  (Mass.)  169;  Car- 
roll V.  Richardson  (1812),  9  Mass.  329; 
Sumner  v.  Finegan  (1818),  15, Mass. 
280.  See  also  Pitman  v.  Flint  (1830), 
10  Pick.  (Mass.)  504.  By  act  of  1852, 
chap.  314,  this  jurisdiction  was  en- 
larged to  $100  except  in  actions  of 
trespass  to  real  estate,  in  which  it  re- 
mains at  §20.  Trees  v.  Rushworth 
(1857),  9  Gray  (Mass.)  47;  McQuade  v. 
O'Neil  (i860),  15  Gray  (Mass.)  52,  77 
Am.  Dec.  350;  Bossidy  v.  Branniff,  135 
Mass.  290;  Leonard  v.  Hannon,  105 
.Mass.  113;  Blake  f.  Darling,  116  Mass. 
300:  Octoz/.  Teahan,  133  Mass.  430.  By 
statute  1858,  chap.  45,  sec  2,  the  maxi- 
mum limit  in  amount  of  justices'  crim- 
inal jurisdiction  is  for  offenses  punish- 
able by  a  fine  not  exceeding  $50,  and 
this  held  not  to  oust  the  jurisdiction 
of  the  Court  of  Common  Pleas  in  such 
cases.  Com.  v.  Hudson  (1858),  11 
Gray  (Mass.)  64. 

Boston  Municipal  Court  has  a  maxi- 
mum limit  in  civil  actions  of  S300. 
Cooper  V.  Skinner,  124  Mass.  183. 

Michigan.  —  Circuit  Court' s  minimum 
jurisdictional  limit  is  $100.  Raymond 
V.  Hinkson  (1886),  15  Mich.  113; 
Dewey  v.  Duyer,  39  Mich.  509. 

Justices  of  the  Peace  have  a  maximum 
jurisdiction  in  actions  ex  contractu,  ac- 
cording to  the  state  constitution,  of 
$100.  Raymond  v.  Hinkson  (1866),  15 
Mich.  113.  In  replevin  as  to  plain- 
tiff who  is  successful  in  the  suit  a  jus- 
tice has  jurisdiction  to  render  a  judg- 
ment for  any  sum  not  exceeding  $500. 
Henderson  v.  Desborough  (1873),  28 
Mich.  170;  Chilson  z'.  Jennison  (1886), 
60  Mich.  235.  By  Comp.  Laws,  sec. 
5255,  in  suits  on  money  bonds  given 
to  secure  specific  sums  of  money  the 
maximum  limit  is  $150.  Gray  v.  Staf- 
ford (1884),  52  Mich.  497. 

Eqttity  Court  has  no  jurisdiction 
of  suit  only  involving  $50.  Sanford  v. 
Haines,  71  Mich.  116. 

Minnesota — Justices  of  the  Peace  and 


District  Courts. — By  statute  the  maxi- 
mum limit  of  the  former  and  the  mini- 
mum limit  of  the  latter  is  $100.  Cast- 
ner  v.  Chandler  (185S),  2  Minn.  86. 

Mississippi — Suprerne  Court. — In  all 
appeals  from  the  Circuit  Court  in  cases 
originally  commenced  before  a  justice 
of  the  peace  this  court  has  a  minimum 
limit  of  $50,  as  provided  by  statute. 
New  Orleans,  etc.,  R.  Co.  v.  Evans 
(1874),  49  Miss.  7S5;  O'Leary  v.  Har- 
ris, 50  Miss.  13;  Ward  v.  Scott,  57 
Miss.  826;  Clark  v.  Gresham  (1890), 
67  Miss.  203. 

Circuit  Courts. — The  constitution 
limited  their  jurisdiction  to  sums  in 
excess  of  $50.  Loomis  v.  Commercial 
Bank  (1840),  4  How.  (Miss.)  660;  Cra- 
poo  V.  Grand  Gulf  (1848),  9  Smed.  & 
M.  (Miss.)  205.  Their  equity  juris- 
diction has  a  maximum  limit,  as 
provided  in  the  constitution,  of  $500. 
Henderson  v.  Herrod  (1852),  23  Miss. 

434- 

Justices  of  the  Peace  were  formerly 
limited  to  a  maximum  amount  of  $50 
by  the  constitution.  Loomis  v.  Com- 
mercial Bank  (1S41),  4  How.  (Miss.) 
660.  Subsequently  this  limit  was  en- 
larged to  $150  by  the  constitution  of 
1869.  Randall  v.  Kline  (1870),  44 
Miss.  313;  Mobile,  etc.,  R.  Co.  v. 
State  (1875),  51  Miss.  137;  Jackson  !». 
Whitfield,  51  Miss.  202;  Bell  v.  West 
Point,  51  Miss.  262.  By  the  consti- 
tution of  1890  this  jurisdiction  was 
still  further  enlarged  to  $200.  Rich 
V.  Calhoun  (Miss.,  1893),  12  So.  Rep. 
707. 

Missouri. — Supreme  Court  has  a  ju- 
risdiction whose  minimum  limit  is 
$2500.  Golding  V.  Golding  (1881),  74 
Mo.  123;  Corrigan  v.  Morris,  97  Mo. 
174;  Kerr  v.  Simmons  (1884),  11  Mo. 
App.  595;  State  V.  Slevin  (1885),  16 
Mo.  App.  541. 

Court  of  Appeals  has  a  maximum 
limit  of  §2500.  Caruth  v.  Richeson 
(1888),  96  Mo.  186;  Syenite  Granite 
Co.  V.  Bobb  (1888),  97  Mo.  46. 

Circuit  Court. — Ordinary  minimum 
limit  is  $50.  Smith  v.  Clark  County, 
54  Mo.  58;  Fickle  v.  St.  Louis,  etc.,  R. 
Co.,  54  Mo.  219;  Williams  v.  Payne,  80 
Mo.  409.  But  compare  Cranston  v. 
Union  Trust  Co.,  75  Mo.  29;  Works  v. 
Strange,  25  Mo.  App.  12. 

In  actions  ex  contractu  they  have 
concurrent  jurisdiction  with  justices 
of  the  peace  in  sums  exceeding  I50 
and  not  exceeding  $90.  Murphy  v. 
Campbell  (1865),  36  Mo.  110. 


743 


statutory  Amount.  A  MO  UNT  IN  CONTRO  VERS  V.     Local  Provisions. 


justices  of  the  Peace. — By  statute 
their  jurisdiction  in  actions  for  the  re- 
covery of  specified  personal  property 
has  a  maximum  limit  of  §50,  and  also 
in  certain  damage  cases  to  such  prop- 
erty. Butler  V.  Ivie  (i860),  30  Mo.  478; 
Hansberger  v.  Pacific  R.  Co.  (1869),  43 
Mo.  199;  Grau  v.  St.  Louis,  etc.,  R. 
Co.  (1873),  54  Mo.  240;  Shrewsbury  v. 
Bawtlitz  (1874),  57  Mo.  414;  Dillard  v. 
St.  Louis,  etc.,  R.  Co.  (1874),  58  Mo. 

This  species  of  action  was  enlarged 
as  to  the  said  jurisdiction  to  $100,  and 
made  also  concurrently  cognizable  be- 
fore a  Circuit  Court.  Henks  v.  Deberts- 
hauser  (1876),  i  Mo.  App.  402.  But 
compare  Mason  v.  Hannah  (1888),  30 
Mo.  App.  190.  By  Rev.  Sts.  1879,  sec. 
2881,  justices  in  all  counties  having 
less  than  fifty  thousand  inhabitants 
have  a  maximum  limit  in  replevin  suits 
of  $150.  Mason  v.  Hannah  (1888),  30 
Mo.  App.  190;  Payne  v.  Weems(i889), 
36  Mo.  App.  54.  In  all  actions  on  notes 
in  St.  Louis  county,  justices  have  a 
minimum  limit  of  $50  and  a  maximum 
of  $300.  Weis  V.  Geyer  (1877),  4  Mo. 
App.  404  ;  Wannall  v.  Lighthizer 
(1878-79),  6  Mo.  App.  593.  See  also 
Simpson  v.  Watson  (1884),  15  Mo. 
App.  425.  By  the  charter  of  Kansas 
City,  acts  1875,  a  justice  has  concur- 
rent jurisdiction  with  a  city  recorder  of 
suits  on  tax  bills  to  the  sum  of  $300 
and  under.  Harris  v.  Hunt  (1888),  97 
Mo.  571.  By  the  "Dramshop- 
keeper"  statute,  an  action  to  enforce 
the  penalty  of  $50  is  cognizable  before 
a  justice.  State  v.  Lack  (1875),  58  Mo. 
501.  By  statutes  in  force  in  1889  a  de- 
fendant's counterclaim  not  exceeding 
the  jurisdictional  limit,  as  applicable  to 
the  claim  of  a  plaintiff,  is  also  cogni- 
zable before  a  justice.  Green  v.  Beebe 
(1889),  39  Mo.  App.  465.  By  Rev.  Sts. 
sec.  2835,  the  jurisdiction  of  justices  of 
the  peace  in  civil  actions  was  fixed  at 
a  maximum  of  $150,  exclusive  of  inter- 
est and  costs.  State  v.  Emmerling 
(1882),  12  Mo.  App.  98. 

Nebraska. — Probate  Court. — By  act  of 
March  3,  1873,  minimum  limit  is  fixed 
to  where  amount  claimed  exceeds  $100. 
Beach  v.  Cramer  (1876),  5  Neb.  98. 

County  Court. — By  stMute  prior  to 
the  amendment  of  1883  its  civil  juris- 
diction had  a  maximum  limit  of  $500. 
Brondberg  v.  Babbott  (1883),  14  Neb. 

517. 

Justices  of  the  Peace  were  limited  by 
the  Code,  sees,  iioo  and  1103,  in  suits 


on  notes,  bonds,  and  other  written  in- 
struments, to  a  minimum  of  §100  and  a 
maximum  of  $200.  Fletcher  t/.  Daugh- 
erty  (1882),  13  Neb.  224;  Bullock  v. 
Jordan  (1884),  15  Neb.  665;  Burton  v. 
Manning,  15  Neb.  ^69;  Bunker  ^'.  State 
Nat.  Bank  (1884),  16  Neb.  234;  Strang 
V.  Krickbaum  (1885),  18  Neb.  365.  But 
in  replevin  cases  a  justice  may  issue 
the  writ  although  property  exceeds  the 
value  of  $200.  Hill  v.  Wilkinson 
(1888),  25  Neb.  103, 

New  Hampshire. — Court  of  Appeals. — 
Appellate  jurisdiction  limited  to  a 
minimum  of  $50  demanded  by  plaintiff 
below.  Robbins  v.  Appleby  (1820),  2 
N.  H.  223.  Original  jurisdiction  in 
personal  actions  also  has  the  same 
minimum  limit  of  §50.  Hoit  v.  Ma- 
lony  (1821),  2  N.  H.  322. 

Courts  of  Common  Pleas. — By  the  act 
of  Dec.  13,  1796,  their  jurisdiction, 
save  in  actions  involving  questions  of 
title  to  real  estate,  was  fixed  at  a  mini- 
mum limit  of  $13.33.  Flagg  z'.  Gotham 
(1834),  7  N.  H.  266. 

Justices  of  the  Peace. — By  the  act  of 
February,  1791,  their  maximum  juris- 
dictional limit,  save  in  actions  involv- 
ing title,  was  established  at  40  shil- 
lings; and  by  the  act  of  February,  1794, 
this  jurisdiction,  with  the  same  excep- 
tion, was  increased  to  a  maximum  of 
£i„  to  continue  for  a  term  of  three 
years,  and  afterward,  by  the  act  of 
December,  1796,  made  perpetual. 
Flagg  V.  Gotham  (1834),  7  N.  H. 
266. 

New  Jersey. — Supreme  Court  could 
by  statute  entertain  any  suit  of  a  civil 
nature  in  which  the  amount  in  con- 
troversy did  not  exceed  $100.  Eacrit 
V.  Keen  (1818),  4  N.  J.  L.  203. 

District  Courts,  prior  to  the  act  of 
March  20,  1878,  had  a  limit  of  $100 
and  less,  and  by  that  act  their  juris- 
diction in  all  civil  suits  was  enlarged 
to  a  maximum  of  $200.  State  v.  Blum 
(N.  J.,  1893),  26  Atl.  Rep.  861. 

Justices  of  the  Peace  were  formerly 
limited  to  a  maximum  jurisdiction  of 
£\'2.  Sou:..  V.  Hall  (1790),  i  N.  J.  L. 
29;  McCauly  v.  Barnes  (1791),  I  N.  J. 
L.  52.  By  the  act  of  March  12,  1879, 
this  limit  was  enlarged  to  §200  in  all 
small  causes.  State  v.  Moran  (1881), 
43  N.  J.  L.  49  ;  State  v.  Neumever 
(1889),  51  N.  J.  L.  299;  Whyte  v.  Mc- 
Govern,  51  N.  J.  L.  356.  But  by  the 
62d  sec.  of  the  Attachment  Act  the 
jurisdiction  of  justices  in  attachment 
cases  is  limited  to  cases  in  which  the 


744 


statutory  Amount.  AMO  UNT  IN  CONTRO  VERS  Y.     Local  Provisions. 


debt  does  not  exceed  $ioo.     State  v. 
Moran  (1881),  43  N.  J.  L.  49. 

New  Mexico. — District  Courts  have 
concurrent  jurisdiction  with  justices 
of  the  peace  in  actions  of  debt  for 
sums  less  than  $100.  Romero  v. 
Silva,  I  N.  Mex.  157. 

New  York. — Court  of  Appeals,  prior 
to  the  constitution  of  1894,  had  a  stat- 
utory minimum  jurisdictional  limit  of 
$500.  Butterfield  v.  Rudde  (1874),  58 
N.  Y.  489;  Wheeler  v.  Scofield  (1876), 
67  N.  Y.  311;  Wagner  v.  Long  Island 
R.  Co.  (1877),  70  N.  Y.  614;  Petrie  v. 
Adams  (1877),  71  N.  Y.  79;  Nichols  v. 
Voorhis  (1878),  74  N.  Y.  28;  Trevett  v. 
Barnes  (1888),  no  N.  Y.  500;  Warren 
V.  Wilder  (1889),  114  N.  Y.  209;  Get- 
man  V.  IngersoU  (1889),  117  N.  Y.  75; 
Folts  V.  State  (1890),  118  N.  Y.  406; 
Norris  v.  Nesbit  (1890),  123  N.  Y.  650. 

Supreme  Court. — Formerly  its  equity 
jurisdiction  had  a  minimum  limit  of 
$100.  Vaughn  v.  Ely  (1848),  4  Barb, 
(N.  Y.)  159.  By  Code  of  Civ.  Proc. 
this  limitation  was  done  away  with. 
Sarsfield  v.  Van  Vaughner,  38  Barb. 
(N.  Y.)  444;  Marse  v.  Benson  (1866), 
34  N.  Y.  358. 

County  Courts.  —  In  assumpsit  they 
had  by  statute  a  maximum  jurisdic- 
tion of  $2000.  Beecher  z^.  Allen  (1849), 
5  Barb.  (N.  Y.)  169.  So  also  in  assault 
and  battery  the  same  limit.  Sweet  v. 
Flannagan  (Chemung  Co.  Ct.,  1881), 
61  How.  Pr.  (N.  Y.)  327.  By  Laws  of 
1880,  ch.  480,  they  had  a  maximum 
jurisdiction  of  $3000  and  a  minimum 
of  $1000  in  money  demands.  Sweet  v. 
Flannagan  (Chemung  Co.  Ct.,  1881), 
61  How.  Pr.  (N.  Y.)327.  This  after- 
ward held  to  be  in  conflict  with  the 
constitution,  which  limits  the  said 
jurisdiction  to  $1000.  Lenhard  v. 
Lynch  (Erie  Co.  Ct.,  1881),  62  How. 
Pr.  (N.  Y.)  56;  Gilbert  v.  York  (1886), 
41  Hun(N.  Y.)  594.  See  also  Kundolf 
V.  Thaleimer  (1855),  12  N.  Y.  593. 

Marine  Court. — Formerly  in  actions 
of  contract  and  money  claims  limited 
to  a  minimum  of  $100.  By  act  of 
April,  1852,  this  was  increased  to 
$250.  People  V.  Marine  Court  (1862), 
23  How.  Pr.  (N.  Y.  Supreme  Ct.)  446. 
By. act  of  1853  this  was  still  further 
enlarged  to  §500.  People  v.  Marine 
Court  (1862),  23  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  446;  Farley  v.  De  Waters, 
2  Daly  (N.  Y.)  192;  Murray  v.  De 
Gross,  3  Duer  (N.  Y.)  668. 

District  Courts  in  New  York  City 
are  limited  by  the  act  of  1857  in  money 


claims  to  where  the  recovery  do«s  not 
exceed  $250.  Loomis  v.  Bowers  (1862), 
22  How.  Pr.  (N.  Y.  C.  PI.)  361. 

City  Courts,  by  Code  of  Civ.  Proc, 
have  a  maximum  jurisdiction  in  ac- 
tions ex  contractu  of  $2000.  Crane  v. 
Crane  (City  Ct.),  19  N.  Y.  Supp.  691. 

Justices  of  the  Peace  had  a  jurisdic- 
tional maximum  limit  of  ;^8o.  Tuttle 
V.  Maston  (1799),  i  Johns.  Cas.  (N.  Y.) 
25.  This  was  subsequently  fixed  at  a 
maximum  of  $50.  Moore  v.  Lyttle 
(1819),  4  Johns.  Ch.  (N.  Y.)  183; 
Walker  v.  Cruikshank  (1842),  2  Hill 
(N.  Y.)  296.  Subsequently  in  debt 
and  damage  cases  the  maximum  was 
fixed  at  $100.  Bryan  v.  Cain  (1845),  i 
Den.  (N.  Y.)  507;  Daniels  v.  Hinks- 
ton  (1849),  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  322;  Dennis  v.  Crittenden  (1870), 
42  N.  Y.  542.  This  was  again  en- 
larged to  S200  in  certain  cases.  Bel- 
linger V.  Ford  (1852),  14  Barb.  (N.  Y.) 
250:  Humphrey  v.  Persons  (1857),  23 
Barb.  (N.  Y.)  313;  Loomis  v.  Bowers 
(1862),  22  How.  Pr.  (N.  Y.  C.  PI.)  361. 
By  Code  of  Civ.  Proc.  in  actions  in- 
volving mutual  accounts  a  justice  is 
without  jurisdiction  where  the  balance 
as  proven  to  the  satisfaction  of  the 
justice  exceeds  $400.  Abernathy  v. 
Abernathy  (1823),  2  Cow.  (N.  Y.)  413; 
Glackin  v.  Zeller  (1868),  52  Barb.  (N. 
Y.)  147;  Boston  Mills  v.  Eull  (1869),  6 
Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  319; 
Burdick  v.  Hale,  13  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  60;  Lamoure  v.  Caryl, 
4  Den.  (N.  Y.)  370;  Fuller  v.  Conde, 
47  N.  Y.  89;  Brisbane  v.  Batavia  Bank 
(1885),  36  Hun  (N.  Y.)  17;  White  v. 
Place  (1886),  40  Hun  (N.  Y.),  4S1; 
Shaw  V.  Roberts  (Supreme  Ct.,  1891), 
14  N.  Y.  Supp.  579. 

North  Carolina — County  Courts. — Ap- 
pellate jurisdiction  in  appeals  from 
justices  of  the  peace  had  a  minimum 
limit  in  debt  claims  of  ;^20.  Brooks  v. 
Collins  (1801),  1  Tayl.  (N.  Car.)  236. 
By  Rev.  Stats,  ch.  31,  §  40,  their  orig- 
inal jurisdiction  in  suits  on  bonds, 
notes,  or  liquidated  accounts  had  a 
minimum  limit  of  $100.  Newman  v. 
Tabor  (1844),  5  Ired.  (N.  Car.)  231. 

Superior  Courts. — By  acts  of  1777 
and  1796  their  original  jurisdiction 
had  a  minimum  limit  of  ;^ioo  where 
plaintiff  and  defendant  resided  in  the 
same  district;  where  in  different  dis- 
tricts the  minimum  was  ;^5o.  Allen  v. 
Stokes  (1794),  I  Hayw.  (N.  Car.)  142; 
McNeill  V.  West  (1806),  2  Hayw.  (N. 
Car.)  211;  Williams  v.  Holcombe  (1818), 


745 


statutory  Amount.  AMOUNT  IN  CONTROVERSY.     Local  Provisions. 


I    Law   Repos.    (N.    Car.)   365;    Mera 
V.    Scales   (1823),   2  Hawk.    (N.   Car.) 

364- 

A  subsequent  statute  fixed  their 
minimum  jurisdiction  at  $60  in  actions 
for  goods,  etc.,  sold;  and  in  suits  on 
notes,  bonds,  etc.,  at  $100.  Parham 
V.  Hardin  (1850),  11  Ired.  (N.  Car.) 
219;  Bean  v.  Baxter  (1855),  2  Jones 
(N.  Car.)  356.  See  also  Smaw  v. 
Cohen  (1886),  g5  N.  Car.  85.  In  ac- 
tions not  arising  ex  contractu  these 
courts  have  concurrent  jurisdiction 
with  justices  of  the  peace  where  value 
of  the  property  claimed  is  less  than 
$50.  Crinkley  v.  Egerton  (1893),  113 
N.  Car.  142. 

Justices  of  the  Peace. — A  single  jus- 
tice was  limited  in  suits  to  collect 
debts  to  ;^2oand  less.  Brooks  v.  Col- 
lins (1801),  I  Tayl.  (N.  Car.)  236. 
Jurisdiction  is  limited  to  a  maximum 
of  $60  in  all  claims  except  in  suits  for 
notes  and  liquidated  demands,  in  which 
the  statutory  maximum  is  $100. 
Bryan  v.  Washington  (1834),  4  Dev. 
(N.  Car.)  479;  Midgett  v.  Watson 
(1846),  7  Ired.  (N.  Car.)  143;  M'Rae 
V.  M'Rae  (1838),  3  Dev.  &  B.  (N.  Car.) 
85.  Bat  in  the  case  of  a  debt  founded 
upon  a  former  magistrate's  judgment, 
such  a  debt  being,  semhle,  a  liqui- 
dated claim,  the  minimum  is  greater 
than  $60.  Morgan  v.  Allen  (1844),  5 
Ired.  (N.  Car.)  156. 

Criminal  Jurisdiction  of  justices  by 
the  constitution  of  1S68  e.xtended  to 
cases  where  the  punishment  in  fines 
could  not  exceed  $50.  State  v.  Moore 
(1880),  82  N.  Car.  659;  State  v.  Ben- 
thall,  82  N.  Car.  664;  State  v.  Wood 
(1886),  94  N.  Car.  855.  By  the  Consti- 
tution, art.  iv,  §  33,  their  regular 
civil  jurisdiction  in  claims  was  fixed 
at  a  maximum  of  $200.  Hedgecock  v. 
Davis  (1870),  64  N.  Car.  650;  Derr  v. 
Stulbs  (1880),  83  N.  Car.  539;  Fisher 
V.  Webb  (1881),  84  N.  Car.  44;  Smaw 
V.  Cohen  (1886),  95  N.  Car.  85. 

Ohio — Courts  of  Common  Picas  have 
a  minimum  original  and  exclusive 
jurisdiction  of  $300.  Wood  v.  O'Fer- 
rall  (1869),  19  Ohio  St.  427. 

Justices  of  the  Peace. — They  had  a 
maximum  statutory  limit  in  civil  cases 
of  $70.  Aten  z*.  Morgan  (1817),  Tapp. 
(Ohio)  232.  This  was  subsequently 
raised  to  a  minimum  of  $100.  Deming 
V.  Austin  (1834),  Wright  (Ohio)  717. 
Still  later,  by  the  emendatory  act  of 
May  I,  1854,  they  were  given  concur- 
rent  jurisdiction  with    the  Courts  of 


Common  Pleas  in  claims  of  any  sum 
not  exceeding  $300  and  over  $100. 
McKibben  v.  Lester  (1859),  9  Ohio  St. 
627;  Job  V.  Harlan  (1862),  13  Ohio  St. 
485;  Bowers  v.  Pomeroy  (1871),  21 
Ohio  St.  184;  Butcher  v.  Smith  (1876), 
29  Ohio  St.  604. 

Pennsylvania. — Supreme  Court  at  nisi 
prius  has  an  original  jurisdiction  of 
single  causes  of  action  in  which  the 
amount  in  controversy  is  as  much  as 
$500.  Gault  V.  Vinyard  (1856),  26  Pa. 
St.  282. 

District  Courts  of  the  city  and  county 
of  Philadelphia  have  a  minimmn  limit 
of  $100.  Coates  v.  Cork  (1836),  i 
Miles  (Pa.)  270;  Rodman  v.  Hutchin- 
son (183S),  4  Whart.  (Pa.)  242;  Curry 
z/.Spink  (1854),  23  Pa.  St.  58;  Lelar  v. 
Gault  (1856-58),  2  Phila.  (Pa.)  78. 

Justices  of  the  Peace,  by  the  act  of 
April,  i8og,  had  in  actions  of  trover  a 
maximum  jurisdiction  of  $30.  Mc- 
Kinley  v.  McCalla  (1813),  5  Binney 
(Pa.)  600.  By  the  act  of  1810,  except 
in  amicable  actions  wherein  both 
parties  appeared  and  consented  to  a 
greater  jurisdiction,  a  justice's  gen- 
eral maximum  limit  was  $100.  Black  z'. 
Coolbaugh(i754,  etc.),  2  Luz.  Leg.Obs. 
(Pa.)  324;  Brenneman  v.  Greenawalt 
(1814),  I  S.  &  R.  (Pa.)  27;  McKillipz-. 
McKillip  (1816),  2  S.  &  R.  (Pa.)  489; 
Hoops  V.  Crowley  (1823),  12  S.  &  R. 
(Pa.)  219;  Powell  V.  Shank  (1834),  3 
Watts  (Pa.)  235;  Green  v.  Leymer,  3 
Watts  (Pa.)  381;  Campz/.  Wood  (1840), 
10  Watts  (Pa.)  118;  Boon  v.  Collins 
(1850-55),  I  Phila.  (Pa.)  438;  Truitt  z/. 
Ludwig  (1854),  25  Pa.  St.  145;  Phi- 
llips's Appeal  (1859),  34  Pa.  St.  489; 
Borland  z^.  Ealy  (1862),  43  Pa.  St.  iii. 
Compare  Delancy  v.  Brindle  (1826),  15 
S.  &  R,  (Pa.)  75.  The  act  of  May  29, 
1879,  enlarges  the  maximum  limit  of 
justices,  aldermen,  and  magistrates  to 
S300.  Jacobyz*.  Shafer  (1884),  105  Pa. 
St.  610;  Beatty  v.  Rankin  (1S90),  139 
Pa.  St.  358.  See  also  Tarr  v.  Eddy, 
142  Pa.  St.  410. 

Courts  of  Common  Pleas  of  the  city 
and  county  of  Philadelphia  may  also 
entertain  actions  in  which  the  amount 
involved  is  less  than  $100,  concurrently 
with  justices  of  the  peace,  the  only 
result  being  that  in  such  causes  before 
the  latter  a  successful  plaintiff  re- 
covers his  costs,  while  in  the  former 
he  must  always  pay  his  own  costs. 
Hoops  V.  Crowley  (1823),  12  S.  &  R. 
(Pa.)  219. 

South  Carolina. — Justices  of  the  Peace 

46 


statutory  Amount.  AMO  UNT  IN  CONTRO  VERS  Y.     Local  Provisions. 


were  formerly  limited  in  their  juris- 
diction in  actions  ex  contractu  to  a  maxi- 
mum of  $20;  and  wherever  the  de- 
mand was  for  more  than  $6  there  might 
be  an  appeal  therefrom,  but  below  this 
latter  sum  their  adjudication  was  final 
and  conclusive.  Debruehl  v.  Parker 
(1814),  I  Treadw.  Const.  Rep.  (S.  Car.) 
475;  Penning  v.  Porter  (1817),  i  Mill 
(S.  Car.)  396;  Allen  v.  Singleton  (1839), 

1  Rice  (S.  Car.)  289.  Subsequently 
their  maximum  limit  was  enlarged  to 
$100.  Dillard  v.  Samuels  (1886),  25 
S.  Car.  318;  Cavender  v.  Ward  (1887), 
28  S.  Car.  470.  Wherever  in  a  crimi- 
nal proceeding  the  amount  of  the  pen- 
alty is  uncertain,  a  trial  justice  cannot 
take  jurisdiction,  inasmuch  as  it  may 
exceed  his  limit.  State  v.  Weeks 
(1880),  14  S.  Car.  400. 

Tennessee.  —  Superior  Courts  have 
original  jurisdiction  by  the  act  of 
1794,  chap.  I,  sec.  6,  for  any  debt  or 
demand,  where  plaintiff  and  defendant 
both  reside  in  the  same  district,  not 
exceeding  $100;  but  where  they  live  in 
different  districts  then  they  are  limited 
to  a  maximum  of  $50.  Hendrick  v. 
Stewart  (1809),  i  Overt.  (Tenn.)  476. 

County  Courts  have  a  minimum  limit 
by  the  act  of  1803,  chap.  5,  sec.  2,  of 
$50.  Martin  v.  Carter  (1831),  i  Yerg. 
(Tenn.)  489;  Covington  v.  Neilson 
(1834),  6  Yerg.  (Tenn.)  475- 

Justices  of  the  Peace  were  formerly 
limited  in  their  jurisdiction  by  the  act 
of  1801,  in  actions  in  contract  for  liqui- 
dated damages,  and  by  a  subsequent 
act,  i.e.,  that  of  1851,  in  replevin  suits, 
to  a  maximum  of  $50.  Thompson  v. 
Gibson  (1814),  2  Overt.  (Tenn.)  235; 
Smith  V.  Wallace  (1833),  4  Yerg. 
(Tenn.)  572;  Crockett  v.  Wright  (1840), 

2  Humph.  (Tenn.)  322  ;  Collins  v. 
Oliver  (1844),  4  Humph.  (Tenn.)  439; 
Bryan  v.  Buckholder  (1847),  8  Humph. 
(Tenn.)  561  ;  Hockaday  v.  Wilson 
(1858),  I  Head  (Tenn.)  113;  Mason  v. 
Westmoreland  (1858),  i  Head  (Tenn.) 
555.  By  the  act  of  1831,  chap.  59,  sec. 
2,  their  jurisdiction  over  notes,  bonds, 
and  specialties  was  increased  to  Sioo 
as  a  maximum.  Hay  v.  Lea  (1835),  8 
Yerg.  (Tenn.)  89;  Collins  v.  Oliver 
(1844),  4  Humph.  (Tenn.)  439.  By  the 
act  of  May,  1866,  chap.  51,  their  juris- 
diction in  actions  of  trover,  etc.,  was 
further  increased  to  a  maximum  of 
§250.  Taylor  v.  Pope  (1868),  5  Coldw. 
(Tenn.)4i3;  Whites'.  Buchanan (1868), 
6  Coldw.  (Tenn.)  32.  By  the  act  of 
1852  their  jurisdiction  in  attachment 


was  extended  to  a  maximum  limit  of 
$500.  Apperson  v.  Looney  (1853),  2 
Swan  (Tenn.)  664.  A  similar  exten- 
sion to  $500  was  also  made  in  certain 
actions  on  negotiable  paper.  Mason 
V.  Westmoreland  (1858),  i  Head 
(Tenn.)  555.  And  likewise  in  actions 
of  replevin.  Godsey  v.  Weatherford 
(1888),  86  Tenn.  670. 

Chancery  Courts  have  a  minimum 
jurisdiction  ordinarily  of  $50,  Malone 
V.  Dean  (1882),  9  Lea  (Tenn.)  336. 
Compare  Frazier  v.  Browning,  11  Lea 
(Tenn.)  253. 

Texas — Supreme  Court. — By  act  of 
1866  its  appellate  jurisdiction  in  cases 
appealed  to  it  from  the  District  Court, 
which  had  been  pteviously  appealed  to 
the  latter  from  the  County  Court,  had 
a  minimum  limit  to  where  judgments 
below  were  $200.  Meriweather  v. 
Whitley  (1873),  38  Tex.  525. 

Court  of  Appeals. — Where  cause  is 
appealed  thereto  from  a  trial  de  novo 
in  the  County  Court,  on  appeal  to  the 
latter  from  a  justice  of  the  peace,  it  has 
a  minimum  limit  of  $100.  Wyatt  v. 
Barmore(r878),  5  Tex.  App.  332;  John- 
son V.  State  (1888),  26  Tex.  App.  395; 
Gulf,  etc.,  R.  Co.  V.  Farmer  (Tex.  Civ. 
App.,  1893),  22  S.  W.  Rep.  515;  Gulf, 
etc.,R.  Co.  V.  Rowley  (Tex.  Civ.  App., 
1893),  22  S.  W.  Rep.  182.  Where  there 
has  been  no  trial  de  novo  in  the 
County  Court  in  such  appeal,  then  the 
minimum  is  $20.  Williams  v.  Sims 
(Tex.  App.,  1890),  16  S.  W.  Rep.  786. 

County  Courts. — Appellate  jurisdic- 
tion in  appeals  from  justices  of  the 
peace  has  a  minimum  limit  of  $20. 
Pevito  V.  Rodgers  (1880),  52  Tex.  581; 
Brazoria  County  v.  Calhoun  (1884),  61 
Tex.  223;  Gulf,  etc.,  R.  Co.  v.  Row- 
ley (Tex.  Civ.  App.,  1893),  22  S.  W. 
Rep.  182. 

Origittal  Jurisdiction  of  County 
Courts  has  a  maximum  of  $500  by  the 
constitution  of  1866.  Hamman  v. 
Lewis(i870-7i),  34Tex.  474.  And  this 
includes  the  exact  sum  of  $500.  Gulf, 
etc.,  R.  Co.  V.  Ramboldt,  67  Tex.  654; 
Garrison  v.  Pacific  Express  Co.  (1887), 
69  Tex.  345;  Carroll  v.  Silk,  7oTex.  23; 
Henderson  v.  Anglo-American  L.,  etc. 
Assoc.  (Tex.,  1888),  7  S.  W.  Rep.  837. 
But  compare  Betterton  v.  Echols,  85 
Tex.  212;  Erwin  v.  Blanks,  60  Tex.  583; 
Carney  v.  Mar.salis,  77  Tex.  62.  In 
misdemeanors  County  Courts  had  con- 
current jurisdiction  with  justices  of 
the  peace,  in  1878,  in  cases  in  which 
the  maximum  fine  did  not  exceed  $200. 


747 


statutory  Amount.  AMO  UNT  IN  CONTRO  VERS  V.     Local  Provisiona. 


Solon  V.  State  (1878),  5  Tex.  App. 
301. 

District  Courts  had  formerly  a  mini- 
mum jurisdiction  of  $100,  and  at 
the  same  time,  in  claims  wherein  the 
exact  amount  of  $100  was  involved, 
they  had  concurrent  jurisdiction  with 
justices,  of  the  peace.  Johnson  v. 
Happen  (1849),  4  Tex.  96;  Love  v. 
Mclntyre  (1848),  3  Tex.  10.  Compare 
Lockridge  v.  Baldwin  (1857),  20  Tex. 
303,  70  Am.  Dec.  385.  Subsequently 
the  minimum  limit  was  fixed  at  $500. 
Bond  V.  Dillard  (1878),  50  Tex.  302; 
Chrisman  v.  Grayham  (1878),  49  Tex. 
491;  Moody  V.  Cox,  54  Tex.  492;  Mixan 
V.  Grove  (1883),  59  Tex.  573;  Erwin  v. 
Blanks,  60  Tex.  583;  State  v.  De  Gress, 
72  Tex.  242;  East  Dallas  v.  State,  73 
Tex.  371;  Largen  v.  State,  76  Tex. 
323;  Betterton  v.  Echols  (1892),  85 
Tex.  212. 

Justices  of  the  Peace,  by  statute,  have 
a  maximum  limit  of  jurisdiction  of 
of  $100.  Johnson  v.  Happell  (1849),  4 
Tex.  96;  State  v.  Newhous  (1874),  41 
Tex.  185. 

United  ^tiXi&.— Supreme  Court  had 
formerly  a  minimum  limit  in  jurisdic- 
tion of  §2000.  U.  S.  V.  More  (1805),  3 
Cranch  (U.  S.)  159.  See  also  Rich- 
mond V.  Milwaukee  (1858),  21  How. 
(U.  S.)  80.  A  late  act  of  Congress 
(Feb.  1889)  has  increased  this  mini- 
mum to  $5000.  See  25  U.  S.  Sts.  693. 
By  the  act  of  Congress  of  April,  1816, 
in  appeals  from  the  Circuit  Court  of 
the  District  of  Columbia  to  the  U.  S. 
Supreme  Court  the  minimum  limit 
was  fixed  at  $1000.  Campbell  v.  Read 
(1864).  2  Wall.  (U.  S.)  198.  See  also 
Nicholls  V.  Hodges  (1828),  i  Pet.  (U. 
S.)  562.  By  act  of  March  3,  1885,  ap- 
peals from  the  Supreme  Courts  of  the 
Territories  and  the  Supreme  Court  of 
the  District  of  Columbia  were  depen- 
dent upon  the  general  established 
minimum  jurisdictional  amount  of 
$5000.  Street  v.  Ferry  (1886),  119  U. 
S.  385.   . 

Circuit  Courts  had  a  minimum  juris- 
dictional limit  of  8500.  Towne  v. 
Smith  (1S45),  I  Woodb.  &  M.  (U.  S.) 
115;  Kohl  V.  Hannaford  (1875),  4  Rec. 
(Ohio)  372.  By  act  of  Congress,  Aug. 
13,  1888,  correcting  act  of  March  3, 
1887,  this  was  increased  to  a  minimum 
limit  of  $2000.  Baker  z/.  Howell  (1890), 
44  Fed.  Rep.  113.  A  similar  note 
seems  desirable  to  be  here  inserted  to 
the  effect  that  cases  setting  forth  the 
statutory  limit  of  U.  S.  Supreme,  Cir- 


cuit, and  District  Courts  are  so  numer- 
ous and  are  so  fully  cited  elsewhere  in 
this  article  (see  ante,  titles  V.  Real 
Amount  and  VIII.  Aggregated 
Amount,  etc.,  and  notes)  that  it  would 
be  superfluous  to  repeat  them  here. 
By  act  of  Congress,  March  i,  1889,  U. 
S.  courts  in  Indian  Territory  w^ere  lim- 
ited in  their  civil  jurisdiction  to  a 
minimum  of  $100.  Gulf,  etc.,  R.  Co.  v. 
Washington  (1892),  49  Fed.  Rep.  347. 

Utah  Territory. — Justices  of  the  Peace 
have,  by  the  organic  act  of  Septem- 
ber 9th,  1850,  a  maximum  jurisdic- 
tional limit  of  $100.  Snow  v.  U.  S. 
(1873),  18  Wall.  (U.  S.)3i7. 

Vermont. — County  Courts. — The  stat- 
ute defining  their  jurisdiction  and  that 
of  justices  of  the  peace  was  at  one 
time  construed  to  give  them  concur- 
rent original  jurisdiction  therewith  in 
unliquidated  demands  above  §7  and 
under  $33.  Young  v.  Sanders  (1800), 
I  Tyler  (Vt.)  8.  This  was  subse- 
quently overruled,  and  it  was  held 
that,  in  such  demands  and  also  in 
liquidated  demands  to  a  maximum 
limit  of  §50,  their  jurisdiction  was  only 
appellate,  the  original  cognizance  of 
such  actions  residing  in  justices  alone. 
Glidden  v.  Elkins  (1801),  2  Tyler  (Vt.) 
218.  In  actions  of  trespass  to  the 
freehold  their  jurisdiction  was  limited 
by  statute,  passed  subsequently,  to  $20 
as  a  minimum.  Doubleday  v.  Marstin 
(1854),  27  Vt.  488. 

Justices  of  the  Peace  had  by  statute  at 
various  periods  a  maximum  original 
jurisdiction  in  civil  actions  of  respec- 
tively 833,  $53,  and  $100.  Carlton  v. 
Young  (1826),  I  Aik.  (Vt.)  332.  See 
also  Prindle  v.  Cogswell  (1837),  9  Vt. 
183;  Beach  v.  Boynton  (1853),  26  Vt. 
105.  By  the  act  of  1867  a  justice  of 
the  peace  has  a  maximum  limit  of 
$200  in  a  suit  between  adjoining  land- 
owners to  resover  damages  for  a  fail- 
ure to  build  and  repair  a  partition 
fence.       Hall   v.    Niles  (1872),   44    Vt. 

439-. 

Virginia. — Supreme  Court  of  Appeals 
had  by  Code,  ch.  182,  sec.  3,  in  force 
in  1851,  a  minimufn  appellate  jurisdic- 
tion of  $200.  McGruder  v.  Lyons 
(1851),  7  Gratt.  (Va.)  233.  Subse- 
quently, by  constitution,  art.  6,  sec.  2, 
this  minimum  limit  in  civil  cases  was 
increased  to  $500,  save  in  certain 
specified  exceptional  cases.  Meal  v. 
Com.  (1871),  21  Gratt.  (Va.)  511;  Mc- 
Crowell  V.  Burson  (1884),  79  Va.  290; 
Richmond,    etc.,    R.    Co.    v.    Knopffs 


748 


statutory  Amount.  AMO  UNT  IN  CONTRO  VERS  Y.      Local  Provisiona. 


(1890),  86  Va.  981;  Pattie  v.  Guggen- 
heimer,  86  Va.  993;  Atlantic,  etc.,  R. 
Co.  V.  Reid  (1890),  87  Va.  119;  Prince 
George's  Co.  v.  Atlantic,  etc.,  R.  Co., 
87  Va.  283;  Com.  V.  Chaffin,  87  Va.  545; 
Seller  v.  Reed,  88  Va.  377;  Patteson 
V.  McKinney  (1892),  88  Va.  748. 

County  Courts. — By  ist  Rev.  Code, 
sec.  55,  there  might  be  a  supersedeas 
therefrom  to  a  Circuit  Court  where  the 
value  of  a  judgment  amounted  to 
$33.33.  Clapman  v.  Lewis  (1789- 
1814),  I  Va.  Cas.  182.  By  Rev.  Code, 
ch.  69,  sec.  9,  County  Courts  have  a 
maximum  limit  of  $100  to  review  in 
any  manner  a  magistrate's  judgment, 
whether  by  appeal,  writ  of  error,  cer- 
tiorari, or  mandamus.  Hay  v.  Pistor 
(1830),  Leigh  (Va.)  707. 

Justices  of  the  Peace,  by  Code,  sec. 
2939,  have  a  maximum  limit  in  claims 
generally  of  $100;  in  claims  to  recover 
fines  their  maximum  is  $20.  Western 
Union  Tel.  Co.  v.  Pettyjohn  (1891),  88 
Va.  296. 

Washington. — Supreme  Court,  by 
Code  of  Procedure,  sec.  1402,  is  lim- 
ited to  a  minimum  of  $200  in  ap- 
peals in  civil  actions.  Tom  v.  Say- 
ward  (1892),  5  Wash.  383;  State  v. 
Fisher  (1892),  4  Wash.  382. 

Superior  Courts,  by  constitution, 
have  a  minimum  of  $100;  below  that 
sum  justices   of   the   peace  take  cog- 


nizance. Moore  v.  Perrott  (Wash.^ 
1891),  2  Wash.  I. 

West  Virginia. — Supreme  Court  of  Ap- 
peals is  limited  by  the  constitution  and 
statutes  to  a  minimum  jurisdiction  of 
$100  in  appeals,  writs  of  error,  certi- 
orari, and  mandamus.  Tompkins  v. 
Burgess  (1867),  2  W.  Va.  187;  Cleven- 
ger  V.  Dawson  (1879),  15  W.  Va.  348; 
Farnsworth  v.  Baltimore,  etc.,  R.  Co. 
(1886),  28  W.  Va.  815. 

Wisconsin  (Territory).— /wj/zV^j  of 
the  Peace. — By  organic  law  justices  of 
the  peace  had  a  maximum  limit  of 
$50  in  suits  on  accounts.  Woodward 
V.  Garner  (1847),  2  Pin.  (Wis.)  28; 
Syband  v,  Carson,  2  Pin.  (Wis.)  33. 
By  Wisconsin  Rev.  Statutes  this  was 
increased  to  $100.  Keegan  v.  Single- 
ton (1856),  5  Wis.  115.  See  also  Felt 
V.  Felt  (1865),  19  Wis.  193.  By  the 
laws  of  1870  this  was  still  further  in- 
creased to  a  maximum  of  $200.  How- 
ard V.  Mansfield  (1872),  30  Wis.  75. 
By  subsequent  enactment  in  actions  of 
account  the  maximum  limit  was  made 
$500.    Cuer  V.  Ross  (1880),  49  Wis.  652. 

Wyoming  Territory. — Justices  of  the 
Peace  were  limited  by  the  organic  law 
to  a  maximum  jurisdiction  of  $100  in 
civil  and  criminal  cases  not  involving- 
land  titles  and  not  amounting  to  felo- 
nies. Wolcott  V.  Territory  (1872),  i. 
Wyoming  Ter.  67. 


749 


ANOTHER  SUIT  PENDING. 

By  C.  C.  Moore. 

I.    As  A  GSOTJND  OF  ABATEMENT,  7  SO. 

1.  General  Statement  of  the  Rule,  750. 

a.  At  Law,  750. 

b.  In  Equity,  752. 

2.  A  Former  Suit,  752. 

3.  A  Pending  Suit,  754. 

4.  Between  the  Same  Parties,  757, 

5.  For  the  Same  Cause  of  Action,  761. 

6.  In  the  Same  Jurisdiction,  764. 

7.  Garnishments  in  Foreign  Jurisdictions,  765. 

8.  Where  the  Former  Suit  is  Defective,  766. 

n.  As  A  Gbotjnd  fob  Continuance  ob  Stat,  i^i 

1.  Continuance,  767. 

2.  Stay  of  Proceedings,  768. 

IIL  Taking  the  Objection,  770- 

1.  At  Comtnon  Law,  770. 

a.  Objection  How  Taken,  770. 

b.  At  What  Stage  of  Proceedings,  TJl. 

c.  Requisites  of  the  Plea,  771. 

d.  Proceedings  Subsequent  to  Plea,  772. 

2.  In  Equity,  77^,. 

3.  Under  Code  Systems,  77^. 

a.  Objection,  How  Taken,  775. 

b.  At  What  Stage  of  Proceedings,  775. 

c.  Answers  in  Abatement,  776. 

d.  Judgment  on  Sustaining  Answer,  776. 

4.  In  the  Admiralty,  776. 

I.  As  A  Gbottni)  of  Abatement— 1.  General  Statement  of  the  Rule 
—a.  At  Law. — It  is  an  ancient  rule  of  the  common  law  that  a 
man  shall  not  be  twice  vexed  for  one  and  the  same  cause  ;^  and 
the  pendency  of  a  former  suit  in  the  same  jurisdiction*  between 

1.  Sparry's  Case,  5  Coke  61.  abate,  *  *  *  but  it  is   said  that  all  the 

2.  Suit  in  Inferior  Court. — It  was  said  king's  courts  at  Westminster  have  been 
in  Sparry's  Case,  5  Coke  62a,  that  "if  time  out  of  mind,  etc.,  and  so  a  man 
a  man  brings  an  action  of  debt  by  bill  cannot  tell  which  of  them  is  the  most 
in  London  or  Norwich  or  in  any  other  ancient."  It  was  said  (^obi  er)  in  Browne 
inferior  court,  and  afterwards  brings  v.  Joy,  9  Johns.  (N.  Y.)  221,  that  ac- 
an  action  of  debt  in  the  Common  cording  to  the  doctrine  of  Sparry's 
Pleas,  this  suit  in  the  higher  court  Case,  5  Coke  62a,  a  plea  of  the  pen- 
which  is  brought  pending  the  suit  by  dency  of  an  action  in  the  Court  of 
bill    in    an    inferior    court   shall   not  Common  Pleas  of  a  county  would  not 


As  a  Oroiind 


ANOTHER  SUIT  PENDING. 


of  Abatement 


the  same  parties  for  the  same  cause  of  action  and  relief*  may  be 
pleaded  in  abatement  of  a  second  suit.*  The  term  "suit"  as 
herein  used  is  not  confined  to  altercations  at  common  law  or  in 
equity,  but  may  extend  to  proceedings  of  a  special  nature  where 
ample  remedy  is  afforded  thereby.^ 


abate  a  subsequent  suit  in  the  Su- 
preme Court  in  the  same  state.  Bul- 
lock V.  Bolles,  9  R.  I.  501,  and  Smith 
■V.  Atlantic  Mut.  F.  Ins.  Co.,  22 
N.  H.  24,  give  similar  currency  to  the 
ancient  rule.  But  see  Cleveland,  etc., 
R.  Co.  V.  Erie.  27  Pa.  St.  380;  Johnston 
V.  Bower,  4  Hen.  &  M.  (Va.)  487; 
Piatt  V.  Piatt,  Col.  &  C.  Cas.  (N.  Y.) 
42. 

1.  Actions  in  Rem  and  in  Personam. — 
A  party  may  proceed  by  suit  in  a  state 
court  and  by  a  proceeding  in  rem  in 
admiralty  at  the  same  time.  Certain 
Logs  of  Mahogany,  2  Sumn.  (U.  S.) 
589;  People  V.  Judges,   27  Mich.  406, 

15  Am.  Rep.  195;  Russell  v.  Alvarez, 
5  Cal.  48;  Wolf  V.  Cook,  40  Fed.  Rep. 
432. 

Bait  Pending  in  Equity. — A  former 
bill  pending  in  equity  cannot  be 
pleaded  in  abatement  of  a  subsequent 
action  at  law.      Blanchard   v.   Stone, 

16  Vt.  234;  Hatch  V.  Spofiford,  22 
Conn.  49S,  58  Am.  Dec.  433;  Colt 
V.  Partridge,  7  Met.  (  Mass.)  575; 
Denny  v.  Gardner,  2  Brev.  (S.  Car.) 
70;  Mattel  V.  Conant,  156  Mass.  418; 
Moore  v.  Peirce  (Va.,  1889),  9  S.  E. 
Rep.  1008;  Williamson  v.  Paxton,  18 
Gratt.  (Va.)  475;  Joslin  v.  Millspaugh, 
27  Mich.  517;  Kittredge  v.  Race,  92 
U.  S.  116;  Black  V.  Lackey,  2  B.  Mon. 
(Ky.)  257;  Julian  v.  Pilcher,  2  Duv. 
(Ky.)  254;  Copperthwait  v.  Dummer, 
18  N.  J.  L.  258;  Hogg  V.  Charlton,  25 
Pa.  St.  200;  Graham  v.  Meyer,  4 
Blatchf.  (U.  S.)  129;  Gambling  v. 
Haight,  59  N.  Y.  354;  Hall  v.  Ben- 
nett, 48  N.  Y.  Super.  Ct.  302; 
Heath  v.  Bates,  70  Ga.  633;  Haskins 
V.  Lombard,  16  Me.  140,  33  Am.  Dec. 
645;  Humphries  v.  Dawson,  38  Ala. 
199.  Compare  Warner  v.  Hopkins,  ill 
Pa.  St.  328,  56  Am.  Dec.  266.  And  the 
same  rule  prevails  where  courts  of 
law  and  equity  are  consolidated.  Paige 
V.  Wilson,  8  Bosw.  (N.  Y.)  294. 

2.  Hatch  V.  SpofTord,  22  Conn.  485,  58 
Am.  Dec.  433;  Wales  v.  Jones,  i  Mich. 
254;  Bond  V.  White,  24  Kan.  45;  Gams- 
by  V.  Ray,  52  N.  H.  513;  Wentworth  v. 
Barnum,  10  Johns.  (N.  Y.)238;  Rogers 
V.  Hoskins,  15  Ga.  270;  Thomas  v. 
Preelon,  17  Vt.  138;  Drea  z-.  Cariveau, 


28  Minn.  280;  Pennsylvania  R.  Co.  v. 
Davenport,  154  Pa.  St.  iii;  Dick  v. 
Gilmer,  4  La.  Ann.  520;  Ludewig's 
Succession,  3  Rob.  (La.)  92;  Gray  v. 
Atlantic,  etc.,  R.  Co.,  77  N.  Car.  299; 
Claywell  v.  Sudderth,  77  N.  Car.  287; 
Smith  V.  Moore,  79  N.  Car.  82.  In 
Texas  it  seems  to  be  a  mere  ques- 
tion of  costs.  Payne  v.  Benham,  16 
Tex.  364;  Trawick  v.  Martin  Brown 
Co.,  74  Tex.  522. 

Unauthorized  Suit. — The  pendency  of 
a  suit  instituted  against  the  plaintiff's 
instructions  by  an  attorney  with  whom 
a  note  was  left  for  collection  will  abate 
a  second  suit.  Briggs  v.  Gardner 
(Supreme  Ct.),  15  N.  Y.  Supp.  335. 

As  a  Defense  to  Counterclaim. — A  prior 
action  pending  may  be  pleaded  as  a 
defense  to  a  counterclaim.  Ansorge 
V.  Kaiser,  22  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  305. 

Election  of  Bemedies. — An  action  may 
constitute  a  conclusive  election  of 
remedies,  in  which  case  its  pendency 
seems  to  be  pleadable  as  a  defense  in 
bar  of  a  subsequent  suit.  Morris  v. 
Rexford,  18  N.  Y.  552;  Bach  v.  Tuch, 
126  N.  Y  53,  36  N.  Y.  St.  Rep.  363; 
afg  47  Hun  (N.  Y.)  536,  32  N.  Y.  St. 
Rep.  941,  27  N.  Y.  St.  Rep.  386,  7 
N.  Y.  Supp.  611;  Dickinson  v.  Van 
Horn,  9  Cal.  207.  See  also  Witty  v. 
Campbell,  44  N.  Y.  410;  Bowker  Fer- 
tilizer Co.  V.  Cox,  106  N.  Y.  555. 

3.  What  Constitutes  an  Action — Pro- 
ceeding by  Petition. — A  pending  proceed- 
ing by  petition,  where  full  relief  can 
be  had  thereon,  will  abate  a  subse- 
quent suit.  Groshon  v.  Lyon,  16  Barb. 
(N.  Y.)  461.  See  also  Garlock  v.  Van- 
devort,  128  N.  Y.  374. 

Mandamus. — In  California  a  plea  of 
the  pendency  of  another  suit  is  not 
applicable  to  proceedings  for  manda- 
mus. Calaveras  County  v.  Brock- 
way,  30  Cal.  325.  Contra  in  Nebraska 
and  Illinois.  State  v.  North  Lincoln 
St.  R.  Co.,  34  Neb.  634:  State  v.  Mat- 
ley,  17  Neb.  564;  People  v.  Chicago, 
53  111.  424.  See  also  People  v.  War- 
field,  20  111.  165;  People  V.  Wiant,  48 
111.  268. 

Presentation  of  Claims  against  Estate. 
— Where  a  statute  provided  for  filing 


751 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


b.  In  Equity. — The  general  rule  in  equity  is  the  same  as  at 
law,^  and  a  plea  of  a  former  suit  pending  will  be  good  if  it  be 
in  the  same  or  in  another  court  of  equity  in  the  same  jurisdic- 
tion.'-* 

2.  A  Former  Suit. — It  is  the  priority  and  not  the  mere  pendency 
of  a  suit  which  abates  a  second  ;  the  pendency  of  a  suit  subse- 
quently instituted  cannot  be  pleaded  either  in  abatement  or  in 


claims  against  a  decedent's  estate  by 
entering  them  upon  the  appearance 
docket  and  afterwards,  if  necessary, 
upon  the  issue  docket,  and  a  claim  so 
presented  was  allowed  by  the  adminis- 
trator, the  proceeding  was  held  to  be 
pleadable  in  abatement  of  a  subse- 
quent suit  against  the  administrator. 
Morgan  v.  Squier,  8  Ind.  511. 

Scire  facias. — A  scire  facias  to  make 
parties  is  merely  a  continuation  of  the 
principal  case  and  will  not  abate  un- 
der a  plea  setting  up  the  pendency  of 
another  scire  facias  between  the  par- 
ties for  the  same  purpose.  Heath  v. 
Bates,  70  Ga.  633. 

Execution  on  Judgment. — A  plea  set- 
ting forth  that  an  action  on  a  judg- 
ment was  commenced  while  the  plain- 
tiff therein  was  endeavoring  to  raise 
the  money  by  execution  would  be 
good.     Yantis  v.  Burdett,  3  Mo.  457. 

Submission  to  Arbitration. — A  com- 
mon-law submission  to  arbitration 
will  not  abate  a  subsequent  suit. 
Smith  V.  Compton,  20  Barb.  (N.  Y.) 
262.  Contra  in  case  of  statutory  sub- 
mission. Fahy  v.  Brannagan,  56  Me. 
42. 

Attachment  Suit. — An  attachment 
proceeding  is  a  "  suit  at  law,"  and  is 
abatable  by  the  pendency  of  a  suit  by 
petition  and  summons.  McKinsey  v. 
Anderson,  4  Dana  (Ky.)  62.  But  see 
I,  5,  note,  infra,  p.  761. 

Executory  Proceedings  in  Louisiana. — 
A  plea  of  lis  pendens  cannot  be  pleaded 
to  a  second  petition  for  executory  pro- 
cess where  no  proceedings  are  actu- 
ally pending  on  the  first.  Rousseau  v. 
Bourgeois,  28  La.  Ann.  186. 

Petition  for  New  Trial. — The  pen- 
dency of  a  petition  for  a  new  trial  will 
not  abate  a  suit  subsequently  insti- 
tuted by  the  petitioner.  Hughes  v. 
Elsher,  5  Fed.  Rep.  263. 

1.  Mutual  L.  Ins.  Co.  v.  Harris,  96 
U.  S.  588. 

2.  I  Daniell  Ch.  Pr.  (6th  ed.)  633; 
Behrens  v.  Sieveking,  2  Myl.  &  C.  602; 
Moore  v.  Holt,  3Tenn.  Ch.  141;  John- 
ston V.  Bower,  4  Hen.  &  M.  (Va.)  487; 


Curd  V.  Lewis,  i  Dana  (Ky.)  353.  See 
American  Bible  Soc.  v.  Hague,  4  Edw. 
Ch.  (N.  Y.)  117. 

Pendency  of  Action  at  Law. — To  af- 
ford good  ground  for  a  plea  in  equity 
the  former  suit  must  be  in  a  court  of 
equity  and  not  in  a  court  of  law.  Way 
V.  Bragaw,  16  N.  J.  Eq.  213,  84  Am. 
Dec.  147;  Chicago,  etc.,  R.  Co.  v. 
Heard,  44  Iowa  358;  Peak  v.  Bull,  8 
B.  Mon.  (Ky.)  428;  Curd  v.  Lewis,  i 
Dana  (Ky.)  353;  Hatch  v.  Spoflord,  22 
Conn.  485,  58  Am.  Dec.  433;  overrul- 
ing Hart  V.  Granger,  i  Conn.  154; 
Langstraat  v.  Nelson,  40  Fed.  Rep. 
783;  Fulton  V.  Golden,  25  N.  J.  Eq. 
353;  Gillett  V.  Smith,  18  Hun  (N.  Y.) 
10.  See  Lacustrine  Fertilizer  Co.  v. 
Lake  Guano,  etc.,  Co.,  82  N.  Y.  476; 
Peck  V.  Kirtz  (Supreme  Ct.),  15  N.  Y. 
St.  Rep.  598. 

Where  Law  and  Equity  are  Adminis- 
tered by  the  Same  Court. — An  action  at 
law  would  not  abate  a  subsequent  bill 
on  the  equity  side  of  the  same  court. 
Thorne  v.  Towanda  Tanning  Co.,  15 
Fed.  Rep.  289.  See  also  Paige  v.  Wil- 
son, 8  Bosw.  (N.  Y.)  294;  Guest  v.  By- 
ington,  14  Iowa  30.  Compare  San  ford 
V.  Cloud,  17  Fla.  532;  Payne  v.  Ben- 
ham,  16  Tex.  364;  Trawick  v.  Martia 
Brown  Co.,  74  Tex.  522. 

Action  in  Ecclesiastical  Court.  —  In 
Howell  V.  Waldron,  2  Ch.  Cas.  85,  an 
action  in  an  ecclesiastical  court  was 
held  not  to  affect  a  suit  in  chancery. 

Election. — A  court  of  equity  may  in 
proper  cases  compel  a  plaintiff  to  elect 
between  his  suit  in  chancery  and  a 
pending  action  at  law.  i  Beach  Mod- 
ern Eq.  Pr.  ^§  469,  470;  I  Foster  Fed. 
Pr.  (2d  ed.)  ^  295;  Way  v.  Bragaw,  16 
N.  J.  Eq.  213,  84  Am.  Dec.  147;  Gra- 
ham V.  Meyer,  4  Blatchf.  (U.  S.)  129; 
Howard  v.  Wilmington,  etc.,  R.  Co.,  2 
Harr.  (Del.)  471;  Mitchell  v.  Bunch,  2 
Paige  (N.  Y.)  606,  22  Am.  Dec.  669; 
Blanchard  v.  Stone,  16  Vt.  234;  Wil- 
liamson V.  Paxton,  18  Gratt.  (Va.)  475; 
Peruvian  Guano  Co.  v.  Bockwoldt,  23 
Ch.  Div.  225;  Blanchard  v.  Stone,  16 
Vt.  234.     See  Election  of  Remedies 


752 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement 


bar  to  a  prior  suit  between  the  same  parties  for  the  same  cause 
of  action.^  If  two  writs  be  sued  out  the  same  day  and  served  at 
different  times,  the  one  first  served  will  abate  the  other  ;*  and 
where  both  writs  bear  the  same  date,  parol  evidence  is  admissible 
to  prove  which  was  first  served.^ 

Suits  Simultaneously  Commenced. — But  if  both  suits  are  in  fact  com- 
menced at  the  same  point  of  time  on  the  same  day,  each  may  be 
pleaded  in  abatement  of  the  other,  and  both  be  defeated  ;*  or  the 
court  may,  in  its  discretion,  quash  both  upon  motion.* 


1.  Renner  v.  Marshall,  i  Wheat.  (U. 
S.)2i5;  Bacon  Abr.,  tit.  Abatement, 
(M);  Rizer  v.  Gillpatrick,  i6  Kan.  564; 
Callanan  v.  Port  Huron,  etc.,  R.  Co., 
61  Mich.  15;  Wood  V.  Lake,  13  Wis. 
84;  Sherwood  v.  Hammond,  4  Blackf. 
(Ind.)  504;  Webster  v.  Randall,  19 
Pick.  (Mass.)  13;  Humphries  v.  Daw- 
son, 38  Ala.  199;  Morton  v.  Webb,  7 
Vt.  123;  Bank  of  U.  S.  v.  Merchants' 
Bank,  7  Gill  (Md.)  415;  Middlebrook 
V.  Travis,  68  Hun  (N.  Y.)  155;  King  v. 
Phillips,  8  Bosw.  (N.  Y.)  603;  Welch 
V.  Sage,  47  N.  Y.  143,  7  Am.  Rep.  423. 
See  also  Republic  of  Mexico  v.  Arran- 
gois,  I  Abb.  Pr.  (N.  Y.)  437;  Ratzer  v. 
Ratzer,  2  Abb.  N.  Cas.  (N.  Y.  Supreme 
Ct.)  461;  Haight  V.  Holley,  3  Wend. 
(N.  Y.)  263;  Tippecanoe  County  v.  La- 
fayette, etc.,  R.  Co.,  50  Ind.  119; 
Wales  f.  Jones,  i  Mich.  254;  Blumen- 
thalz/.  Taylor,  44  111.  App.  139;  Green- 
wood V.  Rector,  i  Hempst.  (U.  S.)  708; 
Hooton  V.  Holt,  139  Mass.  54.  But  a 
judgment  in  the  second  suit  in  favor 
of  the  plaintiff  may  be  pleaded  in  bar 
of  a  recovery  on  the  same  cause  of  ac- 
tion. Nicholl  V.  Mason,  21  Wend.  (N. 
Y.)339;  North  Bank  f.  Brown,  50  Me. 
214,  79  Am.  Dec.  6og. 

Writ  of  Error  Subsequently  Sued  Out. — 
A  writ  of  error  to  a  judgment  in  a  prior 
action,  operating  as  a  supersedeas,  if 
sued  out  after  the  commencement  of 
the  second  action,  will  not  abate  the 
latter.  Mcjilton  v.  Love,  13  111.  494, 
54  Am.  Dec.  449;  Hailman  v.  Buck- 
master,  8  111.  498;  Jenkins  v.  Pepoon, 
2  Johns.  Cas.  (N.  Y.)  312;  Peynn  v. 
Edwards,  i  Ld.  Raym.  47.  See  also 
Althen  v.  Tarbox,  48  Minn.  18.  Com- 
pare Buchanan  v.  Logansport,  etc.,  R. 
W.  Co.,  71  Ind.  265.  In  such  a  case 
the  proper  course  is  to  apply  for  an 
order  to  stay  proceedings  until  the 
writ  of  error  is  disposed  of.  Hailman 
V.  Buckmaster,  8  111.  498.  A  plea  of 
the  pendency  of  an  appeal  in  the 
former  suit  *'  at  the  return  term  of  the 


writ  "  in  the  second  suit  was  held  suf- 
ficient. Boswell  V.  Tunnell,  10  Ala. 
958. 

Appeal  from  Order  Denying  Injunction. 
— The  pendency  of  an  appeal  from  a 
judgment  denying  an  injunction  does 
not  affect  the  right  of  the  defendant 
to  proceed  against  the  plaintiff  touch- 
ing matters  involved  in  the  suit  for 
injunction.  The  appeal  does  not  have 
the  effect  of  granting  the  injunction. 
Smith  V.  Tobener,  32  Mo.  App.  601. 

Subsequent  Suit  Inadmissible  as  Evi- 
dence.— The  pendency  of  the  second 
suit  is  not  admissible  in  mitigation  of 
damages  upon  the  trial  of  the  first. 
Sherwood  v.  Hammond,  4  Blackf. 
(Ind.)  504. 

Certainty  Beqaired  in  Answer.  —  An 
answer  alleging  that  there  is  another 
suit  pending,  etc.,  but  not  alleging 
w^hen  it  was  commenced,  is  bad  on 
demurrer.  Eiceman  v.  Leonard,  75 
Ind.  46. 

2.  Morton  v.  Webb,  7  Vt.  123;  Town- 
send  V.  Chase,  i  Cow.  (N.  Y.)  115. 

3.  Davis  V.  Dunklee,  9  N.  H.  545. 

4.  Beach  v.  Norton,  8  Conn.  71; 
Davis  V.  Dunklee,  9  N.  H.  545. 

At  Different  Times  on  Same  Day. — If 
they  are  served  at  different  times  on 
the  same  day,  it  seems  that  only  the 
second  will  abate.  Morton  v.  Webb, 
7  Vt.  123;  Davis  V.  Dunklee,  9  N.  H. 
545,  disapproving oi  Pie  v.  Coke,  Hobart 
128,  the  authority  of  which  was  shaken 
in  Combe  v.  Pitt,  3  Burr.  1434,  i 
W.  Bl.  437.  Compare  Middlebrook  v. 
Travis,  68  Hun  (N.  Y.)  155,  where 
both  suits  were  commenced  on  the 
same  day,  and  it  was  held  that,  as  the 
law  does  not  regard  fractions  of  a  daj', 
the  judge  was  not  precluded,  upon  the 
second  action  being  first  ready  for 
trial,  from  proceeding  to  judgment, 
although  the  defendant  had  pleaded 
the  pendency  of  the  first  action. 

6.  Davis  V.  Dinklee,  9  N.  H.  545, 
holding  also  that  if  the  defendant  can- 


I  Encyc.  PI.  &  Pr.— 48. 


753 


As  a  Ground 


ANOTHER  SUIT  FENDING. 


of  Abatement. 


3.  A  Pending  Suit — Commencement  of  Suit. — In  order  to  constitute 
a  former  action  pending,  so  as  to  abate  a  second,  it  must  appear 
that  the  prior  action  had  been  technically  "commenced  "  when 
the  latter  action  was  instituted  ;'    and  the  plea  must  aver  and  the 


not  readily  ascertain  the  priority  he 
may  apply  to  the  court,  and  the  plain- 
tiff may  be  called  upon  to  furnish  evi- 
dence that  one  of  the  suits  was  in  fact 
commenced  before  the  other,  and  if 
this  is  not  shown  the  court  may  well 
adjudge  that  the  defendant  shall  an- 
swer neither;  citing  Pie  v.  Coke,  Moore 
864,  Hobart  128. 

1.  Writ  Not  Eeturned.  —  Com.  v. 
Churchhill,  5  Mass.  174,  holds  that  the 
writ  in  the  suit  pleaded  in  abatement 
must  be  returned  and  entered  before 
it  can  be  pleaded,  and  that  until  then 
it  cannot  be  said  to  be  pending  in 
court. 

Distinctions  between  Writs. — After  the 
writ  was  returned,  however,  the  old 
books  made  a  difference  between  writs 
which  comprehend  certainty,  as  a  debt 
determined,  and  writs  which  compre- 
hend no  certainty,  as  in  writs  of  tres- 
pass for  goods,  assize,  etc.  If  certain, 
it  was  a  good  plea  to  say  tihe  writ  was 
brought  pending  another;  but  in  writs 
personal  or  mixed,  where  no  certainty 
is  contained,  then  it  was  no  plea.  But 
after  declaration  it  was  made  certain, 
and  then  the  plea  was  good,  the  gener- 
ality being  reduced  to  certainty.  Bul- 
lock V.  BoUes,  9  R.  I.  503.  See  also 
Reg.  V.  Harris,  Cro.  Eliz.  261;  Armi- 
tage  V.  Row,  12  Mod.  gi. 

When  a  Summons  Insufficient  Without 
a  Complaint. — Where,  in  an  action  upon 
a  note  for  §30  (among  other  things), 
the  answer  set  up  as  a  defense  that 
there  was  another  pending,  etc.,  upon 
that  note,  and  it  appeared  that  an  ac- 
tion had  been  brought  by  the  plaintiff 
against  the  defendant,  in  which  a  sum- 
mons had  been  issued  and  served,  but 
in  which  no  complaint  had  been  served 
or  filed,  it  was  held  that  this  proof 
was  insufficient  to  sustain  the  plea,  as 
it  did  not  show  that  the  first  suit  was 
pendingon  that  note,  and  that  this  could 
only  be  shown  by  proving  that,  follow- 
ing the  summons,  a  complaint  had 
been  made  on  the  note.  Hoag  v. 
Weston  (Supreme  Ct.),  10  N.  Y.  Civ. 
Pro.  Rep.  92.  To  the  same  effect  see 
Phelps  V.  Gee,  29  Hun  (N.  Y.) 
202. 

Arrest  upon  Capias. — That  the  de- 
fendant was  arrested  upon  a  capias  is 


not  a  good  plea  of  a  former  action 
pending;  and  it  not  appearing  that  a 
declaration  had  been  filed  or  served, 
the  pleading  is  not  helped  by  the  aver- 
ment that  the  capias  was  for  the  same 
identical  cause  of  action.  Gardner  v. 
Clark,  21  N.  Y.  399. 

Process  Necessary. — It  is  necessary  to 
show  that  process  was  issued  in  the 
former  action.  Primm  v.  Gray,  loCal. 
522.  If  no  summons  was  issued  on 
the  former  complaint,  and  there  was 
no  voluntary  appearance  on  the  part 
of  the  defendant  therein,  it  is  not 
pending.  Weaver  v.  Conger,  10  Cal. 
233;  Warner  v.  Warner  (Supreme  Ct.), 
27  N.  Y.  Supp.  160,  6  Misc.  Rep.  249, 
an  action  for  partition,  in  which  no 
summons  was  served  on  one  of  the  de- 
fendants, who  subsequently  brought 
a  suit  for  the  same  matter  against  the 
other  parties.  Utica  Clothes  Dryer 
Mfg.  Co.  V.  Otis,  37  Hun  (N.  Y.)  301, 
a  similar  case.  Papers  purporting  to 
be  a  complaint  and  answer  in  an  action 
similarly  entitled,  but  not  shown  to 
have  been  filed,  served,  or  used  in 
any  action,  with  no  evidence  of  a  sum- 
mons, are  insufficient  to  support  a  plea 
of  another  action  pending.  Woodard 
V.  Stark  (S.  Dak.,  1894),  57  N.  W. 
Rep.  496.  Where  a  complaint  is  set 
aside  with  leave  to  serve  an  amended 
complaint  and  summons  on  payment 
of  costs,  which  is  not  done,  the  action 
is  not  deemed  pending.  Owens  v. 
Loomis,  19  Hun  (N.  Y.)6o6.  Whether 
after  an  action  has  been  commenced 
and  an  attachment  made  of  the  defend- 
ant's property,  but  no  summons  left 
and  the  action  has  not  been  entered, 
a  plea  in  abatement  for  another  action 
pending  can  be  sustained,  ^?<^r^.  Ben- 
nett V.  Chase,  21  N.  H.  570. 

Defect  of  Jurisdiction. — Where  the 
only  jurisdiction  over  the  defendant  in 
the  former  suit  (in  equity)  was  ac- 
quired by  an  answer  filed  in  his  be- 
half without  his  consent,  its  pendency 
was  held  to  be  no  bar  to  a  suit  by  him 
as  complainant  for  matters  involved  in 
the  first  suit.  Cray  v.  Johnson  (N.  J,, 
1890),  20  Atl.  Rep.   212. 

As  to  What  Constitutes  the  Commence- 
ment of  a  Suit,  see  generally  Actions, 
ante',  p.  119. 


754 


Ab  a  Ground 


ANOTHER  SUIT  PENDrNG. 


of  Abatement. 


proof  affirmatively  show  that  the    former   action    is   still   pend- 
ing.* 

Discontinuance  or  Dismissal. — Formerly  the  only  question  was  whether 
at  the  time  of  suing  out  the  second  writ  there  was  a  writ  in  being, 
and  it  was  held  to  be  no  answer  to  the  plea  that  the  first  suit  was 
ended  when  the  plea  was  put  in  ;*  but  the  prevailing  rule  now  is 
that  the  discontinuance  or  dismissal  of  the  first  suit  after  the  com- 
mencement of  the  second  may  be  set  up  in  reply  to  the  plea,  and 
thus  defeat  an  abatement.^     So  where  the  former  proceeding  is 

Where    Former    Summons    Quashed. — 


1.  Bancroft  v.  Eastman,  7  111.  264; 
Hadden  v.  St.  Louis,  etc.,  R.  Co.,  57 
How.  Pr.  (N.  Y.  Supreme  Ct.)  390; 
O'Beirne  v.  Lloyd,  i  Sweeney  (N.  Y.) 
ig.  "  The  effective  part  of  such  a  plea 
is  that  the  action  is  still  pending.  *  *  * 
There  is  no  presumption  of  law  that 
a  suit  once  pending  is  still  pending." 
Phelps  V.  Winona,  etc.,  R.  Co.,  37 
Minn.  485,  5  Am.  St.  Rep.  867;  To- 
land  V.  Tichenor,  3  Rawle  (Pa.)  323; 
Lewis  V.  Higgins,  52  Md.  614;  Wales  v. 
Jones,  I  Mich.  254;  Fitzgerald  v.  Gray, 
b\  Ind.  log. 

Sufficiency  of  Averment. — An  aver- 
ment that  another  action  had  been 
brought  and  removed  to  a  federal 
court,  that  no  order  had  been  made 
dismissing  it,  and  that  the  defendant 
had  not  stipulated  that  it  should  be 
dismissed  does  not  fully  aver  that  the 
action  is  pending.  Hawley  v.  Chi- 
cago, etc.,  R.  Co.,  71  Iowa  717.  But 
if  the  plea,  states  that  the  suit  is  still 
pending,  it  need  not  allege  that  it  was 
not  discontinued  before  the  plea  was 
filed.  Nelson  v.  Foster,  5  Biss.  (U.  S.) 
44.  Compare  on  ^  this  point  Craig  v. 
Smith,  10  Colo.  220;  Yentzer  v,  Thayer, 
10  Colo.  63. 

Parol  Evidence  of  Pendency. — The  pen- 
dency of  a  suit  in  a  court  of  record  can 
only  be  proved  by  record  evidence,  not 
by  parol  testimony.  Smiley  v.  Dewey, 
17  Ohio  156,  where  it  was  sought  to 
introduce  parol  evidence  that  an  ap- 
peal had  been  taken  and  was  pending. 
Smith  V.  Ricketts,  Liv.  Opin.  (N.  Y.) 
27;  Wright  z*.  Maseras,  56  Barb.  (N.  Y.) 
521.  Compare  Damon  v.  Denny,  54 
Conn.  253. 

Erroneous  Dismissal  of  Former  Suit. — 
An  erroneous  dismissal  puts  an  end  to 
the  suit;  but  as  to  the  effect  of  an  ap 


Where  a  summons  has  been  quashed 
the  suit  is  no  longer  pending.  Clark 
V.  Ballou,  I  Pa.  Dist.  Rep.  430. 

Judgment  on  Demurrer  in  Former  Suit. 
— A  suit  which  has  proceeded  to  final 
judgment  on  demurrer  against  the 
plaintiff  is  no  longer  pending  where  no 
appeal  has  been  taken;  and  an  appeal 
taken  subsequently  to  the  institution 
of  the  second  suit  will  not  relate  to  the 
entry  of  the  judgment  appealed  from 
so  as  to  defeat  the  plaintiff's  second 
action  intermediate  the  judgment  and 
the  appeal.  Porter  v.  Kingsburv,  77 
N.  Y.  165. 

Former  Action  Abated  by  Death. — An 
action  for  damages  for  an  injury  to 
the  person  of  the  plaintiff  abates  by 
his  death,  and  the  pendency  thereof 
cannot  be  pleaded  in  abatement  of  an 
action  brought  by  his  personal  repre- 
sentative for  damages  resulting  from 
his  death.  Indianapolis,  etc.,  R.  Co.  v. 
Stout,  53  Ind.  143. 

2.  Bac.  Abr.,  tit.  Abatement  (M.);  39 
Hen.  VI,  12,  pi.  16;  Com.  v.  Churchill, 
5  Mass.  174;  Parker  v.  Colcord,  2  N.  H. 
36.  See  also  Gamsbv  v.  Ray,  52  N.  H. 
513- 

3.  Porter  z'.  Kingsbury,  77  N.  Y.  165; 
Crossman  v.  Universal  Rubber  Co., 
131  N.  Y.  636;  Leavitt  v.  Mowse,  54 
Md.  613;  Adams  v.  Gardiner,  13  B.  M'on. 
(Ky.)  ig7.  See  also  Crossman. z'.  Uni- 
versal Rubber  Co.,  127  N.  Y.  34;  Hyatt 
V.  Ingalls,  124  N.  Y.  g3;  Clark  v.  Com- 
ford,45  La.  Ann.  502.  Contra,  G&vasby 
V.  Ray,  52  N.  H.  513;  Parker  v.  Col- 
cord, 2  N.  H.  36. 

Nunc  Pro  Tunc  Order  of  Discontinuance. 
— An  order  of  nonsuit  in  a  former 
action,  entered  subsequently  to  the 
institution  of  the  second  suit,  but  nunc 


peal  from  such  dismissal  in  restoring    pro  tunc  as   of   a   date  prior  thereto, 


the  action,  qucere.  Lord  v.  Ostrander, 
43  Barb.  (N.  Y.)  337.  If  the  appeal 
were  void,  doubtless  it  would  be  in- 
operative for  any  purpose.  Bailey  v. 
Bremond,  7  Tex.  537. 


operates  to  prevent  the  pendency  of  the 
first  action,  and  cannot  be  impeached 
collaterally  by  plea  in  abatement  in 
the  second  suit.  Wilson  v.  Pearson, 
102  N.  Car.  2go.     The  same  point  was 


755 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


in  rem,  if  it  be  shown  that  it  has  been  finally  disposed  of  without 
producing  sufiticient  to  pay  the  debt,  the  plaintiff  may  proceed  ta 
trial  and  judgment  in  the  later  action.* 

Evidence  of  Termination. — But  in  all  such  cases  the  evidence  of  the 
termination  of  the  earlier  action  or  proceeding  must  be  in  the 
form  of  some  judicial  declaration  to  that  effect.* 

Writ  of  Error  or  Appeal. — The  pendency  of  a  writ  of  error  or  an 
appeal  from  a  judgment  in  a  former  suit,  w^here  it  operates  as  a 


decided  in  Boland  v.  Benson,  50  Wis. 
225. 

Discontinuance  After  Plea. — Accord- 
ing to  the  later  cases,  the  objection  of 
a  former  suit  pending  is  removed  by 
its  dismissal  or  discontinuance,  even 
after  plea  in  abatement  in  the  second 
suit.  Beals  v.  Cameron,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  414;  Averill  v. 
Patterson,  10  How.  Pr.  (N.  Y.  Ct.  of 
App.)  85,  ID  N.  Y.  500;  Marston  v. 
Lawrence,  i  Johns.  Cas.  (N.  Y.)  397; 
Smith  V.  White,  7  Hill  (N.  Y.)  520; 
Trow's  Printing,  etc.,  Co.  v.  New  York 
Book-Binding  Co.  (City  Ct.),  3  N.  Y. 
Supp.  59;  O'Beirne  v.  Lloyd,  i  Sweeney 
(N.  Y.)  19;  Warder  v.  Henry,  117  Mo. 
530;  Rogers  v.  Hoskins,  15  Ga.  270; 
Norfolk,  etc.,  R.  Co.  v.  Nunnally,  88 
Va.  546;  Chamberlain  v.  Eckert,  2  Biss. 
(U.  S.)  124;  Trawick  v.  Martin  Brown 
Co,,  74  Tex.  522;  Payne  v.  Benham,  16 
Tex.  367;  Grider  v.  Apperson,  32  Ark. 
332;  Findlay  v.  Keim,  62  Pa.  St.  112. 

^Contra. — Frogg  z/.  Long,3  Dana(Ky.) 
157,  28  Am.  Dec.  69.  See  also  Demond 
V.  Crary,  i  Fed.  Rep.  480;  Knight's 
Case,  I  Salk.  329;  Hopkins  v.  Ludlow, 
I  Phila.  (Pa.)  272.  Curtis  v.  Piedmont 
Lumber,  etc.,  Co.,  109  N.  Car.  401, 
seems  to  adhere  to  the  old  and  almost 
universally  discarded  rule.  But  com- 
pare Wilson  V.  Pearson,  102  N.  Car. 
290. 

Discontinnance  Before  Trial.  —  Many 
cases  go  further  and  hold  that  a  dis- 
missal or  discontinuance  of  the  former 
action  at  any  time  before  the  question 
as  to  its  pendency  actually  comes  be- 
fore the  court  for  trial  removes  the 
bar.  Moorman  v.  Gibbs,  75  Iowa  537; 
Ball  V.  Keokuk,  etc.,  R.  Co.,  71  Iowa 
306;  Rush  V.  Frost,  49  Iowa  183;  over- 
rulin^  Rawson  v.  Guiberson,  6  Iowa 
507;  Dyer  v.  Scalmanim,  69  Cal.  637; 
Butler  V.  Jarvis,  51  Hun  (N.  Y.)  248; 
Nichols  V.  State  Bank,  45  Minn.  102; 
Paget/.  Mitchell,  37 Minn.  368;  Schmidt 
V.  Braunn,  10  La.  Ann.  26;  Warder  v. 
Henry,  117  Mo.  530,  holding  that  the 
dismissal  may  be  set  up  in  an  amended 


reply.  See  also  Williamson  v.  Paxton, 
18  Gratt.  (Va.)  504. 

In  Swart  v.  Borst,  17  How.  Pr.  (N.Y.- 
Supreme  Ct.)  69,  it  was  held  that  in 
order  to  make  the  discontinuance  of 
the  first  suit  effectual  as  an  answer  to 
the  defendant's  plea,  the  plaintiff  must 
at  least  discontinue  by  the  time  that 
the  issue  is  regarded  as  perfected  and 
the  cause  noticed  for  trial  in  the  sec- 
ond suit. 

Striking  Out  Answer  as  Sham. — Where 
an  answer  sets  up  the  defense  of  an- 
other action  pending,  which  allegation, 
though  true  at  the  time  the  answer  is- 
served,  is  untrue  at  the  time  of  notic- 
ing a  motion  to  strike  out  the  defense 
by  reason  of  an  order  for  discontinu- 
ance having  been  entered  in  the  mean- 
time, that  part  of  the  answer  will  be 
stricken  out  as  sham.  Clark  v.  Clark, 
7  Robt.  (N.  Y.)  276. 

1.  Grossman  v.  Universal  Rubber 
Co.,  131  N.  Y.  636,  holding  that  there 
must  be  record  evidence  that  the 
former  proceeding  has  not  resulted  in 
a  recovery  of  the  debt. 

2.  Grossman  v.  Universal  Rubber 
Co.,  131  N.  Y.  636;  Averill  v.  Patter- 
son, 10  How.  Pr.  (N.  Y.  Ct.  of  App.) 
85,  holding  that  a  notice  in  writ- 
ing is  not  equivalent  in  this  behalf 
to  an  order  of  discontinuance,  but 
that  a  reply  setting  up  a  discontinu- 
ance need  not  aver  payment  of  costs 
where  it  does  not  appear  that  the 
defendants  appeared  in  the  first  suit. 
O'Beirne  v.  Lloyd,  i  Sweeney  (N.  Y.) 
ig;  Trow's  Printing,  etc.,  Co.  v.  New 
York  Book-Binding  Co.  (City  Ct.),  3 
N.  Y.  Supp.  59,  where  the  practice  is 
stated.  See  also  Gamsby  v.  Ray,  52 
N.  H.  513- 

Payment  of  Costs  in  First  Suit. — As  to 
the  necessity  of  payment  of  costs  in 
the  first  suit  to  give  validity  to  an  or- 
der of  discontinuance,  see  White  v. 
Smith,  4  Hill  (N.  Y.)  166,  modified  on 
appeal  in  7  Hill  (N.  Y.)  520;  Trow's 
Printing,  etc.,  Co.  v.  New  York  Book- 
Binding  Co.(City  Ct.),  3  N.Y.  Supp.  59. 


756 


As  a  Gr9Tmd 


ANOTHER  SUIT  PENDING. 


of  Abatementc 


supersedeas,  may  be  pleaded  in  abatement  of  a  subsequent  suit 
between  the  same  parties  for  the  same  subject-matter.* 

Keversal  on  Appeal. — A  former  suit  is  still  pending  although  the 
judgment  therein  has  been  reversed  on  appeal  and  the  cause 
remanded  for  further  proceedings.* 

4.  Between  the  Same  Parties. — substantial  identity.— The  pendency 
of  a  suit  will  not  abate  one  subsequently  brought  unless  there  be 
a  substantial  identity  of  parties.' 

of  error  in  abatement  of  a  suit  on  the 
judgment  must  conclude  clearly  in 
abatement  and  not  in  bar.  And  that 
the  appeal  was  taken  and  a  supersedeas 
bond  filed  prior  to  the  commencement 
of  the  present  suit.  Althen  v.  Tarbox, 
48  Minn.  18;  I,  2,  note  i,  p.  753,  supra, 

2.  Gregory  v.  Gregory,  33  N.  Y. 
Super.  Ct.  I.  ■ 

Objection  when  Taken  by  Demurrer. — 
If  such  facts  appear  on  the  face  of  the 
complaint  in  the  second  suit,  it  is  de- 
murrable. Capehart  v.  Van  Campen, 
ID  Minn.  158. 

Final  Keversal  on  Appeal. — A  former 
judgment  wholly  reversed  in  error  is 
no  defense  to  a  subsequent  suit  for 
the  same  cause  of  action.  Smock  v. 
Graham,  i  Blackf.  (Ind.)  314. 

3.  JVew  York. — Geery  v.  Webster,  11 
Hun  (N.  Y.)  428;  Egan  v.  Laemmle  (C. 
PI.),  25  N.  Y.  Supp.  330;  Commercial 
Bank  v.  Heilbronner,  52  N.  Y.  Super. 
Ct.  388;  Baker  J/.  Baker  (Supreme  Ct.), 
23  N.  Y.  Supp.  1083;  Keeler  v.  Brook- 
lyn El.  R.  Co.,  9  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.)  166;  Auburn  City  Bank 
V.  Leonard,  20  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  193;  Raven  v.  Smith  (Su- 
preme Ct.),  24  N.  Y.  Supp.  6or. 

Io7va. — Jones  v.  Brandt,  59  Iowa  332. 

Connecticut. — Hatch  v.  Spofiford,  22 
Conn.  485. 

Indiana. — Smith  v.  Blatchford,2  Ind. 
184,  52  Am.  Dec.  504;  Bryan  v.  Scholl, 
109  Ind.  367. 

Nebraska. — McReady  v.  Rogers,  i 
Neb.  124,  93  Am.  Dec.  333. 

West  Vir.gittia. — See  v.  Rogers,  31 
W.  Va.  473. 

Pennsylvania. — Cornelius  v.  Vanars- 
dallen,  3  Pa.  St.  435;  Blackburn  v. 
Watson,  85  Pa.  St.  241;  Streaper  v. 
Fisher,  i  Rawle  (Pa.)  155.  18  Am.  I>ec. 
604;  King  V.  Blackmore,  72  Pa.  St. 
347,  13  Am.  Rep.  684. 

California. — Calaveras  County  v. 
Brock  way,  30  Cal.  325;  Kerns  v.  Mc- 
Kean,  65  Cal.  416. 

United  States. — Massachusetts  Mut. 
L.  Ins.  Co.  V.  Chicago,  etc.,  R.  Co.,  13 


1.  Fisk  V.  Atkinson  71  Cal.  452; 
Hailman  v.  Buckmaster,  8  111.  498; 
Merritt  v.  Richey,  100  Ind.  416;  Peck 
V.  Hotchkiss,  52  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  226.  Compare  Walker  v. 
Heller,  73  Ind.  46.  As  to  the  effect  of 
a  writ  of  error  subsequently  sued  out, 
see  I,  2,  supra,  p.  753,  note   i. 

Void  Appeal. — A  void  appeal  or  mo- 
tion for  new  trial  cannot  have  the 
effect  of  protracting  the  pendency  of 
the  former  suit.  Bailey  v.  Bremond, 
7  Tex.  537;  Haviland  v.  Wehle,  11 
Abb.  Pr.  N.  S.  (N.  Y.  C.  PI.)  449,  an 
appeal  from  a  judgment  of  dismissal, 
the  original  court  having  no  jurisdic- 
tion. 

Bill  to  Beinstate  an  Appeal. — A  bill  in 
chancery  to  reinstate  an  appeal  that 
has  been  dismissed  is  not  available 
in  abatement  of  an  action  upon  the 
appeal  bond.     Evans  v.  Lingle,  55  111. 

455- 

Dismissal  of  Appeal  &om  Order  of  Non- 
suit.— Where  an  appeal  from  an  order 
of  nonsuit  has  been  dismissed  or 
abandoned,  the  order  of  non- 
suit and  not  the  dismissal  of  the 
appeal  is  to  be  regarded  as  the  legal 
termination  of  the  suit;  and  the  pen- 
dency of  the  appeal  cannot  be  pleaded 
in  abatement  of  a  new  action  brought 
in  the  interval  between  the  order  of 
nonsuit  and  the  dismissal  of  the  ap- 
peal. Trimmier  v.  Trail,  2  Bailey  (S. 
Car.)  480. 

Pleading. — A  plea  in  abatement  must 
show  that  the  appeal  has  been  per- 
fected by  the  necessary  steps.  Fitz- 
gerald V.  Gray,  61  Ind.  109;  Morgan 
County  V.  Holman,  34  Ind.  256;  Jen- 
kins V.  Pepoon,  2  Johns.  Cas.  (N.  Y.) 
312.  And,  in  case  of  a  writ  of  error, 
that  all  the  necessary  steps  were  taken 
to  make  it  a  supersedeas,  as,  for  in- 
stance, in  Jenkins  v.  Pepoon,  2  Johns. 
Cas.  (N.  Y.)  312,  that  a  copy  of  the 
writ  of  error  for  the  adverse  party  was 
lodged  in  the  clerk's  office  within  the 
time  limited  by  statute;  the  same  case 
holding  that  a  plea  of  a  pendio     writ 


757 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement, 


-The  plaintiffs,  at  least,  in  each  suit  must  be 


Identity  of  Flaintiffs.- 
the  same.* 

Fed.  Rep.  857;  Jenkins  v.  Eldridge,  3 
Story  (U.  S.)  181,  183. 

Kansas. — Mullen  v.  Mullock,  22  Kan. 
598;  Rizer  v.  Gillpatrick,  16  Kan.  564. 

In  Wood  V.  Lake,  13  Wis.  84,  the 
rule  was  stated  to  be  that  the  par- 
ties must  be   the    same,  as    plaintiffs    /r/w«y««V  an  objection  to  the  plea." 


V.  Mitchell,  5  Abb.  Pr.  (N.  Y.  Super. 
Ct.)  453;  Hood  V.  Hayward  (Supreme 
Ct.)  I  N.  Y.  Supp.  566;  Redfearn  v. 
Austin,  88  N.  Car.  413;  Converse  v. 
Michigan  Dairy  Co.,  45  Fed.  Rep.  18. 
"  That    the    plaintiffs  are  different    is 


and  defendants.  Similar  expressions 
are  to  be  found  in  other  cases.  Her- 
tell  V.  Van  Buren,  3  Edw.  Ch.  (N.  Y.) 
20;  Estes  z'.  Worthington,  30  Fed.  Rep. 

465-    . 

Election  Contest  and  Quo  Warranto. — 
The  fact  that  a  contest  proceeding  be- 
tween two  parties  claiming  a  public 
office  is   pending    does  not   affect   the 


Smith    V.    Blatchford,   2    Ind.    184,   52 
Am.  Dec.  504. 

Co-plaintiffs. — In  Heilbron  v.  Fow- 
ler Switch  Canal  Co.,  75  Cal.  426,  it 
was  held  that  the  plaintiffs  must  be 
entirely  the  same;  and  where,  being 
originally  the  same  in  the  first  action, 
a  co-plaintiff  was  added  therein  by 
amendment,   a    plea    in  abatement   in 


right  of  the  state   to  proceed    by    in-     tne  second  action  was  overruled.   See, 


formation  against  the  incumbent. 
Vogel  V.  State,  107  Ind.  374. 

Test  of  Identity. — The  identity  of  the 
parties,  case,  and  relief  must  be  such 
that  a  judgment  therein  can  be  pleaded 
in  bar  as  a  former  adjudication.  Wat- 
son V.  Jones,  13  Wall.  (U.  S.)  679; 
Beyersdorf  v.  Sump,  39  Minn.  495, 
12  Am.  St.  Rep.  678;  Moore  v.  Holt,  3 
Tenn.  Ch.  141;  Parsons  v.  Greenville, 
etc..  R.  Co.,  I  Hughes  (U.  S.)  279; 
Dawson  z/.  Vaughan,  42  Ind.  395;  Mat- 
tel V.  Conant,  156  Mass.  418.  The 
pendency  of  an  action  of  trespass 
against  a  deputy  sheriff  for  his  wrong- 
ful act  done  under  color  of  his  office 
cannot  be  pleaded  in  abatement  of  an 
action  against  the  sheriff  for  the  same 
cause.     Severy  v.  Nye,  58  Me.  £46. 

1.  Thomas  v.  Freelon,  17  Vt.  138; 
O'Connor  v.  Blake,  29  Cal.  312;  Ayres 
V.  Bensley,  32  Cal.  620;  Felch  v. 
Beaudry,  40  Cal.  440;  Loyd  v.  Rey- 
nolds, 29  Ind.  299;  Langham  v.  Thom- 
ason,  5  Tex.  127;. Certain  Logs  of  Ma- 
hogany, 2  Sumn.  (U.  S.)  589;  Wadleigh 
V.  Veazie,  3  Sumn.  (U.  S.)  165;  Wood 
^/.Lake,  13  Wis.  84;  Osborn  v.  Cloud.  23 
Iowa  104,  92  Am.  Dec.  413;  Casey  v. 
Harrison,  2  Dev.  (N.  Car.)  244;  Hall  v. 
Holcombe,  26  Ala.  720;  Dawson  v. 
Vaughan,  42  Ind.  395;  Moore  v.  Holt,  3 
Tenn.  Ch.  141;  Bennett  v.  Chase,  21 
N.  H.  584;  Wadleigh  v.  Pillsbury, 
14  N.  H.  373.  See  also  Brooks  v.  Mills 
County,  4  Dill.  (U.  S.)  524;  Fink  v.  Al- 
len, 36  N.Y.  Super.  Ct.  350;  Mandeville 
V.  Avery,  124  N.  Y.  376,  21  Am.  St. 
Rep.  678;  Copley  Iron  Co.  v.  Pope,  3 
Daly  (N.  Y.)  144,  108  N.  Y.  232;  Hor- 
ton  V.  Bassett,  17  R.  I.  129;  Treasurers 
V.  Bates,  2  Bailey  (S.  Car.)  382;  Hecker 


however,  Ritter  v.  Worth,  58  N.  Y. 
627.  Davis  V.  Hunt,  2  Bailey  (S.  Car.) 
412,  holds  that  the  plaintiffs  must  not 
only  be  the  same,  but  the  same  on  the 
record.  On  this  point  see  the  query 
in  Bennett  v.  Chase,  21  N.  H.  570. 

Plaintiff  Not  a  Party. — The  second 
suit  will  not  abatt  although  the  plain- 
tiff therein,  not  a  party  to  the  first  suit, 
might  upon  application  have  been  ad- 
mitted as  a  defendant  in  the  same, 
and  could  thereby  have  litigated  the 
matters  involved  in  the  second  suit. 
Loyd  V.  Reynolds,  29  Ind.  299.  See 
also  Parsons  v.  Greenville,  etc.,  R. 
Co.,  I  Hughes  (U.  S.)  279;  Fink  v.  Al- 
len, 36  N.  Y.  Super.  Ct.  350;  and  es- 
pecially Osborn  v.  Cloud,  23  Iowa 
104,  92  Am.  Dec.  413. 

Where  Parties  Are  Reversed. — Where 
the  parties  are  reversed,  the  plaintiff 
in  one  suit  being  defendant  in  the 
other,  both  suits  may  be  maintained 
at  the  same  time.  Walsworth  v.  John- 
son, 41  Cal.  61;  Pierce  v.  Feagans,  39 
Fed.  Rep.  587;  Washburne,  etc.,  Mfg. 
Co.  V.  Scutt,  22  Fed.  Rep.  710;  New 
England  Screw  Qo.v.  Bliven,  3Blatchf. 
(U.  S.)  240;  Colt  V.  Partridge,  7  Met. 
(Mass.)  570;  Barr  v.  Chapman,  5  Ohio 
Cir.  Ct.  Rep.  69.  Contra,  Crane  v. 
Larsen,  15  Oregon  349,  both  cases 
pending  in  equity.  Compare  Danvers 
V.  Dorrity,  14  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  206. 

In  Actions  for  Account. — In  actions 
for  an  accounting  it  is  held  that  both 
parties  are  actors,  so  that  the  de- 
fendant cannot  subsequently  make 
one  of  the  items  of  the  account  the 
subject  of  suit  by  him  against  the 
plaintiff.     Coubrough    v.  Adams,    70 


758 


As  a  Groond 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


There  are,  however,  several  well-established  exceptions  to  this 
rule,  as  ip  qui  tarn  actions  for  penalties,*  actions  for  breach  of 
official  bonds,*  in  certain  cases  of  set-off  and  counterclaim,*  and 
in  suits  by  one  of  a  class*  or  by  different  plaintiffs   in  privity  of 


Cal.  374,  conceding,  however,  the  gen- 
eral rule  as  stated  in  the  text.  Ward 
V.  Gore,  37  How.  Pr.  (N.  Y.  C.  PI.) 
119,  reciprocal  actions  between  part- 
ners for  an  accounting.  See  also  the 
exception  in  cases  of  compulsory  set- 
off in  note  3,  below. 

1.  In  Qui  Tarn  Actions  for  Penalties 
it  is  held  that  the  first  proceeding 
must  abate  or  bar  the  second  even 
though  the  prosecutors  be  different. 
Combe  v.  Pitt,  3  Burr.  1423;  Sparry's 
Case,  5  Coke  61;  Sparry's  Case,  Cro. 
Eliz.  261;  Gilbert  History  of  C.  B. 
205;  Com.  V.  Churchill,  5  Mass.  174; 
Bennett  v.  Chase,  21  N.  H.  584; 
Anderson  v.  Barry,  2  J.  J.  Marsh. 
(Ky.)28i. 

2.  Actions  for  Breach  of  Official  Bonds. 
— Where  a  statute  provides  that  in  an 
action  on  an  official  bond  by  one  party, 
any  other  person  aggrieved  may  file 
his  suggession  and  declare  for    such 
breaches  as  he  thinks  proper,  one  ac- 
tion   so    brought  will   abate    a    subse- 
quent action,  the    statute  being   con- 
strued as    mandatory  and    exclusive. 
Hartz  V.    Com.,    i  Grant's  Cas.  (Pa.) 
359;    Com.    V.  Cope,   45    Pa.    St.   161; 
Com.  V.  Staub,  35  Pa.  St.  137.     In  the 
absence  of  such  a  statute  the  forego- 
ing exception  does  not  apply.     Com.!'. 
Cope,    45    Pa.    St.    165;    Treasurer  v. 
Bates,  2  Bailey  (S.  Car.)  362,  holding, 
however,  that  when  one  judgment  has 
been  obtained  on  the  bond,  all  subsist- 
ing suits  will  be  ordered  to  be  consoli- 
dated.    In  Harmon  v.  McRae,  91  Ala. 
401,  it  was  held  that  an  action  by  a 
creditor  against  a  sheriff  for  the  simul- 
taneous levy  of  attachments  in  the  in- 
terest of  separate  creditors  (including 
the  plaintiff)  against  a  common  debtor 
might  be   pleaded  in  abatement  of  a 
second  action  by  another  of  those  cred- 
itors, the  levy  being  deemed  to  be  for 
the  joint  benefit  of  all. 

3.  In  Cases  of  Compulsory  Set-off. — 
Where  the  statute  of  set-off  is  com- 
pulsory a  plea  in  abatement  that 
another  action  had  been  previously 
commenced,  etc.,  against  the  plaintiff 
in  which  the  matters  sued  for  might 
beset  off  is  good.  Schenck  v.  Schenck, 
ID  N.  J.  L.  276;  Slyhoof  v.  Flitcraft, 
I  Ashm.  (Pa.)  171;  Lord  v.  Ostrander, 
43  Barb.  (N.  Y.)33g.  See  also  Douglas 


V.  Hoag,  I  Johns.  (N.  Y.)  283.  But 
this  exception  is  based  upon  a  manda- 
tory construction  of  the  statute,  and 
does  not  hold  where  it  is  merely  per- 
missive. Tompkins  v.  Gerry,  43  111. 
App.  255;  unless  the  matter  has  been 
in  fact  pleaded  as  a  set-off  in  the 
former  action.  Pennsylvania  R.  Co. 
V.  Davenport,  154  Pa.  St.  III.  And, 
moreover,  to  be  available  as  ground  of 
abatement,  the  set-off  must  be  of  a 
demand  against  the  plaintiff  or  plaint- 
iffs alone,  and  not  against  him  or  them 
together  with  others.  Compton  v. 
Green,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  228.  Pendency  of  a  suit  is  no  ob- 
jection to  a  set-off  of  the  debt  upon 
which  the  suit  is  founded  in  another  ac- 
tion between  the  same  parties.  Stroh 
V.  Uhrich,  i  W.  &  S.  (Pa.)  57. 

Counterclaims,  etc. — A  pending  ac- 
tion for  damages  is  no  bar  to  a  coun- 
terclaim for  the  same  demand  in  a  suit 
afterward  brought  against  the  plaint- 
iffs in  the  first  action.  Copley  Iron 
Co.  V.  Pope,  13  Daly  (N.  Y.)  144,  108 
N.  Y.  232.  A  prior  action  pending  on 
a  cause  set  up  in  the  present  action  as 
a  counterclaim  for  which  affirmative 
judgment  is  demanded  is  a  defense  in 
abatement  of  the  counterclaim.  An- 
sorge  V.  Kaiser,  22  Abb.  N.  Cas.  (N.  Y. 
Supreme  Ct.)  305;  distivgtiishivg  Nay- 
\orv.  Schenck, 3  E.D.  Smith  (N.Y.)  135. 
Plaintiff's  action  for  §300,  the  unpaid 
portion  of  ^525  to  be  paid  by  defend- 
ant for  certain  services,  was  not  barred 
by  the  pendency  in  another  court  of  an 
action  against  him  by  defendant  to  re- 
cover the  amount  paid  on  the  ground 
of  failure  of  consideration,  the  sum  of 
$300  remaining  not  being  set  up  by 
way  of  counterclaim,  nor  put  in  issue 
in  the  suit  first  brought.  Carlin  v. 
Richardson  (Super  Ct.),  i  N.  Y.  Supp. 
772. 

A  counterclaim  made  in  a  prior  ac- 
tion is  pleadable  in  abatement  of  an 
action  upon  the  counterclaim  against 
the  plaintiff;  and  the  allowance  of  a 
motion  upon  the  hearing  of  the  second 
action  (both  causes  being  in  the  same 
court)  to  withdraw  the  counterclaim 
will  not  defeat  the  plea  in  abatement. 
Demond  v.  Crary,  i  Fed.  Rep.  480. 

4.  Suits  by  One  of  a  Class. — A  bill  filed 
by  distributees  of  an  estate  against  the 


759 


As  a  Gronnd 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


tkle.'  Whether  a  pending  attachment  may  be  pleaded  by  a 
garnishee  therein  in  abatement  of  a  suit  against  him  for  the  debt 
by  the  original  debtor  is  not  settled,* 

Identity  of  Defendants. — But  it  is  not  essential  that  the  defendants 
be  entirely  the  same  ;  if  the  actions  are  based  upon  substantially 
the  same  facts,  the  first  will  abate  the  second,  at  least  as  to  those 
defendants  who  are  named  in  both,  although  there  are  more 
defendants  in  one  action  than  in  the  other.^ 


administrator  to  charge  him  with  a 
devastavit  is  a  good  bar  to  a  suit 
afterwards  brought  by  a  creditor  for 
the  same  devastavit ,  Green  v.  Neal,  2 
Heisk.  (Tenn.)  220,  on  the  ground  that 
the  creditor's  remedy  was  by  petition 
in  the  first  suit.  The  same  principle 
was  applied  in  Groshon  v.  Lyon,  16 
Barb.  (N.  Y.)  461.  One  who  has  made 
himself  a  party  to  a  decree  on  a  credi- 
tor's bill  cannot  thereafter  file  a  bill  on 
behalf  of  himself  and  all  others.  Row- 
ley V.  Williams,  5  Wis.  151,  stating  the 
rule  and  applying  it  to  a  case  where  a 
subsequent  mortgagee  commenced  a 
suit  for  foreclosure,  making  a  prior 
mortgagee  a  party,  and  the  latter  came 
in  and  answered,  setting  up  his  inter- 
est, and  afterward  commenced  a  suit 
for  foreclosure.  But  it  seems  that 
creditors'  bills  by  different  creditors 
will  not  conflict  with  each  otherwhere 
one  is  brought  in  a  state  and  another 
in  a  federal  court.  Parsons  v.  Green- 
ville, etc.,  R.  Co.,  I  Hughes  (U.  S.)279. 
And  furthermore,  that  until  there  has 
been  a  decree  in  the  first  authorizing 
the  others  to  come  in  and  obtain  satis- 
faction, its  pendency  will  not  affect  a 
subsequent  suit  by  another  plaintiff. 
Bloodgood  V.  Bruen,  2  Bradf.  (N.  Y.) 
8;  Rogers  v.  King,  8  Paige  (N.  Y.) 
210. 

1.  Parties  in  Privity  — "  If  a  man  in- 
stitutes a  suit  and  afterwards  sells  part 
of  the  property  in  question  to  another, 
who  files  an  original  bill  touching  the 
part  so  purchased  by  him,  a  plea  of  the 
former  suit  pending  touching  the  whole 
property  will  hold."  Story  Eq.  PI. 
(roth  ed.)  §  738;  Holloway  v.  Hollo- 
way,  103  Mo.  274.  See  also  Gardner 
V.  Clark,  21  N.  Y.  399.  The  same  doc- 
trine is  preserved  under  Code  provis- 
ions, the  term  "parties"  being  con- 
strued to  include  "privies."  Crane  z/. 
Larsen,  15  Oregon  349.  Where  a 
promissory  note  was  made  payable  to 
B.,  who  at  the  date  of  its  execution 
was  the  wife  of  A.,  it  was  held  that  a 
suit  on  the  note  could  not  be  main- 


tained by  A.  as  the  administrator  of  B. 
pending  a  former  suit  by  him  in  his  in- 
dividual capacity.  Beach  v.  Norton,  8 
Conn.  71.  Where  a  corporation  brings 
a  suit  on  behalf  of  the  company,  a 
stockholder,  while  such  suit  is  pending, 
cannot  maintain  another  suit  against 
the  same  parties  grounded  on  the 
same  cause  of  action  and  seeking  the 
same  relief.  Tippecanoe  County  v. 
Lafayette,  etc.,  R.  Co.,  50  Ind.  118. 

2.  Pendency  of  Garnishments. — The 
following  cases  hold  that  it  is  plead- 
able in  abatement;  Crawford  v.  Clute.  7 
Ala.  157,  41  Am.  Rep.  92;  Philadelphia 
Sav.  Bank  v.  Sinethurst,  2  Miles  (Pa.) 
439;  Brown  v.  Somerville,  8  Md.  444; 
but  not  in  bar  until  judgment  and  exe- 
cution, Id.  See  Irvine  v.  Lumberman's 
Bank,  2  W.  &  S.  (Pa.)  190;  Adams  v. 
Avery,  2  Pittsb.  (Pa.)  77;  Navigation 
Co.  v.  Navigation  Co.,  3  Phila.  (Pa.) 
214;  Kase  V.  Kase,  34  Pa.  St.  128; 
Brown  v.  Scott,  51  Pa.  St.  357;  Wilson 
V.  Murphy,  45  Mo.  409. 

Contra. — Hugg  v.  Brown,  6  W^hart. 
(Pa.)  468;  Patterson  v.  Hankins,  9 
Phila.  (Pa.)  105;  Noble  v.  Thompson 
Oil  Co.,  69  Pa.  St.  409;  Winthrop  v. 
Carlton,  8  Mass.  456,  holding,  however, 
that  it  is  ground  for  a  continuance; 
Wadleigh  v.  Pillsbury,  14  N.  H.  373. 
See  also  Shealy  v.  Toole,  56  Ga.  210; 
Wilson  V.  Rutland,  etc.,  F.  Ins.  Co.,  19 
Vt.  177.  The  fact  of  issue  being  joined 
in  an  action  pending  will  not  per  se 
prevent  the  defendant  from  being  sum- 
moned as  the  trustee  of  the  plaintiff  in 
a  process  of  foreign  attachment.  Smith 
V.  Barker,  10  Me.  458. 

3.  Atkinson  v.  State  Bank,  5  Blackf. 
(Ind.)  85,  and  Beyersdorf  v.  Sump,  39 
Minn.  495,  12  Am.  St.  Rep.  678,  where 
there  were  additional  defendants  in 
the  first  suit;  Rehman  v.  New  Albany, 
etc.,  R.  Co.  (Ind.,  1893),  35  N.  E.  Rep. 
292,  where  the  second  contained  addi- 
tional defendants.  See  also  Jennings 
V.  Warnock,    37   Iowa  278;  Rogers    v. 

a     Hoskins,     15    Ga.     273;    Wadleigh  v. 
-     Veazie,  3  Sumn.  (U.  S.)  165.     Compare 

760 


Ab  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


5.  For  the  Same  Cause  of  Action. — The  Euie  stated. — In  order  to 
support  a  plea  of  another  action  pending  it  must  appear  that  the 
two  suits  are  for  the  same  cause  or  causes  of  action.* 


Estes  V.  Worthington,  30  Fed.  Rep. 
465.  Nor  can  the  effect  as  an  abate- 
ment be  avoided  by  raising  a  new 
question  as  to  a  new  party  in  the  sec- 
ond suit  along  with  the  old  question 
as  to  the  defendant  in  both  suits. 
Memphis  v.  Dean,  8  Wall.  (U.  S.)  64. 

1.  Minnesota. — Mathews  v.  Henne- 
pin County  Bank,  44  Minn.  442;  Wil- 
son V.  St.  Paul,  etc.,  R.  Co.,  44  Minn. 
445;    Majerus  v.   Hoscheid,    11   Minn. 

243- 

United  States. — Sharon  v.  Hill,  22 
Fed.  Rep.  28;  Marshall  v.  Otto,  59  Fed. 
Rep.  299;  Wheeler  v.  McCormick,  8 
Blatchf.  (U.  S.)  267;  Steiger  v.  Heidel- 
berger,  18  Blatchf.  (U.  S.)  426;  Pierce 
V.  Feagans,  39  Fed.  Rep.  5S7;  Massa- 
chusetts Mut.  L.  Ins.  Co.  V.  Chicago, 
etc.,  R.  Co.,  13  Fed.  Rep.  857;  Jenkins 
V.  Eldrege,  3  Story  (U.  S.)  1S3. 

New  York. — Hyatt  v.  Ingalls,  124 
N.  Y.  93;  Golden  v.  Metropolitan  El. 
R.  Co.  (C.  PI.),  20  N.  Y.  Supp.  630; 
Fink  V.  Allen,  36  N.  Y.  Super.  Ct.  350; 
Mandeville  v.  Avery,  124  N.  Y.  376; 
Raven  v.  Smith,  24  N.  Y.  Supp.  601; 
Hood  V.  Hayward,  i  N.  Y.  Supp.  567; 
Maloy  jy.lAssociated  Lace-makers'  Co., 
8  N.  Y.  Supp.  815;  Hertel  v.  Van 
Buren,  3  Edw.  Ch.  (N.  Y.)  2o;Keeler 
^.  Brooklyn  El.  R.  Co.,  9  Abb.  N.  Cas. 
{N.  Y.  Supreme  Ct.)  166;  Geery  v. 
Webster,  11  Hun  (N.  Y.)  428;  Com- 
mercial Bank  v.  Heilbronner,  52  N. 
Y.  Super.  Ct.  388. 

Missouri. — Carroll  v.  Campbell,  no 
Mo.  557. 

California. — Calaveras  County  v. 
Brockway,  30  Cal.  325;  Thompson  v. 
Lyon,  14  Cal.  39;  Martin  v.  Splivalo  69 
Cal.  611;  Larco  v.  Clements,  36  Cal. 
132;  Coburn  v.  Pacific  Lumber,  etc., 
Co.,  46  Cal.  32. 

Georgia. — Augusta  R.  Co.  v.  Glover 
<Ga.,  1893),  18  S.  E.  Rep.  406. 

Pennsylvania. — Clark  v.  Wilder,  25 
Pa.  St.  314;  Stewart's  Appeal,  56  Pa. 
St.  413;  Ralph  V.  Brown,  3  W.  &  S. 
•(Pa.)  395;  King  v.  Blackmore,  72  Pa. 
St.  347,  13  Am.  Rep.  684;  Streaper  v. 
Fisher,  i  Rawle  (Pa.)  155,  18  Am. 
Dec.  604;  Watson  v.  Maroney,  6  W.  N. 
C.  (Pa.)  345. 

Kentucky. — Flint  v.  Spurr,  17  B. 
Mon.  (Ky.)  499. 

Alabama. — Hall  v.  Holcombe,  26 
Ala.  720. 

76 


Nebraska. — McReady  v.  Rogers,  i 
Neb.  124,  93  Am.  Dec.  333. 

Iowa. — Jones  v.  Brandt,  59/  Iowa 
332;  Osborn  v.  Cloud,  23  Iowa  104,  92 
Am.  Dec.  413;  .(Etna  Iron  Works  v. 
Firmenich  Mfg.  Co.  (Iowa,  1894),  57 
N.  W.  Rep.  904. 

New  Jersey. — Parcell  v.  Demorest, 
48  N.  J.  Eq.  524. 

Indiana. — Bryan  v.  SchoU,  log  Ind. 
367- 

See  also  Peck  v.  Kirtz  (Supreme 
Ct.),  15  N.  Y.  St.  Rep.  598:  affirmed 
113  N.  Y.  669;  Wiley  v.  Tarrytown 
(Supreme  Ct.),  5  N.  Y.  Supp.  241; 
D wight  V.  Central  Vt.  R.  Co.,  9  Fed. 
Rep.  785,  20  Blatchf.  ( U.  S. )  200;  Biggs 
V.  Cox,  4  B.  &  C.  920,  10  E.  C.  L.  471. 
"It  is  of  no  importance  that  the  evi- 
dence is  the  same."  Jacobs  v.  Lewis, 
47  Mo.  346.  But  see  Montgomery  v. 
Harrington,  58  Cal.  274. 

Illustrations.  —  Supplementary  pro- 
ceedings are  not  a  bar  to  a  creditor's 
bill  to  set  aside  a  fraudulent  convey- 
ance by  the  judgment  debtor.  Faber 
v.  Matz  (Wis..  1893),  57  N.  W.  Rep.  39. 
A  suit  to  administer  the  separate  es- 
tate of  a  deceased  partner  for  the  bene- 
fit of  the  separate  creditors  is  not  the 
same  as  a  suit  to  administer  the  part- 
nership property  for  the  benefit  of 
partnership  creditors.  Robinson  v. 
Allen,  85  Va.  721.  A  writ  of  assistance 
and  an  action  for  forcible  entry  and 
detainer  are  not  for  identical  relief. 
Kessinger  v.  Whittaker,  82  111.  22. 
The  pendency  of  a  common-law  action 
for  partition  is  no  objection  to  a  pro- 
ceeding in  the  Orphans'  Court  for  par- 
tition under  the  statute.  Rex  v.  Rex,  3 
S.  &  R.  (Pa.)  533.  Nor  can  the  pen- 
dency of  a  common-law  action  by  a 
creditor  of  a  decedent  be  set  up  in 
abatement  of  proceedings  for  account 
in  the  Orphans'  Court.  In  re  Evans's 
Estate,3  W.  N.  C.  (Pa.)  519.  Although 
a  defendant  pleading  in  abatement  pro- 
duced the  record  of  another  suit  on  a 
note  corresponding  in  every  particular 
with  the  note  sued  on,  except  in  the 
date  of  the  assignment  thereon,  the 
record  was  held  not  to  support  his 
plea.  Thomas  v.  Thomas,  3  J.  J. 
Marsh.  (Ky.)  589. 

Thependency  of  an  action  upon  notes 
will  not  abate  a  subsequent  action 
on  a  foreign  judgment  obtained  upon 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


Test  of  Identity.— The  identity  of  the  matters  involved  must  be  such 
that  a  judgment  in  the  first  could  be  pleaded  in  bar  as  a  former 
adjudication.* 


the  notes.  Steers  v.  Shaw,  53  N.  J.  L. 
358. 

Parol  Evidence  of  Identity.  —  Parol 
evidence  is  admissible  in  determining 
whether  the  first  suit  is  for  the  same 
cause  of  action  as  the  second.  Damon 
V.  Denny,  54  Conn.  253.  Compare 
Phelps  V.  Gee,  29  Hun  (N.  Y.)  202. 

1.  Per  Shaw,  C.J.,  in  Newell  v.  New- 
ton, ID  Pick.  (Mass.)  470;  Vance  v. 
dinger,  27  Cal.  358,  per  Sawyer,  J.; 
Maule  V.  Murray,  7  T.  R.  466;  Moore 
V.  Holt,  3  Tenn.  Ch.  141;  Watson  v. 
Jones,  13  Wall.  (U.  S.)  679;  Hall  v. 
Wallace,  25  Ala.  438.  See  also  Ballou 
V.  Ballou,  26  Vt.  673:  State  v.  North 
Lincoln  St.  R.  Co.,  34  Neb.  634. 

It  must  appear  that  the  court  would 
have  power  to  render  such  a  judg- 
ment. Trimmier  v.  Hardin,  32  S.  Car. 
600. 

Tinder  Code  Practice. — The  test  of 
identity  of  causes  of  action  under  the 
Codes  is  the  same  as  that  at  common 
law.  Kelsey  v.  Ward,  16  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  gS;  Julian  v. 
Pilcher,  2  Duv.  (Ky.)  254;  Redfearn  v. 
Austin,  88  N.  Car.  413. 

Actions  for  Instalments. — Separate 
suits  for  foreclosure  may  be  brought 
for  nonpayment  of  successive  instal- 
ments of  the  mortgage  debt.  Jacobs 
V.  Lewis,  47  Mo.  344.  See  also  Blau- 
velt  V.  Powell,  59  Hun  (N.  Y.)  179, 
actions  for  instalments  of  rent. 

Subsequent  Suit  upon  a  New  or  Differ- 
ent Title. — An  action  for  divorce  on  the 
ground  of  adultery  will  not  abate  a 
second  action  for  the  same  relief  for 
alleged  adulteries  with  the  same  per- 
son charged  to  have  occurred  after  the 
commencement  of  the  first  action. 
Cordierz/.  Cordier,  26  How-  Pr.  (N.  Y. 
Supreme  Ct.)  187  (Sutherland,  J., 
aissenting).  Nor  will  a  libel  for  divorce 
from  bed  and  board  for  desertion 
abate  a  subsequent  libel  for  divorce 
a  vinculo  on  the  same  ground.  Stevens 
V.  Stevens,  i  Met.  (Mass.)  279.  A 
plaintiff  may  have  two  suits  against 
the  same  defendant  for  the  recovery 
of  the  possession  of  the  same  land 
pending  at  the  same  time,  if  the 
second  is  brought  on  a  title  acquired 
after  the  commencement  of  the  first, 
Leonard  v.  Flynn,  89  Cal.  535;  Vance  v. 
Olinger,  27  Cal.  358;  Mann  v.  Rogers. 


76 


35  Cal.  318;  Larco  v.  Clements,  36  Cal. 
132;  Murray  v.  Green,  64  Cal.  368;  or 
upon  a  different  title,  Martin  v. 
Splivalo,  69  Cal.  611;  Steele  v.  Grand 
Trunk  Junction  R.  Co.,  125  111.  385. 
Villavaso  v.  Barthet,  39  La.  Ann.  247, 
and  Kelsey  v.  Ward,  16  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  98,  are  applications  of 
the  same  principle. 

Attachments  in  Chancery. — An  attach- 
ment in  chancery  obtained  in  one 
county  and  levied  upon  property  not 
sufficient  to  pay  the  debt  is  no  objec- 
tion to  the  prosecution  of  another  at- 
tachment in  chancery  in  another 
county  against  other  property.  Savary 
V.  Taylor,  10  B.  Mon.  (Ky.)334.  Com- 
pare James  v.  Dowell,  7  Smed.  &  M. 
(Miss.)  333. 

Attachment  Suits  and  Personal  Actions. 
— A  pending  attachment  against  a  non- 
resident will  not  be  abated  by  a  pend- 
ing action  by  summons  in  the  same 
court.  Stockham  v.  Boyd  (Pa.,  i8£8), 
12  Atl.  Rep.  258;  Branigan  v.  Rose,  8 
111.  123.  Contra,  McKinsey  v.  Ander- 
son, 4  Dana  (Ky.)  62.  Nor  vice  versa. 
Morton  v.  Webb,  7  Vt.  123;  Crawford 
V.  Slade,  9  Ala.  887,  44  Am.  Dec.  463. 
After  the  attachment  suit  is  pursued 
to  judgment  and  order  of  sale,  but  be- 
fore actual  sale,  it  will  abate  a  per- 
sonal action  unless  it  be  shown  that 
the  first  proceeding  is  a  failure  in 
whole  or  in  part.  Challiss  v.  Smith, 
25  Kan.  563. 

Splitting  of  Actions. — The  pendency 
of  an  action  upon  a  part  only  of  an  en- 
tire and  indivisible  demand  is  plead- 
able in  abatement  of  a  subsequent 
action  upon  the  residue.  Bender- 
nagle  v.  Cocks,  19  W^end.  (N.  Y.)  207, 
32  Am.  Dec.  448;  Hughes  v.  Dundee 
Mortgage  Trust  Invest.  Co..  26  Fed. 
Rep.  831;  O'Beirne  v.  Lloyd,  i  Sweeney 
(N.  Y.)  19.  As  to  what  constitutes  an 
entire  cause  of  action,  see  Actions. 

Upon  the  kindred  subject  of  the 
right  to  maintain  a  joint  action  against 
several,  and  at  the  same  time  a  sepa- 
rate action  against  each,  and  the  dis- 
tinctions herein  between  joint,  joint 
and  several,  and  joint  or  several  lia- 
bilities, see  Blackburn  v.  Watson,  85 
Pa.  St  241;  Weil  v.  Guerin,  42  Ohio 
St.  299,  cases  of  defendant  partners; 
Oneida  County  Bank  v.  Bonney,  loi 
2 


As  a  Groiind 


ANOTHER  SUIT  PENDING. 


of  Abatemeat. 


Different  Belief.— Where  the  relief  obtainable  in  the  two  suits  is 
essentially  different,  they  may  be  prosecuted  at  the  same  time,, 
although  the  same  questions  may  be  to  some  extent  involved  in 
both.i 

Formal  Differences.— But  it  may  be  laid  down  as  a  general  proposi- 
tion that  where  the  substantial  fact  or  facts  upon  which  the  plain- 
tiff's right  to  relief  is  based  are  identical  in  the  two  actions,  and 
the  relief  obtainable  in  the  first  includes  all  the  relief  sought  in 
the  second  action,  the  first  will  abate  the  second,  although  the 
actions  differ  in  matters  of  form,  and  in  the  relations  of  the  de- 
fendant to  the  infringement  of  the  plaintiff's  rights.'-* 


N.  Y.  173,  joint  contractors;  Graves  v. 
Dale,  I  T.  B.  Mon.  (Ky.)  191,  joint 
obligors;  Turner  v.  Whitmore,  63  Me. 
526,  joint  and  several  promisors, — dis- 
approved in  Weil  v.  Guerin,  42  Ohio  St. 
299;  State  Bank  v.  Weller,  3  Pick. 
(Mass.)  15. 

1.  Coles  V.  Yorks,  31  Minn.  213; 
Mathews  v.  Hennepin  County  Sav. 
Bank,  44  Minn.  442;  Colt  v.  Partridge, 
7  Met.  (Mass.)  575;  Scottish  Am. 
Mortgage  Co.  v.  Follansbee,  9  Biss. 
(U.  S.)  482;  Carpenter  v.  Talbot,  33 
Fed.  Rep.  537;  Pacific  Express  Co.  v. 
Haven,  41  La.  Ann.  811;  Ayres  v. 
Bensley,  32  Cal.  620;  Pullman  v.  Alley, 
53  N.  Y.  637;  Haire  v.  Baker,  5  N.  Y. 
357;  DanVers  v.  Dorrity,  14  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  206;  Hogg  v. 
Charlton,  25  Pa.  St.  200;  Wurtz  v. 
Hart,  13  Iowa  515;  Savary  v.  Taylor, 
10  B.  Mon.  (Ky.)  334;  Goff  v.  Welborn 
(Ky.,  1894),  24S.  W.  Rep.  871;  State  z'. 
Dougherty,  45  Mo.  294.  An  action  to 
quiet  title  and  an  action  to  recover 
possession  of  the  same  land  are  for 
different  relief,  although  the  same 
facts  are  involved.  Bolton  v.  Landers, 
27  Cal.  104. 

Enforcement  of  Liens  or  Mortgages  and 
Personal  Actions  for  the  Debt. — A  suit  to 
enforce  a  lien,  and  an  action  for  the 
claim  upon  which  the  lien  is  founded, 
may  be  prosecuted  at  the  same  time. 
Raven  v.  Smith  (Supreme  Ct.),  24  N. 
Y.  Supp.  601;  Gambling  v.  Haight,  59 
N.  Y.  354;  Gridley  v.  Rowland,  i  E.  D. 
Smith  (N.  Y.)  670;  Maxey  v.  Larkin, 
2  E.  D.  Smith  (N.  Y.)  540;  Pollock  v. 
Ehle,  2  E.  D.  Smith  (N.  Y.)  541;  Dela- 
hay  V.  Clement,  4  111.  201;  Black  v. 
Lackey,  2  B.  Mon.  (Ky.)  257;  Julian 
V.  Pilcher,  2  Duv.  (Ky.)  254;  Peak  v. 
Bull,  8  B.  Mon.  (Ky.)  428;  Heath  v. 
Bates,  70  Ga.  633.  See  also  Thielman 
V.  Carr,  75  111.  385.  Likewise  a  fore- 
closure suit  and  an  action  at  law  for 


the  debt.  Joslin  v.  Millspaugh,  27 
Mich.  517;  Spence  v.  Ins.  Co.,  40  Ohio 
St.  517;  Copperthwait  v.  Dummer,  i3 
N.  J.  L.  258. 

But  where  the  statute  provides  for 
a  personal  judgment  in  a  suit  to  fore- 
close a  lien  or  mortgage,  it  precludes 
a  subsequent  suit  for  the  debt.  Witter 
V.  Neeves,  78  Wis.  547;  Ogden  v. 
Bodle,2  Duer  (N.  Y.)  611. 

A  mortgagee  cannot  foreclose  his 
mortgage  in  a  state  court  after  a 
federal  court  has  acquired  jurisdiction 
over  the  property  in  bankruptcy  pro- 
ceedings to  which  he  has  made  him- 
self a  party,  and  directed  a  sale  and 
distribution  of  the  proceeds.  Levy  v. 
Haake,  53  Cal.  267. 

2.  Per  Brewer,  J.,  in  Mullen  v. 
Mullock,  22  Kan.  598;  Ward  v.  Gore, 
37  How.  Pr.  (N.  Y.  C.  PI.)  119;  Daw- 
ley  V.  Brown,  65  Barb.  (N.  Y.)  107; 
Stone  V.  Tucker,  12  La.  Ann.  726.  See 
also  Buffum  v.  Tilton,  17  Pick.  (Mass.) 
510;  Allen  V.  Malcolm,  12  Abb.  Pr.  N. 
S.  (N.  Y.  C.  PI.)  335:  Carr  v.  Casey, 
20  111.  637.  A  proceeding  by  attach- 
ment and  another  by  bail  writ  cannot 
stand  at  the  same  time.  Clark  v. 
Tuggle,  18  Ga.  604.  A  plea  setting 
forth  that  an  action  on  a  judgment 
was  commenced  while  the  plaintiff  in 
the  same  judgment  was  endeavoring 
to  raise  the  money  by  execution  would 
be  good.  Yantis  v.  Burdett,  3  Mo. 
457. 

Proceedings  Growing  out  of  Replevin. — 
A  constable  levied  an  execution  issued 
upon  a  judgment  in  favor  of  B.  upon 
certain  property  as  the  property  of  the 
defendant  in  execution.  M.  claimed 
the  property  and  brought  an  action  of 
replevin  therefor  against  B.  Before 
the  justice,  M.  obtained  judgment  for 
the  return  of  the  property,  or  its  value 
in  case  a  return  could  not  be  had. 
From  this  judgment  B.  appealed,  and 


763 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


6.  In  the  Same  Jurisdiction — Suits  in  Foreign  Jurisdictions.— The  doc- 
trine is  well  settled  that  an  action  in  personam  in  a  foreign  juris- 
diction cannot  be  pleaded  in  abatement  of  another  action  com- 
menced in  a  domestic  forum,  even  if  there  be  identity  of  parties, 
of  subject-matter,  and  of  the  relief  sought.* 

What  Jurisdictions  Kegarded  as  Foreign.— In  the  application  of  this  rule 
the  states  of  the  Union  are  regarded  as  foreign  to  one  another,* 


the  case  was  pending  in  the  District 
Court.  M.  thereupon  commenced  an 
action  against  the  constable  and  his 
sureties,  of  whom  B.  was  one,  to  re- 
cover the  value  of  the  property. 
Held,  that  as  to  B.  the  pendency  of 
the  first  action  abated  the  second. 
Mullen  V.  Mullock,  22  Kan.  598. 

Adequacy  of  Remedy  a  Criterion. — "  It 
seems  to  us  that  if  such  plea  can  be 
sustained  when  the  parties  stand  in 
different  relations,  it  can  only  be  so 
when  the  first  suit  affords  a  full,  plain, 
and  adequate  remedy  to  the  defen- 
dant in  such  suit,  and  opens  all  the 
gjrounds  set  up  as  the  foundation  of 
the  second  suit."  Per  Dewey,  J.,  in 
Colt  V.  Partridge,  7  Met.  (Mass.)  570. 
Where  the  pending  suit  is  one  in  which 
it  is  legally  possible  for  a  judgment  to 
l)e  rendered  upon  the  cause  of  action 
alleged  in  the  second,  and  is  brought 
for  the  purpose  of  obtaining  such 
judgment,  the  plaintiff  is  bound  to  ex- 
haust the  possibilities  of  that  suit  be- 
fore bringing  another.  Damon  v. 
Denny,  54  Conn.  253. 

1.  Mexican  Cent.  R.  Co.  v.  Char- 
man  (Tex.  Civ.  App.,  1894),  24  S.  W. 
Rep.  958;  Lyman  v.  Brown,  2  Curt. 
(U.  S.)  559;  Radford  v.  Folsom,  14  Fed. 
Rep.  97;  Williams  v.  Ayrault,  31  Barb. 
(N.  Y.)  364;  Bowne  v.  Joy,  9  Johns. 
(N.  Y.)  221;  Maule  v.  Murray,  7  T. 
R.  466.  See  also  Bayley  v.  Edwards,  3 
Swanst.  703;  McHenry  v.  Lewis,  22 
Ch.  Div.  397,  affirming  21  Ch.  Div. 
202;  Peruvian  Guano  Co.  v.  Bock- 
woldt,  23  Ch.  Div.  225,  criticising  Cox 
V.  Mitchell,  7  C.  B.  N.  S.  55,  97  E.  C. 
L.  55;  Scott  V.  Lord  Seymour,  31  L.  J. 
Exch.  461,  and  the  cases  cited  in  the 
following  notes. 

2.  Alabama. — Humphries  z*.  Dawson, 
38  Ala.  199. 

Arkansas. — Grider  v.  Apperson,  32 
Ark.  332. 

Connecticut. — Hatch  v.  Spofford,  22 
Conn.  496,  58  Am.  Dec.  433,  overruling 
Hart  V.  Granger,  i  Conn.  154. 

Delaware. — See  Howard  v.  Wilming- 
ton, etc.,  R.  Co.,  2  Harr.  (Del.)  471. 


Georgia. — Chattanooga,  etc.,  R.  Co. 
V.  Jackson,  86  Ga.  676. 

Illinois. — Mcjilton  v.  Love,  13  111. 
494,  54  Am.  Dec.  449;  Allen  v.  Watt, 
69  111.  655. 

Indiana. — Bradley  v.  State  Bank,  20 
Ind.  528;  Eaton,  etc.,  R.  Co.  v.  Hunt, 
20  Ind.  468;  De  Armond  v.  Bohn,  12 
Ind.  607. 

Kentucky. — Davis  v.  Morton,  4  Bush 
(Ky.)  442,  96  Am.  Dec.  309;  Salmon  v. 
Wooton,  9  Dana  (Ky.)  424. 

Louisiana. — Stone  v.  Vincent,  6  Mar- 
tin N.  S.  (La.)  517. 

Maryland. — Seevers  v.  Clement,  28 
Md.  435.  See  also  Cole  v.  Flitcraft, 
,  47  Md.  312. 

Massachusetts.  —  In  Colt  z^.  Partridge, 
7  Met.  (Mass.)  574,  it  is  said  that  the 
question  has  not  been  decided  in 
Massachusetts.  See  dictufn  in  Newell  v. 
Newton,  10  Pick.  (Mass.)  470.  In 
Moore  v.  Spiegel,  143  Mass.  413,  it  was 
held  that  the  pendency  of  a  suit  in 
another  state,  if  it  can  be  pleaded  at 
all,  can  be  pleaded  only  in  abatement 
and  not  in  bar. 

Minnesota. — Sandwich  <  Mfg.  Co.  v. 
Earl  (Minn.,  1894),  57  N.  W.  Rep.  938. 

ATew  Hampshire.  —  Yelverton  v. 
Conant,  18  N.  H.  123;  Goodall  v.  Mar- 
shall, II  N.  H.  99,  35  Am.  Dec.  472. 

New  Jersey. — Kerr  v.  Willetts,  48  N. 
J.  L.  78. 

New  York. — Bowne  v.  Joy,  9  Johns. 
(N.  Y.)  221;  Walsh  V.  Durkin,  12  Johns. 
(N.  Y.)  99;  Cook  V.  Litchfield,  5  Sandf. 
(N.  Y.)  330;  Williams  v.  Ayrault,  31 
Barb.  (N.  Y.)  364;  Grossman  v.  Uni- 
versal Rubber  Co.  (Super.  Ct.),  16  N. 
Y.  Supp.  609 ;  Douglass  v.  Phoenix 
Ins.  Co.,  138  N.  Y.  218;  Lorillard  F. 
Ins.  Co.  V.  Meshural,  7  Robt.  (N.  Y.) 
308;  Hadden  v.  St.  Louis,  etc.,  R.  Co., 
57  How.  Pr.  (N.  Y.  Supreme  Ct.)  390. 
See  also  Oneida  County  Bank  v.  Bon- 
ney,  loi  N.  Y.  173;  Osgood  v.  Maguire, 
61  N.  Y.  524,  affirming  61  Barb.  (N. 
Y.)  54- 

North  Carolina. — Sloan  v.  McDowell, 
75  N.  Car.  29;  Casey  v.  Harrison,  2 
Dev.  (N.  Car.)  244  {qucere). 


764 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


as  are  also  the  courts  of  a  state  and  a  federal  court  held  in  an- 
other state  or  district.*  Whether  the  pendency  of  a  suit  in  a 
state  or  federal  court  in  the  same  district  may  be  successfully 
pleaded  to  the  prosecution  of  a  like  suit  in  the  other  court  is  a 
question  upon  which  the  authorities  are  conflicting  ;  *  and  the 
effect  of  a  suit  pending  in  a  federal  court  upon  a  suit  subse- 
quently brought  in  another  federal  court  seems  not  to  have  been 
determined.* 

7.  Garnishments  in  Foreign  Jurisdictions. — The  pendency  of  a 
garnishee  process  in  another  state  whereby  the  debt  for  which  an 
action  is  subsequently  brought  in  a  domestic  forum  has  been 
attached  at  the  suit  of  another  plaintiff  against  the  plaintiff  \\\  the 
second  suit  is  not  generally  pleadable  in  strict  abatement  of  the 
latter,*  although  it  may  be  good  ground  for  granting  a  continu- 


Pennsylvania. — Smith  v.  Lathrop,  44 
Pa.  St.  326.  See  also  Hogg  v.  Charl- 
ton, 25  Pa.  St.  200;  Ralph  v.  Brown,  3 
W.  &  S.  (Pa.)  395.  Contra,  Hopkins  v. 
Ludlow,  I  Phila.  (Pa.)  272. 

Texas. — Drake  v.  Brander,  8  Tex. 
352.  See  also  Mexican  Cent.  R.  Co. 
V.  Charman  (Tex.  Civ.  App.,  1894),  24 
S.  W.  Rep.  958. 

The  Rule  not  Changed  by  Code  Provi- 
■ions. — Code  provisions  for  pleading 
the  pendency  of  another  suit  are  not 
construed  as  modifying  the  former 
rule,  and  are  confined  to  suits  pend- 
ing in  the  same  state.  Burrows  v. 
Miller,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.),  51;  Cook  V.  Litchfield,  5  Sandf. 
(N.  Y.)  330;  Oneida  County  Bank  v. 
Bonney,  loi  N.  Y.  173;  De  Armond  v. 
Bohn,  12  Ind.  607;  Davis  v.  Morton,  4 
Bush  (Ky.)  442,  96  Am.  Dec.  309; 
Sloan  V.  McDowell,  75  N.  Car.  29. 

1.  Marshall  v.  Otto,  59  Fed.  Rep. 
249;  Briggs  V.  Stroud,  58  Fed.  Rep. 
717;  White  V.  Whitman,  i  Curt.  (U.  S.) 
494;  Loring  v.  Marsh,  2  Cliff.  (U.  S.) 
311  ;  Crescent  City  Live-Stock,  etc., 
Co.  V.  Butchers'  Union  Live-Stock, 
etc.,  Co.,  12  Fed.  Rep.  225;  -Rawitzer 
V.  Wyatt,40  Fed.  Rep.  609;  Stanton  v. 
Embrey,  93  U.  S.  548;  Mutual  L.  Ins. 
Co.  V.  Harris,  96  U.  S.  592;  Walsh  v. 
Durkin,  12  Johns.  (N.  Y.)  99,  distin- 
guishing Imlay  v.  Ellefsen,  2  East  453; 
Mitchell  V.  Bunch,  2  Paige  (N.  Y.)  606, 
22  Am.  Dec.  669;  Parsons  v.  Green- 
ville, etc.,  R.  Co.,  I  Hughes  (U.  S.) 
279.  See  also  Wadleigh  v.  Veazie,  3 
Sumn.  (U.  S.)  165;  Dwight  v.  Central 
Vt.  R.  Co.,  9  Fed.  Rep.  785;  Wood  v. 
Lake,  13  Wis.  84. 

2.  That  it  is  not  a  ground  of  abate- 
ment, see  Gordon  v.  Gilfoil,  99  U.  S. 
168,  per  Bradley,  J.;  Washburn,  etc.. 


Mfg.  Co.  V.  Scutt,  22  Fed.  Rep.  710, 
per  Acheson,  J.;  Pierce  v.  Feagans,  39 
Fed.  Rep.  587,  per  Thayer,  J.;  Sharon 
V.  Hill,  22  Fed.  Rep.  28,  per  Sawyer,  J. ; 
Latham  v.  Chafee,  7  Fed.  Rep.  520, 
per  Colt,  D.J.  ;  Hughes  v.  Elsher,  s 
Fed.  Rep.  263,  per  Lowell,  C.J.  ; 
Brooks  V.  Mills  County,  4  Dill.  (U.  S.> 
524  (qucere),  per  Love,  J.;  Oneida 
Countv  Bank  v.  Herrenden,  3  How. 
Pr.  N.'S.  (N.  Y.  Ct.  of  App.)  446. 

Contra. — Nelson  v.  Foster,  5  Biss. 
(U.  S.)  44,  per  Miller,  J.;  Radford 
V.  Folsom.  14  Fed.  Rep.  97,  per  Shiras, 
D.J.;  Smith  v.  Atlantic  Mut.  F.  Ins. 
Co.,  22  N.  H.  21,  per  Perley,  J.  See 
also  Earl  v.  Raymond,  4  McLean  (U. 
S.)  233;  Exp.  Balch,  3  McLean  (U.  S.> 
221;  Loyd  V.  Reynolds,  29  Ind.  299, 
where  the  court  did  not  find  it  neces- 
sary to  decide  the  point. 

3.  In  Wheeler  v.  McCormick,  8 
Blatchf.  (U.  S.)  267,  a  suit  pending  in 
another  federal  Circuit  Court  was 
pleaded  in  abatement,  but  overruled 
because  it  appeared  that  the  remedy 
in  the  former  suit  was  not  sufficiently 
complete  and  effectual.  So  in  Steiger 
V.  Heidelberger,  4  Fed.  Rep.  455,  the 
court  overruled  a  like  plea  in  abate- 
ment, holding  that  bill  for  infringe- 
ment and  account  of  profits  against  an 
employer  was  not  abatable  by  the 
pendency  in  another  Circuit  Court  of  a 
t)ill  for  injunction  and  account  against 
the  employer,  the  parties  and  relief 
being  different.  See  also  Mass.  Mut. 
L.  Ins.  Co.  V.  Chicago,  etc.,  R.  Co.,  13 
Fed.  Rep.  857. 

4.  Lynch  v.  Hartford  F.  Ins.  Co., 
17  Fed.  Rep.  627;  Cole  v.  Flitcraft,  47 
Md.  312.  See  also  Lewis  v.  Higgins, 
52  Md.  614;  New  England  Screw  Co. 
V.   Bliven,  3   Blatchf.  (U.  S.)  240.     In 


765 


As  a  Ground 


ANOTHER  SUIT  PENDING. 


of  Abatement. 


ance. 

8.  Where  the  Former  Suit  is  Defective. — Where  the  court  in 
which  the  former  suit  is  pending  has  no  jurisdiction  of  the  subject- 
matter,*  or  the  suit  or  proceeding  is  otherwise  so  defective  as  to 


Lynch  v.  Hartford  F.  Ins.  Co.,  17  Fed. 
Rep.  627,  quoted  in  the  following  note, 
the  weight  of  authority  is  declared  to 
be  as  stated  in  the  text. 

Contra. — Embree  v.  Hanna,  5  Johns. 
(N.  Y).  loi;  Douglass  «<.  Phoenix  Ins. 
Co.,  138  N.  Y.  209,  overruling  the  an- 
swer, however,  for  want  of  sufficient 
allegations;  O'Neil  v.  Nagle,  14  Daly 
(N.  Y.)  492.  See  also  Donovan  z'.Hunt, 
7  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  29. 
Compare  Gould  v.  Chicago,  etc.,  R.  Co. 
(Supreme  Ct.),  10  N.  Y.  St.  Rep.  921. 
But  it  must  appear  that  the  foreign 
•court  had  acquired  jurisdiction  under 
its  laws.  Douglass  v.  Phcenix  Ins. 
Co.,  138  N.  Y.  209;  Missouri  Pac.  R. 
Co.  V.  Sharitt,  43  Kan.  375,  19  Am.  St. 
Rep.  143. 

Pleading. — And  it  has  been  held  that 
the  pleading  must  allege  the  statute 
by  authority  of  which  the  attachment 
was  issued,  and  exhibit  the  proceed- 
ings at  large,  that  it  may  be  seen  that 
the  right  to  attach  the  debt  existed, 
and  that  the  law  has  been  strictly 
pursued.  Sargent  v.  Sargent  Granite 
Co.  (Com.  PI.),  26  N.  Y.  Supp.  737;  in 
connection  with  which  see  Williams  v. 
IngersoU,  89  N.  Y.  508.  For  the  form 
of  a  common-law  plea  in  abatement  of 
a.  foreign  attachment  pending,  see 
Wheeler  v.  Raymond,  8  Cow.  (N.  Y.) 
315,  n. 

Attachments  in  Other  States. — Further- 
more, that  the  pendency  of  an  action 
aided  by  attachment  in  the  court  of 
another  state  is  not  pleadable  in  abate- 
ment of  an  action  in  New  York  by  the 
same  plaintiff  for  the  same  cause 
against  the  same  defendant,  see  Sar- 
gent V.  Sargent  Granite  Co.  (C.  PI.), 
26  N.  Y.  Supp.  737,  reversing  23  N.  Y. 
Supp.  886;  Osgood  z'.  Maguire,  61  N.  Y. 
S2^, affirming  ti  Barb.  (N.Y.)  54;  Nason 
Mfg.  Co.  V.  Rankin  Ice  Mfg.  Co.,  i 
Rob.  C.  C.  (N.  Y.)  455;  Hecker  v. 
Mitchell,  5  Abb.  Pr.  (N.  Y.  Super.  Ct.) 
453;  Buffalo  Coal  Co.  v.  Rochester, 
etc.,  R.  Co.,  8  W.  N.  C.  (Pa.)  126;  Par- 
sons V.  Columbia  Ins.  Co.,  2  Phila. 
(Pa.)  21.  See  Lawrence  v.  Reming- 
ton, 6  Biss.  (U.  S.)  44;  Noble  v. 
Thompson  Oil  Co.,  69  Pa.  St.  409; 
Wilson  V.  Mechanics'  Sav.  Bank,  45 
Pa.  St.  488. 


Contrary  Authorities. — Baltimore  v. 
May,  25  Ohio  St.  347,  holds  that  the 
foreign  garnishment  is  a  good  defense. 
Likewise  German  Bank  v.  American 
F.  Ins.  Co.,  83  Iowa.  491.  And  Har- 
vey V.  Great  Northern  R.  Co.,  50 Minn. 
405,  states  that  the  majority  of  the 
courts  sustain  the  same  rule,  the  court 
granting  a  continuance,  however,  in 
that  case.  See  also  Lowry  v.  Hall,  2 
W.  &  S.  (Pa.)  129,  38  Am.  Dec.  495. 

1.  Harvey  v.  Great  Northern  R. 
Co.,  50  Minn.  405.  See  also  Chatzel  v. 
Bolton,  3  McCord  (S.  Car.)  28. 

Summary  Statement. — "The  courts 
when  called  upon  to  decide  this  ques- 
tion have  uniformly  held  that  a  cred- 
itor ought  to  be  at  liberty  to  secure 
himself  by  action  against  his  debtor, 
who  may  be  apt  to  become  insolvent 
or  abscond,  or  who  may  be  in  collu- 
sion with  the  foreign  plaintiff,  not- 
withstanding the  earlier  foreign  at- 
tachment, and  that  the  only  protec- 
tion which  the  defendant  can  require 
is  to  have  a  continuance  of  the  action 
or  a  moulding  of  the  judgment  in  such 
a  form  that  he  should  not  be  obliged 
to  pay  the  same  debt  twice.  This  I 
undarstand  to  be  the  decided  law  of 
Massachusetts,  Alabama,  California, 
New  Hampshire,  Vermont,  Georgia,  In- 
diana, and  Louisiana.  Winthrop  v. 
Carlton,  8  Mass.  456;  Crawford  v. 
Slade,  9  Ala.  887,  44  Am.  Dec.  463; 
McFadden  v.  O'Donnell,  18  Cal.  160; 
McKeon  v.  McDermott,  22  Cal.  667,  83 
Am.  Dec.  86;  Wadleigh  v.  Pillsbury, 
14  N.  H.  373;  Drew  v.  Towle,  27 
N.  H.  412;  Hicks  V.  Gleason,  20  Vt. 
139;  Shealy  v.  Toole,  56  Ga.  610; 
Smith  v.  Blatchford,  2  Ind.  183,  52 
Am.  Dec.  504;  Carroll  v.  McDonogh, 
10  Martin  (La.)  609."  Per  Lowell,  J., 
in  Lynch  v.  Hartford  F.  Ins.  Co.,  17 
Fed.  Rep.  627. 

2.  Rood  V.  Eslava,  17  Ala.  430; 
Ernst  V.  Hogue,  86  Ala.  502;  Phillips 
V.  Quick,  68  111.  324;  Stroh  v.  Uhrich, 
I  W.  &  S.  (Pa  )  57.  See  also  Havi- 
land  V.  Wehle,  11  Abb.  Pr.  N.  S. 
(N.  Y.  C.  PI.)  449- 

Where  Want  of  Jurisdiction  is  Not  Ob- 
vious.— In  Merriam  v.  Baker,  9  Minn. 
40  (Flandrau,  J.,  dissenting),  it  was  held 
that  if  the  court  where  an  action  is 


766 


As  a  Ground  for        ANOTHER  SUIT  PENDING.  Continuance  or  Stay. 


be  ineffectual,  its  pendency  will  not  abate  a  second  suit  between 
the  same  parties  for  the  same  cause  of  action.*  But  the  acci- 
dental destruction  of  the  papers  in  a  suit  does  not  authorize  the 
bringing  of  a  new  suit.* 

II.  As  A  Geound  fob  Continuance  oe  Stay — 1.  Continuance- 
Garnishment  of  Defendant. — It  is  a  proper  ground  for  continuance  that 
the  debt  for  which  the  suit  is  brought  has  been  attached  in  a 
prior  and  pending  action  in  the  same  or  in  another  state  by  a 
creditor  of  the  plaintiff.^ 

Appeal  Pending.— So  where  an  appeal  is  pending,  a  judgment  in 
which  will  operate  as  an  estoppel  upon  the  plaintiff  in  the  second 
suit.-* 


commenced  has  authority  to  determine 
actions  of  that  class  or  character,  such 
action  will  be  deemed  to  be  pending 
therein,  notwithstanding  the  existence 
of  a  question  as  to  whether  the  court 
acquired  jurisdiction  of  the  parties  or 
the  particular  case,  so  long  as  the 
quest  on  remains  undecided  and  until 
the  court  decides  against  its  jurisdic- 
tion. 

1.  Rogers  v.  Hoskins,  15  Ga.  270; 
Heath  v.  Bates,  70  Ga.  633.  The 
language  of  the  court  in  the  Georgia 
cases  is  that  "where  the  former  ac- 
tion is  so  defective  that  no  recovery 
can  possiby  be  had,"  etc.,  "  the  second 
action  will  not  ^bate."  Reynolds  v. 
Harris,  9  Cal.  338,  where  the  former 
suit  was  so  radically  defective  that 
a  judgment  rendered  therein  would 
have  been  a  nullity.  See  also  Ward 
V.  Curtiss,  18  Conn.  290. 

Void  Process. — Minniece  v.  Jeter, 
65  Ala.  222,  where  the  process  by 
which  the  original  action  was  com- 
menced was  issued  by  an  unauthor- 
ized person. 

Invalid  Attachment. — In  an  early  case 
in  Connecticut,  where  property  may  be 
attached  upon  mesne  process,  an  at- 
tachment not  legally  served  so  as 
to  hold  the  estate  taken  thereby 
was  held  not  to  abate  a  second  action. 
Durand  v.  Carrington,  i  Root  (Conn.) 

355- 

Harried  Woman  Suing  Alone. — Where 
a  feme  covert  instituted  a  suit  with- 
out right  or  authority,  a  second  suit 
properly  brought  was  held  not  to  be 
abatable.  Langham  v.  Thomason,  5 
Tex.  127. 

Suit  in  Erroneous  Eepresentative  Char- 
acter.— An  administrator  suing  as  the 
representative  of  the  wrong  party  is 
not  precluded  during  the  pendency  of 
the  suit  from  bringing  another  suit  as 

7 


the  representative  of  the  right  party. 
Cornelius  i/.Vanarsdallen,  3  Pa. St. 434. 

Defective  Writ  of  Error. — Quinebaug 
Bank  v.  Tarbox,  20  Conn.  510,  where 
a  writ  of  error,  ineffectual  by  reason 
of  the  omission  of  the  court  to  allow 
and  sign  a  bill  of  exceptions  as  therein 
stated,  was  abandoned  and  a  new 
writ  of  error  brought  and  sustained. 

Amendable  Defects  in  Pleading. — A 
suit  is  not  defective  because  of  a  mis- 
joinder of  counts  in  the  declaration, 
where  the  defect  can  be  remedied  by 
amendment.  Prosser  v.  Chapman,  29 
Conn.  515. 

Omission  to  Serve  a  Party. — The  first 
suit  is  not  a  mere  nullity,  although  one 
of  the  defendants  resided  out  of  the  ju- 
risdiction and  was  not  served.  White 
V.  Smith,  4  Hill  (N.  Y.)  166. 

Misjoinder  of  Defendants. — Nor  does  a 
mere  misjoinder  of  defendants  in  the 
former  suit  render  it  ineffectual.  Atkin- 
son V.  State  Bank,  5  Blackf.  (Ind.)  85. 

2.  The  lost  record  should  be  sup- 
plied. Tolle  V.  Alley  (Ky.,  1893), 
24  S.  W.  Rep.  113,  where  the  second 
suit  was  abated. 

3.  Winthrop  v.  Carlton,  8  Mass.  456; 
Harvey  v.  Great  Northern  R.  Co.,  50 
Minn.  405,  where  it  was  said  to  make 
no  difference  that  the  garnishee  pro- 
cess was  subsequent  instead  of  prior. 
Blair  v.  Hilgedick,  45  Minn.  23;  Lynch 
V.  Hartford  F.  Ins.  Co.,  17  Fed.  Rep. 
627;  Douglass  V.  Phoenix  Ins.  Co.,  138 
N.  Y.  218;  Smith  v.  Barker,  10  Me, 
458;  McCarthy  v.  Peake,  9  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  164.  But  the 
case  should  proceed  until  the  rights 
of  the  parties  are  ascertained.  Wilson 
V.  Rutland,  etc.,  Ins.  Co.,  19  Vt.  177. 

4.  Standard  Imp.  Co.  v.  Stevens,  51 
Kan.  530;  Willard  v.  Ostrander,  51 
Kan.  481.  See  also  Chatzel  v,  Bolton, 
3  McCord  (S.  Car.)  28. 

67 


As  a  Ground  for         ANOTHER  SUIT  PENDING.  Continuance  or  Stay: 


Cross-Actions. — Where  cross-actions  are  pending,  either  of  them- 
may  be  continued  on  the  defendant's  motion  until  he  shall  obtaia 
judgment  in  his  action.* 

Concurrent  Attachments. — Where  the  same  land  is  attached  by  several 
creditors,  the  subsequent  attaching  creditors  may  continue  their 
actions  until  the  actions  on  which  the  prior  attachments  were 
issued  are  determined.'-* 

Appeal  Between  Other  Parties. — A  continuance  will  not  be  granted 
because  an  appeal  is  pending  in  another  suit  between  one  of  the 
parties  and  third  persons  which,  it  is  alleged,  will  determine  the 
questions  raised  in  the  present  suit.* 

Suit  in  Equity.— Nor  by  reason  of  the  pendency  of  a  suit  in  equity 
for  the  same  matter,  where  a  plea  of  such  suit  would  not  avail  in 
abatement."* 

2.  Stay  of  Proceedings — in  General. — In  order  to  authorize  any 
court  to  stay  proceedings  on  account  of  a  suit  pending  in  another 
court,  the  two  proceedings  must  be  practically  identical.* 

in  another  suit  pending  in  the  United 
States  Supreme  Court,  a  Circuit  Court 
will  continue  the  cause  in  the  absence 
of  special  reasons  to  the  contrary. 
Friedman  v.  Harrington,  56  Fed.  Rep. 
860. 

4.  Davis  V.  Hunt,  2  Bailey  (S.  Car.) 
412;  Loring  v.  Marsh,  2  Cliff.  (U.  S.) 
311.  As  a  ground  for  abatement,  see 
I,  I,  a,  supra. 

Suits  at  Law  and  Equity  in  Same  Court. 
— Where  both  an  action  at  law  and  a 
proceeding  in  chancery  between  the 
same  parties  and  about  the  same  sub- 
ject-matter are  pending  in  the  same 
court,  it  is  not  an  improper  exercise 
of  discretion  to  postpone  the  trial  of 
that  suit  which  depended  upon  strict 
legal  right,  until  those  equities  which 
the  defendant  had  been  compelled  to 
set  up  in  a  separate  action  could  be 
heard  and  determined.  In  case  of 
such  postponement,  however,  the  de- 
fendant should  be  required  to  prose- 
cute his  suit  in  equity  with  diligence; 
and  when  he  fails  in  this  respect, 
the  action  at  law  may  properly  be 
tried.     Purington    v.    Frank,    2    Iowa 

565. 

5.  Proceedings  in  an  action  at  law  in 
a  state  court  will  not  be  stayed  on  ac- 
count of  a  pending  proceeding  in  rem 
in  admiralty.  People  v.  Judges,  27 
Mich.  406,  15  Am.  Rep.  195,  where 
Campbell,  J.,  collates  the  follow- 
ing authorities  in  support  of  tha 
general  principle:  The  Kalorama,  10 
Wall.  (U.  S.)  204;  Toby  v.  Brown,  11 
Ark.  308;  Harmer  v.  Bell  (The  Bold 
Buccleugh),  22  Eng.  L.  &  Eq.  62;  The 


1.  Adams  v.  Manning,  17  Mass.  178; 
Winslow  V.  Hathaway,  i  Pick.  (Mass.) 
211;  Goodenow  v.  Buttrick,'7  Mass. 
140.  Where  the  object  of  two  legal 
proceedings  is  the  same,  the  proceed- 
ings should  be  continued  where  pro- 
cess was  first  served.  Schuehle  v. 
Reiman,  86  N.  Y.  270;  and  this  al- 
though the  second  action  was  com- 
menced without  notice  of  the  pendency 
of  the  first.  Kimball  v.  Mapes,  19  N. 
Y.  Wkly.  Dig.  481. 

2.  Barnard  v.  Fisher,  7  Mass.  71; 
Hoyt  V.  Gelston,  8  Johns.  (N.  Y.)  179. 

3.  Cates  v.  Mayes  (Tex.,  1889),  12 
S.  W  Rep.  51.  Nor  because  an  ap- 
peal has  been  taken  in  another  case 
between  the  same  parties.  Peters  v. 
Banta,  120  Ind.  416;  intimating  that  a 
stay  of  proceedings  might  be  granted; 
on  which  point  see  also  Bryan  v. 
Scholl,  109  Ind.  369. 

In  the  Federal  Courts. — Although  the 
federal  courts  follow  the  construction 
of  the  statutes  and  constitution  adopted 
by  the  courts  of  a  state  wherein  they 
sit,  yet  when  a  suit  in  equity  in  a  fed- 
eral court  involving  such  a  construc- 
tion has  been  set  for  hearing,  the 
court  will  not  on  motion  of  a  party 
postpone  the  trial  to  await  the  deci- 
sion of  the  Supreme  Court  of  the  State 
in  a  suit  pending  before  it  and  alleged 
to  involve  the  same  question,  where  it 
is  not  clear  that  the  precise  point  will 
be  determined  in  the  latter  suit,  and 
it  is  uncertain  when  it  will  come  on 
for  adjudication.  Detroit  v.  Detroit 
City  R.  Co.,  55  Fed.  Rep.  571. 

But  if  the  same  question  be  at  issue 


768 


As  a  Ground  for        ANOTHER  SUIT  PENDING.  Continuance  or  Stay. 

Pendency  of  Writ  of  Error. — A  suit  may  be  stayed  to  await  the 
decision  on  a  writ  of  error  sued  out  during  its  pendency  from  a 
judgment  in  a  prior  suit  between  the  same  parties  for  the  same 
matter.* 


Bengal,  Swabey  469;  The  John  & 
Mary,  Swabey  471;  Nelson  v.  Couch, 
15  C.  B.  N.  S.  99,  109  E.  C.  L.  99; 
Sowter  V.  Dunston,  i  M.  &  R.  508,  17 
E.  C.  L.  269;  Wise  v.  Prowse,  9  Price 
393;  Henry  v.  Nash,  i  Exch.  826; 
Giles  V.  Tooth,  3  C.  B.  665,  54  E.  C.  L. 
665;  Newton  z/.  Belcher,  9  Q.  B.  612, 
58  E.  C.  L.  611;  Newton  v.  Liddiard, 
9  Q.  B.  616,  58  E.  C.  L.  616;  Great 
Northern  R.  Co.  v.  Kennedy,  4 
Exch.  417;  Inglis  v.  Great  Northern 
R.  Co.,  16  Eng.  L.  &  Eq.  55;  Coving- 
ton V.  Hogarth,  7  M.  &.  G.  1013,  49 
E.  C.  L.  loii;  Wade  v.  Simeon,  i  C.  B. 
610,  50  E.  C.  L.  610;  Ostell  V.  Le  Page, 
21  Eng.  L.  &  Eq.  640;  Miles  v.  Bristol, 
3  B.  &  Ad.  945,  23  E.  C.  L.  22;  Dicas 
V.  Jay,  6  Bing.  519,  19  E.  C.  L.  155; 
Davis  V.  Salter,  2  C.  &  M.  466;  Mur- 
phy V.  Cadel,  2  Bos.  &  P.  137;  Smidt  v. 
Ogle,  6  Taunt.  74;  Laughtonw.  Taylor, 
6  M.  &.  W.  695;  The  Ann  &  Mary,  2 
W.  Rob.  189;  General  Steam  Nav.  Co. 
V.  Tonkin,  4  Moore  321.  To  the  same 
point  see  Smith  v.  College  of  St. 
Francis  Xavier  (Super.  Ct.),  20  N.  Y. 
Supp.  533;  Ludeke  v.  McKeever  (Su- 
preme Ct.).  9  N.  Y.  St.  Rep.  827;  Au- 
burn City  Bank  v.  Leonard,  20  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193;  People 
V.  Northern  R.  Co.,  53  Barb.  (N.  Y.) 
98;  Carlisle  v.  Cooper,  18  N.  J.  Eq.  241; 
Mercantile  Trust  Co.  v.  Lamoille  Val- 
ley R.  Co.,  16  Blatchf.  (U.  S.)  324;  Con- 
verse V.  Michigan  Dairy  Co.,  45  Fed. 
Rep.  18.  The  question  is  considered 
in  Hurd  v.  Moiles,  28  Fed.  Rep.  897, 
and  the  rule  is  stated  in  terms  more 
favorable  to  a  stay.  See  Estes  v. 
Worthington,  30  Fed.  Rep.  465;  San- 
ford  V.  Cloud,  17  Fla.  532;  Avery  v. 
Contra  Costa  County,  57  Cal.  247; 
Dunphy  v.  Belden,  57  Cal.  427;  Law- 
rence V.  Hale,  24  N.  J.  L.  43;  Adam- 
son  V.  Tuff,  44  L.  T.  N.  S.  420;  Murphy 
V.  Cadell,  2  Bos.  &  P.  137. 

Extent  of  Discretion. — Where  several 
actions  are  brought  for  the  same  cause, 
proceedings  may  be  stayed  in  all  but 
one.  Jones  v.  Pritchard,  6  D.  &.  L. 
529,  18  L.  J.  Q.  B.  104;  Sowter  z'.  Dun- 
ston, I  M.  &  R.  508,  17  E.  C.  L.  269; 
Carne  v.  Legh,  6  B.  &  C.  124,  9  D.  & 
R.  126,  13  E.  C.  L.  118;  Burlingame  z/. 
Farce,  12  Hun  (N.  Y.)  149;  Flanagan 

I  Encyc.  PI.  &  Pr.— 49.  7^9 


V.  Flanagan  (Supreme  Ct.).  13  N.  Y. 
St.  Rep.  432;  Cushman  v.  Leland,  93 
N.  Y.  652;  Brown  v.  May,  17  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  205;  Parma- 
lee  V.  Wheeler,  32  Wis.  429;  Orville, 
etc.,  R.  Co.  V.  Plumas  County,  37  G^l. 
354.  Or  in  all  until  plaintiff  elects  to^ 
discontinue  in  all  t)ut  one.  Ham- 
mond V.  Baker,  3  Sandf.  (N.  Y.)  704; 
Litchfield  v.  Smith,  7  Robt.  N.  Y.  306. 
And  this  may  be  done  v/here  the 
plaintiff  of  record  is  not  the  same  in 
all,  if  they  are  under  the  control  of 
one  person  and  for  his  benefit.  Soule 
V.  Corning,  11  Paige  (N.  Y.)4i2;  Mari- 
posa Co.  V.  Garrison,  26  How.  Pr. 
(N.  Y.  Supreme  Ct.)  448;  McFarlan  v. 
Clark.  2.Sandf.  (N.  Y.)  699. 

Where  several  actions  are  pending, 
the  court  has  no  power  to  compel  the 
parties  to  be  bound  by  the  result  of  the 
trial  of  one  of  them.  Doyle  v.  Ander- 
son, I  Ad.  &  El.  635,  28  E.  C.  L.  169; 
Rex  V.  Cousins,  7  Ad.  &  El.  285,  34 
E.  C.  L.  92;  McGregor  v.  Horsfall,  3 
M.  &  W.  320;  Sherman  v.  McNitt,  4 
Cow.  (N.  Y.)  85.  Compare  Jackson  v.  . 
Schauber,  4  Cow.  (N.  Y.)  78. 

In  Case  of  Defective  Answer  in  Abate- 
ment.— Where  the  answer  shows  the 
pendency  of  another  suit,  but  does 
not  properly  plead  the  necessary  facts, 
it  is  error  to  allow  the  two  cases  to 
proceed  independently  of  each  other. 
The  latter  should  be  stayed  until  the 
determination  of  the  former,  or  the 
two  cases  should  be  consolidated  and 
tried  together.  Crane  v.  Larsen,  15 
Oregon  345,  a  suit  in  equity  where 
another  suit  in  equity  was  pending. 
See  also  Parmelee  v.  Tennessee,  etc., 
R.  Co.,  13  Lea  (Tenn.)  600. 

1.  Scott  V.  Herald,  8  Blackf.  (Ind.) 
129;  Hailman  v.  Buckmaster,  8  111. 
498,  citing  Christie  v.  Richardson,  3 
T.  R.  78;  Myer  v.  Arthur,  i  Stra.  419; 
Cressy  v.  Kell,  i  Wils.  120.  See  also 
Porter  v.  Kingsbury,  77  N.  Y.  165; 
Waring  v.  Yale,  i  Hun  (N.  Y.)  492; 
Brady  v.  New  York  (Super.  Ct.),  5  N. 
Y.  Supp.  181;  Den  v.  Fen,  17  N.  J.  L. 
354- 

Stipulation  to  abide  the  event  of  an 
appeal  in  another  case  operates  as  a 
stay.  Murphy  v.  Keyes,  2  Hun  (N.Y.) 
375. 


Taking  the 


ANOTHER  SUIT  PENDING. 


Objection. 


Pendency  of  Garnishment. — Where  the  defendant  in  an  action  is 
garnisheed  by  a  creditor  of  the  plaintiff,  the  proper  practice  is 
for  the  court  in  which  the  action  is  pending  to  grant  a  stay  of 
proceedings  in  the  action  before  judgment;  or  if  judgment  is 
entered,  to  stay  execution  as  to  the  whole  or  part  thereof  until 
the  garnishment  proceedings  are  disposed  of.* 

Suit  in  Foreign  Jurisdiction. — The  court  may,  in  its  discretion,  stay 
proceedings  on  account  of  the  pendency  of  another  action  in  a 
foreign  jurisdiction  between  the  same  parties  involving  the  same 
matter.* 

In  Equity. — Where  two  or  more  suits  are  instituted  in  equity  on 
behalf  of  an  infant  for  the  same  matter,  the  court  will,  upon  repre- 
sentation of  the  fact,  direct  an  inquiry  as  to  which  suit  is  most  for 
the  infant's  benefit,  and  when  that  point  is  ascertained  will  stay 
proceedings  in  the  other  suits. ^  And  after  a  decree  for  an  account 
in  a  suit  by  creditors  against  an  executor  or  administrator,  the 
court  will,  upon  motion  of  the  defendant,  stay  proceedings  in  a 
subsequent  suit  by  other  creditors."* 

Ill  Taking  the  Objection — 1.  At  Common  Law— «.  Objection, 
How  Taken. — The  pendency  of  a  former  action  merely  defeats  the 
present  proceeding  and  must  ordinarily  be  pleaded  in  abatement,* 


1.  Blair  v.  Hildedick,  45  Minn.  23; 
Shealy  v.  Toole,  56  Ga.  210;  Harvey 
V.  Great  Northern  R.  Co.,  50  Minn. 
405;  Crawford  v.  Clute,  7  Ala.  157,  41 
Am.  Dec.  92;  Drake  on  Attachment 
(6th  ed.)  §  701;  McFadden  v.  O'Don- 
rell,  18  Cal.  160;  Pierson  v.  McCahill, 

21  Cal.    123;    McKeon  v.   McDermott, 

22  Cal.  667,  83  Am.  Dec.  86;  Hixon 
V.  Schooley,  26  N.  J.  L.  461.  See 
Barkers-.  Haskell,  9  Cush.  (Mass.)  218; 
Blumenthal  v.  Taylor,  44  111.  App.  139; 
Wood  V.  Lake,  13  Wis.  84. 

2.  McHenry  v.  Lewis,  22  Ch.  Div. 
397,  affirming  21  Ch.  Div.  202;  Peru- 
vian Guano  Co.  v.  Bockwoldt,  23  Ch. 
Div.  225,  criticising  Cox  v.  Mitchell,  7 
C.  B.  N.  S.  55.  97  E.  C.  L.  55;  Par- 
malee  v.  Wheeler,  32  Wis.  429;  Kerr  v. 
Willetts,  48  N.  J.  L.  78;  Lewis  v.  Hig- 
gins,  52  Md.  614;  Bell  v.  Donohue,  47 
N.  Y.  Super.  Ct.  458.  Contra,  dictum  in 
Cole  V.  Flitcraft,  47  Md.  316. 

Beview  of  Discretion  on  Appeal. — In 
People  V.  Northern  R.  Co.,  53  Barb. 
(N.  Y.)  98,  it  was  held  that  in  so  far  as 
the  question  is  addressed  to  the  discre- 
tion of  the  court,  the  decision  at  special 
term  cannot  be  overhauled  on  appeal. 

3.  iDaniellCh.  Pr.  (5th ed.)69;  Mor- 
timer V.  West,  I  Swanst.  358.  Under 
special  circumstances  the  court  may 
make  an  order  upon  motion  and  notice 
without  directing  an  inquiry,     i  Dan- 


iell  Ch.  Pr.  (5th  ed.)  70;  Staniland  v. 
Staniland,  M.  R.  21  Jan.  1864.  See 
Frost  V.  Ward,  12  W.  R.  285,  2  DeG., 
J.  &  S.  70. 

4.  I  Daniell  Ch.  Pr.  (5th  ed.)  635. 

5.  Stephens  v.  Monongahela  Bank, 
III  U.  S.  197,  holding  also  in  accord- 
ance with  the  provisions  of  §  loii  U.  S. 
Rev.  Sts.  that  the  decision  of  the  court 
on  the  plea  is  not  subject  to  review. 
Morton  v.  Sweetser,  12  Allen  (Mass.) 
135;  Percival  v.  Hickey,  18  Johns.  (N. 
Y.)  257,  9  Am.  Dec.  210;  Moore  v. 
Spiegel,  143  Mass.  413;  Bank  of  U.  S. 
V.  Merchants'  Bank,  7  Gill  (Md.)4i5; 
Kempton  v.  Sullivan  Sav.  Inst.,  53 
N.  H.  581;  Harris  v.  Johnson,  65  N. 
Car.  478;  and  cases  in  the  following 
notes.  It  cannot  be  taken  advantage 
of  by  motion  to  dismiss.  Morton  v. 
Sweetser,  12  Allen  (Mass.)  135.  And 
cannot  be  pleaded  under  leave  of  the 
court  to  plead  double.  Davis  v.  Grain- 
ger, 3  Johns.  (N.  Y.)  258.  Where  de- 
fendants are  sued  jointly  one  alone 
cannot  plead  in  abatement  of  the  whole 
suit.  DeForest  v.  Jewett,  i  Hall  (N. 
Y.)  137. 

In  In  re  Linn's  Estate,  2  Pearson 
(Pa.)  487,  it  was  held  that  as  there  are 
no  written  pleadings  in  the  Orphans' 
Court,  an  objection  of  another  suit 
pending  may  be  taken  therein  ore 
tenus. 


770 


Taking  the 


ANOTHER  SUIT  PENDING. 


Object)  :>ii. 


and  not  in   bar,*  and  is  not   admissible   in   evidence    under   the 
general  issue.*'* 

b.  At  What  Stage  of  Proceedings.— The  plea  in  abatement 
cannot  be  filed  after  pleading  to  the  merits  of  the  action. ^ 

c.  Requisites  of  the  Plea. — The  greatest  strictness  and  ac- 
curacy are  required  in  a  plea  of  this  kind.*  It  must  be  certain  to 
every  intent,*  not  argumentative,**  and  free  from  duplicity''  or 
repugnancy.®  The  plea  must  state  in  what  court  the  prior  action 
is  pending,®  and  refer  to  the  record  thereof,  the  usual  formulary 
being  "  as  by  the  record  thereof  remaining  in  said  court  appears  ;"  *** 


1.  Morton  v.  Sweetser,  12  Allen 
(Mass.)  135  ;  Sullings  v.  Goodyear 
Dental  Vulcanite  Co.,  36  Mich.  313; 
Jenkins  -/.  Pepoon,  2  Johns.  Cas.  (N. 
Y.)  312;  Near  v.  Mitchell,  23  Mich.  3S2, 
where  the  prior  suit  was  a  garnishee 
process;  Moore  v.  Spiegel,  143  Mass. 
413;  Mattel  V.  Conant,  156  Mass.  418; 
Findlay  v.  Keim,  62  Pa.  St.  112. 

Qui  Tain  Actions. — The  rule  is  dif- 
ferent in  the  case  of  qui  tarn  actions  for 
penalties  where  the  property  in  the 
thing  in  action  is  vested  in  the  person 
who  first  sues  for  it,  and  that  suit 
may  be  pleaded  in  bar  of  a  second. 
Engle  V.  Nelson,  i  P.  &  W,  (Pa.)  442; 
Morton  v.  Sweetser,  12  Allen  (Mass.) 
137;  Anderson  v.  Barry,  2  J.  J.  Marsh. 
(Ky.)  281.  See  also  Com.  v.  Cope,  45 
Pa.  St.  161;  Derham  v.  Berry,  5  Phila. 

(Pa.)  475- 

2.  Smock  V.  Graham,  i  Blackf. 
(Ind.)  314;  Percival  v.  Hickey,  18 
Johns,  (N.  Y.)  257,  9  Am.  Dec.  210; 
Near  v.  Mitchell,  23  Mich.  382;  Will- 
iamson V.  Paxton,  18  Gratt.  (Va.)  504; 
Sherwood  v.  Hammond,  4  Blackf. 
(Ind.)  504.  See  also  Gregory  z/.  Kenyon, 
34  Neb.  640. 

3.  Hartz  v.  Com.,  i  Grant's  Cas. 
(Pa.)  359;  Engle  v.  Nelson,  i  P.  &  W. 
(Pa.)  442;  Com.  V.  Cope,  45  Pa.  St.  164; 
Morton  v.  Sweetser,  12  Allen  (Mass.) 
137;  Drake  v.  Brander,  8  Tex.  352; 
Maxwell  v.  First  Nat.  Bank  (Tex.  Civ. 
App.,  1894),  24  S.  W.  Rep.  848.  See 
also  People  v.  Smith,  65  Mich,  i;  Tra- 
wick  V.  Martin  Brown  Co.,  74  Tex. 
522.  See  Abatement  in  Pleading, 
ante,  p.  I. 

General  or  Special  Imparlance.  —  It 
cannot  be  pleaded  after  a  general  im- 
parlance, but  may  be  after  a  special 
imparlance.  Coates  v.  McCarney,  2 
Browne  (Pa.)  173;  Ralph  v.  Brown,  3 
W.  &  S.  (Pa.)  395;  M'Carney  v.  Mc 
Camp,  I  Ashm.  (Pa.)  4,  holding  that  a 
plea  in  abatement  filed  out  of  time 
may  be  treated  as  a  nullity. 


After  Bemoval  of  Action. — In  Colt  v. 
Partridge,  7  Met.  (Mass.)  570,  it  was 
held  that  the  defendant  may  plead  in 
abatement  in  the  supreme  judicial 
court  after  removing  an  action  into 
that  court  pursuant  to  Mass.  Sts.  1840, 
c.  87,  g  3.  Colt  V.  Partridge,  7  Met. 
(Mass.)  570. 

4.  Severy  v.  Nye,  58  Me.  246;  Ballou 
V.  Ballou,  26  Vt.  673;  Thompson  v. 
Lyon,  14  Cal.  39.  Defect  in  form  may 
be  taken  advantage  of  by  general  de- 
murrer. Clifford  V.  Cony,  i  Mass. 
495- 

5.  Severy  v.  Nye,  58  Me.  246;  Wales 
V.  Jones,  I  Mich.  254. 

6.  Severy  v.  Nye,  58  Me.  246,  hold- 
ing that  such  a  defect  may  be  reached 
by  general  demurrer. 

7.  Wadleigh  v.  Pillsbury,  14  N.  H. 
373- 

8.  Bigelow  V.  Farmer,  5  Blackf. 
(Ind.)  31. 

9.  Bullock  V.  Bolles,  9  R.  I.  501. 
See  also  Berger  v.  Moessinger,  5  Ohio 
Cir.  Ct.  Rep.  432;  Miller  v.  Rigney, 
16  Ind.  327.  The  name  and  style  of 
the  court  are  indispensable.  Fahy  v. 
Brannagan,  56  Me.  44,  holding  that  a 
plea  of  a  pending  statute  submission 
of  all  demands  must  not  only  set  out 
the  name  of  the  referee,  but  allege  his 
acceptance. 

10.  Bullock  V.  Bolles,  g  R.  I.  501; 
Clifford  V.  Cony,  i  Mass.  494;  Com.  v. 
Churchill,  5  Mass.  174. 

Bule  in  New  Hampshire. — "If  both  ac- 
tions were  pending  in  the  same  court, 
it  was  sufficient  for  the  plea  to  state 
that  the  parties  and  cause  of  action 
were  the  same,  and  to  refer  the  court 
to  their  own  record;  and  the  trial  in 
such  case  was  by  inspection  of  the 
record  and  not  by  proof  aliunde.  The 
plaintiff  was  entitled  to  oyer  of  the 
record  remaining  in  the  court.  Theo- 
balds V.  Langs,  Ld.  Raym.  847;  Cremer 
V.  Wickett,  Ld.  Raym.  550;  Bond  v. 
Barnes,  3  Ld.  Raym.  77.     If  the  prior 


771 


Taking  the 


ANOTHER  SUIT  PENDING. 


Objection. 


and  it  must  aver  that  the  action  is  still  pending,^  and  show  that 
both  suits  are  for  the  same  cause  and  matter,*  and  that  the  court 
wherein  the  former  suit  is  pending  has  jurisdiction  thereof.*  The 
plea  must  conclude  with  a  prayer  of  judgment  of  the  writ,*  and 
should  be  verified  by  affidavit.*  See  ABATEMENT  IN  Pleading, 
ante,  p.  i. 

d.  Proceedings  Subsequent  to  Plea — Demurrer. — If  the  plea 
is  insufficient  in  form  or  substance,  the  proper  course  is  to  demur.^ 

Replication. — The  only  replication  to  the  plea  is  that  of  mil  tiel 
record.'' 


action  was  pending  in  another  court, 
to  furnish  means  of  determining  the 
truth  of  the  plea  by  inspection,  the 
rule  of  pleading  requires  that  the  plea 
should  set  out  the  record  in  the  prior 
action  literally  subpede  sigilli.  Carwen 
V.  Fletcher,  i  Stra.  520;  Petre  v.  Uni- 
versity of  Cambridge,  3  Lev.  332." 
Per  Perley,  J.,  in  Smith  v.  Atlantic 
Mut.  F.  Ins.  Co.,  22  N.  H.  25,  followed 
in  Ladd  v.  Stratton,  59  N.  H.  200. 

In  Connecticut  it  seems  that  the  same 
practice  obtains,  Beach  v.  Norton,  8 
Conn.  71;  and  certainly  in  Maine, 
Fahy  v.  Brannagan,  56  Me.  42;  Turner 
V.  Whitmore,  63  Me.  526;  Brastow  v. 
Barrett,  82  Me.  166. 

New  Jersey. — In  Trenton  Bank  v. 
Wallace,  9  N.  J.  L.  83,  it  was  held 
that  an  exemplification  of  the  record 
sub  pede  sigilli,  duly  authenticated, 
must  accompany  the  plea  and  be  filed 
therewith  as  matter  of  evidence. 

1.  I,  3,  supra;  Wales  v.  Jones,  i 
Mich.  254;  Pew  «/.  Yoare,  12  Mich.  16. 
But  see  Lee  v.  Hefley,  21  Ind.  98. 

Evidence  of  Pendency. — The  pendency 
of  a  prior  action  can  only  be  proved  by 
record  evidence.  Smith  v.  Ricketts, 
Liv.  Opin.  (N.  Y.)  27;  Smileyz/.  Dewey, 
17  Ohio  156;  Wright  v.  Maseras,  56 
Barb.  (N.  Y.)  521.  See  Bond  z/. White, 
24  Kan.  45;  Craig  v.  Smith,  10  Colo. 
220;  Hixon  V.  Schooley,  26  N.  J.  L. 
461. 

2.  I,  5,  supra;  Tracy  v.  Reed,  4 
Blackf.  (Ind.)  56;  Calaveras  County  v. 
Brockway,  30  Cal.  325  ;  Llano  Imp., 
«tc.,  Co.  V.  Cross,  5  Tex.  Civ.  App. 
175;     Bourland     v.    Nixon,    27   Ark. 

315. 

On  plea  in  abatement  to  the  entire 
action,  if  the  proof  shows  that  the  first 
suit  is  only  for  part  of  the  matter  sued 
for  in  the  second  suit,  the  plea  fails. 
Thompson  v.  Lyon,  14  Cal.  39. 

S.  Ex  p,  Balch,  3  McLean  (U.  S.) 
221;  White  V.  Whitman,  i  Curt.  (U.  S.) 


494.     But   see   Newell  v.    Newton,   10 
Pick.  (Mass.)  470. 

4.  Fahy  v.  Brannagan,  56  Me.  42; 
Yelverton  v.  Conant,  18  N.'H.  123; 
Clark  V.  Brown,  6  N.  H.  434.  A 
prayer  that  it  may  be  quashed,  with- 
out praying  judgment,  is  bad.  Hazzard 
V.  Haskell,  27  Me.  549;  Crawford  v. 
Slade,  9  Ala.  892,  holding  the  defect 
fatal  on  demurrer.  A  plea  which  be- 
gan by  praying  judgment  of  the  writ 
and  declaration  and  ended  with  a 
prayer  for  judgment  of  the  writ  only 
was  held  good  on  demurrer.  Buckles 
V.  Harlan,  54  111.  361. 

5.  Hall  V.  Wallace,  25  Ala.  438, 
holding  the  want  of  afl5davit  fatal  on 
demurrer.  See  also  Trenton  Bank  v. 
Wallace.  9  N.  J.  L.  83;  Whiter.  Whit 
man,  iCurt.  (U.  S.)494.  Contra,  Smith 
V.  Atlantic  Mut.  F.  Ins. Co.,  22  N.H.  25. 

Want  of  Verification  cannot  be  taken 
advantage  of  by  demurrer.  Buchanan 
V.  Logansport,  etc.,  R.  Co.,  71  Ind. 
265.  Nor,  it  seems,  will  an  objection 
be  entertained  for  the  first  time  after 
the  jury  are  sworn.  Wilson  v.  Poole, 
33  Ind.  443. 

6.  Ralph  V.  Brown,  3  W.  &  S.  (Pa.) 
395;  Pittsburg,  etc.,  R.  Co.  v.  Mt. 
Pleasant,  etc.,  R.  Co.,  76  Pa.  St.  481. 
Formal  objections  not  made  in  the 
court  below  will  not  be  considered  on 
appeal.  Rawson  v.  Guilberson,  6  Iowa 
507. 

7.  Pittsburg,  etc.,  R.  Co.  v.  Mt. 
Pleasant,  etc.,  R.  Co.,  76  Pa.  St.  481; 
Merriam  v.  Baker,  9  Minn.  40.  But  see 
Buffum  V.  Tilton,  17  Pick.  (Mass.)  510. 
A  bad  replication  may  upon  demurrer 
be  a  sufficient  reply  to  a  bad  plea. 
Leavitt  v.  Mowe,  54  Md.  613.  A  rep- 
lication that,  at  the  commencement  of 
the  suit  in  which  the  plea  was  inter- 
posed, there  was  not  another  suit  pend- 
ing for  the  same  cause  of  action  was 
held  good  in  Haight  v.  Holley,  3  Wend. 
(N.  Y.)258. 


772 


Taking  the  ANOTHER  SUIT  PENDING.  Objection. 

Dismissal  on  Motion. — The  court  cannot  dismiss  a  case  on  motion 
on  the  ground  of  a  former  suit  pending,  when  a  plea  in  abate- 
ment therefor  has  been  repHed  to  and  the  issue  thereon  remains 
undisposed  of.^ 

Judgment. — The  proper  judgment  on  sustaining  a  demurrer  to  a 
plea  in  abatement  is  not  final,  but  only  quod  respondeat  otister.^ 
The  rule  is  different  when  issue  is  joined  upon  such  plea  and  the 
jury  finds  for  the  plaintiff.  In  that  case  he  is  entitled  to  a  verdict 
on  the  merits.^  The  judgment  for  the  defendant  on  a  plea  in 
abatement,  whether  it  be  on  an  issue  in  fact  or  in  law,  is  that  the 
writ  be  quashed.* 

2.  In  Equity — Demurrer. — If  it  appears  upon  the  face  of  the  bill 
that  there  is  another  suit  pending  in  another  court  of  equity  in  the 
same  jurisdiction  between  the  same  parties  for  the  same  cause 
of  action,  the  objection  may  be  taken  by  demurrer.* 

Plea. — Otherwise  the  objection  must  be  taken  by  plea  in  abate- 
ment and  not  by  answer®  or  motion,''  except  when  two  suits 
are  brought  in  the  name  of  an  ii.'ant,  in  which  case  it  is  a 
motion  of  course  to  obtain  a  reference  on  the  statement  of  coun- 
sel that  both  suits  are  for  the  same  purpose,  to  see  which  of  them 
is  most  for  the  infant's  benefit,  and  so  most  proper  to  be  pro- 
ceeded with.® 

Form  of  Plea.— The  plea  should  set  forth  the  commencement  of 
the  former  suit,  its  general  nature,  character,  and  objects,  the  re- 
lief prayed,  and  how  far  it  has  progressed.®  It  should  state  that 
there  have  been  proceedings  in  the  former  suit,  such  as  an  ap- 
pearance, or  process  requiring  an  appearance  at  least.**     It  should 

1.  Gruler  v.  McRoberts,  48  Mich,  nessee,  etc.,  R.  Co.,  13  Lea  (Kan.) 
316.  600. 

2.  Gould  PI.  300;  Atkinson  v.  State  Plea  Standing  for  Answer.  —  A  plea 
Bank,  5  Blackf.  (Ind.)  85;  Haight  v.  may  be  ordered  to  stand  for  an  answer; 
Holley,  3  Wend.  (N.  Y.)  263;  Brani-  and  under  the  Massachusetts  practice 
gan  V.  Rose,  8  111.  123.  the  plea,  if  inserted  in  an  answer,  must 

3.  Stephen  PI.  105;  Gould  PI.  300;  be  taken  to  be  part  of  it  and  true  for 
Atkinson  v.  State  Bank,  5  Blackf.  all  the  purposes  of  the  case  if  the  case 
(Ind.)  85;  Haight  v.  Holley,  3  Wend,  is  set  down  by  the  plaintiff  for  hearing 
(N.  Y.)  263.  upon  the  bill  and  answer.     Tansey  v. 

4.  I  Chitty  PI.    457;    Blackburn  v.  McDonnell,  142  Mass.  220. 
Watson,  85  Pa.   St.  241.  7.   Murray  v.   Shadwell,   17  Ves.  Jr. 

5.  I  Foster  Fed.  Pr.  (2d  ed.)  §  108.  353,  disapproving  Anonymous,  Mosely 

6.  Pierce  v.  Feagans,  39  Fed.  Rep.  268.  See  also  Hertell  v.  Van  Buren, 
587;  Battell  V.  Matot,  58  Vt.  271.  3   Edw.    Ch.  (N.   Y.)  20;  Parmelee  v. 

A  Preliminary  Matter. — As  an  incident  Tennessee,  etc.,  R.  Co.,  13  Lea  (Tenn.) 

among  other  matters  in  an  answer  on  600. 

the  merits  it  will  not  avail.  Curd  v.  8.  Daniell  Ch.  Pr.  (5th  ed.)  69,  634; 
Lewis,  I  Dana  (Ky.)  353.  The  right  Sullivan  v.  Sullivan,  2  Mer.  40;  Bat- 
to  rely  on  a  plea  in  abatement  is  waived  tell  v.  Matot,  58  Vt.  281. 
by  including  in  the  same  pleading  an  9.  Crescent  City  Live  Stock,  etc., 
answer  to  the  merits.  Marshall  v.  Co.  v.  Butchers'  Union  Live  Stock, 
Otto,  59  Fed.  Rep.  249.  It  is  not  too  late  etc.,  Co.,  12  Fed.  Rep.  225;  Foster  v. 
when  filed  after  a  continuance  made  Vassall,  3  Atk.  590;  Story  Eq.  PI.  § 
with  express  reservation  of  the  right  737;  i  Foster  Fed.  Pr.  (2d  ed.)  §  129. 
to   make  defense.     Parmelee  v.  Ten-  10.  Story   Eq.    PI.   §  737;  Moore  v. 

773 


Laking  the 


ANOTHER  SUIT  PENDING. 


Objection. 


then  aver  specifically  that  the  second  suit  is  for  the  same  subject- 
matter*  as  the  first  and  seeks  the  same  or  similar  relief,*  and  that 
the  former  suit  is  still  pending.' 

Verification.— A  plea  of  this  kind  is  not  put  in  upon  oath.* 
Proceedings  upon  Plea. — The  usual  course  is  not  to  reply  to  the 
plea,*  or  to  have  the  plea  set  down  and  argued,  but  to  refer  it  on 
motion  of  the  plaintiff  at  once,  and  of  course  to  a  master,  to 
look  into  the  two  suits  and  report  whether  or  not  they  are  both 
for  the  same  matter.®  If  he  reports  that  they  are,  the  plea  is 
allowed;''  but  if  he  reports  that  they  are  not,  the  plea  is  then 


Welsh  Copper  Co.,  i  Eq.  Abr.  39,  pi. 
14. 

1.  Devil  V.  Brownlow,  2  Dick.  611; 
Mitford  PI.  Ch.  2,  §  2,  part  2;  Story 
Eq.  PI.  §  737;  Crane  v.  Larsen,  15 
Oregon  349.  The  averment  may  be 
omitted,  provided  facts  are  stated  suf- 
ficient to  show  the  identity  of  subject- 
matter.  Davison  v.  Johnson,  16  N.  J. 
Eq.  112;  McEwen  v,  Broadhead,  11  N. 
J.  Eq.  129. 

Annexing  Former  Bill  by  Reference. — 
Although  the  terms  of  the  plea  import 
that  the  former  suit  is  for  the  same 
cause  of  action,  if  a  part  of  the  former 
bill  is  annexed  to  the  plea  by  ref- 
erence, the  plea  must  be  read  pre- 
cisely as  it  would  had  the  former  bill 
been  introduced  in  its  very  terms  into 
the  body  of  the  plea.  Wheeler  v.  Mc- 
Cormick,  8  Blatchf.  (U.  S.)  267. 

2.  Behrens  v.  Sieveking,  2  Myl.  & 
C.  602;  Wheeler  v.  McCormick,  8 
Blatchf.  (U.  S.)  267;  Jenkins  v.  El- 
dridge,  3  Story  (U.  S.)  183;  Story  Eq. 

PI-  §  737- 

3.  Story  Eq.  PI.  §  737.  See  Urlin 
V.  Hudson,  I  Vern.  332;  Mitford  PI. 
ch.  2,  $  2,  part  2.  Great  strictness  is 
required.  Moss  v.  Ashbrooks,  12  Ark. 

369- 

4.  Green  v.  Neal,  2  Heisk,  (Tenn.) 
217;  Mitford  PI.  ch.  2,  §  2,  part  2, 
citing  Urlin  v.  Hudson,  i  Vern.  332. 
But  see  United  States  Equity  Rule  31. 

Certificate  of  Counsel  that  the  plea  is 
well  founded  is  not  required.  Nelson 
V.  Foster,  5  Biss.  (U.  S.)  44. 

5.  Battell  v.  Matot,  58  Vt.  281  ; 
I  Daniell  Ch.  Pr.  (5th  ed.)  637.'  See 
Jones  V.  Segueira,  i  Ph.  82,  6  Jur.  183. 
In  New  Jersey  the  complainant  may 
take  issue  upon  the  facts  or  have 
a  reference  to  a  master.  If  he  does 
neither,  then  the  defendant  must  set 
the  plea  down  for  argument.  McEwen 
V.  Broadhead,  11  N.  J.  Eq.  129.  A  gen- 
eral replication  does  no   harm,  and  a 


motion  to  take  it  oif  the  files  will  be 
dismissed.  Allen  v.  Allen,  3  Tenn. 
Ch.  145. 

6.  I  Daniell  Ch.  Pr.  (5th  ed.)  637; 
Battell  V.  Matot,  58  Vt.  281.  The 
plaintiff  may  admit  as  much  of  the 
plea  as  he  chooses  and  take  a  refer- 
ence for  the  remainder,  i  Daniell  Ch. 
Pr.  797,  See  also  Searight  v.  Payne, 
I  Tenn.  Ch.  186.  The  court  may  re- 
fuse a  motion  for  reference  where  the 
pleadings  clearly  show  that  different 
questions  are  raised  in  the  two  suits. 
Loring  v.  Marsh,  2  Cliff.  (U.  S.)  311. 
In  Wisconsin  there  were  no  masters  in 
chancery,  and  the  plea  was  disposed  of 
by  the  court.  Rowley  v.  Williams,  5 
Wis.  151.  By  the  practice  in  the  A'cw 
York  Court  of  Chancery  the  defendant 
was  required  to  obtain  an  order  of 
reference,  i  Hoff.  Ch.  Pr.  225.  Ac- 
cording to  the  English  chancery  prac- 
tice, if  the  plaintiff  did  not  obtain  an 
order  of  reference  and  report  within 
one  month,  the  defendant  could  have, 
as  of  course,  an  order  to  dismiss  the 
bill  with  costs.  i  Daniell  Ch.  Pr. 
(5th  ed.)  637.  See  Long  v.  Storie,  9 
Hare  542;  Hart  v.  Philips,  9  Paige 
(N.  Y.)  293.  The  setting  of  a  plea  for 
hearing  on  its  sufficiency,  or  taking 
issue  upon  it,  is  a  "step  necessary 
to  the  progress  of  the  cause,"  and 
a  rule  may  be  made  on  the  plain- 
tiff to  take  such  step  under  the  Ten- 
nessee Code,  §  4390,  during  the  term. 
Montgomery  v.  Olwell,  i  Tenn.  Ch. 
183. 

7.  I  Daniell  Ch.  Pr.  (5th  ed.)  637, 
638.  Compare  American  Bible  Soc.  z'. 
Hague,  4  Edw.  Ch.  (N.  Y.)  117;  Crofts 
V.  Wortley,  i  Ch.  Cas.  241;  Leigh  v. 
Turner,  14  W.  R.  361;  Savary  v.  Tay- 
lor, 10  B.  Mon.  (Ky.)  334.  Where  the 
plea  is  found  true  it  seems  that  the 
bill  must  be  dismissed  without  refer- 
ence to  the  equity  arising  from  any 
facts   stated    in   the   bill.       Briggs   v. 


774 


faking  the 


ANOTHER  SUIT  PENDING. 


Objection. 


overruled.*  If,  however,  the  plaintiff  considers  the  plea  defec- 
tive in  form  he  may  set  it  down  for  argument,*  which  is  deemed 
an  admission  of  the  truth  of  the  plea,  and  it  must  be  allowed  un- 
less defective  in  form.' 

3.  Under  Code  Systems — a.  Objection,  How  Taken. — Under 
the  Code  systems  the  objection  of  a  former  suit  pending  is  taken 
by  demurrer  if  the  facts  appear  upon  the  face  of  the  complaint  ;* 
and  if  not  so  appearing,  then  by  answer.* 

b.  At  What  Stage  of  Proceedings. — The  objection  of  a 
former  action  pending  is  matter  of  abatement,  and  must  be  inter- 
posed before  pleading  to  the  merits.® 


Stroud,  58  Fed.  Rep.  717  ;  Farley  v. 
Kittson,  120  U.  S.  314.  Consequently 
where  the  court  has  any  doubt,  the 
plea  will  be  overruled.  Briggs  v. 
Stroud,  58  Fed.  Rep.  721. 

1.  I  Daniell  Ch.  Pr.  (5th.  ed.)  638. 
The  plea  may  be  allowed  to  stand  as 
a  good  defense  to  so  much  of  the  bill 
as  is  covered  by  the  former  suit,  and 
overruled  as  to  the  rest.  Searight  v. 
Payne,  i  Tenn.  Ch.  186. 

2.  Tarleton  v.  Barnes,  2  Keen  636. 

3.  I  Daniell  Ch.  Pr.  (5th  ed.)  637; 
Ld.  Red.  247;  Story  Eq.  PI.  (loth  ed.) 
§  74.  In  the  N'eiv  York  Court  of  Chan- 
cery the  practice  was  regulated  by  an 
order  of  court,  i  Hoff.  Ch.  Pr.  225. 
In  New  Jersey  by  statute.  McEwen  v. 
Broadhead,  11  N.  J.  Eq.  129;  Matthews 
V.  Roberts,  2  N.  J.  Eq.  338.  In  Ten- 
nessee by  the  Code,  §  4393.  Mont- 
gomery V.  Olwell,  I  Tenn.  Ch.  183; 
Green  v.  Neal,  2  Heisk.  (Tenn.)  217; 
Macey  v.  Childress,  2  Tenn.  Ch.  23; 
Allen  V.  Allen,  3  Tenn.  Ch.  145;  Sea- 
right  V.  Payne,  i  Tenn.  Ch.  186. 

4.  Hornfager  v.  Hornfager,  6  How. 
Pr.  (N.  Y.  Supreme  Ct.)  279,  i  Code 
Rep.  N.  S.  (N.  Y.)  412;  Ansorge  v. 
Kaiser,  22  Abb.  N.  Cas.  (N.  Y.  Su- 
preme Ct.)  305;  Ward  r/.  Ward,  12  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193;  Curtis 
V.  Piedmont  Lumber,  etc.,  Co.,  109  N. 
Car.  401;  Smith  v.  Moore,  79  N.  Car. 
85;  De  Armond  v.  Bohn,  12  Ind. 
607;  Aiken  J/.  Bruen,  21  Ind.  137,  hold- 
ing a  demurrer  "  for  want  of  sufficient 
facts"  insufficient;  jEtna  Iron  Works 
V.  Firmenich  Mfg.  Co.  (Iowa,  1894), 
57  N.  W.  Rep.  904. 

5.  Wright  V.  Maseras,  56  Barb.  (N. 
Y.)  521;  Gregory  v.  Gregory,  33  N.  Y. 
Super.  Ct.  29;  O'Beirne  v.  Lloyd,  i 
Sweeney  (N.  Y.)  19;  Bruckheimer  v. 
Merchants'  Ins.  Co.,  i  Rob.  C.  C.  (N. 
Y.)  363;  Hornfager  v.  Hornfager,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  279,  i 
Code  Rep.  N.  S.  (N.  Y.)  412;  Ward  v. 
Ward,  12   How.  Pr.  (N.  Y.  Supreme 


Ct.)  193;  Weil  V.  Guerin,  42  Ohio  St. 
299;  Larco  v.  Clements,  36  Cal.  132; 
Lake  Merced  Water  Co.  v.  Cowles,  31 
Cal.  215;  Coubrough  z'.  Adams,  70  Cal. 
374;  Harris  v.  Johnson,  65  N.  Car.  478; 
.^tna  Iron  Works  v.  Firmenich  Mfg. 
Co.  (Iowa,  1894),  57  N.  W.  Rep.  904. 

Not  by  Motion. — The  objection  cannot 
be  made  by  motion.  Champ  v.  Ken- 
drick,  130  Ind.  549;  Central,  R.  etc., 
Co.  V.  Coleman,  88  Ga.  294;  Danforth 
V.  Tennessee,  etc.,  R.  Co.,  93  Ala.  614; 
Kennon  v.  Petty,  59  Ga.  175.  Where 
one  of  several  defendants  has  success- 
fully pleaded  pendency  of  a  former 
suit  in  abatement  it  is  not  a  ground 
for  a  motion  to  dismiss  as  to  all  of  the 
defendants.  Williams  v.  McGrade,  18 
Minn.  82. 

Waiver. — It  must  be  pleaded  in  some 
way  or  it  is  considered  as  waived. 
Hollister  v.  Stewart,  iii  N.  Y.  644; 
Bishop  V.  Bishop,  7  Robt.  (N.  Y.)  194; 
Bernecker  v.  Miller,  44  Mo.  102;  Will- 
iams V.  Rawlins,  33  Ga.  117;  Welchel 
V.  Thompson,  39  Ga.  559;  Smith  v. 
Moore,  79  N.  Car.  82;  Blackwell  v. 
Dibbrell,  103  N.  Car.  270;  Walsworth 
V.  Johnson,  41  Cal.  61. 

Dismissal  Sua  Sponte. — In  Long  v. 
Jarratt,  94  N.  Car.  443,  it  was  held 
that  where  the  relief  sought  can  be 
obtained  by  motion  in  the  original 
cause  pending  in  the  same  court,  the 
second  action  ought  to  be  dismissed 
ex  mere  motu  without  prejudice. 

Objection  on  Appeal. — The  objection 
cannot  be  first  raised  on  appeal. 
Aiken  v.  Bruen,  21  Ind.  137. 

In  Louisiana  a  former  suit  pending 
is  set  up  by  declinatory  exception. 
Fleitas  v.  Cockrem,  loi  U.  S.  301. 

6.  Estep  V.  Marsh,  21  Ind.  196;  Mon- 
tague V.  Brown,  104  N.  Car.  161;  Max- 
well V.  First  Nat.  Bank  (Tex.  Civ. 
App.,  1S94),  24  S.  W.  Rep.  848.  See, 
however,  the  next  heading  in  the  text. 

Amendment  of  Answer. — It  is  discre- 
tionary with  the  court  to  permit  the 


775 


Taking  the 


ANOTHER  SUIT  PENDING. 


Objection. 


C.  Answers  in  Abatement— Necessary  Averments.— The  answer 
snould  state  when  the  former  action  was  commenced*  and  in 
what  court,*  and  that  it  is  still  pending  ;*  and  it  must  clearly 
allege  or  show  that  the  cause  of  action  in  the  first  suit  is  identical 
with  that  in  the  second.* 

Joinder  with  Matter  in  Bar.— The  matter  in  abatement  may  be  prop- 
erly joined  in  the  answer  with  a  defense  in  bar.* 

Separate  Findings. — But  where  the  case  goes  to  the  jury  upon  both 
defenses  the  court  should  require  a  separate  verdict  upon  them.® 

d.  Judgment  on  Sustaining  Answer. — Where  the  answer 
is  sustained  the  proper  judgment  to  be  entered  is  one  abating  the 
subsequent  action,'^  and  not  a  judgment  that  the  plaintiff  take 
nothing  thereby.* 

4.  In  the  Admiralty. — The  objection  is  taken  in  the  admiralty  by 
a  special  plea  in  the  nature  of  a  plea  in  abatement,  known  as  a 
dilatory  or  declinatory  exception,®  which  is  always  brought  for- 
ward before  the  general  defense  in  bar  or  general  answer  on  the 
merits.*" 


defendant  at  the  close  of  the  trial  to 
amend  his  answer  by  setting  up  a  for- 
mer action  pending.  Coubrough  v. 
Adams,  70  Cal.  374. 

1.  Otherwise  it  is  demurrable.  Eice- 
man  v.  Leonard,  75  Ind.  46. 

In  Indiana  answers  in  abatement 
must  be  verified.  Morgan  County  v. 
Holman,  34  Ind.  256.  They  are 
strictly  construed  in  California.  Larco 
V.  Clements,  36  Cal.  132. 

2.  Berger  v.  Moessinger,  5  Ohio  Cir. 
Ct.  Rep.  432. 

3.  Moore  v.  Kessler,  59  Ind.  152; 
Tippecanoe  County  v.  Lafayette,  etc., 
R.  Co.,  50  Ind.  118;  I,  3,  supra. 

4.  Wilson  V.  St.  Paul,  etc.,  R.  Co., 
44  Minn.  445;  Larco  v.  Clements,  36 
Cal.  132;  Calaveras  County  v.  Brock- 
way.  30  Cal.  325;  Curtis  v.  Piedmont 
Lumber,  etc.,  Co.,  109  N.  Car.  401, 
See  also  I.  5,  supra. 

General  Allegation. — An  answer  al- 
leging that  "there  is  another  action 
now  pending  between  the  same  par- 
ties for  the  same  identical  cause  of  ac- 
tion mentioned  in  the  complaint  in 
this  action  "  was  held  sufficiently  defi- 
nite and  certain  by  Harris,  J.,  in 
Ward  V.  Ward.  12  How.  Pr.  (N.  Y. 
Supreme  Ct.)  193. 

Annexing  Copy  of  Record. — Annexing 
a  copy  of  the  record  of  the  former 
suit  does  not  dispense  with  the  neces- 
sity of  a  trial  and  introduction  of  the 
record  in  evidence,  even  though  both 
cases  are  pending  in  the  same  court. 
People  V.  De  la  Guerra,  24  Cal.  73. 

5.  Sweet   v.  Tuttle,   14   N.  Y.    465; 


Gardner  v.  Clark,  21  N.  Y.  399;  War- 
der V.  Henry,  117  Mo.  530;  Erb  z/.  Per- 
kins, 32  Ark.  42S;  Grider  z'.  Apperson, 
32  Ark.  332.  Conflicting  views  have 
been  expressed  in  North  Carolina, 
Woody  V.  Jordan,  69  N.  Car.  189; 
Montague  v.  Brown,  104  N.  Car.  161; 
and  in  Indiana,  Kenyon  v.  Williams, 
19  Ind.  47;  Bond  v.  Wagner,  28  Ind. 
462. 

Ambiguity. — But  the  averments  must 
clearly  indicate  that  the  former  action, 
etc.,  is  relied  upon  as  an  abatement 
and  not  as  a  defense  in  bar.  O'Beirne 
V.  Lloyd,  I  Sweeney  (N.  Y.)  23.  See 
also  ^tna  Iron  Works  v.  Firmenich 
Mfg.  Co.  (Iowa,  1894),  57  N.  W.  Rep. 
905;  Warder  v.  Henry,  117  Mo.  530. 

6.  Gardner  v.  Clark,  21  N.  Y.  399. 
Or  instruct  the  jury  to  refrain  from 
passing  on  the  merits  if  the  matter  in 
abatement  be  found  true.  Montague 
V.  Brown,  104  N.  Car.  161. 

7.  Coubrough  v.  Adams,  70  Cal.  374. 

8.  Coubrough  ».  Adams,  70  Cal.  374. 
It  should  not  be  in  bar.  Larco  v. 
Clements,  36  Cal.  132.  See  a,lso  Cur- 
tis V.  Piedmont  Lumber,  etc.,  Co.,  109 
N.  Car.  401. 

Where  the  pendency  of  a  prior 
suit  is  alleged  as  a  defense  and  nega- 
tived by  the  finding  of  the  jury  the  de- 
fendant can  obtain  no  relief  in  the  ap- 
pellate court.  Winfield  v.  Potter,  38 
N.  Y.  67. 

9.  Certain  Logs  of  Mahogany,  2 
Sumn.  (U.  S.)  589. 

10.  Certain  Logs  of  Mahogany,  2 
Sumn.  (U.  S.)  589. 


776 


ANSWERS   IN   CODE   PLEADING. 

By  W.  L.  Crawford. 

I.  Introductory— Contents  of  Answer,  779- 
II.  Form  of  a  Denial,  781., 

1.  Introductory  Words,  781. 

2.  What  Constitutes  a  Good  General  Denial,  782. 

3.  What  Constitutes  a  Good  Specific  Denial,  783. 

III.  Specific  Denials  and  Their  Scope,  785. 

1.  optional  to  Use  Specific  Denial,  785. 

2.  Cottstruction,  'jZ'j. 

IV.  Allegations  Admitted  by  a  Failure  to  Deny,  789. 

1.  Generally,  789. 

2.  What  Are  Material  Allegations,  790. 

3.  Denial  of  Immaterial  Allegations,  791. 

4.  Findings,  792. 

5.  Evidentiary  Matters,  792. 

6.  Value  and  Damages,  792. 

7.  Time,  793. 

8.  Legal  Conclusions,  793. 

9.  Possession  and  Ownership,  793. 

10.  Notes,  Bills,  and  Other  Instruments,  794. 

11.  Libel  and  Slander,  795. 

12.  Sales,  795. 

13.  Release  and  Payment,  795. 

14.  Pleading  a  Different  Contract  or  Tort,  796. 

15.  Mandatnus,  796. 

16.  Divorce  Proceedings,  796. 

17.  Allegations  of  Status  and  Capacity,  796. 

V.  Negatives  Pregnant,  796. 

1.  Generally,  796. 

2.  Conjunctive  Denials,  ygj. 

3.  Literal  Denials,  798. 

VI.  Argumentative  Denials,  799. 

1.  Defined,  799. 

2.  fiV/a/  Constitutes  an  Argumentative  Denial,  800. 

3.  Effect,  801. 

VII.  General  Denial  Coupled  with  Admissions,  802. 

1.  Generally,  802. 

2.  Answer  Must  Be  Definite  and  Specific  as  to  Admissions,  804. 

777 


ANSWERS  IN  CODE  PLEADING. 
VIII.  Denials  of  Legal  Conclusions,  805. 

1.  Generally,  805. 

2.  Denial  of  Indebtedness,  805. 

3.  Fraud,  806. 

4.  Denial  that  an  Act  Was  "  Duly  "  Done,  807. 

5.  Denial  of  Capacity,  807. 

6.  Answer  Containing  a  Legal  Conclusion,  807. 

7.  Detiial  of  the  Facts  Impliedly  Denies  the  Conclusion  of  Law,  808. 

IX.  Denials  of  Knowledge,  808. 

1.  How  Such  Denials  Construed,  808. 

2.  Form,  809. 

3.  Denials  "  upon  Information  and  Belief ,"  810. 

4.  When  a  Denial  of  Knowledge  or  Information  Cannot  be  Inter- 

posed, 811.  [813. 

5.  What  Matters  are  Presumptively  withiti  Defendant's  Knowledge, 

X.  What  May  Be  Proved  undee  a  Genebal  Denial,  8i6. 

1.  Nature  of  a  General  Denial,  816. 

2.  Payment,  817. 

3.  Actions  on  Contracts,  818. 

4.  fudgmettts,  820. 

5.  Torts,  821. 

6.  Ejectment  and  Other  Matters  Pertaining  to  Real  Estate,  825. 

7.  Mitigating  Circumstances,  827. 

XI.  The  General  Denial  as  a  Plea  in  Abatement,  827. 
XII.  Scope  of  General  Denial  Limited  by  Statute,  829. 
XIII.  New  Matter,  830. 

1.  General  Nature,  830. 

2.  Ma7tner  of  Pleading,  Z-})\. 

3.  Statute  of  Limitatiotis,  see  STATUTE  OF  LIMITATIONS. 

4.  Legal  Conclusions,  see  Legal  Conclusions. 

5.  Equitable  Defenses,  see  Equitable  Defenses. 

6.  Contributory  Negligence,  see  Contributory  Negligence. 

7.  Statute  of  Frauds,  see  Statute  of  Frauds. 

8.  What  Constitutes  New  Matter,  837. 

a.  Introductory,  837. 

b.  Equitable  Defenses,  837. 

c.  Matter  in  Abate7neftt,  838. 

d.  Partial  Defenses,  840. 

e.  Mitigating  Circumstances,  841. 
_/".  Payment,  842. 

^.  Res  fudicata,  843. 
^.  Estoppel  in  Pais,  S43. 
/.  Fraud,  844. 

y.  Illegality  of  Contract,  844. 
^.  fustification,  845. 
/.  Statute  of  Limitations,  846. 
/«.  Contributory  Negligence,  847. 
«.  Statute  of  Frauds,  847. 
i?.    Want  and  Failure  of  Consideration,  848. 
/.  Leave  and  License,  848. 
^.  Champerty,  849. 
r.    Tender,  849. 
^.  Accord  and  Satisfaction,  849. 

778  . 


Introductory.       ANSWERS  IN  CODE  PLEADING.         Contents  ot 

/,  Release,  849. 

u.  Ratification,  Subrogation,  and  Rescission,  849. 
V.  Award,  849. 

w.  Immaturity  of  the  Indebtedness,  849. 
X.  Discharge  in  Bankruptcy,  849. 
y.    Usicry,  850. 
2.  Bonafide  Purchaser,  850. 
z^.  Objection  to  Statute  or  Ordinance,  850. 
sr*.    Title  in  Action  of  Trespass,  850. 
z^.  Liens,  850. 

2*.  Mining  Rules  and  Customs,  851. 
z^.  Mistake,  851. 

2'.  Release  of  Guarantors,  Indorsers,  and  Sureties,  85 1. 
z'.  Contract  Not  Properly  Performed,  851, 
2r*.  ^//  Matter  in  Avoidance,  851. 

XrV.  Joinder  of  Defenses,  852. 

I.  Defendant  May  Plead  as  Many  Defenses  as  He  Has,  852. 
'2,  Manner  of  Pleading  Several  Defenses,  852. 

3.  Matter  in  Abatement,  and  Matter  in  Bar,  854. 

4.  States  Where  Inconsistent  Defenses  Allowed,  854. 

5.  What  Defenses  Are  Inconsistent,  856. 

6.  Remedies  for  htconsistency,  860. 

XV.  Joint  and  Sevekal  Answers,  860. 

1.  The  Right  to  foin  in  an  Answer,  860, 

2.  How  a  foint  Answer  Is  Construed,  861. 

3.  The  Right  to  Interpose  a  Separate  Answer,  861. 

4.  The  Defense  in  One  Answer  Inuring  to  All,  861. 

5.  Adoption  of  an  Answer,  862. 

As  to  Sham   or  Frivolous  Answers,  see   SHAM  AND  FRIVOLOUS 

PLEADING. 
As  to  Definiteness  and  Certainty  Required  in  Answers,  see  DEFINITE- 

NESS  AND  CERTAINTY  IN  PLEADING. 
As  to  Supplemental  Ans7vers,  see  SUPPLEMENTAL  PLEADINGS. 
As  to  Service  of  Answers,  see  SER  VICE  OF  PROCESS. 
As  to  Time  to  Answer,  see  TIME  TO  PLEAD. 
As  to  Set-off"  and  Counterclaim,  see  that  title. 
As  to  Verification  of  Answers,  see  VERIFICA  TION.  ^ 

I.  Introductory— Contents  of  Answer.— All  the  Codes  pre- 
scribe what  the  answer  shall  contain.  Some  Codes  provide  that  the 
answer  of  the  defendant  shall  contain  :  first,  a  general  or  specific 
denial  of  each  material  allegation  of  the  petition  controverted  by 
the  defendant,  or  a  denial  of  any  knowledge  or  information 
thereof  sufBcient  to  form  a  belief ;  second,  a  statement  of  any 
new  matter  constituting  a  defense  or  counterclaim,  in  ordinary 
and  concise  language,  without  repetition.* 

With  the  exception  of  a  few  verbal  changes,  and  sometimes  of 
other  matters  which  are  indicated  as  being  proper  in  an  answer, 

1.  Missouri,  Rev.   Sts.  §  2049;    N'e7u  South    Dakota,     Levisee    Rev.    Code, 

York,   Bliss   Ann.   Code,  §  500;   North  %  118;     Washington,    Code    Civ.  Proc. 

Dakota,    Levisee's   Rev.  Code,  §  118;  194;   W^w^«jj«,  Ann.  Sts.  §  2655. 
South  Carolina,  Code  Civ.  Proc,  §  170; 

779 


Introductory.        ANSWERS  IN  CODE  PLEADING.  Contents  of. 

all  the  Codes  are  similar  to  the   foregoing  in  their  provisions  ; 

they   recognize    the    distinction   between  '*  denials "  and    "  new 
matter."* 


-The  answer  shall  con- 


1.  Arkansas 

tain: 

First.  The  style  of  the  court  and 
the  style  of  the  action,  followed  by 
the  word  "  Answer."  But  where  there 
are  several  plaintiffs  and  defendants, 
it  shall  only  be  necessary  to  give  the 
one  first  named  of  each  class,  with 
the  words  "  and  others." 

Second.  A  denial  of  each  allega- 
tion of  the  complaint  controverted  by 
the  defendant,  or  of  any  knowledge  or 
information  thereof,  sufficient  to  form 
a  belief. 

Third.  A  statement  of  any  new 
matter  constituting  a  defense,  counter- 
claim, or  set-off,  in  ordinary  and  con- 
cise language,  without  repetition. 
Digest  of  the   Statutes  of  Ark.   (1884) 

§  5033- 

California.  Idaho,  anl  Utah. — The 
answer  of  the  defendant  shall  contain: 

1.  A  general  or  specific  denial  of 
the  material  allegations  of  the  com- 
plaint controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter 
constituting  a  defense  or  counterclaim. 

If  the  complaint  be  verified,  the  de- 
nial of  each  allegation  controverted 
must  be  specific,  and  be  made  posi- 
tively or  according  to  the  information 
and  belief  of  the  defendant.  If  the 
defendant  has  no  information  or  be- 
lief upon  the  subject  "sufficient  to  en- 
able him  to  answer  an  allegation  of 
the  complaint,  he  may  so  state  in  his 
answer,  and  place  his  denial  on  that 
ground.  If  the  complaint  be  not 
verified,  a  general  denial  is  sufficient, 
but  only  puts  in  issue  the  material 
allegations  of  the  complaint.  Code 
Civ.  Proc.  California,  §  437;  Rev.  Sts, 
Idaho  (1887),  §  4183;  Utah  Code  Civ. 
Proc.  §  300. 

Colorado. — The  answer  of  the  defend- 
ant shall  contain: 

First.  A  general  or  specific  denial 
of  each  material  allegation  in  the 
complaint  intended  to  be  controverted 
by  the  defendant. 

Second.  A  statement  of  any  new 
matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  con- 
cise language,  without  unnecessary 
repetition. 

In  denying  any  allegation  in  the 
complaint   not   presumptively    within 

780 


the  knowledge  of  the  defendant,  it 
shall  be  sufficient  to  put  such  allega- 
tions in  issue  for  the  defendant  to 
state,  as  to  such  allegation,  that  he 
has  not  and  cannot  obtain  sufficient 
knowledge  or  information  upon  which 
to  base  a  belief.  Code  Civ.  Proc. 
Colorado,  §  56. 

Connecticut. — The  defendant  in  his 
answer  shall  specially  deny  such  alle- 
gations of  the  complaint  as  he  intends 
to  controvert,  admitting  the  truth  of 
the  other  allegations,  unless  he  in- 
tends, in  good  faith,  to  controvert  all 
the  allegations,  in  which  case  he  may 
deny  them  generally,  as  follows: 
"The  defendant  denies  the  truth  of 
the  matters  contained  in  the  plaintiff's 
complaint."  He  may  also,  in  his  an- 
swer, state  special  matters  of  defense, 
and  shall  not  give  in  evidence  matter 
in  avoidance,  or  of  defense,  consistent 
with  the  truth  of  the  material  allega- 
tion of  the  complaint,  unless  in  his 
answer  he  states  such  matter  spe- 
cially. Under  a  general  denial  the 
plaintiff  shall  be  bound  to  prove  the 
material  facts  alleged  in  the  complaint. 
If  the  defendant  intends  to  controvert 
the  right  of  the  plaintiff  to  sue  as  exe- 
cutor, or  as  trustee,  or  in  any  other 
representative  capacity,  or  as  a  cor- 
poration, or  the  execution  or  delivery 
of  any  written  instrument  or  recog- 
nizance sued  upon,  he  shall  deny  the 
same  in  his  answer  specifically.  Gen. 
Sts.  of  Connecticut  (1888),  §  874. 

Indiana. — The  answer  shall  contain: 
First.  A  denial  of  each  allegation  of 
the  complaint  controverted  by  the  de- 
fendant. Second.  A  statement  of  any 
new  matter  constituting  a  defense, 
counterclaim,  or  set-off,  in  plain  and 
concise  language.  Rev.  Sts.  Indiana 
(1881),  §  347. 

Iowa. — The  answer  shall  contain: 

I.  The  name  of  the  court  of 
the  county,  and  of  the  plaintiffs 
afld  defendants  ;  but  where  there 
are  several  plaintiffs  and  defendants, 
it  shall  only  be  necessary  to  give  the 
first  name  of  each  class,  with  the 
words,  and  others. 

2..  A  general  denial  of  each  rJlega- 
tion  of  the  petition,  or  else  of  any 
knowledge  or  information  thereof  suf- 
ficient to  form  a  belief. 


Form  of  a 


ANSWERS  IN  CODE  PLEADING. 


Denial. 


11.  FoEM  OF  A  Denial— 1.  Introductory  Words. — When  the 
pleader  in  response  to  the  plaintiff's  complaint  desires  to  inter- 
pose a  denial,  he  may  make  use  of  any  common  form  of  words 


3.  A  specific  denial  of  each  allega- 
tion of  the  petition  controverted  by 
the  defendant,  or  any  knowledge  or 
information  thereof  sufficient  to  form 
a  belief. 

4.  A  statement  of  any  new  matter 
constituting  a  defense. 

5.  A  statement  of  any  new  matter 
constituting  a  counterclaim.  Rev. 
Code  of  Iowa,  §  2655. 

Kansas. — The  answer  shall  contain: 
First.  A  general  or  specific  denial  of 
each  material  allegation  of  the  peti- 
tion controverted  by  the  defendant. 
Second.  A  statement  of  any  new  matter 
constituting  a  defense,  counterclaim, 
or  set-off,  or  a  right  to  relief  concern- 
ing the  subject  of  the  action,  in  ordi- 
nary and  concise  language,  and  with- 
out repetition.  Gen.  Sts.  Kansas,  vol. 
2,  §  4177. 

Minnesota. — The  answer  of  the  de- 
fendant shall  contain: 

First.  A  denial  of  each  allegation  of 
the  complaint  controverted  by  the  de- 
fendant, or  of  any  knowledge  or  in- 
formation thereof  sufficient  to  form  a 
belief. 

Second.  A  statement  of  any  new 
matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise 
language,  without  repetition. 

Third.  All  equities  existing  at  the 
time  of  the  commencement  of  any 
a.ction,  in  favor  of  a  defendant  therein, 
or  discovered  to  exist  after  such  com- 
mencement, or  intervening  before  a 
final  decision  in  such  action.  Sts.  of 
Minnesota,  §  4771. 

Montana. — The  answer  of  the  de- 
fendant shall  contain: 

First.  A  specific  denial  of  the  ma- 
terial allegations  of  the  complaint  con- 
troverted by  the  defendant. 

Second.  A  statement  of  any  new 
matter  constituting  a  defense  or 
counterclaim. 

If  the  complaint  be  verified,  the 
denial  of  each  allegation  controverted 
must  be  specific,  and  be  made  posi- 
tively or  according  to  the  information 
and  belief  of  the  defendant.  Compiled 
Sts.  of  Montana  (1887),  §  89. 

Nebraska,  Ohio,  and  Wyoming. — The 
answer  shall  contain:  First.  A  gen- 
eral or  specific  •  denial  of  each 
material     allegation   of    the    petition 


controverted  by  the  defendant.  Sec- 
ond. A  statement  of  any  new  mat- 
ter constituting  a  defense,  counter- 
claim, or  set-off,  in  ordinary  and 
concise  language,  without  repetition. 
Consolidated  Sts.  of  Nebraska,  §  4639; 
Rev.  Sts.  of  Ohio,  §  5070;  Wyoming 
Rev.  Sts.  §  2457. 

North  Carolina. — The  answer  of  the 
defendant  must  contain: 

1.  A  general  or  specific  denial  of 
each  material  allegation  of  the  com- 
plaint controverted  by  the  defendant, 
or  of  any  knowledge  or  information 
thereof  sufficient  to  form  a  belief. 

2.  A  statement  of  any  new  matter 
constituting  a  defense  or  counterclaim, 
in  ordinary  and  concise  language, 
without  repetition. 

In  all  actions  to  recover  damages  by 
reason  of  the  negligence  of  the  de- 
fendant, where  contributory  negli- 
gence is  relied  upon  as  a  defense,  it 
shall  be  set  up  in  the  answer,  and 
proved  on  the  trial.  This  provision 
shall  apply  to  similar  actions  when 
brought  by  employees  against  their 
employers.  Code  Civ.  Proc.  North 
Carolina,  §  243. 

Arizona  and  Georgia. — The  Codes  of 
Arizona  and  Georgia  differ  materially 
in  language  from  the  others;  there 
seem  to  be  no  statutory  provisions 
which  define  an  answer,  but  there  are 
cognate  statutes  dealing  with  answers. 

Arizona. — The  defendant  in  his  an- 
swer may  plead  as  many  several 
matters,  whether  of  law  or  fact,  as 
may  be  necessary  for  his  defense,  and 
which  may  be  pertinent  to  the  cause, 
but  such  pleas  shall  be  stated  in  the 
following  order  and  filed  at  the  same 
time:  *  *  *  4.  Mattei-s  in  bar  of 
the  action.  5.  Matters  of  counter- 
claim and  set-off.     Arizona  Rev.  Sts. 

§734- 

Georgia. — The  general  issue  is  a 
denial  of  the  allegations  in  the  plain- 
tiff's declaration,  and  shall  be  con- 
sidered as  filed  in  all  cases  which  are 
answered  to  at  the  first  term;  and  no 
other  evidence  is  admissible  under 
such  plea  except  such  as  disproves  the 
plaintiff's  cause  of  action;  all  other 
matters  in  satisfaction  or  avoidance 
must  be  specially  pleaded.  Code,  § 
3458.     See,  however,  Laws  1894. 


78] 


Form  of  a 


ANSWERS  IN  CODE  PLEADING. 


Benial. 


to  introduce  it.  It  may  be  in  the  form,  "  Defendant  for  answer 
says  he  denies."* 

2.  What  Constitutes  a  Good  General  Denial. — Any  words  which 
fairly  import  a  denial  of  all  the  averments  of  the  complaint  con- 
stitute a  good  general  denial.'-* 

"Each  aiid  Every"  Allegation  Denied. — A  general  denial  of  each  and 
every  allegation  of  the  complaint  is  sufficient.^ 

Denial  of  "Material"  Allegations. — A  denial  of  all  the  "material" 
allegations  of  the  complaint  does  not  constitute  a  good  general 
denial.* 


1.  Town  of  Denver  v.  City,  7  Wash. 
226;  Espinosa  v.  Gregory,  40  Cal.  58; 
Chapman  v.  Chapman,  34  How.  Pr. 
(N.  Y.  Supreme  Ct.)  281;  Jones  v. 
Ludlum,  74  N.  Y.  61;  Moen  v.  Eldred, 
22  Minn.  538.  Contra,  "  says  that  he 
denies"  is  bad.  Arthur  v.  Brooks,  14 
Barb.  (N.  Y.)  533;  Blake  v.  Eldred, 
18  How.  Pr.  (N.  Y.  Supreme  Ct.)  240. 

"States  and  Shows." — An  answer 
which  alleges  that  defendant  "  states 
and  shows  that  he  denies  each  and 
every  allegation,  etc.,"  is  sufficient, 
although  objectionable  in  form.  Moen 
V.  Eldred,  22  Minn.  538. 

2.  Hoffman  v.  Eppers,  41  Wis.  251; 
Kingsley  v.  Oilman,  12  Minn.  515. 

Form  Immaterial. — The  mere  form  of 
the  denial  is  immaterial.  Morrison 
V.  O'Reilly,  2  Utah  165. 

Not  Guilty. — In  an  action  for  assault 
and  battery,  an  answer,  "  that  de- 
fendant is  not  guilty  of  the  grievances 
alleged  in  the  complaint,  or  any  or 
either  of  them,  or  any  part  thereof," 
is  a  sufficient  general  denial.  Hoff- 
man V.  Eppers,  41  Wis.  251. 

Non  Est  Factum. — In  an  action  upon 
a  promissory  note,  an  answer  conclud- 
ing, "and  he  [defendant]  says  that  he 
did  not  execute  said  note  in  manner 
and  form  as  set  out  in  said  plaintiff's 
complaint  herein,  and  that  the  same 
is  not  his  note,"  is  sufficient  to  consti- 
tute a  good  plea  of  no7t  est  factum.  Hine 
V.  Shiveley,  84  Ind.  136. 

Must  he  Explicit. — A  general  denial 
must  be  explicit,  and  must  not  be 
loaded  down  with  explanations. 
Creighton  v.  Kellermann,  i  Disney 
(Ohio)  548. 

Georgia.  —  The  marking  on  the 
docket  at  the  first  term  of  the  names 
of  counsel  for  the  defendant  is  equiv- 
alent to  answering,  and  is  in  effect  a 
plea  of  the  general  issue.  Price  v. 
Bell,  88  Ga.  740;  Simon  v.  Myers,  68 
Ga.  74. 


The  general  issue  is  considered  filed 
in  all  cases  which  are  answered  at  the 
appearance  term.  National  Bank  v. 
Southern  Porcelain  Mfg.  Co.,  59  Ga. 
157- 

3.  Fetz  V.  Clark,  7  Minn.  217;  Kel- 
logg V.  Church,  4  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  339.  But  it  was  not  so 
under  the  N.  Y.  Code  of  1851,  which 
only  authorized  a  specific  denial. 
Rosenthal  v.  Brush,  I  Code  Rep.  N.  S. 
(N.  Y.)  228. 

With  an  Exception. — A  denial  of  each 
and  every  allegation,  except  what  the 
court  may  construe  to  be  admitted  by 
the  statements  in  the  answer,  is  a  bad 
form.  Starbuck  v.  Dunklee,  10  Minn. 
168,  88  Am.  Dec.  68. 

Denying  "Generally"  Every  Allega- 
tion.— In  an  action  for  real  estate  com- 
missions, an  averment  that  defendant 
' '  denies  generally  each  and  every  alle- 
gation "  of  the  complaint  is  a  good 
general  denial.  Penter  v.  Staight,  I 
Wash.  365. 

Form  Prescribed. — Where  the  denial 
is  general,  it  should  be  not  simply  of 
"  all,"  but  of  "  each  and  all,"  or  "  each 
and  every  "  of  the  allegations  referred 
to.  Lewis  V.  Coulter,  10  Ohio  St. 
452. 

North  Carolina. — An  answer  denying 
"the  said  complaint  and  each  and 
every  allegation  contained  therein  "  is 
ba'.  Schehan  v.  Malone,  71  N.  Car. 
A-. 

i.  Lewis  V.  Coulter,  10  Ohio  St.  452; 
Thomas  v.  Cline,  i  Cleve.  Rep.  (Ohio) 
123;  Pry  V.  Hannibal,  etc.,  R.  Co.,  73 
Mo.  123;  Edmonson  v.  Phillips,  73 
Mo.  57;  Smith  v.  Lindsey,  89  Mo.  76; 
Collins  V.  Trotter,  81  Mo.  275;  Mon- 
tour V.  Purdy,  11  Minn.  384,  88  Am. 
Dec.  88;  Dodge  v.  Chandler,  13  Minn. 
114;  Dole  V.  Burleigh,  i  Dakota  218. 
"  A  pleader  ought  not  to  be  permitted, 
by  the  use  of  the  qualifying  word 
'  material  '  to  assume  to  himself   the 


782 


Form  of  a 


ANSWERS  IN  CO  BE  PLEADING. 


Denial. 


Counter-Averment. — In  California  a  counter-averment  may  make  a 
general  denial.* 

Form  of  the  General  Issue. — A  general  denial  cannot  be  framed  as 
was  the  general  issue  at  common  law.  Denying  the  allegations 
of  the  complaint  "  in  manner  and  form  as  therein  alleged  "  is  in- 
sufificient.* 

"No  Allegation  True." — An  averment  that  "no  allegation  of  the 
complaint  is  true  "  is  not  a  good  answer.^ 

3.  What  Constitutes  a  Good  Specific  Denial — Generally. — The  form 
which  a  specific  denial  should  take  is,  of  course,  wholly  dependent 
upon  the  allegations  of  the  complaint.  The  general  rule  is  that 
it  must  be  certain  and  definite  as  to  the  fact  denied."*     It  should 


determination  of  the  question  as  to 
what  facts  are  material,  and  thus  ren- 
der a  conviction  for  perjury,  on  a  wil- 
fully false  verification,  difficult  or  im- 
possible." Per  curiam  in  Lewis  v. 
Coulter,  ID  Ohio  St.  452.  But  such  a 
denial  is  good  as  against  a  demurrer, 
though  not  good  against  a  motion  to 
make  more  certain  and  specific.  Lew- 
is V.  Coulter,  10  Ohio  St.  452. 

Contra. — Such  a  denial  is  good.  In- 
gle V.  Jones,  43  Iowa  286;  Bailey  v. 
Warren,  i  Oregon  357;  Goodridge  v. 
Union  Pac.  R.  Co.,  37  Fed.  Rep.  182. 
This  last  case  applied  the  law  of  Colo- 
rado, holding  such  denial  good  under 
the  Colorado  Code. 

1.  Jackson  v.  Feather  River,  etc.. 
Water  Co.,  14  Cal.  19;  Frisch  v.  Caler, 
21  Cal.  71;  Goddard  v.  Fulton,  21  Cal. 
430;  Woodworth  v.  Knowlton,  22  Cal. 
164;  Hill  V.  Smith,  27  Cal.  476;  Thomp- 
son V.  Lynch,  29  Cal.  189;  Siter  v. 
Jewett,  33  Cal.  92;  Way  v.  Oglesby, 
45  Cal.  655;  Clink  v.  Thurston,  47 
Cal.  21;  Miller  v.  Brigham,  50  Cal. 
615;  Thompson  v.  Thompson,  52  Cal. 

154- 

But  probably  this  in  other  states 
amounts  to  an  argumentative  denial, 
which  is  bad.  See  post,  VI.  Argu- 
mentative Denials. 

Beeital  of  Facts. — In  ejectment  the 
recital  in  the  answer  of  the  series  of 
facts  through  which  the  defendant 
claims  a  right  to  the  land  amounts  to 
no  more  than  a  general  denial.  Clink 
V.  Thurston,  47  Cal.  21. 

Pleading  Contract  in  Different  Terms. 
— Denial  of  contract  as  alleged  and 
pleading  it  in  different  terms  are 
equivalent  to  a  denial  of  any  other 
terms.     Gilman  v.  Bootz,  63  Cal.  120. 

Inconsistent  Matter. — It  is  not  neces- 
sary that  a  traverse  should  be  in  neg- 


ative words.  An  averment  in  the  an- 
swer of  the  contrary  of  what  is  alleged 
in  the  complaint  is  equivalent  to  a  de- 
nial. Even  where  the  averment  is 
not  of  the  direct  contrary  of  the  alle- 
gation, but  is  inconsistent  with  its 
truth,  it  may,  under  certain  circum- 
stances, be  held  to  raise  an  issue. 
Perkins  v.  Brock,  80  Cal.  320. 

Contra. — But  that  allegations  of  fact 
merely  inconsistent  with  the  plead- 
ing are  not  equivalent  to  a  denial, 
and  are  not  as  a  general  rule  allowa- 
ble under  the  Code,  see  Swinburne 
V.  Stockwell,  58  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  312;  Wood  V.  Whiting,  21 
Barb.  (N.  Y.)  190. 

Explaining  Custom. — An  answer  stat- 
ing that  a  custom  alleged  in  the  peti- 
tion is  inconsistent  with  the  terms  of 
the  policy  sued  on,  and  contrary  to  set- 
tled principles  of  law,  is  simply  a  gen- 
eral denial  with  an  epithet,  and  is  not 
demurrable.  Shillito  v.  Merchants, 
etc.,  Ins.  Co.,  3  W.  L.  G.  (Ohio)  296. 

2.  Clark  v.  Gramling,  54  Ark.  525; 
Rumbough  v.  Southern  Imp.  Co.,  106 
N.  Car.  461  ;  Lawrence  v.  Cooley,  i 
Cleve.  Rep.  (Ohio)  178. 

But  such  an  answer  is  good  against 
demurrer.  Lawrence  v.  Cooley,  i 
Cleve.  Rep.  (Ohio)  178.  Contra,  it  is 
demurrable.  Clark  v.  Gramling,  54 
Ark.  525. 

"As  Alleged  in  the  Petition." — A  de- 
nial of  the  facts  averred  in  the  peti- 
tion, "as  alleged  in  the  petition,"  is 
not  a  denial  of  the  allegations.  Phoenix 
Ins.  Co.  V.  Meier,  28  Neb.  124. 

3.  Flack  V.  Dawson,  69  N.  Car.  42; 
Heyer  v.  Beatty,  76  N.  Car.  28. 

4.  "  From  its  very  name  and  nature 
it  is  the  special  traverse  of  some  par- 
ticular averment  found  in  the  plaintiff's 
pleading,  and  must  therefore  depend  to 


783 


Form  of  a 


ANSWERS  IN  CODE  PLEADING. 


Denial. 


SO  describe  the  allegations  of  the  complaint  which  are  intended 
to  be  controverted  that  any  person  of  intelligence  can  identify 
them.i 

Denial  of  What  is  Between  Certain  Specified  Words,  or  in  Folios  or  Paragraphs.  — 
It  is  bad  pleading  to  deny  portions  of  the  complaint  merely  by 
reference  to  the  first  and  last  words  of  such  portions,  and  to  the 
folio  where  they  are  to  be  found.*  Likewise  a  reference  in  the 
denial  simply  to  certain  paragraphs  of  the  complaint  as  containing 
the  averments  which  are  controverted  is  improper.^ 

Must  be  Categorical. — The  specific  denial  must  be  categorical. 
There  must  be  no  room  to  doubt  what  the  pleader  intends  to 
deny.* 


a  very  great  degree  upon  the  matter 
and  shape  of  the  statement  which  is 
thus  controverted."  Pomeroy  Code 
Remedies,  §  613. 

1.  Mattison  v.  Smith,  i  Robt.  (N.  Y.) 
706. 

Texas. — Under  a  statute  providing 
that  a  verified  account  shall  be  prima- 
facie  evidence  unless  defendant  file  a 
denial  under  oath  that  the  account  is 
not  true,  in  whole  or  in  part,  it  is  not 
necessary  that  the  words  "in  whole 
or  in  part " .  be  used  in  the  denial. 
Hensley  v.  Degener  (Tex.  Civ.  App.), 
25  S.  W.  Rep.  1130. 

Sufficient  on  Demurrer. — If  the  sub- 
stance of  the  defense  clearly  shows  to 
which  cause  of  action  it  is  addressed, 
it  is  sufficient  on  demurrer.  Willis  v. 
Haggard,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)433. 

Specific  Denials  Construed.  —  In  re- 
plevin the  answer  denied  "  that  at  the 
time  stated  in  the  complaint,  or  at  any 
other  time,  the  property  described  in 
the  complaint  came  into  defendant's 
possession,  or  that  the  same  was  or 
remained  in  his  possession  at  the  com- 
mencement of  this  action,  as  alleged 
in  said  complaint."  Held,  a  sufficient 
denial  of  possession.  Roberts  v.  Jo- 
hannas,  41  Wis.  616. 

To  an  allegation  in  a  complaint  that 
the  net  earnings  of  a  railroad  company 
w^ere  over  a  specified  sum,  and  more 
than  sufficient  to  pay  a  specified  debt, 
an  answer  denying  that  the  net  in- 
come, with  or  without  regard  to  in- 
terest, was  over  such  sum,  or  that 
it  was  more  than  sufficient  to  pay 
such  debt,  was  held  proper  in  form. 
Hughes  V.  Chicago,  etc.,  R.  Co.,  45 
N.  Y.  Super.  Ct.  114. 

2.  Williams  v.  Lindblom  (Supreme 
Ct.),  22  N.  Y.  Supp.  678;  Avery  v. 
Nev/  York  Cent.,  etc.,  R.  Co.  (Super. 


Ct.),  6  N.  Y.  Supp.  547.  It  is  not  a 
compliance  with  the  Code  requiring  a 
general  or  specific  denial.  Collins  v. 
Singer  Mfg.  Co.,  53  Wis.  305.  Contra, 
such  a  denial  is  good.  Gassett  v. 
Crocker,  9  Abb.  Pr.  (N.  Y.   C.  PI.)  39. 

3.  Baylis  v.  Stimson,  no  N.  Y.  21. 
See  Caulkins  v.  Bolton,  98  N.  Y.  511; 
Crosley  v.  Cobb,  3  How.  Pr,  N.  S.  (N. 
Y.  Supreme  Ct.)  37;  Varnum  v.  Hart, 
47  Hun  (N.  Y.)  18. 

But  where  the  answer  denies  the 
truth  of  a  complaint  as  contained  in 
certain  enumerated  paragraphs  (being 
all  the  paragraphs  in  the  complaint), 
it  is  sufficient.  Brown  v.  Cooper,  89 
N.  Car.  237.  See  Rumbough  v.  South- 
ern Imp.  Co.,  106  N.  Car.  461,  where 
only  one  paragraph  was  denied:  held 
insufficient. 

4.  Smith  V.  Woodruff,  i  Handy 
(Ohio)  276;  Verzan  v.  McGregor,  23 
Cal.  339;  Bomberger  v.  Turner,  13 
Ohio  St.  263;  Building  Assoc,  v.  Clark, 
43  Ohio  St.  427;  West  v.  American 
Exch.  Bank,  44  Barb.  (N.  Y.)  175. 

"It  Is  Not  True." — A  denial  which 
begins  by  saying  "  It  is  not  true,"  etc., 
is  evasive,  and  does  not  specifically 
deny  the  averment.  Verzan  v.  Mc- 
Gregor, 23  Cal.  339. 

"Do  Not  Admit." — An  answer  which 
reads  "these  defendants  do  not  ad- 
mit "  is  not  a  good  denial.  Bomberger 
V.  Turner,  13  Ohio  St.  263. 

" Neither  Denied  nor  Admitted."— An 
allegation  that  the  truth  of  the  matter 
"is  neither  denied  nor  admitted"  is 
no  denial.  Building  Assoc,  v.  Clark, 
43  Ohio  St.  427;  Lake  v.  Steinbach,  5 
Wash.  659. 

"  Know  Nothing." — A  statement  that 
the  parties  "  know  nothing  of  the  tak- 
ing of  the  lien  by  the  said  J.  &  D.  ex- 
cept what  they  learn  from  the  said 
answer  and  counterclaim  "  is  not  a  suf 


784 


Specific  Denials   ANSWERS  IN  CODE  PLEADING,  and  their  Scope. 

Hypothetical  Denial. — A  hypothetical  denial  is  bad.* 

May  be  Denied  as  Alleged.— But  if  a  material  fact  is  not  directly 
alleged,  it  may  be  denied  substantially  as  alleged.* 

May  Contain  Explanation. — A  denial  may  be  coupled  with  averments 
of  explanation.  This  corresponds  to  the  special  traverse  of  the 
common  law.     Such  a  denial  is  good.* 

III.  Specific  Denials  and  their  Scope.— 1.  Optional  to  Use  Spe- 
cific Denial. — The  pleader  may  always  elect  to  specifically  deny 
all  the  material  allegations  of  the  complaint,  instead  of  using  the 
general  denial.*  But  the  use  of  a  specific  denial  precludes  a  gen- 
eral denial.  Specific  and  general  denials  in  the  same  answer  are 
improper.*  The  general  rule  is  that  a  general  denial  is  always 
good,®  but  some  states  do  not  adhere  to  this  rule,  and  require  a 
specific  denial,  either  in  all  cases  or  when  the  complaint  is  veri- 
fied.''    And  in  some  jurisdictions  a  specific  denial  is  required 


ficient  denial.     Smith  v.  Woodruff,   i 
Handy  (Ohio)  276. 

Two  Counts. — Where  the  complaint 
contained  two  counts,  each  upon  a 
note,  an  answer  referring  simply  to 
"the  note  mentioned  in  the  com- 
plaint" is  bad  for  uncertainy.  Kneed- 
ler  V.  Sternbergh,  lo  How.  Pr.  (N.  Y. 
Supreme  Ct.)  67. 

1.  Wies  V.  Fanning,  9  How.  Pr.  (N. 
Y.  Supreme  Ct.)  543- 

Intended  to  be  Hypothetical. — The 
whole  pleading  must  be  construed  to- 
gether ;  it  is  not  proper  to  eliminate  a 
single  paragraph  from  an  answer  and 
give  effect  to  it  as  a  denial  when  it 
appears  from  the  context  and  other 
portions  of  the  answer  that  the  de- 
nial was  intended  to  be  hypothetical. 
AlemanyT/.  Petaluma,  38  Cal.  553. 

2.  Bassett  v.  Enwright,  19  Cal.  636. 

3.  May  Enumerate  Particulars. — Gee 
V.  Culver,  12  Oregon  228.  An  answer 
which  denies  the  performance  of  a 
contract  by  plaintiff  may  also  specifi- 
cally enumerate  several  particulars  in 
which  such  failure  to  perform  con- 
sists. Mehurin  v.  Stone,  37  Ohio  St. 
49.     See  Stephen  PI.  181. 

4.  Everett  v.  Waymire,  30  Ohio  St. 
308. 

"The  Code  also  allows  a  special  trav- 
erse; but  there  is  this  difference  be- 
tween the  special  traverse  of  the  Code 
and  that  of  the  common  law — the  lat- 
ter must  always  have  been  taken  upon 
a  single  point,  whereas  now  the  de- 
fendant may  put  in  issue  in  one  de- 
fense as  many  of  the  allegations  of  the 
complaint  as  he  chooses,  leaving  the 
residue  unanswered."     Per  Selden,  J. , 


in  Benedict  v.  Seymour,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  302. 

5.  School  Dist.  v.  Holmes,  16  Neb. 
486 ;  Davenport  v.  Ladd,  38  Minn. 
545.  The  specific  denials  should  be 
struck  out.  Dennison  v.  Dennison, 
9  How.  Pr.  (N.  Y.  Supreme  Ct.) 
246;  Lippencott  v.  Goodwin,  8  How. 
Pr.  (N.  Y.  Supreme  Ct.)  242;  Wies  v. 
Fanning,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  543.  But  see  Homan  v.  Byrne, 
14  N.  Y.  Wkly.  Dig.  175,  where  it  was 
held  that  an  answer  is  not  redundant 
by  containing  both. 

6.  Keeney  v.  Lyon,  10  Iowa  546. 

A  general  denial  cannot  be  struck  out 
as  sham  unless  the  pleadings  them- 
selves show  that  it  is  false.  Upton  v. 
Kennedy, 36  Neb.  66;  Ransom  z'.  Ander- 
son, 9  S.  Car.  438;  Brooks  v.  Chilton,  6 
Cal.  641;  Reynolds  v.  Craus  (Supreme 
Ct.),  16  N.  Y.  Supp.  792;  Wayland  v. 
Tysen,  45  N.  Y.  281;  Thompson  v. 
Erie  R.  Co.,  45  N.  Y.  468;  Claflin  v. 
Jaroslauski,  64  Barb.  463. 

7.  Alabama. — See  Moog  v.  Barrow, 
13  So.  Rep.  665. 

Arkansas. — In  Arkansas  the  general 
denial  is  abolished.  All  denials  must 
be  specific.  Gwynn  v.  McCauley,  32 
Ark.  97 ;  Mcllroy  v.  Buckner,  35 
Ark.  555;  Trapnall  v.  Hill,  31  Ark. 
345;  Shirk  V.  Williamson,  50  Ark.  562; 
Hecht  V.  Caughron,  46  Ark.  132.  But 
after  trial  it  is  too  late  to  object  that 
the  denial  was  general.  Tyner  v. 
Hays,  37  Ark.  599. 

California.  —  If  the  complaint  is 
sworn  to,  a  general  denial  thereto  is  a 
nullity.  Pico  v.  Colimas,  32  Cal.  578; 
Dewey  v.  Bowman,  8  Cal.  150;  Patter- 


I  Encyc.  PI.  &  Pr.— 50. 


785 


Specific  Denials   ANSWERS  IN  CODE  PLEADING,  and  their  Scope. 


when  an  instrument  for  the  payment  of  money  is  sued  on.* 

son  V.  Ely,  19  Cal.  28;  Rupley  v. 
Welch,  23  Cal.  455;  Schenk  v.  Evoy, 
24  Cal.  113;  People  v.  Hagar,  52  Cal. 
171;  Greenbaum  v.  Turrill,  57  Cal. 
289;  Brooks  V.  Chilton,  6  Cal.  641; 
Dennis  v.  Table  Mountain  Water  Co., 
10  Cal.  370;  Horn  v.  Volcano  Water  Co. , 
13  Cal.  62;  Hastings  v.  Dollarhide,  18 
Cal.  391;  Sacramento  County  v.  Bird, 
31  Cal.  67;  Corcoran  v.  Doll,  32  Cal. 

83. 

The  following  was  construed  as  a 
general  denial  within  the  meaning  of 
the  rule:  "  The  defendant  further  says 
that  he  is  not  guilty  of  the  supposed 
trespasses  and  ejectment  in  the  com- 
plaint mentioned,  nor  of  any  part 
thereof."  Schenk  v.  Evoy,  24  Cal. 
104.  And  so  was  an  answer  where 
the  defendant  admitted  the  making  of 
the  note  sued  on,  but  denied,  "  to  the 
best  of  his  knowledge,  information, 
and  belief,  all  and  singular  the  other 
allegations  in  the  said  complaint." 
Stewart  v.  Street,  10  Cal.  373.  And 
likewise  an  answer  which  contained  a 
general  denial  of  the  averments  of  a 
verified  complaint,  with  the  qualifica- 
tion of  "except  as  hereinafter  ad- 
mitted." Levinson  v.  Schwartz,  22 
Cal.  230.  And  it  seems  that  any  an- 
swer which  resembles  the  general  de- 
nial is  insufficient  when  the  complaint 
is  verified.  Hensley  v.  Tartar,  14 
Cal.  508. 

When  an  insufficient  denial  is  treated 
as  suflScient  by  the  admission  of  evi- 
dence without  objection,  objection  is 
waived.  Pinkham  v.  McFarland,  5 
Cal.  137;  Reniff  v.  The  Cynthia,  18 
Cal.  669;  Kalkman  v.  Baylis,  23  Cal. 
304;  Racouillat  v.  Rene,  32  Cal.  450; 
Tynan  v.  Walker,  35  Cal.  634,  95  Am. 
Dec.  152;  Green  v.  Lake  Superior,  etc., 
Fuse  Co.,  46  Cal.  408;  White  v.  San 
Rafael,  etc.,  R.  Co.,  50  Cal.  417;  Cave 
V.  Crafts,  53  Cal.  135;  Tulley  v. 
Tranor,  53  Cal.  274;  Spiers  v.  Duane, 
54  Cal.  176;  Pacific  Bridge  Co.  v. 
Kirkham,  54  Cal.  558;  Crowley  v.  City 
R.  Co.,  60  Cal.  628;  Hiatt  v.  Trustees, 
65  Cal.  481;  Clark  v.  Child,  66  Cal.  91; 
Scott  V.  Sierra  Lumber  Co.,  67  Cal.  71. 
But  not  if  the  answer  is  unverified, 
and  no  evidence  is  introduced  to  sus- 
tain  it.      Stockton   v.    Dahl,    66  Cal. 


377-  .,   , 

Service   of  an  answer  to  a  verified 

complaint,    consisting    of    a    general 

denial  only,  was  admitted  by  plaintiff's 


attorney  and  "verification  thereof 
waived."  Held,  that  the  waiver  of 
verification  did  not  admit  the  suffi- 
ciency of  the  answer  or  dispense  with 
the  necessity  of  a  specific  denial. 
Harney  v.  Porter,  62  Cal.  511. 

But  a  general  denial  to  a  verified 
complaint  commenced  before  a  justice 
of  the  peace  is  sufficient.  Henderson  v. 
Allen,  23  Cal.  519;  Minturn  v.  Burr,  20 
Cal.  49;  Sullivan  v.  Cary,  17  Cal.  80. 

A  general  denial  may  be  pleaded  to 
an  unverified  complaint.  Davanay  v, 
Eggenhoff,  43  Cal.  395;  Elder  v. 
Spinks,  53  Cal.  293;  Booth  v.  Chap- 
man, 59  Cal.  148. 

Georgia. — A  late  statute  requires  de- 
fendant to  answer  each  paragraph  of 
the  complaint,  and  forbids  a  mere 
general  denial. 

Idaho. — When  the  complaint  is  veri- 
fied the  answer  must  deny  specifically 
every  material  allegation  of  the  com- 
plaint. Pence  v.  Durbin,  i  Idaho 
550- 

New  York— (?/^  Code.— Under  the 
Code  of  1851,  which  required,  "  in  re- 
spect to  each  allegation,"  a  specific 
denial  thereof,  an  answer  saying  that 
defendant  denies  specifically  each  and 
every  matter  is  not  sufficient.  Sew- 
ard V.  Miller,  6  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  312. 

1.  Texas. — The  execution  of  an  in- 
strument must  be  specifically  denied 
by  an  affidavit.  Pasch.  Dig.  art.  1443; 
Sawyer  v.  Dulany,  30  Tex.  479;  May 
V.  Pollard,  28  Tex.  677;  Drew  v.  Har- 
rison, 12  Tex.  279;  Kelly  v.  Kelly,  12 
Tex.  452;  Reid  v.  Reid,  11  Tex.  585; 
Brashear  v.  Martin,  25  Tex.  202; 
Herndon  v.  Ennis,  18  Tex.  410;  Close 
V.  Judson,  34  Tex.  288;  Alexander  v. 
Lewis,  47  Tex.  482;  Houston,  etc.,  R. 
Co.  V.  Chandler,  51  Tex.  416;  Bur- 
leson V.  Burleson,  15  Tex.  423;  Yeary 
V.  Cummins,  28  Tex.  91;  Fisk  v.  Miller, 
13  Tex.  224;  Austin  v.  Townes,  10 
Tex.  24;  Compton  v.  Western  Stage 
Co.,  25  Tex.  Supp.  67;  Bishop  v. 
Honey,  34  Tex.  245;  Persons  v.  Frost, 
25  Tex.  Supp.  129;  Ferguson  v.  Wood, 
23  Tex.  177;  Wilson  v.  Skaggs,  10 Tex. 
298;  Johnston  v.  Jefferson,  31  Tex. 
332;  Primm  v.  Stewart,  7  Tex.  178; 
Parr  v.  Johnston,  15  Tex.  294;  Barnett 
V.  Logue,  29  Tex.  282;  Tarpley  v. 
Poage,  2  Tex.  139;  Wells  v.  Moore,  15 
Tex.  521;  Lee  v.  Hamilton,  12  Tex. 
413;    Muckleroy  v.  Bethany,  23  Tex. 


786 


Specific  Denials    ANSWERS  IN  CODE  PLEADING,   and  their  Scope. 


2,  Construction. — Each  denial  of  an  answer  must  be  regarded 
as  applying  to  the  specific  allegation  it  purports  to  answer,  and 
not  as  forming  a  part  of  an  answer  to  some  other  specific  and 
entirely  independent  allegation.*  Where  an  averment,  taken  in 
the  sense  in  which  it  is  intended  by  the  pleader,  is  not  denied,  no 
issue  is  raised  thereon.'^ 

In  the  construction  of  a  specific  denial  the  courts  are  liberal, 
and  allow  any  evidence  to  be  given  in  support  thereof  which  may 
be  fairly  implied  in  the  allegation.' 

A  specific  denial  of  the  execution  of  a  contract  puts  in  issue 
its  validity  and  legal  existence.** 

Suits  on  Notes. — In  the  construction  of  denials  interposed  to  suits 
on  notes  the  courts  are  rather  technical,  and  probably  construe 
the  answer  less  liberally  than  they  would  in  other  cases.* 


163;  Van  Hook  v.  Litchford,  35  Tex. 
598;  Eborn  v.  Zimpelman,  47  Tex.  504, 
26  Am.  Rep.  315;  Keeble  v.  Black,  4 
Tex.  6g. 

1.  Racouillat  v.  Rene,  32  Cal.  450. 
"As  each  specific  denial- is  aimed  at 
a  particular  averment,  it  should  ex- 
pressly and  unmistakably  point  out 
the  statement  of  fact  intended  to  be 
traversed  ;  it  should  deny  that  allega- 
tion fully  and  explicitly,  so  that  the 
plaintiff  may  be  forced  to  establish  it 
by  proofs ;  and  it  should  leave  no 
doubt  as  to  the  matter  at  which  it  is 
aimed,  and  as  to  the  issue  intended  to 
be  made."     Pomeroy  Rem.  §  614. 

2.  Fellows  V.  Webb,  43  Iowa  133. 

3.  Sawyer  v.  Warner,  15  Barb.  (N.  Y.) 
2S2,  where  the  defendant  denied  that 
he  ever  gave  plaintiff  the  note  sued  on, 
and  he  was  allowed  to  show  the  cir- 
cumstances of  the  transaction,  which 
seemed  to  negative  the  idea  of  his 
having  ever  made  a  note.  But  see 
Cogswell  V.  Hayden,  5  Oregon  22, 
where  it  was  held  that  the  allegation 
that  a  note  was  "  made,  executed,  and 
delivered  "  was  not  put  in  issue  by  an 
answer  denying  that  the  note  was 
"  delivered." 

Suit  for  Bent. — An  averment  in  a 
complaint  for  rent  that  "  the  rent  was, 
as  it  became  due,  duly  demanded,"  is 
put  at  issue  by  a  denial,  in  the  answer, 
of  "each  and  every  allegation  in  the 
complaint,  wherein  and  whereby  de- 
fendant is  charged  with  being  liable 
for  any  rent  to  the  plaintiffs,  or  of  any 
sum  being  due  or  owing  from  him  to 
them."  New  York  Academy  of  Music 
V.  Hackett,  2  Hilt.  (N.  Y.)  217. 

Not  Given  to  Plaintiff. — The  bond  be- 
ing set  out  in  the  complaint,  a  denial 


in  the  answer  that  defendant  executed 
such  bond  to  the  plaintiff  is  not  a  denial 
that  he  executed  the  bond  in  suit,  but 
only  a  denial  that  the  obligee  therein 
was  identical  with  the  plaintiff.  Joint 
School  V.  Lyford,  27  Wis.  506. 

Denial  of  Rendition  of  Service. — A  de- 
nial of  the  rendition  of  service  is  not 
a  denial  of  employment.  Ryan  v.  New 
York,  42  N.  Y.  Super.  Ct.  202. 

4.  Browning  v.  Berry,  107  N.  Car. 
231. 

Pleading  Legal  Effect  Differently. — 
The  fact  that  the  defendant  pleads 
the  legal  effect  of  an  instrument  dif- 
ferently from  the  plaintiff  does  not 
deny  its  execution.  Cox  v.  Volkert, 
86  Mo.  505. 

5.  Young  V.  Miller,  63  Cal.  302; 
Randolph  v.  Harris,  28  Cal.  562,  87 
Am.  Dec.  139 ;  Morrill  v.  Morrill, 
26  Cal.  289;  Watson  v.  Barr,  37  S.  Car. 
463;  Murphy  v.  Dunning,  30  Wis.  296; 
Buell  V.  Burlingame,  11  Colo.  164. 

Denying  Legal  Notice. — The  answer 
of  the  indorser  denied  that  he  had  due 
or  legal  notice  of  the  presentment  of 
the  note  for  payment,  or  of  the  non- 
payment thereof.  Held,  that  no  issue 
of  fact  was  raised  by  this  denial. 
Young  V.  Miller,  63  Cal.  302. 

Denial  of  Assignment. — Where  the  al- 
legation is  that,  by  an  instrument  in 
writing,  the  note  in  suit  was  assigned 
by  the  payee  to  the  plaintiff  for  a  valu- 
able consideration,  the  fact  of  the  as- 
signment is  not  put  in  issue  by  a  de- 
nial that  the  assignment  was  in  writing 
and  for  a  valuable  consideration.  Ran- 
dolph V.  Harris,  28  Cal.  562. 

Assignment  Not  Denied. — Where  the 
complaint  avers  that  defendant's  note 
and  mortgage  to  a  railroad  company 


787 


Specific  Denials    ANSWERS  IN  CODE  PLEADING,   and  their  Scope. 


PlaintiflTs  Right  to  Sue. — When  the  defendant  means  to  deny  or 
question  the  plaintiff's  title,  or  his  right  to  sue,  he  must  do  so 
explicitly.  The  courts  will  not  help  him  by  a  liberal  construction 
of  his  answer.* 

Contracts. — Where  the  action  is  for  a  breach  of  contract,  the 
denial  is  construed  most  liberally.  The  allegations  of  the  denial 
are  taken  in  their  popular  rather  than  in  any  technical  sense.* 

Ownership  and  Possession- — Allegations  of  ownership  and  possession 
in  the  complaint  must  be  very  explicitly  denied.' 

Torts. — In  an  action  for  tort  the  denial  may  consist  of  an  aver- 
ment that  the  defendant  did  not  commit  the  act  charged,  or  that 


were  sold,  assigned,  and  delivered  to 
plaintiffs  by  such  company,  and  the 
answer  merely  alleges  that  said  com- 
pany never  indorsed  said  note  to  any 
person  by  writing  its  name  thereon  for 
that  purpose,  and  that  said  company 
has  at  all  times  refused  to  indorse  the 
note  or  to  do  any  act  which  would 
make  it  negotiable,  this  is  not  a  denial 
of  the  assignment  by  the  company  as 
alleged  in  the  complaint,  but  merely  a 
denial  that  such  assignment  was  by 
indorsement.  Murphy  v.  Dunning, 
30  Wis.  296.  But  see  Bennett  v. 
Crowell,  7  Minn.  385;  Kennedy  v. 
Moore,  17  S.  Car.  464  ;  Williams  v. 
Mellon,  56  Mo.  262. 

In  Bennett  v.  Crowell,  7  Minn.  385, 
it  was  held  that,  in  the  case  of  a  com- 
plaint on  a  note,  a  denial  that  the  de- 
fendant "  promised  to  pay  plaintiff  or 
order  "  raises  a  material  issue.  And  in 
Williams  v.  Mellon,  56  Mo.  262,  where 
the  answer  stated  that  "the  said  note 
was  made  without  any  consideration 
whatever,"  it  was  held  to  sufficiently 
raise  the  defense  of  no  considera- 
tion. 

1.  Fosdick  V.  Groff,  22  How.  Pr.  (N. 
Y.  Supreme  Ct.)  158;  Byington  v. 
Hogan,  58  Mo.  509. 

In  Fosdick  v.  Groff,  22  How.  Pr.  (N. 
Y.  Supreme  Ct.)  158,  it  was  held  that 
a  mere  averment  that  the  plaintiff  is 
not  the  real  party  in  interest  does  not 
deny  the  assignment  of  the  cause  of 
action  to  him.  But  see  Dow  v.  Gould, 
etc..  Silver  Min.  Co.,  31  Cal.  630; 
Northern  Pac.  R.  Co.  v.  McCormick, 
55  Fed.  Rep.  601,  applying  Montana 
law;  Raymond  v.  Wimsette,  12  Mont. 

551. 

2.  Jones  v.  Eddy,  90  Cal.  147;  De 
Wein  V.  Osborn,  12  Colo.  407;  Corning 
V.  Haight,  I  Code  Rep.  (N.  Y.)7i;  Rob- 
inson V.  Corn  Exch.,  etc.,  Ins.  Co.,  i 
Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  186; 


Reed  v.  Hayt,  109  N.  Y.  659,  17  N.  E. 
Rep.  418  ;  Brennan  v.  GriflSths  (City 
Ct.),  18N.  Y.  Supp.  145, 

Denial  of  Value. — A  paragraph  in  an 
answer  denied  "that  the  work,  labor, 
and  services  so  rendered,  and  the  ma- 
terials so  furnished,  were  of  the  value, 
and  at  the  agreed  price,  in  the  aggre- 
gate, of  eighty  dollars" — keld,  to  raise 
the  issue  as  to  the  value  of  the  mate- 
rials and  labor.  Parker  v.  Tillinghast 
(City  Ct.),  I  N.  Y.  St.  Rep.  296.  See 
Wahl  V.  Murphy  (Ky.,  1888),  9  S.  W. 
Rep.  355. 

A  Denial  Construed. — Where  the  alle- 
gation was  that  "  the  plaintiff  never 
performed  the  services  claimed  at  de- 
fendant's request,  and  defendant  never 
promised  to  pay  for  any  such  ser- 
vices," held,  an  admission  that  the  ser- 
vices were  rendered  as  claimed,  and 
that  the  question  whether  they  were 
voluntary  or  were  rendered  at  the  de- 
fendant's request  was  alone  in  issue. 
Smiley  v.  Anderson,  28  Neb.  100. 

Contra. — Where  a  complaint  alleged 
that  the  "defendant  was  indebted  to 
the  plaintiff  for  money  laid  out  and  ex- 
pended by  the  plaintiff  for  the  defend- 
ant at  his  request,"  giving  a  large  num- 
ber of  items;  and  the  answer  denied 
that  "the  plaintiff  had  laid  out  or  ex- 
pended any  money  for  the  defendant 
except  such  sums  as  had  been  deliv- 
ered by  him  to  the  plaintiff  for  that 
purpose  " — held,  that  such  answer  was 
not  a  denial.  Robbins  v.  Lincoln,  12 
Wis.  I. 

3.  Richardson  v.  Smith,  29  Cal.  530; 
Bothe  V.  Dayton,  etc.,  R.  Co.,  37  Ohio 
St.  147.  See  Gillam  v.  Sigman,  29  Cal. 
638.  But  see  Meighen  v.  Strong,  6 
Minn.  177,  80  Am.  Dec.  441,  where,  in 
an  action  under  the  statute  to  deter- 
mine adverse  claims  to  real  estate,  it 
was  held  that  a  denial  of  plaintiff's 
possession  raised  a  material  issue. 


788 


Allegations         ANSWERS  IN  CODE  PLEADING. 


Admitted. 


the  fact  alleged  to  exist  does  not  exist.  Such  averments  traverse 
the  matters  alleged  and  are  good  denials.* 

Deeds. — The  denial  of  the  execution  of  a  deed  is  the  denial  of  its 
delivery.'^ 

Eules  of  Construction  Limited. — A  denial  must  not  be  evasive.  The 
courts,  under  their  most  liberal  construction,  will  not  allow  a  denial 
to  stand  if  there  is  room  for  argument  that  it  was  interposed  as  a 
mere  quibble.^ 

IV.  Allegations  Admitted  by  a  Failtiee  to  Deny— 1.  Generally. 
— It  is  an  established  rule  of  code  pleading  that  all  the  material 
allegations  of  the  complaint  not  denied  by  the  answer  are,  for  the 
purposes  of  the  action,  admitted.* 


1.  Hill  V.  Smith,  27  Cal.  476. 

The  rule  given  in  the  text  will  pre- 
vent a  negative  pregnant.  Thus, 
•wrhere  the  allegation  was  that  the  de- 
fendant "  wrongfully  and  unlawfully 
entered  upon  and  dispossessed"  plain- 
tiff, an  answer  which  denied  that  "  de- 
fendant wrongfully  and  unlawfully  en- 
tered and  dispossessed  "  plaintiff  was 
held  insufficient.  Busenius  v.  Coffee, 
14  Cal.  gi.  See  Kinsey  v.  Wallace,  36 
Cal.  463;  Brooks  v.  Haslam,  65  Cal. 
421. 

For  Diversion  of  Water. — If  the  com- 
plaint in  an  action  to  enjoin  a  diver- 
sion of  water  alleges  that  the  plaintiff 
has  appropriated  and  used  the  water 
for  more  than  five  years,  and  the  an- 
swer denies  that  the  plaintiff  ever  at 
any  time  used  or  took  up  or  appropri- 
ated the  water,  the  denial  is  sufficient. 
Wilkins  v.  McCue,  46  Cal.  656.  See 
Jones  V.  St.  John  Irrigating  Co.,  2 
Idaho  58. 

Slander. — Where  the  petition  in  an 
action  for  slander  alleges  the  effect  of 
words  spoken  and  the  intent  of  the 
speaker  to  have  been  to  charge  plain- 
tiff with  a  crime,  a  denial  that  de- 
fendant intended  to  or  did  charge 
plaintiff  with  the  commission  of  a 
crime  by  the  language  used  raises  a 
material  issue.  Wilkin  v.  Tharp,  55 
Iowa  609. 

Defective  Highway. — In  an  action  for 
injuries  resulting  from  a  defective 
highway,  a  denial  in  the  answer,  that 
on  the  day  specified  the  highway  was 
"in  a  dangerous  condition  to  travel- 
ers exercising  ordinary  care  and  dili- 
gence," ^^/t/ not  a  sufficient  denial  that 
it  was  out  of  repair.  Cuthbert  v.  Ap- 
pleton,  24  Wis.  383. 

2.  Thompson  v.  Lynch,  29  Cal.  189. 
But  see  Landers  v.  Bolton,  26  Cal.  394, 


where  it  seems  to  be  held  that  a  denial 
that  the  premises  were  conveyed  is  not 
a  denial  of  the  execution  and  delivery 
of  a  deed. 

The  Original  Instruments  Bequired. — 
The  mere  statement  in  an  answer,  that 
the  originals  of  certain  instruments 
are  required,  is  not  a  denial.  Murray 
V.  New  York  L.  Ins.  Co.,  85  N.  Y.  236. 

Copy  Not  a  True  One. — When  a  peti- 
tion refers  to  the  copy  of  an  instru- 
ment as  part  thereof,  an  answer  which 
avers  that  the  defendant  cannot  state 
whether  the  copy  is  a  true  one,  and 
calls  for  proof,  is  not,  in  form  or  sub- 
stance, a  denial  of  a  material  allega- 
tion. Bentley  v.  Dorcas,  11  Ohio  St. 
398. 

3.  Fuhn  V.  Weber.  38  Cal.  636,  where 
the  answer  denied  that  there  was  such 
a  street  as  the  one  mentioned  in  the 
complaint.  See  Finch  v.  Finch,  10 
Ohio  St.  501;  Dendy  v.  Gamble,  59 
Ga.  434;  Williams  v.  Smith,  22  Wis. 
594;  Downer  v.  Read,  17  Minn.  493; 
Henry  v.  Hinman,  21  Minn.  378. 

4.  Ohio. — Bradford  v.  Andrews,  20 
Ohio  St.  208,  5  Am.  Rep.  645. 

Kentucky. — Morton  v.  Waring,  18 
B.  Mon.  (Ky.)  72. 

Wisconsin. — Bonnell  v.  Jacobs,  36 
Wis.  59;  Marsh  v.  Pugh,  43  Wis.  597. 

Iowa. — Fargo  v.  Ames,  45  Iowa  494. 

Indiana.  —  Lafayette  v.  Wortman, 
107  Ind.  404. 

Nebraska.  —  Harden  v.  Atchison, 
etc.,  R.  Co.,  4  Neb.  521;  Dillon  v. 
Russel,  5  Neb.  488;  Williams z/.  Evans, 
6  Neb.  218;  Payne  v.  Briggs,  8  Neb. 
78;  Hanson  v.  Lehman,  18  Neb.  564; 
Linch  V.  State,  30  Neb.  740;  Maxwell 
V.  Higgins  (Neb.),  57  N.  W.  Rep.  388. 

South  Dakota. — Calkins  v.  Seaburv- 
Calkins  Co.  (S.  Dakota),  58  N.  W. 
Rep.  797. 


789 


Allegations 


ANSWERS  IN  CODE  PLEADING. 


Admitted. 


2.  What  are  Material  Allegations. — Only  those  allegations  in  a 
complaint  are  material,  within  the  meaning  of  this  rule,  which 


California.  —  De  Ro  v.  Cordes,  4 
Cal.  118;  Smith  v.  Eureka  Flour  Mills 
Co.,  6  Cal.  i;  Anderson  v.  Parker,  6 
Cal.  197;  Osborn  v.  Hendrickson,  8 
Cal.  31;  Dewey  z/.  Bowman,  8  Cal.  145; 
Thompson  v.  Lee,  8  Cal.  276;  Walker 
V.  Sedgwick,  8  Cal.  402;  Curtis  v. 
Richards,  9  Cal.  34;  Humphreys  v.  Mc 
Call,  9  Cal.  59,  70  Am.  Dec.  621;  San 
Francisco  Gas  Co.  v.  San  Francisco, 
9  Cal.  453;  Dennis  v.  Table  Mountain 
Water  Co.,  10  Cal.  370;  Stewart  v. 
Street,  10  Cal.  373;  White  v.  Moses, 
II  Cal.  70;  Burke  v.  Table  Mountain 
Water  Co.,  12  Cal.  403;  Horn  v.  Vol- 
cano Water  Co.,  13  Cal.  62;  Ord  v. 
Steamer  Uncle  Sam,  13  Cal.  370;  Gar- 
field V.  Knight's  Ferry,  etc.,  Water 
Co.,  14  Cal.  36;  Busenius  v.  Coffee, 
14  Cal.  gi;  Kinney  v.  Osborne,  14  Cal. 
112;  Powell  V.  Oullahan,  14  Cal.  115; 
Hensley  v.  Tartar,  14  Cal.  508;  Smith 
V.  Doe,  15  Cal.  loi;  Blankman  v. 
Vallejo,  15  Cal.  639;  Castro  v.  Wet- 
more,  16  Cal.  379;  Kuhland  v.  Sedg- 
wick, 17  Cal.  123;  Higgins  v.  Wortell, 
18  Cal.  331;  Patterson  v.  Ely,  19  Cal. 
29;  Mathewson  v.  Fitch,  22  Cal.  87; 
Woodworth  v.  Knowlton,  22  Cal.  164; 
McLaughlin  v.  Kelly,  22  Cal.  212; 
Levinson  v.  Schwartz,  22  Cal.  230; 
Ghirardelli  v.  McDermott,  22  Cal.  539; 
Towdyz/.  Ellis,  22  Cal.  651;  Nelson  z'. 
Murray,  23  Cal.  338;  Verzan  v.  Mc- 
Gregor, 23  Cal.  339;  DeUprey  v.  De- 
Uprey,  23  Cal.  352;  Rupley  v.  Welch, 
23  Cal.  453;  Hughes  v.  Devlin,  23  Cal. 
502;  Morrill  v.  Morrill,  26  Cal.  289; 
Stoddafd  v.  Treadwell,  26  Cal.  294  ; 
Landers  v.  Bolton,  26  Cal.  393;  More 
V.  Del  Valle,  28  Cal.  170;  Randolph  v. 
Harris,  28  Cal.  562,  87  Am.  Dec.  139; 
Cassacia  v.  Phoenix  Ins.  Co.,  28  Cal. 
629;  Treadway  z/.  Semple,  28  Cal.  653; 
Emery  v.  Bradford,  29  Cal.  75; 
Richardson  v.  Smith,  29  Cal.  530; 
Camden  z'.  Mullen,  29  Cal.  565;  Fitch 
V.  Bunch,  30  Cal.  210;  Blood  v.  Light, 
31  Cal.  115;  Fish  v.  Redington,  31  Cal. 
1S6;  Leffingwell  v.  GriflSng,  31  Cal.  232; 
Burke  v.  Carruthers,  31  Cal.  468  ; 
Reed  v.  Calderwood,  32  Cal.  109;  Pico 
V.  Colimas,  32  Cal.  578;  Burnett  v. 
Stearns,  33  Cal.  468;  Lightnerz/.  Men- 
zel,  35  Cal.  452;  Lee  v.  Figg,  37  Cal. 
328,  99  Am.  Dec.  271;  Doll  v.  Good, 
38  Cal.  287;  Fuhn  v.  Weber,  38  Cal. 
636;  DeGodey  v.  Godey,  39  Cal.  157; 
Taylor  v.  Shew,   39   Cal.    536,   2  Am. 


Rep.  478;  Patterson  v.  Sharp,  41  Cal. 
133;  Gregory  v.  Nelson,  41  Cal.  278; 
Scott  V.  Umbarger,  41  Cal.  410;  Fee- 
ley  t^.  Shirley,  43  Cal.  369;  Hellman  v. 
Howard,  44  Cal.  100;  Huston  v.  Twin, 
etc..  Turnpike  R.  Co.,  45  Cal.  550; 
Bradbury  v.  Cronise,  46  Cal.  2S7; 
Jones  V.  Spears,  47  Cal.  20;  Howard 
V.  Throckmorton,  48  Cal.  482;  Leroux 
V.  Murdock,  51  Cal.  541;  Manly  v. 
Howlett,  55  Cal.  94;  Marsters  v.  Lash, 
61  Cal.  622;  Young  v.  Miller,  63  Cal. 
302;  Walker  v.  Bufifandeau,  63  Cal. 
312;  Grossini  v.  Perazzo,  66  Cal.  545; 
Pomeroy  v.  Gregory,  66  Cal.  572; 
Campe  v.  Lassen,  67  Cal.  139;  Taylor 
V.  Central  Pac.  R.  Co.,  67  Cal.  165; 
Taylor  z/.  Middleton,  67  Cal.  656;  Han- 
son V.  Fricker,  79  Cal.  283. 

Missouri. — Whittlesey  v.  Broham- 
mer,  31  Mo.  98;  Breckinridge  v. 
American  Cent.  Ins.  Co.,  87  Mo.  62; 
Shockley  v.  Fischer,  21  Mo.  App.  551; 
Thomas  v.  Liebke,  13  Mo.  App.  389. 

And  see  other  cases  cited  in  this 
section. 

Duty  of  Court  to  Instruct. — The  plain- 
tiff may  ask  the  court  to  instruct  the 
jury  that  the  material  allegations  of 
the  complaint  not  denied  are  admitted; 
and  it  is  the  duty  of  the  court  to  so 
instruct.  Steele  v.  Russell  5  Neb. 
211. 

Proper  [Mode  to  Make  Admission.  — 
Under  the  code  system  of  pleading, 
an  answer  must  either  deny  allega- 
tions found  in  the  complaint  or  state 
new  matter,  and  the  proper  mode  of 
making  an  admission  is  by  silence. 
Gould  V.  Williams,  9  How.  Pr.  (N.  Y. 
Supreme  Ct.)  53. 

Judgment  on  the  Pleadings.  —  When 
the  answer  fails  to  put  in  issue  the  al- 
legations of  the  complaint,  the  plain- 
tiff isentitledto  judgment  on  the  plead- 
ings without  evidence.  Smith  z/.  Faust, 
I  Utah  90;  Wallace  v.  Baisley,  22  Ore- 
gon 572. 

Equivalent  to  Demurrer. — An  answer 
which  controverts  no  material  allega- 
tion of  fact  in  the  complaint  should  be 
regarded  as  a  demurrer.  Charlotte, 
etc.,  R.  Co.  V.  Gibbes,  23  S.  Car.  370. 

Amendment  and  Withdrawal. — Aver- 
ments of  an  amended  complaint,  which 
are  not  denied  by  the  amended  an- 
swer, stand  as  admitted.  Putnam  v. 
Lyon,  3  Colo.  App.  144. 

And  where  an  answer  is  withdrawn 


790 


Allegations 


ANSWERS  IN  CODE  PLEADING. 


Admitted. 


the  plaintiff  must  prove  upon  the  trial  in  order  to  maintain  his 
action.'  No  allegation  in  a  complaint  should  be  held  "material" 
which  will  not  prevent  a  plaintiff  from  recovering  if  proved  to 
be  untrue,  or  which  when  denied  he  is  not  obliged  to  prove  to 
entitle  himself  to  a  verdict.* 

3.  Denial  of  Immaterial  Allegations. — Immaterial  averments  need 
not  be  denied.     They  are  not  admitted  by  a  failure  to  deny.* 


the  traversable  allegations  of  the  peti- 
tion are  admitted.  Price  v.  Page,  24 
Mo.  65.  See  Robinson  v.  Lawson,  26 
Mo.  69. 

Neither  Admitted  nor  Denied. — Where 
an  answer  neither  admits  nor  denies 
an  allegation,  the  allegation  is  ad- 
mitted. Anderson  v.  Parker,  6  Cal. 
197. 

Nullifying  the  Effect  of  an  Admission. 
— Affirmative  matter  of  defense  plead- 
ed may  nullify  the  effect  of  an  admis- 
sion by  failure  to  deny.  Newell  v. 
Doty,  33  N.  Y.  83;  Sands  v.  St.  John, 
36  Barb.  (N.  Y.)  628. 

But,  conversely,  an  admission  by  an 
attorney  of  record  of  the  correctness 
of  an  amount  due,  for  which  judgment 
is  taken,  when  not  done  in  fraud  of 
the  rights  of  his  client,  destroys  the 
effect  of  a  denial  in  the  answer.  Tay- 
lor V.  Randall,  5  Cal.  80. 

Bedundant  Denials. — The  denial  of  a 
material  fact  raises  an  issue,  though 
accompanied  by  further  insufficient 
denials.     Craig    v.   Bateman,  49  Cal. 

Idaho  — In  Idaho  a  general  denial  is 
a  nullity  when  the  complaint  is  veri- 
fied; therefore  a  failure  to  deny  spe- 
cifically each  material  allegation  of  a 
verified  complaint  admits  the  truth  of 
the  allegation.  Norris  v.  Glenn,  i 
Idaho  590. 

Iowa.  —  Likewise  in  loiva  the  func- 
tion of  a  general  denial  has  been  much 
curtailed.  A  general  denial  by  a  de- 
fendant, in  an  action  on  a  contract,  of 
each  and  every  allegation  in  a  peti- 
tion which  sets  forth  the  contract,  and 
avers  that  the  plaintiff  has  duly  per- 
formed all  the  conditions  on  his  part 
to  be  performed,  admits  the  perform- 
ance of  a  condition  precedent  in  the 
contract,  that  the  plaintiff  should  de- 
posit a  sum  of  money  for  his  faithful 
performance  thereof.  Halferty  v. 
Wilmering,  112  U.  S.  713.  See  also 
Mayes  v.  Turley,  60  Iowa  407;  Steer  z/. 
City,  41  Iowa  353;  Coates  v.  Galena, 
etc.,  R.  Co.,  18  Iowa  277;  Blackshire 
V.  Iowa  Homestead  Co.,  39  Iowa  624; 
Gates  V.  Carpenter,  ci  Iowa  152. 


1.  Fry  V.  Bennett,  5  Sandf.  (N.  Y.) 
54.  Where  a  complaint  in  a  foreclo- 
sure suit  alleges  that  the  defendants 
did  "  execute  under  their  hands  and 
seals,  and  deliver,"  the  mortgage,  an 
answer  of  one  of  the  defendants,  deny- 
ing that  she  executed  the  mortgage 
referred  to,  is  sufficient  to  put  in  issue 
the  fact  of  the  delivery  and  every 
other  fact  necessary  to  its  execution, 
although  no  specific  denial  of  the  de- 
livery is  made.  Le  Mesnager  v. 
Hamilton,  loi  Cal.  533. 

2.  Oechs  V.  Cook,  3  Duer  (N.  Y.) 
161.  "  Every  allegation  in  a  pleading 
at  law  which  might  be  put  in  issue  by 
the  adverse  partj^  was  always  taken 
as  true  if  not  denied.  And  it  is  in 
this  sense  that  the  term  '  material 
allegation '  is  used  in  that  section 
[168  of  the  Code].  It  means  an  allega- 
tion without  proof  of  which  the  plain- 
tiff must  fail  in  his  action.  All  such 
allegations  may  be  denied.  They  were 
formerly  put  in  issue  by  the  general 
issue,  and  no  others  were  put  in  issue 
by  that  plea;  and  those,  and  no  others, 
were  admitted  by  being  left  unan- 
swered." Per  Woodruff,  J.,  in  Connoss 
V.  Meir,  2  E.  D.  Smith  (N.  Y.)  316. 

Allegations  Anticipating  a  Defense. — 
Allegations  inserted  for  the  purpose 
of  intercepting  and  cutting  off  an  an- 
ticipated defense  are  superfluous  and 
immaterial,  and  do  not  require  an 
answer.     Canfield  v,  Tobias,  21  Cal. 

349- 

3.  Canfield  v.  Tobias,  21  Cal.  349; 
Doyle  V.  Franklin,  48  Cal.  537;  Pink 
V.  Catanich,  51  Cal.  420;  Adams  Ex- 
press Co.  V.  Darnell,  31  Ind.  22; 
Baker  v.  Kistler,  13  Ind.  63.  An 
answer  to  immaterial  matter  is  frivo- 
lous, and  raises  no  issue.  Goldstein 
V.  Krause,  2  Idaho  273;  Leffingwell  v. 
Griffing,  31  Cal.  232;  Elder  v.  Spinks, 
53  Cal.  293;  Hunter  v.  Martin,  57  Cal. 
365;  Kidder  v.  Stevens,  60  Cal.  414. 

Failure  to  State  a  Cause  of  Action. — If 
a  complaint  contains  more  than  one 
count,  and  one  of  the  counts  does  not 
state  a  cause  of  action,  the  answer 
need  not  deny  the  allegations  of  such 


791 


Allegations 


ANSWERS  IN  CODE  PLEADING. 


Admitted. 


4.  Findings. — There  is  no  necessity  of  a  finding  by  the  court  as 
to  a  fact  admitted  by  the  pleadings.* 

5.  Evidentiary  Matters. — Allegations  of  matters  of  evidence  are 
not  issuable  facts.     They  are  not  admitted  by  a  failure  to  deny.* 

6.  Value  and  Damages. — Allegations  of  value  in  a  pleading  are 
not  to  be  taken  as  true  because  of  a  failure  to  deny  them.*     And 


count,  and  objections  may  be  made  to 
it  for  the  first  time  in  the  appellate 
court.     Haskell  v.  Moore,  29  Cal.  437. 

Striking  Out  Denial. — If  immaterial 
allegations  are  denied,  the  court  will 
not  strike  out  the  denial.  King  v. 
Utica  Ins.  Co.,  6  How.  Pr.  (N.  V.  Su- 
preme Ct.)  4S5. 

Immaterial  Denials. — The  denial  it- 
self may  be  immaterial  without  refer- 
ence to  anything  in  the  complaint. 
Thus,  for  the  purpose  of  an  action  on 
a  contract,  the  allegation  of  the  con- 
tract in  the  complaint,  if  not  contro- 
verted by  the  answer,  is  to  be  taken 
as  true,  and  the  allegation  in  the  an- 
swer of  a  different  contract  has  no 
effect.  Marx  v.  Gross  (Super.  Ct.),  22 
N.  Y.  Supp.  393. 

Leave  to  amend  and  insert  an  im- 
material denial  may  be  refused.  New- 
man V.  Springfield  F.,  etc.,  Ins.  Co., 
17  Minn.  123. 

1.  Swift  V.  Muygridge,  8  Cal.  445; 
Grossini  v.  Pirazzo,  66  Cal.  545; 
Pomeroy  v.  Gregory.  66  Cal.  572; 
Walker  v.  Brem,  67  Cal.  599;  Taylor  v. 
Central  Pac.  R.  Co.,  67  Cal.  615;  Bur- 
net V.  Stearns,  33  Cal.  468;  Gregory 
V.  Nelson,  41  Cal.  279;  Bradbury  v. 
Cronise,  46  Cal.  287;  McDonald  v. 
Mission  View  Homestead  Assoc,  51 
Cal.  210;  Tracy  v.  Craig,  55  Cal.  91. 
And  if  the  court  finds  contrary  to  the 
facts  admitted  by  the  answer,  the  find- 
ing must  be  disregarded.  Bradbury 
V.  Cronise,  46  Cal.  287.  And  a  find- 
ing which  negatives  the  existence  of  a 
fact  admitted  by  the  pleadings  is  a 
finding  against  evidence,  and  the 
judgment  is  erroneous.  Silvey  v. 
Neary,  59  Cal.  97;  Campe  v.  Lassen, 
67  Cal.   139;  Walker  v.  Brem,  67  Cal. 

599- 

An  appellate  court  will  not  look  to  a 
bill  of  exceptions  for  the  purpose  of 
ascertaining  whether  a  finding  based 
upon  a  failure  to  answer  is  sustained 
by  the  proof  made.  Moore  v.  Saubo- 
rin,  42  Mo.  495. 

2.  Edmunds  v.  St.  Louis  R.  Co.,  3 
Mo.  App.  603;  Moore  v.  Murdock,  26 
Cal.   515;  Siter  v.  Jewett,  33  Cal.  93; 


Nudd  V.  Thompson,  34  Cal.  39;  Lowell 
V.  Lowell,  55  Cal.  316;  Racouillat  v. 
Rene,  32  Cal.  455. 

When  an  ultimate  fact  is  admitted 
on  the  record,  probative  facts  tending 
to  establish,  modify,  or  overcome  it 
will  not  be  considered  by  the  court. 
Mulford  V.  Estudillo,  32  Cal.  131. 

Aggravation. — Circumstances  of  ag- 
gravation are  not  traversable.  Schna- 
derbeck  v.  Worth,  8  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  37;  Gilbert  v.  Rounds, 
14  How.  Pr.  (N.  Y.  Supreme  Ct.)46; 
Lane  v.  Gilbert,  9  How.  Pr.  (N.  Y. 
Supreme  Ct.)  150;  Poland  v.  Johnson, 
16  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  235; 
Saltus  V.  Kipp,  5  Duer  (N.  Y.)  646; 
Maretzek  v.  Cauldwell,  2  Robt.  (N.Y.), 
715. 

Deraignment  of  Title. — Averments  in 
the  complaint  of  the  facts  constituting 
a  deraignment  of  title  are  but  aver- 
ments of  evidence,  and  are  not  admit- 
ted by  a  failure  to  deny  them  in  the 
answer.  Siter  v.  Jewett,  33  Cal.  93. 
See  Moore  v.  Murdock,  26  Cal.  525. 

3.  Campbell  v.  Brosius,  36  Neb. 
792;  Jenkins  v.  Steanka,  19  Wis.  126, 
88  Am.  Dec.  675;  Connoss  v.  Meir,  2 
E.  D.  Smith  (N.  Y.)  314;  McKensie  v. 
Farrell,  4  Bosw.  (N.  Y.)  202;  Butter- 
worth  V.  Kennedy,  cited  in  4  Bosw. 
(N.  Y.)  202;  Starr  v.  Cragin,  24  Hun 
(N.  Y.)  177;  Wood  V.  Steamboat,  19 
Mo.  529;  Field  v.  Barr,  27  Mo.  417. 

Quantum  Meruit. — In  all  cases  found- 
ed upon  a  quantum  meruit,  where  the 
value  of  the  services  is  not  expressly 
admitted,  the  question  of  value  is  in 
issue  and  must  be  proved.  Campbell 
V.  Brosius,  36  Neb.  792. 

Trover,  Trespass,  and  Beplevin. — In 
trover,  trespass,  or  replevin  it  is  not 
necessary  for  the  defendant  to  deny 
the  value  alleged  in  the  complaint. 
Jenkins  v.  Steanka,  19  Wis.  126,  88 
Am.  Dec.  675;  Connoss  v.  Meir,  2  E. 
D,  Smith  (N.  Y.)  314;  McKensie  v. 
Farrell,  4  Bosw.  (N.  Y.)  202;  Butter- 
worth  V.  Kennedy,  cited  in  4  Bosw. 
(N.  Y.)  202;  Starr  v.  Cragin,  24  Hun 
(N.  Y.)  177;  Wood  V.  Steamboat,  19 
Mo.  529;  Field  v.  Barr,  27  Mo.  417. 


792 


Allegations 


ANSWERS  IN  CODE  PLEADING. 


Admitted. 


in  an  action  to  recover  unliquidated  damages,  the  allegations  of 
damage  are  not  traversable.* 

7.  Time. — Generally,  allegations  of  time  are  not  admitted  by  a 
failure  to  deny  them.* 

8.  Legal  Conclusions. — Legal  conclusions  need  not  be  denied.^ 

9.  Possession  and  Ownership. — Where  a  complaint  makes  an  alle- 
gation of  actual  possession  of  property,  the  mere  denial  of  pos- 
session admits  actual  possession.*    And  an  answer  in  an  ejectment 


Amounts  to  No  Denial. — The  denial  of 
the  value  of  property  sued  for  in  the 
terms  of  the  allegation  is  evasive,  and 
in  fact  is  no  denial  at  all.  Marsters 
V.  Lash,  6i  Cal.  622. 

Value  Material. — But  where  the  value 
of  a  thing  sued  for  is  material,  the 
allegation  of  value  must  be  denied. 
Thus,  in  an  action  upon  one  of  several 
insurance  policies  on  a  steamboat,  the 
averment  that  she  was  worth  more 
than  all  the  insurance  thereon  is  a 
material  averment,  and  if  not  denied 
in  the  answer  stands  admitted.  Mar- 
shall V.  Thames  F.  Ins.  Co.,  43  Mo.  586. 

Where  the  question  of  value  is  ma- 
terial, and  the  defendant  wants  to  con- 
trovert it,  he  must  allege  that  the  ar- 
ticle is  of  no  value,  or  of  such  value  as 
he  claims  it  to  be.  Lynd  v.  Picket,  7 
Minn.  184,  82  Am.  Dec.  79.  See  Ames 
V.  First  Division  St.  Paul  R.  Co.,  12 
Minn.  412,  where  the  form  of  a  denial 
of  value  was  approved.  See  also  Burt 
V.  McKinstry,  4  Minn.  204,  77  Am. 
Dec.  507;  Dean  v.  Leonard,  9  Minn. 
190;  Hecklin  v.  Ess,  16  Minn.  51; 
Pottgieser  v.  Dorn,  16  Minn^  204; 
Moulton  V.  Thompson,  26  Minn.  120; 
and  Coleman  v.  Pearce,  26  Minn.  123, 
where  the  denials  were  held  bad  be- 
cause they  were  negatives  pregnant. 

Utah. — Allegations  in  a  sworn  com- 
plaint of  value  and  damage  not  spe- 
cifically denied  in  the  answer  are  ad- 
mitted. It  is  not  error  to  so  instruct 
the  jury.     Snell  v.  Crowe,  3  Utah  26. 

1.  Hackett  v.  Richards,  3  E.  D. 
Smith  (N.  Y.)  13;  Connoss  v.  Meir,  2 
E.  D.  Smith  (N.  Y.)  314;  Raymond  v. 
Traffarn,  12  Abb.  (Justices'  Ct.  N.  Y.) 
52;  German-American  Bank  z/.  White, 
33  Minn.  471  ;  PuUen  v.  Wright,  34 
Minn.  314. 

But  allegations  of  damage,  like  al- 
legations of  value,  may  be  material, 
and  when  so  they  must  be  denied. 
Thus,  where  in  an  ejectment  action 
the  complaint  avers  that  the  value  of 
the  use  and  occupation  of  the  premises 
is  a  certain   sum,   this    is  a   material 


allegation  which,  if  not  specifically 
denied,  is  admitted.  Patterson  v.  Ely, 
19  Cal.  29.  And  see  McLaughlin  v. 
Kelly,  22  Cal,  212;  Snell  v.  Crowe,  3 
Utah  26. 

2.  The  date  when  an  account  sued 
upon  accrued  is  not  a  material  aver- 
ment, and  is  not  admitted  by  a  failure 
to  deny  it.  Sutter  v.  Streit,  21  Mo. 
157- 

Where  the  petition  upon  a  me- 
chanic's lien  alleged  that  ten  days' 
notice  had  been  given,  as  required  by 
law,  and  the  answer  took  issue  on  the 
sufficiency  of  the  notice  generally,  the 
allegation  as  to  time  was  admitted. 
Gorman  v.  Dierkes,  37  Mo.  576. 

3.  Larson  v.  Oregon  R.,  etc.,  Co., 
19  Oregon  240. 

Where  a  complaint  demands  an  ac- 
counting, without  showing  that  plain- 
tiff is  entitled  thereto,  defendant,  in 
order  to  raise  the  objection  on  the 
trial,  is  not  required  to  deny  in  his 
answer  the  right  to  such  acccounting. 
Nutting  V.  Atwood  (Super.  Ct.),  23 
N.  Y.  Supp.  816. 

What  Are  Not  Legal  Conclusions. — The 
word  "  duly  "  means  in  a  proper  way, 
or  regularly,  or  according  to  law; 
when  used  in  a  pleading  it  is  some- 
times a  fact  and  sometimes  a  legal 
conclusion.  Thus  the  allegations  of 
a  complaint,  that  the  plaintiff  duly 
made  and  filed  protest,  and  duly  ap- 
pealed to  the  Secretary  of  the  Treas- 
ury, and  that  the  suit  was  brought  in 
time,  not  denied  in  the  answer,  are  to 
be  taken  as  true.  Robertson  v.  Per- 
kins, 129  U.  S.  233. 

An  allegation  that  a  mortgage  was 
duly  recorded  will  be  taken  as  true 
where  it  is  not  denied.  Livesey  v. 
Brown,  35  Neb.  in. 

Where  the  answer  denies  that  a 
notice  was  served  as  required  by  law, 
the  fact  of  notice  is  admitted;  the  law- 
fulness thereof  is  alone  in  issue.  Soe- 
ding  V.  Bartlett,  35  Mo.  90. 

4.  Churchill  v.  Bennett,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  309. 


793 


Allegations 


ANSWEIiS  IN  CODE  PLEADING. 


Admitted. 


suit,  which  denies  the  unlawful  entry  of  defendant,  admits  poses- 
sion.*  As  the  matter  to  be  decided  in  an  ejectment  suit  is  not 
that  of  title,  but  whether  the  defendant  unlawfully  withholds 
possession  from  the  plaintiff,  the  denial  of  an  allegation  of  owner- 
ship is  not  equivalent  to  a  denial  that  the  defendant  unlawfully 
withholds  possession.  Where  an  allegation  of  unlawful  with- 
holding is  in  the  complaint,  it  must  be  denied.* 

Ownership  is  a  fact  distinct  from  the  method  of  its  acquisition ; 
and  allegations  of  ownership  must  not  be  confounded  with  those 
showing  the  manner  in  which  it  was  acquired  :  a  denial  of  the 
latter  allegation  is  not  a  denial  of  the  former.* 

10.  Notes,  Bills,  and  Other  Instruments. — In  actions  on  notes  and 
bills  and  other  written  instruments  allegations  of  execution  and 
indorsement  are  material,  and  are  admitted  unless  denied.'* 

Where  the  complaint  avers  generally  that  the  plaintiff  faith- 
fully complied  with  the  terms  of  the  contract,  and  the  answer 
does  not  deny  this  allegation,  evidence  that  there  was  a  breach  of 
the  terms  of  the  contract  is  not  admissible.^ 

The  allegation  of  an  instrument  as  having  a  certain  legal  effect 
will  be  conclusive  unless  denied.® 


1.  Tomlinson  v.  Lynch,  32  Mo.  160. 

Where  the  complaint  in  an  eject- 
ment suit  describes  the  land,  and  the 
denial  contains  a  different  description, 
the  plaintiff  is  entitled  to  a  judgment 
on  the  pleadings,  for,  the  boundaries 
set  out  in  the  pleadings  being  unlike, 
all  the  allegations  could  be  true. 
Hadden  v.  Mannin  (Kv.,  1893),  21  S. 
W.  Rep.  38. 

2.  Tyson  v.  Shepherd,  90  N.  Car. 
314.  Compare  Gilchrist  v.  Middleton, 
107  N.  Car.  664;  Lupo  v.  True,  16  S. 
Car.  579;  Lee  v.  Figg.  37  Cal.  328; 
Howard  v.  Singleton  (Ky.,  1893),  22 
S.  W.  Rep.  337;  Cotzhausen  v.  Kaeh- 
ler,  42  Wis.  332:  Burke  v.  McDonald, 
2  Idaho  646. 

The  denial  of  the  withholding  pos- 
session must  refer  to  the  time  men- 
tioned in  the  complaint.  Where  the 
answer  merely  alleged  that  the  de- 
fendant "is  not  in  possession"  of  the 
land,  it  was  held  that  the  allegation 
of  the  complaint  must  be  taken  as 
confessed.  Schenk  j'. Evoy,  24  Cal.  105. 

Where,  in  an  action  to  recover  pos- 
session of  land,  the  defendant  answers 
admitting  the  possession,  but  denying 
the  plaintiff's  title,  he  cannot,  without 
an  amendment  of  the  pleadings,  after- 
ward disclaim  title  and  possession, 
and  put  the  plaintiff  to  proof  of  the 
adverse  possession.  Graybeal  v. 
Powers,  83  N.  Car.  561. 

3.  Wilson   V.  Murphy,  45  Mo.  409, 


where  the  answer  was  construed  by 
the  court,  not  to  deny  title  to  the  note, 
but  only  to  deny  the  manner  of  acquir- 
ing it.  Compare  Brown  v.  Ryckman, 
12  How.  Pr.  (N.  Y.  C.  PI.)  313;  Felch 
V.  Beaudry,  40  Cal.  439;  De  Loge  v. 
Hall,  31  Mo.  473;  Emory  v.  Phillips, 
22  Mo.  499. 

4.  Flood  V.  Reynolds,  13  How.  Pr. 
(N.  Y.  Supreme  Ct.)  112. 

Where  the  defendant  denied  sign- 
ing the  note  sued  on,  and  also  alleged 
"that  if  it  [the  signature]  is  genuine, 
then  it  was  procured  through  fraud," 
held,  an  admission  of  the  signing  of 
the  note.  Dinsmore  v.  Stimbert,  12 
Neb.  434. 

And  where  the  defendant  pleaded 
that  he  did  not  execute  the  note  sued 
on,  but  did  execute  one  like  that  de- 
scribed in  the  petition,  but  with  cer- 
tain additions  thereto,  keld,  that  the 
execution  of  the  note  was  admitted. 
Kinman  v.  Cannefax,  34  Mo.  147.  See 
also  Ramsay  v.  Barnes  (C.  PI.),  12  N. 
Y.  Supp.  726;  San  Francisco  z/.  Staude, 
92  Cal.  560. 

5.  Cassacia  v.  Phoenix  Ins.  Co.,  28 
Cal.  629,  where  the  fact  that  gun- 
powder was  kept  in  violation  of  the 
terms  of  an  insurance  policy  was  held 
immaterial,  as  the  defendant  had  not 
denied  the  allegation  of  the  complaint 
that  the  plaintiff  had  faithfully  com- 
plied with  all  the  terms  of  the  policy. 

6.  Coffin  V.  Grand  Rapids  Hydraulic 


794 


Allegations 


ANSlVEJiS  IN  CODE  PLEADING. 


Admitted. 


In  some  states  provision  is  made  by  statute  to  the  effect  that 
when  a  written  instrument  is  referred  to  in  a  pleading,  or  the  suit 
is  on  such  instrument,  the  signature  thereto  shall  be  deemed 
genuine  and  admitted  unless  specifically  denied  under  oath.* 

11.  Libel  and  Slander. — Allegations  in  a  complaint,  relative  to  the 
intent  and  motives  of  a  libellous  publication,  are  not  to  be  deemed 
material,  so  as  to  render  it  necessary  for  the  defendant  to  admit 
or  controvert  them  in  his  answer.* 

12.  Sales. — In  an  action  to  recover  the  price  of  goods  sold,  the 
answer  must  deny  the  allegation  of  sale;  merely  denying  the 
indebtedness  admits  the  sale  and  delivery.' 

13.  Release  and  Payment. — A  plea  of  release  and  payment  of  a 
claim  admits  its  validity.* 

Carle  v.  Cornell,  ii  Iowa  374;  Loomis 
V.  Metcalf,  30  Iowa  382;  Hall  v.  .^tna 
Mfg.  Co.,  30  Iowa  215;  Douglass  v. 
Matheny,  35  Iowa  112;  Sheldon  v. 
Middleton,  10  Iowa  17;  Lyon  v.  Bunn, 
6  Iowa  49;  Seachristz/  Griffith,  6  Iowa 
390;  Terhune  v.  Henry,  13  Iowa  99; 
Fannon  v.  Robinson,  10  Iowa  272; 
Lake  v.  Cruikshank,  31  Iowa  395;  Hay 
V.  Frazier,  49  Iowa  454;  Sankey  v. 
Trump,  35  Iowa  267;  Brayley  v. 
Hedges,  52  Iowa  623;  Sully  v.  Gold- 
smith, 49  Iowa  690;  Farmers',  etc., 
Bank  v.  Young,  36  Iowa  44;  Brewer  v. 
Crow,  4  Greene  (Iowa)  520;  Templin 
V.  Rothweiler,  56  Iowa  259. 

And  see  section  X  of  this  article; 
also  U.  S.  V.  Alexander,  2  Idaho  354; 
Heath  v.  Lent,  i  Cai.  410. 

2.  Fry  v.    Bennett,  5  Sandf.  (N.  Y.) 

54- 

And  in  an  action  for  slander  for 
speaking  words  actionable  per  se,  an 
allegation  in  the  complaint,  that  before 
the  speaking  of  the  alleged  slanderous 
words  the  plaintiff  had  sustained  a 
good  name  and  reputation  among  his 
neighbors,  is  superfluous,  and  need 
not  be  denied.  Pink  v.  Catanich,  51 
Cal.  420. 

3.  Lee  v.  Casey,  39  Mo.  383. 

In  an  action  for  the  price  of  a  quan- 
tity of  goods  sold,  the  answer  alleged 
that  the  sale  was  by  sample,  and  that 
a  specified  quantity  was  not  according 
to  the  sample,  and  denied  all  the  alle- 
gations of  the  complaint  not  admitted. 
Held,  that  the  quantity  sold  was  not 
admitted.  Youngs  v.  Kent,  46  N.  Y. 
672. 

4.  Blumenthal  v.  Mugge,  43  Mo. 
427. 

Where,  in  an  action  for  the  recovery 
of  damages,  the  defendant  pleads 
accord  and  satisfaction,  and  the  repli- 


Co.  (Super.  Ct.).  18  N.  Y.  Supp.  782, 
where  it  was  held  that  where  an  obli- 
gation is  declared  on  as  a  promissory 
note,  and  the  answer  does  not  dispute 
the  allegation  in  that  regard,  defend- 
ant cannot  raise  the  objection  that  the 
note  is  a  conditional  agreement  for  the 
payment  of  money. 

1.  Iowa  Code,  t^  2730;  Wagner  Sts. 
Mo.  p.  1046,  §  45.  Under  this  statute 
the  signature  to  an  assignment  of  a 
judgment  is  admitted  unless  specifi- 
cally, denied.  Edmonds  v.  Montgom- 
ery, I  Iowa  143.  This  statutory  pro- 
vision is  applicable  in  an  action  against 
a  guarantor  of  a  note,  Partridge  v. 
Patterson,  6  Iowa  514;  and  in  the  case 
of  city  warrants,  Clark  v.  Des  Moines, 
19  Iowa  199;  and  in  county  warrants, 
Clark  V.  Polk  County,  19  Iowa  248. 

But  where  notes  purporting  to  have 
been  executed  by  an  agent  are  sued 
on,  the  ordinary  denial  of  their  exe- 
cution, without  verification,  is  suffi- 
cient.    Pope  V.  Risley,  23  Mo.  185. 

See  also  the  following  cases  in  con- 
struction of  these  statutes:  Parker  v. 
Simpson,  i  Mo.  539;  Bates  v.  Hinton, 
4  Mo.  78;  Klein  v.  Keys,  17  Mo.  326; 
Anderson  v.  Hance,  49  Mo.  159;  Car- 
penter V.  Lathrop,  51  Mo.  487;  State  v. 
Chamberlin,  54  Mo.  338;  Corby  v. 
Weddle,  57  Mo.  452;  Hammerslough  v. 
Chatham,  84  Mo.  13;  McQuade  v.  St. 
Louis,  9  Mo.  App.  586;  Patrick  v. 
Boonville  Gas  Light  Co.,  17  Mo.  App. 
462;  Smith  V.  Rembaugh,  21  Mo.  App. 
390;  Rothschild  v.  Frensdorf,  21  Mo. 
App.  318;  McGill  V.  Wallace,  22  Mo. 
App.  675;  Curry  v.  Sioux  City  Dist. 
Tp.,  62  Iowa  102;  Miller  v.  House,  67 
Iowa  737;  Ashworth  v.  Grubbs,  47 
Iowa  353;  Walker  v.  Sleight,  30  Iowa 
310;  Robinson  v.  Lair,  31  Iowa,  9; 
Thompson   v.   Abbott,    11    Iowa    193; 

795 


Hegatives 


ANSWERS  IN  CODE  PLEADING. 


Pregnant. 


14.  Pleading  a  Different  Contract  or  Tort. — Where  a  contract  or 
tort  is  set  out  in  the  complaint,  an  answer  setting  up  another 
contract  or  tort,  without  denial  of  the  allegations  of  the  com- 
plaint, is  an  admission  of  the  contract  or  tort  set  up  in  the  com- 
plaint.* 

15.  Mandamus. — The  pleadings  in  mandamus  proceedings 
have  the  same  effect  and  are  to  be  construed  as  those  in  civil 
actions.  A  material  allegation  in  the  petition,  not  denied,  is 
admitted.* 

16.  Divorce  Proceedings. — In  divorce  proceedings  it  is  the  policy 
of  the  state  to  compel  the  plaintiff  to  prove  the  allegations  of  the 
complaint,  whether  denied  or  not ;  hence,  in  these  cases,  the  rule 
that  a  material  allegation  not  denied  is  admitted  does  not  obtain.^ 

17.  Allegations  of  Status  and  Capacity. — Allegations  of  status  and 
capacity,  such  as  that  the  plaintiffs  are  partners,  or  a  corporation, 
are  material  ones,  which  are  admitted  unless  denied."* 

V.  Negatives  Peegnant.— 1.  Generally. — A  negative  pregnant  is 
that  form  of  a  denial  which  implies  an  affirmative.  The  objection 
to  this  form  of  a  denial  is  that  it  is  ambiguous.'  A  negative  preg- 
nant can  only  arise  by  the  interposing  of  a  specific  denial.  A 
general  denial  puts  in  issue  every  allegation  in  the  pleading  to 
which  it  is  a  denial.  It  can  never  be  construed  as  a  negative 
pregnant.®     The  general  rule  is  that  if  the  denial  is  a  negative 


cation  denies  that  "in  consideration 
of  the  payment  of  seventy-five  dollars, 
or  any  other  sum,  and  the  surgeon's 
fee "  mentioned  in  the  answer,  the 
plaintiff  "  accepted  the  same  in  full 
satisfaction  and  discharge  of  the  dam- 
ages," etc.,  held,  that  while  this  is  an 
admission  of  the  payments,  it  is  a 
denial  of  acceptance  in  discharge  of 
the  damages  claimed.  O'Rileyz/.  Wil- 
son, 4  Oregon  97. 

1.  East  River  Electric  Light  Co.  v. 
Clark  (C.  PI.),  18  I^.  Y.  Supp.  463; 
Schnaderbeck  v.  Worth,  8  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  37.  See/^j/,  VI. 
Argumentative  Deni.\ls. 

2.  State  V.  Hawes,  43  Ohio  St.  16, 
w^here  the  petition  alleged  that  a  cer- 
tain bill  of  exceptions  tendered  to  a 
judge  to  sign  was  a  true  bill,  and  the 
alternative  writ  commanded  him  to 
sign  the  same  or  show  cause  why  he 
did  not,  and  by  his  answer  he  did  not 
deny  this  allegation,  and  it  was  held 
that  this  was  an  admission  that  the 
bill  was  true. 

3.  Bennett  v.  Bennett,  28  Cal.  600. 

4.  Teller  v.  Hartman,  16  Colo.  447; 
Elliott  V.  Espenhain,  54  Wis.  231  ; 
Haberkorn  v.  Hill  (Supreme  Ct.).  2 
N.  Y.  Supp.   243.     Compare  Brandt  v. 


Shepard,  39  Minn.  454;  Rock  Island 
Lumber,  etc.,  Co.  v.  Fairmount  Town 
Co.,  51  Kan.  394. 

See  also /tfj^,  section  X.  What  May 
BE  Proved  under  a  General  Denial. 

5.  Bliss  Code  PI.  §  332.  "  It  is  under 
this  head  of  ambiguity  that  the  doctrine 
of  negatives  pregnant  appears  most 
properly  to  range  itself.  A  negative 
pregnant  is  such  a  form  of  negative 
expression  as  may  imply  or  carry 
within  it  an  affirmative.  This  is  con- 
sidered as  a  fault  in  pleading;  and  the 
reason  why  it  is  so  considered  is  that 
the  meaning  of  such  a  form  of  expres- 
sion is  ambiguous."  Stephen  PI. 
(Tyler's  ed.)  335. 

6.  German-American  Bank  v.  White, 
38  Minn.  471. 

But  the  following  cases  hold  that  a 
general  denial  of  the  value  stated  in 
the  complaint  is  insufficient,  and  is  a 
negative  pregnant.  Steele  z/. Thayer,  36 
Minn.  174;  Coleman  v.  Pearce,  26  Minn. 
123;  Moulton  V.  Thompson,  26  Minn. 
120;  Pottgieser  v.  Dorn,  16  Minn.  204; 
Hecklin  v.  Ess,  16  Minn.  51;  Durfee  v. 
Pavitt,  14  Minn.  424;  Dean  v.  Leonard, 
9  Minn.  190;  Lynd  v.  Picket,  7  Minn. 
184,  82  Am.  Dec.  79. 

A  general  denial  in  an  answer  of  the 


796 


Negatives 


ANSWERS  IN  CODE  PLEADING. 


Pregnant. 


pregnant  it  amounts  to  no  denial  at  all,  and  the  allegations  of 
the  complaint  are  treated  as  admitted.^ 

2.  Conjunctive  Denials.— If  several  material  facts  are  stated  con- 
junctively in  a  complaint,  an  answer  which  undertakes  to  deny 
these  averments  as  a  whole,  as  conjunctively  stated,  is  evasive,  and 
is  an  admission  of  the  averments  thus  attempted  to  be  denied.* 

Merchants'  Nat.  Bank  v.  Richards,  6 
Mo.  App.  454,  74  Mo.  77.  See  also 
Wynn  v.  Cory,  43  Mo.  304;  First  Nat. 
Bank  v.  Hogan,  47  Mo.  472;  Ells  v. 
Pacific  R,  Co.,  55  Mo.  278. 

2.  Hopkins  v.  Everett,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  159;  Young  v. 
Catlett,  6  Duer  (N.  Y.)  437;  Metropoli- 
tan Bank  v.  Lord,  i  Abb.  Pr.  (N.  Y. 
Super.  Ct.)  185;  Pullen  v.  Wright,  34 
Minn.  315;  Fish  v.  Redington,  31  Cal. 
186;  Burke  v.  Table  Mountain  Water 
Co.,  12  Cal.  407;  Busenius  v.  Coffee, 
14  Cal.  91;  Smith  v.  Doe,  15  Cal.  loi; 
Blankman  v.  Vallejo,  15  Cal.  639; 
Castro  V.  Wetmore,  16  Cal.  379;  Kuh- 
land  V.  Sedgwick,  17  Cal.  123;  Caul- 
field  V.  Sanders,  17  Cal.  569;  Higgins 
V.  Wortell,  18  Cal.  331;  Wells  v.  Mc- 
Pike,2i  Cal.2i6;  Woodworthz/.  Knowl- 
ton,  22  Cal.  164;  Ghirardelli  v.  McDer- 
mott,  22  Cal.  539;  Towdy  v.  Ellis,  22 
Cal.  651;  Nelson  z/.  Murray.  23  Cal.  338; 
Lay  V.  Neville,  25  Cal.  546;  Morrill  v. 
Morrill,  26  Cal.  289;  Stoddard  v.Tread- 
well,  26  Cal.  303;  Landers  v.  Bolton,  26 
Cal.  393;  Moore  v.  Del  Valle,  28  Cal. 
170;  Randolph  v.  Harris,  28  Cal  562, 
87  Am.  Dec.  139;  Richardson  v.  Smith, 
29  Cal.  530;  Camden  v.  Mullen,  29  Cal. 
565;  Fitch  V.  Bunch,  30  Cal.  209;  Blood 
V.  Light,  31  Cal.  115;  Lefl!ingwell  v. 
Griffing,3i  Cal.  232;  Burke  v.  Carruth- 
ers,  31  Cal.  468;  Reed  v.  Calderwood, 
32  Cal.  109;  Kinsey  v.  Wallace,  36  Cal. 
462;  Doll  V.  Good,  38  Cal.  287;  De 
Godey  z/.  Godey,  39  Cal.  157;  Feely  v. 
Shirley,  43  Cal.  369;  Huston  v.  Tuein, 
etc..  Turnpike  Co.,  45  Cal.  550;  Brad- 
bury V.  Cronise,  46  Cal.  287;  Leroux  v. 
Murdock,  51  Cal.  541;  Masters  v.  Lash, 
61  Cal.  622;  Young  v.  Miller,  63  Cal. 
302. 

Court  May  Instruct  for  Plaintiff.  — 
Where  there  is  only  a  conjunctive  de- 
nial the  court  may  instruct  the  jury 
to  find  for  the  plaintiff.  Kuhland  v. 
Sedgwick,  17  Cal.  123. 

Alternative  Denial. — A  denial  in  the 
alternative  form  is  bad.  Otisz^.  Ross, 
8  How.  Pr.  (N.  Y.  Supreme  Ct.)  193, 
where  the  denial  was  that  the  defend- 
ant made  this  representation  or  that. 


allegations  in  a  complaint,  "that  be- 
fore the  maturity  of  said  note  the  said 
A.  M.,  for  value  received,  sold,  trans- 
ferred, indorsed,  and  delivered  it  to 
plaintiff,"  puts  in  issue  only  the  time, 
not  the  fact,  of  transfer.  Frasier  v. 
Williams,  15  Minn.  288..  Compare  Mc- 
Clung  V.  Bergfeld,  4  Minn.  148;  Burt 
V.  McKinstry,  4  Minn.  204,  77  Am.  Dec. 
507;  Morton  v.  Jackson,  2  Minn.  219. 

A  general  denial  is  the  same  in  effect 
as  a  specific  denial  of  each  of  the  alle- 
gations in  the  whole  or  in  the  part  of 
the  pleading  so  denied,  and  is  a  nega- 
tive pregnant  only  where  a  mere  spe- 
cific denial  would  be.  Stone  v.  Quaal, 
36  Minn.  46. 

1.  Kay  V.  Whittaker,  44  N.  Y.  565; 
Young  V.  Catlett,  6  Duer  (N.  Y.)439; 
Baker  v.  Bailey,  16  Barb.  (N.  Y.)  54; 
Moser  v.  Jenkins,  5  Oregon  447;  Sco- 
vill  V.  Barney,  4  Oregon  288;  Mulcahy 
V.  Buckley,  100  Cal.  484;  Blankman  v. 
Vallejo,  15  Cal.  638;  Kuhland  v.  Sedg- 
wick, 17  Cal.  123;  Caulfield  v.  Sanders, 
17  Cal.  569;  Woodworth  v.  Knovvlton, 
22  Cal.  164;  Landers  v.  Bolton,  26  Cal. 
393;  Bradbury  v.  Cronise,  46  Cal.  287; 
Larneyz-.  Mooney,  50  Cal.  610;  Harden 
V.  Atchison,  etc.,  R.  Co.,  4  Neb.  521. 
And  see  the  cases  under  other  para- 
graphs of  this  section. 

Good  tinlesB  Objected  to. —  But  some 
authorities  hold  that  the  objection  that 
a  denial  is  a  negative  pregnant  is  a 
formal  one,  and  that  unless  the  objec- 
tion is  made  before  trial  it  will  be 
waived,  and  the  allegation  regarded  as 
controverted.  Elton  v.  Markham,  20 
Barb.  (N.  Y.)  347;  Lawrence  v.  Will- 
iams, I  Duer  (N.  Y.)  585;  Parker  v. 
Tillinghast  (CityCt.),  i  N.  Y.  St.  Rep. 
296;  Otis  V.  Ross,  8  How.  Pr.  (N.  Y. 
Supreme  Ct.)  193;  Pfandler  Process 
Fermentation  Co.  v.  McPherson  (Su- 
preme Ct.),  20  N.  Y.  St.  Rep.  473;  Doo- 
little  V.  Greene,  32  Iowa  123. 

The  remedy  is  by  motion  to  make 
the  denial  more  definite  and  certain. 
Wall  V.  Buffalo  Water  Works  Co.,  18 
N.  Y.  120. 

Missouri. — The  doctrine  of  a  negative 
pregnant  is  not  recognized  in  Missouri. 


797 


Negatives 


ANSWERS  IN  CODE  PLEADING. 


Pregnant. 


3.  Literal  Denials. — An  answer  which  confines  itself  to  denying 
in  ipsis  verbis  the  allegations  of  the  complaint,  and  does  not  at- 
tempt to  deny  their  substance  or  spirit,  is  bad  as  being  evasive 
and  tendering  immaterial  issues.* 

Particular  Amount. — The  denial  that  the  particular  amount  claimed 
is  due,  or  that  the  exact  sum  was  received,  is  a  negative  pregnant.* 

Wrongfully  and  Maliciously. — If  the  complaint  alleges  that  an  act 
was  wrongfully  and  maliciously  done,  a  denial  in  the  answer  that 
it  was  wrongfully  and  maliciously  done  does  not  put  in  issue  the 
doing  of  the  act,  but  only  its  wrongful  character.^ 


See  Corbin  v.  George,  2  Abb.  Pr.  (N. 
Y.  Supreme  Ct.)  465;  Salters  v.  Genin, 
8  Abb.  Pr.  (N.  Y.  Super.  Ct.)  253. 

Separate  Parargaphs. — An  answer 
must  controvert  separately  and  specifi- 
cally the  charge  made  in  each  para- 
graph of  the  petition.  Morgan  v. 
Booth,  13  Bush  (Ky.)  480. 

What  Constitutes  a  Conjunctive  Denial. 
The  mere  fact  that  the  answer  makes 
use  of  the  copula  "and"  does  not 
necessarily  make  the  denial  a  conjunc- 
tive one.  Thus,  an  allegation  in  the 
complaint  that  the  defendants  "as- 
sumed and  agreed  "  to  pay  a  debt  is 
not  a  statement  of  two  distinct  propo- 
sitions, but  the  two  words  "assumed  " 
and  "agreed"  are  synonymous,  and  a 
denial  that  the  defendants  "assumed 
and  agreed"  to  pay  the  debt  is  not  a 
conjunctive  denial.  Jones  v.  Eddy,  90 
Cal.  147.  See  Livingston  v.  Hammer, 
7  Bosw.  (N.  Y.)  670;  First  Nat.  Bank 
V.  Hogan,  47  Mo.  472. 

1.  Rock  Spring  Co.  v.  Salt  Lake 
Sanitarium  Assoc,  7  Utah  158;  James 
V.  McPhee,  9  Colo.  486;  Caulfield  v. 
Sanders,  17  Cal.  569;  Higgins  v.  War- 
tell,  18  Cal.  331;  Landers  v.  Bolton,  26 
Cal.  393;  Seward  v.  Miller,  6  How  Pr. 
(N.  Y.  Supreme  Ct.)  312  ;  Moody  v. 
Belden  (Supreme  Ct.),  15  N.  Y.  Supp. 
119;  Miller  v.  Miller,  i  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  30;  Moser  v.  Jenkins, 
5  Oregon  448;  Norris  v.  Glenn,  i  Idaho 
590;  Robbins  v.  Lincoln,  12  Wis.  i; 
Burdick  v.  Briggs,  11  Wis.  126;  Cuth- 
bert  z/.  Appleton,  24  Wis.  3S3;  Miller  z'. 
Brunbaugh,  7  Kan.  343;  Dare  v.  Pa- 
cific R.  Co.,  31  Mo.  480.  But  this  last 
case  is  overruled  by  Merchants'  Nat. 
Bank  v.  Richards,  74  Mo.  77.  See 
Emory  z-.  Phillips,  22  Mo.  499;  Ells  v. 
Pacific  R.  Co.,  55  Mo.  278. 

Where  an  answer  denied  the  allega- 
tion of  the  complaint  that  the  "bond 
and  mortgage  "  contained  such  a  con- 
dition, "as  by  reference  to  the  record 


of  said  mortgage  will  more  fully  ap- 
pear " — held,  not  a  denial  that  such 
was  the  condition  of  the  bond,  and 
that  it  did  not  put  in  issue  the  allega- 
tion of  the  complaint  that  the  whole 
amount  secured  had  become  due.  Kay 
V.  Whittaker,  44  N.  Y.  565. 

Likewise,  in  an  action  to  recover  for 
work  and  labor  alleged  to  have  been 
done  at  the  request  of  defendant,  an 
answer  denying  that  the  labor  was 
performed  at  the  request  of  the  de- 
fendant is  not  a  denial  that  the  work 
was  performed.  Bradbury  v.  Cronise, 
46  Cal.  287. 

For  further  illustrations  of  the  prin- 
ciple that  a  literal  denial  is  evasive 
and  tenders  no  issue,  see  Dimon  v. 
Dunn,  15  N.  Y.  498;  Fuhn  v.  Weber, 
38  Cal.  636;  De  Godey  v.  Godey,  39 
Cal.  157;  Gammon  v.  Dyke,  2  Wash. 
Ter.  266. 

2.  Conway  v.  Clinton,  i  Utah  215; 
Dillon  V.  Spokane  County,  3  Wash. 
Ter.  498.  A  denial  that  property  sued 
for  is  of  the  exact  value  alleged  is  an 
admission  of  any  less  value.  Scovill 
V.  Barney,  4  Oregon  289. 

Where  the  complaint  alleged  that 
the  defendant  received  a  certain  sum 
in  gold  coin,  a  denial  that  the  amount 
was  received  in  "  gold  coin  "  raises  no 
issue.  Leffingwell  v.  Griffing,  31  Cal. 
232. 

But  where  the  answer  averred  that 
the  value  of  the  labor  "  was  not  over 
the  sum  of  fifteen  dollars  or  twenty 
dollars,"  it  was  held  that  this  was  a 
denial  that  the  value  of  the  labor  was 
seventy-six  dollars,  the  amount  sued 
for,  and  that  the  answer  should  not 
be  stricken  out.  Way  v.  Oglesby,  45 
Cal.  655. 

3.  Kinsey  v.  Wallace,  36  Cal.  462; 
Feely  v.  Shirley,  43  Cal.  369;  Harden 
V.  Atchison,  etc.,  R.  Co.,  4  Neb.  521. 

A  denial  that  the  defendants 
"wrongfully  and   illegally  "  diverted 


798 


Argumentative    AA'SWERS  IN  CODE  PLEADING. 


Denials 


Time. — Where  the  precise  time  of  an  act  alleged  in  a  pleading  is 
not  material,  a  denial  that  the  act  was  done  at  the  time  alleged 
does  not  raise  a  material  issue.' 

Slander. — An  answer  in  slander  which  merely  states  that  the 
defendant  did  not  utter  the  precise  words,  at  the  precise  time,  in 
the  particular  place,  and  in  the  manner  stated  in  the  complaint, 
is  simply  stating  that  the  complaint  is  not  all  true.  Such  a  form 
of  denial  is  a  negative  pregnant.* 

In  Manner  and  Form. — Where  the  answer  denies  the  allegations  of 
the  complaint  "in  manner  and  form  as  therein  set  forth,"  this  is  a 
species  of  negative  pregnant ;  such  a  form  of  denial  refers  only  to 
the  manner  and  form  in  which  the  plaintiff  has  stated  his  cause 
of  action,  and  not  to  the  substance  of  the  allegations.' 

VI.  Argumentative  Denials — 1.  Defined. — An  argumentative  denial 
arises  when  the  pleader  mistakes  the  matter  which  may  be  used 
as  evidence  to  support  a  denial,  and  pleads  it  as  though  it  were 
new  matter.  It  is  specially  pleading  matter  which  goes  to  dis- 
prove any  material  allegation  in  the  complaint.* 


certain  water  is  an  admission  of  the 
act  of  diversion.  Harris  v.  Shontz,  i 
Mont.  212;  Toombs  v.  Hornbuckle,  i 
Mont.  286.  And  a  denial  that  de- 
fendant unlawfully  entered  on  land  is 
an  admission  of  the  entry.  Leroux  v. 
Murdock,  51  Cal.  541;  Larney  v. 
Mooney,  50  Cal.  610;  Busenius  v.  Cof- 
fee, 14  Cal.  91.  Likewise  a  denial 
that  the  defendant  wrongfully  and 
unlawfully  took  and  carried  away  cer- 
tain personal  property  is  a  confession 
of  the  taking  and  carrying  away. 
Lay  V.  Neville,  25  Cal.  546;  Wood- 
worth  V.  Knowlton,  22  Cal.  164. 

1.  McMurphy  v.  Walker,  20  Minn. 
382;  Hincken  v.  Mutual  Benefit  L.  Ins. 
Co.,  6  Lans.  (N.  Y.)  21;  Davison  v. 
Powell,  16  How.  Pr.  (N.  Y.  Supreme 
Ct.)  467;  Livingston  v.  Hammer,  7 
Bosw.  (N.  Y.)  670;  Shearman  v.  New 
York  Cent.  Mills,  i  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  187;  Thorn  v.  New  York 
Cent.  Mills,  10  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  19. 

The  denial  of  having  made  an  as- 
sault on  the  day  mentioned  in  the 
complaint  admits  that  it  was  commit- 
ted on  some  other  day.  Baker  v. 
Bailey,  16  Barb.  (N.  Y.)  54.  And 
where  the  answer  denies  that  the 
property  was  destroyed  by  fire  on  a 
certain  day,  this  is  an  admission  that 
it  was  destroyed  at  some  other  time. 
Schaetzel  v.  Germantown,  etc.,  Ins. 
Co.,  22  Wis.  412.  The  denial  of  a 
payment  on  a  certain  day  is  a  nega- 
tive pregnant  with  an   admission   of 


payment  on  some  other  day.  Argard 
V.  Parker,  81  Wis.  5S1. 

Ownership. — The  time  when  owner- 
ship exists  is  sometimes  immaterial. 
A  mere  denial  that  the  plaintiff  was 
the  owner  at  the  time  set  out  in  his 
complaint  is  insufficient.  Kuhland  v. 
Sedgwick,  17  Cal.  123;  Doll  v.  Good, 
38  Cal.  287. 

Iowa. — In  Iowa  a  material  issue  can 
be  raised  by  a  literal  denial  of  time. 
Where  the  complaint  alleged  that  the 
defendant  on  a  certain  day  set  fire  to 
plaintiff's  hay,  a  denial  that  defendant 
did  on  that  day  set  fire  to  the  hay  was 
held  sufl5cient.  Doolittle  v.  Greene, 
32  Iowa  123.  See  Mahana  v.  Blunt, 
20  Iowa  142. 

2.  Salinger  v.  Lusk,  7  How.  Pr.  (N. 
Y.  Supreme  Ct.)  430. 

In  an  action  for  slander  an  answer 
is  insuflScient  which  denies  the  truth 
of  two  charges  taken  together,  when 
the  charges  are  made  in  separate  par- 
agraphs of  the  petition.  Morgan  v. 
Booth,  13  Bush  (Ky.)48o. 

3.  Dole  V.  Burleigh,  i  Dakota  218; 
Crane  Bros.  Mfg.  Co.  v.  Morse,  49  Wis. 
368;  Seattle  z/.  Buzley,  2  Wash.  Ter.26. 

4.  Smith  V.  Little,  67  Ind.  553. 

At  common  law  an  argumentative 
pleading  was  bad.  Where  a  plea 
amounted  to  the  general  issue  it 
should  have  been  so  pleaded.  Stephen 
PI.  (Tyler's  ed.)  360.  But  it  was  per- 
missible to  explain  or  qualify  the  de- 
nial by  a  special  traverse.  Stephen  PI. 
(Tyler's  ed.)  1S9. 


799 


Argumentative   ANSWERS  IN  COLE  PLEADING, 


Denials. 


2.  What  Constitutes  an  Argumentative  Denial — contracts. — 
Where  the  action  is  on  a  contract,  an  answer  setting  up  a  differ- 
ent one  is  an  argumentative  denial,*  and  pleading  facts  which 
show  that  no  contract  at  all  was  made  is  argumentative.'-*  Like- 
wise matters  which  tend  to  show  that  plaintiff  has  not  performed 
his  contract,  or  that  conditions  precedent  have  not  been  fulfilled, 
are  matters  of  evidence  under  a  denial,  and  reciting  them  in  the 
answer  is  unnecessary.' 

Ownership. — In  ejectment  the  setting  up  of  title  in  the  defendant 
amounts  to  a  denial."*  And  ownership  of  personal  property  by 
the  defendant  may  be  proved  under  a  general  denial ;  therefore, 
where  the  defendant  sets  up  property  in  himself,  in  an  action  for 
its  recovery  or  value,  this  is  argumentative.* 

Torts. — In  an  action  to  recover  for  negligence,  an  answer  which 
details  the  various  acts  of  defendant  which  show  due  care  is 
argumentative.®  And  an  answer,  that  the  tort  was  committed,  not 

134;  Mehurin  v.  Stone,  37  Ohio  St.  49; 
Bannister  v.  Grassy  Fork  Ditching 
Assoc,  52  Ind.  178;  Wallace  v.  Ex- 
change Bank,  126  Ind.  265;  Urton  v. 
State,  37  Ind.  339. 

4.  Bruck  V.  Tucker,  42  Cal.  346. 
The   recital   in   the   answer   of   the 

series  of  facts  through  which  the  de- 
fendant claims  a  right  to  the  land  is  a 
mere  averment  of  matters  of  evidence, 
and  amounts  to  no  more  than  a  gen- 
eral denial.  Clink  v.  Thurston,  47 
Cal.  21. 

An  averment  that  the  plaintiff's 
grantor  had  made  a  prior  sale  to  the 
defendant  amounts  only  to  a  denial 
of  the  plaintiff's  title,  and  the  plaintiff 
need  not  reply  to  it.  Thompson  v. 
Thompson,  52  Cal.  154. 

If  the  complaint  contains  averments 
of  the  facts  constituting  a  deraignment 
of  title  in  a  certain  manner,  and  the 
answer  contains  a  counter-averment 
that  the  title  was  derived  in  a  different 
manner,  this  counter-averment  is  a 
denial  if  it  alleges  that  the  facts  are 
not  otherwise  than  as  averred  in  the 
counter-statement.  Siter  v.  Jewett, 
33  Cal.  92. 

5.  Ferguson  v.  Rainsey,  41  Ind.  511  ; 
Sparks  v.  Heritage,  45  Ind.  66  ;  Miller 
V.  Brigham,  50  Cal.  615. 

Likewise  setting  up  title  and  pos- 
session in  a  third  person  is  argument- 
ative. Woodworth  v.  Knowlton,  22 
Cal.  164. 

6.  Hoosier  Stone  Co.  v.  McCain,  133 
Ind.  231;  Adams  Express  Co.  v.  Dar- 
nell, 31  Ind.  21;  Sargent  v.  St.  Louis, 
etc.,  R.  Co.,  114  Mo.  348:  Ellet  v.  St. 
Louis,  etc.,  R.  Co.,  76  Mo,  518. 


1.  Fleischman  v.  Stern,  90  N.  Y. 
no;  Marston  v.  Swett,  66  N.  Y.  210, 
23  Am.  Rep.  43;  Wolf  v.  Schofield,  38 
Ind.  175;  Clinton  County  v.  Hill,  122 
Ind.  215. 

A  contract  differing  from  that  set 
up  in  the  complaint  may  be  specially 
pleaded.  Becker  v.  Sweetzer,  J5  Minn. 
427;  Taylor  v.  Richards,  9  Bosw.  (N. 
Y.)  679;  Simmons  v.  Green,  35  Ohio 
St.  104;  Murphy  v.  Napa  County,  20 
Cal.  498;  Oilman  v.  Bootz,  63  Cal.  120. 

But  if  a  defendant  denies  making 
the  contract  alleged,  it  is  irrelevant  to 
the  case  to  set  forth  a  contract  he  ad- 
mits he  did  make,  Puget  Sound  Iron 
Co.  V.  Worthington,  2  Wash,  Ter,  472, 

New  York. — In  New  York  it  is  held 
that  the  setting  up  a  different  agree- 
ment, not  accompanied  by  a  denial,  is 
an  admission  of  the  allegations  of  the 
complaint.  Fleischman  v.  Stern,  90 
N.  Y.  no;  Marston  v.  Swett,  66  N.  Y. 
210,  23  Am.  Rep.  43. 

2.  Wright  V.  Schmidt,  47  Iowa  233; 
Milford  School  Town  v.  Powner,  126 
Ind.  528;  Wallace  v.  Exchange  Bank. 
126  Ind.  265;  Craig  v.  Frazier,  127 
Ind.  286;  Ogden  v.  Kelsey,  4  Ind. 
App.  299;  Loeb  V.  Weis,  64  Ind.  286; 
Lewis  z',  Edwards,  44  Ind.  333;  Day  v. 
Wamsley,  33  Ind.  145;  Butler  v. 
Edgerton,  15  Ind.  15;  Beard  v.  Tiegh- 
man  (Supreme  Ct.),  20  N.  Y.  Supp.  736; 
Dayton  Ins.  Co.  v.  Kelly,  24  Ohio  St. 
358,  15  Am.  Rep.  682. 

A  defendant  may  deny  that  he  signed 
a  note,  and  also  further  allege  that  if 
his  signature  appears  thereon  it  is  a 
forgery.     Ludlow  v.  Berry,  62  Wis.  78. 

3.  Corry  v.  Campbell,   25   Ohio  St. 


800 


Argumentative    ANSIVEKS  IN  CODE  PLEADING. 


Denials. 


by  the  defendant,  but  by  another,  is  argumentative.*  In  an 
action  for  maHcious  prosecution,  facts  showing  probable  cause 
may  be  given  in  evidence  under  a  general  denial,  and  an  answer 
which  alleges  the  existence  of  probable  cause  for  the  prosecution 
is  argumentative.* 

Matters  Showing  that  Facts  Do  Not  Exist. — And  generally  all  those 
matters  which  show  that  a  fact  stated  in  the  complaint  does  not 
exist  are  admissible  under  a  denial,  and  if  spread  on  the  record 
by  means  of  an  answer  will  either  be  stricken  out  as  argumenta- 
tive, or  else  treated  as  a  denial  needing  no  reply.^ 

3.  Effect. — The  authorities  are  divided  as  to  the  effect  of  an  ar- 
gumentative denial.  One  line  of  authorities  holds  that  an  afifima- 
tive  defense  amounting  to  a  denial,  though  inconsistent  with  the 
allegations  of  the  complaint,  when  not  coupled  or  accompanied 
by  a  denial  of  such  allegations,  raises  no  issue  ;  that  the  omission 
to  deny  is  equivalent  to  a  formal  admission  of  the  truth  of  the 
averments,  and  is  conclusive.*  A  second  line  of  authorities  holds 
that  an  argumentative  denial  is  a  formal  defect  to  be  corrected 


Contributory  Negligence. — An  answer 
alleging  that  the  injury  resulted  from 
the  carelessness  of  the  plaintiff  is  an 
argumentative  denial.  Indianapolis, 
etc.,  R.  Co.  V.  Rutherford,  29  Ind.  82, 
92  Am.   Dec.  336. 

Where  the  answer  alleged  that  the 
horse  was  killed  because  of  the  gross 
negligence  of  the  plaintiff,  it  was  held 
that  the  particular  act  or  omission  of 
the  plaintiff  in  which  the  negligence 
consisted  should  have  been  averred. 
Jeffersonville,  etc.,  R.  Co.  v.  Dunlap, 
29  Ind.  426. 

1.  Jackson  v.  Feather  River,  etc.. 
Water  Co.,  14  Cal.  19;  Hoffman  v. 
Gordon,  15  Ohio  St.  211. 

2.  Trogden  v.  Deckard,  45  Ind.  572; 
Rost  V.  Harris,  12  Abb.  Pr.  (N.  Y. 
Super.  Ct.),  446;  Radde  v.  Ruckgaber, 
3  Duer  (N.  Y.)  684;  Simpson  v.  Mc- 
Arthur,  16  Abb.  Pr.  (N.  Y.  C.  PI.)  302. 
note;  Benedict  v.  Seymour,  6  How. 
Pr.  (N.  Y.  Supreme  Ct.)  298. 

3.  Widener  v.  State,  45  Ind.  244, 
where  the  answer  set  up  facts  intended 
to  controvert  the  fact  that  money  was 
collected  in  an  official  capacity;  Wilson 
V.  Root,  43  Ind.  486;  Lowry  v.  Megee, 
52  Ind.  107;  Watts  v.  Coxen,  52  Ind. 
155;  Long  V.  Hoban,  4  Cin.  L.  Bull. 
(Ohio)  986;  Thompson  v.  Lynch,  29 
Cal.  189,  where  the  answer  averred 
that  no  such  deed  was  ever  executed; 
McDonald  v.  Davidson,  30  Cal.  174. 
Compare  Page  v.  Merwin.  54  Conn. 
426;  Colorado  Cent.  R.  Co.  v.  Mol- 
landin,    4   Colo.    154;   Colorado  Cent. 

I  Encyc.  PI.  &  Pr.— 51,  80 


R.  Co.  V.  Blake,  3  Colo.  417;  Way  v. 
Oglesby,  45  Cal.  655;  Goddard  v.  Ful- 
ton, 21  Cal.  430. 

In  all  the  cases  except  those  in  New 
York  the  argumentative  denials  seem 
to  have  performed  the  function  of  a 
traverse;  they  were  held  good  denials 
needing  no  reply;  or  else,  if  objection 
were  taken  to  them,  it  had  to  be  in 
the  trial  court  by  motion  or  de- 
murrer, and  if  not  so  taken  the  objec- 
tion was  waived.  See  all  the  cases 
ante. 

4.  Fleischman  v.  Stern,  90  N.  Y.  no; 
Beard  v.  Tilghman  (Supreme  Ct.)  20 
N.  Y.  Supp.  736;  Tell  V.  Beyer,  38  N.  Y. 
161.  Compare  Newton  v.  Lee,  139  N. 
Y.  332.  Where  an  answer,  instead  of 
directly  denying  a  material  allegation 
of  the  complaint,  contains  a  version 
of  the  transaction  which  is  in  some 
respects  inconsistent  with  the  allega- 
tion, this  will  not  amount  to  a  denial 
so  as  to  prevent  the  allegation  from 
being  taken  as  true.  West  v.  Ameri- 
can Exch.  Bank,  44  Barb.  (N.  Y.)  175: 
Wood  V.  Whiting,  21  Barb.  (N.  Y.) 
190;  Paige  V.  Willet,  38  N.  Y.  28;  Mil- 
ler v.  VVinchofer,  N.  Y,  Daily  Reg. 
March  30,  1881. 

"  I  hold  it  therefore  to  be  incon- 
trovertible that  every  special  defense 
which  consists  of  matter  which  goes 
to  disprove  any  material  allegation  in 
the  complaint  is  defective,  and  must 
be  stricken  out  on  motion."  Per  Sel- 
den,  J.,  ia  Benedict  v.  Seymour,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  307. 


General  Denial     ANS  WERS  IN  CODE  PLEADING,  witi  Admissions. 


by  motion  or  demurrer,  and  that  if  not  so  corrected  in  the  trial 
court  the  objection  is  waived.*  A  third  line  of  authorities  posi- 
tively sanctions  an  argumentative  denial,  holding  that  facts  set 
forth  in  an  answer,  which  only  in  effect  controvert  the  allegations 
of  a  complaint,  may  be  properly  pleaded,  either  by  themselves 
or  in  connection  with  a  direct  denial  of  the  main  allegations 
thereof.* 

VII.  General  Denial  Coupled  with  Admissions— 1.  Generally. — 
The  authorities  are  in  a  hopeless  state  of  confusion  as  to  whether 
it  is  permissible  to  use  a  general  denial  in  connection  with  express 
admissions.  The  formula  sometimes  used,  that  the  defendant 
"  denies  each  and  every  allegation  of  the  complaint  not  herein 
expressly  admitted,"  has  been  condemned  in  a  great  many  cases 
which  hold  that  the  denial,  if  not  general,  must  be  specific*    The 


1.  Judah  V.  Vincennes  University, 
23  Ind.  272;  Pottlitzer  v.  Wesson  (Ind. 
App.),  35  N.  E.  Rep.  1030;  Day  v. 
Wamsley,  33  Ind.  146;  Bondurant  v. 
Bladen,  19  Ind.  160;  Urton  v.  State, 
37  Ind.  339;  Port  z'.  Russell,  36  Ind. 
60,  10  Am.  Rep.  5;  Allen  z/.  Randolph, 
48  Ind.  496;  Ohio,  etc.,  R.  Co.  v. 
Hemberger,  43  Ind.  462;  Western 
Union  Tel.  Co.  v.  Meek,  49  Ind.  53; 
Smith  V,  Denman,  48  Ind.  65.  See 
other  cases  under  other  paragraphs  of 
this  section. 

General  Denial  and  Argumentative  De- 
nial Both  Pleaded. — When  both  a  gen- 
eral denial  and  an  argumentative  one 
are  pleaded,  the  trial  court  may  strike 
out  the  argumentative  one,  either  on 
demurrer  or  on  motion.  Clodfelter  v. 
Lucas,  7  Ind.  App.  379;  Tewksbury  z/. 
Howard  (Ind.),  37  N.  E.  Rep.  355; 
Adams  Express  Co.  v.  Darnell,  31 
Ind.  20;  Colchen  v.  Ninde,  120  Ind. 
88;  Radabaugh  v.  Silvers  (Ind.),  35  N. 
E.  Rep.  694;  Walling  v.  Burgess,  122 
Ind.  299;  Toledo,  etc.,  R.  Co.  v. 
Stephenson,  131  Ind.  203;  Fruito  v. 
Elmore  (Ind.  App.),  34  N.  E.  Rep.  829; 
Bash  V.  Young,  2  Ind.  App.  297; 
Huntington  County  v.  Huffman,  134 
Ind.  i;  Palmerton  v.  Hoop,  131  Ind. 
23;  Sluyter  v.  Union  Cent.  L.  Ins. 
Co.,  3  Ind.  App.  312;  Standard  L., 
etc.,  Ins.  Co.  v.  Martin,  133  Ind.  376; 
Mitchell  V.  Noell,  39  Ind.  399;  Bolton 
V.  Miller,  6  Ind.  262;  Root  v.  Hibben, 
66  Ind.  247;  O'Harraz'.  Stone,  48  Ind. 
417;  Craig  V.  Frazier,  127  Ind.  286; 
Wickwire  v.  Angola,  4  Ind.  App.  253; 
Garrison  v.  Clark,  11  Ind.  369;  Camz/. 
Hunt.  41  Ind.  466;  Westcott  v.  Brown, 
13  Ind.  83;  Rhode  v.  Green,  26  Ind. 
83;  Waggoner  v.  Listen,  37  Ind.  357; 


Chicago,  etc.,  R.  Co.  v.  West,  37  Ind. 
211;  City  F.  Ins.  Co.  v.  Carrugi,  41 
Ga.  660;  Rosenberg  v.  Claflin  Co.  (Ala., 
1892),  10  So.  Rep.  521;  Penter  z'.Staight, 
I  Wash.  365.  Compare  Charles  v. 
Malott,  51  Ind.  350;  Kernodle  v.  Cald- 
well, 46  Ind.  153. 

Florida. — It  cannot  be  alleged  for 
error  that  the  court  struck  out,  or  re- 
fused to  strike  out,  a  plea  alleging 
only  facts  which  might  have  been 
given  in  evidence  under  the  general 
issue.     Davis  v.  Shuler,  14  Fla.   438. 

2.  McDonald  v.  American  Mortgage 
Co.,  17  Oregon  626;  Hill  v.  Smith,  27 
Cal.  476;  Frisch  v.  Caler,  21  Cal.  71; 
Bassett  v.  Enwright,  19  Cal.  636;  Far- 
rior  V.  Houston.  95  N.  Car.  578;  Wood- 
ward V.  Sloan,  27  Ohio  St.  592;  Mc- 
Nutt  V.  Kaufman,  26  Ohio  St.  127; 
Singer  Mfg.  Co.  v.  Brill,  5  Cin.  L. 
Bull.  (Ohio)  523.  See  other  cases 
under  other  paragraphs  of  this  section. 

If  the  plaintiff  places  inconsistent 
allegations  in  the  same  count  of  his 
complaint,  it  is  sufficient  for  the  de- 
fendant to  deny  the  allegations  which 
he  wishes  to  controvert,  leaving  the 
others  unnoticed.  Perkins  v.  Brock, 
80  Cal.  320.  See  also  Durre  v.  Brown 
(Ind.  App.,  1893),  34  N.  E.  Rep.  577; 
Vanduyn  v.  Hepner,  45  Ind.  589;  Stod- 
dard V.  Johnson,  75  Ind.  20;  Nichol- 
son V.  Caress,  76  Ind.  24;  Mays  v. 
Hedges,  79  Ind.  288;  Webb  v.  Corbin, 
78  Ind.  403;  Clauser  v.  Jones,  100  Ind. 
123;  Kinney  v.  Dodge,  loi  Ind.  573; 
Sohn  V.  Jervis,  loi  Ind.  57S;  Leary  v. 
Moran,  106  Ind.  560. 

3.  Miller  v.  McCloskey,  i  Civ.  Pro. 
Rep.  (N.  Y.  Supreme  Ct.)  252;  Luce  v. 
Alexander,  4  Civ.  Pro.  Rep.  (N.  Y. 
Super.  Ct.)  428;  Callanan  v.  Gilman,  67 


802 


Oeneral  Denial     ANSWERS  IN  CODE  PLEADING,  with  Admissions. 


same  authorities  hold  that,  unless  amended,  such  a  form  of  denial 
is  nugatory,  and  admits  the  allegations  of  the  complaint.*  Other 
authorities  take  a  middle  ground  with  reference  to  such  form  of 
an  answer.  They  hold  that  if  an  answer  containing  a  denial  of 
the  allegations  of  the  complaint,  except  as  thereinafter  stated,  is 
thereby  rendered  indefinite,  uncertain,  or  complicated,  the  remedy 
is  by  motion  to  make  the  answer  more  definite,  and  not  the  exclu- 
sion of  evidence  upon  the  trial.*  But  probably  the  weight  of 
authority  is  in  favor  of  allowing  a  general  denial  of  all  allegations 
not  otherwise  admitted.  When  there  is  no  ambiguity  in  what  is 
stated,  admitted,  or  qualified,  and  when  the  allegations  of  the 
complaint  are  so  specific  that  there  can  be  no  mistake  in  ascer- 
taining what  is  put  in  issue  and  no  difificulty  in  punishing  the  de- 
fendant if  the  verification  is  false,  this  form  of  denial  is  sufficient.' 

J.,  in  Potter  v.  Frail,  67  How.  Pr.  (N. 
Y.  Supreme  Ct.)  446. 

The  point  of  objection  raised  in 
Clark  V.  Dillon,  97  N.  Y.  370,  was  that 
such  an  answer  throws  upon  the  op- 
posite party  the  necessity  of  first  de- 
termining the  legal  question  as  to  how 
far  the  facts  stated  may  properly  be 
said  to  qualify  or  explain  others,  be- 
fore the  pleader  can  know  what  facts 
are  admitted  or  denied  by  the  answer. 

A  defendant  need  not  deny  in  his 
answer  any  allegations  he  does  not  in- 
tend to  controvert;  they  are  admitted 
by  leaving  them  unnoticed.  Newell  v. 
Doty,  33  N.  Y.  83. 

1.  Miller  v.  McCloskey,  g  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  303;  McEn- 
croe  V.  Decker,  58  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  250;  Clark  v.  Dillon,  97  N. 
Y.  370;  Goodwin  v.  Hirsch,  37  N.  Y. 
Super.  Ct.  503.  See  also  preceding 
cases. 

And  the  granting  or  refusing  a  mo- 
tion to  amend  such  an  answer  is  wholly 
discretionary  with  the  trial  court. 
Rosenwald  v.  Hammerstein,  12  Daly 
(N.  Y.)377. 

Quare,  whether  a  defendant  can 
specifically  admit  a  part  of  an  entire  al- 
legation, and  put  other  parts  of  it  in 
issue  by  a  general  denial.  Fogerty  v. 
Jordan,  2  Robt.  (N.  Y.)  319. 

2.  Greenfield  v.  Massachusetts  Mut, 
L.  Ins.  Co.,  47  N.  Y.  437;  Gallatin 
Nat.  Bank  v.  Nashville,  etc.,  R.  Co. 
(Supreme  Ct.),  4  N.  Y.  St.  Rep.  714: 
Spies  V.  Roberts,  50  N.  Y.  Super.  Ct. 
301;  Hammond  v.  Earle,  5  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  105.  See 
Potter  V.  Frail,  67  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  445. 

3.  Rawlings  z/.  Alexander  (New  York 
City  Ct.),  28  N.  Y.  Supp.  748;  Smith  v. 


How.  Pr.  (N.  Y.  Super.  Ct.)  464;  Hoff- 
man V.  New  York,  etc.,  R.  Co.,  50  N. 
Y.  Super.  Ct.  403;  Potter  v.  Frail,  67 
How.  Pr.  (N.  Y.  Supreme  Ct.)  445; 
People  V.  Northern  R.  Co.,  53  Barb. 
{N.  Y.)  loi;  People  v.  Snyder,  41 
N.  Y.  400;  Chamberlin  v.  American 
Nat.,  etc.,  L.  Co.,  5  N.  Y.  Wkly.  Dig. 
128;  Hammond  v.  Earle,  5  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  105;  McEncroe  v. 
Decker,  58  How.  Pr.  (N.  Y.  Supreme 
Ct.)  250;  Bixby  v.  Drexel,  9  Rep.  (N.Y. 
C.  PI.)  630;  Clark  v.  Dillon,  4  Civ.  Pro. 
Rep.  (N.Y.  C.  PI.)  245;  Leary  v.  Boggs, 
3  Civ.  Pro.  Rep.  (N.  Y.  Supreme  Ct.) 
227;  Scott  V.  Royal  Exch.  Shipping  Co., 
5  N.  Y.  Month.  L.  Bull.  84;  Manner  v. 
Simpson,  13  Da]y(N.  Y.)  156;  Millville 
Mfg.  Co.  V.  Salter,  15  Abb.  N.  Cas.  (N. 
Y.)  305;  Thierry  v.  Crawford,  33  Hun 
{N.  Y.  Supreme  Ct.)  366;  Spiegel  v. 
Thompson,  i  How.  Pr.  N.  S.  (N.Y. 
City  Ct.)  129;  Rosenwald  v.  Hammer- 
stein, 12  Daly  (N.  Y.  City  Ct.)  377; 
People  V.  Nort'hern  R.  Co.,  42  N.  Y. 
217;  Fogerty  J/.  Jordan,  2  Robt.  (N.Y.) 
319;  Bussell  V.  Bussell,  N.  Y.  Daily 
Reg.,  Oct.  3,  1883;  Clark  v.  Dillon,  97 
N.  Y.  370;  Goodwin  v.  Hirsch,  37  N.  Y. 
Super.  Ct.  503. 

"  The  Code  seems  to  be  so  plain  in 
this  respect  as  not  to  require  elucida- 
tion. A  general  denial  is  proper  only 
when  the  whole  complaint,  or,  if  the 
complaint  contains  more  than  one 
cause  of  action,  when  one  of  the  counts 
or  causes  of  action,  can  be  wholly 
denied.  A  specific  denial  is  proper 
when  the  complaint,  or  one  of  the 
causes  of  action,  cannot  be  wholly 
denied,  in  which  case  such  portions 
of  the  complaint  may  be  denied  as  can 
be,  and  the  remainder  stand  admitted 
by  the  failure  to  deny."     Per  Follett, 


803 


General  Denial    ANSWERS  IN  CODE  PLEADING.  wmiMvdiiions. 

2.  Answer  Must  be  Definite  and  Specific  as  to  Admissions. — While 
the  weight  of  authority  is  in  favor  of  allowing  a  general  denial  to 
be  coupled  with  admissions  and  explanations,  still  such  a  form  of 
answer  must  be  clear  and  unequivocal  in  its  admissions.  The 
court  in  construing  it  will  resolve  all  doubts  against  it,  and  hold 
that  it  admits  allegations  unless  it  positively  indicates  a  purpose  to 
make  the  question  it  purports  to  put  in  issue  one  of  the  contested 
issues  on  the  trial. ^ 

The  Proper  Form- — Where  the  allegations  of  the  answer  are  clear 
and  unequivocal  as  to  the  admissions,  then  all  the  other  allega- 
tions of  the  complaint  are  put  in  issue  by  a  denial  of  "  each  and 
every  allegation  of  the  complaint  not  hereinabove  admitted  or 
controverted."* 


Gratz,  59  How.  Pr,  (N.  Y.  Marine  Ct.) 
274;  Griffin  v.  Long  Island  R.  Co.,  loi 
N.Y.  349;  Allisw.  Leonard,  46  N.Y.  688; 
(/enesee  Mut.  Ins.  Co.  v.  Moynihen,  5 
How.  Pr.  (N.  Y.  Supreme  Ct.)  321; 
i  laines  v.  Herrick,  9  Abb.  N.  Cas.  (N.Y. 
Supreme  Ct.)  380;  Parshall^/.  Tillon,  13 
How.  Pr.  (N.  Y.  Supreme  Ct.)  7;  People 
f.  Northern  R.  Co.,42  N.Y.  217;  Youngs 
v.  Kent,  46  N.  Y.  672;  Calhoun  v. 
Hallen,  25  Hun  (N.  Y.)  155;  Wheeler 
V.  Billings,  38  N.  Y.  263;  Fellows  v. 
Muller,  38  N.  Y.  Super.  Ct.  138;  Owens 
V.  Hudnut's  Pharmacy,  20  Civ.  Pro. 
Rep.  (N.  Y.  Supreme  Ct.)  145;  Ingle 
V.  Jones,  43  Iowa  286;  Kingsley  v. 
Oilman,  12  Minn.  515;  Reuscher  v. 
Hudson,  I  Clev.  Rep.  (Ohio)  218.  See 
cases  infra,  notes  i  and  2. 

This  form  of  answer,  while  not  to  be 
commended,  is  permissible,  and  serves 
to  put  in  issue  all  the  allegations  in 
the  complaint  not  embraced  in  the  ex- 
ception. Crane  v.  Crane,  43  Hun 
(N.Y.)  311. 

1.  Pennsylvania  Coal  Co.  v.  Blake, 
85  N.  Y.  226;  Malcolm  v.  Lyon  (C.  PI.), 
ig  N.  Y.  Supp.  210;  St.  Anthony  Falls 
Water  Power  Co.  v.  King  Bridge  Co., 
23  Minn.  186,  23  Am.  Rep.  682;  Leyde 
V.  Martin,  16  Minn.  38. 

Where  both  a  general  denial  and 
special  pleas  are  employed,  the  denials 
ought  to  be  so  framed  as  to  leave  no 
doubt  in  the  mind  of  the  court  and  the 
adverse  party  as  to  what  is  denied  and 
what  admitted.  Long  v.  Long,  79  Mo. 
644. 

Where  an  answer  denies  each  and 
every  allegation  of  the  petition  "  not 
hereinafter  expressly  admitted,"  and 
there  is  some  doubt  as  to  what  alle- 
gations ai-e  admitted,  the  trial  court 
may,  on  motion,  require  more  specific 


denials,       Hintrager    v.    Richter,    85 
Iowa  222. 

A  general  denial,  in  an  answer,  of 
all  allegations  not  expressly  admitted 
or  qualified,  is  inapplicable  to  a  subject 
as  to  which  specific  answer  is  made. 
Davenport  v.  Ladd,  38  Minn.  545. 

See  the  following  cases,  where  it  was 
held  that  the  admissions  contained  in 
the  answer  were  sufficiently  definite 
and  certain,  and  that  the  other  allega- 
tions of  the  complaint  were  in  issue. 
Claffy  V.  O'Brien  (C.  PI.),  10  N.  Y. 
Supp.  103;  Harland  v.  Howard  (Su- 
preme Ct.),  10  N.  Y.  Supp.  449;  Walsh 
V.  Mehrback,  5  Hun  (N.  Y.)  448;  Lips- 
comb V.  Lipscomb,  32  S.  Car.  243; 
Becker  v.  Sweetzer,  15  Minn.  427. 

Averment  of  Possession. — An  averment 
of  possession  is  admitted  by  an  an- 
swer which  simply  argues  against 
such  possession;  nor  does  the  general 
statement,  that  "all  allegations,  ex- 
cept as  before  admitted,  are  denied," 
render  such  an  ambiguous  denial  any 
the  less  an  admission.  Bredell  v.  Alex- 
ander, 8  Mo.  App.  no. 

2.  Griffin  v.  Long  Island  R.  Co.,  loi 
N.  Y.  354.  And  see  the  following  cases, 
where  the  form  was  almost  identical: 
Calhoun  v.  Hallen,  25  Hun  (N.  Y.)  155, 
Allis  V.  Leonard,  46  N.  Y.  688;  Fellows 
V.  Muller.  38  N.  Y.  Super.  Ct.  137; 
Tracey  v.  Baker,  38  Hun  (N.  Y. )  263  ; 
Spies  V.  Roberts,  50  N.  Y.  Super.  Ct. 
301;  Crane  v.  Crane,  43  Hun  (N.Y.)  309; 
Mingst  V.  Bleck,  38  Hun  (N.  Y.)  358; 
Gallatin  Nat.  Bank  v.  Nashville,  etc., 
R.  Co.  (Supreme  Ct.),  4  N.  Y.  St.  Rep. 
714;  Ingle  V.  Jones,  43  Iowa  286. 

The  form,  "except  as  hereinafter 
stated  or  admitted,"  was  held  by  the 
U.  S.  Supreme  Court  to  amount  in 
New  York  to  a  sufficient  general  denial 


804 


Denials  of  Legal  ANSWERS  IN  CODE  PLEADING.         Conclusions. 

VIII.  Denials  of  Legal  Conclusions — 1.  Generally. — A  denial  of 
a  legal  conclusion  stated  in  the  complaint  is  a  nullity.  When 
the  answer  denies  only  the  legal  conclusions,  judgment  on  the 
pleadings  may  be  allowed,  on  motion.* 

2.  Denial  of  Indebtedness. — The  denial  of  any  indebtedness, 
without  a  denial  of  any  of  the  facts  from  which  that  indebted- 
ness follows  as  a  conclusion  of  law,  raises  no  issue.  Such  a 
denial  has  no  legal  effect,  and  is  bad  on  motion  or  demurrer, 
and  judgment  may  be  rendered  for  the  plaintiff  on  the  pleadings, 
unless  the  answer  is  amended.* 


of  all  allegations  of  the  complaint  not 
admitted  to  authorize  evidence  to  be 
given  to  show  any  of  such  allegations 
to  be  untrue.  Burley  v.  German- 
American  Bank,  iii  U.  S.  216,  citing 
People  V.  Ryder,  12  N.  Y.  433;  Green- 
field V.  Massachusetts  Mut.  L.  Ins.  Co., 
47  N.  Y.  430;  Allis  V.  Leonard,  46  N.  Y. 
•688;  Wheeler  v.  Billings,  38  N.  Y.  263; 
Hier  v.  Grant,  47  N.  Y,  278;  Weaver  v. 
Harden,  49  N.  Y.  286.  See  also  Kings- 
ley  V.  Gilman,  12  Minn.  518;  Becker  v. 
Sweetzer,  15  Minn.  427;  Leyde  v. 
Martin,  16  Minn.  38. 

The  form  of  a  denial  of  "each  and 
every  allegation  in  the  complaint  not 
herein  specifically  admitted  or  denied  " 
was  approved  in  Owens  v.  Hudnut's 
Pharmacy  (Supreme  Ct.),  12  N.  Y. 
Supp.  700. 

1.  Simpson  v.  Prather,  5  Oregon  87; 
McMurray  v.  Gififord,  5  How.  Pr.  (N. 
Y.  Supreme  Ct.)  14;  Pierson  v.  Cooley, 
I  Code  Rep.  (N.  Y.igi;  Beers  v.  Squire, 
I  Code  Rep.  (N.  Y.)  84;  Mullen  v. 
Kearney,  2  Code  Rep.  (N.  Y.)  18  ; 
Fleury  v.  Roget,  5  Sandf.  (N.  Y.)  646; 
Excelsior  Bank  v.  Campbell,  4  Thomp. 
&  C.  (N.  Y.)  549;  Sappington  v.  Jeffries, 
15  Mo.  628;  Engler  v.  Bate,  19  Mo.  543; 
Nelson  v.  Murray,  23  Cal.  338;  Wells 
V.  McPike,  21  Cal.  215  ;  Frasier  v. 
Williams,  15  Minn.  288  ;  Downer  v. 
Read,  17  Minn.  493;  Wright  v.  Schmidt, 
47  Iowa  233;  State  v.  Bryant,  55  Iowa 
,451. 

A  denial  that  plaintiff,  a  lessor  seek- 
ing to  have  his  title  quieted  against 
the  lessee,  "lawfully  entered"  or  is 
in  "lawful  possession,"  or  that  de- 
fendant "  has  committed  any  breaches 
of  covenant  so  as  to  work  a  forfeit- 
ure," is  a  mere  denial  of  legal  conclu- 
sions, and  is  bad  on  demurrer.  Bald- 
win V.  Rees,  8  Record  (Ohio)  556. 

A  denial  that  the  contract  set  up  in 
the  petition  "is  or  should  be  in  any 
manner  binding  on  the  company"  is 


bad.  U.  S.  Rolling  Stock  Co.  v.  At- 
lantic, etc.,  R.  Co.,  34  Ohio  St.  467,  32 
Am.  Rep.  380.  Compare  Nash  v.  St. 
Paul,  II  Minn.  174;  Simmons  v.  Sisson, 
26  N.  Y.  265;  Dimon  v.  Dunn,  15  N. 
Y.  498;  Cottle  V.  Cole,  20  Iowa  481. 

In  an  action  to  enforce  a  lien,  a  de- 
niil  that  the  plaintiff  has  a  lien  is  a 
denial  of  a  conclusion  of  law.  Brad- 
bury V.  Cronise,  46  Cal.  287. 

An  answer  in  foreclosure  which  ad- 
mits the  making  of  the  mortgage  as 
security  for  a  debt,  admits  the  cause 
of  action;  a  denial  of  the  remaining 
allegations  is  aimed  at  a  mere  legal 
conclusion,  and  puts  nothing  in  issue. 
Kay  V.  Churchill,  10  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  83. 

A  positive  denial  of  usury  will  not 
prevail  against  admissions  of  facts 
which  show  usury.  Manice  v.  New 
York  Dry  Dock  Co.,  3  Edw.  Ch.  (N. 
Y.)  143;  Storer  v.  Coe,  2  Bosw.  (N.  Y.) 
662. 

A  denial  of  value  or  the  amount  of 
damages  is  a  denial  of  a  legal  con- 
clusion. Starr  v.  Cragin,  24  Hun  177; 
Huston  V.  Twin,  etc.  Turnpike  R.  Co., 
45  Cal.  550.  See  Baydston  v.  Giltner, 
3  Oregon  118. 

Right  to  Open  and  Close. — Where  the 
complaint  alleges  facts  not  essential 
for  the  plaintiff  to  aver  or  prove,  and 
the  same  are  denied  by  the  answer, 
this  does  not  deprive  a  defendant  who 
sets  up  an  affirmative  defense  of  the 
right  to  open  and  close  the  case. 
Murray  v.  New  York  L.  Ins.  Co.,  85 
N.  Y.  236. 

2.  California. — Curtis  v.  Richards,  9 
Cal.  33;  Wells  V.  McPike,  21  Cal.  215; 
Lightner  v.  Mengel,  35  Cal.  452;  Kin- 
ney V.  Osborne,  14  Cal.  112. 

Ohio. — Knox  v.  Lloyd,  18  Ohio  St. 
353;  Larimore  v.  Wells,  29  Ohio  St.  13. 

New  York.  —  Pierson  v.  Cooley,  i 
Code  Rep.  (N.  Y.)9i;  Fosdick  v.  Groff, 
22  How.  Pr.  (N.  Y.  Supreme  Ct.)  158  ; 


805 


Denials  of  Legal  ANSWERS  IN  CODE  PLEADING.         Conclusions. 


When  Defendant  May  Deny  Indebtedness. — But  when  in  his  complaint 
plaintiff  avers  indebtedness  as  a  substantive  fact,  instead  of  alleg- 
ing the  facts  out  of  which  the  indebtedness  grew,  defendant  may- 
treat  the  averment  as  an  alleged  fact,  and  so  deny  it  in  his 
answer.* 

3.  Fraud. — Fraud  is  a  legal  conclusion  from  the  facts  alleged  in 
the  complaint.  A  denial  of  fraud  is  the  denial  of  a  legal  conclu- 
sion, and  is  bad.* 


Edson  V.  Dillaye,  8  How.  Pr.  (N.  Y. 
Supreme  Ct.)  273;  Emery  v.  Baltz,  94 
N.  Y.  408;  Drake  v.  Cockroft,  4  E.  D. 
Smith  (N.  Y.)  34- 

Kentucky. — Haggard  v.  Hay,  13  B. 
Mon.  (Ky.)  175;  Clarke  v.  Finnell,  16 
B.  Mon.  (Ky.)  329;  Francis  v.  Francis, 
18  B.  Mon.  (Ky.)  57- 

Colorado. — Gale  v.  James,  11  Colo. 
540;  Watson  V.  Lemen,  9  Colo.  200. 

Iowa. — Stucksleger  v.  Smith,  27  Iowa 
286;  Callanan  v.  Williams,  71  Iowa  363; 
Mann  v.  Howe,  9  Iowa  546;  Morton  v. 
CofBn,  29  Iowa  235;  Bridge  v.  Living- 
ston, II  Iowa  57;  Mcintosh  v.  Lee,  57 
Iowa  356;  Sheldon  v.  Middleton,  10 
Iowa  17. 

Arkansas. — Lawrence  v.  Meyer,  35 
Ark.  104 ;  Gwynn  v.  McCauley,  32 
Ark.  97  ;  Fain  v.  Goodwin,  35  Ark. 
109;  Moore  v.  Nichols,  39  Ark.  145. 

Idaho. — Swanholmz/.  Reeser,  2  Idaho 
I167. 

Montana. — Higgins  v.  Germaine,  i 
Mont.  230. 

Nevada. — Skinker   v.  Clute,  9    Nev. 

342. 

United  States. — BuUer  v.  Sidell,  43 
Fed.  Rep.  116.  See  Mills  v.  Durvee, 
7  Cranch  (U.  S.)  481. 

Nil  Debet.  —  An  answer  which  is 
merely  a  formal  plea  of  nil  debet,  or 
nothing  more  than  that  the  defendant 
does  not  owe  the  debt,  is  but  a  con- 
clusion of  law,  and  is  a  nullity.  Law- 
rence V.  Meyer,  35  Ark.  104;  Gwynn  t. 
McCauley,  32  Ark.  97;  Fain  v.  Good- 
win, 35  Ark.  109;  Moore  v.  Nichols, 
39  Ark.  145.  A  plea  of  ttil  debet  is  an 
insufficient  answer  to  an  action  on  a 
judgment.  Indianapolis,  etc.,  R.  Co. 
V.  Risley,  50  Ind.  60. 

Befusal  to  Deliver  Goods. — In  an  ac- 
tion for  breach  of  contract  an  aver- 
ment that  defendant  "  refused  "  to 
deliver  certain  goods,  as  required  by 
the  contract,  is  material,  and  is  not 
denied  by  allegations  of  the  answer 
that  nothing  is  due  plaintiff  as  dam- 
ages, and  that  defendant  is  and  always 
has  been  "  ready  and  willing"  to  de- 
liver the    goods.      Hand   v.    Belcher 


Mosaic  Glass  Co.  (City  Ct.),  9  N.'Y. 
Supp.  738. 

Ohio.  —  A  denial  of  indebtedness 
simply,  while  bad,  does  not  warrant  a 
judgment  for  plaintiff  on  the  plead- 
ings.   Lewis  V.  Smith,  2  Disney  (Ohio), 

434- 

1.  McLaughlin  v.  Wheeler,  i  S.  Dak. 
497;  Anonymous,  2  Code  Rep.  (N.  Y.) 
67;  Westlake  v.  Moore.  19  Mo.  556; 
Godfrey?'.  Cruise,  i  Iowa  92;  Higgins 
V.  Wortell,  18  Cal.  331,  where  the 
complaint  alleged  indebtedness,  and 
the  answer  was  held  bad  as  being 
a  negative  pregnant,  but  the  court 
intimated  that  a  different  form  of  de- 
nial of  indebtedness  would  have  been 
good;  Heath  v.  White,  3  Utah  474. 
But  see  Dickert  v.  Weise,  2  Utah  350. 
"When  the  plaintiff  will  persist  in 
averring  that  the  defendant  is  indebted 
to  the  plaintiff,  instead  of  setting  forth 
the  contract  upon  which  the  indebted- 
ness arises,  he  should  not  complain  if 
the  defendant  takes  issue  upon  such 
indebtedness."  Per  Ingraham,  J.,  in 
Morrow  v.  Cougan,  3  Abb.  Pr.  (N.  Y. 
C.  PI.)  329.  See  also  Quin  v.  Lloyd, 
41  N.  Y.  349. 

Sales. — In  an  action  for  the  price  of 
goods  sold  and  delivered,  an  answer 
denying  the  indebtedness  is  the  proper 
answer  when  the  goods  were  paid  for 
on  delivery,  for  no  indebtedness  grew 
out  of  the  transaction.  Flowers  v. 
Slater,  2  W.  L.  M.  (Ohio)  445. 

Ohio. — In  pleading  an  account  by 
copy,  as  allowed  under  §  122  of  the 
Ohio  Code  of  Civil  Procedure,  the 
allegation,  in  the  petition,  of  the 
amount  due  on  the  account  is  a  mate- 
rial allegation,  and  must  be  denied  in 
the  answer.  Dallas  v.  Ferneau,  25 
Ohio  St.  635.  Compare  Prindle  v. 
Caruthers,  15  N.  Y.  425,  where  it  was 
held  that  if  a  copy  of  the  instrument  is 
attached  to  the  pleading  and  the  gen- 
eral allegation  of  indebtedness  is  made, 
the  defendant,  by  ai  general  denial  of 
indebtedness,  puts  in  issue  every  fact 
alleged. 

2.  Scott  V.  Umbarger,  41  Cal.  411. 


806 


Denials  of  Legal  ANSWERS  IN  CODE  PLEADING.         Conclusions. 


4.  Denial  that  aa  Act  "Was  "Duly"  Done. — The  word  "duly," 
when  used  in  a  complaint,  is  generally  a  conclusion  of  law.  Deny- 
ing that  an  act  was  "  duly"  done  raises  no  issue.^ 

5.  Denial  of  Capacity. — A  mere  denial  that  the  plaintiff  has  the 
capacity  to  sue,  or  that  he  is  the  owner  of  the  property  sought, 
or  that  the  chose  in  action  belongs  to  him,  is  the  denial  of  a  legal 
conclusion.* 

6.  Answer  Containing  a  Legal  Conclusion. — Sometimes,  instead  of 
denying  a  legal  conclusion  of  the  complaint,  the  pleader  states  in 
an  affirmative  form  a  legal  conclusion  in  the  answer,  intending 
thereby  to  deny  the  legal  effect  of  some  matter  stated  in  the 
complaint.  Such  a  form  of  denial  is  equally  faulty  with  that 
which  denies  a  legal  conclusion,  and  it  raises  no  issue  of  fact.^ 


A  positive  denial  of  fraud  in  the 
answer  will  not  prevail  against  admis- 
sions therein  of  facts  which  show  that 
the  transaction  was  fraudulent.  Rob- 
inson V.  Stewart,  lo  N.  Y.  189;  Litch- 
field V.  Pelton,  6  Barb.  (N.  Y.)  187. 

Aider. — Though  the  statement  of 
facts  in  the  complaint  does  not  consti- 
tute a  sufficient  allegation  of  fraud, 
yet,  if  the  defendant  in  his  answer  de- 
nies only  the  legal  conclusion  of  fraud, 
the  doctrine  of  aider  applies  to  make 
the  complaint  sufficient.  Bonds  v. 
Smith,  106  N.  Car.  553. 

1.  State  V.  McGarry,  21  Wis.  496. 
To  deny  that  a  corporation  is  "  duly  " 
organized  does  not  raise  an  issue  of 
fact.  Oregon  Cent.  R.  Co.  v.  Scoggin, 
3  Oregon  162. 

Proceedings  which  are  void  by  rea- 
son of  the  infirmity  of  the  statute 
under  which  they  were  taken  are  not 
cured  by  an  averment  in  a  complaint 
that  they  were  duly  and  legally  had; 
and  a  failure  to  deny  the  averment  in 
the  answer  is  not  an  admission  that 
the  proceedings  were  valid  or  legal. 
People  V.  Hastings,  29  Cal.  450.  See 
Horner  v.  Rowley,  51  Iowa  626. 

But  where  a  complaint  alleged  gen- 
erally that  a  demand  for  rent  was  duly 
made  on  the  premises,  an  answer  deny- 
ing that  the  rent  was  duly  demanded 
was  held  sufficient.  McGlynnz/.  Moore, 
25  Cal.  384. 

Judgments.  —  Denying  that  a  judg- 
ment was  "duly"  rendered  is  bad;  if 
the  defendant  wants  to  controvert  the 
fact  that  he  is  bound  thereby,  and  to 
set  up  the  defense  that  there  was  no 
jurisdiction  in  the  court  to  render  the 
judgment  sued  on,  he  must  set  out  the 
facts.  Ritchie  v.  Carpenter,  2  Wash. 
513;  People  V.  San  Francisco,  27  Cal. 
ass- 


Waiver  of  Objection. — Though  an  an- 
swer which  denies  that  an  act  was 
"  legally  and  duly"  done  is  subject  to 
motion  on  account  of  indefiniteness, 
yet  if  the  parties  proceed  to  trial  the 
objection  is  waived.  Trustees  v.  Od- 
lin,  8  Ohio  St.  293. 

2.  In  an  action  by  husband  and  wife, 
on  a  note,  an  answer  that  the  note  is 
not  her  separate  property  is  the  state- 
ment of  a  mere  conclusion  of  law. 
Frost  V.  Harford,  40  Cal.  165. 

A  defense  that  the  plaintiff  is  not 
the  lawful  owner  of  the  note,  when 
upon  its  face  it  runs  to  him,  is  frivo- 
lous. Felch  V.  Beaudry,  40  Cal.  440; 
Seeley  v.  Engell,  17  Barb.  (N.  Y.)  530. 
Compare  Hunter  v.  Martin,  57  Cal. 
365;  Walrod  v.  Bennett,  6  Barb.  (N.  Y.) 
144. 

3.  Conkling  v.  Manhattan  R.  Co. 
(Supreme  Ct.),  12  N.  Y.  Supp.  846 
Manufacturers'  Nat.  Bank  v.  Russell 
6  Hun  (N.  Y.)  375;  Christy  v.  Dana 
42  Cal.  175;  Yates  v.  Burch,  87  N.  Y 
409;  Cropsey  v.  Perry,  23  N.  Y.  Wkly 
Dig.  162;  Louis  V.  Brown,  7  Oregon 
326;  Kentucky  River  Nav.  Co.  v. 
Com.,  13  Bush  (Ky.)  435. 

An  answer  alleging  that  the  note 
sued  on  "  is  non  est  factum  as  to  de- 
fendant, it  not  being  a  legal  promis- 
sory note  against  defendant  in  this 
action,"  and  that,  owing  to  sickness, 
the  defendant  "was  in  no  condition 
to  execute  a  legal  promissory  note," 
avers  only  legal  conclusions,  and  is 
insufficient  as  a  plea  of  non  est  factum. 
Templeton  v.  Sharp  (Ky.,  1888),  9  S. 
W.  Rep.  507. 

Where  a  petition  alleges  that  a  rail- 
road company,  by  virtue  of  a  certain 
contract  regarding  a  portion  of  its 
right  of  way,  abandoned  the  same, 
and  that  its  easement  thereupon  ter- 


807 


Denials  of 


ANSWERS  IN  CODE  PLEADING. 


Knowledge. 


7.  Denial  of  the  Facts  Impliedly  Denies  the  Conclusion  of  Law. — 

While  the  denial  of  a  legal  conclusion  does  not  deny  the  facts 
from  which  that  conclusion  is  deduced,  the  converse  is  not  true. 
The  denial  of  the  facts  is  an  implied  denial  of  the  legal  conclu- 
sion, and  such  implied  denial  is  sufificient  without  any  express 
denial.* 

IX.  Denials  of  Knowledge— 1.  How  Such  Denials  Construed.— 
All  the  Codes  provide  for  a  general  or  specific  denial  of  each 
material  allegation  of  the  complaint  controverted  by  the  defend- 
ant, or  of  any  knowledge  or  information  thereof  sufficient  to  form  a 
be  lief ^^ 

If  the  answer  denies  knowledge  or  information  of  material  facts 
set  out  in  the  complaint,  it  will  be  construed  like  any  other 
denial;  if  it  denies  knowledge  of  all  the  material  facts,  it  consti- 
tutes a  general  denial ;  if  of  only  a  part  of  the  material  facts,  it 
will  be  construed  as  a  specific  denial.  And  the  rules  which  apply 
to  ordinary  denials  are,  so  far  as  they  are  applicable,  applied  to 
this  form  of  denial.* 


minated,  the  denial  in  the  answer 
that  the  company  abandoned  or  in- 
tended to  abandon  its  right  of  way,  or 
that  its  easement  ceased,  raises  no 
issue  of  fact,  but  merely  states  a  con- 
clusion of  law.  Pennsylvania  Co.  v. 
Piatt,  47  Ohio  St.  366. 

1.  Prost  V.  More,  40  Cal.  347.  And 
see  supra,  section  IV.  Allegations 
Admitted  by  a  Failure  to  Deny. 

2.  See  N.  Y.  Code  Civ.  Pro.  §  500.  ' 
New  York. — But  a  denial  of  suffi- 
cient knowledge  to  form  a  belief  as  to 
allegations  contained  in  a  complaint  is 
not  authorized  in  the  District  Court  of 
New  York  City.  Steinam  v.  Bell 
(C.  PI.),  27  N.  Y.  Supp.  905. 

3.  Schulenberg  v.  Prairie  Institute, 
65  Mo.  295;  Griffin  v.  Long  Island  R. 
Co.,  loi  N.  Y.  348,  where  the  answer, 
although  admitting  some  of  the  facts, 
was  held  a  general  denial;  Wadleigh 
V.  Marathon  County  Bank,  58  Wis. 
546;  Carr  v.  Bosworth,  68  Iowa  669; 
Seattle  Bank  v.  Meerwaldt,  8  Wash. 
630;  Stevenson  v.  Flournoy,  89  Ky. 
570,  where  a  denial  of  knowledge  or 
information  was  taken  on  an  imma- 
terial matter.  Where  a  defendant 
denies  knowledge  as  to  the  cause  of 
action,  he  may  also  allege  that,  if  it 
ever  existed,  it  has  been  satisfied. 
Dovan  v.  Dinsmore,  33  Barb.  (N.  Y.) 
86. 

Negative  Pregnant. — A  denial  in  an 
answer  of  knowledge  or  information 
sufficient  to  form  a  belief  "as  to  each 
and   every   allegation"    in    tl.e   com- 


plaint not  specifically  denied  is  bad, 
as  containing  a  negative  pregnant. 
Waters  v.  Curtis,  13  Daly  (N.  Y.)  179. 
See  Seattle  Nat.  Bank  v.  Meerwaldt, 
8  Wash.  630. 

Denial  of  Plaintiff's  Capacity. — Where 
it  is  provided  that  an  "affirmative 
allegation,"  that  plaintiff  is  not  a  cor- 
poration or  has  not  capacity  to  sue, 
must  be  made  to  put  such  fact  in  issue, 
the  denial  of  any  knowledge  or  infor- 
mation sufficient  to  form  a  belief  that 
plaintiff  is  a  corporation,  or  has  capa- 
city to  sue,  creates  no  issue.  A  denial 
of  knowledge  or  information  does  not 
amount  to  a  specific  allegation  that 
the  corporation  does  not  exist,  any 
more  than  does  an  ordinary  denial. 
Concordia  Sav.,  etc.,  Assoc,  v.  Read, 
93  N.  Y.  474;  Cooper  v.  Wandel  (Su- 
preme Ct.),  9  N.  Y.  St.  Rep.  9;  City 
Bank  v.  Drake,  5  N.  Y.  Wkly.  Dig. 
477;  First  Nat.  Bank  v.  Clarke,  22 
N.  Y.  Wkly.  Dig.  569;  Bengtson  v. 
Thingvalla  Steamship  Co.,  3  Civ.  Pro. 
Rep.  (N.  Y.  Supreme  Ct.)  204;  Land, 
etc.,  Co.  V.  Williams,  35  S.  Car.  367. 
Such  an  answer  was  held  frivolous  in 
John  Dixon  Crucible  Co.  v.  New  York 
City  Steel  Works,  9  Abb.  Pr.  N.  S. 
(N.  Y.  Supreme  Ct.)  195. 

Contra. — The  defendant  may  deny 
knowledge  and  information  as  to 
whether  the  plaintiff  is  a  corporation  or 
not,  as  alleged  in  its  complaint.  Jack- 
son Sharp  Qo' V.  Holland,  14  Fla.  384. 

Georgia. — It  would  seem  that  in 
Georgia  this  form  of  a  denial  shifts  the 


808 


Denials  of 


ANSWERS  IN  CODE  PLEADING. 


Knowledge. 


2.  Form. — The  courts  construe  this  form  of  denial  rather  tech- 
nically. The  words  of  the  statute  must  be  followed,  at  least  in 
substance,  and  the  denial  must  embrace  both  "  knowledge  "  and 
**  information."*  The  best  way  to  draft  the  answer  is  to  follow 
the  exact  words  of  the  statute ;  but  a  slight  deviation  therefrom 
will  not  vitiate.* 


burden  of  proof.  It  is  there  held  that 
a  plea  of  non  est  factum,  or  of  nonpart- 
nership,  sworn  to  by  the  defendant 
"to  the  best  of  his  knowledge  and 
belief,"  does  not  cast  the  onus  upon 
the  plaintiff,  but  only  entitles  the  de- 
fendant to  go  to  the  jury  and  estab- 
lish his  defense.  Martin  v.  Lamb,  77 
Ga.  252. 

1.  James  v.  McPhee,  9  Colo.  486; 
Haney  v.  People,  12  Colo.  345;  Hast- 
ings V.  Gwynn,  12  Wis.  672;  Cutler  v. 
McCormick,  48  Iowa  406;  Manny  v. 
French,  23  Iowa  250;  Clafiin  v.  Reese, 
54  Iowa  544;  Durden  v.  Simmons,  84 
N.  Car.  555;  Farmer's,  etc.,  Bank  v. 
Charlotte,  75  N.  Car.  45;  Hantemann  v. 
Gray,  5  Civ.  Pro.  Rep.  (N.  Y.  CityCt.) 
224,  note;  Lloyd  v.  Burns,  38  N,  Y. 
Super.  Ct.  423;  First  Nat.  Bank  v. 
Clarke,  22  N.  Y.  Wkly.  Dig.  569;  Ed- 
wards V.  Lent,  8  How.  Pr.  (N.  Y. 
Supreme  Ct.)  28;  Heye  v.  Bolles,  33 
How.  Pr.  (N.  Y.  C.  PI.)  266;  People 
V.  McCumber,  15  How.  Pr.  (N.  Y. 
Supreme  Ct.)  186;  Ketcham  z/.  Zerega, 
I  E.  D.  Smith  (N.  Y.)  553.  And  for  a 
lack  in  this  respect  the  answer  raises 
no  issue,  and  the  allegations  of  the 
•complaint  are  admitted.  Fagg  v. 
Southern  Bldg.  Assoc,  113  N.  Car. 
364.     See  cases  supra. 

A  denial  of  knowledge  sufficient  to 
form  a  belief  is  not  equivalent  to  a 
denial  "  of  any  knowledge  or  informa- 
tion thereof  sufficient  to  form  a  be- 
lief," and  does  not  form  an  issue. 
First  Nat.  Bank  v.  Clarke,  22  N.  Y. 
Wkly.  Dig.  569;  Edwards  v.  Lent,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)  28; 
Heye  v.  Bolles,  33  How.  Pr.  (N.  Y.  C. 
PI.)  266;  People  V.  McCumber,  15 
How.  Pr.  (N.  Y.  Supreme  Ct.)  186; 
Ketcham  v.  Zerega,  i  E.  D.  Smith 
(N.  Y.)  553;  Hantemann  v.  Gray,  5  Civ. 
Pro.  Rep.  (N.  Y.  City  Ct.)  224,  note; 
Lloyd  V.   Burns,  38  N.  Y.  Super.  Ct. 

423- 

But  the  following  cases  would  seem 
to  hold  that  a  denial  of  knowledge 
alone  is  sufficient:  Genesee  Mut.  Ins. 
Co.  V.  Moynihen,  5  How.  Pr.  (N.  Y. 
Supreme  Ct.)  321;  Snyder  v.  White,  6 
How.    Pr.    (N.   Y.   Supreme   Ct.)  321; 


Flood  V.  Reynolds,  13  How.  Pr. 
(N.  Y.  Supreme  Ct.)  112;  Livingston 
V.  Hammer,  7  Bosw.  (N.  Y.)  670; 
Richter  v.  McMurray,  15  Abb.  Pr. 
(N.  Y.  C.  PI.)  346;  Temple  v.  Mur- 
ray, 6  How.  Pr.  (N.  Y.  Supreme  Ct.) 
329- 

2.  Cumins  v.  Lawrence  County,  i  S. 
Dak.  158;  Robbins  z'.  Baker,  2  Oregon 
52;  Sherman  v.  Osborn,  8  Oregon  67; 
Colburn  v.  Barrett,  21  Oregon  27; 
Wilson  V.  Allen,  11  Oregon  154;  Ninde 
V.  Oskaloosa,  55  Iowa  207;  Livingston 
V.  Hammer,  7  Bosw.  (N.  Y.)  670; 
Richter  v.  McMurray,  15  Abb.  Pr. 
(N.  Y.  C.  PI.)  346;  Snyder  v.  White,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  321; 
Johnson  v.  Haberstro  (Supreme  Ct.), 
7  N.  Y.  St.  Rep.  225;  McGuinness  v. 
New  York,  13  N.  Y.  Wkly.  Dig.  522. 

Forms  Held  Good. — An  answer  aver- 
ring that  the  defendant  has  "no 
knowledge  or  information  sufficient  to 
form  a  belief  as  to  the  truth  of  any  of 
the  allegations  in  said  complaint  con- 
tained" is  good.  Grocers'  Bank  v. 
O'Rorke,  6  Hun  (N.  Y.)  18. 

Where  defendants  in  their  answer 
"  say  that  they  have  no  knowledge  or 
information  sufficient  to  form  a  belief," 
etc.,  and  "aver  the  truth  to  be  that 
they  are  entirely  ignorant  and  unin- 
formed, and  have  not  any  knowledge 
or  information  sufficient  to  form  a  be- 
lief," etc.,  this  is  sufficient  in  form. 
Meehan  v.  Harlem  Sav.  Bank,  5  Hun 
(N.  Y.)  439.  And  see  Flood  v.  Reyn- 
olds, 13  How.  Pr.  (N.  Y.  Supreme  Ct.) 
112,  for  an  approved  form. 

Forms  Held  Bad. — In  the  following 
cases  the  form  of  answer  was  held  bad 
as  not  meeting  the  requirements  of  the 
statute  :  Savre  v.  Gushing,  7  Abb.  Pr. 
(N.  Y.  C.  Pf.)  371;  Elton  V.  Markham, 
20  Barb.  (N.  Y.)  343;  Nichols  v.  Jones, 
6  How.  Pr.  (N.  Y.  Supreme  Ct.)  355; 
Bidwell  V.  Overton,  26Abb.  N.  Cas.  (N. 
Y.  C.  PI.)  402;  Collins  V.  North  Side 
Pub.  Co.  (City  Ct.),  20  N.  Y.  Supp. 
892;  Baylis  v.  Stimson,  no  N.  Y.  621; 
Sheldon  v.  Sabin,  12  Daly  (N.  Y.)  84; 
Waters  v.  Curtis,  13  Daly  (N.  Y.)  179; 
Wood  V.  Staniels,  3  Code  Rep.  (N.  Y.) 
152;    Lay  Gas  Mach.    Co.   v.  Falls  of 


809 


Denials  of 


ANSWERS  IN  CODE  PLEADING. 


Knowledge, 


3.  Denials  "  upon  Information  and  Belief." — The  courts  have,  by 
a  construction  of  the  provision  allowing  a  denial  of  knowledge  or 
information,  reached  the  conclusion  that  a  denial  "upon  informa- 
tion and  belief"  is  also  allowed  by  such  provision.  A  defendant 
may  deny,  upon  information  and  belief,  allegations  of  the  com- 
plaint when  he  has  no  personal  knowledge  as  to  the  facts  alleged, 
but  has  information  sufficient  to  induce  him  to  believe  that  the 
allegations  are  not  true.* 

528;  Maclay  v.  Sands,  94  U.  S.  586; 
Jones  V.  Petaluma,  36  Cal.  230. 

"  It  is  quite  clear,  from  these  pro- 
visions, that  a  party  has  no  right  to 
interpose  an  unqualified  denial  in  a 
verified  answer  unless  it  be  founded 
upon  personal  knowledge;  and  that, 
where  he  has  no  positive  knowledge, 
but  has  knowledge  or  information  suf- 
ficient to  form  a  belief,  he  is  not  only 
permitted,  but  bound,  at  his  peril,  to 
deny  upon  information  and  belief." 
Per  Barrett,  J.,  in  Brotherton  v. 
Downey,  21  Hun  (N.  Y.)  436. 

"  Except  in  those  special  cases  in 
which  the  defendant  is  conclusively 
presumed  to  have  positive  knowledge 
as  to  the  existence  or  non-existence 
of  a  fact  alleged  in  the  complaint,  we 
have  no  doubt  that -the  defendant  may 
interpose  a  denial  in  this  form.  He 
majj  have  information  which  satisfies 
him  how  the  fact  is,  and  yet  he  may 
not  have  any  actual,  positive  knowl- 
edge thereof.  In  such  case  he  can 
deny  in  no  other  form.  He  cannot 
deny  positively,  because  he  does  not 
know  positively  that  such  a  denial 
would  be  true.  He  cannot  deny  knowl- 
edge or  information  sufficient  to  form 
a  belief,  because  he  has  formed  a  be- 
lief on  sufficient  information.  The 
only  mode  in  which  he  can  answer 
truly  is  to  deny  upon  information 
and  belief."  Per  Lyon,  J.,  in  Stacy 
V.  Bennett,  59  Wis.  235. 

A  denial  upon  "  information  and 
belief  "  is  peculiarly  proper  when  de- 
fendant is  ignorant  of  the  facts  al- 
leged, and  must  verify  his  answer. 
He  cannot  safely  deny,  nor  is  he 
bound  to  admit.  Snyder  v.  White,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  321; 
Lidgerwood  Mfg.  Co.  v.  Baird,  6  Civ. 
Pro,  Rep.  (N.  Y.  Super.  Ct.)  54;  Tay- 
lor V.  Smith  (Supreme  Ct.),  8  N.  Y. 
Supp.  519;  Holmes  v.  Continental  Co., 
N.  Y.  Daily  Reg.,  Nov.  11,  1884;  Kit- 
chen V.  Wilson,  80  N.  Car.  192;  Ley- 
ner  v.  Fuller,  67  Iowa  188. 

The  answer  to  a  petition  to  the  Su- 


Neuse  Mfg.  Co.,  91  N.  Car.  74;  Ord 
V.  Steamer  Uncle  Sam,  13  Cal.  370; 
Humphreys  v.  McCall,  9  Cal.  59,  70 
Am.  Dec.  621;  Watson  v.  Hawkins,  60 
Mo.  550. 

Denial  of  the  Allegation  not  Neces- 
sary.— A  defendant,  after  having  al- 
leged that  he  has  no  knowledge  or  in- 
formation sufficient  to  form  a  belief  as 
to  the  truth  of  the  allegations  of  the 
complaint,  is  not  required  to  add  a 
statement  that  he  therefore  denies  the 
same,  as  the  denial  in  the  words  of 
the  Code  forms  a  complete  issue,  and 
such  an  issue  is  not  aided  by  such  ad- 
ditional averment.  Cumins  v.  Law- 
rence County,  I  S.  Dak.  158;  Flood  v. 
Reynolds,  13  How.  Pr.  (N.  Y.  Supreme 
Ct.)  112. 

Denial  of  Knowledge  Coupled  with  Ad- 
missions.— An  answer,  by  which  "de- 
fendant denies  any  knowledge  or  in- 
formation sufficient  to  form  a  belief  as 
to  every  allegation  in  the  complaint 
not  hereinbefore  admitted,"  will  be 
held  to  put  in  issue  the  facts  alleged 
in  the  complaint  and  not  specifically 
admitted  by  the  answer,  where  the 
denials  are  so  specific  as  to  clearly 
point  out  the  allegations  of  the  com- 
plaint to  which  they  are  intended  to 
apply.  Tracy  z'.  Baker,  38  Hun  (N.  Y.) 
263. 

And  see  McGuinness  v.  New  York, 
13  N.  Y.  Wkly.  Dig.  522.  for  a  suffi- 
cient form  of  a  denial  of  knowledge  of 
some  of  the  allegations  of  the  com- 
plaint, and  an  admission  of  others. 

1.  Sheldon  v.  Heaton,  78  Hun  (N. 
Y.)  50;  Wood  V.  Raydure,  39  Hun 
(N.  Y.)  144;  Humble  v.  McDonough 
(Buffalo  Super.  Ct.),  25  N.  Y.  Supp, 
965;  Sackett  v.  Havens,  7  Abb.  Pr. 
(N,  Y.  Supreme  Ct.)  371,  note;  Hen- 
derson V.  Manning,  5  Civ,  Pro.  Rep, 
(N.  Y,  City  Ct.)  221;  Macauleyz/.  Brom- 
ell  Printing  Co.,  5  Civ,  Pro,  Rep, 
(N.  Y.  City  Ct.)  431;  Bennett  v.  Leeds 
Mfg.  Co,,  iio  N,  Y,  151;  Brotherton 
V.  Downey,  21  Hun  (N,  Y.)  436  ;  Mus- 
grove  V.  New  York,  51  N,  Y,  Super,  Ct, 

81 


Denials  of  ANSWERS  IN  CODE  PLEADING.         Knowledge. 

4.  When  a  Denial  of  Knowledge  or  Information  Cannot  be  Inter- 
posed.— Although  the  denial  of  knowledge  or  information  is  an 
authorized  form  of  denial,  it  is  by  no  means  absolute  or  universal. 
The  true  distinction  to  be  observed  in  determining  when  a  de- 
fendant may  avail  himself  of  the  privilege  accorded  to  him  of 
answering  in  the  qualified  form  allowed  by  the  Code,  and  when 
he  must  positively  admit  or  deny  the  allegations,  is  to  inquire 
whether  the  facts  alleged  are  presumptively  within  the  defend- 
ant's knowledge.  If  they  are,  he  cannot  avail  himself  of  this 
form  of  denial.* 


preme  Court  for  a  writ  of  mandate 
may  deny  the  allegations  of  the  peti- 
tion upon  information  and  belief. 
People  V.  Alameda  County,  45  Cal. 
395.  See  Walker  v.  Buffandeau,  63 
Cal.  312. 

A  denial  upon  information  and  be- 
lief may  be  interposed  when  it  appears 
that  the  facts  in  controversy  are  not 
within  the  personal  knowledge  of  the 
defendant,  and  that  the  information 
on  which  he  bases  his  belief  comes 
from  agents  employed  to  transact  the 
business  out  of  which  the  litigation 
arose.     Maclay  v.  Sands,  94  U.  S.  586. 

The  Proper  Form. — The  answer  must 
expressly  state  that  the  defendant 
denies  according  to  both  his  informa- 
tion and  his  belief.  This  must  be 
expressed  in  the  answer,  not  in  the 
verification.  Humphreys  v.  McCall,  9 
Cal.  59,  70  Am.  Dec.  621  ;  Stent  v. 
Continental  Nat.  Bank,  5  Abb.  N. 
Cas.  (N.Y.  Supreme  Ct.)  88.  And  see 
Metraz  v.  Pearsall,  5  Abb.  N.  Cas.  (N. 
Y.  Supreme  Ct.)  90,  and  Davis  v.  Pot- 
ter, 4  How.  Pr.  (N.  Y.  Supreme  Ct.) 
155,  where  the  forms  of  answer  were 
approved. 

Contra. — A  denial  in  an  answer 
"upon  information  and  belief"  is  not 
authorized  by  the  Code,  and  is  insuffi- 
cient. Swinburne  f.  Stockwell,  58  How. 
Pr.(N.  Y.  SupremeCt.)3i2;  Pratt  Mfg. 
Co.  V.  Jordan  Iron,  etc.,  Co.,  33  Hun(N. 
Y.)  143;  Edwards  v.  Lent,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  28;  Bidwell  v. 
Overton,  26  Abb.  Pr.  N.  Cas.  (N.  Y. 
C.  PI.)  402;  Powers  v.  Rome,  etc.,  R. 
Co.,  3  Hun  (N.  Y.)  285;  Therasson  v. 
McSpedon,  2  Hilt.  (N.  Y.)  i;  Pfandler 
Process  Fermentation  Co.  v.  McPher- 
son  (Supreme  Ct.),  20  N.  Y.  St.  Rep. 
473;  Schroeder  v.  Wanzor,  2  How.  Pr. 
N.  S.  (N.  Y.  Supreme  Ct.)  13;  Nelson 
V.  Murray,  23  Cal.  338.  The  above 
authorities  hold  this  view  because, 
though   a   party  does  have  some  in- 


formation touching  the  allegations  of 
the  complaint,  still,  if  there  is  a  want 
of  belief  on  his  part,  he  is  justified  in 
denying  the  allegations  on  the  ground 
that  he  has  no  information  or  knowl- 
edge sufficient  to  form  a  belief.  See 
Sackett  v.  Havens,  7  Abb.  Pr.  (N.  Y.) 
371,  note;  State  v.  Hancock  County, 
II  Ohio  St.  183;  McKenzie  v.  Wash- 
ington L.  Ins.  Co.,  2  Disney  (Ohio) 
223.  Compare  the  following  cases  : 
First  Nat.  Bank  v.  Clark,  22  N.  Y. 
Wkly.  Dig.  569;  Sheldon  v.  Sabin  (C. 
PL),  4  Civ.  Pro.  Rep.  (N.  Y.)4;  Hante- 
mann  v.  Gray  (City  Ct.),  5  Civ.  Pro. 
Rep.  (N.  Y.)  224,  note;  Henderson  v. 
Manning,  5  Civ.  Pro.  Rep.  (N.  Y. 
CitvCt.)  221;  Judd  V.  Cushing,  22  Abb. 
N.  Cas.  (N.  Y.  Supreme  Ct.)  35S;  Zim- 
mermann  v.  Hunt  (Supreme  Ct.),  7  N. 
Y.  St.  Rep.  778  ;  Hoffman  v.  New 
York,  etc.,  R.  Co..  50  N.  Y.  Super. 
Ct.  403;  Simmonds  Mfg.  Co.  v.  Brown- 
ing, N.  Y.  Daily  Reg.,  Jan.  24,  1884; 
Moss  V.  Barton,  12  N.  Y.  Wkly.  Dig. 
524;  Myers  v.  Bank  of  Portsmouth 
(Supreme  Ct.),  2  N.  Y.  St.  Rep.  125; 
Richards  v.  Frechsel,  14  Abb.  N.  Cas. 
(N.  Y.  City  Ct.)  316,  note;  Oppermana 
V.  Barr,  N.  Y.  Daily  Reg.,  April  28,^ 
1884;  Roby  V.  Hallock,  5  Abb.  N.  Cas. 
(N.  Y.  Supreme  Ct.)  86;  City  Bank  v. 
Drake,  5  N.  Y.  Wkly.  Dig.  477;  Kam- 
lah  V.  Salter,  6  Abb.  Pr.  (N.  Y.  C.  PL) 
226;  Neuberger  v.  Webb,  24  Hun  (N. 
Y.)  347;  Ladue  v.  Andrews,  5  N.  Y. 
Wkly.  Dig.  262;  Boughen  v.  Nolan,  5 
N.  Y.  Wkly.  Dig.  100. 

1.  Thorn  v.  New  York  Cent.  Mills, 
10  How.  Pr.  (N.  Y.  Supreme  Ct.)  19; 
Hackett  v.  Richards,  11  N.Y.  Leg.  Obs. 
315;  Edwards  v.  Lent,  8  How.  Pr.  (N. 
Y.  Supreme  Ct.)  28;  Ketcham  v.  Zere- 
ga,  I  E.  D.  Smith  (N.Y.)  553:  Kellogg 
V.  Baker,  15  Abb.  Pr.  (N.  Y.  Super. 
Ct.)286;  Joseph  Dixon  Crucible  Co.  f. 
New  York  City  Steel  Works,  9  Abb.  Pr. 
N.  S.  (N.  Y.  Supreme  Ct.)  195;  Fallon  w. 


811 


Denials  of 


ANSWERS  IN  CODE  PLEADING. 


Knowledge. 


Practice  where  Defendant  Does  Not  Recollect. — But  there  may  be  cases 
in  which,  although  apparently  within  his  knowledge,  the  defend- 
ant does  not  know  or  remember  the  facts  alleged.  If  so,  he  must 
in  his  answer,  or  in  the  afifidavit  verifying  it,  state  the  lapse  of 
time  or  other  circumstances  which  he  supposes  warrant  the  qual- 
ified denial  permitted  by  the  Code.* 


Durant,  60  How.  Pr.  (N.  Y.  Supreme 
Ct.)  178;  Morton  v.  Jackson,  2  Minn. 
219;  Minor  v.  Willoughby,  3  Minn.  225; 
Freeman  v.  Curran,  i  Minn.  169;  El- 
more V.  Hill,  46  Wis.  618.  Nor  can 
the  defendant  deny  information  when 
he  has  the  means  of  information. 
Hance  v.  Remming,  i  Code  Rep.  N. 
S.  (N.  Y.)  204;  Ketcham  v.  Zerega,  i 
E.  D.  Smith  (N.  Y.)  553;  Wesson  v. 
Judd.  I  Ab.  Pr.  (N.Y.  C.  PI.)  254;  Nich- 
ols V.  Lumpkin,  20  N.  Y.  Wkly.  Dig. 
367;  Gribble  v.  Columbus  Brewing 
Co.,  100  Cal.  67.  And  this  principle 
and  rule  of  answering  applies  as  well 
to  a  corporation  as  to  an  individual 
defendant.  Thorn  v.  New  York  Cent. 
Mills,  10  How.  Pr.  (N.  Y.  Supreme 
Ct.)  19.  "But  the  statute  imposes 
upon  the  defendant,  if  a  natural  per- 
son, and  if  a  corporation,  upon  its  of 
ficers  and  agents,  the  duty  of  acquir- 
ing the  requisite  knowledge  or  in- 
formation respecting  the  matters  al- 
leged in  the  complaint  to  enable  them 
to  answer  in  the  proper  form.  *  *  * 
Any  other  form  of  denial  in  such  cases 
is  an  evasion  of  the  statute."  Per 
Field,  J.,  in  San  Francisco  Gas  Co.  v. 
San  Francisco,  9  Cal.  453.  See  Curtis 
'v.  Richards,  9  Cal.  38;  Humphreys  v. 
McCall,  9  Cal.  59,  70  Am.  Dec.  621. 

Rule  in  Equity. — The  rule  of  requir- 
ing the  defendant  to  answer  positively 
as  to  facts  which  are  presumptively 
within  his  knowledge  is  borrowed 
from  equity  practice.  Thorn  v.  New 
York  Cent.  Mills,  10  How.  Pr.  (N.  Y. 
Supreme  Ct.)  19.  See  Hall  v.  Wood, 
I  Paige  (N.  Y.)  404;  Sloan  v.  Little,  3 
Paige  (N.  Y.)  103. 

Effect  of  Denying  Knowledge  of  a  Fact 
Presumptively  Within  Defendant's  Knowl- 
edge.— As  to  just  what  effect  shall  be 
given  to  an  answer  which  denies 
knowledge  of  a  fact  which  the  law 
presumes  a  party  to  know  is  a  matter 
of  doubt.  It  has  been  held  that  such 
an  answer  is  evasive  and  admits  the 
allegations  of  the  complaint.  Brown 
V.  Scott,  25  Cal.  190.  Other  authori- 
ties hold  that  the  answer  is  good  until 
struck  out  on  motion  as  sham.     Smal- 


ley  V.  Isaacson,  40  Minn.  450;  Livings- 
ton V.  Hammer,  7  Bosw.  (N.  Y.)  670; 
Leach  v.  Boynton,  3  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  i. 

And  it  has  been  held  that,  while  the 
answer  of  an  individual  defendant 
may  be  shown  by  affidavits  to  be 
false,  and  while  it  may  be  shown  that 
the  matters  are  within  his  personal 
knowledge,  and  his  answer  may  there- 
fore be  struck  out  as  sham,  this  rule 
does  not  obtain  when  the  defendant 
is  a  corporation.  Martin  v.  Erie  Pre- 
serving Co.,  48  Hun  (N.  Y.)  81.  Other 
authorities  hold  that  the  answer  is 
good,  and  that  no  motion  can  be 
made  to  strike  it  out  as  sham,  false,  or 
frivolous.  They  intimate  that  the 
remedy  is  a  criminal  prosecution  for 
the  false  verification.  Caswell  v. 
Bushnell,  14  Barb.  (N.Y.)393;  Grocers' 
Bank  v.  O'Rorke,  6  Hun  (N.  Y.)  19; 
Hagadorn  v.  Edgewater,  59  Hun  (N. 
Y.)  625;  Farmers',  etc..  Bank  v.  Char- 
lotte, 75  N.  Car.  45;  Erwln  v.  Lowery, 
64  N.  Car.  321;  Swepson  v.  Harvey, 
66  N.  Car.  436. 

Denials  of  Information  Not  Favored. — 
Denials  of  information  are  not  favored 
in  a  pleading  which  a  party  must  have 
leave  of  court  to  put  in.  O'Brien  v. 
Catlin,  I  Code  Rep.  N.  S.  (N.  Y.)  273. 

Where  a  receiver  is  made  a  partj' 
defendant  after  the  original  defendant 
has  answered,  such  receiver  cannot 
deny  information  or  knowledge  of  a 
fact  admitted  in  the  answer  of  the  de- 
fendant.  Forbes  z/. Waller,  25  N.Y.  430. 

1.  Richardson  v.  Wilton,  4  Sandf. 
(N.Y.)  708;  Thorn  v.  New  York  Cent. 
Mills  Co.,  10  How.  Pr.  (N.  Y.  Supreme 
Ct.)  22;  Edwards  v.  Lent,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  28;  Shearman  v. 
New  York  Cent.  Mills,  i  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  187;  Wesson  v. 
Judd,  I  Abb.  Pr.  (N.  Y.  C.  PI.)  254; 
Mott  V.  Burnett,  i  Code  Rep.  N.  S. 
(N.  Y.)  225  ;  Hance  v.  Remming,  i 
Code  Rep.  N.  S.  (N.  Y.)  204;  Brown 
V.  Scott,  25  Cal.  190  ;  Vassault  v.  Aus- 
tin, 32  Cal.  597;  Comerford  v.  Dupuy, 
17  Cal.  308.  See  Jones  v.  Perot  (Colo.), 
34  Pac.  Rep.  728. 


8t2 


Denials  of 


ANSWJSJiS  IN  CODE  FLEA  DING. 


Knowledge. 


5.  What  Matters  are  Presumptively  Within  Defendant's  Knowledge 
— Personal  Acts. — A  defendant  cannot  deny  knowledge  of  his  own 
acts ;  nor  can  he  deny  knowledge  of  allegations  which  include 
personal  transactions  with  him.  In  such  cases  a  positive  answer 
is  required.* 

Acts  of  Agent. — Neither  a  corporation  nor  an  individual  can  deny 
knowledge  of  the  acts  of  its  or  his  agent.* 

Sales. — Where  merchandise  is  alleged  to  have  been  sold  to 
defendant,  he  must  positively  deny  its  purchase.  He  cannot  deny 
on  information  and  belief.* 

Contents  of  Eecords. — A  party  cannot  plead  ignorance  of  a  public 
record  to  which  he  has  access,  and  which  affords  him  all  the  means 
of  information  necessary  to  obtain  positive  knowledge  of  the 
fact.'* 


1.  Lewis  V.  Acker,  ii  How.  Pr. 
(N.  Y  Supreme  Ct.)  163;  Sherman  v. 
Boehm,  13  Daly  (N.  Y.)  42.  A  de- 
fendant cannot  deny  knowledge  of 
an  allegation  that  he  boarded  and 
lodged  with  plaintiff,  Byrne  v.  Benton, 
3  N.  Y.  Month.  L.  Bull.  100;  nor  that 
he  has  not  paid  his  taxes,  Knox  v. 
Galligan,  21  Wis.  470;  nor  whether  he 
spat  in  the  plaintiff's  face,  Richardson 
V.  Wilton,  4  Sandf.  (N.  Y.)  708;  nor 
whether  he  caused  the  plaintiff  to  be 
arrested  on  a  writ,  Lawrence  v.  Derby, 
15  Abb.  Pr.  (N.  Y.  Super. Ct.) 346,  note; 
nor  knowledge  of  the  quantity  of  goods 
which  he  admits  he  received,  Starbuck 
V.  Dunklee,  10  Minn.  168,  83  Am.  Dec. 
68.  Nor  can  an  officer  of  a  corporation 
deny  knowledge  of  the  corporate  ex- 
istence. Brown  v.  La  Crosse  City 
Ga^s  Light,  etc.,  Co.,  21  Wis.  51. 

AH  the  answers  in  the  above  cases 
were  either  stricken  out  as  sham,  or 
were  held  to  admit  the  allegations. 

2.  Shearman  v.  New  York  Cent. 
Mills,  I  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
187;  Loveland  v.  Garner,  74  Cal.  298; 
Beyre  v.  Adams,  73  Iowa  382;  Nash- 
ville, C.  &  St.  L.  R.  Co.  V.  Carrico 
(Ky.),  26  S.  W.  Rep.  177. 

Partners. — A  partner  cannot  be  per- 
mitted to  deny  any  knowledge  or  in- 
formation as  to  a  transaction  alleged 
to  have  been  had  with  his  firm.  Chap- 
man V.  Palmer,  12  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  37;  Mott  V.  Burnett,  i  Code 
Rep.  N.  S.  (N.  Y.)  225. 

Contra. — A  foreign  corporation  may 
deny  knowledge  or  information  as  to 
allegations  of  demand  made  of  its 
agents  in  New  York  City.  Warner  v. 
U.  S.  Land,  etc.,  Co.,  53  Hun  (N.  Y.) 
312.     And  a  city  may  deny  knowledge 

81 


of  the  acts  of  its  assessors.  Smith  v. 
Janesville,  26  Wis.  2gr.  And  a  corpo- 
ration may  deny  knowledge  with  re- 
spect to  the  alleged  negligence  of  its 
servants  in  transporting  goods.  Boor- 
man  V.  American  Express  Co.,  21  Wis. 
154- 

3.  Wingz/.  Dugan,  8  Bush  (Ky.)583; 
Lay  Gas  Mach.  Co.  v.  Falls  of  Neuse 
Mfg.  Co.,  91  N.  Car.  74;  Chapman  v. 
Palmer,  12  How.  Pr.  (N.  Y.  Supreme 
Ct.)  37.  In  the  first  two  cases  above, 
the  answer  was  treated  as  a  nullity, 
and  was  held  to  admit  the  allegations 
of  the  complaint;  in  the  last  case  the 
answer  was  stricken  out  as  frivolous. 
See  Harvey  v.  Walker,  13  N.  Y.  Supp. 
170,  and  Schroeder  v.  Capehart,  49 
Minn.  525,  where  the  answer  was  held 
good  because  not  objected  to. 

But  where  an  answer  is  verified  by 
the  attorney  instead  of  by  the  defend- 
ant himself,  it  may  deny  knowledge 
touching  a  sale  alleged  to  have  been 
made  by  defendant  as  commission 
merchant.  Neuberger  v.  Webb,  24 
Hun  (N.  Y.)  347- 

Contra. — In  an  action  to  recover  for 
goods  sold,  defendant  may  deny  the 
sale  on  information  and  belief.  Rich- 
ards V.  Fuechsel,  5  Civ.  Pro.  Rep. 
(N.  Y.  City  Ct.)  430;  Wood  f.  Watson, 
23  N.  Y.  Wkly,  Dig.  85  ;  Harvey  v. 
Walker.   59  Hun  (N.  Y.)  114. 

4.  Union  Lumbering  Co.  v.  Chippe- 
wa County,  47  Wis.  246;  Goodell  v. 
Blumer,  41  Wis.  444;  Mills  v.  Jeffer- 
son, 20  Wis.  50  ;  Hathaway  v.  Bald- 
win, 17  Wis.  616  ;  State  v.  McGarry, 
21  Wis.  496;  Milwaukee  v.  O'Sullivan, 
25  Wis.  666;  Brown  v.  La  Crosse  City 
Gas  Light,  etc.,  Co.,  21  Wis.  51;  Col- 
lart  V.  Fisk,  38  Wis.  239;  Zivi  v.  Ein- 


Denials  of 


AJVSIV£/^S  IN  CODE  PLEADING. 


Knowledge. 


Judgments. — A  party  is  precluded  from  denying  on  information 
and  belief  that  a  judgment  was  rendered  against  him.* 

Making  of  Contracts  and  Notes. — Where  a  defendant  admits  the  exe- 
cution of  a  contract  he  cannot  deny  information  of  its  contents.* 
And  whether  a  defendant  made  or  indorsed  a  note,  and  whether 
he  transferred  it,  is  presumed  to  be  within  his  own  personal 
knowledge.  If,  therefore,  he  would  answer  these  allegations  he 
must  admit  or  deny  them  positively.*    But  the  maker  of  a  note 


stein  (City  Ct.),  20  N.  Y.  Supp.  893; 
Mulcahy  v.  Buckley,  100  Cal.  484. 

Deeds. — Where  the  complaint  avers 
the  making  of  a  deed,  sets  it  out  in 
JicBc  verba,  and  states  the  volume  and 
page  of  the  records  where  it  is  re- 
corded, a  denial  in  the  answer  "  of  suf- 
ficient knowledge  to  form  a  belief  "  is 
not  sufficient  to  raise  an  issue.  Goodell 
V.  Blumer,  41  Wis.  436.  Likewise 
■when  there  is  an  allegation  of  an  as- 
signment of  a  mortgage,  and  the  vol- 
ume and  page  of  the  record  containing 
it  are  given,  a  denial  of  knowledge  is 
sham,  and  should  be  stricken  out. 
Wheaton  v.  Briggs,  35  Minn.  470.  But 
the  court  laid  stress  on  the  fact  that 
the  answer  was  verified  in  the  county 
in  which  the  record  was  kept. 

Records  of  County  Supervisors. — The 
minutes  of  a  board  of  county  super- 
visors are  such  public  records  as  will 
preclude  any  one  from  denying  their 
alleged  contents  upon  information  and 
belief.  State  v.  McGarry,  21  Wis.  496. 
Contra,  People  v.  Curtis,  i   Idaho  754. 

Filing  Copies. — When  a  material  fact 
is  evidenced  by  official  documents, 
and  copies  thereof  are  filed  with  the 
pleading,  an  answer  that  the  defend- 
ant has  no  knowledge  is  insufficient, 
and  admits  the  complaint.  Barret  v. 
Godshaw,  12  Bush  (Ky.)  592. 

Letters  of  Administration.  —  But  a 
grant  of  letters  of  administration  may 
be  denied  on  information  and  belief. 
Wittmann  v.  Watry,  37  Wis.  238;  Mor- 
row V.  Cougan,  3  Abb.  Pr.  (N.  Y. 
C.  PI.)  328. 

Facts  Not  Disclosed  by  Becord. — All 
those  facts  which  the  record  does  not 
disclose  may  be  denied  on  information 
and  belief.  A  defendant  may  deny  on 
information  and  belief  the  sufficiency 
of  a  recorded  claim  of  lien.  Hagman 
V.  Williams,  88  Cal.  146.  And  the  de- 
fendant may  deny  knowledge  of  an 
alleged  fact  that  plaintiff  paid  taxes, 
since  the  records  do  not  show  by  whom 
taxes  are  paid.  Davis  v.  Lonk,  30 
Wis.  308. 


1.  Such  a  denial  should  be  stricken 
out  as  sham,  because  the  party  must 
know  positively  whether  or  not  a 
judgment  was  rendered  against  him. 
Buller  V.  Sidell,  43  Fed.  Rep.  116; 
Roblin  V.  Long,  60  How.  Pr.  (N.  Y. 
Supreme  Ct.)  200;  Beebe  v.  Marvin, 
17  Abb.  Pr.  (N.  Y.  Super.  Ct.)  194. 
But  there  must  be  an  allegation  that 
he  was  served  with  process  or  that  he 
entered  his  appearance.  See  cases 
supra. 

Not  a  Party. — Where  a  judgment  is 
pleaded,  a  denial  of  any  knowledge, 
made  by  one  not  a  party  thereto,  is 
good.  Mower  v.  Stickney,  5  Minn. 
407;  Zivi  V.  Einstein,  21  N.  Y.  Supp. 
583.  But  where  a  stay  bondsman  was 
sued  on  his  bond,  and  employed  the 
same  attorney  that  the  defendant  had, 
he  was  held  precluded  from  denying 
any  information  or  knowledge  of  the 
judgment,  as  he  had  but  to  ask  the 
attorney.  Hance  v.  Rumming,  2  E. 
D.  Smith  (N.  Y.)  48.  Compare  Wesson 
V.  Judd",  T  Abb.  Pr.  (N.  Y.  C.  PL)  254; 
Mott  V.  Burnett,  2  E.  D.  Smith  (N.  Y. 
C.  PL)  50. 

2.  Wesson  v.  Judd,  i  Abb.  Pr.  (N. 
Y.  C.  PI.)  254;  Lloyd  V.  Burns,  38  N. 
Y.  Super.  Ct.  223.  Contra. — Parties  are 
not  presumed  to  recollect  the  date  or 
contents  of  written  instruments  not  in 
their  possession  or  control.  Kellogg 
V.  Baker,  15  Abb.  Pr.  (N.  Y.  Super. 
Ct.)  286. 

Denial  of  Making  Contract. — Where 
the  complaint  alleges  the  execution  of 
a  contract,  and  a  copy  of  the  alleged 
agreement  is  filed,  a  denial  of  knowl- 
edge of  it  is  good,  and  cannot  be 
stricken  out  as  frivolous.  Snyder  v. 
Bedell,  10  Rep.  217.  See  also  Living- 
ston V.  Hammer,  7  Bosw.  (N.  Y.)  670; 
People  V.  McCumber,  15  How.  Pr. 
(N.  Y.  Supreme  Ct.)  186;  Caswell  v. 
Bushnell.  14  Barb.  (N.  Y.)  393;  Thorn 
V.  New  York  Cent.  Mills,  10  How.  Pr. 
(N.  Y.  Supreme  Ct.)  19. 

3.  Fales  v.  Hicks,  12  How.  Pr.  (N. 
Y.  Supreme  Ct.)  153,  and  Thorn  v.  New 


814 


Denials  of 


ANSWERS  IN  CODE  PLEADING. 


Knowledge. 


may  deny  knowledge  of  the  indorsement  or  transfer  of  it  by  the 
payee.* 

Ownership. — In  an  action  on  a  note  or  bond,  a  denial  of  knowl- 
edge as  to  whether  plaintiff  is  the  owner  should  be  struck  out  as 
frivolous.  There  must  be  positive  allegations  of  title  in  a  third 
person.* 

Questions  of  Law. — Questions  of  law  are  not  sufficiently  denied  by 
a  statement  that  the  party  "  has  not  sufficient  information  to 
form  a  belief."  * 


York  Cent.  Mills,  lo  How.  Pr.  (N.  Y. 
Supreme  Ct.)  19,  applying  the  rule  to 
a  corporation. 

While  a  denial  on  information  is 
bad,  it  cannot  be  stricken  out  as  frivo- 
lous. Shearman  v.  New  York  Cent. 
Mills,  I  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
187. 

Where  the  defendant  is  sued  on  a 
note  which  has  not  been  seen  by  him 
for  over  twenty  years,  and  is  lost  and 
cannot  be  seen,  a  denial  of  his  signa- 
ture on  information  and  belief  is  suffi- 
cient to  put  in  issue  the  execution  of 
the  note.  Hall  v.  Woodward,  30  S. 
Car.  564.  See  Carroll  County  Sav. 
Bank  v.  Strother,  22  S.  Car.  552. 

Amount  Due. — But  an  allegation  of 
the  amount  due  on  a  note  may  be  de- 
nied on  information  and  belief.  Rich- 
ter  V.  McMurray,  15  Abb.  Pr.  (N.  Y. 
C.  PI.)  346. 

Iowa. — In  lotva  a  defendant  may 
deny  knowledge  of  a  note  alleged  to 
have  been  executed  by  him.  McFar- 
land  V.  Lester,  23  Iowa  260. 

1.  Caswell  V.  Bushnell,  14  Barb. 
{N.  Y.)  393;  Snyder  v.  White,  6  How. 
Pr.  (N.'Y.  Supreme  Ct.)  321;  Sherman 
V.  Bushnell,  7  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  171;  Flood  V.  Reynolds,  13 
How.  Pr.  (N.  Y.  Supreme  Ct.)  112; 
Duncan  v.  Lawrence,  6  Abb.  Pr.  (N.  Y. 
Super.  Ct.)  304;  Thorn  v.  New  York 
Cent.  Mills,  10  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  19;  Dickerson  v.  Kimbal, 
I  Code  Rep.  N.  Y.  49. 

Protest.  —  The  maker  may  deny 
knowlege  of  the  presentment  and  non- 
payment. Dickerson  v.  Kimbal,  i 
Code  Rep.  (N.  Y.)  49.  But  v>^here  the 
protest  is  on  file  with  the  petition,  the 
maker  cannot  allege  want  of  knowl- 
edge. Huffaker  v.  Nat.  Bank,  12 
Bush  (Ky.)  287.  See  Gridler  v.  Farm- 
ers', etc..  Bank,  12  Bush  (Ky.).  333. 

2.  Fleury  v.  Roget,  5  Sandf.  (ISI.  Y. 
646;  Fleury  v.  Roger,  9  How.  Pr. 
(N.Y.  Super.  Ct.)2i5;  Fleury  w.  Brown, 
9  How.    Pr.  (N.  Y.  Super.    Ct.)   217; 


Flammer  v.  Kline,  9  How.  Pr.  (N.  Y. 
Super.  Ct.)  216;  Tompkins  v.  Acer, 
10  How.  Pr.  (N.  Y.  Supreme  Ct.)  309; 
De  Santes  v.  Searle,  11  How.  Pr.  (N. 
Y.  C.  PI.)  477;  Bronson  v.  Rock  Isl- 
and, etc.,  R.  Co.,  40  How.  Pr.  (N.  Y. 
Supl-eme  Ct.)48;  Asiel  v.  Kansas,  etc.. 
R.  Co.,  3  N.  Y.  L.  Bull.  28;  Kamlah 
V.  Salter,  6  Abb.  Pr.  (N.  Y.  C.  PI.) 
226;  Deloatch  v.  Vinson,  108  N.  Car. 
147. 

But  it  has  been  held  that  a  denial  of 
ownership  upon  information  and  be- 
lief is  sufficient  where  no  motion  is 
made  to  strike  it  out.  Harvey  v.  Mc 
Leran,  66  Cal.  34. 

Contra. — A  denial,  on  information 
and  belief,  that  the  thing  sued  for  be- 
longs to  plaintiff  is  sufficient.  Towns- 
end  V.  Piatt,  3  Abb.  Pr.  (N.  Y.  C.  PI.) 
325;  Temple  v.  Murray,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  329;  Genesee 
Mut.  Ins.  Co.  V.  Moyniben,  5  How. 
Pr.  (N.  Y.  Supreme  Ct.)32i;  Snyder  v. 
White,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)  321;  Cunningham  v.  Skinner,  65 
Cal.  385.  See  Hyde  v.  Kitchen  (Su- 
preme Ct.),  21  N.  Y.  Supp.  238. 

Attorney's  Authority  to  Sue. — A  de- 
fendant cannot  deny  on  information 
and  belief  that  the  attorney  has  au- 
thority to  represent  the  plaintiff.  It  is 
only  upon  a  suitable  suggestion  of 
facts  that  the  attorney  will  be  required 
to  show  some  authority.  "  Informa- 
tion and  belief,"  however  honestly  en- 
tertained, are  not  sufficient  to  over- 
come the  presumption  arising  from 
professional  obligations,  resting  upon 
an  attorney,  that  he  will  not  abuse  his 
privileges  by  representing  a  party 
without  authority.  Robinson  v.  Rob- 
inson, 32  Mo.  App.  88;  Keith  v.  Wil- 
son, 6  Mo.  435,  35  Am.  Dec.  443;  Valle 
V.  Picton,  16  Mo.  App.  178;  San  Fran- 
cisco V.  Stande,  92  Cal.  560. 

3.  Kentucky  River  Nav.  Co.  v.  Com. 
13  Bush  (Ky.)  436.  A  plea  by  the 
defendant  that  he  "  has  no  informa- 
tion sufficient  to  form  a  belief"  as  to 


815 


Proof  Under         AlYSWERS  IN  CODE  PLEADING.    General  DeaiaL 


X.  What  May  Be  Peoved  Under  a  General  Denial— 1.  Nature 
of  a  General  Denial. — As  a  rule  a  general  denial  under  the  Code 
is  a  mere  traverse,  in  bar,  of  the  facts  pleaded  in  the  complaint.^ 

The  General  Issue. — Under  the  Code  there  is  no  plea  which  meets 
the  idea  of  the  general  issue  under  the  old  system.* 


whether  certain  ordinances  were  ever 
published  "as  required  by  law"  is 
but  a  statement  of  his  want  of  infor- 
mation as  to  the  law,  and  is  not  good. 
Greer  v.  Covington,  83  Ky.  410.  Com- 
pare Emery  v.  Baltz,  94  N.  Y.  408. 

1.  Dutcher  v.  Butcher,  39  Wis.  651. 
Allegations  of  Complaint  Determine  its 

Scope. — The  scope  of  a  general  denial 
is  wholly  determined  by  the  allega- 
tions of  the  complaint.  Only  the  facts 
alleged  in  the  complaint  are  denied  by 
a  general  denial.  Finley  v.  Quirk,  9 
Minn.  194,  86  Am.  Dec.  93;  Caldwell 
V.  Bruggerman,  4  Minn.  270;  Nash  v. 
St.  Paul,  II  Minn.  174;  Northrup  v. 
Mississippi  Valley  Ins.  Co.,  47  Mo.  435, 
4  Am.  Rep.  337;  Causey  v.  Cooper.  41 
Ga.  409;  Coles  v.  Saulsby,  21  Cal.  47; 
Adams  Express  Co.  v.  Darnell,  31  Ind. 
20;  Lafayette,  etc.,  R.  Co.  v.  Ehman, 
30  Ind.  83;  Watkins  v.  Jones,  28  Ind. 
12;  Bate  V.  Sheets,  50  Ind.  329;  Mor- 
gan V.  Wattles,  69  Ind.  260;  Beaty  v. 
Swarthout,  32  Barb.  (N.  Y.j  293. 

The  Test. — Under  a  general  denial 
the  simple  inquiry  is,  has  the  plaintiff 
proved  what  he  has  alleged  in  his  peti- 
tion ?  School  Dist.  V.  Shoemaker,  5 
Neb.  36;  Jones  v.  Seward  County,  10 
Neb.  154. 

Equivalent  to  Specific  Denials. — A  gen- 
eral denial  is  the  same  in  effect  as  a 
specific  denial  of  each  of  the  allega- 
tions in  the  whole  complaint.  Stone 
V.  Quaal,  36  Minn.  46. 

Admissions. — A  general  denial  will 
not  put  the  plaintiff  upon  proof  of 
facts  elsewhere  admitted  in  such  an- 
swer. Farrell  v.  Hennessy,  21  Wis. 
139;  McWilliams  z/.  Bannister,  40  Wis. 
489. 

Striking  Out. — Every  special  defense 
which  consists  of  matter  which  goes 
to  disprove  any  material  allegation  in 
the  complaint  is  defective,  and  must 
be  stricken  out  on  motion.  Benedict  v. 
Seymour,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)  298. 

2.  Van  Ingen  v.  Newton,  i  Disney 
(Ohio)  458;  Scott  V.  Morse,  54  Iowa 
732;  Hargan  v.  Burch,  8  Iowa  310; 
Bowen  v.  Hale,  4  Iowa  430;  Dyson  v. 
Ream,  9  Iowa  51;  Walters  v.  Wash- 
ington Ins.  Co.,  I  Iowa  404a,  63  Am. 


Dec.  451;  Hutchinson  v.  Sangster,  4 
Greene  (Iowa)  340;  Wood  v.  Ostram, 
29  Ind.  186;  Girls'  Industrial  Home  v. 
Fritchey,  10  Mo.  App.  344. 

Under  a  general  denial  a  defendant 
may  not  introduce  evidence  of  all  the 
facts  which  might  have  been  proved 
under  the  general  issue  at  common 
law,  but  he  is  confined  to  contesting 
the  facts  alleged  in  the  petition;  but 
he  may  introduce  as  evidence  whatever 
goes  to  controvert  the  facts  alleged  in 
the  petition.  Oleson  v.  Hendrickson, 
12  Iowa  222;  Scott  V.  Morse,  54  Iowa 
732. 

"  But  the  Code,  by  requiring  that 
an  answer,  in  addition  to  a  general  or 
specific  denial  of  the  allegations  in  the 
complaint,  when  such  a  denial  is 
made,  shall  state  any  new  matter  con- 
stituting a  defense,  when  such  a  de- 
fense is  meant  to  be  relied  on,  has 
effectually  abolished  the  general  issue, 
as  formerly  understood.  *  *  *  The 
only  effect  of  a  general  or  specific 
denial  in  an  answer  of  the  material 
allegations  of  the  complaint  now  is  to 
cast  the  burden  of  proof  upon  the 
plaintiff;  but  where  the  necessary 
proof  is  given,  if  the  answer  contains 
nothing  more  than  such  a  denial,  the 
plaintiff  is  at  once,  and  as  a  matter  of 
course,  entitled  to  a  verdict  or  judg- 
ment." Per  Oakley,  Ch.J.,  in  Texier 
V.  Gouin,  5  Duer  (N.  Y.)  392. 

"  Although  the  Code  of  Procedure 
has  abrogated  the  common-law  system 
of  pleading,  with  all  its  technical 
rules,  yet,  in  one  respect,  the  new  sys- 
tem which  it  has  introduced  bears  a 
close  analogy  to  that  for  which  it  has 
been  substituted.  The  general  denial 
allowed  by  the  Code  corresponds  very 
nearly  with  the  general  issue  in  ac- 
tions of  assumpsit  and  of  debt  on 
simple  contract,  at  common  law.  The 
decisions  upon  the  subject,  therefore, 
in  the  English  courts,  although  not 
obligatory  as  precedents  since  the 
changes  introduced  by  the  Code,  will 
nevertheless  be  found  to  throw  much 
light  upon  the  question,"  etc.  Per 
Selden,  J.,  in  McKyring  v.  Bull,  16 
N.  Y.  297,  69  Am.  Dec.  696. 

Contra. — A  general  denial  under  the 
16 


Proof  Under        ANSWERS  IN  CODE  PLEADING.  General  Deaial. 


To  What  Evidence  Defendant  is  limited. — Under  a  general  denial  of 
the  allegations  in  the  complaint,  the  defendant  may  introduce  any 
evidence  which  goes  to  controvert  the  facts  which  the  plaintiff  is 
bound  to  establish  in  order  to  sustain  his  action.* 

2.  Payment. — Where  the  complaint  alleges  the   indebtedness 


Code  is  equivalent  to  the  plea  of  the 
general  issue  at  common  law.  Perkins 
V.  Ermel,  2  Kan.  325.  In  Alissouri 
there  is  a  plea  of  "general  issue"  in 
preceedings  before  justices  of  the 
peace.  Reed  v.  Snodgrass,  55  Mo. 
180;  Farmers',  etc.,  Bank  v.  William- 
son, 61  Mo.  259.  And  in  Alabama  a 
general  denial  of  each  and  every  allega- 
tion in  the  complaint  is  neither  more 
nor  less  than  the  general  issue.  Louis- 
ville, etc.,  R.  Co.  V.  Trammell,  93 
Ala.  350.  But  see  Mobile,  etc.,  R.  Co. 
V.  Gilmer,  85  Ala.  422;  Equitable  Ac- 
cident Ins.  Co.  V.  Osborn,  90  Ala.  201. 

1.  New  York. — Andrews  v.  Bond,  16 
Barb.  (N.  Y.)  633;  Saunders  v.  Town- 
send,  26  Hun  (N.  Y.)  308;  Little  v. 
Denn,  34  N.  Y.  452;  Woolly  v.  New- 
combe,  87  N.  Y.  605;  Griffin  v.  Long 
Island  R.  Co.,  loi  N.  Y.  348;  Schaus 
V.  Manhattan  Gas  Light  Co.,  14  Abb. 
Pr.  N.  S.  (N.  Y.  Super.  Ct.)  371; 
Wheeler  v.  Billings,  38  N.  Y.  263; 
Greenfield  v.  Massachusetts  Mut.  L. 
Ins.  Co.,  47  N.  Y.  430;  Sawyer  v. 
Warner,  15  Barb.  (N.  Y.)  282;  Schwarz 
V.  Oppold,  74  N.  Y.  307;  Boomer  v. 
Koon,  6  Hun  (N.  Y.)  645;  Miller  v. 
North  America's  Ins.  Co.  i  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  470;  Moody 
V.  Belden  (Supreme  Ct.),  15  N.  Y. 
Supp.  119;  Weaver  v.  Barden,  49  N.  Y. 
286;  Clifford  V.  Dam,  81  N.  Y.  56; 
O'Brien  v.  McCann,  58  N.  Y.  373. 

Nebraska. — Jones  v.  Fruin,  26  Neb. 
76;  Jones  V.  Seward  County,  10  Neb. 
154;  School  Dist.  7/. .  Shoemaker,  5 
Neb.  36;  Burlington,  etc.,  R.  Co.  v. 
Lancaster  County,  7  Neb.  33;  South 
Omaha  v.  Cunningham,  31  Neb.  316; 
Donovan  v.  Fowler,  17  Neb.  247;  Has- 
sett  V.  Curtis,  20 Neb.  164;  Richardson 
V.  Steele,  9  Neb.  483;  Creighton  v. 
Newton,  5  Neb.  100;  Winkler t/.  Roeder, 
23  Neb.  709,  8  Am.  St.  Rep.  155; 
Broadwater  v.  Jacoby,  19  Neb.  77; 
Burlington,  etc.,  R.  Co.  v.  Young 
Bear,  17  Neb.  668;  Hedman  v.  Ander- 
son, 8  Neb.  180;  Aultman  v.  Stichler, 
21  Neb.  76;  Cool  V.  Roche,  15  Neb.  24. 

Missouri. — Northrup  v.  Mississippi 
Valley  Ins.  Co.,  47  Mo.  435,  4  Am. 
Rep.  337;  Nichols  v.  Winfrey,  79  Mo. 
544. 


Texas. — Mims  v.  Mitchell,  i  Tex. 
443;  McKaughan  v.  Harrison,  25  Tex. 
(Supp.)  461;  Fowler  z/.  Davenport,  3i 
Tex.  626;  Guess  v.  Lubbock,  5  Tex. 
535;  Towner  v.  Sayre,  4  Tex.  28;  Hurt 
V.  Blackburn,  20  Tex.  601;  Robinson 
V.  Brinson,  20  Tex.  438. 

Alintiesota.  —  Bond  v.  Corbett,  2 
Minn.  248;  Caldwell  v.  Bruggerman, 
4  Minn.  190;  Filley  v.  Register,  4  Minn. 
296;  Plummer  v.  Mold,  14  Minn.  532. 

California. — Hawkins  v.  Borland,  14 
Cal.  413;  Whitmore  v.  Reynolds,  46 
Cal.  380;  Brown  v.  Kentfield,  50  Cal. 
129. 

Indiana. — Ferguson  v.  Ramsey,  41 
Ind.  511. 

Kansas. — McGrew  v.  Armstrong,  5 
Kan.  284. 

Iowa. — Johnson  v.  Pennell,  67  Iowa 
669. 

Georgia.  —  See  also  Woolfolk  v. 
Beach,  61  Ga.  67;  Dickson  w.  Saloshin, 
54  Ga.  117;  Johnson  v.  Shurley,  58 
Ga.  417;  Steadman  v.  Simmons,  39 
Ga.  592. 

That  Cause  of  Action  Never  Existed. — 
Under  the  general  denial  defendant 
may  prove  any  fact  which  goes  to  show 
that  plaintiff  never  had  any  cause  of 
action.  Hoffman  v.  Parry,  23  Mo. 
App.  20;  Northrup  v.  Mississippi 
Valley  Ins.  Co.,  47  Mo.  444,  4  Am. 
Rep.  337;  Greenway  v.  James,  34  Mo. 
328;  Meredith  v.  Santa  Clara  Min. 
Assoc,  56  Cal.  178;  Koehler  v.  Adler, 
91  N.  Y.  657;  Evans  v.  Williams,  60 
Barb.  (N.  Y.)  346;  Greenfield  v.  Mas- 
sachusetts Mut.  L.  Ins.  Co.,  47  N.  Y. 
430;  Andrews  v.  Bond,  16  Barb. 
(N.  Y.)  633;  Weaver  v.  Barde»,  49 
N.  Y.  286.  And  likewise  that  the 
cause  of  action  had  not  accrued  when 
suit  was  brought.  Mack  v.  Burt,  5 
Hun  (N.  Y.)  28;  Goddard  v.  Fulton,  21 
Cal.  430;  Burke  v.  Turney,  54  Cal.  486. 

Ownership  of  Cause  of  Action. — Under 
a  general  denial  the  defendant  may 
prove  that  the  plaintiff  does  not  own 
the  cause  of  action  sued  on.  Bond  v. 
Long,  87  Mo.  266;  Field  v.  Knapp,  loS 
N.  Y.  87;  Allis  V.  Leonard,  46  N.  Y. 
688;  Wetmore  v.  City,  44  Cal.  294. 
But  see  Brett  v.  First  Universalist 
Soc,  63  Barb.  (N.  Y.)  610. 


I  Encyc.  PI.  &  Pr. — 52. 


817 


Proof  Under         ANSWERS  IN  CODE  PLEADING.    General  Denial. 


generally,  without  showing  how  that  indebtedness  was  created, 
payment  may  be  proved  under  a  general  denial.* 

3.  Actions  on  Contracts. — In  an  action  upon  a  contract,  under  an 
answer  of  general  denial,  the  plaintiff  is  limited  to  the  contract  al- 
leged in  the  complaint ;  under  a  general  denial  the  defendant  may 
show  that  the  contract  between  him  and  the  plaintiff  was  a  differ- 


1.  Marley  v.  Smith,  4  Kan.  155; 
Parker  z'.  Hays,  7  Kan.  412;  Greenfield 
V.  Massachusetts  Mut.  L.  Ins.  Co.,  47 
N.  Y.  431;  Van  Giesen  v.  Van  Giesen, 
10  N.  Y.  316.  See  also  post.  New 
Matter  XIII.  8,/. 

Suing  for  Balance. — Where  the  plain- 
tiff sues  for  a  balance,  and  alleges 
generally  that  a  sum  is  due,  he  in- 
vites an  examination  into  the  amount 
of  the  indebtedness,  and  under  a 
general  denial  defendant  may  prove 
payment.  Quin  v.  Lloyd,  41  N.  Y. 
350.  And  see  the  above  case,  where 
the  complaint  was  construed  as  suing 
only  for  a  balance,  and  not  as  stating 
the  original  transaction.  Where  a 
balance  is  sued  for  it  is  an  admission 
of  payment  of  all  except  the  balance. 
White  V.  Smith,  46  N.  Y.  418. 

Allegation  of  Nonpayment;  Mnst  be  a 
Material  One. — To  entitle  the  defend- 
ant to  prove  payment  under  a  general 
denial,  the  allegation  of  nonpayment 
in  the  complaint  must  be  a  material 
one,  necessary  to  constitute  the  cause 
of  action,  Knapp  v.  Roche,  94  N.  Y. 
329;  because  a  plaintiff  cannot  in  his 
complaint  anticipate  the  defense  of 
payment  by  an  allegation  that  no  pay- 
ments have  been  made,  Benicia  Ag- 
ricultural Works  V.  Creighton,  21 
Oregon  495.  See  Wheeler,  etc.,  Mfg. 
Co.  V.  Tinsley,  75  Mo.  458;  Van  Gieson 
V.  Van  Gieson,  12  Barb.  (N.  Y.)  520; 
Wimpy  V.  Gaskill,  76  Ga.  41. 

Payment  as  New  Matter. — The  general 
rule  is  that,  when  the  original  trans- 
action or  contract  is  set  out,  and  not 
merely  the  indebtedness,  then  the  de- 
fense of  payment  is  new  matter,  and 
must  be  pleaded.  McKyring  v.  Bull, 
16  N.  Y.  297,  69  Am.  Dec.  696;  Wilcox 
V.  Joslin  (Supreme  Ct.),  10  N.  Y.  Supp. 
342;  Clark  V.  Mullen,  16  Neb.  481; 
Magenan  v.  Bell,  14  Neb.  8;  Van 
Buskirk  v.  Chandler,  18  Neb.  584; 
Tootle  V.  Maben,  21  Neb.  620;  Lamb 
V.  Thompson,  31  Neb.  448;  Clark  v. 
Spencer,  14  Kan.  407,  19  Am.  Rep.  96; 
Stevens  v.  Thompson,  5  Kan.  305; 
Hawes  v.  Woolcock,  30  Wis.  213;  Mar- 
tin V.  Pugh,  23  Wis.  184. 


And  see  post,  XIII.  New  Matter. 
California.  —  In  California  payment 
is  never  new  matter;  it  may  always 
be  proved  under  a  general  denial. 
McLarren  v.  Spalding,  2  Cal.  510; 
Brooks  V.  Chilton,  6  Cal.  641;  Frisch 
V.  Caler,  21  Cal.  71;  Goddard  v.  Ful- 
ton, 21  Cal.  430;  Fairchild  v.  Ams- 
baugh,  22  Cal.  572;  Davanay  v.  Eggen- 
hoff,  43  Cal.  395;  Wetmore  v.  San 
Francisco,  44  Cal.  294;  Farmers',  etc.. 
Bank  v.  Christensen,  51  Cal.  571.  But 
see  Piercy  v.  Sabin,  10  Cal.  22,  70  Am. 
Dec.  692;  Hook  v.  White,  36  Cal.  299. 
The  California  Supreme  Court 
reaches  the  conclusion  that  payment 
is  not  new  matter  because  the  aver- 
ment that  a  debt  has  not  been  paid, 
followed  by  a  plea  of  payment,  makes 
up  an  issue  on  the  point.  Frisch  v. 
Caler,  21  Cal.  71.  And  in  most  ac- 
tions, notably  those  on  notes,  the 
complaint  must  allege  nonpayment. 
Davanay  v.  Eggenhoff,  43  Cal.  398; 
Brown  v.  Orr,  29  Cal.  120.  But  see 
Hook  V.  White,  36  Cal.  299,  where  a 
specific  denial  of  an  allegation  of  non- 
payment was  held  sham. 

It  is  optional,  though,  with  the  de- 
fendant to  plead  payment  as  new  mat- 
ter. Caulfield  w.  Sanders,  17  Cal.  569; 
McDonald  v.  Davidson,  30  Cal.  174. 

But  where  the  payment  is  made 
after  suit  brought  it  is  new  matter, 
and  must  be  pleaded.  Glascock  v. 
Ashman,  52  Cal.  493. 

It  seems  that  not  only  may  the  de- 
fendant prove  payment  under  a  gen- 
eral denial,  but  that  the  onus  of 
proving  nonpayment  devolves  on  the 
plaintiff.  Farmers',  etc.,  Bank  v. 
Christensen,  51  Cal.  571. 

Iowa. — In  Iowa  a  plea  of  payment  is 
not  affirmative  matter,  and  will  not 
be  taken  as  true  if  not  replied  to. 
Powesheik  v.  Mickel,  10  Iowa  76; 
Stacy  V.  Stichton,  9  Iowa  399;  Garret- 
son  V.  Bitzer,  57  Iowa  469;  Sinnamon 
7'.  Melbourn,  4Greene  (Iowa)  309.  And 
the  burden  of  proof  is  upon  the  plain- 
tiff to  establish  the  fact  of  indebted- 
ness. Garretson  v.  Bitzer,  57  Iowa 
469. 


Proof  (Jndez 


ANSWERS  IN  CODE  PLEADING.    General  Denial, 


ent  one  from  that  set  out  in  the  complaint,  or  that  no  coHtract  at 
all  was  made.  ^ 

Want  of  Consideration. — In  an  action  on  contract  the  complaint  must 
show  a  consideration ;  and  under  a  general  denial  the  defendant 
may  prove  the  want  of  it.* 

Invalidity. — If  the  plaintiff's  evidence  shows  the  contract  sued 
upon  tO  be  invalid  or  illegal,  defendant  may  avail  himself  of  the 
objection  under  a  general  denial.* 

Failure  of  Plaintiff  to  Perform — The  defendant,  under  a  general  de- 
nial, may  show  that  the  plaintiff  has  failed  to  perform,  in  whole 
or  in  part,  the  contract  set  out  in  the  complaint.* 


1.  Paris  V.  Strong,  51  Ind.  339;  Chi- 
cago, etc.,  R.  Co.  V.  West,  37  Ind.  215; 
Blizzard  v.  Applegate,  61  Ind.  368; 
Wheeler  v.  Billings,  38  N.  Y.  263; 
Schermerhorn  v.  Van  Allen,  18  Barb. 
(N.  Y.)  29;  Goodale  v.  Central  Nat. 
Bank,  16  N.  Y.  Wkly.  Dig.  364;  Die- 
trich V.  Dreutel  (Supreme  Ct.),  6  N.  Y. 
St.  Rep.  528;  Healy  v.  Clark  (C.  PI.), 
12  N.  Y.  St.  Rep.  685:  Marsh  v.  Dodge, 
66  N.  Y.  533;  Goddard  v.  Fulton,  21 
Cal.  430;  Wilkerson  v.  Farnham,  82 
Mo.  672. 

It  is  competent  to  show  that  the  con- 
tract was  conditional,  and  that  the 
condition  was  not  fulfilled,  or  has  ter- 
minated the  contract.  Stewart  v, 
Goodrich,  9  Mo.  App.  125;  Danen- 
baum  V.  Person  (City  Ct.),  25  N.  Y.  St. 
Rep.  849. 

So  a  custom  or  usage  known  to  both 
parties  may  be  proved,  by  way  of 
showing  that  the  contract  made  was 
not  that  alleged.  Miller  v.  North 
America's  Ins.  Co.,  i  Abb.  N.  Cas  (N. 
Y.  Supreme  Ct. )  470.  See  also  Manning 
V.  Winter,  7  Hun  (N.  Y.)  482;  Peck 
w.  Winne,  51  N.  Y.  641;  Booth  v.  Pow- 
ers, 56  N.  Y.  22;  Schreyer  v.  New 
York,  39  N.  Y.  Super.  Ct.  i. 

That  a  note  was  made  for  accommo- 
dation and  has  become  functus  officio, 
is  admissible  under  a  general  denial. 
Goddard  v.  Fulton,  21  Cal.  430. 

And  a  general  denial  puts  the  plain- 
tiff upon  proof  of  the  joint  liability,  if 
he  would  obtain  a  joint  judgment. 
Stafford  v.  Nutt,  51  Ind.  535. 

2.  Evans  v.  Williams,  60  Barb.  (N.  Y.) 
346;  Dubois  V.  Hermance,  56  N.  Y. 
673.  I  Thomp.  &  C.  (N.  Y.)  293;  EI- 
dridge  v.  Mather,  2  N.  Y.  157;  Weaver 
V.  Barden,  49  N.  Y.  236;  Butler  v. 
Edgerton,  15  Jnd,  15;  Bondurant  v. 
Bladen,  19  Ind.  160;  Bush  v.  Brown, 
49  Ind.  573,  19  Am.  Rep.  695. 

The  rule  only  obtains  where  it   is 

8 


necessary  to  aver,  or  it  is  averred,  in 
the  complaint,  what  the  consideration 
was.  In  an  action  on  a  contract  the 
want  of  consideration  would  be  new 
matter  where  it  was  not  necessary  to 
set  out  the  consideration  in  the  com- 
plaint. Nixon  V.  Beard,  iii  Ind.  137. 
Failure  of  Consideration. — Failure  of 
consideration  may  be  proved  under  a 
general  denial.  Brooks  v.  Chilton,  6 
Cal.  641. 

3.  Cary  z/.  Western  Union  Tel.  Co.,  20 
Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.)333; 
Tyler  v.  Larimore,  19  Mo.  App.  445. 

The  capacity  of  the  parties  is  put  in 
issue  by  a  general  denial,  Cavender 
V.  Waddingham,  2  Mo.  App.  551; 
Painter  v.  Weatherford,  i  Greene 
(Iowa)  97. 

Proof  that  the  contract  is  ultra 
vires,  or  that  an  officer  of  the  corpora- 
tion had  no  authority  to  execute  it,  is 
admissible  under  a  general  denial. 
Smith  V.  Hall,  5  Bosw.  (N.  Y.)  319: 
Hall  V.  Auburn  Turnpike  Co.,  27  Cal. 
256,  87Am.  Dec.  75. 

But  evidence  to  show  that  the  con- 
tract sued  on  was  a  wagering  contract 
is  inadmissible  under  a  general  denial. 
Cummiskey  v.  Williams,  20  Mo.  App. 
606. 

In  Stafford  Paving  Co.  v.  Monheim- 
er,  41  N.  Y.  Super.  Ct.  184,  it  was 
doubted  whether  the  invalidity  of  a 
contract  could  be  shown  under  a  gen- 
eral denial. 

See  aAso  post,  XIII.  New  Matter. 

4.  Dunham  v.  Bower,  77  N.  Y.  76, 
33  Am.  Rep.  570;  Weinberg  v.  Blum, 
13  Daly  (N.  Y.)  399;  Chatfield  v. 
Simonson,  92  N.  Y.  209;  Springer  v. 
Dwyer,  50  N.  Y.  19;  Emery  v.  Pease, 
20  N.  Y.  62;  Williams  v.  Slote,  70  N. 
Y.  601;  Manning  v.  Winter,  7  Hun(N. 
Y.)482;  Krom  v.  Levy,  i  Hun(N.  Y.) 
171;  Close  V.  Clark  (C.  PL),  30  N.  Y. 
St.  Rep.  671;  Reed  v.  Hayt,  51  N.  Y. 

19 


Proof  Under         ANSWERS  IN  CODE  PLEADING.    General  Denial. 


Sales. — In  an  action  to  recover  the  price  of  goods  alleged  to  have 
been  sold  and  delivered  to  defendant,  the  defendant  may  show 
under  a  general  denial  that  he  never  incurred  indebtedness  for 
the  price.* 

Notes  and  Bills. — Under  a  general  denial  of  the  execution  of  a 
note  the  proof  is  strictly  limited  to  showing  that  defendant  did 
not  execute  it ;  proof  of  collateral  agreements  nullifying  its  effect 
is  inadmissible.* 

4.  Judgments. — Where,  in  an  action  upon  a  judgment,  the  de- 
fendant, by  a  general  denial,  puts  in  issue  the  existence  of  a 
regular,  valid,  and  legal  judgment,  any  evidence  tending  to  show 
that  the  judgment  is  illegal  or  void  is  competent.* 


Super.  Ct.  121 ;  Moritz  v.  Larsen,  70 
Wis.  569;  Fabric  Fire  &  Hose  Co.  v. 
Bilt  Mfg.  Co.,  39  Fed.  Rep.  98;  Cald- 
well V.  Bruggerman,  4  Minn.  270. 

Where  the  complaint  is  on  a  quan- 
tum fueruit,  evidence  that  the  work 
was  unskilfully  done,  or  worth  less 
than  the  amount  claimed,  is  admissi- 
ble under  a  general  denial.  Raymond  v. 
Richardson,  4  E.  D.  Smith  (N.  Y.)  171. 
See  Bellinger  v.  Craigue,  31  Barb.  (N. 
Y.)  534;  Gates  v.  Preston,  41  N.  Y. 
113;  Trimble  v.  Stillwell,  4  E.  D. 
Smith  (N.  Y.)  512;  Laraway  v.  Per- 
kins, 10  N.  Y.  371.  But  see /^j/,  XIII. 
New  Matter. 

Under  a  denial  that  certain  services 
were  of  the  value  specified,  evidence 
cannot  be  given  tending  to  show  that 
the  services  were  not  rendered.  Van 
Dyke  v.  Maguire,  57  N.  Y.  430. 

1.  Only  Part  Delivered. — That  only 
part  of  the  goods  have  been  delivered 
is  admissible  under  a  general  denial. 
Manning  v.  Winter,  7  Hun  (N.  Y.) 
482.  See  Bormer  v.  Koon,  6  Hun 
(N.  Y.)  645;  Carr  v.  Jackson,  cited  in.  7 
Hun  (N.  Y.)484. 

Agency. — The  defendant  may  show 
that  he  purchased  as  agent  for  an- 
other to  whom  credit  was  given. 
Merritt  v.  Briggs.  57  N.  Y.  651.  Also 
that  the  person  who  sold,  sold  them  as 
his  own,  and  not  as  agent  for  plaintiff. 
Hawkins  v.  Borland,  14  Cal.  413.  And 
also  that  the  alleged  agent  had  no 
authority  to  purchase  for  defendant. 
Hier  v.  Grant,  47  N.  Y.  278;  Day  v. 
Wamsley,  33  Ind.  145. 

Value. — Under  a  general  denial  the 
defendant  may  show  that  the  goods 
sold  were  not  of  the  value  alleged  in 
the  complaint.  Correio  v.  Lynch,  65 
Cal.  274. 

2.  Dunning  v.  Rumbaugh,  36  Iowa 
566. 

8 


Fraud. — Under  a  plea  d«nying  the 
execution  of  a  note,  defendant  may 
prove  that  his  signature  was  pro- 
cured by  fraud.  Corby  v.  Weddle,  57 
Mo.  452.  See  Frisbee  v.  Langworthy, 
II  Wis.  375;  Jenkins  v.  Long,  19  Ind. 
28,  81  Am.  Dec.  374;  Farmer  v.  Cal- 
vert, 44  Ind.  209;  Glazer  v.  Clift,  10 
Cal.  303. 

Delivery. — Under  a  general  denial 
the  defendant  may  show  that  the  note 
sued  on  was  not  delivered.  Fisher  v, 
Hamilton,  48  Ind.  239. 

Alteration. — Evidence  showing  that 
a  note  hes  been  altered  after  execu- 
tion is  admissible  under  a  general  de- 
nial. Bormer  v.  Koon,  6  Hun(N.Y.) 
645;  Schwarz  v.  Oppold,  74  N.  Y.  307; 
National  Bank  v.  Nickell,  34  Mo.  App. 
295;  Walton  Plow  Co.  v.  Campbell,  35 
Neb,  173. 

An  alteration  in  the  date  of  a  bill  of 
exchange  payable  at  a  specified  period 
after  date  is  a  material  alteration;  and 
where  the  bill  is  declared  on  with  its 
altered  date,  the  defense  is  available 
to  the  acceptor  under  a  traverse  of  the 
acceptance.  Hirschman  v.  Budd,  L. 
R.  8  Exch.  171. 

3.  Kinsey  v.  Ford,  38  Barb.  (N.  Y.) 
195- 

The  jurisdiction  of  the  court  render- 
ing the  judgment  sued  on  is  put  in 
issue  under  the  general  denial,  but  the 
merits  of  the  judgment  are  not.  Crone 
V.  Dawson,  19  Mo.  App.  214. 

A  certified  copy  of  the  judgment 
record,  showing  that  the  judgment  has 
been  vacated,  is  admissible.  Kinsey 
V.  Ford,  38  Barb.  (N.  Y.)  195. 

Nul  Tiel  Record.— The  general  de- 
nial answers  to  the  plea  of  nul  tiel  re- 
cord 2i\.  common  law.  Where  a  general 
denial  is  pleaded,  a  further  answer  of 
nul  tiel  record  \%  surplusage.  Westcott 
V.  Brown,  13  Ind.  83. 


Proof  Under         ANSWERS  IN  CODE  PLEADING.   General  Denial. 


Former  Eecovery. — If,  on  the  case  made  by  the  complaint,  the 
defendant  is  not  called  upon  or  has  no  opportunity  to  plead  a 
former  judgment  as  an  estoppel,  it  may  be  received  in  evidence 
under  a  general  denial.* 

5.  Torts. — Trespass  De  Bonis  Asportatis — Under  a  general  denial  in 
an  action  for  taking  or  injuring  plaintiff's  goods,  defendant 
can  show  that  the  goods  taken  or  injured  did  not  belong  to  plain- 
tiff.*-* 

Trover  and  Conversion. — In  an  action  for  the  conversion  of  property 
a  general  denial  puts  in  issue  both  the  conversion  and  the  plain- 
tiff's title  or  right  of  possession.^ 


1.  Clink  V.  Thurston,  47  Cal.  21; 
Jackson  v.  Lodge,  36  Cal.  28;  Flan- 
dreau  v.  Downey,  23  Cal.  358;  Young 
V.  Rumnell,  2  Hill  (N.  Y.)  481,  38  Am. 
Dec.  594;  Norris  v.  Amos,  15  Ind.  365; 
Gans  V.  St.  Paul  F.,  etc.,  Ins.  Co.,  43 
Wis.  108. 

A  judgment  roll  in  a  former  suit, 
which  does  not  constitute  a  bar,  may 
be  used  in  evidence  without  being 
pleaded.  Kelsey  v.  Sargent  (Su- 
preme Ct.),  3  N.  Y.  St.  Rep.  477;  Kre- 
keler  v.  Ritter,  62  N.  Y.  372.  See 
Schlussel  V.  Willett,  34  Barb.  (N.  Y.) 
615. 

Arbitration  and  Award. — An  arbitra- 
tion and  award  upon  the  claim  sued  on 
may  be  proved  under  a  general  denial. 
Jones  V.  McGee,  7  N.   Y.  Wkly.   Dig. 

97. 

Res  Judicata  as  New  Matter.  —  The 
general  rule  is  that  the  defense  of 
former  recovery  is  new  matter,  which 
must  be  pleaded.  Louisville,  etc.,  R. 
Co.  V.  Cauley,  119  Ind.  142.  Seeposf, 
XIII.  New  Matter. 

Contra. — Former  recovery  is  not  new 
matter.  Derby  v.  Hartman,  3  Daly 
(N.  Y.)458. 

2.   Brown  v.  Elliott,  4  Daly  (N.  Y.) 

329- 

In  trespass  dg  bonis  asportatis,  under 
a  denial  of  ownership  evidence  is  ad- 
missible to  show  that  the  sale  under 
which  the  plaintiff  claims  title  was 
made  to  defraud  creditors,  and  is  void. 
Greenway  v.  James,  34  Mo.  326. 

Likewise  evidence  is  admissible  that 
the  taking  was  with  plaintiff's  consent. 
Wallace  v.  Robb,  37  Iowa  192. 

Iowa. — A  defendant  cannot,  under 
an  answer  setting  out  only  a  denial, 
excuse  a  trespass  by  proving  the  right 
of  possession  or  title  in  some  third 
person.  Facts  relied  upon  as  a  de- 
fense must  be  pleaded.  Patterson  v. 
Clark,  20  Iowa  429.     See  also  Dyson 


V.  Ream,  9  Iowa  51;  Hargan  v.  Burch, 
8  Iowa  310;  Hutchinson  &.  Sangster,  4 
Greene  (Iowa)  340. 

3.  Robinson  v.  Frost,  14  Barb.  (N. 
Y.)  536;  Schoenrock  v.  Farley,  49  N. 
Y.  Super.  Ct.  302;  Ely  v.  Ehle,  3  N.  Y. 
506;  Jacobs  V.  Remsen,  12  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)39o;  Beaty  v.  Swar- 
thout,  32  Barb.  (N.  Y.)  293:  McKillip 
V.  Burhaus,  12  N.  Y.  Wkly.  Dig.  185; 
Driscoll  V.  Dunwoody,  7  Mont.  394. 

A  conversion  is  an  assault  on  an 
actual  possession  or  on  the  right  to 
possess.  The  "property"  of  which 
the  plaintiff  is  deprived  by  the  act  of 
conversion — the  subject-matter  of  the 
right  which  is  violated— must  be  some- 
thing which  he  has  the  immediate 
right  to  possess;  only  on  this  condi- 
tion can  the  technical  action  of  trover 
be  maintained.     Pollock  Torts,  289. 

Therefore  the  defendant,  under  a 
general  denial,  may  show  title  or  a 
right  of  possession  in  himself.  Mc 
Clelland  v.  Nichols,  24  Minn.  176; 
Staubach  v.  Rexford,  2  Mont.  565: 
Gaskell  v.  Patton,  58  Iowa  163;  Ed- 
gerly  v.  Bush,  16  Hun  (N.  Y.)  80; 
Brevoort  v.  Brevoort,  40  N.  Y.  Super. 
Ct.  211;  Schoenrock  v.  Farley,  49  N. 
Y.  Super,  Ct.  302.  And  he  may 
show  that,  by  the  laws  of  a  foreign 
country  governing  the  case,  the 
the  title  was  in  himself.  Edgerly  v. 
Bush,  16  Hun  (N.  Y.)  80.  Likewise, 
under  a  general  denial,  the  defendant 
may  show  title  or  the  right  of  posses- 
sion in  a  third  party.  Davis  v.  Hop- 
pock,  6  Duer  (N.  Y.)  254;  Robinson  v. 
Peru  Plow,  etc.,  Co.,  i  Oklahoma 
140. 

The  Conversion. — The  defendant,  un- 
der a  general  denial,  may  introduce 
evidence  of  any  facts  which  disprove 
his  conversion.  Phoenix  Mut.  L.  Ins. 
Co.  V.  Walrath,  53  Wis.  669;  Willard 
V.  Giles,  24  Wis.   319;  Terry  v,  .Mun- 


821 


Proof  Tinder         ANSWERS  IN  CODE  PLEADING.    General  Deuial. 


Eeplevin. — In  replevin,  the  plaintiff's  cause  of  action  depending 
essentially  upon  his  right  to  the  immediate  possession  of  the 
property  in  controversy,  a  general  denial  puts  in  issue  not  only 
such  right  of  possession,  but  every  collateral  fact  necessary  to  the 
establishing  of  the  same ;  a  general  denial  also  puts  in  issue  the 
fact  of  defendant's  wrongful  detainer.* 


ger,  49  Hun  (N.  Y.)  560;  as,  in  the  case 
of  a  common  carrier,  that  he  delivered 
to  a  third  person,  vho,  by  the  course 
of  business  between  the  parties,  was 
apparently  authorized  to  receive,  On- 
tario Bank  v.  New  Jersey  Steamboat 
Co.,  59  N.  Y.  510. 

Fraud  and  Rescission. — Where  it  ap- 
pears that  plaintiff  claims  title  through 
a  sale  by  defendant,  the  defendant, 
under  a  general  denial,  may  show 
fraud  to  avoid  the  sale,  and  his  rescis- 
sion of  it.  Johnson  v.  Oswald,  38 
Minn.  550. 

Conversion  of  a  Note. — In  an  action 
for  the  conversion  of  a  promissory 
note,  under  a  general  denial,  evidence 
on  the  part  of  the  defendant  that  the 
note  was  wrongfully  and  materially 
altered  by  the  payee  after  execution 
and  delivery  is  competent;  likewise, 
under  a  general  denial,  evidence  of 
the  neglect  or  refusal  of  the  maker  of 
a  note  to  pay  it  according  to  its  terms 
is  proper,  in  an  action  for  its  conver- 
sion, upon  the  question  of  value. 
Booth  V.  Powers,  56  N.  Y.  22.  See 
Quin  V.  Lloyd,  41  N.  Y.  349. 

1.  Aultman  v.  Stichler,  21  Neb.  72; 
Richardson  v.  Steele,  9  Neb.  4S3; 
School  Dist.  «'.  Schumacher,  5  Neb.  36; 
Creighton  v.  Newton,  5  Neb.  100; 
Hedman  v.  Anderson,  8  Neb.  180; 
Pulliam  V.  Burlingame,  81  Mo.  m,  51 
Am.  Rep.  229;  Stern  Auction,  etc., 
Co.  -v.  Mason,  16  Mo.  App.  473;  Bosse 
V.  Thomas,  3  Mo.  App.  472;  St.  Louis 
Drug  Co.  V.  Dart,  7  Mo.  App.  590; 
Young  V.  Glascock,  79  Mo.  574;  Holm- 
berg  V.  Dean,  21  Kan.  73;  Bailey  v. 
Bayne,  20  Kan.  657;  Yandle  v.  Crane. 
13  Kan.  344;  Brown  v.  Holmes,  13  Kan. 
482;  Heeron  v.  Beckwith,  i  Wis.  27; 
Child  V.  Child,   13  Wis.   18. 

The  defendant  may  prove  a  right 
of  possession  in  himself.  Sparks  v. 
Heritage,  45  Ind.  66;  Schoenrock  v. 
Farley,  49  N.Y.  Super.  Ct.  302.  See 
Miller  v.  Brigham,  50  Cal.  615. 

Likewise,  under  a  general  denial, 
the  defendant  may  show  a  right  of  pos- 
session in  a  third  person.  Chamber- 
lio   V.  Winn,  i  Wash,  501;  Pulliam  v. 

82 


Burlingame,  81  Mo.  iii,  51  Am.  Rep- 
229;  Young  V.  Glascock,  79  Mo.  574; 
Woodworth  v.  Knowlton,  22  Cal.  164; 
Wetmore  v.  San  Francisco,  44  Cal. 
294;  Kennedy  v.  Shaw,  38  Ind.  474; 
Farmer  v.  Calvert,  44  Ind.  209;  Thomp- 
son V.  Sweetser,  43  Ind.  312;  Davis  v. 
Warfield,  38  Ind.  461;  Sparks  z*.  Heri- 
tage, 45  Ind.  66;  Lane  v.  Sparks,  75 
Ind.  278;  Branch  v.  Wiseman,  51  Ind. 
i;  Wiler  v.  Manley,  51  Ind.  i6g. 

The  statement  that  the  defendant 
may  show  a  right  of  possession  in  a 
third  person  needs  some  explanation. 
Trespass  and  other  violations  of  pos- 
sessory rights  can  be  committed  not 
only  against  the  person  who  is  lawfully 
in  possession,  but  against  any  person 
who  has  legal  possession,  whether 
rightful  in  its  origin  or  not,  so  long  as 
the  intruder  cannot  justify  his  act 
under  a  better  title.  A  mere  stranger 
cannot  be  heard  to  say  that  one  whose 
possession  he  has  violated  was  not  en- 
titled to  possess.  Unless  and  until  a 
superior  title  or  justification  is  shown, 
existing  legal  possession  is  not  only 
presumptive  but  conclusive  evidence 
of  the  right  to  possess.  Therefore  an 
outstanding  claim  of  a  third  party,  the 
jus  tertii,  as  it  is  called,  cannot  be  set 
up  to  excuse  either  trespass  or  conver- 
sion.    Pollock  on  Torts,  300. 

At  common  law,  and  also  under  the 
Revised  Statutes  of  New  York,  there 
were  two  actions  of  replevin,  one  in 
the  cepit  and  one  in  the  dethiet.  In 
replevin  in  the  cepit  the  general  issue 
put  in  issue  only  the  taking.  Under 
the  plea  of  non  cepit  the  defendant 
could  not  show  title  in  himself  or  in  a 
stranger.  As  it  was  necessary  in  such 
an  action  for  the  plaintiff  only  to  show 
that  he  was  in  possession  of  the  prop- 
erty and  that  the  defendant  wrong- 
fully took  it  frcKn  his  possession,  the 
plea  of  non  cepit  only  put  in  issue  the 
wrongful  taking.  Without  more,  prop- 
erty in  a  third  person  could  be  no  de- 
fense to  such  an  action.  Therefore, 
in  order  to  defend  an  action  of  re- 
plevin in  the  cepit,  the  defendant  was 
bound  to  prove  property  either  in  him- 
2 


Proof  Under         ANSWERS  IN  CODE  PLEADING.    General  Denial. 


Malicious  Prosecution. — In  an  action  for  malicious  prosecution,  evi- 
dence to  rebut  the  allegation  of  malice  is  admissible  under  a  gen- 
eral denial.* 

Fraud, — Where  the  ground  on  which  recovery  is  sought  is  fraud, 


self  or  in  a  third  person,  with  which 
he  was  in  some  way  connected  and 
under  which  he  could  justify.  But  in 
an  action  of  replevin  in  the  detinet, 
the  general  issue  put  in  issue  as  well 
the  plaintiff's  property  in  the  goods 
as  the  detention  thereof  by  the  defend- 
ant. And  it  is  in  this  latter  sense, 
where  the  action  is  founded,  not  on  a 
wrongful  taking  and  detention,  but 
only  on  a  wrongful  detention,  that 
under  a  general  denial  the  defendant 
may  show  a  title  in  a  stranger,  with- 
out connecting  himself  with  it.  Grif- 
fin V.  Long  Island  R.  Co.,  loi  N.  Y. 
348;  Siedenbach  v.  Riley,  iii  N.  Y. 
560. 

Replevin  by  Mortgagees.  —  Under  a 
general  denial,  in  an  action  of  replevin 
by  a  mortgagee,  the  defendant  may 
prove  that  the  alleged  mortgage  is  a 
forgery.     Gaudy  v.  Pool,  14  Neb.  98. 

Likewise  the  mortgagor  may  show 
that  the  mortgage  is  void  for  usury. 
Adamson  v.  Wiggins,  45  Minn.  448. 

In  an  action  of  replevin  by  a  mort- 
gagee for  the  possession  of  mortgaged 
property,  the  defendant  in  possession 
may,  for  the  purpose  of  defeating  the 
plaintiff's  right  of  recovery,  prove, 
under  the  general  denial,  a  sale  of  the 
property  by  her  to  the  plaintiff  subse- 
quent to  the  execution  and  delivery  of 
the  mortgage,  and  his  refusal  to  take 
the  goods  and  pay  her  the  contract 
price.  Deford  v.  Hutchison,  45  Kan. 
318. 

The  defendant,  under  a  general  de- 
nial, may  show  that  the  plaintiff  is  a 
mortgagee  of  the  property,  instead  of 
absolute  owner.  O'Neil  v.  Murry,  6 
Dakota  108. 

Fraud. — In  an  action  of  replevin, 
fraud  in  the  acquisition  of  the  plain- 
tiff's title  may  be  proved  by  the  de- 
fendant under  the  general  denial. 
Stern  Auc  ion,  etc.,  Co.  v.  Mason,  16 
Mo.  App.  473;  Sopris  v.  Truax,  i  Colo. 
8g;  Bailey  v.  Swain,  45  Ohio  St.  657; 
Jansen  v.  Effey,  10  Iowa  227;  Branch 
V.  Wiseman,  51  Ind.  i;  Staubach  v. 
Rexford,  2  Mont.  566;  Grum  v.  Barney, 
55  Cal.  254;  Humphreys  z/.  Harkey,  55 
Cal.  283;  Stephens  w,  Hallstead,  58  Cal. 
193.  Contra,  Frisbee  v.  Langworthy, 
11  Wis.  376, 


Demand. — The  absence  and  necessity 
of  demand  before  action  may  be  in- 
sisted upon  by  defendant  under  a  gen- 
eral denial.  Burckhalter  v.  Mitchell, 
27  S.  Car.  240. 

Estoppel. — Matter  of  estoppel  may  be 
availed  of  under  a  general  denial, 
Towne  v.  Sparks,  23  Neb,  143, 

Lien, — The  defendant,  under  a  gen- 
eral denial,  may  show  that  he  has  a 
lien,     Lindsay  v.  Wyatt,  i  Idaho  738, 

Waiver. — Likewise  a  waiver  of  right 
to  the  property  may  be  shown.  Oester 
V.  Sitlington,  15  Mo.  247. 

Kansas. — In  Kansas,  in  replevin,  all 
that  is  necessary  in  order  to  enable  the 
defendant  to  prove  any  defense  which 
he  may  have  is  to  deny  all  the  allega- 
tions of  the  plaintiff's  petition,  Bailey 
V.  Bayne,  20  Kan,  657, 

Nebraska,  —  In  Nebraska,  under  the 
statute,  upon  a  plea  of  general  denial, 
in  actions  of  replevin,  the  defendant 
may  have  affirmative  relief  in  dam- 
ages, Creighton  v.  Newton,  5  Neb, 
100,  See  Merrill  v.  Wedgwood,  25 
Neb.  283. 

1.  Benedict  v.  Seymour,  6  How.  Pr, 
(N,  Y,  Supreme  Ct,)  298;  Ammerman 
V.  Crosby,  26  Ind.  454;  Wilkinson  v. 
Arnold,  11  Ind.  45. 

Probable  Cause.— A  general  denial 
puts  in  issue  the  want  of  probable 
cause.  Rost  v.  Harris,  12  Abb.  Pr. 
(N.  Y,  Super,  Ct,)  446;  Radde  v.  Ruck- 
gaber,  3  Duer  (N,  Y,)  684;  Simpson 
V.  McArthur.  16  Abb,  Pr,  (N,  Y,  C, 
PI.)  302,  note. 

Guilt, — The  defendant,  under  a  gen- 
eral denial,  may  show  the  guilt  of  the 
plaintiff,  Bruley  v.  Rose,  57  Iowa 
651. 

Advice  of  Counsel. — The  defendant 
may  show,  under  a  general  denial, 
that  he  acted  in  good  faith  on  the  ad- 
vice of  counsel.  Sparling  v.  Conway, 
75  Mo.  510;  Levy  v.  Brannan,  39  Cal, 
485.  Compare  Hunter  v.  Mathis,  40 
Ind.  356;  Trogden  v.  Deckard,  45  Ind. 
572;  Scheer  v.  Keown,  34  Wis.  349. 

Grand  Juror. — In  an  action  against  a 
grand  juror  for  malicious  prosecution, 
the  defendant  may,  under  an  answer 
of  general  denial,  avail  himself  of  the 
protection  afforded  him  by  the  law. 
Hunter  v.  Mathis,  40  Ind,  356, 


823 


Proof  Under        ANSWERS  IN  CODE  PLEADING.    General  Denial. 


and  the  facts  constituting  the  fraud  are  alleged  in  the  complaint, 
a  general  denial  puts  the  plaintiff  to  proof  of  it,  and  entitles  the 
defendant  to  prove  all  such  facts  as  disprove  the  fraud.* 

Negligence. — In  an  action  for  damages  for  negligence  the  defend- 
ant, under  a  general  denial,  may  prove  that  he  was  not  negligent, 
and  to  that  end  may  show  whatever  acts  of  prudence  and  caution 
he  employed.* 


1.  Van  Alstyne  v.   Norton,   i    Hun 

(N.Y.)537. 

In  an  action  for  damages  for  fraudu- 
lently concealing  a  defect  in  a  thing 
sold,  the  fact  that  defendant  had  com- 
municated the  defect  to  plaintitiff  is 
admissible  under  a  general  denial. 
Howell  V.  Biddlecom,  62  Barb.  (N.  Y.) 

131- 

And  where  a  complaint  alleged  a 
fraudulent  hypothecation  of  plaintiff's 
securities  to  defendants,  the  dafend- 
ants,  under  a  general  denial,  may  show 
that  they  are  bona-fide  holders  for  value. 
Hennequin  v.  Butterfield,  43  N.  Y. 
Super.  Ct.  411. 

Attacking  Title. — Where  defendant's 
title  is  attacked  on  the  ground  of  fraud, 
he  may,  under  a  general  denial,  intro- 
duce any  proof  showing  that  his  title 
is  not  fraudulent.  Ray  v.  Teabout,  65 
Iowa  157.  Summers  v.  Hoover,  42 
Ind.  153;  as  that  the  conveyance  al- 
leged to  have  been  made  in  fraud  of 
creditors  was  the  conveyance  of  a 
homestead  which  a  debtor  may  convey. 
Hibben  v.  Soyer,  33  Wis.  319. 

2.  Kendig  v.  Overhulser,  58  Iowa 
195;  Stevens  v.  Lafayette,  etc..  Gravel 
Road  Co.,  99  Ind.  392;  Jonesboro,  etc.. 
Turnpike  Co.  v.  Baldwin,  57  Ind.  86; 
Hathaway  v.  Toledo,  etc.,  R.  Co.,  46 
Ind.  25;  Indianapolis,  etc.,  R.  Co.  v. 
Rutherford,  29  Ind.  82,  92  Am.  Dec. 
336;  Jones  V.  Sheboygan  Co.,  42  Wis. 
306. 

In  an  action  against  a  carrier  for 
negligence  in  losing  a  package,  evi- 
dence is  admissible,  under  a  general 
denial,  that  the  package  was  stolen 
without  the  fault  of  the  carrier.  Ad- 
ams Express  Co.  v.  Darnell,  31  Ind.  20. 

Negligence  of  Third  Person. — Under  a 
general  denial  the  fact  that  the  injury 
was  caused  by  the  negligence  of  others 
may  be  shown.  Schular  v.  Hudson 
River  R.  Co.,  38  Barb.  (N.  Y.)  653; 
Schaus  V.  Manhattan  Gas  Light  Co., 
14  Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.) 
371.  See  also  New  Haven,  etc.,  R. 
Co.  V.  Quintard,  6  Abb.  Pr.  N.  S.  (N. 
y.  Super.  Ct.)  128;  Gilbert  v.  Sage,  5 


Lans.  (N.  Y.)  287;  Howell  v.  Biddle- 
com, 62  Barb.  (N.  Y.)  131;  St.  John  i/. 
Skinner,  14  Abb.  Pr.  N.  S.  (N.  Y. 
Super.  Ct.)  371,  note. 

In  an  action  against  a  railroad  com- 
pany for  the  loss  of  goods,  under  a 
general  denial  evidence  is  admissible 
that  the  road  was  not  in  the  control  of 
the  defendants,  but  was  in  the  hands 
of  a  receiver.  Kansas  Pac.  R.  Co.  v. 
Searle,  11  Colo.  i.  See  Merchants' 
Loan  Co.  v.  Clair,  36  Hun  (N.  Y.)  367; 
Corser  v.  Russell,  20  Abb.  N.  Cas.  (N. 
Y.)  316;  Andrews  v.  Miles,  15  N.  Y. 
Wkly.  Dig.  290, 

Negligence  as  a  Defense. — In  an  action 
for  work  and  labor  upon  a  quantuvi 
meruit,  under  a  general  denial  negli- 
gence may  be  shown.  Raymond  v. 
Richardson,  4  E.  D.  Smith  (N.  Y.)  171; 
Bridges  v.  Paige,  13  Cal.  640.  See 
Schermerhorn  v.  Van  Allen,  18  Barb. 
(N.  Y.)  29;  Merritt  v.  Briggs,  57  N.  Y. 
651. 

Ownership. — Under  a  general  denial, 
in  an  action  for  damage  to  plaintiff's 
goods  through  defendant's  negligence, 
defendant  may  show  that  the  goods 
injured  did  not  belong  to  plaintiff. 
Brown  v.  Elliott,  4  Daly  (N.  Y.)  329. 

Contributory  Negligence. — Some  au- 
thorities hold  that  contributory  negli- 
gence need  not  be  specially  pleaded, 
but  is  available  under  the  general 
issue.  See  Earner  v.  Simmons  Hard- 
ware Co.,  10  Mo.  App.  596;  Indianapo- 
lis, etc.,  R.  Co.  V.  Rutherford,  29  Ind. 
82;  Hathaway  v.  Toledo,  etc.,  R.  Co., 
46  Ind.  25;  Evansville,  etc.,  R.  Co.  v. 
Hiatt,  17  Ind.  102;  Jonesboro,  etc.. 
Turnpike  Co.  v.  Baldwin,  57  Ind.  86; 
Jones  z/.  Sheboygan,  42  Wis.  306;  Mc- 
Quade  v.  Chicago,  etc.,  R.  Co.,  68  Wis. 
616;  MacDonell  v.  Buffum,  31  How.  Pr. 
(N.  Y.  Supreme  Ct.)  154;  New  Haven, 
etc.,  Co.  V.  Quintard,  6  Abb.  Pr.  N.  S. 
(N.  Y.  Super.  Ct.)  128.  But  the  prob- 
able weight  of  authority  is  that  con- 
tributory negligence  is  new  matter, 
and  must  be  specially  pleaded.  See, 
for  a  full  treatment  of  this  subject, 
article  Contributory  Negligence. 


824 


Proof  Under         ANSWERS  IN  CODE  PLEADING.  General  Denial. 


6.  Ejectment  and  Other  Matters  Pertaining  to  Real  Estate. — In  an 

action  for  recovery  of  real  property  it  is  sufficient  in  the  defend- 
ant to  deny  generally  the  title  alleged  in  the  petition  ;  and  under 
such  a  denial  he  may  prove  any  fact  tending  to  show  that  plain- 
tiff has  not  the  title,  or  the  right  of  possession.* 


1.  Wicks  V.  Smith,  18  Kan.  508;  Over 
V.  Shannon,  75  Ind.  352;  Tracy  z/.  Kel- 
ley,  52  Ind.  535;  Emily  v.  Harding,  53 
Ind.  102;  Steeple  v.  Downing,  60  Ind. 
478;  Webster  v.  Bebinger,  70  Ind.  9; 
Vanduyn  v.  Hepner,  45  Ind.  589  ; 
Lain  v.  Shepardson,  23  Wis.  224; 
Mather  v.  Hutchinson,  25  Wis.  27  ; 
Raynor  v.  Timerson,  46  Barb.  (N.  Y.) 
518;  Punderson  v.  Love,  3  Tex.  60; 
Rivers  v.  Foote,  11  Tex.  662;  Dalby  v. 
Booth,  16  Tex.  563;  Mann  v.  Falcon, 
25  Tex.  271;  Willson  v.  Cleaveland,  30 
Cal.  192;  Semple  v.  Cook,  50  Cal.  26; 
Jackson  v.  Lodge,  36  Cal.  29;  Northern 
Pac.  R.  Co,  V.  McCormick,  55  Fed. 
Rep.  601. 

Compare  the  following  cases,  which 
hold  that  any  facts  which  show  the  in- 
validity of  the  title  set  up  by  plaintiff 
in  an  action  to  recover  personal  prop- 
erty are  admissible  under  a  general 
denial:  Grum  v.  Barney,  55  Cal.  254; 
Humphreys  v.  Harkey,  55  Cal.  283; 
Stephens  v.  Hallstead,  58  Cal.  193. 

Paramount  Title  in  Defendant. — A  de- 
fendant may,  in  such  an  action,  for 
the  purpose  of  defeating  the  plaintiff's 
title,  show,  under  a  general  denial,  a 
paramount  title  in  himself,  provided 
such  title  carries  with  it  the  right  of 
possession,  whether  such  title  is  legal 
or  equitable,  and  whether  the  plain- 
tiff's title  is  legal  or  equitable.  Clay- 
ton V.  School  District,  20  Kan.  256; 
Hall  V.  Dodge,  18  Kan.  277;  Wicks  v. 
Smith,  18  Kan.  508  ;  Armstrong  v. 
Brownfield,  32  Kan.  116;  Bancroft  v. 
Chambers,  10  Kan.  364;  Mastin  v. 
Gray,  19  Kan.  467,  27  Am.  Rep.  149; 
Mitchell  V.  Insley,  33  Kan.  658;  Bruck 
V.  Tucker,  42  Cal.  346;  Marshall  v. 
Shafter,  32  Cal.  177;  Sneed  v.  Osborn, 
25  Cal.  630;  Roberts  v.  Columbet,  63 
Cal.  22;  Daniels  v.  Henderson,  49  Cal. 
242,  an  action  to  recover  rents  and 
profits;  Stone  v.  Bumpus,  40  Cal.  429, 
an  action  to  abate  a  nuisance. 

Title  in  Third  Person.— The  plaintiff 
in  an  action  of  ejectment  must  always 
recover  on  the  strength  of  his  own 
title,  not  on  the  weakness  of  the  de- 
fendant's. Therefore  the  defendant, 
under  a   general   denial,  in   order   to 


show  that  plaintiff  is  not  entitled  to 
the  possession,  may  show  title  out  of 
the  plaintiff,  and  in  a  third  person,  at 
the  time  of  the  commencement  of  the 
action.  Raynor  v.  Timerson,  46  Barb. 
(N.  Y.)  518. 

But  the  right  to  set  up  title  in  a  third 
person  is  limited.  Ejectment  is  a  mere 
possessory  action;  if  the  plaintiff  suc- 
ceeds, all  that  is  necessarily  proved 
is  that  he  has  a  right  to  be  put  in  pos- 
session. If  the  plaintiff  had  an  actual 
possession,  without  title,  this  will  war- 
rant a  recovery  against  a  defendant 
who  has  no  title,  but  only  a  subse- 
quent possession.  Where  no  title  ap- 
pears on  either  side,  a  prior  posses- 
sion will  prevail  over  a  subsequent 
one.  Title  in  a  third  person,  then, 
can  be  shown  under  a  general  denial 
only  when  such  a  title  carries  with  it 
the  right  to  possession.  If  the  defend- 
ant, as  a  mere  trespasser,  has  violated 
the  plaintiff's  actual  possession,  it  is 
no  defense  that  a  third  person  has 
title. — Bird  v.  Lisbros,  9  Cal.  i,  70  Am. 
Dec.  617;  Bledsoe  v.  Simms,  53  Mo, 
308;  Crockett  v.  Morrison,  11  Mo.  3. 
See  Smith  v.  Lorillard,  10  Johns.  (N. 
Y.)  338;  Dicey  on  Parties,  486. 

Under  a  general  denial  a  party  may 
prove  title  in  his  wife.  Bledsoe  v. 
Simms,  53  Mo.  305. 

Abandonment. — The  fact  that  the 
plaintiff,  or  those  under  whom  he 
claims,  had  abandoned  the  land  may 
be  shown  under  a  general  denial.  Bird 
V.  Lisbros,  9  Cal.  i,  70  Am.  Dec.  617; 
Kimball  v.  Gearhart,  12  Cal.  50;  Bell  v. 
Brown,  22  Cal.  672;  Willson  v.  Cleave- 
land, 30  Cal.  192;  Bell  V.  Bed  Rock 
Tunnel,  etc.,  Co.,  36  Cal.  214;  Moren- 
haut  V.  Wilson,  52  Cal.  263. 

Ouster. — In  an  action  of  ejectment  by 
one  tenant  in  common  against  another, 
the  ouster  is  admitted  by  a  general 
denial.  La  Riviere  v.  La  Riviere,  77 
Mo.  512. 

Mining  Eules. — Mining  rules  and 
customs  in  proof  of  ownership  maybe 
given  in  evidence  under  a  general 
denial.  Colman  v.  Clements,  23  Cal. 
245- 

Estoppel.— It  is  doubtful  whether,  in 


825 


Pioof  Under         ANSWERS  IN  CODE  PLEADING.  General  Denial. 


Forcible  Entry  and  Detainer. — In  an  action  of  forcible  entry  and  de- 
tainer, all  matters  of  legal  excuse,  justification,  or  avoidance  can 
be  given  in  evidence  by  the  defendant  under  a  general  denial,* 

Action  to  Quiet  Title. — In  a  proceeding  under  the  statute  to  quiet 
title,  where  the  answer  is  a  general  denial,  the  issue  of  the  plain- 
tiff's possession  is  the  only  issue  under  the  pleadings.* 

Trespass  Quare  Clausum  Fregit. — In  trespass  qiiare  claiisum  /regit  it 
is  incumbent  on  the  plaintiff  to  show  that  he  was  in  the  actual 
possession  of  the  premises  at  the  time  of  the  alleged  trespass,  and 
the  defendant  may  prove,  under  a  general  denial,  any  fact  which 
shows  that  plaintiff  was  not  in  possession.* 

Action  on  Warranty. — In  an  action  for  a  breach  of  the  covenant 
of  warranty,  the  defendant,  under  a  general  denial,  may  show 
that  there  was  no  paramount  title."* 

The  Statute  of  Limitations — Ordinarily  the  statute  of  limitations  is 
new  matter  to  be  pleaded.  But  in  cases  of  ejectment  some 
authorities  hold  that,  where  the  statute  operates,  it  vests  the 
absolute  title  to  the  property,  and  that  there  is  no  more  necessity 
of  pleading  it  than  though  defendant  held  the  plaintiff's  title.^ 


ejectment,  estoppel  can  be  proved 
under  a  general  denial.  Creque  v. 
Sears,  17  Hun  (N.  Y.)  123. 

Fraud. — Under  a  general  denial  the 
defendant  may  show  that  a  deed  in 
plaintiff's  chain  of  title  was  procured 
by  fraud.  Staley  v.  Housel,  35  Neb. 
160;  Franklin  v.  Kelley,  2  Neb.  80. 

May  Attack  Plaintiffs  Title  in  Any 
Manner.  —  The  defendant,  when  he 
pleads  the  general  denial,  may  attack 
plaintiff's  title  in  any  manner;  he  may 
show  that  the  proceedings  by  which  it 
was  acquired  are  invalid  and  void. 
Benton  v.  Hatch,  43  Hun  (N.  Y.)  142,  a 
sheriff's  deed,  held  to  be  invalid;  Kipp 
V.  Bullard,  30  Minn.  84,  and  Mobley 
V.  Griffin,  104  N.  Car.  112,  both  cases 
where  the  execution  sale  was  invalid 
because  it  conveyed  a  homestead  ; 
Roberts  v.  Chan  Tin  Pen,  23  Cal.  260, 
where  the  tax  deed  under  which  plain- 
tiff claimed  was  allowed  to  be  shown 
invalid;  Miles  v.  Lingerman,  24  Ind. 
3S5,  the  case  of  an  infant's  deed;  Fra- 
ser  V.  Charleston,  11  S.  Car.  486,  the 
defense  of  title  diverted  by  equitable 
assignment;  Hickman  v.  Link,  97  Mo. 
483,  allowing  the  defendant  to  engraft 
a  trust  on  a  deed. 

Oregon. — In  an  action  of  ejectment, 
where  the  defendant  merely  traverses 
the  allegations  in  the  complaint ,  and 
does  not  set  up  title  in  himself  or  an- 
other, the  defendant  will  be  confined 
in  his  evidence  to  such  facts  only  as 
tend  to  show  the  weakness  of  the  plain- 


tiff's title.     Phillippi  v.  Thompson,  8 
Oregon  428. 

1.  Watson  V.  Whitney,  23  Cal.  376. 

2.  Murphy  v.  De  France,  23  Mo. 
App.  337- 

3.  Uttendorffer  v.  Saegers,  50  Cal. 
496,  where  the  defendant  w^as  allowed 
to  prove  that  a  tenant  of  the  plaintiff 
was  in  the  actual  possession.  See 
Earl  V.  Bowen,  3  N.  Y.  Wkly.  Dig. 
461,  where  the  defendant  offered  in 
evidence,  under  a  general  denial,  a 
judgment  in  a  former  action  of  tres- 
pass, for  the  purpose  of  proving  that 
he  was  formerly  in  possession  of  the 
locus  in  quo. 

Texas. — In  Texas,  in  an  action  "quare 
clausum  fregit,  the  general  issue  is  not 
a  denial  of  the  plaintiff's  possession. 
Carter  v.  Wallace,  2  Tex.  206. 

4.  Rhode  v.  Green,  26  Ind.  83.  See 
Walker  v.  Fleming,  37  Kan.  171. 

The  ownership  of  realty  as  a  pro- 
bative fact  may  be  given  in  evidence 
under  the  general  issue  when  owner- 
ship of  personalty  is  the  fact  in  issue. 
Grewell  v.  Walden,  23  Cal.  165. 

5.  Nelson  v.  Brodhack,  44  Mo.  596, 
100  Am.  Dec.  328:  Bledsoe  v.  Simms, 
53  Mo.  305;  Campbell  v.  Laclede  Gas 
Light  Co..  84  Mo.  352;  Fulkerson  v. 
Mitchell,  82  Mo.  13;  Hill  v.  Bailey,  76 
Mo.  454;  Davis  v.  Peveler,  65  Mo. 
189;  Goff  V.  Roberts,  72  Mo.  570;  Fair- 
banks V.  Long,  91  Mo.  628;  Stocker  v. 
Green,  94  Mo.  2S0;  Holmes  v.  Kring, 
93  Mo.  452;  Vail  V.  Halton,   14  Ind. 


826 


Denial  as  a  Plea  ANSWERS  IN  CODE  PLEADING,      in  Abatement. 


The  Statute  of  Frauds. — Likewise  some  authorities  hold  that  those 
contracts  touching  land  which  the  Statute  of  Frauds  requires  to  be 
in  writing  are  void  if  not  so,  and  that  the  statute  may  be  relied 
on  under  a  general  denial.* 

7.  Mitigating  Circumstances. — Mitigating  circumstances  and  par- 
tial defenses  are  new  matter  to  be  specially  pleaded  ;  but  under  a 
general  denial  the  question  of  actual  damages  is  raised,  and  it 
has  been  held  that  all  mitigating  circumstances  which  migiit  at 
common  law  have  been  given  in  evidence  under  the  general  issue 
may  still  be  given  under  a  general  denial.* 

XL  The  General  Denial  as  a  Plea  in  Abatement. — The  gen- 
eral denial  does  not  perform  the  functions  of  a  plea  in  abatement. 
Under  the  Code  system  of  pleading  the  general  denial  is  in  one 
respect  equivalent  to  the  general  issue  at  common  law  ;  it  does 
not  put  in  issue  the  plaintiff's  title  to  sue.^     The  incapacity  of 


344.  See  Punderson  v.  Love,  3  Tex. 
60;  Rivers  v.  Foote,  11  Tex.  662; 
Dalby  v.  Booth,  16  Tex.  563;  Mann  v. 
Falcon,  25  Tex.  271;  Maxwell  z/.  Camp- 
bell, 45  Ind.  360;  Watkins  v.  Jones,  28 
Ind.  12;  Evansville  v.  Evans,  37  Ind. 
229;  Wicks  V.  Smith,  18  Kan.  508; 
Powers  V.  Armstrong,  36  Ohio  St.  357; 
Vore  V.  Woodford,  29  Ohio  St.  245. 
And  see  article  Limitations,  Statute 
OF,  and  this  article, /^j/,  XIII.  6. 

1.  Wis  well  V.  Tefft,  5  Kan.  263;  Allen 
V.  Richards,  83  Mo.  55;  Springer  v. 
Kleinsorge,  83  Mo.  152;  Schergens  v. 
Wetzell,  12  Mo.  App.  596;  Hook  v. 
Turner,  22  Mo.  333  ;  Bernhardt  v. 
Walk,  29  Mo.  App.  206  ;  Smith  v. 
Theobold,  86  Ky.  141.  But  see  Graff 
V.  Foster,  67  Mo.  512;  Donaldson  v. 
Newman,  9  Mo.  App.  235;  Gordon  v. 
Madden,  82  Mo.  193.  And  see  article 
Frauds,  Statute  of,  and  this  article, 
post,  XIII.  7. 

2.  Wandell  v.  Edwards,  25  Hun  (N. 
Y.)  498;  Beardsley  v.  Bridgman,  17 
Iowa  290;  Smith  v.  Lisher,  23  Ind.  500. 
See  Ronan  v.  Williams,  41  Iowa  680; 
Davenport  Gas  Light,  etc.,  Co.  v. 
Davenport,  15  Iowa  6;  Peck  v.  Par- 
chen,  52  Iowa  46;  Martin  v.  Swear- 
ingen,  17  Iowa  346;  Desmond  v.  Brown, 
33  Iowa  13  ;  McClintock  v.  Crick,  4 
Iowa  453  ;  Marker  v.  Dunn,  68  Iowa 
720. 

In  an  action  for  conversion  partial 
satisfaction  by  one  tort  feasor  may  be 
given  in  evidence  under  the  general 
denial.  Muser  v.  Lewis,  14  Abb.  N. 
Cas.  (N.  Y.  Super.  Ct.)  333. 

In  an  action  to  recover  damages  for 
the  alienation  of  the  affections  of 
plaintiff's  wife,  evidence  to  show  that 

8 


he  and  his  wife  did  not  live  happily 
together,  and  that  the  wife  had  no 
affection  for  plaintiff,  and  that  he  lost 
nothing  by  deprivation  of  her  society, 
is  admissible  under  a  general  denial. 
Edwards  v.  Nichols,  21  N.  Y.  Wkly. 
Dig.  238. 

And  under  a  general  denial,  in  an 
action  for  breach  of  promise,  evidence 
that  the  plaintiff  drank  to  excess  is 
admissible  in  mitigation  of  damages. 
Button  V.  McCauley,  5  Abb,  Pr.  N.  S. 
(N.  Y.  Ct.  of  App.)  29. 

Libel  and  Slander. — Under  the  gen- 
eral denial,  in  an  action  for  libel,  the 
defendant  may  prove  the  truth  of  the 
charge,  not  as  a  defense,  but  in  miti- 
gation not  only  of  punitive,  but  also 
of  compensatory  damages.  Halstead 
V.  Schempp,  6  Cine.  L.  Bull.  (Ohio) 
271. 

And  in  slander  the  general  bad 
character  of  plaintiff  may  be  shown 
under  a  general  denial.  Anonymous, 
8  How.  Pr.  (N.  Y.  Supreme  Ct.)  434. 
Contra,  Anonymous,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)  160. 

In  Indiana,  matters  in  mitigation,  in 
actions  for  libel  and  slander,  should 
be  specially  pleaded,  but  in  all  other 
actions  they  are  admissible  under  a 
general  denial.  Smith  v.  Lisher,  23 
Ind.  500. 

3.  White  V.  Moses,  11  Cal.  70; 
Cheatham  v.  Riddle,  12  Tex.  112; 
Clifton  V.  Lilley,  12  Tex.  130;  Tram- 
mel! V.  Swan,  25  Tex.  473;  Downs  v. 
McCombs,  16  Ind.  211;  Harrison  v. 
Martinsville,  etc.,  Co.,  16  Ind.  505,  79 
Am.  Dec.  447;  Heaston  v.  Cincinnati, 
etc.,  R.  Co.,  16  Ind.  275,  79  Am.  Dec. 
430;  Jones  V.  Cincinnati  Type  Foundry 
27 


Denial  as  a  Plea  ANSWERS  IN  CODE  PLEADING,      in  Abatement 


the  plaintiff  to  sue  will  be  waived  if  a  mere  general  denial  is  used. 
The  point  must  be  taken  afifirmatively  in  the  answer.* 

Existence  of  a  Corporation. — No  corporation,  either  foreign  or 
domestic,  is  required  to  prove  its  corporate  existence  when  the 
general  denial  alone  is  used.  Such  a  form  of  denial  does  not 
raise  the  issue.* 


Co.,  14  Ind.  89;  Sandford  v.  McCreedy, 
28  Wis.  103;  Ewen  z/.  Chicago,  etc.,  R. 
Co.,  38  Wis.  613. 

But  where  the  plaintiff  sued  as  "  ex- 
ecutrix and  residuary  legatee,"  and 
the  answer  alleged  that  defendant  had 
no  knowledge  or  information  sufficient 
to  form  a  belief  as  to  that  averment,  it 
was  held  that  the  plaintiff,  under  this 
form  of  denial,  must  prove  her  ca- 
pacity. Wittmann  v.  Watry,  37  Wis. 
238. 

Missouri. — In  Missouri  a  general  de- 
nial puts  in  issue  the  incorporation  of 
the  plaintiff,  where  the  incorporation 
■  is  not  by  public  act,  and  the  suit  is  not 
upon  a  contract  made  with  the  plaintiff 
under  the  name  by  which  it  sues. 
Girls'  Industrial  Home  v.  Fritchey,  10 
Mo.  App.  344.  See  Farmers',  etc., 
Bank  v.  Williamson,  61  Mo.  259. 

And  an  allegation  in  the  petition 
that  the  plaintiff  is  administrator  is 
put  in  issue  by  a  general  denial.,  Gil- 
more  V.  Morris,  13  Mo.  App.  114.  See 
State  V.  Price,  21  Mo.  434. 

1.  Dillaye  v.  Parks,  31  Barb.  (N.  Y.) 
132;  Castree  v.  Gavelle,  4  E.  D.  Smith 
(N.  Y.)425. 

The  defense  that  plaintiff  is  a  mar- 
ried woman  and  has  not  legal  capacity 
to  sue  cannot  be  proved  under  a  gen- 
eral denial.  Dillaye  v.  Parks,  31 
Barb.  (N.  Y.)  132. 

The  appointment  of  a  guardian  ad 
litem  for  an  infant  plaintiff  is  not  put 
in  issue  by  a  general  denial.  Schenck 
V.  Hagar,  24  Minn.  339.  See  Fetz  v. 
Clark,  7  Minn.  217;  Fogle  v.  Schaeffer, 
23  Minn.  304. 

That  there  is  a  defect  of  parties 
plaintiff  cannot  be  proved  under  a  gen- 
eral denial.  Abbe  v.  Clark,  31  Barb. 
(N.  Y.)238. 

Compare  the  following  cases:  U.  S. 
V.  Shoup,  2  Idaho  459;  Erskine  v.  Wil- 
son, 20  Tex.  77;  Gregg  v.  Johnson,  37 
Tex.  558;  Compton  v.  Western  Stage 
Co.,  25  Tex.  Supp.  67. 

2.  Williams  Reaper  Co.  v.  Smith,  33 
Wis.  530;  Central  Bank  v.  Knowlton, 
12  Wis.  624,  78  Am.  Dec.  769;  Connec- 
ticut Mut.  L.  Ins.  Co.  V.  Cross,  18  Wis. 


109;  Farmers'  Trust  Co.  v.  Fisher,  17 
Wis.  114;  National  L.  Ins.  Co.  v.  Rob- 
inson, 8  Neb.  452;  Zunkle  v.  Cun- 
ningham, 10  Neb.  162;  Dietrich  v.  Lin- 
coln, etc.,  R.  Co.,  13  Neb.  43;  Herron 
V.  Cole,  25  Neb.  692;  Bank  of  Havana 
V.  Wickham,  7  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  134;  Bank  of  Genesee  v. 
Patchin  Bank,  13  N.  Y.  312;  Palmetto 
Lumber  Co.  v.  Risley,  25  S.  Car.  309; 
American  Button-Hole,  etc.,  Co.  v. 
Hill,  27  S.  Car.  164;  St.  Anthony  Falls 
Water  Power  Co.  v.  King  Bridge  Co., 
23  Minn.  186,  23  Am.  Rep.  682;  Wood- 
son V.  Milwaukee,  21  Minn.  60;  In- 
dianapolis Furnace,  etc.,  Co.  v.  Herki- 
mer, 46  Ind.  142;  Cicero  Hygiene 
Draining  Co,  v.  Craighead,  28  Ind. 
274;  Heaston  v.  Cincinnati,  etc.,  R, 
Co.,  16  Ind.  275,  79  Am.  Dec.  430; 
Dunning  v.  New  Albany,  etc.,  R.  Co,, 
2  Ind.  437;  Railsbach  v.  Liberty,  etc, 
Turnpike  Co.,  2  Ind.  656;  Hubbard  v. 
Chappel,  14  Ind.  601;  Price  v.  Grand 
Rapids,  etc.,  R.  Co.,  18  Ind.  137.  See 
article  Corporations. 

Denial  of  Knowledge. — Nor  does  a 
general  denial  of  knowledge  or  infor- 
mation put  the  corporate  existence  in 
issue.  Liberian  Exodus  Joint  Stock 
Steamship  Co.  v.  Rodgers,  21  S.  Car, 
27- 

Contract  with  View  to  Organize. — 
Where  the  contract  sued  on  is  one 
made  with  an  existing  corporation,  the 
general  denial  is  an  admission  of  the 
corporate  existence;  but  where  the 
contract  is  made  with  a  view  to  the 
organization  of  a  corporate  body, 
the  plaintiff,  after  a  general  denial, 
must  prove  its  incorporation.  Chance 
V.  Indianapolis,  etc.,  Gravel  Road  Co., 
32  Ind.  472;  Wert  v.  Crawfordsville, 
etc.,  Turnpike  Co.,  19  Ind.  242;  Will- 
iams V.  Franklin  Tp.  Academical 
Assoc,  26  Ind.  310. 

Incorporation  of  Defendant. — The  con- 
verse of  the  rule  that  a  plaintiff  cor- 
poration need  not  prove  its  existence 
when  a  general  denial  is  interposed  is 
equally  true.  Thus,  vrhere  an  action 
is  brought  against  a  defendant  by  a 
name  implying  a  corporation,  and  in 


828 


General  Denial     ANSWERS  IN  CODE  PLEADING. 


Limited. 


Partnership. — An  allegation  of  the  existence  of  a  partnership  is 
admitted  by  a  general  denial.* 

XII.  The  General  Denial  Limited  in  Scope  by  Statute. — Some 
of  the  States  have  by  statutory  provision  limited  the  scope  of  the 
general  denial  in  certain  cases.  Texas  has  a  statute  to  the  effect 
that  when  an  action  is  founded  on  any  instrument  or  note  in 
writing  its  execution  must  be  denied  by  afifidavit.*-*  In  lozva  the 
genuineness  of  a  signature  to  a  written  instrument  must  be  de- 
nied in  writing  under  oath.^  In  Indiana  the  general  denial  does 
not,  unless  sworn  to,  put  in  issue  the  execution  of  a  written  in- 
strument,*    Missouri  provides  by  statute  that  the  execution  of  a 


that  name  such  defendant  forms  an 
issue  by  general  denial  and  goes  to 
trial,  it  is  not  necessary  for  the  plain- 
tiff to  introduce  any  evidence  of  the 
existence  of  the  corporation.  Adams 
Express  Co.  v.  Hill,  43  Ind.  157. 

New  York. — The  statute  which  ab- 
solves the  plaintiff  from  proving  its 
corporate  existence  unless  mil  tiel 
corporation  is  pleaded  applies  only  to 
corporations  created  by  a  statute  of 
the  state.  Under  a  general  denial  a 
foreign  corporation  must  prove  its 
corporate  character.  Waterville  Mfg. 
Co.  V.  Bryan,  14  Barb.  (N.  Y.)  182. 

Likewise  a  general  denial  will  com- 
pel a  joint  stock  association  to  prove 
its  existence.  Saltsman  v.  Shults,  14 
Hun  (N.  Y.)256. 

1.  Fisk  V.  Tank,  12  Wis.  306,  78  Am. 
Dec.  737;  Whitman  v.  Wood,  6  Wis. 
676;  Martin  v.  American  Express  Co., 
19  Wis.  336;  Lee  v.  Hamilton,  12  Tex. 
413;  Congdon.  v.  Monroe,  51  Tex.  109; 
Drew  V.  Harrison,  12  Tex.  279;  Per- 
sons V.  Frost,  25  Tex.  Supp.  129; 
Lewis  V.  Lowery,  31  Tex.  663;  Cash- 
ing V.  Smith,  43  Tex.  261. 

2.  Art.  2262  Sayles  Tex.  Civil  Sts. 
vol.  i.  704.  A  general  denial  does  not 
put  the  plaintiff  upon  proof  of  the 
execution  of  the  note  sued  on.  Bed- 
well  V.  Thompson.  25  Tex.  Supp.  245; 
Able  V.  Chandler,  12  Tex.  88,  62  Am. 
Dec.  518:  Kinnard  v  Herlock,  20  Tex. 
48;  Lewin  v.  Houston,  8  Tex.  94.  But 
the  plaintiff  must  produce  the  note. 
Davis  V.  Marshall,  25  Tex.  372;  Bed- 
well  V.  Thompson,  25  Tex.  Supp.  245; 
Matossy  v.  Frosh,  9  Tex.  610;  Bond  v. 
Mallow,  17  Tex.  636.  But  if  the  note 
is  alleged  to  be  lost  a  general  denial 
puts  in  issue  its  execution.  Erskine 
V.  Wilson,  20  Tex.  77. 

A  general  denial  in  a  suit  to  estab- 
lish a  rejected  claim  against  an  estate 
puts  the  plaintiff  on  proof  of  such  ac- 
count.    Kendall  v.  Riley,  45  Tex.  20. 


3.  Hall  V.  ^tna  Mfg.  Co.,  30  Iowa 
215.  But  the  statute  providing  that 
the  signature  to  a  written  instrument 
shall  be  deemed  genuine  unless  de- 
nied under  oath  relates  only  to  the 
genuineness  of  the  signature,  and  the 
defendant  in  an  action  on  a  note  may, 
under  a  plea  of  non  est  factum,  not 
under  oath,  show  that  he  never  signed 
the  instrument  sued  on.  Lake  v. 
Cruikshank,  31  Iowa  375. 

And  the  denial  of  the  "execution" 
of  the  note  sued  on  is  not  sufficient  to 
cast  upon  the  plaintiff  the  burden  of 
proving  the  genuineness  of  the  signa- 
ture, but  will  permit  the  defendant  to 
prove  that  the  signature  is  not  genu- 
ine.    Sully  V.  Goldsmith,  49  Iowa  690. 

The  act  of  1853  did  not  require  an 
answer  to  an  action  on  a  note,  deny- 
ing any  indebtedness,  and  the  execu- 
tion of  the  note,  to  be  verified.  Lyon 
V.  Bunn,  6  Iowa  49.  See  also  Seachrist 
V.  Griffiths,  6  Iowa  390;  Partridge  v. 
Patterson,  6  Iowa  514;  Sheldon  v. 
Middleton,  10  Iowa  17;  Tannon  v. 
Robinson,  10  Iowa  272;  Hall  v.  ^tna 
Mfg.  Co.,  30  Iowa  215;  Carle  v.  Cor- 
nell, II  Iowa  374;  Twogood  v.  Coop- 
ers, 9  Iowa  415;  Taylor  v.  Runyan,  9 
Iowa  522;  Wolff  V.  Hagensick,  10 
Iowa  590;  Markey  v.  Mettler,  i  Iowa 
528;  Shepard  v.  Ford,  10  Iowa  502; 
Gilbert  v.  Mosier,  11  Iowa  498;  Mitch- 
ell V.  Moore,  24  Iowa  394. 

4.  Evans  v.  Southern  Turnpike  Co., 
18  Ind.  loi.  And  the  general  denial 
must  be  verified  if  it  puts  in  issue  the 
genuineness  of  an  indorsement.  Steb- 
bins  V.  Goldthwait,  31  Ind.  159. 

Compare  the  following  California 
cases,  which  hold  that  a  general  de- 
nial to  an  unverified  complaint  on  a 
note  puts  indorsement  in  issue:  Gro- 
gan  V.  Ruckle,  i  Cal.  159;  Youngs  v. 
Bell,  4  Cal.  201;  Hastings  v.  Dollar- 
hide,  18  Cal.  391;  Mahe  v.  Reynolds, 
38  Cal.  560.     But  it  is  otherwise  if  the 


829 


ireT7  Matter.        ANSWERS  IN  CODE  PLEADING.   General  Nature. 

written  instrument  must  be  specifically  denied  under  oath.* 

Conditions  Precedent. — Some  states  have  statutes  which  allow  the 
plaintiff  to  aver,  generally,  that  he  has  performed  all  the  con- 
ditions precedent  on  his  part  to  be  performed  ;  but  thi^  does  not 
allow  the  defendant  to  controvert  such  allegation  by  a  general 
denial.* 

XIII.  New  Matter. — 1.  General  Nature — Definition. — "  New  mat- 
ter "  means  matter  extrinsic  to  the  matter  set  up  in  the  complaint 
as  the  basis  of  the  cause  of  action.^ 

Must  be  Pleaded. — It  is  a  settled  rule  of  Code  pleading  that  new 
matter  by  way  of  confession  and  avoidance  must  be  specially 
pleaded.* 


action  is  against  an  indorser  on  his 
indorsement.  Mahe  v.  Reynolds,  38 
Cal.   560. 

But  a  general  denial,  not  sworn  to, 
will  compel  the  plaintiff  to  produce 
the  note.   Hicks  v.  Reigle,  32  Ind.  360. 

The  statute  prescribing  that  the 
execution  of  a  writing  shall  be  denied 
on  oath  applies  only  where  the  writ- 
ing offered  in  evidence  purports  to 
have  been  executed  by  an  actual  party 
to  the  instrument.  Riser  v.  Snoddy, 
7  Ind.  442,  65  Am.  Dec.  740.  And  in 
an  action  against  an  administrator  or 
executor  on  a  note  of  the  decedent  an 
unverified  general  denial  puts  in  issue 
the  execution  of  the  instrument.  Ca- 
wood  V.  Lee,  32  Ind.  44;  Mahon  v. 
Sawyer,  18  Ind.  73;  Riser  v.  Snoddy, 
7  Ind.  442,  65  Am.  Dec.  740. 

1.  The  objection  that  a  bond  sued 
on  has  no  seal  will  not  be  considered 
unless  the  execution  is  denied  under 
oath;  a  general  denial  does  not  raise 
the  issue.  State  v.  Chamberlin,  54 
Mo.  338. 

2.  Preston  z/.  Roberts,  12  Bush  (Ky.) 
571.  Compare  Tisdale  v.  Mitchell,  12 
Tex.  68. 

3.  Manning  v.  Winter,  7  Hun  (N. 
Y.)  482.  New  matter  is  where  the 
contract  is  admitted,  and  the  matter 
set  up  avoids  the  contract — not  where 
the  matter  set  up  denies  the  contract. 
Gilbert  v.  Cram,  12  How.  Pr.  (N.  Y. 
Supreme  Ct.)  455;  Stoddard  v.  Onon- 
daga Annual  Conference,  12  Barb.  (N. 
Y.  573;  Wabrod  v.  Bennett,  6  Barb. 
(N.  Y.)  144;  Radde  v.  Ruckgaber,  3 
Duer  (N.  Y.)  684;  Bellinger  v.  Craigue, 
31  Barb.  (N.  Y.)  534;  Brazil!  v.  Isham, 
12  N.  Y.  9;  Carter  v.  Koezley,  14  Abb. 
Pr.  (N.  Y.  Super.  Ct.)  147. 

A  defense  that  concedes  that  plain- 
tiff once  had  a  good  cause  of  action, 


but  insists  that  it  no  longer  exists,  in- 
volves new  matter.  Churchill  v.  Bau- 
mann,  gs  Cal.  542;  Piercy  z/.  Sabin,  10 
Cal.  22,  70  Am.  Dec.  692;  Greenway 
V.  James,  34  Mo.  326;  Evans  v.  Will- 
iams, 60  Barb.  (N.  Y.)  347. 

New  matter  is  the  averment  of  facts 
different  from  those  alleged  in  the 
complaint,  and  not  embraced  within 
the  judicial  inquiry  into  their  truth. 
Lupo  V.  True,  16  S.  Car.  586;  Hudson 
V.  Wabash  Western  R.  Co.,  loi  Mo. 
13:  Northrup  v.  Mississippi  Valley 
Ins.  Co.,  47  Mo.  444,  4  Am.  Rep.  337; 
Bridges  v.  Paige,  13  Cal.  641. 

New  matter  is  that  which  under  the 
rules  of  evidence  the  defendant  must 
affirmatively  establish.  If  the  onus 
of  proof  is  thrown  upon  the  defend- 
ant, the  matter  to  be  proved  by  him 
is  new  matter.  Piercy  v.  Sabin,  10 
Cal.  22,  70  Am.  Dec.  692;  Glazer  v. 
Clift,  10  Cal.  304;  McCarty  v.  Roberts, 
8  Ind.  150. 

Whatever  averments  of  the  answer 
amount  to  an  admission  of  the  allega- 
tions of  the  complaint,  and  tend  to  es- 
tablish some  fact  not  inconsistent  with 
such  allegations,  are  new  matter. 
Mauldin  v.  Ball,  5  Mont.  96. 

Answer  by  Infant. — The  same  rules 
which  determine  what  new  matter  is 
in  the  case  of  adults  obtain  in  the 
case  of  an  answer  by  an  infant.  It  is 
the  duty  of  a  guardian  ad  litem  to  as- 
certain the  facts  pertining  to  the  con- 
troversy intrusted  to  him,  and,  if  they 
constitute  new  matter,  to  plead  them. 
Roe  V.  Angevine,  7  Hun  (N.  Y.)679. 
Compare  Sawyer  v.  Gates  (Supreme 
Ct.),  14  N.  Y.  St.  Rep.  236. 

4.  California. — Ladd  v.  Stevenson, 
I  Cal.  18;  Kendall  v.  Vallego,  i  Cal. 
371  ;  Gaskill  v.  Moore,  4  Cal.  233; 
Piercy  v.   Sabin,  10  Cal.  22,  70  Am. 


830 


New  Matter.       ANSWERS  IN  CODE  PLEADING. 


Pleading. 


2.  Manner  of  Pleading — introductory. — The  right  to  rely  on  the  de- 
fense pleaded  must  be  affirmatively  shown  by  the  answer,*    and 

Dec.  692;  Coles  v.  Soulsby,  21  Cal.  47; 
Goddard  v.  Fulton,  21  Cal.  430;  Mc- 
Comb  V.  Reed,  28  Cal.  281,  87  Am. 
Dec.  115;  McDonald  v.  Davidson,  30 
Cal.  173;  Moss  V.  Shear,  30  Cal.  469; 
Ayres  v.  Bensley,  32  Cal.  620. 

Nebraska.  —  Quick  v.  Sachasse,  31 
Neb.  312. 

Wisconsin. — Gay  v.  Fret  well,  9  Wis. 
186. 

North  Carolina. — Johnson  v.  Bell,  74 
N.  Car.  355- 

Texas. — Smith  v.  Sherwood,  2  Tex. 
460;  Keeble  v.  Black,  4  Tex.  69;  Love 
V.  Mclntyre,  3  Tex.  10  ;  Ulims  v.  Mit- 
chell, I  Tex.  443. 

New  York. — McKyring  v.  Bull,  r6 
N.  Y.,  297,  69  Am.  Dec.  696;  Venice 
V.  Breed,  65  Barb.  (N.  Y.)  598;  Catlin 
V.  Gunter,  i  Duer  (N.  Y.)  253;  Allen  v. 
Mercantile  Mut.  Ins.  Co.,  46  Barb. 
(N.  Y.)  642;  Ayrault  v.  Chamberlain, 
33  Barb.  (N.  Y.)  229;  Jacobs  v.  Rem- 
sen,  36  N.  Y.  668;  Carter  v.  Koezley, 
14  Abb.  Pr.  (N.  Y.  Super.  Ct.)  147; 
Tilson  V.  Clark,  45  Barb.  (N.  Y.)  178; 
Savage  v.  Corn  Exch.,  etc.,  Nav.  Ins. 
Co.,  4  Bosw.  (N.  Y.)  i;  Fry  v.  Ben- 
nett, 28  N.  Y.  324;  Beaty  v.  Swarth- 
out,  32  Barb.  (N.  Y.)  293;  Rapalee  v. 
Stewart,  27  N.  Y.  310;  Dingeldein  v. 
Third  Ave.  R.  Co.,  9  Bosw.  (N.  Y.)  79; 
Pier  V.  Finch,  29  Barb.  (N.  Y.)  170; 
Mechanics  Bank  v.  Foster,  44  Barb. 
(N.  Y.)  87;  Morrell  v.  Irving  F.  Ins. 
Co.,  33  N.  Y.  429;  83  Am.  Dec.  396. 

Evidence  of  Defense  Not  Set  Up. — A 
defendant  will  not  be  allowed  to  give 
evidence  of  a  defense  not  set  up  in  his 
answer.  Diefendorff  v.  Gage,  7  Barb. 
(N.  Y.)  18  ;  Button  v.  McCauley,  38 
Barb.  (N.  Y.)  413;  Baker  v.  Bailey,  16 
Barb.  (N.  Y.)  54;  Wright  v.  Delafield, 
25  N.  Y.  266;  Fay  v.  Grimsteed,  10 
Barb.  (N.  Y.)  321;  Kelsey  v.  Western, 
2  N.  Y.  501  ;  Sandford  v.  Travers,  7 
Bosw.  (N.Y.)498;  New  York  Cent.  Ins. 
Co.  V.  National  Protection  Ins.  Co., 
20  Barb.  (N.  Y.)  468;  Field  v.  New 
York,  6  N.  Y.  179;  Bucknam  v.  Brett, 
13  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  119. 

And  an  affirmative  defense  is  of  no 
avail  if  not  pleaded,  though  the  testi- 
mony discloses  it.  Dingeldein  v.  Third 
Ave.  R.  Co.,  9  Bosw.  (N.  Y.)  79,  where 
the  illegality  in  a  contract  sued  on 
was  shown  by  the  evidence.  See  also 
Paige  V.  Willet,  38  N.  Y.  28;  New  York 
Cent.  Ins.  Co.  v.  National  Protection 


Ins.  Co.,  14  N.  Y.  85;  Richards  v.  Al- 
len, 3  E.  D.  Smith  (N.  Y.)  399. 

Allegation  on  Information  and  Belief. 
— Affirmative  matter  in  an  answer  may 
be  alleged  "  upon  information  and  be- 
lief "  with  the  same  effect  as  in  a  com- 
plaint. Risden  v.  Davenport  (S.  Dak., 
1894),  57  N.  W.  Rep.  482.  Thus,  in 
an  answer,  an  allegation  of  payment 
upon  information  and  belief  is  suffi- 
cient. First  Nat.  Bank  v.  Roberts,  2 
N.  Dak.  195. 

The  Insertion  of  Superfluous  Allegations 
in  the  Complaint  does  not  make  such 
allegations  merely  traversable  by  de- 
fendant. If  they  are  of  new  matter 
their  anticipation  by  plaintiff  does  not 
relieve  defendant  from  pleading  them. 
Hyde  v.  Hazel,  43  Mo.  App.  671. 

New  Matter  as  Complete  Defense.  — 
When  the  new  matter  set  up  in  the 
answer  amounts  to  a  complete  defense, 
it  is  not  necessary  to  traverse  any  of 
the  allegations  of  the  petition.  Kort- 
zendorfer  v.  St.  Louis,  52  Mo.  204. 

South  Carolina. — The  Code  in  this 
state  does  not  recognize  special  pleas. 
Smith  V.  Chamberlain,  38  S.  Car.  530. 

1.  Gillett  V.  Hill,  32  Iowa  220. 

An  Answer  to  One  Count  of  a  com- 
plaint should  specify  to  which  count  it 
is  intended  to  apply.  Kneedler  v. 
Sternbergh,  10  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  68. 

Stating  Distinct  Grounds  of  Defense. — 
An  answer  which  fails  to  state  sepa- 
rately the  distinct  grounds  of  defense 
will  be  rejected  if  excepted  to  in  apt 
time.  Keathley  v.  Branch,  88  N.  Car. 
379- 

Putting  Court  in  Possession  of  Facts. — 
A  pleader  who  would  resist  the  collec- 
tion of  notes  given  in  the  purchase  of 
lands  must  by  his  allegations  put  the 
court  in  possession  of  all  the  facts 
necessary  to  enable  it  to  do  complete 
equity.  Cooper  v.  Singleton,  19  Tex. 
260,  70  Am.  Dec.  333. 

Setting  Out  Proofs.  —  But  a  defend- 
ant, having  stated  a  defense,  is  not 
bound  so  to  define  it,  or  rather  enlarge 
it,  as  to  set  out  the  proofs  by  which  it 
is  to  be  established.  Pacific  Mail  S. 
S.  Co.  V.  Irwin,  67  Barb.  (N.  Y.)  277. 

Setting  Up  Supposed  Claim  for  Plaintiff. 
— The  defendant  cannot  set  up  a  sup- 
posed or  presumed  ground  of  claim 
for  plaintiff  and  then  plead  to  it  him- 
self, and  thus  put  the  plaintiff  to  the 


831 


New  Matter. 


ANSWERS  IN  CODE  PLEADING. 


Pleading. 


care  must  be  taken  to  insert  in  the  answer  allegations  sufficient 
to  support  every  element  and  constituent  part  of  the  defense.* 

Giving  Color. — An  answer  seeking  to  avoid  the  complaint  by  new 
matter  should  confess,  directly  or  by  implication,  that  but  for  the 
matter  of  avoidance  contained  in  it  the  action  could  be  main- 
tained.'-* 


necessity  of  pleading  to  it  also.  Kil- 
bourne  v.  Lockman,  8  Iowa  380.  Thus, 
where  an  answer  purports  to  admit  a 
certain  fact,  as  stated  in  the  petition, 
and  the  petition  does  not  state  any 
such  fact,  held,  that  the  answer  will 
not  be  construed  as  alleging  affirma- 
tively that  such  fact  exists,  so  as  to 
require  the  plaintiff  to  reply  thereto. 
Hoisington  v.  Armstrong,  22  Kan.  no. 

Yet  where  the  complaint  avers  a 
fact,  qualified  by  a  particular  inten- 
tion, the  answer  may  admit  the  fact 
and  deny  the  intention.  Kingsley  v. 
Oilman,  12  Min.  515. 

1.  An  answer  of  tender,  omitting  to 
allege  that  the  money  has  been  paid 
into  court,  does  not  state  facts  suffi- 
cient to  constitute  a  defense,  and  plain- 
tiff may  avail  himself  of  the  objection 
upon   trial.     Becker  v.  Boon,  61  N.  Y. 

317- 

Where  a  consideration  is  necessary 
to  support  a  release,  in  pleading  the 
release  as  a  defense  the  consideration 
for  it  must  also  be  pleaded.  Peters  v. 
Clements,  52  Tex.  140. 

In  pleading  a  pending  attachment  or 
garnishment  as  a  defense,  the  defend- 
ant should  show  whether  the  whole  or 
any  portion  of  the  debt  has  been  at- 
tached or  garnished.  Clark  v.  Mar- 
bourg,  33  Kan.  471. 

Although  by  statute  the  performance 
of  conditions  precedent  in  a  contract 
may  be  stated  generally,  if  the  defend- 
ant relies  on  a  failure  to  perform  them, 
this  is  new  matter,  and  the  answer 
must  specify  the  particulars  in  which 
such  conditions  have  not  been  per- 
formed. Preston  v.  Roberts,  12  Bush 
(Ky.)57i. 

In  further  illustration  of  the  rule 
stated  in  the  text,  see  Baskin  v.  Godbe, 
I  Utah  28;  Hager  v.  Blake,  16  Neb. 
12  ;  O'Donohue  v.  Hendrix,  13  Neb. 
257;  Burlington,  etc.,  R.  Co.  v.  Kear- 
ney County,  17  Neb.  515  ;  State  v. 
Manning,  55  Mo.  142  ;  Krause  v, 
Thomas,  53  Minn.  209;  Huyler  v.  Da- 
honey,  48  Tex.  234;  Welborn  v.  Nor- 
wood, I  Tex.  CiT.  App.  614;  Hyde  v. 
Kitchin,  21  N.  Y.  Supp.  238,  66  Hun 
(N.  Y.)  633. 


Allegation  of  Legal  Notice. — The  alle- 
gation, "after  due  notice,  as  required 
by  law,"  is  a  sufficient  allegation  of  a 
legal  notice.  State  v.  Nolan,  99  Mo. 
570. 

Where  it  is  necessary  to  give  a  notice 
in  writing  the  surety  may  avail  him- 
self of  a  written  notice  to  the  holder 
to  sue  the  maker,  under  an  averment 
in  the  answer  that  he  had  requested 
plaintiff  to  sue  the  maker,  without  an 
allegation  that  the  notice  was  in  writ- 
ing.    Coats  V.  Swindle,  55  Mo.  31. 

Not  Real  Party  in  Interest. — A  mere 
allegation  that  the  plaintiff  is  not  the 
real  party  in  interest  is  not  sufficient. 
The  facts  must  be  set  out  which  will 
enable  the  court  to  say  that  the  plain- 
tiff is  not  the  real  party  in  interest. 
Lamson  v.  Falls,  6  Ind.  309;  Raymond 
V.  Pritchard,  24  Ind.  318;  Heretti  v. 
Smith,  33  Ind.  514. 

But  in  an  action  upon  a  judgment, 
an  allegation  in  the  answer  that 
plaintiff  is  not,  but  that  another  per- 
son, naming  him,  is  the  owner  of  such 
judgment,  presents  a  good  defense, 
though  the  particulars  of  the  assign- 
ment are  not  stated.  Holcombe  v. 
Tracy,  2  Minn.  241. 

2.  McMurray  v.  Gifford,  5  How.  Pr. 
(N.  Y.  Supreme  Ct.)  15;  Tobias  v. 
Rogers,  3  Code  Rep.  (N.  Y.)  156; 
State  V.  Williams,  48  Mo.  210;  Howes 
V.  Carver,  7  Iowa  491;  Hutchinson  v. 
Sangster,  4  Greene  (Iowa)  340;  Martin 
V.  Swearengen,  17  Iowa  346;  Anson  v. 
Dwight,  18  Iowa  241;  Morgan  v. 
Hawkeye  Ins.  Co.,  37  Iowa  359. 

Pleading  conditionally,  or  in  the  al- 
ternative, is  not  allowable.  Bauer  v. 
Wagner,  39  Mo.  385. 

But  the  confession  may  be  by  impli- 
cation as  well  as  directly.  See  Mor- 
gan V.  Hawkeye  Ins.  Co.,  37  Iowa 
359,  where  the  answer  was  held  to 
sufficiently  confess  by  implication  a 
cause  of  action;  also  Abbott  v.  Sar- 
tori,  57  Iowa  656,  where  the  answer 
was  held  not  to  contain  sufficient  con- 
fession to  warrant  proof  of  matter  in 
avoidance. 

But  in  an  Action  for  Slander  the  de- 
fendant may  allege  mitigating  circum- 


832 


New  Matter.       ANSWERS  IN  CODE  PLEADING. 


Pleading. 


Payment. — The  rule  as  to  the  degree  of  certainty  required  in  the 
plea  of  payment  is  the  same  as  that  in  other  pleas ;  facts  which 
constitute  the  evidence  of  payment  need  not  be  stated.* 

Fraud. — A  general  plea  of  fraud  is  subject  to  demurrer.  The 
specific  statements  and  acts  relied  upon  as  constituting  the  fraud 
must  be  set  out.* 


stances  without  confessing  the  speak- 
ing of  the  words.  Desmond  v.  Brown, 
33  Iowa  13.  See  McClintock  v.  Crick, 
4  Iowa  453;  Marker  v.  Dunn,  68  Iowa 
720. 

1.  Wells  V.  Fairbank,  5  Tex.  582; 
Cartwright  v.  Jones,  13  Tex.  i.  An 
allegation  of  payment,  without  show- 
ing that  the  payment  was  made  on  ac- 
count of  the  claim  sued  upon,  is  in- 
sufficient. Each  V.  Hardy,  22  Minn. 
65.  A  plea  of  paymertt  in  general 
terms  is  good  if  not  excepted  to.  Hol- 
liman  v.  Rogers,  6  Tex.  91.  See  First 
Nat.  Bank  v.  Bews,  2  Idaho  1175; 
Phillips  V.  Jarvis,  19  Wis.  204,  where 
the  pleas  of  payment  were  held  good. 
And  see  Manufacturers'  Nat.  Bank  v. 
Russell,  6  Hun  (N.  Y.)  375,  and  State 
V.  Central  Pac.  R.  Co.,  9  Nev.  79, 
where  the  pleas  of  payment  were  held 
defective. 

A  plea  of  payment  to  the  assignor 
of  a  chose  in  action  must  allege  that 
the  payment  was  made  before  notice 
of  the  assignment.  Indianapolis,  etc., 
R.  Co.  V.  Hyde,  122  Ind.  188.  Compare 
Shauverz/.  Philips  (Ind.  App.,  1893), 32 
N.  E.  Rep.  1131;  Holzhauer  v.  Heine, 
37  Mo.  443. 

Specifying  Time. — A  plea  of  payment 
need  not  specifically  state  the  several 
times  when  partial  payments  were 
made;  a  general  plea  of  payment  is 
sufficient.  Hendrix  v.  Gore,  8  Oregon 
407. 

Contra. — The  plea  should  be  specific 
as  to  time.  Hahn  v.  Broussard,  3 
Tex.  Civ.  App.  48i;Grayz'.  McFarland. 
29  Tex.  163;  O'Neal  v.  Phillips,  83  Ga. 
556. 

Stating  Amount. — A  payment  may  be 
pleaded  without  naming  the  amount 
paid.  Bobb  v.  Bancroft,  13  Kan.  123; 
Joy  V.  Cooley,  19  Mo.  645.  Contra, 
Hahn  v.  Broussard,  3  Tex.  Civ.  App. 
481. 

What  May  Be  Pleaded  as  Payment. — 
Any  valid  agreement  between  the  par- 
ties which  would  operate  to  discharge 
the  debt  may  be  pleaded  as  a  pay- 
ment. McLaughlin  v.  Webster,  141 
N.  Y.  76;  Wheeler  v.  Faurot,  37  Ohio 


St.  27;  Hart  V.  Crawford,  41  Ind.  197; 
Wolcott  V.  Ensign,  55  Ind.  70.  Contra, 
Able  V.  Lee,  6  Tex.  427.  See  Lowry  v. 
Shane,  34  Ind.  495;  Farmers',  etc.. 
Bank  v.  Sherman,  33  N.  Y.  69;  Hoddy 
V.  Osborn,  9  Iowa  517;  Pemberton  v. 
Simmons,  100  N.   Car.  317. 

But  under  a  plea  of  payment  evi- 
dence going  to  excuse  wtJwpayment  is 
inadmissible.  Voak  v.  National  In- 
vestment Co.,  51  Minn.  450. 

2.  Minnesota. — Cummings  v.  Thomp- 
son, 18  Minn.  246;  Brown  v.  Manning, 
3  Minn.  13,  74  Am.  Dec.  736;  Kelley 
V.  Wallace,  14  Minn.  173. 

Indiana. — Joest  v.  Williams,  42  Ind. 
565,  13  Am.  Rep.  377;  Ham  v.  Greve, 
34  Ind.  18;  Curry  v.  Keyser,  30  Ind. 
214;  Keller  v.  Johnson,  n  Ind.  337,  71 
Am.  Dec.  355;  Fankbouer  v.  Fanlc- 
bouer,  20  Ind.  62;  Jenkins  v.  Long, 
19  Ind.  28,  8r  Am.  Dec.  374. 

Iowa. — Ockendon  v.  Barnes,  43 
Iowa  615;  Mills  V.  Collins,  67  Iowa 
164;  Hale  V.  Walker,  31  Iowa  344,  7 
Am.  Rep.  137. 

Missouri.  —  Hoester  v.  Samuelmann, 
loi  Mo.  619;  Casey  v.  Smales,  4  Mo.  77; 
Moore  v.  Thompson,  6  Mo.  353;  JoUiffe- 
V.  Collins,  21  Mo.  338;  Hill  v.  Miller, 
36  Mo.  182;  Smalley  v.  Hale,  37  Mo. 
102;  Wood  V.  Evans,  43  Mo.  App.  230; 
Jones  V.  St.  Louis,  etc.,  R.  Co.  79 
Mo.  92;  Martin  v.  Lutkewitte,  50  Mo. 
58;  Peers  z*.  Davis.  29  Mo.  184;  Hodges 
V.  Torrey,  28  Mo.  103;  Duffy  v. 
Byrne,  7  Mo.  App.  418. 

jVew  York. — McMurray  v.  Gifford,  5 
How.  Pr.  (N.  Y.  Supreme  Ct.)  14. 

California.  — Orov'iWe,  etc.,  R.  Co.  v. 
Plumas  County,  37  Cal.  355;  Capuro  t'. 
Builders'  Ins.  Co.,  39  Cal.  123;  Gushee 
V.  Leavitt,  5  Cal.  160. 

See  Hale  v.  Walker,  31  Iowa  344,  7 
Am.  Rep.  137,  and  Foy  v.  Haughton, 
83  N.  Car.  467,  where  the  pleas  of 
fraud  were  held  insufficient.  See^also 
Van  Wy  v.  Clark,  59  Ind.  259,  where 
the  defense  of  fraud  was  held  suffi- 
ciently stated. 

In  a  defense  upon  the  ground  of 
fraudulent  representations  it  is  not 
sufficient  to  aver  that  the  representa- 


I  Encyc.  PI.  &  Pr.— 53. 


^Z3 


New  Matter.       ANSWEES  IN  CODE  PLEADING. 


Pleading. 


Want  of  Consideration. — The  answer  of  a  want  of  consideration  may 
consist  of  the  general  statement  that  there  was  no  consideration, 
without  any  further  or  more  particular  statement.* 

Justification. — A  plea  of  justification  must  state  particularly  the 
the  matters  relied  on.* 


tions  were  false;  the  pleader  must 
show  wherein  they  were  false.  Specht 
V.  Allen,  12  Oregon  117. 

But  to  Avoid  the  Estoppel  of  a  Judg- 
ment it  is  sufficient  to  allege  that  it  was 
obtained  by  fraud,  without  stating  the 
facts  that  constitute  the  fraud.  Edgell 
V.  Sigerson,  20  Mo.  494. 

In  Pleading  a  Fraudulent  Issue  of 
Bonds  it  is  not  sufficient  to  do  so  in 
general  terms.  Specific  facts  consti- 
tuting the  presumption  of  fraud  must 
be  alleged.  Cummings  v.  Lawrence 
County,  I  S.  Dak.  15S. 

Fraudulent  Conveyance. — An  allega- 
tion that  a  conveyance  was  made  with 
intent  to  delay  and  defraud  the  grant- 
or's creditors  is  sufficient  as  an  allega- 
tion of  fraud.  Probert  v.  McDonald, 
2  S.  Dak.  495. 

1.  Hunter  v.  McLaughlin,  43  Ind. 
45;  Bush  V.  Brown,  49  Ind.  573,  19 
Am.  Rep.  695;  Webster  v.  Parker,  7 
Ind.  185;  Ohio  Thresher,  etc.,  Co.  v. 
Hensel  (Ind.  App.,  1894),  36  N.  E.  Rep. 
716;  Williams  v.  Mellon, 56  Mo. 262.  See 
Barr  v.  Baker,  9  Mo.  850;  Doan  v. 
Mass.  20  Mo.  297;  Smith  v.  Hutchin- 
son, 61  Mo.  83;  Lindell  v.  Rokes,  60 
Mo.  249,  21  Am.  Rep.  395;  Merrick  v. 
Phillips,  58  Mo.  436;  Bennett  v.  Tor- 
lina,  56  Mo.  309;  Myers  v.  Van  Wag- 
oner, 56  Mo.  115;  Sumner  v.  Summers, 
54  Mo.  340;  Porter  v.  Jones,  52  Mo. 
399;  Hamilton  v.  Marks,  63  Mo.  167; 
Williams  v.  Jensen,  75  Mo.  681. 

The  statement  that  there  was  a  total 
failure  of  consideration  is  a  statement 
of  a  conclusion  of  law.  German  Bank 
V.  Mulhall,  8  Mo.  App.  558. 

It  has  been  held  that  a  plea  of  want 
of  consideration  in  general  terms  is 
subject  to  a  motion  for  a  more  specific 
statement.  Simpson  Centenary  Col- 
lege V.  Bryan,  50  Iowa  293.  But  if 
no  motion  is  made  the  objection  is 
waived.  Chamberlain  v.  Painesville, 
etc.,  R.  Co.,  15  Ohio  St.  225. 

In  an  action  on  a  note  given  for  the 
price  of  land  an  answer  averring  fail- 
ure of  consideration  inconsequence  of 
a  defect  in  the  title  must  set  out  in 
what  the  defect  consists.  Staley  v. 
Ivory,  65  Mo.  74;    Copeland  v.  Loan, 


10  Mo.  266;  Morrow  v.  Bright,  20  Mo. 
298;  Clifton  V.  Brundage,  25  Tex.  331; 
And  a  copy  of  the  deed  must  be  filed 
with  the  answer.  Mahoney  v,  Rob- 
bins,  49  Ind.  147. 

Counterclaim. — A  plea  of  want  of 
consideration  is  a  technical  defense, 
not  a  counterclaim.  Jolliffe  v.  Collins, 
21  Mo.  339.  But  if  the  answer  alleges 
facts  sufficient  to  constitute  either  the 
defense  of  want  of  consideration  or 
that  of  a  recoupment  of  damages,  it  is 
not  necessary  for  defendant  to  state 
which  he  will  rely  upon;  and  if  he  so 
states,  he  will  not  be  precluded  from 
insisting  upon  any  defense  which  the 
facts  alleged  will  justify.  Springer  v. 
Dwyer,  50  N.  Y.  20. 

2.  Barley  v.  Cannon,  17  Mo.  595. 
It  must  identify  the  trespass  justified 
with  that  complained  of.  Isley  v. 
Huber,  45  Ind.  421. 

In  pleading  an  order  of  a  township 
board  for  the  opening  of  a  road  as  a 
justification  to  an  action  for  trespass, 
it  is  necessary  to  plead  specially  the 
facts  which  authorized  the  board  to 
make  the  order,  or  to  state  generally 
that  the  order  was  duly  made.  Rob- 
inson V.  Jones,  71  Mo.  582. 

The  answer  to  a  petition  to  recover 
damages  for  the  loss  of  goods  cast 
overboard  by  the  carrier  must  show  al! 
the  facts  necessary  to  justification  of 
the  jettison.  Bentley  v.  Bustard,  16 
B.  Mon.  (Ky.)  643,  63  Am.  Dec.  561. 

Arrest  and  Imprisonment. — A  plea 
justifying  the  arrest  of  the  plaintiff, 
on  the  ground  that  a  crime  had  been 
committed,  and  that  there  was  reason- 
able ground  to  suspect  and  accuse  the 
plaintiff,  must  distinctly  state  the  rea- 
sons for  so  suspecting  him.  Boynton 
V.  Tidwell,  19  Tex.  118.  And  the  an- 
swer must  identify  the  arrest  justified 
with  that  complained  of.  Gallimore 
V.  Ammerman,  39  Ind.  323. 

Slander. — An  ansv/er  merely  stating 
that  the  words  spoken  are  true  is  not 
sufficient  as  a  justification;  it  should 
state  the  facts  constituting  the  crime 
or  offense  imputed  so  that  an  issue  of 
either  law  or  fact  may  be  found.  At- 
teberry  v.  Powell,  29  Mo.  429,  77  Am. 


834 


Hew  Matter.       ANSWERS  IN  CODE  PLEADING. 


Pleading. 


Usury. — An  answer  setting  up  usury  must  aver  clearly  every 
particular  necessary  to  establish  the  usury  charged,  and  must 
distinctly  negative  every  supposable  fact  which,  if  true,  would 
render  the  transaction  innocent  or  lawful.* 

Illegality  of  Contract. — Where  the  illegality  of  a  contract  sued  on  is 
relied  on  as  a  defense,  the  answer  must  specify  wherein  it  is  ille- 
gal,  and  all  the  facts  going  to  render  it  void  must  be  pleaded.* 
•  Duress. — An  answer  setting  up  duress  and  coercion  must  aver 
the  facts  constituting  it.^ 

Accord  and  Satisfaction. — A  plea  of  accord  and  satisfaction  must 
state  that  the  matter  relied  upon  as  an  accord  was  accepted  as  a 
satisfaction  by  the  creditor.* 

Estoppel  in  Pais. — An  estoppel  in  pais  should  be  pleaded  with 
particularity.^ 


Dec.  579.  And  see  George  v.  Lemon, 
19  Tex,  150;  Trimble  v.  Foster,  87  Mo. 
49,  56  Am.   Rep.  440 

After  verdict  in  an  action  of  slander 
it  is  too  late  to  object  to  the  insuffi- 
ciency of  the  justification  set  forth  in 
the  answer.  Evans  z/.  Franklin,  26  Mo. 
252.     See  article  Libel  and  Slander. 

1.  Gaston  v.  McLeran,  3  Oregon 
389;  Clayes  v.  Hooker,  4  Hun  (N.  Y.) 
231;  Rountree  v.  Brinson,  98  N.  Car. 
107;  Moore  v.  Woodward,  83  N.  Car. 
531;  Oldham  v.  Bank,  85  N.  Car.  241. 
The  Code  has  not  altered  the  rule  that 
the  defense  of  usury  must  be  distinct- 
ly set  up  in  the  plea  or  answer,  and 
that  the  terms  of  the  usurious  agree- 
ment and  the  quantum  of  the  usurious 
interest  or  premium  must  be  distinctly 
and  dorrectly  set  up.  Manning  v. 
Tyler,  21  N.  Y.  567;  Anglo-American 
Land,  etc.,  Co.  v.  Brohman,  33  Neb. 
409;  Keim  v.  Avery,  7  Neb.  54. 

But  see  Gebhart  v.  Sorrels,  9  Ohio 
St.  462,  where  the  plea  of  usury  was 
held  good,  although  it  failed  to  nega- 
tive exceptions  in  the   usury  statute. 

As  Counterclaim. — When  usury  is  set 
up  without  it  being  stated  whether  it 
is  set  up  as  a  defense  or  as  a  counter- 
claim, it  will  be  deemed  to  be  set  up 
as  a  strict  defense,  and  that  only. 
Burrall  v.   De  Groot,   5  Duer  (N.  Y.) 

379- 

2.  In  a  suit  to  recover  on  a  note 
the  answer  set  up  that  the  note  was 
based  on  a  "  gambling  transaction." 
Held,  that,  in  the  absence  of  specific 
averments  stating  what  the  real  char- 
acter of  the  transaction  was,  an  ex- 
ception to  that  portion  of  the  answer 
was  properly  sustained.  McCamant 
V.  Batsell.  59  Tex.  363. 

The  defense  that  a  note  was  given 


for  a  wager  upon  an  election  must 
state  that  the  election  was  one  author- 
ized by  law,  and  what  particular  elec- 
tion it  was.  Sybert  v.  Jones,  19  Mo. 
86. 

An  answer  alleging  that  money  was 
advanced  for  an  illegal  purpose  must 
also  state  that  it  was  so  used.  Howell 
V.  Stewart,  54  Mo.  400. 

And  where  the  illegality  of  a  con- 
tract is  relied  on  as  a  defense,  the  an- 
swer must  state  that  the  plaintiff  had 
knowledge  of  the  illegality  and  partici- 
pated in  it.  Wallace  v.  Lark,  12  S. 
Car.  578. 

Superfluous  Allegation. — If  the  facts 
which  show  that  the  contract  was  un- 
lawful are  set  out,  there  is  no  neces- 
sity to  aver  the  mere  conclusion  of 
law,  that  the  consideration  was  illegal. 
Mofifatt  V.  Bulson,  96  Cal.  106. 

3.  Richardson  z/.  Hittle,  31  Ind.  119; 
Connecticut  L.  Ins.  Co.  v.  McCormick, 
45  Cal.  580. 

It  must  be  distinctly  stated  by  whom 
the  duress  was  made.  An  allegation 
of  duress  by  one  will  not  sustain  proof 
of  duress  by  another.  Lord  v.  Lind- 
say, 18  Hun  (N.  Y.)484. 

4.  Wilkerson  v.  Bruce,  37  Mo.  App. 
156;  Shaw  V.  Burton,  5  Mo.  478.  But 
a  failure  in  this  respect  cannot  be 
taken  advantage  of  after  verdict. 
Wilkerson  v.  Bruce,  37  Mo.  App.  156. 

An  allegation  that  the  notes  have 
been  "  satisfied  and  discharged  "  does 
not  constitute  a  plea  of  accord  and 
satisfaction.  Hogan  v.  Burns  (Cal., 
1893),  33  Pac.  Rep.  631.  See  article 
Accord  and  Satisfaction,  and  post, 
XIII,  8,  s. 

5.  McKeen  v.  Naughton,  88  Cal. 
462;  Buck  V.  Milford,  90  Ind.  291; 
Stewart  v.  Beck,  90  Ind.  458;  Robbins 


835 


New  Matter.        ANSWERS  IN  CODE  PLEADING. 


Pleading. 


Res  Judicata. — The  party  relying  upon  a  former  adjudication  as  a 
defense  must  aver  in  his  answer  in  what  court  the  judgment  was 
rendered,  and  must  plead  facts  showing  that  the  recovery  was 
upon  the  same  subject-matter  and  between  the  same  parties,  or 
their  privies,  as  the  suit  in  which  the  defense  of  res  judicata  is 
made,  and  must  aver  that  the  judgment  is  in  full  force.* 

Statute  of  Limitations. — The  statute  of  limitations  is  properly 
pleaded  only  by  alleging  the  facts  which  would  make  the  statute 
apphcable.* 

Equitable  Defenses.— The  defendant  may  set  up  an  equitable  de- 
fense in  an  action  at  law,  but  if  he  relies  on  an  equitable  right  of 
action  as  a  defense,  he  must  plead  the  same  as  fully  as  if  he  were 
bringing  an  action  in  equity.* 

Contributory  Negligence.— A  plea  of  contributory  negligence  should 
set  out  the  facts  constituting  the  negligence.* 


V.  Magee,  76  Ind.  381;  Lash  v.  Ren- 
dell,  72  Ind.  475.  As  to  what  suffi- 
ciently pleads  an  estoppel  in  pais,  see 
Barnhart  v.  Fulkerth,  90  Cal.  157;  also 
Texas  Banking,  etc.,  Co.  v.  Hutchins, 
53  Tex.  61,  37  Am.  Dec.  750,  where 
the  plea  was  held  defective  for  want 
of  certainty. 

It  should  commence,  "that  the 
plaintiff  ought  not  to  be  admitted  to 
allege."  Page  v.  Smith,  13  Oregon 
413. 

1.  Spargar  v.  Romine,  38  Neb.  736; 
Thomas  v.  Thomas,  33  Neb.  373; 
Montrose  v.  Wanamaker,  134  N.  Y. 
590;  Nave  V.  Adams,  107  Mo.  419; 
Field  V.  Sims,  96  Ala.  540;  McCreary 
V.  Jones,  96  Ala.  592.  See  Brandt  v. 
Albers,  6  Neb.  504,  and  Smith  v. 
Downey  (Ind.  App.,  1893),  35  N.  E. 
Rep.  568,  where  the  plea  was  held  in- 
sufficient. 

A  plea  of  former  recovery  in  eject- 
ment, as  to  a  part  of  the  demanded 
premises,  should  describe  the  land 
which  was  in  contest  in  the  former 
action.   Anderson  v.  Fisk,  36  Cal.  626. 

2.  Walker  v.  Laney,  27  S.  Car.  150; 
Maple  V.  Cincinnati  R.  Co.,  40  Ohio 
St.  313;  Turner  v.  Shuffler,  108  N.  Car. 
643;  Hartson  v.  Hardin,  40  Cal.  264; 
McCollister  v.  Willey,  52  Ind.  382; 
Templeton  v.  Sharp  (Ky.,  1888),  9  S. 
W.  Rep.  507;  Stiles  v.  Smith,  55  Mo. 
364;  McKinzie  v.  Hill,  51  Mo.  303,  11 
Am.  Rep.  450;  Wiggins  v.  Lovering, 
9  Mo.  262. 

A  plea  of  the  general  statute  of  limi- 
tations is  not  sufficient  when  a  special 
one  is  relied  on.  Howell  v.  Rogers, 
47  Cal.  291.     See  Harper  v.  Eubank, 


32  Mo.  App.  258;  Hunter  v.  Hunter,  50; 
Mo.  445. 

In  pleading  the  statute  care  must  be 
taken  not  to  plead  legal  conclusions 
merely.  Scroggin  v.  National  Lumber 
Co.  (Neb.,  1894),  59  N.  W.  Rep.  548; 
Pope  V.  Andrews,  90  N.  Car.  401.  See 
article  Legal  Conclusions. 

For  treatment  of  the  subject  of 
pleading  the  statute  of  limitations, 
see  article  Limitations,  Statute  of; 
aXso post,  XIII,  8,  /. 

Legal  Conclusions. — For  treatment  of 
the  subject  of  pleading  legal  conclu- 
sions, see  article  Legal  Conclusions. 

3.  Carpentier  v.  Oakland,  30  Cal. 
439;  Chipman  v.  Hastings,  50  Cal. 
310;  Kentfield  v.  Hayes,  57  Cal.  409  ; 
Miller  v.  Fulton,  47  Cal.  146;  Meador 
V.  Parsons,  19  Cal.  295;  Weber  v. 
Marshall,  19  Cal.  447  ;  Lestrade  v. 
Barth,  19  Cal.  660;  Downer  v.  Smith, 
24  Cal.  115;  Blum  v.  Robertson,  24 
Cal.  129;  Kahn  v.  Old  Tel.  Min.  Co., 
2  Utah  175;  Garrett  v.  Love,  89  N. 
Car.  205;  Anderson  v.  Logan,  105  N. 
Car.  266;  Rose  v.  Treadway,  4  Nev. 
455.97  Am.  Dec.  546;  Maguire  z/.  Vice, 
20  Mo.  428;  Jones  v.  Brinker,  20  Mo. 
87;  Vasquez  v.  Ewing,  24  Mo.  31,  66 
Am.  Dec.  694;  Ells  v.  Pacific  R.  Co., 
51  Mo.  200. 

The  defendant  becomes  an  actor 
with  respect  to  the  matter  alleged  by 
him.  Estrada  z/.  Murphy,  19  Cal.  249; 
Dewey  v.  Hoag,  15  Barb.  (N.  Y.)  365. 

For  treatment  of  the  subject  of 
pleading  equitable  defenses,  see  ar- 
ticle Equitable  Defenses. 

4.  Harrison  v.  Missouri  Pac.  R.  Co., 
74  Mo.  364,  41  Am.  Rep.  318;  Higgins 


836 


Sew  Matter.       A  N'S  WERS  IN  CODE  PLEADING, 


What  is. 


Statute  of  Frauds. — In  pleading  the  defense  of  the  Statute  of  Frauds 
it  is  not  sufficient  to  allege  that  the  matter  is  barred  by  the  stat- 
ute ;  the  facts  relied  upon  as  a  defense  must  be  set  out.* 

8.  What  Constitutes  New  Matter—^.  Introductory. — The  re- 
quirement contained  in  the  Codes,  that  an  answer  must  contain  a 
statement  of  any  new  matter  constituting  a  defense,  is  impera- 
tive.'-* 

b.  Equitable  Defenses. — The  Codes  having  abolished  the  dis- 
tinction between  actions  at  law  and  suits  in  equity,  and  between 
the  forms  of  all  such  actions,  as  theretofore  existing,  an  equitable 
defense  to  a  civil  action  is  now  as  available  as  a  legal  defense. 
The  question  now  is,  ought  the  plaintiff  to  recover,  and  anything 
which  shows  that  he  ought  not  is  available  to  the  defendant, 
whether  it  was  formerly  of  equitable  or  of  legal  cognizance.  But 
matter  constituting  an  equitable  defense  is  new  matter,  and  must 
be  pleaded.^ 


■V.  Missouri  Pac.  R.  Co.,  43  Mo.  App. 

547- 

For  treatment  of  the  subject  of 
pleading  contributory  negligence,  see 
article  Contributory  Negligence. 

1.  Dinkel  v.  Gundelfinger,  35  Mo. 
172;  Bean  v.  Valle,  2  Mo.  126. 

For  treatment  of  the  subject  of 
pleading  the  Statute  of  Frauds,  see  ar- 
ticle Frauds,  Statute  of. 

2.  Ne7u  York. — Button  v.  McCauley, 
38  Barb.  (N.  Y.)  413;  Hendricks  v. 
Decker,  35  Barb.  (N.  Y.)  298;  Brett  v. 
First  Universalist  Soc,  63  Barb.  (N. 
Y.)  610;  Catlin  v.  Gunter,  i  Duer  (N. 
Y.)  253;  Eldridge  v.  Mather,  2  N.  Y. 
157;  Weaver  v.  Barden,  49  N.  Y.   286. 

Indiana. — Frybarger  v.  Cockefair, 
17  Ind.  404;  Bingham  v.  Kimball,  17 
Ind.  396;  Johnson  v.  Cuddington,  35 
Ind.  43;  Brown  v.  College  Corner, 
etc.,  Gravel  Road  Co.,  56  Ind.  no; 
Brown  v.  Freed,  43  Ind.  253;  Livesey 
V.  Livesey,  30  Ind.  398;  Casade  v. 
Holdridge,  50  Ind.  529. 

Wisconsin.— ^Sche&r  v.  Keown,  34 
Wis.  353;  Frisbee  v.  Langworthy,  11 
Wis.  376;  Orton  v.  Noonan,  25  Wis. 
672;  McLane  v.  Bovee,  35  Wis.  27; 
Lombard  v.  Cowham,  34  Wis.  486; 
Dutcher  v.  Dutcher,  39  Wis.  651. 

Minnesota. — Warner  v.  Myrick,  16 
Minn.  91. 

loiva. — Dyson  v.  Ream,  9  Iowa  51; 
Patterson  v.  Clark,  20  Iowa  429. 

California. — Glazer  v.  Clift,  10  Cal. 
304- 

Ohio. — Stewart  v.  Hoag,  12  Ohio  St. 
623. 

Missouri. — Maybee  v.  Moore,  90  Mo. 
340;  Stone  V.  Hunt,  94  Mo.  475;  Dono- 


van V.  Hannibal,  etc.,  R.  Co.,  89  Mo. 
147;  Hudson  V.  Wabash  Western  R. 
Co.,  loi  Mo.  13;  Keitel  v.  St.  Louis, 
etc.,  R.  Co.,  28  Mo.  App.  657;  St. 
Clair  V.  Missouri  Pac.  R.  Co.,  29  Mo. 
App.  76. 

North  Carolina. — Young  v.  Greenlee, 
82  N.  Car.  346. 

Kentucky. — Kentucky  Cent.  R.  Co. 
V.  Thomas,  79  Ky.  160. 

Nebraska. — South  Omaha  v.  Cun- 
ningham, 31  Neb.  316. 

Oregoft. — Grant  v.  Baker,  12  Oregon 

329- 

United  States. — Watkinds  v.  South- 
ern Pac.  Co.,  38  Fed.  Rep.  711. 

3.  New  York. — Dobson  v.  Pearce,  12 
N.  Y.  168,  62  Am.  Dec.  152;  Despard 
V.  Walbridge,  15  N.  Y.  374;  Morris  v. 
Tuthill,  72  N.  Y.  575;  Cramer  z*.  Ben- 
ton, 4  Lans.  (N.  Y.)  291;  Cythe  v.  La 
Fontain,  51  Barb.  (N.  Y.)  186;  Hicks 
V.  Sheppard,  4  Lans.  (N.  Y.)  335;  Day 
V.  Hammond,  57  N.  Y.  479,  15  Am. 
Rep.  522;  Webster  v.  Bond,  9  Hun 
(N.  Y.)  437;  Mentz  v.  Cook,  108  N.  Y. 
504;  Baron  v.  Korn,  51  Hun  (N.  Y.) 
401;  Seymour  v.  McKinstry,  106  N. 
Y.  230;  Wheelock  v.  Noonan,  108  N.  Y. 
179,  2  Am.  St.  Rep.  405;  Bell  v.  Spotts, 
40  N.  Y.  Super.  Ct.  552  ;  Canaday 
V.  Stiger,  55  N.  Y.  452;  Hoppough  v. 
Struble,  60  N.  Y.  430;  Foot  v.  Sprague, 
12  How.  Pr,  (N.  Y.  Supreme  Ct.)  355; 
Pratt  V.  Peckham  (Supreme  Ct.),  7 
N.  Y.  St.  Rep.  621;  Burget  v.  Bissell, 
5  How.  Pr.  (N.  Y.  Supreme  Ct.)  192; 
Hicksville,  etc.,  R.  Co.  v.  Long  Island 
R.  Co.,  48  Barb.  (N.  Y.)  355;  Hunt  v. 
Farmers'  Loan,  etc.,  Co.,  8  How.  Pr. 
(N.  Y.  Supreme  Ct.)  416;  Hinman  v. 


837 


New  Matter.        ANSWERS  IN  CODE  PLEADING. 


What  is. 


c.  Matter  in  Abatement. — Technical  pleas  in  abatement  are 
abolished,  but  those  defenses  which  were  formerly  so  pleaded  are 


Judson,  13  Barb.  (N.  Y.)  629;  Kay  v. 
Whittaker,  44  N.  Y.  565;  Garner  v. 
Hannah,  6  Duer  (N.  Y.)  262;  Giles  v. 
Austin,  62  N.  Y.  486. 

Texas. — Cannon  v.  Hemphill,  7  Tex. 
184;  Egery  v.  Power,  5  Tex.  501;  Wal- 
cott  V.  Hendrick,  6  Tex.  406;  Castro 
V.  Gentiley,  11  Tex.  28. 

North  Carolina. — Bean  v.  Western 
North  Carolina    R.  Co.,   107   N.   Car. 

731- 

Ohio. — Stewart  v.  Hoag,  12  Ohio  St. 
623. 

Missouri. — Jones  v.  Shaw,  67  Mo. 
667. 

Minnesota. — Gates  v.  Smith,  2  Minn. 
30;  McClave  v.  White,  5  Minn.  178. 

Iowa. — Kelsey    v.    Kelsey,    57   Iowa 

383- 

California. — Terry  v.  Sickles,  13 
Cal.  427;  Brodrib  v.  Brodrib,  56  Cal. 
563;  Hopkins  v.  Beard,  6  Cal.  664; 
Manly  v.  Howlett,  55  Cal.  94;  Hartley 
V.  Brown,  46  Cal.  202;  Marks  v.  Say- 
ward,  50  Cal.  57;  McCauley  v.  Fulton, 
44  Cal.  356;  Sneed  v.  Osborn,  25  Cal. 
630;  Seaton  v.  Son,  32  Cal.  481;  Cross 
V.  Sacramento  Sav.  Bank,  66  Cal.  462; 
Barfield  v.  Price,  40  Cal.  535;  Wright 
V.  Shafter,  48  Cal.  275;  Ross  v.  Heint- 
zen,  36  Cal.  318;  Kenyon  v.  Quinn,  41 
Cal.  326;  Gates  v.  Salmon,  46  Cal. 
363;  Stokes  V.  Stevens,  40  Cal.  391; 
Pierson  v.  McCahill,  21  Cal.  123. 

Action  at  Law. — An  equitable  de- 
fense may  be  made  to  an  action  at 
law.  Equitable  Assur.  Soc.  v.  Cuyler, 
75  N.  Y.  511;  Pitcher  v.  Hennessey, 
48  N.  Y.  415;  Cavalli  v.  Allen,  57  N. 
Y.  508;  Hook  V.  Craighead,  32  Mo. 
405;  Leitensdorfer  v.  Delphy,  15  Mo. 
t6o,  55  Am.  Dec.  137;  Rose  v.  Will- 
iams, 5  Kan.  483;  Rogers  v.  Gwinn, 
21  Iowa  58;  Wa  Ching  v.  Constantine, 
I  Idaho  266;  Salsbury  v.  Ellison,  7 
Colo.  167,  49  Am.  Rep.  347.  Thus 
fraud  may  be  set  up  as  an  equitable 
defense  to  an  action  upon  a  judgment 
of  ejectment.  See  Rogers  v.  Gwinn, 
21  Iowa  58. 

An  equitable  defense  may  be  set  up 
to  an  action  of  ejectment.  Dobson  v. 
Pearce,  12  N.  Y.  163,  12  Am.  Dec.  152; 
Cythe  V.  La  Fontain,  51  Barb.  (N.  Y.) 
186;  Smith  V.  Athern,  34  Cal.  512; 
King  V.  Meyer,  35  Cal.  646;  Love  v. 
Watkins,  40  Cal.  548,  6  Am.  Rep.  624; 
Gerdes  v.  Moody,  41  Cal.  336;  Mar- 
shall V.  Caldwell,  41  Cal.  611;  Bruck 


V.  Tucker,  42  Cal.  346;  Montgomery 
V.  Spect,  55  Cal.  352;  Boyd  v.  Brinckin, 
55  Cal.  427;  Wormouth  v.  Johnson,  58 
Cal.  621;  Whittier  v.  Stege,  61  Cal. 
239;  Hayden  v.  Stewart,  27  Mo.  286; 
Chouteau  v.  Gibson,  76  Mo.  38;  Reece 
V.  Roush,  2  Mont.  586;  Johnson  v. 
McArthur,  64  N.  Car.  675.  Thus,  a 
mere  equitable  title  to  land,  if  of  such 
a  character  as  in  equity  entitles  the 
holder  to  possession.  Is  a  sufficient  de- 
fense to  an  action  of  ejectment.  Willis 
V.  Wozencraft,  22  Cal.  608;  Morrison 
V.  Wilson,  13  Cal.  495,  73  Am.  Dec. 
593;  Travers  v.  Crane,  15  Cal.  12;  De 
Rutte  V.  Muldrow,  16  Cal.  505;  Cadiz 
V.  Majors,  33  Cal.  289  ;  Talbert  v. 
Singleton,  42  Cal.  391  ;  Guedici  v. 
Boots,  42  Cal.  452;  Murray  v.  Dake, 
46  Cal.  645;  Walker  v.  Breen  67  Cal. 
599;  Scott  V.  Sierra  Lumber  Co.,  67 
Cal.  71;  Haggin  v.  Raymond,  67  Cal. 
302;  De  Arguello  v.  Bours,  67  Cal. 
447;  Central  Pac.  R.  Co.  v.  Mudd,  59 
Cal.  585;  Rosiery  v.  Van  Dam,  16  Iowa 
175;  Van  Orman  v.  Spafford,  16  Iowa 
186;  Kramer  v.  Conger,  16  Iowa  434; 
Shawhan  v.  Long,  26  Iowa  488,  96 
Am.  Dec.  164;  Tibeau  v.  Tibeau,  19 
Mo.  78,  59  Am.  Dec.  329 ;  Crary  v. 
Goodman,  12  N.  Y.  266,  64  Am.  Dec. 
506;  Bartlett  v.  Judd,  21  N.  Y.  200,  78 
Am.  Dec.  131. 

The  defendant  may  set  up  as  a  de- 
fense the  part  performance  of  a  verbal 
contract  for  the  sale  of  the  land  by 
plaintiff  to  defendant.  Arguello  v. 
Edinger,  10  Cal.  150. 

In  an  action  of  ejectment  an  equi- 
table defense  is  not  available  under  an 
answer  denying  that  the  plaintiff  is 
the  owner  and  that  he  is  entitled  to 
the  possession.  Anderson  v.  Logan, 
105  N.  Car.  266;  Hinton  v.  Pritchard^ 
102  N.  Car.  94;  Bodenhamer  z/.  Welch, 
89  N.  Car.  78. 

And  where  a  legal  title  is  relied  on 
by  defendant  he  cannot  use  an  equi- 
table defense.  Kennedy  v.  Daniels,  20 
Mo.  104. 

It  seems  that,  in  an  action  of  eject- 
ment, if  the  defendant  relies  on  the 
fact  that  the  land  is  partnership  prop- 
erty, he  must  assert  his  rights  in  equity 
in  a  different  action.  Lowe  v.  Alex- 
ander, 15  Cal.  297. 

Equitable  Defenses  are  to  be  Distin- 
guished from  Counterclaims. — A  cause 
of  action  in  equity  which  wholly  de- 


838 


New  Hatter. 


ANSWERS  IN  CODE  PLEADING. 


What  is. 


now  pleadable  in  the  answer  ;  there  is  no  distinction  between  mat- 
ter in  abatement  and  matter  in  bar.  All  matter  in  abatement 
is  new  matter  and  must  be  specially  pleaded.* 


feats  the  demand  of  the  plaintiff  is  an 
equitable  defense.  Jones  v.  Moore, 
42  Mo.  419. 

Thus,  in  case  of  an  assignment  of  a 
thing  in  action,  if  a  set-off  is  pleaded 
it  cannot  be  pleaded  as  a  counterclaim, 
but  must  be  set  up  as  an  equitable  de- 
fense.    Duff  V.  Hobbs,  19  Cal.  659. 

But  it  has  been  held  that  the  right 
to  have  a  mortgage  reformed  is  a 
counterclaim.  FoUett  v.  Heath,  15 
Wis.  601.  But  see  Andrews  v.  Gilles- 
pie, 47  N.  Y.  4S7 ;  Hoppough  v. 
Struble,  2  Thomp.  &  C.  (N.  Y.)  664; 
Miners'  Ditch  Co.  v.  Zellerbach,  37 
Cal.  608,  99  Am.  Dec.  30;  Thayer  v. 
White,  3  Cal.  22S. 

Waiving  Equitable  Defense.  —  Al- 
though a  party  may  set  up  an  equita- 
ble defense  to  an  action  at  law,  he  is 
not  confined  to  that  proceeding.  He 
may  let  the  judgment  go  at  law,  and 
file  his  bill  in  equity  for  relief.  Lor- 
raine V.  Long,  6  Cal.  452;  Witte  v. 
Lockwood,  39  Ohio  St.  146;  Spaur  v. 
McBee,  19  Oregon  79.  Contra,  Hack- 
ett  V.  Schad,  3  Bush  (Ky.)  353;  Utah, 
etc.,  R.  Co.  V.  Crawford,  i  Idaho 
771.  See  also  Lupo  v.  True,  16  S. 
Car.  580;  Smith  v.  Bryce,  17  S.  Car. 
539;  Penny  v.  Cook,  19  Iowa  538; 
Thompson  v.  Hurley,  19  Iowa  331; 
Gaster  v.  Waggoner,  26  Ohio  St.  450; 
Clark  V.  Clark,  65  N.  Car.  655;  White 
V.  Allen,  3  Oregon  104. 

1.  California. — White  v.  Adams,  52 
Cal.  435;  Wals worth  v.  Johnson,  41  Cal. 
61;  Rowe  z'.Chandler,  i  Cal.  171;  Tooms 
V.  Randall,  3  Cal.  438;  Fairbanks  v. 
Woodhouse,  6  Cal.  434;  Small  v. 
Gwinn,  6  Cal.  447;  Whitney  v.  Stark, 
8  Cal.  514.  68  Am.  Dec.  360;  Califor- 
nia Steam  Nav.  Co.  v.  Wright,  8  Cal. 
585;  Hentsch  v.  Port-er,  10  Cal.  555; 
People  V.  Rains,  23  Cal.  131;  Gillam  v. 
Sigman,  29  Cal.  638:  Welsh  v.  Kirk- 
patrick,  30  Cal.  203;  People  v.  Steamer 
America,  34  Cal.  676;  Hastings  v. 
Stark,  36  Cal.  123;  Walsworth  v. 
Johnson,  41  Cal.  61;  Amador  Canal, 
etc.,  Co.  V.  Mitchell,  59  Cal.  169; 
Rutenberg  v.  Main,  47  Cal.  213;  Trenor 
V.  Central  Pac.  R.  Co.,  50  Ca!.  223; 
Morenhunt  v.  Wilson,  52  Cal.  263; 
McCreery  v.  Everding,  54  Cal.  168; 
Goodline  v.  King,  55  Cal.  377;  Dis- 
trict No.  no  V.  Feck,  60  Cal.  403; 
Sweeney  v.  Stanford,  67  Cal.  635. 


J^ew  York. — Gardner  v.  Clark,  21 
N.  Y.  399;  Sweet  v.  Tuttle,  14  N.  Y. 
467;  Mayhew  v.  Robinson,  10  How. 
Pr.  (N.  Y.  Supreme  Ct)  163;  Barclay  v. 
Quicksilver  Min.  Co.,  6  Lans.  (N.  Y.) 
25;  Burnside  v.  Matthews,  54  N.  Y. 
78;  Phoenix  Bank  v.  Donnell,  40  N.  Y. 
411;  Hammond  v.  Earle,  58  How.  Pr. 
(N.  Y.  Supreme  Ct.)  427;  Styles  v. 
Fuller,  loi  N.  Y.  622;  White  v.  Miller, 
7  Hun  (N.  Y.)  429;  Dawlev  v.  Brown, 
9  Hun  (N.  Y.),  461;  Smith  v.  Hall,  67 
N.  Y.  48;  Wright  v.  Wright,  54  N.  Y. 
442;  Jackson  v.  Whedon,  i  E.  D. 
Smith  (N.  Y.)  141;  Savage  v.  Corn 
Exch.,  etc.,  Nav.  Ins.  Co.,  4  Bosw. 
(N.  Y.)  2. 

Missouri. — Goetz  v.  Ambs,  27  Mo. 
28;  Bernecker  v.  Miller,  44  Mo.  102; 
Arthur  v.  Richards,  48  Mo.  298;  Ran- 
dolph V.  Hannibal,  etc.,  R.  Co.,  18 
Mo.  App.  609;  Giraldin  v.  Howard, 
103  Mo.  41. 

Nevada. — Mandlebaum  v.  Russell,  4 
Nev.  551. 

Oregon. — Kennard  v.  Sax,  3  Oregon 
263. 

Utah. — Jungk  v.  Reed,  9  Utah  49. 

Iowa. — Varf  Metre  v.  Wolf,  27  Iowa 

341- 

Colorado. — Watson  v.  Lemen,  9  Colo. 
200. 

Montana. — Higgins  v.  Germaine,  I 
Mont.  235. 

North  Carolina. — Charlotte  Bank  v. 
Britton,  66  N.  Car.  365;  Hawkins  v. 
Hughes,  87  N.  Car.  115,  cited  \v\.  104  N. 
Car.  161;  Silver  Valley  Min.  Co,  v. 
Baltimore  Co.,  99  N.  Car.  444;  Usry  v. 
Suit,  91  N.  Car.  406. 

Ohio. — Weil  v.  Guerin,  42  Ohio  St. 
299;  Sargent  v.  Steubenville,  etc.,  R. 
Co.,  32  Ohio  St.  449;  Smith  v.  Weed 
Sewing  Mach.  Co.,  26  Ohio  St.  565.     . 

Wisconsin. — Dutcher  v.  Dutcher,  39 
Wis.  652;  Collette  v.  Weed,  68  Wis. 
428;  Jones  V.  Foster,  67  Wis.  296; 
Plath  V.  Braunsdorff,  40  Wis.  107; 
Smith  V.  Peckham,  39  Wis.  415;  New- 
hall  House  Stock  Co.  v.  Flint,  etc.,  R. 
Co.,  47  Wis.  516. 

Indiana. — Garrison  v.  Clark,  11  Ind. 
369;  Norris  v.  Scott,  6  Ind.  App.  18; 
Midland  R.  Co.  v.  Stevenson,  6  Ind. 
App.  207;  McDaniel  v.  Carver,  40  Ind. 
250;  Elson  V.  O'Dowd,  40  Ind.  300; 
Landers  v.  Douglas,  46  Ind.  522; 
Wagner  v.  Ewing,  44  Ind.  441;  John- 


839 


New  Matter.        ANSWERS  IN  CODE  PLEADING. 


What  is. 


d.  Partial  Defenses. — Those  provisions  of  the  Codes  which 
require  a  statement  of  any  new  matter,  constituting  a  defense,  to 
be  set  up  in  the  answer,  should  be  so  construed  as  to  require  the 
defendant,  in  all  cases,  to  plead  any  new  matter  constituting 
either  an  entire  or  a  partial  defense,  and  to  prohibit  him  from 
giving  such  matter  in  evidence  upon  the  assessment  of  damages 
when  not  set  up  in  the  answer.* 

How  Partial  Defenses  Should  Be  Pleaded. — Facts  relied  on  as  a  partial 
defense  must  be  pleaded  as  such,  and  not  by  way  of  full 
defense.* 


son  V.  Miller,  47  Ind.  377;  17  Am.  Rep. 
699;  Wade  V.  State,  37  Ind.  181;  Curtis 
V.  Gooding,  99  Ind.  45;  Beatty  v.  Bar- 
tholomew, 76  Ind.  91. 

Nebraska. — Maurer  v.  Miday,  25 
Neb.  575;  National  L.  Ins.  Co.  v. 
Robinson,  8  Neb.  452;  Zunkle  v.  Cun- 
ningham, ID  Neb.  162;  Dietrichs  v. 
Lincoln,  etc.,  R.  Co.,  13  Neb.  43; 
Herron  v.  Cole,  25  Neb.  692;  Hall  v. 
Strode,  19  Neb. 658. 

The  judgment  on  matter  in  abate- 
ment is  that  the  action  be  dismissed, 
instead  of  that  the  suit  abate.  Stone 
V.  Powell,  13  B.  Mon.  (Ky.)  341. 

As  to  what  constitutes  matter  in 
abatement,  see  article  Abatement  in 
Pleading. 

1.  McKyring  v.  Bull,  16  N.  Y.  309, 
69  Am.  Dec.  696,  a  leading  case,  where 
the  defendant  was  held  precluded 
from  proving  payment,  in  whole  or  in 
part,  under  a  general  denial;  Allen  v. 
Haskins,  5  Duer  (N.  Y.)  332;  Kneedler 
V.  Sternburgh,  10  How.  Pr.  (N.  Y.  Su- 
preme Ct. )  67 ;  Loosey  v.  Orser ,  4  Bos w. 
(N.  Y.)  391  Longworthy  v.  Knapp,  4 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  115; 
Gleason  v.  Moen,  2  Duer  (N.  Y.)  639; 
Van  de  Sande  v.  Hall,  13  How.  Pr.  (N. 
Y.  Supreme  Ct.)  458;  Willis  v.  Tag- 
gard,  6  How.  Pr.  (N.  Y.  Supreme  Ct.) 
433  Bush  V.  Prosser,  11  N  Y.  347; 
Smith  V.  Shufelt,  3  Code  Rep.  (N.  Y.) 
175;  Tracy  v.  Humphrey,  3  Code 
Rep.  (N.  Y.)  190;  Grosvenor  v.  Atlan- 
tic F.  Ins  Co.,  I  Bosw.  (N.  Y.)  469; 
Morrell  v.  Irving  F.  Ins.  Co.,  33  N.  Y. 
429,  83  Am.  Dec.  396;  Poland  v.  John- 
son, 16  Abb.  Pr.  (N.  Y.  Supreme  Ct.) 
235;  Peebles  v.  Isaminger,  18  Ohio  St. 
490;  Higgins  V.  Germaine,  i  Mont. 
235;  Atchison,  etc.,  R.  Co.  v.  Wash- 
burn, 5  Neb.  117;  Burlington,  etc., 
R.  Co.  V.  Lancaster  County,  7  Neb. 
33;  Jones  V.  Seward  County,  10  Neb. 
161;  Phoenix  Ins.  Co.  v.  Barnd,  16 
Neb.  89;  Mordhorst  v.  Nebraska  Tel. 


Co.,  28  Neb.  610;  Bishop  v.  Stevens,  31 
Neb.  786;  Prall  v.  Peters,  32  Neb.  832. 

Contra. — A  partial  defense  is  bad, 
and  admits  the  allegations  of  the  com- 
plaint. Jones  V.  Frost,  51  Ind.  69; 
Conger  v.  Parker,  29  Ind.  380;  Lock- 
wood  V.  Woods,  3  Ind.  App.  258;  Tay- 
lor V.  Calvert  (Ind.,  1894),  37  N.  E. 
Rep.  531;  Smith  v.   Dick,  95  Ala.  311. 

The  fact  that  the  same  allegation 
which  forms  the  basis  of  a  partial  de- 
fense is  embodied  in  the  complaint 
does  not  take  it  from  its  character  of 
new  matter,  within  the  meaning  of  the 
Code  of  Civil  Procedure,  where  it  is 
extraneous  to  the  basis  of  the  relief 
asked,  and  where,  consequently,  its  re- 
cital does  preclude  its  use  as  a  basis 
of  defense.  Petrakion  v.  Arbelly,  23 
Civ.  Pro.  Rep.  (N.  Y.  C.  PI.)  184,  187. 

Part  Payment  must  be  specially 
pleaded.  McKyring  v.  Bull,  16  N.  Y. 
297,  69  Am.  Dec.  696;  Houghton  v. 
Townsend,  8  How.  Pr.  (N.  Y.  Su- 
preme Ct.)44i;  Grosvenor  v.  Atlantic 
F.  Ins.  Co.,  I  Bosw.  (N.  Y.)  469. 

But  a  Partial  Failure  of  Consideration 
need  not  be  specially  pleaded.  Car- 
penter V.  Meyers,  32  Mo.  213;  Voss  v. 
McGuire,  18  Mo.  App.  477;  Mercer  v. 
Hall,  2  Tex.  284;  Willis  v.  Bullitt,  22 
Tex.  330;  Brantly  v.  Thomas,  22  Tex. 
270,  77  Am.  Rep.  264.  But  see  Hack- 
ett  V.  Schad,  3  Bush  (Ky.)  353. 

In  an  Action  for  the  Conversion  of  a 
Note  the  fact  that  the  statute  had 
barred  action  on  the  note  is  a  partial 
defense,  as  it  tends  to  reduce  dam- 
ages. Thompson  v.  Halbert  (Su- 
preme Ct.),  2  N.  Y.  St.  Rep.  1x6.  See 
also  Willis  v.  Taggard,  6  How.  Pr.  (N 
Y.  Supreme  Ct.)433;  Wehle  v.  Butler, 
43  How.  Pr.  (N.  Y.  Super.  Ct.)  5; 
Wehle  V.  Haviland,  42  How.  Pr.  (N. 
Y.  C.  Pl.)399. 

2.  Ronan  v.  Williams,  41  Iowa  6S0. 
But  it  is  no  objection  to  an  answer 
that   it   begins   in  form  as  a  full  de- 


840 


Ifew  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


e.  Mitigating  Circumstances. — While  a  partial  defense 
must  be  pleaded,  mere  matters  in  mitigation  of  damages  need 
not  be.     They  are  admissible  under  a  general  denial.* 


fense,  but  concludes  with  averments 
making  it  only  a  partial  defense.  Ben- 
nett V.  Matthews,  64  Barb.  (N.  Y.) 
410. 

But  if  it  clearly  appears  on  the  face 
of  the  answer  to  be  only  a  partial  de- 
fense, there  is  no  necessity  to  use  the 
words  "partial  defense."  Howd  v. 
Cole,  74  Hun  (N.  Y.)  121. 

The  allegations  must  be  so  certain 
and  specific  as  that,  if  admitted,  the 
court  could  give  judgment  in  the  case. 
Thompson  v.  Munger,  15  Tex.  523, 
65  Am.  Dec.  176;  Davison  v.  Schermer- 
horn,  I  Barb.  (N.  Y.)  480;  Mattison  v. 
Smith,  I  Robt.  (N.  Y.)  706. 

1.  Ohio. — Duval  v.  Davey,  32  Ohio 
St.  604;  Vanderveer  v.  Sutphin,  5  Ohio 
St.  294 ;  Reynolds  v.  Tucker,  6  Ohio 
St.  517,  67  Am.  Dec.  353;  White  v. 
Thomas,  12  Ohio  St.  312;  Barholt  v. 
Wright,  45  Ohio  St.  181,  4  Am.  St. 
Rep.  535. 

Iowa. — Beardsley  v.  Bridgman,  17 
Iowa  290. 

Indiana. — Allis  v.  Nanson,  41  Ind. 
154;  Blickenstaff  v.  Perrin,  27  Ind. 
527;  O'Conner  v.  O'Conner,  27  Ind. 
69;  Smith  V.  Rodecap,  5  Ind.  App.  78. 

Kentucky. — Thurman  v.  Virgin,  18 
B.  Mon.  (Ky.)  785;  Hart  v.  Reed,  i  B. 
Mon.  (Ky.)  170,  35  Am.  Dec.  179. 

Missouri. — Weaver  v.  Hendrick,  30 
Mo.  502. 

New  York. — Kniffin  v.  McConnell,  30 
N.  Y.  2S5;  Saltus  V.  Kipp,  5  Duer  (N. 
Y.)  646;  Kneedler  v.  Sternbergh,  10 
How.  Pr.  (N.  Y.  Supreme  Ct.)  69; 
Dunlap  V.  Snyder,  17  Barb.  (N.  Y.) 
561;  Travis  v.  Barger,  24  Barb.  (N. 
Y.)6i4;  Harter  v.  Crill,  33  Barb.  (N. 
Y.)283;  Tompkins  v.  Wadley,  3Thomp. 
&  C.  (N.  Y.)424;  Anonymous,  8  How. 
Pr.  (N.  Y.  Supreme  Ct.)  434;  Gilbert 
V.  Rounds,  14  How.  Pr.  (N.  Y.  Supreme 
Ct.)46;  Lane  v.  Gilbert,  9  How.  Pr. 
(N.  Y.  Supreme  Ct.)  150. 

Option  of  Pleader. — But  it  is  optional, 
especially  in  slander  and  libel  cases, 
to  plead  mitigating  circumstances. 
Van  Ingen  v.  Newton,  i  Disney  (Ohio) 
458;  Beckett  v.  Lawrence,  7  Abb.  Pr. 
N.  S.  (N.  Y.  Supreme  Ct.)  403;  Knott 
V.  Burwell,  96  N.  Car.  272;  Kimball  v. 
Fernandez,  41  Wis.  329  ;  Jauch  v. 
Jauch,  50  Ind.  135,  19  Am.  Rep.  699; 
Swinney  %>.  Nave,  22  Ind.  179;  Smith 
-».  Lisher,  23  Ind.  501. 


But  some  authorities  hold  that  in 
slander  and  libel  cases  mitigating  cir- 
cumstances must  be  pleaded.  Anony- 
mous, 6  How.  Pr.  (N.  Y.  Supreme  Ct.) 
160;  Willover  v.  Hill,  72  N.  Y.  37; 
Fero  V.  Ruscol,  4  N.  Y.  162;  Spooner 
V.  Keeler,  51  N.  Y.  527;  Wachter  v. 
Quenzer,  29  N.  Y.  547;  Thompson  v. 
Taylor,  72  N.  Y.  32;  Hamilton  v.  Eno, 
81  N.  Y.  116;  Stiles  V.  Comstock,  9 
How.  Pr.  (N.  Y.  Supreme  Ct.)  48; 
Buckley  v.  Knapp,  48  Mo.  158;  Quinn 
V.  Scott,  22  Minn.  456;  Langton  v. 
Hagerty,  35  Wis.  151  ;  Wilson  v. 
Noonan,  35  Wis.  322.  See  article  Libel 
AND  Slander. 

The  mitigating  circumstances  which 
must  be  pleaded  are  those  which  tend 
to  disprove  malice  and  to  reduce  puni- 
tive or  exemplary  damages.  Matters 
which  tend  to  show  the  actual  dam- 
ages are  not  mitigating  circumstances, 
but  are  admissible  under  a  general 
denial.  Wandell  v.  Edwards,  25  Hun 
(N.  Y.)  498.  Co7npare  the  following 
cases:  Poland  v.  Johnson,  t6  Abb.  Pr. 
(N.  Y.  Supreme  Ct.)  235;  Hynds  v. 
Griswold,  4  How.  Pr.  (N.  Y.  Supreme 
Ct.)  69;  Williams  v.  Hayes,  5  How. 
Pr.  (N.  Y.  Supreme  Ct.)  470;  Bush  v. 
Prosser,  11  N.  Y.  347;  Graham  v. 
Stone,  6  How.  Pr.  (N.  Y.  Supreme  Ct.) 
15  ;  Heaton  v.  Wright,  10  How.  Pr. 
(N.  Y.  Supreme  Ct.)  79;  Loosey  v. 
Orser,  4  Bosw.  (N.  Y.)  391;  Houghton 
V.  Townsend,  8  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  441;  Jeffras  v.  McKillop. 
etc.,  Co.,  2  Hun  (N.  Y.)  351;  Distin  v. 
Rose,  69  N.  Y.  123;  Coe  v.  Griggs.  76 
Mo.  619;  Hawkins  v.  Globe  Printing 
Co.,  10  Mo.  App.  174;  Buckley  v. 
Knapp,  48  Mo.  152. 

Facts  as  Complete  Defense.  —  Facts 
which  might  be  considered  by  way  of 
mitigation  of  damages  cannot  be  con- 
sidered if  pleaded  as  a  complete  de- 
fense when  they  do  not  constitute  a 
defense.  Ronan  v.  Williams,  41  Iowa 
680;  Foster  v.  Hazen,  12  Barb.  (N.  Y.) 
547;  Beach  v.  Barons,  13  Barb.  (N.  Y.) 
305;  Thumb  V.  Walrath,  6  How.  Pr. 
(N.  Y.  Supreme  Ct.)  196;  Nichols  v. 
Dusenburv,  2  N.  Y.  283  ;  Hager  v. 
Tibbits,  i  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
preme Ct.)  97;  Brander  v.  Faulkner, 
93  N.  Y.  515;  Bennett  v.  Matthews,  64 
Barb.  (N.  Y.)4io. 

Pleading  Hypothetically.  —  A   partial 


841 


Kew  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


f.  Payment. — The  defendant  cannot  avail  himself  of  the 
defense  of  payment  without  pleading  it;  and  when  pleaded,  if 
there  be  no  reply,  there  can  be  no  trial,  for  want  of  an  issue.* 


defense  cannot  be  pleaded  hypotheti- 
cally.  Martin  v.  Swearengen,  17  Iowa 
346. 

A  Demurrer  lies  for  a  partial  defense 
defectively  stated.  Davenport  Gas 
Light,  etc.,  Co.  v.  Davenport,  15  Iowa 
6;  Peck  v.  Parchen,  52  Iowa  46. 

Contract  to  Convey  Land. — Where  the 
plea  sets  up  a  partial  failure  of  a  con- 
tract to  convey  land,  it  should  specify 
the  part  to  which  title  has  failed,  and 
its  proportional  value.  Stillman  v. 
Canales,  39  Tex.  406. 

An  Answer  in  Ejectment  disclaiming 
title  to  a  portion  of  the  premises 
should  particularly  describe  the  part 
disclaimed.  Anderson  v.  Fisk,36  Cal. 
625.  See  also  Fortson  v.  Caldwell,  17 
Tex.  627  ;  Cumings  v.  Lawrence 
County.  I  S.  Dak.  158. 

1.  Indiana.  —  Hubler  v.  Pullen,  9 
Ind.  273,  63  Am.  Dec.  620;  Baker  v. 
Kistler,  13  Ind.  63;  Johnson  v.  Tyler, 
I  Ind.  App.  387. 

Texas. — Marleyz'.  McAnelly,  17  Tex. 
658;  Robson  V.  Watts,  11  Tex.  764; 
Pettigrewz'.  Dix,  33  Tex.  277;  Matossy 
V.  Frosh,  9  Tex.  610. 

Kansas. — Sewing  Mach.  Co.  v.  Red- 
field,  18  Kan.  555;  Stevens  v.  Thomp- 
son, 5  Kan.  305;  Clark  v.  Spencer,  14 
Kan.  408,  19  Am.  Rep.  96;  Irwin  v. 
Paulett,  I  Kan.  418;  St.  Louis,  etc., 
R.  Co.  V.  Grove,  39  Kan.  731. 

Nebraska. — Clark  v.  Mullen,  16  Neb. 
481;  Magenan  v.  Bell,  14  Neb.  8;  Van 
Buskirk  v.  Chandler,  18  Neb.  584; 
Tootle  V.  Maben,  21  Neb.  620;  Lamb 
V.  Thompson,  31  Neb.  448. 

Wisconsin.  —  Knapp  v.  Runals,  37 
Wis.  135;  Martin  v.  Pugh,  23  Wis.  184. 
Hawes  v.  Woolcock,  30  Wis.  213. 

Colorado.  —  Esbensen  v.  Hover,  3 
Colo.  App.  467. 

Oregon.  —  Clark  v.  Wick  (Oregon, 
1894),  36  Pac.  Rep.  165;  Benicia  Agri- 
cultural Works  V.  Creighton,  21  Ore- 
gon 495. 

South  Carolina. — McElwee  z*.  Hutch- 
inson, 10  S.  Car.  436. 

Montana. — Higgins  v.  Germaine,  i 
Mont.  235. 

N^orth  Carolina. — Ellison  v.  Rix,  85 
N.  Car.  77. 

Ohio. — Fewster  v.  Goddard,  25  Ohio 
St.  276;  Swensen  c.  Cresop,  28  0hio  St. 
668;  Edwards  v.  Edwards,  24  Ohio  St. 
403- 

84 


Missouri. — Hyde  v.  Hazel,  43  Mo. 
App.  668;  Wilkerson  v.  Farnham,  82 
Mo.  672;  Smith  v.  Rembaugh,  21  Mo. 
App.  390;  Albersz/.  Commercial  Bank, 
85  Mo.  173,  55  Am.  Rep.  355;  German 
Bank  v.  Mulhall,  8  Mo.  App.  558; 
Minor  v.  Rogers  Coal  Co.,  25  Mo. 
App.  78. 

New  York. — Seward  v.  Torrence,  5 
Thomp.  &  C.  (N.  Y.)  323;  Edson  v. 
Dillaye,  8  How.  Pr.  (N.  Y.  Supreme 
Ct.)  273;  Everett  v.  Lock  wood,  8  Hun 
(N.  Y.)  356;  Dry  Dock,  etc.,  Co.  v. 
North  &  East  River  R.  Co.  (C.  PI.), 
22  N.  Y.  Supp.  556;  Hall  V.  Olney,  65 
Barb.  (N.  Y.)  27;  McKyring  v.  Bull, 
16  N.  Y.  297,  69  Am.  Dec.  696;  Wilcox 
V.  Joslin (Supreme  Ct.),  10  N.  Y.  Supp. 
342;  Potter  z'.  Gates  (Supreme  Ct.),  29 
N.  Y.  St.  Rep.  662;  Bassett  v.  Lederer, 
I  Hun  (N.  Y.)  274;  Calkins  v.  Packer, 
21  Barb.  (N.  Y.)  275;  Texier  v.  Gouin, 
5  Duer  (N.  Y.  389. 

Evidence  of  payment,  or  of  applica- 
tion of  the  fund  in  suit  to  plaintiff's 
benefit,  cannot  be  introduced  under  a 
general  denial.  W'ehle  v.  Butler,  12 
Abb.   Pr.    N.    S.    (N.    Y.    Super.    Ct.) 

139- 

Under  a  plea  of  payment,  in  a  suit 
on  an  account,  the  objection  cannot 
be  made  that  the  goods,  for  the  price 
of  which  the  suit  is  brought,  were 
wrongfully  obtained,  and  are  therefore 
not  properly  the  subject-matter  of  an 
account.  Smith  v.  Weed  Sewing  Mach. 
Co.,  26  Ohio  St.  562. 

In  an  action  upon  an  alleged  indebt- 
edness an  allegation  in  the  complaint 
of  nonpayment  is  essential.  This  is 
not  affected  by  the  rule  that  payment 
must  be  pleaded  as  an  affirmative 
defense,  and  cannot  be  proved  under 
the  general  issue;  but  the  rule  simply 
modifies  the  general  rule  of  pleading 
so  that  the  averment  of  payment  is 
not  put  in  issue  by  a  general  denial. 
Lent  V.  New  York,  etc.,  R.  Co.,  13CV 
N.  Y.  504;  Hubler  v.  Pullen,  9  Ind. 
273,  68  Am.  Dec.  620;  Wheeler,  etc., 
Mfg.  Co.  V.  Worrall,  80  Ind.  297; 
Friddle  v.  Crane,  68  Ind.  583;  Downey 
V.  Whittenberger,  60  Ind.  i88;Deutsch 
V.  Korsmeier,  59  Ind.  373;  Kent  v. 
Cantrall,  44  Ind.  452;  Higert  v.  Trus- 
tees, 53  Ind.  326. 

A  Belease  ot  a  Covenantor  on  his  war- 
ranty, by  payment  made  by  his  grant-^ 


New  Matter.       ANS IVERS  IN  CODE  PLEAD  J  NG. 


Wliatis, 


g.  Res  Judicata. — Where  a  former  judgment  is  relied  on  as 
an  estoppel  in  another  action,  it  must  be  pleaded.^ 

h.  Estoppel  in  Pais. — An  estoppel  in  pais,  to  be  relied  on  as 
a  defense,  should  be  pleaded.* 

Where  the  only  answer  pleaded  to 
the  cause  of  action  stated  in  one  para- 
graph of  the  complaint  is  a  general 
denial,  evidence  of  a  former  recovery 
under  a  plea  addressed  to  another 
paragraph  is  not  available.  Louisville, 
etc.,  R.  Co.  V.  Cauley,  119  Ind.  142. 

A  prior  recovery  is  not  available  as 
a  defense  unless  pleaded  in  bar,  though 
it  may  be  alleged  in  the  answer.  Bry- 
son  V.  St.  Helen,  79  Hun  (N.  Y.)  167; 
Norton  v.  Norton  (Ky.,  1894),  25  S.  W. 
Rep.  750. 

The  invalidity  of  a  judgment  is  new 
matter.  Hobbs  v.  Duff,  43  Cal.  485. 
As,  for  instance,  that  it  has  been 
vacated  by  order  of  court.  Carpenter 
V.  Goodwin,  4  Daly  (N.  Y.)  89. 

Where  a  garnishee  interposes  a 
judgment  in  favor  of  the  assignor  as 
a  defense  to  an  action  by  the  assignee 
of  the  chose,  this  is  new  matter. 
Walters  v.  Washington  Ins.  Co.,  r 
Iowa  404,  63  Am.  Dec.  451. 

When  the  plea  of  res  judicata  oper- 
ates to  deny  the  equities  of  the  com- 
plaint, it  is  not  new  matter.  Breeze 
V.  Haley,  11  Colo.  351. 

Waiver. — Counsel  may  by  stipula- 
tion waive  the  pleading  of  res  judicata. 
David  Bradley  Mfg.  Co.  v.  Eagle  Mfg. 
Co.,  58  Fed.  Rep.  721;  Reich  v.  Coch- 
ran, 74  Hun  (N.  Y.)  551. 

2.  Oregon. — Rugh  v.  Ottenheimer,  6 
Oregon  232,  25  Am.  Rep.  513;  Remil- 
lard  V.  Prescott,  8  Oregon  38;  Bruce 
V.  Phoenix  Ins.  Co.,  24  Oregon  486. 

Nevada. — Hanson  v.  Chiatiovich,  13 
Nev.  395. 

Utah. — Poynter  v.  Chipman,  8  Utah 
442. 

Iowa. — Independent  Dist.  v.  Mer- 
chants' Nat.  Bank,  68  Iowa  343. 

Colorado. — De  Votie  v.  McGerr,  15 
Colo.  467;  Gaynor  v.  Clements,  16 
Colo.  209. 

Nebraska. — Burlington,  etc.,  R.  Co. 
V.  Harris,  8  Neb.  140. 

Indiana. — Wood  v.  Ostram,  29  Ind. 
179;  Anderson  v.  Hubble,  93  Ind.  57b, 
47  Am.  Rep.  394. 

Wisconsin. — Warder  v.  Baldwin,  51 
Wis.  451;  McKesson  v.  Sherman, 
51  Wis.  305;  Van  Trott  v.  Wiese,  36 
Wis.  439. 

California.  —  Clarke   v.    Huber,    2$ 


ees,  is  new  matter.  Pierce  v.  Early, 
79  Iowa  199,  203. 

Foreclosure  Suit. — But  in  an  action  to 
foreclose  a  mortgage  the  partial  pay- 
ments need  not  be  pleaded.  Hendrix 
V.  Gore,  8  Oregon  407. 

1.  Nebraska.— Gregovy  v.  Kenyon, 
34  Neb.  641;  Allen  v.  Saunders,  6  Neb. 
441;  Kilpatrick  v.  Kansas  City,  etc., 
R.  Co.,  38  Neb.  620. 

Montana. — Josephi  v.  Mady  Clothing 
Co.  (Mont.,  1893),  33  Pac.  Rep.  i. 

Florida. — State  v.  Anderson,  26  Fla. 
240. 

Indiana. — First  Nat.  Bank  v.  Wil- 
liams, 126  Ind.  423;  Norris  v.  Amos, 
15  Ind.  365. 

Missouri. — Campbell  v.  Kansas  City, 
102  Mo.  326;  Greenbaum  v.  Elliott,  60 
Mo.  25;  Kelly  v.  Hurt,  61  Mo.  463; 
State  V.  Brooke,  29  Mo.  App.  '286; 
Field  V.  Sanderson,  34  Mo.  542,  86 
Am.  Dec.  124;  Edgell  v.  Sigerson,  20 
Mo.  494;  Glenn  v.  Priest,  48  Fed.  Rep. 
19;  Nave  V.  Adams,  107  Mo.  414. 

Oregon. — Bays  v.  Trulson  (Oregon, 
1893),  35  Pac.  Rep.  26. 

North  Carolina. — Blackwell  v.  Dib- 
brell,  103  N.  Car.  270;  Harrison  v.  Hoff, 
102  N.  Car.  126. 

Ohio. — Fanning  v.  Hibernia  Ins.  Co., 
37  Ohio  344;  Meiss  v.  Gill,  44  Ohio  St. 

253- 

New  F<?r^.— Mandeville  v.  Avery, 
63  Hun  (N.  Y.)  624;  Dalrymple  v. 
Hunt,  5  Hun  (N.  Y.)  in;  Hendricks 
V.  Decker,  35  Barb.  (N.  Y.)  298. 

California. — Cave  v.  Crafts,  53  Cal. 
135;  Piercy  v.  Sabin,  10  Cal.  22,  70 
.'\m.  Dec.  692;  Hostler  z/.  Hays,  3  Cal. 
303;  Flandreau  v.  Downey,  23  Cal.  354; 
Davis  V.  Perley,  30  Cal.  631;  Semple 
V.  Wright,  32  Cal.  659;  Blood  v.  Mar- 
cuse,  38  Cal.  590,  99  Am.  Dec.  435; 
San  Francisco  v.  Spring  Valley  Water 
Works  Co.,  39  Cal.  475.  Contra,  Larum 
V.  Wilmer,  35  Iowa  244. 

When  there  has  been  no  opportunity 
to  plead  the  judgment,  it  may  be  relied 
on  as  evidence.  Wilkes  v.  Davies,  8 
Wash.  112.  See  Terry  v.  Munger,  49 
Hun  (N.  Y.)  560,  where  a  record  of  a 
former  recovery  was  admitted  as  a  pro- 
bative fact,  under  a  general  denial,  in 
an  action  for  conversion,  for  the  pur- 
pose of  disproving  a  conversion. 


843 


Hew  Matter.        ANSWERS  IN  CODE  PLEADING. 


What  is. 


i.  Fraud. — Fraud  is  new  matter,  and  when  intended  to  be  used 
as  a  defense  it  must  be  pleaded.* 

J.  Illegality  of  Contract.— A  defendant,  in  order  to  avail 
himself  of  facts  not  appearing  on  the  face  of  a  contract  to  estab- 
lish its  invalidity,  must  plead  them.* 


Cal.  597;  Davis  v.  Davis,  26  Cal.  23, 
85  Am.  Dec.  157;  Martin  z/.  Zellerbach, 
38  Cal.  311,  99  Am.  Dec.  365;  Etche- 
borne  v.  Auzerais,  45  Cal.  121. 

Washington. — Walker  v.  Baxter,  6 
Wash.  244. 

Texas. —KaW  v.  City  Nat.  Bank,  3 
Tex.  Civ.  App.  557. 

Missouri.  —  Central  Nat.  Bank  v. 
Doran,  109  Mo.  40;  Bray  v.  Marshall, 
75  Mo.  327;  Noble  V.  Blount,  77  Mo. 
235;  Miller  w.  Anderson,  19  Mo.  App. 
71;  Hammerslough  v.  Cheatham,  84 
Mo.  13;  Stones  v.  Richmond,  21  Mo. 
App.  17;  Weise  v.  Moore,  22  Mo.  App. 
530. 

Kansas. — Dwelling  House  Ins.  Co. 
-V.  Johnson,  47  Kan.  i. 

Contra. — Hostler  v.  Hays,  3  Cal.  303; 
Churchill  v.  Baumann,  95  Cal.  541; 
Stanley  v.  Green,  12  Cal.  148;  Cald- 
well V.  Auger,  4  Minn.  217,  77  Am. 
Dec.  515;  Guest  v.  Guest,  74  Tex. 
664. 

The  estoppel  must  be  pleaded  even 
though  the  proceeding  is  an  equitable 
one.  Central  Nat.  Bank  v.  Doran,  109 
Mo.  40. 

An  estoppel  by  election  to  take 
under  a  will  is  new  matter.  Noe  v. 
Splivalo,  54  Cal.  207;  Etcheborne  v. 
Auzerais,  45  Cal.  121;  McCarty  z'.  Rob- 
erts, 8  Ind.  150. 

Where  there  is  no  opportunity  to 
plead  the  estoppel  in  pais,  it  is  avail- 
able in  evidence.  Tyler  v.  Hall,  106 
Mo.  313;  Bank  v.  Pomeroy  Flour  Co., 
41  Ohio  St.  559.  See  Pennsylvania 
Co.  V.  Piatt,  47  Ohio  St.  366. 

1.  Colorado. — Tucker  v.  Parks,  7 
Colo.  63. 

Indiana. — Rose  v.  Hurley,  39  Ind. 
78;  Jenkins  v.  Long,  19  Ind.  28,  81  Am. 
Dec.  374;  Farmer  v.  Calvert,  44  Ind. 
209. 

Oregon. — Hoyt  v.  Clarkson,  23  Ore- 
gon 51;  Fleischner  f.  Kubli,  20  Oregon 
328. 

Minnesota. — Daly  z*.  Proetz,  20  Minn. 
411. 

Iowa. — Root  V.  Schaffner,  39  Iowa 
375;  Moore  v.  Moore,  39  Iowa  461. 

Wisconsin.  —  Cayon  v.  Dwelling 
House  Ins.  Co.,  68  Wis.  510. 


Texas. — Hoffman  v.  Cleburne  Bldg. , 
etc.,  Assoc.  2  Tex.  Civ.  App.  688;  Wil- 
lis z*.  Hudson,  63  Tex.  678. 

California. — California  Steam  Nav. 
Co.  V.  Wright,  8  Cal.  585;  Terry  z/. 
Sickles,  13  Cal.  427;  Churchill  v. 
Anderson,  56  Cal.  55;  McKiernan  v. 
Leuzen,  56  Cal.  61;  McCreary  v. 
Marston,  56  Cal.  403;  Brodrib  v.  Brod- 
rib,  56  Cal.  563;  Hayward  v.  Rogers, 
62  Cal.  34S. 

New  York. — Richtmeyer  v.  Remsen, 

38  N.  Y.  206;  Lefler  v.  Field,  50  Barb. 
(N.  Y.)407;  Dalrymple  z/.  Hillenbrand, 
62  N.  Y.  5,  20  Am.  Dec.  438;  Klinger 
V.  Bondy,  36  Hun  (N.  Y.)6oi. 

In  an  action  to  rescind  a  contract  on 
the  ground  of  fraud,  the  defense  of  a 
former  judgment  for  the  fraud  is  new 
matter.  Dalrymple  v.  Hunt,  5  Hun 
(N.  Y.)iii. 

In  a  suit  for  breach  of  promise  the 
fact  that  defendant's  promise  of  mar- 
riage was  obtained  by  plaintiff  fraudu- 
lently must  be  pleaded.  Leavitt  v. 
Cutler,  37  Wis.  46. 

If  a  deed  is  voidable  by  reason  of 
fraud,  this  is  new  matter;  otherwise, 
if  void.  Lombard  v.  Cowham,  34  Wis. 
486. 

The  defense  that  the  contract  sued 
on  was  made  in  fraud  of  creditors  is 
new  matter.  Carter  v.  Shotwell,  42 
Mo.  App.  663.    See  Claflin  v.  Sommers, 

39  Mo.  App.  419;  Pond  V.  Davenport, 
45  Cal.  225. 

Replevin. — The  rule  which  requires 
fraud  to  be  specially  pleaded  does  not 
apply  to  the  action  of  replevin.  Sopris 
V.  Truax,  i  Colo.  89.  Contra,  Frisbee 
V.  Langworthy,  11  Wis.  375. 

2.  IVeiv  York. — Milbank  v.  Jones,  127 
N.  Y.  370,  24  Am.  St.  Rep.  454;  Dingel- 
dein  v.  Third  Ave.  R.  Co.,  37  N.  Y.  575; 
Goodwin  v.  Massachusetts  Mut.  L. 
Ins.  Co.,  73  N.  Y.  480;  May  v.  Burras, 
13  Abb.  N.  Cas.  (N.  Y.  City  Ct.)  384; 
Haywood  v.  Jones,  10  Hun  (N.  Y.)  500; 
Schreyer  v.  New  York,  39  N.  Y.  Super. 
Ct.  i;  Vischer  v.  Bagg,  21  N.  Y.  Wkly. 
Dig.  399;  Honegger  v.  Wettstein,  94 
N.  Y.  252;  O'Toole  v.  Garvin,  3  Thomp. 
&  C.  (N.  Y.)  119. 

Oregon. — Buchtel  v.  Evans,  21  Ore- 


844 


New  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


k.  Justification. — Matters  in   justification   of  an   act  which, 
would  otherwise  be  unlawful  must  be  specially  pleaded.* 


gon  309;  Jameson  v.  Coldwell,  2q 
Oregon  144,  31  Pac.  Rep.  299. 

Washington. — Lyts  v.  Keevey,  5 
Wash.  606. 

Ohio. — Mathews  v.  Leaman,  24  Ohio 
St.  615. 

Minnesota. — Nash  v.  St.  Paul,  11 
Minn.  174;  Desnoyer  v.  L'Hereaux,  i 
Minn,  i;  Elfelt  v.  Smith,  i  Minn.  loi; 
Bank  of  Commerce  v.  Selden,  i  Minn. 
340;  Eaton  V.  Caldwell,  3  Minn.  134; 
Short  V.  McRea,  4  Minn.  78;  Caldwell 
V.  Bruggerman,  4  Minn.  270;  Finley 
V.  Quirk,  9  Minn.  194,  86  Am.  Dec.  93; 
Blackman  v.  Wheaton,  13  Minn.  326; 
Plummer  v.  Mold,  14  Minn.  532; 
O'Brien  v.  St.  Paul,  18  Minn.  176. 

Kentucky. — Denton  v.  Logan,  3  Met. 

(Ky.)434- 

Indiana. — Casad  v.  Holdridge,  50 
Ind. 529. 

California. — Sharon  v.  Sharon,  68 
Cal.  29. 

That  the  sale  counted  on  is  void  for 
having  been  made  without  a  license, 
must  be  set  up,  Boswell  v.  Welshoefer, 
9  Reporter  630;  Gilbert  v.  Sage,  5 
Lans.  (N.  Y.)  287. 

That  the  contract  was  made  in  vio- 
lation of  a  statute  imposing  a  penalty 
is  new  matter.  Harris  v.  White,  81 
N.  Y.  533;  O'Toole  v.  Garvin,  i  Hun 
(N.  Y.)92. 

And  so  is  a  defense  that  the  contract 
is  a  wagering  one.  Commiskey  z/.  Will- 
iams, 20  Mo.  App.  606;  Goodwin  v. 
Massachusetts  Mut.  L.  Ins.  Co.,  73 
N.  Y.  480. 

And  also  that  it  is  against  public 
policy.  Musser  v.  Adler,  86  Mo.  445; 
Milbank  v.  Jones,  127  N.  Y.  370,  24 
Am.  St.  Rep.  454. 

The  defense  that  the  plaintiff's  busi- 
ness is  unlawful  is  new  matter.  Inter- 
national, etc.,  R.  Co.  V.  Greenwood,  2 
Tex.  Civ.  App.  76. 

Where  a  carrier  is  sued  for  the  loss 
of  intoxicating  liquors,  the  defense 
that  the  same  were  held  for  an  unlaw- 
ful purpose  is  new  matter.  Bowen  v. 
Hale,  4  Iowa  430. 

And  so  is  the  defense  that  bonds 
were  illegally  issued.  German  Sav. 
Inst.  V.  Jacoby,  97  Mo.  617. 

Illegality  May  be  Shown  under  Denial. 
— The  U.  S.  Supreme  Court  has  held 
that  the  illegality  of  a  contract  may  be 
shown  under  a  general  denial.  The 
reason  given  for  this  holding  is  that 


a  court  is,  in  the  due  administration  of 
justice,  bound  to  refuse  its  aid  to  en- 
force an  illegal  contract,  though  its 
invalidity  be  not  specially  pleaded. 
Oscanyan  v.  Arms  Co.,  103  U.  S.  261. 

Compare  Ah  Doon  v.  Smith  (Ore- 
gon, 1893),  34  Pac.  Rep.  1093;  Tupper 
V.  Thompson,  26  Minn.  385;  Prost  v. 
More,  40  Cal.  347;  Hentz  v  Miner,  58 
Hun  (N.  Y.)  428;  Day  v.  Roth,  18  N.  Y. 
44S;  Mills  V.  Mills,  40  N.  Y.  546,  100 
Am.  Dec.  535;  Russell  v.  Burton,  66 
Barb.  (N.  Y.)  539;  Cary  v.  Western 
Union  Tel.  Co.  20  Abb.  N.  Cas  (N.  Y. 
Supreme  Ct.)  333;  O'Brien  j-.  McCann, 
58  N.  Y.,  376;  Clifford  v.  Dam,  81  N.Y. 
52;  Griffin  v.  Long  Island  R.  Co.,  loi 
N.  Y.  348. 

1.  In  an  action  to  recover  damages 
for  the  pollution  of  a  stream,  the  de- 
fense of  justification  by  virtue  of  a 
statute  must  be  pleaded.  Kellogg  v. 
New  Britain,  62  Conn.  233. 

If  in  the  commission  of  a  tort  by 
husband  and  wife  the  wife  acted  un- 
der marital  coercion,  this  is  new  mat- 
ter to  be  specially  pleaded.  Clark  v. 
Bayer,  32  Ohio  St.  299,  30  Am.  Dec. 
593- 

A  defendant  in  a  divorce  proceeding 
cannot  prove  indignities  offered  by  the 
plaintiff  unless  they  are  pleaded.  Miller 
V.  Miller,  14  Mo.  App.  418. 

Assault  and  Battery. — In  an  action  for 
assault  and  battery,  justification  must 
be  specially  pleaded.  Konigsberger 
V.  Harvey,  12  Oregon  286;  Atkinson 
V.  Harran,  68  Wis.  405;  Dailey  v. 
Houston,  58  Mo.  361 ;  Thomas  v  Werre- 
meyer,  34  Mo.  App.  665. 

Trespass  Quare  Clausum  Fregit. — All 
matters  justifying  a  trespass  on  land 
must  be  specially  pleaded.  Lentz  v. 
Victor,  17  Cal.  272;  Columbus  Co.  v. 
Dayton  Co.,  18  Cal.  615;  Pico  v.  Coli- 
mas,  32  Cal.  578;  Alferd  v.  Barnum, 
45  Cal.  482;  Johnson  v.  Cuddington, 
35  Ind.  43;  Carter  v.  Wallace,  2  Tex. 
206;  Klais  V.  Pulford,  36  Wis.  587. 

Slander. — In  slander  the  justification 
that  the  words  spoken  are  true  must 
be  pleaded.  Langton  v.  Hagerty,  35 
Wis.  151;  Duval  z/.  Davey,  32  Ohio  St. 
604. 

The    place   where   the   words   were 
spoken  and  the  circumstances  of  ex- 
cuse   or    privilege    are    new   matter. 
Gudger  v.    Penland,  108  N.  Car.  593 
23  Am.  St.  Rep.  73. 


845 


Hew  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


/.  Statute  of  Limitations. — It  is  a  fundamental  rule  of 
Code  pleading  that  the  statute  of  limitations,  when  relied  upon 
as  a  defense  to  an  action,  must  be  specially  pleaded.* 

False  Imprisonment. — In  an  action  for 
false  imprisonment  matter  in  justifica- 
tion must  be  pleaded.  Gallimore  v. 
Ammerman,  39  Ind.  323;  Boaz  v.  Tate, 
43  Ind.  61 ;  Wilson  v.  Manhattan  R.  Co. 
(C.  PL),  20  N.  Y.  Supp.  852;  Hutchin- 
son V.  Sangster,  4  Greene  (Iowa)  340. 

Thus,  if  the  defendant  relies  on  the 
bad  reputation  of  the  plaintiff  as  one 
of  the  circumstances  going  to  establish 
a  defense,  by  showing  that  he  had  rea- 
sonable ground  to  suspect  him  of  the 
crime  charged,  he  should  plead  it. 
Scheer  v.  Keown,  34  Wis.  350.  See  B. 
-zi.  I.,  22  Wis.  372;  Wilsonz*.  Noonan,  35 
Wis.  350;  Hill  V.  Palm,  38  Mo.  13; 
Moore  v.  .Sanborin,  42  Mo.  490. 

Justification  by  Officers. — All  matters 
which  justify  an  officer  in  executing  or 
in  refusing  to  execute  process  must  be 
pleaded.  Thus,  in  pleading  a  justifi- 
cation under  a  judgment,  the  judg- 
ment must  be  set  up  in  the  answer. 
Jacobs  V.  Remsen,  12  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  390.  See  Graham  v. 
Harrower,  18  How.  Pr.  (N.Y.  Supreme 
Ct.)  144. 

And  an  officer,  in  order  to  justify  the 
seizure  of  property  in  the  possession 
of  a  stranger  to  the  writ  which  he  has 
executed,  must  plead  specially  such 
justification.  Glazer  v.  Clift,  10  Cal. 
304;  Richardson  v.  Smith,  29  Cal.  530; 
Leszinsky  v.  White,  45  Cal.  278;  Pico 
V.  Kalisher,  55  Cal.  153. 

In  an  action  against  a  sheriff  for  a 
violation  of  his  duty  in  the  service  of 
an  attachment,  if  he  relies  on  matters 
occurring  after  its  issuance  and  oper- 
ating as  a  dissolution  of  the  same,  such 
matters  must  be  specially  pleaded. 
McComb  V.  Reed,  28  Cal.  281,  87  Am. 
Dec.  115. 

Matters  justifying  an  officer  in  re- 
fusing to  make  a  levy,  as,  for  instance, 
that  the  property  is  exempt,  must  be 
pleaded.  Kiskaddon  v.  Jones,  63  Mo. 
190. 

And  a  trial  by  sheriff's  jury,  justify- 
ing the  refusal  to  levy  an  attachment, 
must  be  pleaded.  Strong  v.  Patterson, 
6  Cal.  156. 

A  waiver  of  exemption,  as  a  defense 
to  an  action  for  unlawful  levy,  must  be 
pleaded.  Murphy  z/.  Sherman,  25  Minn. 
199. 

See  also  State  v.  Beckner  (Ind., 
1891),  26  N.    E.   Rep.  553,  where  it  is 


held  that,  under  a  general  denial,  in  an 
action  against  a  constable  and  his 
bondsmen  for  alleged  trespass  done  in 
virtue  of  his  office,  justification  may 
be  proved. 

1.  Arkansas. — Wassell  v.  Reardon, 
II  Ark.  705,  14  Am.  Dec.  245;  St. 
Louis,  etc.,  R.  Co.  v.  Brown,  49  Ark. 
253;  Hutchinson  v.  Hutchinson,  34 
Ark.  164. 

California. — Mathews  v.  Ferrea,  45 
Cal.  51;  De  Uprey  v.  De  Uprey,  23 
Cal.  352,  87  Am.  Dec.  81;  Lick  v.  Diaz, 
30  Cal.  65;  People  T/.  Broadway  Wharf 
Co.,  31  Cal.  35;  Norris  v.  Elliott,  39 
Cal.  73;  Grant  v.  Burr,  54  Cal.  301; 
McCreery  v.  Duane,  52  Cal.  262;  Mc- 
Creery  v.  Sawyer,  52  Cal.  257;  Smith 
V.  Richmond,  19  Cal.  477;  Weeks  v. 
Hahn,  20  Cal.  620;  Grattan  v.  Wig- 
gins, 23  Cal.  16;  Brown  v.  Martin,  25 
Cal.  82;  American  Co.  v.  Bradford,  27 
Cal. 362;  Farwell  z/.  Jackson,  28  Cal.  106. 

Colorado. — Meyer  v.  Binkleman,  5 
Colo.  262;  Chivington  v.  Colorado 
Springs  Co.,  9  Colo.  597;  Stevens  v. 
Andrews,  10  Colo.  402. 

Indiana. — Cass  County  z'.  Adams,  76 
Ind.  505;  Hanna  v.  Jeffersonville  R. 
Co.,  32  Ind.  213;  Perkins  v.  Rogers, 
35  Ind.  125,  9  Am.  Rep.  639;  Devar  v. 
Rerick,  87  Ind.  337;  Medsker  v. 
Pogue,  I  Ind.  App.  198;  Shewalter 
V.  Bergman,  123  Ind.  155;  Matlock  v. 
Todd,  25  Ind.  128;  Ross  v.  State,  131 
Ind.  548;  Kent  v.  Parks,  67  Ind.  53; 
Baugh  V.  Boles,  66  Ind.  377. 

Idaho. — Hydez*.  Lamberson,  i  Idaho 

539- 

Iowa. — Moulton  v.  Walsh,  30  Iowa 
361;  Springer  t/.  Clay  County,  35  Iowa 
241;  Robinson  v.  Allen,  37  Iowa  27; 
State  V.  Mclntire,  58  Iowa  572;  Shearer 
V.  Mills,  35  Iowa  499. 

Kentucky. — Chiles  v.  Drake,  2  Mete. 
(Ky.)  146,  74  Am.  Dec.  406;  Rankin  v. 
Tu'rney,  2  Bush  (Ky.)  555. 

Katisas. — Backus  v.  Clark,  i  Kan. 
303,  83  Am.  Dec.  437;  Zane  v.  Zane, 
5  Kan.  134;  Parker  v.    Berry,  12  Kan. 

351. 

Mittnesota. — Kennedy  z/.  Williams,  11 
Minn.  314;  Eastman  v.  St.  Anthony 
Falls,  etc.,  Co.,  12  Minn.  137;  Mc 
Ardle  z/.  McArdle,  12  Minn.  98;  Daven- 
port V.  Short,  17  Minn.  24;  Hoyt 
V.  McNeil,  13  Minn.  390;  Millette  v. 
Mehnike,  26  Minn.  306. 


846 


Hew  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


m.  Contributory  Negligence. — Contributory  negligence,  to 
be  available  as  a  defense,  must,  as  a  general  rule,  be  specially- 
pleaded.* 

n.  Statute  of  Frauds. — Some  authorities  hold  that  the 
defense  of  the  Statute  of  Frauds  cannot  be  made  available  in  an 
action  unless  pleaded  as  a  defense  or  presented  by  the  aver- 
ments of  the  complaint.'-*  The  probable  weight  of  authority, 
however,  is  to  the  effect  that  a  defendant  is  not  required  to  plead 
the  Statute  of  Frauds,  but  that  he  may  take  advantage  of  it  by 
objecting  to  the  introduction  of  any  evidence  except  such  as  the 
statute  prescribes.' 


Missouri.  —  Orr  v.  Rode,  loi  Mo. 
38S;  Bell  V,  Clark,  30  Mo.  App.  224; 
Harper  v.  Eubank,  32  Mo.  App. 
258;  Schuchman  v.  Heath,  38  Mo.  App. 
280;  Fairbanks  v.  Long,  91  Mo.  628. 

North  Carolina.  —  Long  v.  Bank,  81 
N.  Car.  41;  Guthrie  v.  Bacon,  107  N. 
Car.  338. 

Nebraska. — Alexander  v.  Meyers,  33 
Neb.  773;  Mills  v.  Rice,  3  Neb.  76; 
Scroggin  v.  National  Lumber  Co. 
{Neb.,  1894),  59  N.  W.  Rep.  548. 

Neiu  York.  —  Riley  v.  Corwin,  17 
Hun  (N.  Y.)  597;  Sands  v.  St.  John.  36 
Barb.  (N.  Y.)  628;  Baldwin  v.  Martin, 
14  Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)9; 
Dezengremel  v.  Dezengremel,  24  Hun 
(N.  Y.)  457;  Esselstyn  v.  Weeks,  12  N. 
Y.  636;  Miller  v.  Brenham,  68  N.  Y. 
84;  White  V.  Spencer,  14  N.  Y.  247; 
Cotton  V.  Maurer,  3  Hun  (N.  Y.)  552; 
Bihin  v.  Bihin,  17  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  19;  Vorhies  v.  Vorhies,  24 
Barb  (N.  Y.)  150;  Tomlinson  v.  Miller, 
7  Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  364. 
Co?npare  Falls  of  Neuse  Mfg.  Co.  v. 
Brooks,  106  N.  Car.  107;  Moore  v. 
Garner,  loi  N.  Car.  374;  Hobbs  v. 
Barefoot,  104  N.  Car.  225. 

In  an  action  to  surcharge  and  falsify 
and  restate  an  account,  the  statute  of 
presumptions,  instead  of  the  statute 
of  limitations,  is  proper  to  be  pleaded. 
Nunnery  ^'.  Averitt,  iii  N.  Car.  394. 

An  ackowledgment  in  writing  of 
the  existence  of  a  debt  to  save  it  from 
the  bar  of  the  statute  should  be 
pleaded.     Zoll  v.  Carnahan,  83  Mo.  35. 

For  a  treatment  of  the  subject  of  the 
statute  of  limitations,  see  article  Limi- 
tations, Statute  of. 

1.  Gram  v.  Northern  Pac.  R.  Co.,  i 
N.  Dak.  253;  Conlin  v.  San  Francisco, 
etc.,  R.  Co.,  36  Cal.  404;  Hudson  v. 
Wabash  Western  R.  Co.,  loi  Mo.  13; 
O'Connor  v.  Missouri  Pac.  R.  Co., 
94  Mo.    155;    Donovan    v.  Hannibal, 


etc.,  R.  Co.,  89  Mo.  147;  Schlereth 
V.  Missouri  Pac.  R.  Co.,  96  Mo.  509; 
Thompson  v.  North  Missouri  R. 
Co.,  51  Mo.  190,  II  Am.  Rep.  443; 
Loyd  V.  Hannibal,  etc.,  R.  Co.,  53  Mo. 
509;  Petty  V.  Hannibal,  etc.,  R  Co., 
88  Mo.  306;  Taylor  v.  Missouri  Pac. 
R.  Co.,  86  Mo.  457;  Bell  v.  Hannibal, 
etc.,  R.  Co.,  86  Mo.  599;  Young  v. 
Kansas,  27  Mo.  App.  loi;  Ellet  v.  St. 
Louis,  etc.,  R.  Co.,  76  Mo.  518;  Ams- 
den  V.  Dubuque,  etc.,  R.  Co.,  13  Iowa 
132;  Hudson  V.  Charleston,  etc.,  R. 
Co.,  1O4  N.  Car.  491. 

The  rule  that  the  defendant  must 
plead  as  new  matter  contributory  neg- 
ligence of  plaintiff  is  not  affected  by 
the  fact  that  plaintiff  anticipates  this 
and  alleges  his  own  care.  Hudson  v. 
Wabash  Western  Co.,  loi  Mo.  13. 
Contra,  Karle  v.  Kansas  City,  etc.,  R. 
Co.,  55  Mo.  482. 

For  a  treatment  of  the  subject  of 
pleading  and  practice  in  the  case  of 
contributory  negligence,  see  Con- 
tributory Negligence. 

2.  New  York. — Wells  v.  Monihan, 
129  N.  Y.  161;  Duffy  V.  O'Donovan,  46 
N.  Y.  223. 

Colorado. — Hunt  z/. Hay t,  10  Colo. 279. 

California. — Osborne  v.  Endicott,  6 
Cal.  149,  65  Am.  Dec.  498;  Peralta  v. 
Castro,  6  Cal.  358. 

North  Carolina. — Holler  z/.  Richards, 
102  N.  Car.  545. 

Missouri. — Gardner  v.  Armstrong, 
31  Mo.  536;  Maybee  v.  Moore,  90  Mo. 
340;  Sherwood  v.  Saxton,  63  AIo.  79; 
Donaldson  v.  Newman,  9  Mo.  App. 
235;  Taylor  v.  Penquite,  35  Mo.  App. 
3S9;  Rabsuhl  v.  Lack,  35  Mo.  316; 
Scharff  v.  Klein,  29  Mo.  App.  549; 
Graff  V.  Foster,  67  Mo.  512;  Gordon  v. 
Madden,  82  Mo.  193;  Allen  v.  Richard, 
83  Mo.  59. 

3.  South  Dakota. — Cosand  v.  Bun- 
ker, 2  S.  Dak.  295. 


847 


New  Matter.       A.VS  IVERS  IN  CODE  PLEADING. 


What  vs. 


0.  Want  and  Failure  of  Consideration. — Where  the 
contract  is  such  that  the  law  presumes  a  consideration,  the 
defense  of  a  want  of  consideration  is  new  matter.* 

p.  Leave  and  License. — The  defense  of  leave  and  license 
must  be  specially  pleaded.* 


North  Carolina. — Morrison  v.  Baker, 
8i  N.  Car.  77. 

Missouri. — Bernhardt  v.  Walls,  29 
Mo.  App.  206;  Wildbahn  v.  Robidoux, 
II  Mo.  659;  Hook  V.  Turner,  22  Mo. 
335;  Springer  j'.Kleinsorge, 83  Mo.  156. 

Kentucky. — Linn  Boyd  Tobacco 
Warehouse  Co.  v.  Terrill,  13  Bush 
(Ky.)463. 

New  ■  York. — Haight  v.  Child,  34 
Barb.  (N.  Y.)  186;  Marston  v.  Swett, 
66  N.  Y.  206,  23  Am.  Rep.  43;  Am. 
burger  v.  Marvin,  4  E.  D.  Smith  (N. 
Y.)  393;  Livingston  v.  Smith,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)  490;  Nu- 
glish  V.  Marvin,  128  N.  Y.  380. 

Miyinesota. — Wentworth  v.  Went- 
worth,  2  Minn.  277,  72  Am.  Dec.  97. 

Iowa. — Mahana  v.  Blunt,  20  Iowa 
142. 

Indiana. — Suman  v.  Springate,  67 
Ind.  115;  McMillen  v.  Terrell,  23  Ind. 
163. 

California. — Harris  v.  Frank,  81  Cal. 
281;  McDonald  v.  Mission  View  Home- 
stead Assoc,  51  Cal.  210. 

For  the  treatment  of  the  subject  of 
the  pleading  and  practice  relative  to 
the  Statute  of  Frauds,  see  Frauds, 
Statute  of. 

1.  University  v.  Livingston,  57  Iowa 
307,  42  Am.  Rep.  42;  Beeson  v.  How- 
ard, 44  Ind.  413;  Frybarger  v.  Cocke- 
fair,  17  Ind.  404;  Bingham  v.  Kim- 
ball, 17  Ind.  397;  Happe  v.  Stout,  2 
Cal.  460;  Brown  v.  Ready  (Ky.,  1893), 
20  S .  W.  Rep.  1036. 

A  Promissory  Note  imports  a  consid- 
eration; a  want  of  consideration  must 
be  pleaded.  Winters  v.  Rush,  34  Cal. 
137;  Patterson  v.  Gile,  i  Colo.  200; 
Munro  v.  King,  3  Colo.  238.  See 
Alden  v.  Carpenter,  7  Colo.  87. 

In  an  Action  for  Services  performed, 
if  defendant  relies,  as  a  defense,  upon 
an  agreement  that  they  should  be  ren- 
dered gratuitously,  he  should  specially 
plead  that  fact.  Scott  v.  Morse,  54 
Iowa  732. 

Anticipation  of  Defense. — But  if  the 
plaintiff  anticipates  the  defense  of  a 
want  of  consideration,  by  needlessly  al- 
leging that  there  was  a  consideration, 
he  must  prove  the  consideration,  and 
the  want  of    a  consideration  may  be 


proven  under  a  general  denial.     Bogie. 
V.  Nolan,  96  Mo.  95. 

Failure  of  Consideration  is  new  mat- 
ter. Williams  v.  Mellon,  56  Mo.  262; 
Smith  V.  Rembaugh,  21  Mo.  App.  390; 
Redman  v.  Hampton,  26  Mo.  App. 
504;  Higgins  V.  Germaine,  i  Mont. 
235;  Smith  V.  Sherwood,  2  Tex.  460; 
Keeble  v.  Black,  4  Tex.  69. 

Texas. — In  any  suit  founded  on  a 
note  or  other  instrument  in  writing, 
under  the  seal  of  the  party  charged 
therewith,  the  defendant  may,  by  a 
special  plea,  impeach  or  inquire  into 
the  consideration  thereof,  in  the  same 
manner  as  if  such  writing  had  not 
been  sealed;  but  the  plea  must  be 
verified  by  affidavit.  Stillman  v.. 
Canales,  39  Tex.  406;  Lemmon  v. 
Hanley,  28  Tex.  219;  Harris  v.  Cato, 
26  Tex.  338;  English  v.  Helms,  4  Tex. 
228;  Conner  v.  Autrey,  18  Tex.  427; 
Short  V.  Price.  17  Tex.  397;  Drew  v. 
Harrison,  12  Tex.  279;  Muckleroy  v. 
Bethany,  23  Tex.  163;  Vineyard  v. 
Smith,  34  Tex.  454;  Pierce  v.  Wright, 
33  Tex.  631;  Wimbish  v.  Holt,  26  Tex. 
673;  Clopton  V.  Pridgen,  8  Tex.  308; 
Williams  v.  Bailes,  9  Tex.  61. 

2.  A  license  to  enter  upon  and  oc- 
cupy land  for  any  purpose  must  be 
specially  pleaded.  Snowden  z/.  Wilas,  19 
Ind.  II,  81  Am.  Dec.  370;  Chase  v. 
Long,  44  Ind.  427;  Alford  v.  Barnum, 
45  Cal.  482. 

Under  a  plea  of  license  the  title  of 
land  does  not  come  in  question.  Rath- 
bone  V.  McConnell,  20  Barb.  (N.Y.)3ii. 

In  an  action  of  replevin,  if  the  de- 
fense is  that  the  defendant  holds  pos- 
session under  license  of  a  partner  of 
plaintiff,  it  must  be  specially  pleaded. 
Tell  V.  Beyer,  38  N.  Y.  161. 

In  an  action  to  recover  damages  for 
injuries  received  by  plaintiff  in  conse- 
quence of  falling  through  a  coal-hole 
in  the  sidewalk,  in  front  of  defendant's 
premises,  the  defense  that  there  was 
a  license  to  construct  the  hole  must 
be  specially  pleaded,  and  it  must  be 
alleged  that  the  terms  of  the  license 
were  complied  with.  Clifford  v.  Dam, 
81  N.  Y.  53.  See  also  Haight  v. 
Badgeley,  15  Barb.  (N.  Y.)499;  Beaty 
V.  Swarthout,  32  Barb.  (N.  Y.)  293. 


848 


New  Matter. 


ANSWERS  IN  CODE  PLEADING. 


What  is. 


g.  Champerty. — Champerty  is  new  matter,  and  must  be 
pleaded.* 

r.  Tender. — Tender  is  new  matter,  to  be  specially  pleaded.* 

s.  Accord  and  Satisfaction. — Accord  and  satisfaction  are 
new  matter.*     See  ACCORD  AND  Satisfaction,  ante,  p.  73. 

/.  Release. — Release  must  be  specially  pleaded.* 

u.  Ratification,  Subrogation,  and  Rescission. — Ratifica- 
tion, subrogation,  and  rescission  are  all  new  matter.  They  must 
be  pleaded.* 

V.  Award. — A  defendant  cannot  avail  himself  of  an  award  as  a 
bar  to  an  action  unless  he  alleges  it  as  such  in  his  answer.®  See 
article  Awards. 

w.  Immaturity  of  the  Indebtedness. — That  the  debt  is 
not  yet  due  is  new  matter,  to  be  pleaded.'' 

X.  Discharge  in  Bankruptcy. — A  discharge  in  bankruptcy 
is  not  a  bar  to  an  action  unless  it  is  pleaded.* 


1.  Moore  v.  Ringo,  82  Mo.  468; 
Brumback  v.  Oldham,  i  Idaho  710; 
Allison  V.  Chicago,  etc.,  R.  Co.,  42 
Iowa  274. 

Contra.  —  Champerty  need  not  be 
specially  pleaded.  If  the  fact  comes 
to  the  knowledge  of  the  court  in  any 
proper  manner,  it  will  refuse  longer 
to  entertain  the  proceeding.  Barker 
V.  Barker,  14  Wis.  131. 

2.  Bryan  v.  Maume,  28  Cal.  239 ; 
Hegler  v.  Eddy,  53  Cal.  597;  Meredith 
V.  Santa  Clara  Min.  Assoc,  56  Cal. 
178.     See  article  Tender. 

a  tender  after  the  commencement  of 
the  action  must  be  pleaded.  Hegler 
V.  Eddy,  53  Cal.  597. 

3.  Berdall  v.  Bissell,  6  Colo.  162; 
Fitch  V.  Brockmon,  2  Cal.  576;  Piercy 
Sabin,  10  Cal.  30,  70  Am.  Dec.  692; 
Coles  V.  Soulsby,  21  Cal.  47;  Sweet  v, 
Burdett,  40  Cal.  97;  McKyring  v.  Bull, 
16  N.  Y.  297,  69  Am.  Dec.  696;  Jacobs 
V.  Day,  5  Misc.  Rep.  (N.  Y.)  410. 

Contra. — Gavin  v.  Annan,  2  Cal.  494; 
McLarren  v.  Spalding,  2  Cal.  510; 
Looby  V.  West  Troy,  24  Hun  (N.  Y.) 
78. 

4.  Grunwald  v.  Freese  (Cal.,  1893), 
34  Pac.  Rep.  73;  Piercy  v.  Sabin,  10 
Cal.  22,  70  Am.  Dec.  692;  Coles  v. 
Soulsby,  21  Cal.  50;  Mulford  v.  Estu- 
dillo,  23  Cal.  95;  Seehorn  v.  Big  Mead- 
ows, etc.,  Wagon  Road  Co.,  60  Cal. 
240;  Bostwick  V.  McEvoy,  62  Cal.  503; 
McKyring  v.  Bull,  16  N.  Y.  297, 
69  Am.  Dec.  696.  Contra,  McLarren  v. 
Spalding,  2  Cal.  510. 

6.  Batification. — Noble  v.  Blount,  77 
Mo.  235;  Stows  V.  Richmond,  21  Mo. 
App.  17;  Fernean  v.  Whitford,  39  Mo. 


App.  311;  Kersey  v.  Garton,  77  Mo. 
645;  Capital  Bank  v.  Armstrong,  62 
Mo.  59;  Wade  v.  Hardy,  75  Mo.  399. 

Subrogation. — Aldrich  v.  Willis,  55 
Cal.  81. 

Rescission. — Reynolds  v.  Reynolds, 
45  Mo.  App.  622;  Riggins  v.  Missouri 
River,  etc.,  R.  Co.,  73  Mo.  598;  Brown 
V.  Weldon,  27  Mo.  App.  251. 

6.  Brazill  v.  Isham,  12  N.  Y.  9; 
Piercy  v.  Sabin,  10  Cal.  30,  70  Am. 
Dec.  692;  Bowen  v.  Lazalere,  44  Mo. 
383- 

In  an  action  for  work  and  labor,  the 
defense  that  the  plaintiff  agreed  to  ar- 
bitrate as  to  the  price  to  be  paid  must 
be  specially  pleaded.  Lautenschlager 
V.  Hunter,  22  Minn.  267. 

7.  Hargan  v.  Burch,  8  Iowa  309; 
Swan  Lamp  Co.  v.  Brush-Swan  Elec- 
tric Light  Co.,  61  N.  Y.  Super.  Ct.  ir. 

In  an  action  for  goods  sold  and 
delivered,  the  defense  that  notes  were 
given  in  payment,  which  are  not  yet 
due,  is  new  matter.  Ballinger  v. 
Lantier,  15  Kan.  608. 

In  an  action  upon  a  note,  it  is  a  suf- 
ficient ground  for  excluding  evidence 
of  the  fact  that  the  time  for  payment 
of  the  note  had  been  extended,  that  no 
such  defense  is  set  up  in  the  answer. 
Newell  V.  Salmons,  22  Barb.  (N.  Y.) 
647. 

8.  Cornell  v.  Dakin,  38  N.  Y.  253; 
Levy  V.  Haake,  53  Cal.  269;  Collins  v. 
Scheeline,  52  Cal.  450;  Goodhue  v. 
King,  55  Cal.  377. 

The  court  in  which  an  action  is 
pending  cannot  take  judicial  notice 
of  proceedings  in  banlcruptcy  subse- 
quently commenced,  however  seriously 


I  Encyc.  PI.  &  Pr.— 54. 


849 


New  Matter.        ANSWERS  IN  CODE  PLEADING. 


What  is. 


y.  Usury. — Usury  must  be  specially  pleaded.^ 

z.  BONA-FIDE  Purchaser — The  issue  of  "innocent  pur- 
chaser" cannot  be  raised  by  a  general  denial,  but  must  be  affirm- 
atively pleaded,  and  the  onus  of  proof  lies  on  the  pleader.* 

z\  Objection  to  Statute  or  Ordinance. — Any  objection 
to  a  statute  or  ordinance  upon  which  the  action  is  founded  is 
new  matter.' 

z\  Title  in  Action  of  Trespass.  —  Possession  is  suf- 
ficient to  enable  the  plaintiff  to  maintain  the  action  of  trespass 
qiiare  clausum  /regit.  In  such  an  action  the  plaintiff's  title,  if  not 
put  in  issue,  is  to  be  taken  on  the  trial  as  admitted.* 

z^.  Liens. — In  an  action  to  recover  property  the  defense  that 
the  defendant  has  a  lien  thereon  is  new  matter.* 


they  may  affect  the  rights  of  the  parties 
to  the  suit.  It  is  the  duty  of  the  court 
to  proceed  to  a  decree  as  between  the 
parties  before  it,  until  by  some  proper 
pleading  in  the  case  it  is  informed  of 
the  changed  relations  of  any  of  those 
parties  to  the  subject-matter  of  the 
suit.  Amador  Canal,  etc.,  Co.  v. 
Mitchell,  59  Cal.  i68. 

If  the  discharge  in  bankruptcy  is 
obtained  too  late  to  be  pleaded,  either 
originally  or  by  amendment,  the  rem- 
edy, it  seems,  is  by  motion  for  per- 
petual stay  of  execution.  Cornell  v. 
Dakin,  38  N.  Y.  253;  Palmer  v.  Hutch- 
ins,  I  Cow.(N.  Y.)42;  Baker  v.  Tay- 
lor, I  Cow.  (N.  Y.)  165. 

Composition  Agreement. — A  composi- 
tion agreement  with  creditors  is  new 
matter  to  be  specially  pleaded  when 
the  suit  is  on  original  demand.  Sweet 
V.  Burdett,  40  Cal.  97;  Smith  v.  Owens, 
21  Cal.  II. 

1.  Manning  v.  Tvler,  21  N.  Y.  567; 
Fay  V.  Grimsteld,'  10  Barb.  (N.  Y.) 
321;  Morford  v.  Davis,  28  N.  Y. 
481.     See  article  Usury. 

2.  Holdsworthf.  Shannon,  113  Mo. 
508;  Weaver  v.  Barden,  49  N.  Y.  286. 

3.  The  objection  that  a  statute  was 
not  constitutionally  passed  by  ayes  and 
noes,  during  the  presence  of  the  re- 
quired numbers,  must  be  set  up  by 
answer.     Darlington  71.  Mayor,  2  Robt. 

(N.Y.)274. 

In  condemnation  proceedings  the 
defense  that  there  are  irregularities  in 
the  proceedings  of  the  council  to  open 
a  street  is  new  matter.  Santa  Ana 
V.  Harlin,  99  Cal.  539. 

In  an  action  for  injuries  from  a  train 
on  the  ground  that  it  was  running  at 
a  rate  of  speed  in  excess  of  that  fixed 
by  ordinance,  defendant  cannot  show 


that  the  ordinance  is  unreasonable 
and  invalid  unless  such  defense  is 
specially  pleaded.  Bluedorn  v.  Mis- 
souri Pac.  R.  Co.  (Mo.,  1893),  24  S.  W. 
Rep.  57. 

4.  Althause  v.  Rice,  4  E.  D.  Smith 
(N.  Y.)  347;  Squires  v.  Seward,  16 
How.  Pr.  (N.  Y.  Supreme  Ct.)  478. 

In  an  action  for  diverting  a  stream, 
evidence  that  the  title  was  in  a  third 
person,  and  that  therefore  plaintiff  had 
no  right  in  the  stream,  is  new  matter. 
Hill  V.  Water,  etc.,  Com'rs,  77  Hun 
(N.  Y.)49I.  See  Ferris  v.  Brown  3 
Barb.  (N.  Y.)  105;  Mason  v.  Vestal,  88 
Cal.  396;  Patterson  v.  Clark,  20  Iowa 
429;  Dyson  v.  Ream,  9  Iowa  51. 

But  where  in  an  action  for  trespass 
the  complaint  alleges  both  title  and 
possession  in  plaintiff,  then  plaintiff's 
title  may  be  attacked  under  a  denial. 
Niles  V.  Lindsley,  8  How.  Pr.  (N.  Y. 
Super.  Ct.)  131. 

5.  Guille  V.  Fook,  13  Oregon  577; 
Stowell  V.  Otis,  71  N.  Y.  40. 

And  the  particular  lien  must  be 
pleaded.  Under  an  allegation  of  one 
lien,  a  different  one  cannot  be  shown. 
Graham  v.  Harrower,  18  How.  Pr.  (N. 
Y.  Supreme.  Ct.)  144.  See  Wehle  t^. 
Butler,  12  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
per. Ct.)  139. 

The  particulars  of  a  claim  adverse 
to  a  mortgage  lien  must  be  specially 
pleaded.  Mitchell  v.  Steelman,  8  Cal. 
369- 

Rent  paid  by  a  tenant  in  possession, 
in  advance  of  a  judgment  lien,  is  new 
matter.     Webster  v.  Cook,  38  Cal.  423. 

The  right  to  rents  as  against  a  me- 
chanic's lien  on  a  leasehold  interest  is 
new  matter.  Gaskill  v.  Moore,  4  Cal. 
233- 

And  so  is   the  loss  of  a  mechanic's 


850 


New  Matter.       ANSWERS  IN  CODE  PLEADING. 


What  is. 


2\  Mining  Rules  and  Customs. — Mining  rules  and  customs 
must  be  specially  pleaded  with  particularity.* 

z".  Mistake.— The  defense  of  •' mistake  "  in  an  instrumenfis 
new  matter.* 

z\  Release  of  Guarantors,  Indorsers,  and  Sureties. 
— Matters  operating  to  discharge  a  guarantor,  indorser,  or  surety 
are  new  matter,  to  be  pleaded.* 

z\  Contract  Not  Properly  Performed. — In  an  action  by 
a  contractor  to  recover  the  contract  price,  the  defense  that  the 
contractor  did  his  work  in  an  unworkmanhke  manner  is  new 
matter,  to  be  pleaded."* 

z\  All  Matter  in  Avoidance. — Lastly,  all  matter  in  avoid- 
ance of  the  cause  of  action  must  be  pleaded.* 


lien  by  acquiescence  in  the  surrender 
of  a  leasehold  interest.  Gaskill  v. 
Moore,  4  Cal.  233. 

1.  Dutch  Flat  Water  Co.  v.  Mooney, 
12  Cal.  534;  Esmond  v.  Chew,  15  Cal. 

137- 

Forfeiture  of  a  mining  claim  under 
local  mining  laws  must  be  specially 
pleaded,  and  cannot  be  shown  under 
the  general  issue.  Morenhaut  v.  Wil- 
son, 52  Cal.  263;  Dutch  Flat  Water  Co. 
V.  Mooney,  12  Cal.  534;  Du  Prat  v. 
James,  61  Cal.  361.  Contra,  Bell  v. 
Brown,  22  Cal.  671. 

2.  Com'rs,  etc.,  v.  Barnard,  98  Cal. 
199;  Warner  v.  Myrick,  16  Minn.  91. 

Where  the  answer  alleges  only  fraud, 
mistake  cannot  be  proved.  Leighton 
V.  Grant,  20  Minn.  345. 

That  a  deed  absolute  was  intended 
as  a  mortgage  is  new  matter.  Pico  v. 
Gallardo,  52  Cal.  206;  Davenport  v. 
Turpin,  43  Cal.  597. 

In  an  action  of  replevin  in  which  the 
plaintiff  relies  on  a  bill  of  sale,  the  fact 
that  such  bill  of  sale  is  a  mortgage  is 
new  matter.  McAnnulty  v.  Seick,  59 
Iowa  586. 

3  Horton  v.  Ruhling,  3  Nev.  498; 
Taylor  v.  Jeter,  23  Mo.  244;  Missouri 
Bank  v.  Matson,  24  Mo.  333;  Hemp- 
stead z/.  Hempstead,  27  Mo.  187;  Smith 
V.  Rice,  27  Mo.  505,  72  Am.  Dec.  281; 
Ferguson  v.  Turner,  7  Mo.  497;  Rucker 
V.  Robinson,  38  Mo.  154,  90  Am.  Dec. 
412;  Pitts  V.  Fugate,  41  Mo.  405; 
Headlee  v.  Jones,  43  Mo.  235;  Rice  v. 
Morton,  19  Mo.  263;  Mulford  v.  Estu- 
dillo,  23  Cal.  96;  People  v.  Ah  Luck, 
62  Cal.  503. 

A  levy  under  an  execution  upon  suf- 
ficient personal  property  to  discharge 
sureties  for  the  judgment  is  new  mat- 
ter.    Mulford  V.  Estudillo,  23  Cal.  95. 


4.  Kendall  v.  Vallejo,  i  Cal.  371; 
Blethen  v.  Blake,  44  Cal.  117;  McGuire 
V.  Quintana,  52  Cal.  427. 

5.  California. — Walton    v.   Minturn, 

1  Cal.  362;  Hathaway  v.  De  Soto,  21 
Cal.  192;  Perine  z/.  Teague,  66 Cal.  446; 
People  z/.  Todd,  23  Cal.  181;  Janin  v. 
Browne,  59  Cal.  46. 

Indiana. — Watkins  v.  Jones,  28  Ind. 
12;  Evansville  v.    Evans,  37  Ind.  230. 

Iowa.  —  Osborne  v.  Evans  (Iowa, 
1894),  58  N.  W.  Rep.  920. 

South  Dakota. — Wyckoff  z/.  Johnson, 

2  S.  Dak.  91. 

Missouri. — Meyer  v.  Broadwell,  83 
Mo.  571. 

New  York.  —  Dubois  v.  Hermance, 
56  N.  Y.  673;  Riggs  V.  American  Tract 
Soc,  84  N.  Y.  330;  Abbe  v.  Clarke,  31 
Barb.  (N.  Y.)  238;  Walrod  v.  Bennett, 
6  Barb.  (N.  Y.)  144;  Miner  v.  Beek- 
man,  50JN.  Y.  337;  Koehler  z/.  Adler,  19 
Abb.  L.  J.  (N.  Y.)  300;  Smith  v. 
Holmes,  19  N.  Y.  271;  Laraway  v.  Per- 
kins, 10  N.  Y.  371;  Douglas  v.  Haber- 
stro,  25  Hun  (N.  Y.)  262;  Wallace  v. 
Blake  (Super.  Ct.),  30  N.  Y.  St.  Rep. 
248;  Codd  V.  Rathbone,  19  N.  Y.  37; 
Brennan  v.  New  York,  62  N.  Y.  365; 
Maretzek  v.  Cauldwell,  19  Abb.  Pr. 
(N.  Y.  Super.  Ct.)  35;  Fox  v.  Turner 
(Supreme  Ct.),  17  N.  Y.  St.  Rep.  666; 
Burnside  v.  Matthews,  54  N.  Y.  78; 
German  Sav.  Bank  v  Carrington,  14 
N.  Y.  Wkly.  Dig.  475;  Willover  v. 
Hill,  72  N.  Y.  36. 

In  ejectment,  a  deed  to  the  defendant 
executed  subsequently  to  the  com- 
mencement of  the  action  is  admissible 
in  evidence  if  it  is  specially  pleaded  by 
supplemental  answer.  Roper  v.  Mc 
Fadden,  48  Cal.  346;  McLane  v.  Bo- 
vee,  35  Wis.  27. 

In  an  action  on  a  policy  of  insurance. 


851 


Joinder  of 


ANSWERS  IN  CODE  PLEADING. 


Defenses. 


XIV.  JoiNDEB  OF  Defenses.— 1.  Defendant  May  Plead  as  Many 
Defenses  as  He  Has. — The  general  rule  is  that  a  defendant  is  bound 
to  set  up  every  defense,  legal  or  equitable  or  both,  which  he  may 
have  to  the  action,  and  that  he  waives  those  not  pleaded.* 

2.  Manner  of  Pleading  Several  Defenses. — Completeness. — Each  de- 
fense separately  stated  as  a  separate  defense  must  be  in  itself 
complete,  and  must  contain  all  that  is  necessary  to  answer  the 
whole  cause  of  action,  or  to  answer  that  part  thereof  which  it 
purports  to  answer.  The  former  rule  in  this  respect  is  not  re- 
laxed by  the  Code.* 


the  fact  that  the  insured  person  in- 
creased the  risk  by  violating  the  con- 
ditions of  the  policy  is  new  matter, 
Cassacia  v.  Phoenix  Ins.  Co.;  28  Cal. 
629;  Tischler  v.  California  Farmers' 
Mut.  F.  Ins.  Co.,  66  Cal.  178;  also  that 
he  caused  the  building  to  be  burned, 
Capuro  V.  Builders'  Ins.  Co.,  39  Cal. 
123. 

The  incapacity  of  a  corporation  to 
purchase  and  hold  land,  when  used 
as  a  defense  to  an  action  for  spe- 
cific performance,  is  new  matter. 
Young  Men's  Christian  Assoc,  v.  Du- 
bach,  82  Mo.  475. 

So  is  the  defense  that  the  corpora- 
tion has  ceased  to  exist.  Heaston  v. 
Cincinnati,  etc.,  R.  Co.,  16  Ind.  275, 
79  Am.  Dec.  430. 

Custom. — A  special  custom  of  a  board 
of  brokers  is  new  matter.  Goldsmith 
V.  Sawyer,  46  Cal.  209. 

Exception.  —  Where  an  exception 
exists  which  constituted  a  defense, 
such  exception  should  be  pleaded. 
McCormick  v.  Holbrook,  22  Iowa  487, 
92  Am.  Dec.  400. 

Laches. — Laches  must  be  specially 
pleaded.  De  Witt  v.  Miller,  9  Tex. 
239;  Curlin  v.  Hendricks,  35  Tex    225. 

Duress.  —  Duress  must  be  specially 
pleaded.     Murdock  v.  Lewis,  26  App. 

234- 

Failure  to  Hake  Demand. — A  failure 
to  make  demand,  when  a  demand  is 
required  of  plaintiff,  is  new  matter. 
Weil  z/.  Tyler,  38  Mo.  545;  Beardslee 
V.  Boyd,  37  Mo.  180;  Reid  z'.  Mullins, 
43  Mo.  306;  Lee  v.  Casey,  39  Mo.  383; 
Westcott  V.  De  Montreuille,  30  Mo. 
252;  State  V.  Grupe,  36  Mo.  365. 

Instrument  not  Stamped. — The  de- 
fense that  an  instrument  is  not 
stamped  as  required  by  the  United 
States  revenue  laws  must  be  specially 
pleaded.  Glidden  v.  Higbee,  31  Iowa 
379. 


1.  Witte  V.  Lockwood,  39  Ohio  St. 
141;  Mott  V.  Burnett,  2  E.  D.  Smith, 
(N.  Y.)  51;  Phillips  V.  Gorham,  17  N. 
Y.  270;  Lattin  v.  McCarty,  41  N.  Y. 
107;  Melvin  v.  Stephens,  82  N.  Car. 
283;  Bean  v.  Western  North  Carolina 
R.  Co.,  107  N.  Car.  731;  Bell  v. 
Wright,  31  Kan.  237;  Kimball  v.  Mc- 
Intyre,  3  Utah  77;  Vail  v.  Jones,  31 
Ind.  467;  Youngs  v.  Bell,  4  Cal.  201; 
Carpentier  v.  Oakland,  30  Cal.  442. 

The  defendant  must  make  all  his 
defenses,  both  legal  and  equitable,  in 
his  answer;  and,  if  necessary,  transfer 
the  cause  to  the  equity  docket.  Reeve 
V.  Jackson,  46  Ark.  272. 

Both  a  legal  and  an  equitable  de- 
fense may  be  set  up  in  an  action  of 
ejectment.  Bodley  v.  Ferguson,  30 
Cal.  513. 

Quo  Warranto. — In  a  quo  warranto 
proceeding  the  defendant  may  set 
forth  in  his  answer  more  than  one  de- 
fense. People  V.  Stratton,  28  Cal. 
382. 

Missouri. — Proceedings  in  attach- 
ment are  excepted  out  of  the  rule  per- 
mitting the  setting  up  by  answer  as 
many  defenses  as  one  may  have. 
Houghland  v.  Dent,  52  Mo.  App.  237. 

Texas. — The  defendant  to  a  petition 
at  law  or  in  equity  should  at  once  file 
every  matter,  either  of  law  or  of  fact, 
which  he  deems  necessary  to  his  de- 
fense. McKensie  v.  Hamilton,  Dall. 
(Tex.)  461;  Smith  v.  Doak,  3  Tex.  215. 

2.  Baldwin  v.  U.  S.  Tel.  Co.,  54 
Barb.  (N.  Y.)  506;  Loosey  v.  Orser,  4 
Bosw.  (N.  Y.)  391;  Xenia  Branch 
Bank  v.  Lee,  7  Abb.  Pr.  (N.  Y.  Super. 
Ct.)  372;  Hammond  v.  Earle,  58  How. 
Pr.  (N.  Y.  Supreme  Ct.)  426;  Krutz 
V.  Fisher,  8  Kan.  96;  Davis  v.  Robin- 
son, 67  Iowa  355;  National  Bank  v. 
Green,  33  Iowa  140;  Cairo,  etc.,  R. 
Co.  V.  Parks,  32  Ark.  131;  Sumner  v. 
Shipman,  65  N.  Car.  623;  Keathley  v. 


852 


Joinder  of 


ANSWERS  IN  CODE  FLEADINC 


Defenses. 


Separate  Statement. — The  several  defenses  should  be  separately- 
stated,'  and  no  defense  can  be  aided  by  a  resort  to  other  parts  of 
the  answer  to  which  it  contains  no  reference  in  terms  or  by  neces- 
sary implication.*  But,  for  the  purpose  of  avoiding  repetiton  of  facts 


Branch,  88  N.  Car.  379;  Lash  v.  Ren- 
dell,  72  Ind.  475;  Frazee  v.  Frazee,  70 
Ind.  411;  Cornwell  v.  Finnell,  11  Ind. 
527;  Rogers  v.  Place,  29  Ind.  577; 
Bouslog  V.  Garrett,  39  Ind.  33S;  Al- 
vord  V.  Essner,  45  Ind.  156;  Reid  v. 
Huston,  55  Ind.  173;  Smith  v.  Little, 
67  Ind.  549;  Lemmon  v.  Hanley,  28 
Tex.  219;  Meyendorf  v.  Frohner,  3 
Mont.  282.  Compare  Cobb  v.  Frazee, 
4  How.  Pr.  (N.  Y.  Supreme  Ct.)  413; 
Swift  V.  Kingsley  24  Barb.  (N.  Y.) 
541;  Hamer  v.  McFarlin,  4  Den.  (N. 
Y.)509;  Ayres  v.  Covill,  18  Barb.  (N. 
Y.)  260;  Kneedler  v.  Sternbergh,  10 
How.  Pr.  (N.  Y.  Supreme  Ct.)  67; 
Brown  v.  Ryckman,  12  How.  Pr. 
(N.  Y.  C.  PI.)  313;  Van  Derveer  v. 
Sutphin,  5  Ohio  St.  294;  Van  Ingen 
V.  Newton,  i  Disney  (Ohio)  482; 
Seely  v.  Blair,  Wright  (Ohio)  683. 

Each  paragraph  of  an  answer  must 
be  complete  in  itself,  and  a  failure  to 
describe  the  piece  of  land  sought  to  be 
released  from  the  lien  of  a  mortgage 
would  be  a  fatal  defect  in  a  paragraph. 
Knarr  v.  Conaway,  42lnd.  260. 

Where  the  first  paragraph  of  a  com- 
plaint is  based  upon  a  special  contract 
to  furnish  material  and  erect  a  house 
for  the  defendant,  and  the  second  is 
based  upon  a  quantum  meruit  for  ma- 
terial furnished  and  labor  performed, 
paragraphs  of  the  answer  which  plead 
the  special  contract  and  allege  its 
breach,  each  being  pleaded  as  a  de- 
fense to  the  entire  complaint,  do  not 
constitute  a  defense  to  the  paragraph 
upon  the  quantum  meruit,  and  are  de- 
murrable. Everroad  v.  Schwartzkopf, 
123  Ind.  35.  See  Musser  v.  Crum,  48 
Iowa  53. 

The  general  rule  is  that  the  judg- 
ment is  given  on  the  whole  record. 
Swift  V.    Kingsley,   24  Barb.  (N.   Y.) 

541- 
Cannot  be  Construed  as  a  Counterclaim. 

— No  single  pleading  or  defense  can 
be  made  to  perform  the  double  func- 
tion of  alleging  matter  in  bar  of  an 
action,  and  at  the  same  time  of  setting 
up  a  cause  of  action  in  favor  of  the 
defendant.  Campbell  v.  Routt,  42 
Ind.  410. 

But  in  a  suit  upon  a  contract  a  cer- 
tain state  of  facts  may  at  the  same 


time  constitute  a  defense  to  the  action, 
and  be  a  proper  ground  of  counter- 
claim; and  if  pleaded  by  the  defendant 
in  this  double  aspect,  upon  a  single 
statement  of  facts  and  without  for- 
mally separating  the  defense  from  the 
counterclaim,  the  defect,  if  it  be  one, 
is  merely  formal,  and  objection  must 
be  made  by  motion.  Lancaster,  etc., 
Mfg.  Co.  V.  Colgate,  12  Ohio  St.  345. 
See  Mull  v.  Walker,  100  N.  Car.  46. 

1.  Adams  v.  Trigg,  37  Mo.  141; 
Donahue  v.  Prosser,  10  Iowa  276;  Ly- 
man V.  Corwin,  27  Ark.  580.  But  a 
defect  in  this  respect  is  reached  by 
motion  only.  Truitt  v.  Baird,  12  Kan. 
420. 

Where  an  answer  is  divided  into 
paragraphs  which  do  not  state  sepa- 
rate defenses,  but  which,  taken  to- 
gether, state  one  defense,  a  paragraph 
of  such  answer  is  not  subject  to  de- 
murrer. Benedict  v.  Hunt,  32  Iowa 
27. 

The  plaintiff  may  elect  to  reply  to 
separate  defenses,  although  they  are 
not  separately  stated.  Bass  v.  Upton, 
I  Minn.  408. 

See  Moore  v.  Edmiston,  70  N.  Car. 
510,  where  the  answer  in  a  slander 
case  was  construed  to  contain  the 
two  defenses  of  justification  and 
statute  of  limitations  ;  also  Forbes  v. 
Petty,  37  Neb.  899,  where  the  two 
pleas  of  arbitration  and  accord  and 
satisfaction  were  blended,  and  held 
good. 

Where  the  defenses  cover  the  entire 
complaint,  it  is  not  necessary  to  refer 
to  the  respective  causes  of  action  to 
which  they  are  respectively  intended 
to  refer.  Woods  v.  Reiss,  78  Hun 
(N.  Y.)  78. 

2.  Loosey  v.  Orser,  4  Bosw.  (N.  Y.) 
391;  Ritchie  v.  Garrison,  10  Abb.  Pr. 
(N.  Y.  Super.  Ct.)  246:  Baldwin  v.  U. 
S.  Tel.  Co.,  6  Abb.  Pr.  N.  S.  (N,  Y. 
Supreme  Ct.)  405;  Jackson  v.  Van 
Slyke,  44  Barb.  (N.  Y.)  116,  note; 
Spencer  v.  Babcock,  22  Barb.  (N.  Y.) 
326;  Xenia  Branch  Bank  v.  Lee,  7 
Abb.  Pr.  (N.  Y.  Super.  Ct.)  373;  Bene- 
dict V.  Seymour,  6  How.  Pr.  (N.  Y. 
Supreme  Ct.)  298;  Markham  v.  Barnes 
(Supreme  Ct.),  8  N.  Y.  St.  Rep.  502. 

A  defense   cannot  be  made  out  by 


853 


Joinder  of 


ANSWERS  IN  CODE  PLEADING. 


Defenses 


alike  applicable  to  each  of  several  defenses,  it  is  allowable  to  aver 
them  either  in  one  of  the  distinct  and  separate  statements  of  a 
defense,  etc.,  or  by  way  of  introduction  to  all,  and,  thereafter,  in 
the  subsequent  separate  statements,  to  include  them  in  each  by 
distinct  and  intelligible  reference.' 

How  stated. — While,  in  an  answer  under  the  Code,  each  state- 
ment intended  as  a  defense  must  be  complete  in  itself,  no  formal 
commencement  or  conclusion  is  required  to  mark  it  as  a  separate 
defense.* 

3.  Matter  in  Abatement,  and  Matter  in  Bar. — The  Code  has  abro- 
gated the  rule  of  the  common  law  that  matters  in  abatement 
must  be  pleaded  and  disposed  of  before  pleading  in  bar  to  the 
action.  Matters  in  abatement  and  in  bar  may  be  joined  in  one 
answer.' 


connecting  two  or  more  separate  de- 
fenses together.  Spencer  v.  Babcock, 
22  Barb.  (N.Y.)  326;  Ayraultz'.  Cham- 
berlain, 33  Barb.  (N.  Y.)  229;  Ritchie 
V.  Garrison,  10  Abb.  Pr.  (N.  Y.  Super. 
Ct.)  246;  Ryle  V.  Harrington,  4  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  421. 

1.  Krutz  V.  Fisher,  8  Kan.  96;  Mey- 
endorf  v.  Frohner,  3  Mont.  282;  Xenia 
Branch  Bank  v.  Lee.  7  Abb.  Pr.  (N. 
Y.  Super.  Ct.)  372;  Landau  v.  Levy,  i 
Abb.  Pr.  (N.  Y.  Super.  Ct.)376;  Bald- 
win V.  U.  S.  Tel.  Co.,  54  Barb.  (N.  Y.) 
506;  Ayrault  v.  Chamberlain,  33  Barb. 
(N.  Y.)  229;  Ayres  v.  Covill,  18  Barb. 
(N.  Y.)  260;  Sinclair  v.  Fitcli,  3  E.  D. 
Smith  (N.  Y.)  677. 

Where  the  note  sued  on  is  described 
or  mentioned  in  one  defense,  a  refer- 
ence in  a  subsequent  defense  to  the 
"said  note"  is  sufficient.  Williams  v. 
Richmond,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  522.  See  Ranney  v.  Smith,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  420. 

2.  Bridge  v.  Payson,  5  Sandf.  (N. 
Y.)  210;  Lippincott  v.  Goodwin,  8 
How.  Pr.  (N.  Y.  Supreme  Ct.)  242. 

Where  an  answer  was  divided  into 
paragraphs,  each  numbered  and  com- 
mencing with  the  words  "  and  de- 
fendant further  answering  says,"  it 
was  held  that  the  defendant  was  pre- 
cluded from  showing  that  the  para- 
graphs constituted  one  defense.  Nicoll 
V.  Fash,  59  Barb.  (N.  Y.)  275. 

To  commence  each  defense  with 
the  words  "and  for  a  further  de- 
fense "  is  sufficient.  Benedict  v.  Sey- 
mour, 6  How.  Pr.  (N.  Y.  Supreme  Ct.) 
298. 

Where  a  separate  defense  in  an 
answer  containsallegations  and  denials 
which  can  by  no   possibility  refer   to 


any  other  than  a  particular  cause  of 
action  set  out  in  the  complaint,  the 
defense  distinctly  refers  to  that  cause 
of  action.  Crasto  v.  White,  52  Hun 
(N.Y.)  473. 

The  words  "and  for  a  further  answer 
and  second  defense  "  are  a  sufficient 
compliance  with  the  Code  provision 
requiring  the  defenses  to  be  separate- 
ly stated  and  numbered.  No  figures 
are  necessary.  Mundy  v.  Wight,  26 
Kan.  173. 

The  Kule. — In  stating  defenses  there 
is  but  one  safe  rule,  and  that  is,  to 
indicate  distinctly,  by  fit  and  appro- 
priate words,  where  the  statement  of 
defense  commences  and  where  it  con- 
cludes. Lippincott  v.  Goodwin,  8  How. 
Pr.  (N.  Y.  Supreme  Ct.)  242;  Benedict 
V.  Seymour,  6  How.  Pr.  (N.Y.  Supreme 
Ct.)  298.  See  also  Boyce  v.  Brown,  7 
Barb.  (N.  Y.)  80;  Otis  v.  Ross,  8  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193;  Willet  7/. 
Metropolitan  Ins.  Co.,  2  Bosw.  (N.  Y.) 
678;  Ross  V.  Duffy  (Supreme  Ct.),  12 
N.  Y.  St.  Rep.  5S4;  Spencer  v.  Tooker, 
12  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  353; 
Hammond  v.  Earle,  58  How.  Pr.  (N. 
Y.  Supreme  Ct.)  426;  Myers  v.  Bank, 
of  Portsmouth  (Supreme  Ct.),  2  N.  Y. 
St.  Rep.  125;  Thompson  v.  Kearney 
(C.  P.),  12  N.  Y.  St.  Rep.  682;  Swift  v. 
Kingsley,  24  Barb.  (N.  Y.)  541;  Ayres 
V.  Covill,  18  Barb.  (N.  Y.)  260;  Towns- 
end  V.  Piatt,  3  Abb.  Pr.  (N.  Y.  C.  PI.) 
325;  Gardner  v.  Clark,  21  N.  Y.  399; 
Hamilton  v.  Hough,  13  How.  Pr.  (N.Y. 
Supreme  Ct.)  14;  Ketcham  v.  Zerega, 
I  E.  D.  Smith  (N.  Y.)  553. 

3.  Dawley  v.  Brown,  9  Hun.  (N.  Y.) 
462;  Owens  V.  Loomis,  19  Hun  (N.  Y.) 
607;  Gardner  v.  Clark,  21  N.  Y.  J99; 
Mayhew  v.  Robinson,  10  How.  Pr.  ^N. 


854 


Joinder  of 


ANSWEJiS  IN  CODE  PLEADING. 


Defenses. 


4.  States  Where  Inconsistent  Defenses  are  Allowed. — Some  states 
allow  absolutely  inconsistent  defenses  to  be  set  up,  and  no  mo- 
tion to  strike  out  or  elect  will  be  entertained.  In  these  states 
the  trial  is  the  only  thing  which  will  determine  which  defense  is 
true  and  which  false.* 


Y.  Supreme  Ct.);  162;  Sweet  v.  Tut- 
tle,  14  N.  Y.  465;  Bridge  v.  Payson,  5 
Sandf.  (N.Y.)2io;  Montague  v.  Brown, 
104  N.  Car.  161;  Woody  v.  Jordan,  69 
N.  Car.  189;  Hawkins  v.  Hughes,  87 
N.  Car.  115,  cited  in  104  N.  Car.  161; 
Page  V.  Mitchell,  37  Minn.  368;  Erb 
V.  Perkins,  32  Ark.  428;  Butcher  v. 
Dutcher,  39  Wis.  652;  Freeman  v.  Car- 
penter, 17  Wis.  130;  Hooker  t-.  Greene, 
50  Wis.  271;  Brown  County  v.  Van 
Stralen,  45  Wis.  675;  Christian  v.  Will- 
iams, III  Mo.  430;  Cohn  V.  Lehman, 
93  Mo.  574;  Byler  v.  Jones,  79  Mo.  261; 
Mclntirez'.  Calhoun,  27  Mo.  App.  513; 
Little  V.  Harrington,  71  Mo.  390. 
Thompson  v.  Greenwood,  28  Ind.  327, 
overruling  a  number  of  earlier  cases. 
But  compare  Moore  v.  Sargent,  112 
Ind.  484;  Midland  R.  Co.  v.  Steven- 
son, 6  Ind.  App.  207;  Stone  v.  Miller, 
7  Barb.  (N.  Y.)  368;  King  v.  Vander- 
bilt,  7  How.  Pr.  (N.  Y.  Supreme  Ct.) 
385;  Van  Buskirk  I/.  Roberts,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)6i;  Zabriskie 
V.  Smith,  13  N.  Y.  322,  64  Am.  Dec. 
551;  Gossling  V.  Broach,  i   Hilt.   (N. 

Y.)49- 

If  a  defendant  pleads  in  abatement 
only,  and  issue  is  joined  thereon,  this 
is  a  waiver  of  a  plea  in  bar.  Bond  v. 
Wagner,  28  Ind.  462;  Thompson  v. 
Greenwood,  28  Ind.  327.  See  Wright 
V.  Bundy,  11  Ind.  398. 

An  answer  in  the  nature  of  a  plea  in 
abatement  should  be  pleaded  sepa- 
rately and  disposed  of  before  an  an- 
swer to  the  merits  is  considered.  Hop- 
wood  V.  Patterson,  2  Oregon  50. 

Pleading  matter  in  abatement  with 
matter  in  bar  waives  the  matter  in 
abatement.  Cannon  v.  McManus,  17 
Mo.  345;  Bourgoint/.  Wheaton,  30  Mo. 
215;  Fugate  V.  Glasscock,  7  Mo.  577; 
Hatryz'.  Shuman,  13  Mo.  547;  Fordyce 
V.  Hathorn,  57  Mo.  120;  Rippstein  v. 
St.  Louis  Mut.  L.  Ins.  Co.,  57  Mo.  86; 
Moody  V.  Deutsch,  85  Mo.  237. 

A  plea  in  abatement  to  an  attach- 
ment for  rent  alleged,  among  other 
things,  that  all  the  said  rent  had  been 
fully  paid.  Held,  that  the  abatement 
was  waived  and  that  the  plea  was  a 
plea  in  bar.  Houghland  v.  Dent,  52 
Mo.  App.  237. 


See  also  article  Abatement  in 
Pleading. 

1.  Arkansas. — Mcllroy  v.  Buckner 
35  Ark.  555. 

California. — Billings  v.  Drew,  52  Cal. 
565;  Buhne  v.  Corbett,  43  Cal.  264. 
Contra. — Klink  z/.  Cohen,  13  Cal.  623; 
Hensley  v.  Tartar,  14  Cal.  509;  Blum 
V.  Robertson,  24  Cal.  146. 

In  ejectment  the  defendant  may  in 
one  defense  deny  his  possession,  and 
in  another  defense  admit  it,  and  a  mo- 
tion to  strike  out  one  of  these  defenses 
will  be  overruled.  Buhne  v.  Corbett, 
43  Cal.  264. 

In  an  action  of  ejectment,  where  the 
defendants  in  their  sworn  answer  de- 
nied being  in  possession,  though  in 
another  defense,  separately  pleaded, 
they  admitted  possession;  and  on  the 
trial  the  plaintiff,  relying  on  the  an- 
swer to  show  possession,  offered  no 
evidence  to  show  the  possession  of  de- 
fendants, held,  that  a  nonsuit  for  fail- 
ure to  show  possession  in  defendants 
was  correct.  Buhne  v.  Corbett,  43 
Cal.  264. 

An  amended  answer  contradicting 
the  original  answer  is  not  a  nullity. 
Livermore  v.  Webb,  56  Cal.  489. 

But  where  an  amended  answer  is 
complete  in  itself,  and  is  inconsistent 
with  the  original,  the  two  cannot  stand 
together.  Kuhland  v.  Sedgwick,  17 
Cal.  123. 

In  the  case  of  Bell  v.  Brown,  22  Cal. 
671,  it  was  held  that  if  a  fact  which  is 
directly  averred  in  one  part  of  a  veri- 
fied pleading  is  directly  denied  in  an- 
other part,  the  party  verifying  it  is 
guilty  of  perjury,  and  on  the  trial  that 
averment  which  bears  most  strongly 
against  the  pleader  will  be  taken  as 
true. 

But  it  has  also  been  held  that,  if  the 
answer  contains  several  defenses  sep- 
arately stated,  an  admission  made  in 
one  answer,  for  the  purpose  of  plead- 
ing a  separate  defense,  does  not  de- 
stroy :he  effect  of  a  denial,  in  another 
answer,  of  the  matter  thus  admitted. 
Siter  V.  Jewett,  33  Cal.  93,  See  Will- 
son  V.  Cleaveland,  30  Cal.  192. 

But  even  if  the  rule  prohibits  incon- 
sistent defenses,  which   is   doubtful, 


855 


Joinder  of 


ANSWERS  IN  CODE  PLEADING. 


Defenses. 


5.  What  Defenses  are  Inconsistent — introductory. — Two  prominent 
elements  intended  in  the  Code  system  of  pleading  are,  that  false- 
hoods should  not  be  put  upon  the  record,  and  that  the  pleadings 
should  disclose  the  facts  relied  on  in  support  of  or  defense 
again.st  the  action.*  Therefore  the  rule  is  general,  outside  of  the 
states  enumerated  in  the  note  to  the  preceding  paragraph,  that 
inconsistent  defenses  cannot  be  set  up.* 

Although  a  party  may  plead  incon- 
sistent defenses,  he  cannot  claim  prop- 
erty under  two  inconsistent  rights  at 
the  same  time.  Crawford  v.  Nolan, 
70  Iowa  97. 

And  a  defendant  cannot,  while  de- 
nying a  fact  essential  to  plaintiff's  re- 
covery, base  a  claim  for  affirmative 
relief  on  the  same  fact.  Baird  v.  Mor- 
ford,  29  Iowa  531. 

New  York. — It  is  doubtful  if  incon- 
sistent defenses  may  be  stricken  out. 
Woods  V.  Reiss,  78  Hun  (N.  Y.)  80; 
Societa  Italiana  v.  Sulzer,  138  N.  Y. 
472;  Goodwin  v.  Wertheimer,  99  N. 
Y.  149;  Bruce  v.  Burr,  67  N.  Y.  240; 
Smith  V.  Wells,  20  How.  Pr.  (N.  Y. 
Supreme  Ct.)  158;  Stiles  v.  Comstock, 
9  How.  Pr.  (N.  Y.  Supreme  Ct.)  48. 

A  defendant  may  set  up  as  many 
defenses  as  he  may  have,  whether  in- 
consistent or  not.  Societa  Italiana  v. 
Sulzer,  138  N.  Y.  468.  See  other  cases 
under  other  paragraphs  of  this  sec- 
tion. 

North  Carolina. — Reed  v.  Reed,  93  N. 
Car.  465;  Whedbee  v.  Reddick,  79  N. 
Car.  521;  Summer  v.  Shipman,  65  N. 
Car.  623;  Ten  Broeck  v.  Orchard,  79 
N.  Car.  518. 

South  Dakota. — Stebbins  v.  Lardner, 
2  S.  Dak.  127;  Lawrence  v.  Peck  (S. 
Dak.,  1893),  54  N.  W.  Rep.  808;  Green 
V.  Hughitt  School  Tp.  (S.  Dak.,  1894), 
59  N.  W.  Rep.  224. 

Texas. — St.  Louis,  etc.,  R.  Co.  v. 
Whitley,  77  Tex.  126;  Ft.  Worth,  etc., 
R.  Co.  V.  McAnulty  (Tex.  Civ.  App., 
1894,)  26  S.  W.  Rep.  414;  Fowler  v. 
Davenport,  21  Tex.  626;  Duncan  v. 
Mayette,  25  Tex.  245;  Express  Print- 
ing Co.  V.  Copeland,  64  Tex.  354;  Wel- 
den  V.  Texas  Continental  Meat  Co.,  65 
Tex.  487;  Hillebrant  v.  Booth,  7  Tex. 
499. 

But  each  plea  must  be  consistent  in 
its  own  averments.  Hillebrant  v. 
Booth,  7  Tex.  499. 

Wyoming. — Lake  Shore,  etc.,  R.  Co. 
V.  Warren,  3  Wyoming  135. 

1.  Bush  V.  Prosser,  11  N.  Y.  347. 

2.  Burnham  v.  Call,  2  Utah  433; 
Bell  V.  Campbell  (Mo.,  1894),  25  S.  W. 


still,  if  inconsistent  defenses  be  set 
up,  the  defect  must  be  reached  by  mo- 
tion to  strike  out,  or  in  some  cases  by 
demurrer.  And  if  no  objection  be 
taken  to  the  answer  on  this  ground, 
defendant  on  the  trial  may  rely  on 
any  of  his  defenses,  as  under  the  old 
system.  Klink  v.  Cohen,  13  Cal.  623; 
Uridias  v.  Morrell,  25  Cal.  31. 

Judgment  on  Pleadiftgs. — Inconsist- 
ent defenses  do  not  entitle  plaintiff 
to  judgment  on  the  pleadings.  Botto 
V.  Vandament,  67  Cal.  332;  Amador 
County  V.  Butterfield,  51  Cal.  526; 
Mudd  V.  Thompson,  34  Cal.  39;  Siter 
V.  Jewett,  33  Cal.  93. 

Colorado. — People  v.  Lothrop,  3  Colo. 
428;  Duffield  V.  Denver,  etc.,  R.  Co. 
(Colo.  App.,  1894),  36  Pac.  Rep.  622; 
Hummel  v.  Moore,  25  Fed.  Rep.   380. 

In  an  action  on  a  judgment,  nul  tiel 
record  and  accord  and  satisfaction  may 
both  be  set  up.  Tucker  v.  Edwards,  7 
Colo.  209. 

Indiana. — Weston  v.  Lumley,  33  Ind. 
486.  See  Wheeler  v.  Robb,  i  Blackf. 
(Ind.)  330;  Ricket  v.  Stanley,  6  Blackf. 
(Ind.)  169;  Arnold z/.  Sturges,  5  Blackf. 
(Ind.)  256,  cited  in  33  Ind.  489. 

The  statute  authorizes  the  defend- 
ant to  plead  as  many  pleas  as  he  thinks 
proper,  and  they  must  be  considered 
independent  of  each  other.  Wheeler 
V.  Robb,  I  Blackf.  (Ind.)  330;  approved 
in  Weston  v.  Lumley,  33  Ind.  489. 

Iowa. — Morgan  v.  Hawkeye  Ins.  Co., 
37  Iowa  359;  Grash  v.  Sater,  6  Iowa 
302;  Shannon  v.  Pearson,  10  Iowa  588. 

An  admission  in  one  defense  made 
necessary  by  the  nature  of  that  de- 
fense is  not  to  be  construed  as  affect- 
ing a  different  defense  inconsistent 
with  such  admission.  Barr  v.  Hach, 
46  Iowa  308;  Heinricks  v.  Terrell,  65 
Iowa  25;  Herzman  v.  Oberfelder,  54 
Iowa  83;  Tabler  v.  Callanan,  49  Iowa 
362;  Treadway  v.  Sioux  City,  etc.,  R. 
Co.,  40  Iowa  526;  Quigley  v.  Merritt, 
II  Iowa  147. 

But  contradictory  defenses  should 
not  be  pleaded  in  the  same  division. 
Morgan  v.  Hawkeye  Ins.  Co.,  37  Iowa 
359- 


856 


Joinder  of 


AN  SUPERS  IN  CODE  PLEADING. 


Defenses. 


A  Question  of  Fact. — But  the  consistency  in  defenses  required  by 
the  Code  is  one  of  fact  merely.  Two  or  more  defenses  are  held 
to  be  inconsistent  only  where  the  proof  of  one  necessarily  dis- 
proves the  other.  But  the  facts  should  be  so  set  out  in  the  an- 
swer that  both  defenses  may  be  true.* 

What  Defenses  May  Be  Pleaded  with  a  General  Denial. — A  denial  and  affir- 
mative defenses  may  both  be  set  up.*  A  general  denial  is  not 
inconsistent  with  a  special  plea  of  payment.^  And  a  general  de- 
nial of  the  execution  of  a  contract  is  not  inconsistent  with  a  plea 
of  want  of  consideration.* 

In  an  action  on  a  note  the  defendant  may  set  up  a  denial  of 
the  making  of  the  note,  and  also  that,  if  his  signature  is  genuine, 
it  was  obtained  by  fraud.* 


Rep.  359  ;  Brown  v.  Bowen,  90  Mo. 
190;  McClanahan  v.  West,  100  Mo. 
322.     See  cases  under  next  paragraph. 

1.  Nelson  v.  Brodhack,  44  Mo.  596, 
100  Am.  Dec.  328;  Cohn  v.  Lehman, 
93  Mo.  574;  Ledbetter  v.  Ledbetter,  88 
Mo.  60;  State  v.  Rogers,  79  Mo.  283; 
McAdow  V.  Ross,  53  Mo.  199;  McCor- 
mickz/.  Kaye,  41  Mo.  App.  263;  Mcln- 
tire  V.  Calhoun,  27  Mo.  App.  513. 

The  inconsistent  defenses  which  are 
allowed  to  be  pleaded  in  a  verified  an- 
swer are  not  such  as  require  in  their 
statement  a  direct  contradiction  of  any 
fact  elsewhere  directly  averred.  They 
are  those  in  which  the  inconsistency 
arises  rather  by  implication  of  law,  be- 
ing in  the  nature  of  pleas  of  confession 
and  avoidance  as  contradistinguished 
from  denials,  the  party  impliedly  or 
hypothetically  admitting, /i?r  the  pur- 
pose of  that  particular  defense,  a  fact 
which  he  notwithstanding  insists  does 
not  in  truth  exist.  Bell  v.  Brown,  22 
Cal.  671. 

The  Code  contains  no  limitation 
upon  the  provision  that  the  defendant 
may  set  forth  as  many  grounds  of  de- 
fense as  he  may  have,  except  the  im- 
plied limitation  contained  in  the  re- 
quirement that  the  pleadings  shall  be 
verified  by  oath.  Citizens'  Bank  v. 
Closson,  29  Ohio  St.  78. 

"Under  our  system  of  pleading  a 
defendant  may  set  up  as  many  de- 
fenses as  he  may  have,  the  only  limit 
to  this  right  being  that  they  must  not 
be  inconsistent.  Separate  and  distinct 
defenses  are  consistent  when  both  may 
be  true,  and  are  held  inconsistent  when 
the  proof  of  one  necessarily  disproves 
the  other."  Per  Collins,  J.,  in  Steener 
son  V.  Waterbury,  52  Minn.  211.  And 
see  Blodgett  v.  McMurtry  (Neb.,  1894), 


57  N.  W.  Rep.  985  ;   Pavey  v.  Pavey, 
30  Ohio  St.  600. 

2.  Woods  V.  Reiss,  78  Hun  (N.  Y.) 
78.  Contra,  Adams  v.  Trigg,  37  Mo. 
141;  Kinman  v.  Cannefax,  34  Mo.  147; 
Coble  V.  McDaniel,  33  Mo.  363;  Atte- 
berry  v.  Powell,  29  Mo.  429,  77  Am. 
Dec.  579;  McCord  v.  Doniphan  Branch 
R.  Co.,  21  Mo.  App.  92;  Darrett  v. 
Donnelly,  38  Mo.  492. 

3.  Steenerson  v.  Waterbury,  52 
Minn.  211;  Doran  v.  Dinsmore,  20 
How.  Pr.  (N.  Y.  Supreme  Ct.)  504. 
Contra,  Sheppard  v.  Starrett,  35  Mo. 
367. 

In  a  suit  on  a  note,  the  plea  of  pay- 
ment is  not  inconsistent  with  a  denial 
of  the  plaintiff's  ownership,  nor  is  it 
in  any  sense  an  admission  thereof. 
Cavitt  V.  Thorp,  30  Mo.  App.  131. 

A  defendant,  when  sued  to  recover 
the  value  of  services  rendered,  may 
deny  that  the  services  were  rendered, 
and  also  allege  that,  if  rendered,  their 
value  was  less  than  the  amount 
claimed.  Weaver  v.  Carnahan,  37 
Ohio  St.  363. 

4.  Barnes  v.  Scott,  29  Fla.  285;  Mul- 
liken  v.  MuUiken  (Ky.,  1894),  25  S.  W. 
Rep.  598;  Pavey  v.  Pavey,  30  Ohio  St. 
600. 

In  an  action  on  a  note,  the  defenses 
non  est  factum,  want  of  consideration, 
and  payment  are  not  inconsistent. 
Patrick  v.  Boonville  Gas  Light  Co.,  17 
Mo.  App.  462. 

6.  Citizens'  Bank  v.  Closson,  29  Ohio 
St.  78. 

But  in  a  suit  on  a  contract  a  denial 
of  the  making  of  the  contract,  and  an 
averment  that  the  defendants  were  in- 
duced to  make  the  contract  by  the 
false  and  fraudulent  representations 
of  the  plaintiffs,  are  inconsistent  de- 


857 


Joinder  of 


ANSWERS  IN  CODE  PLEADING. 


Defenses. 


The  pleas  of  a  general  denial  and  of  a  general  release  are  not 
inconsistent.* 

A  general  denial  and  the  statute  of  limitations  are  not  legally 
inconsistent  with  each  other.* 

In  an  action  for  assault  and  battery,  a  positive  denial  of  the 
trespass  is  not  waived  by  a  subsequent  plea  of  justification  in  the 
same  answer.^ 

In  an  action  for  slander  or  libel  a  plea  of  the  general  issue  and 
pleas  of  justification  are  not  inconsistent.* 

In  a  real  action  the  defendant  may  plead  that  he  is  the  owner 
in  fee,  and  also  that  the  ownership  is  in  some  person  other  than 
himself  or  the  plaintiff.* 


fenses.  The  general  denial  should  be 
struck  out.  Marx  v.  Gross,  58  N.  Y. 
Super.  Ct.  221;  Mclntire  v.  Wiegand 
(City  Ct.),  10  N.  Y.  Supp.  3. 

1.  Kellogg  V.  Baker,  15  Abb.  Pr.  (N. 
Y.  Super.  Ct.)  2S6;  Nelson  v.  Brod- 
hack,  44  Mo.  596,  100  Am.  Dec.  328. 

2.  Lawrence  v.  Peck  (S.  Dak.,  1893), 
54  N.  W.  Rep.  808;  May  v.  Burk,  80 
Mo.  675;  Schuchman  z/.  Heath,  38  Mo. 
App.  280;  Ostrom  v.  Bixby,  9  How. 
Pr.  (N.  Y.  Supreme  Ct.)  57. 

3.  Rhine  v.  Montgomery,  50  Mo. 
566;  Hollenbeck  v.  Clow,  9  How.  Pr. 
(N.  Y.  Supreme  Ct.)  289;  Lansingh  v. 
Parker,  9  How.  Pr.  (N.  Y.  Supreme 
Ct.)  288.  See  Johnson  v.  Gibson,  23 
N.  Y.  Wkly.  Dig.  433. 

Three  defenses,  amounting  in  sub- 
stance to  pleas  of  "not  guilty,"  "son 
assault  demesne,"  and  "  molliter  manus 
imposuit,  are  consistent  both  at  com- 
mon law  and  under  the  Code.  Rhine 
V.  Montgomery,  50  Mo.  566. 

And  a  general  denial,  justification, 
and  the  statute  of  limitations  are  not 
inconsistent.  McCormick  v.  Kaye,  41 
Mo.  App.  263. 

Contra. — A  general  denial  and  justi- 
fication are  inconsistent,  and  one 
should  be  struck  out.  Schneider  v. 
Schultz,  4  Sandf.  (N.  Y.)  684;  Roe  v. 
Rogers,  8  How.  Pr.  (N.  Y.  Supreme 
Ct.)  356. 

4.  Murphy  v.  Carter,  i  Utah  17; 
Wood  V.  Hilbish,  23  Mo.  App.  390; 
Hollenbeck  v.  Clow,  9  How.  Pr.  (N. 
Y.  Supreme  Ct.)  289;  Butler  v.  Went- 
worth,  9  How.  Pr.  (N.  Y.  Supreme  Ct.) 
282;  Ormsby  v.  Douglas,  5  Duer  (N. 
Y.)665.  Contra. — Porter  t/.  McCreedy, 
I  Code  Rep.  N.  S.  (N.  Y.)  88;  Sayles 
V.  Wooden,  6  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  84  ;  Anibal  v.  Hunter,  6 
How.  Pr.  (N.  Y.  Supreme  Ct.)  255; 
Ormsby  v.  Douglass,  2  Abb.   Pr.  (N. 


Y.    Super.     Ct.)    407  ;     Atteberry    v. 
Powell,  29  Mo.  429,  77  Am.  Dec.  579. 

In  an  action  for  slander  a  general 
denial  is  not  inconsistent  with  a  de- 
fense that  the  plaintiff  was  guilty  of 
the  misconduct  which  the  words  im- 
port. Ormsby  v.  Douglas,  5  Duer 
(N.  Y.)665. 

Mitigating  Circumstances.  —  In  an 
action  for  libel  or  slander  mitigating 
circumstances  may  be  pleaded  in  con- 
nection with  a  general  denial,  and 
with  or  without  a  plea  of  justification. 
Bush  V.  Prosser,  11  N.  Y.  347;  Bisbey 
V.  Shaw,  12  N.  Y.  67  ;  Dolevin  v. 
Wilder,  7  Robt.  (N.  Y.)  319.  Contra, 
Meyer  v.  Schultz,  4  Sandf.  (N.  Y.) 
664. 

5.  Moore  v.  Willamette  Transp., 
etc.,  Co.,  7  Oregon  356. 

In  an  action  of  ejectment  by  heirs 
against  a  purchaser  at  an  adminis- 
trator's sale,  where  the  plaintiffs  rely 
on  an  informality  in  the  sale  to  defeat 
it,  the  defense  that  the  heirs  have  not 
refunded  the  purchase-money  is  not 
inconsistent  with  the  plea  of  the  stat- 
ute of  limitations.  Schaefer  v.  Causey, 
8  Mo.  App.  142. 

In  Kyser  v.  Cannon,  29  Ohio  St. 
359,  it  was  held  that  where  in  eject- 
ment the  defendant  denied  the  plain- 
tiff's title  and  right  of  possession,  and 
also  pleaded  the  statute  of  limitations, 
the  second  defense  was  surplusage. 
See  also  Rhodes  v.  Gunn,  35  Ohio  St. 
387. 

But  in  an  action  of  ejectment  the 
defendant  cannot  deny  the  title  of  the 
grantor  of  the  plaintiff  and  at  the 
same  time  claim  as  purchaser  under 
the  same  grantor  ;  and  he  may  be 
compelled  to  elect.  Fugate  v.  Pierce, 
49  Mo.  441. 

In  an  action  of  ejectment  an  equit- 
able defense  seeking  afl5rmative  reliet 


858 


Joinder  of 


ANSWERS  IN  CODE  PLEADING. 


Defenses. 


And  in  general  any  affirmative  defense  may  be  joined  with  a 
denial,  provided  it  is  possible  for  both  defenses  to  be  true.^ 

The  Statute  of  Limitations  Joined  with  Other  Affirmative  Defenses. — The  plea 
of  the  statute  of  limitations,  besides  being  allowed  to  be  joined 
with  a  denial,  may  be  joined  with  other  affirmative  defenses.* 

Fraud  and  Breach  of  Warranty. — Fraud  in  the  making  of  a  contract, 
and  also  a  breach  of  warranty  contained  in  the  same  contract,  are 
not  inconsistent  defenses.' 

All  Affirmative  Defenses  May  Be  Joined. — In  analogy  to  the  rule  that  an 
affirmative  defense  may  be  joined  with  a  denial  when  both  may 
be  true,  two  affirmative  defenses  may  be  joined  when  the  proof 
of  one  does  not  disprove  the  other.'* 


is  inconsistent  with  a  denial.  Coch- 
ran z^.  Webb,  4  Sandf.  (N.  Y.)  653.  See 
Dewey  v.  Hoag,  15  Barb.  (N.  Y.)  365. 

1.  Mott  V.  Burnett,  2  E.  D.  Smith 
(N.  Y.)  50,  infancy  and  a  general  de- 
nial; Otis  V.  Ross,  8  How.  Pr.  (N.  Y. 
Supreme  Ct.)i93;  Anonymous,  i  Code 
Rep.  (N.  Y.)  134;  Arnold  v.  Dimon,  4 
Sandf.  (N.  Y.)  680;  Freeman  v.  Frank, 
10  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  370; 
Lewis  V.  Acker,  11  How.  Pr.  (N.  Y. 
Supreme  Ct.  163. 

In  an  action  for  false  representa- 
tions a  general  denial  and  also  a  plea 
that  the  representations  are  true  are 
not  inconsistent.  Otis  v.  Ross,  8  How. 
Pr.  (N.  Y.  Supreme  Ct.)  193. 

And  a  plea  of  general  denial  and 
one  of  ratification  are  not  inconsistent. 
Moore  v.  Macon  Sav.  Bank,  22  Mo. 
App.  684. 

In  an  action  to  recover  possession 
of  personal  property  the  defendant 
may  answer  by  a  general  denial  and 
also  set  up  a  justification.  Hackleyz^. 
Ogmun,  ID  How.  Pr.  (N.  Y.  Supreme 
Ct.)  45.  See  Townsend  v.  Piatt,  3 
Abb.  Pr.  (N.  Y.  C.  PI.)  325. 

And  a  plea  of  estoppel  in  pais  may 
be  joined  with  a  general  denial.  Blod- 
gett  V.  McMurtry  (Neb.,  1894),  57  N. 
W.  Rep.  985.  See  also  Grady  v. 
American  Cent.  Ins.  Co.,  60  Mo.  117; 
McAdow  V.  Ross,  53  Mo.  199;  Spencer 
V.  Tooker,  12  Abb.  Pr.  (N.  Y.  Supreme 
Ct.)  353;  Petrakion  z/.  Arbelly,  23  Civ. 
Pro.  Rep.  (N.  Y.  C.  P.)  184;  Arnold  v. 
Dimon,  4  Sandf.  (N.  Y.)  680;  Radde 
V.  Ruckgaber,  3  Duer  (N.  Y.)  684; 
Livingston  v.  Harrison,  2  E.  D.  Smith 
(N.  Y.)  197,  holding  that  denial  and 
tender  are  inconsistent. 

2.  It  may  be  pleaded  with  accord 
and  satisfaction,  Conway  v.  Wharton, 
13  Minn.  158;  and  with  a  plea  that  the 


note  sued  on  was  given  for  the  accom- 
modation of  plaintiff,  Ostrom  v.  Bixby, 
9  How.  Pr.  (N.  Y.  Supreme  Ct.)  57. 

But  see  Adair  v.  Adair,  78  Mo.  630, 
where,  in  a  suit  to  enforce  a  vendor's 
lien  it  was  held  that  a  plea  of  payment 
waived  a  plea  of  the  statute  of  limita- 
tions. 

The  two  defenses — a  bar  of  the  stat- 
ute of  limitations  to  an  action  for  a 
balance  struck  between  partners,  and 
a  claim  by  defendant  of  a  balance  due 
on  the  same  account — are  inconsistent. 
Auld  V.  Butcher,  2  Kan.  136. 

3.  Kelly  v.  Bernheimer,  3  Thomp.  & 
C.  (N.  Y.)  140,  where  the  defendant 
was  allowed  to  set  up  a  breach  of  war- 
ranty and  also  fraud  in  the  representa- 
tions as  to  the  quality  of  the  grain 
sold. 

The  defense  of  a  rescission  on  the 
ground  of  fraud  or  mistake  may  be 
joined  with  one  of  breach  of  warranty. 
Bruce  v.  Burr,  67  N.  Y.  237. 

4.  In  an  action  of  trespass  the  de- 
fense that  plaintiff  is  not  the  owner  is 
not  inconsistent  with  the  defense  of 
license.  Booth  v.  Sherwood,  12  Minn. 
426. 

Usury,  extension  of  time  to  the  prin- 
cipal debtor,  and  payment  are  con- 
sistent defenses.  Shed  v.  Augustine, 
14  Kan.  282. 

But  usury  and  tender  are  incon- 
sistent, and  the  plea  of  tender  should 
be  stricken  out.  Breunich  v.  Wesel- 
man,  100  N.  Y.  609. 

And  see  Kline  v.  Hanke  (Mont., 
1894),  36  Pac.  Rep.  454;  Luckett  v.  Will- 
iamson, 37  Mo.  388;  Grier  Commission 
Co.  V.  Dockstader,  47  Mo.  App.  42; 
Hooven,  etc.,  Co.  v.  National  Cordage 
Co.,  27  Wkly.  L.  Bull.  (Ohio)  r8;  Mc- 
Mullen  V.  Rafferty,  89  N.  Y.  456;  Brown 
V.  Porter,  7  Wash.  327,  where  the  de- 


859 


Joint  and 


ANSWERS  IN  CODE  PLEADING. 


Several. 


6.  Eemedies  for  Inconsistency — Election. — Where  the  defenses  are 
inconsistent,  the  defendant  may  be  required  to  elect  which  he  will 
rely  on.* 

Bound  by  Allegations  Against  Him. — Some  authorities  hold  that  where 
allegations  in  different  defenses  are  inconsistent  with  each  other, 
the  defendant  is  bound  by  those  against  him.* 

Waiver. — If  inconsistent  defenses  are  set  up,  advantage  of  the 
irregularity  must  be  taken  by  motion  or  demurrer,  otherwise  the 
defect  is  waived,  and  upon  the  trial  the  party  may  rely  upon  such 
defenses.* 

XV.  Joint  and  Seveeal  Answees— 1.  The  Right  to  Join  in  an 
Answer — Optional  to  Join. — There  is  no  limit  to  the  right  of  proper 
parties  defendant  to  join  in  an  answer,  the  averments  of  which 
they  are  able  and  willing  to  verify  in  accordance  with  the  require- 
ments of  the  Code.* 


fenses  were  held  consistent.  Also  see 
Bell  V.  Campbell  (Mo.,  1894),  25  S.  W. 
Rep.  359,  and  Smith  v.  Culligan,  74 
Mo.  388,  where  the  defenses  were 
held  inconsistent. 

1.  Shellenbarger  v.  Biser,  5  Neb. 
195;  Cook  V.  Finch,  19  Minn.  407;  Con- 
way V.  Wharton,  13  Minn.  160;  Foster 
V.  Henry,  5  Alb.  L.  J.  (N.  Y.)i73;  Os- 
trom  V.  Bixby,  9  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  57:  Hallenbeck  v.  Clow,  9 
How.  Pr.  (N.  Y.  Supreme  Ct.)  289; 
Lansingh  v.  Parker,  9  How.  Pr.  (N.  Y. 
Supreme  Ct.)  288;  Smith  v.  Wells,  20 
How.  Pr.  (N.  Y.  Supreme  Ct.)  158. 

Where  the  defendants  set  up  in  their 
answer  that  the  contract  sued  on  was 
"  revoked,  annulled,  and  modified," 
they  were  compelled  to  elect  upon 
which  defense  they  would  stand,  the 
annulling  of  a  contract  being  incon- 
sistent with  its  modification.  Cook  v. 
Finch,  19  Minn.  407. 

And  specific  denials  after  a  general 
denial  are  improper,  and  defendant 
may  be  required  to  elect.  School  Dist. 
V.  Holmes,  16  Neb.  486. 

The  statute  does  not  authorize  the 
striking  out  of  a  defense  for  incon- 
sistency. Conway  v.  Wharton,  13 
Minn.  158. 

2.  Butler  v.  Kaulback,  8  Kan.  671; 
Bierer  v.  Fretz,  32  Kan.  330;  Cole  v. 
Woodson,  32  Kan.  272;  Wright  v. 
Bacheller,  16  Kan.  259;  Ft.  Scott  Coal, 
etc.,  Co.  V.  Sweeney,  15  Kan.  244; 
Yandle  v.  Crane,  13  Kan.  344;  Mclntire 
V.  Wiegand,  24  Abb.  N.  Cas.  (N.  Y. 
City  Ct.)  312;  McLaughlin  v.  Alex- 
ander, 2  S.  Dak.  227. 

Where  the  allegations  of  a  special  de- 
fense are  inconsistent  with  a  general 


denial,  they  limit  and  control  the  de- 
nial to  the  extent  that  they  are  incon- 
sistent with  it.  Queen  Ins.  Co.  v.  Hud- 
nut  Co.  (Ind.  App.,  1893),  35  N.  E.  Rep. 
397;  Evansville,  etc.,  R.  Co.  v.  Crist, 
116  Ind.  446,  9  Am.  St.  Rep.  865;  War- 
britton  v.  Demorett,  129  Ind.  346; 
Moyer  z/.  Ft.  Wayne,  etc.,  R.  Co.,  132 
Ind.  88;  Derby  v.  Gallup,  5  Minn.  119; 
Wiley  V.  Keokuk,  6  Kan.  94;  Barnum 
V.  Kennedy,  21  Kan.  181. 

3.  Conway   v.  Clinton,  i  Utah  215. 

And  it  is  too  late  after  verdict  to  ob- 
ject that  the  defenses  are  inconsistent. 
Schaefer  v.  Causey,  8  Mo.  App.  142. 
Compare  Merchants'  Nat.  Bank  v.  Mc- 
Naughton,  i  Abb.  N.  Cas.  (N.  Y.)  293; 
Hamburger  v.  Baker,  35  Hun  (N.  Y. 
Supreme  Ct.)  456. 

4.  Union  Bank  v.  Bell,  14  Ohio  St. 
211. 

Duty  of  Hnsband  to  Put  in  Joint  An- 
swer.— In  an  action  relating  to  real  es- 
tate, against  husband  and  wife,  where 
process  is  served  only  on  the  husband, 
he  is  bound,  except  where  the  estate 
is  the  separate  property  of  the  wife,  to 
enter  a  joint  appearance  and  put  in 
a  joint  answer  for  himself  and  wife. 
Eckerson  v.  Vollmer,  11  How.  Pr.  (N. 
Y.  Supreme  Ct.)  42. 

A  Several  Defense. — Where  a  defend- 
ant has  a  defense  applicable  to  himself 
alone,  and  not  to  the  other  defendants, 
he  must  plead  separately.  Thus,  in 
an  action  for  the  partition  of  real  es- 
tate, the  several  defendants  answered 
jointly,  alleging  title  in  one  of  them 
only,  under  a  certain  will,  made  part 
of  the  answer  by  copy.  Held,  on  de- 
murrer, that  the  will  was  not  the 
foundation  of   the  defense,  but  only 


860 


Joint  and 


ANSWERS  IN  CODE  PLEADING. 


Several. 


2.  How  a  Joint  Answer  is  Construed. — A  joint  answer  is  construed 
as  a  single  indivisible  one ;  it  must  be  good  as  to  all.  When  it  is 
insufficient  as  to  one  defendant,  it  is  bad  as  to  all.' 

3.  The  Right  to  Interpose  a  Separate  Answer. — Every  defendant 
has  a  right  to  put  in  his  separate  answer.  One  defendant  is  not 
bound  by  the  answer  of  a  codefendant.*  The  right  to  interpose 
a  separate  answer  is  peculiarly  applicable  where  one  defendant 
has  an  interest  separate  from  that  of  the  other,^ 

4.  The  Defense  in  One  Answer  Enuring  to  All. — The  rule  is  that 
a  defendant  answering  cannot  assert  the  rights  of  one  who  does 
not  answer.*  And  if  the  defense  pleaded  in  one  answer  is  a  sev- 
eral one,  it  will  not  enure  to  the  benefit  of  the  others.*  But  if 
the  defense  is  joint  in  its  nature,  and  goes  to  the  validity  of  the 


evidence,  and  that  the  answer,  as  it 
showed  title  in  only  one  of  the  defend- 
ants, was  insufficient  as  a  joint 
answer.  Black  v.  Richards,  95  Ind. 
184. 

1.  Bryan  v.  Wilson,  27  Ala.  208; 
Wittick  V.  Traun,  27  Ala.  562,  62  Am. 
Dec.  778;  Gibson  v.  Marquis,  29  Ala. 
668;  Livingston  v.  Pippin,  31  Ala.  542; 
Rodgers  v.  Brazeale,  34  Ala.  512; 
Morton  v.  Morton,  10  Iowa  58;  Brown- 
field  V.  Weicht,  9  Ind.  394;  Ward  v. 
Bennett,  20  Ind.  440.  See  Poulk  v. 
Slocum,  3  Blackf.  (Ind.)  421. 

2.  Mobley  v.  Dubuque  Gas  Light, 
etc.,  Co.,  II  Iowa  71. 

The  rule  that  each  defendant  has  a 
right  to  his  separate  answer  obtains 
although  one  defendant  may  plead 
such  a  defense  as  enures  to  the  bene- 
fit of  all.  It  is  error  to  sustain  a  de- 
murrer to  one  answer  because  the  same 
defense  can  be  interposed  under  the 
answer  of  a  codefendant.  Moyer  v. 
Brand,  102  Ind.  306. 

Where  two  persons  are  sued  as 
partners,  and  service  is  had  on  only 
one  of  them,  he  cannot  by  joint  an- 
swer bind  the  other  alleged  partner  if 
no  partnership  actually  exists.  Nixon 
V.  Downey,  42  Iowa  78. 

And  the  failure  of  one  of  several 
partners  sued  upon  a  partnership 
claim  to  set  up  a  defense  will  not  de- 
prive another  of  the  right  to  do  so. 
Brayley  v.  Goff,  40  Iowa  76. 

3.  Husband  and  Wife. — In  an  action 
against  husband  and  wife,  where  the 
husband  is  joined  in  right  of  his  wife, 
it  is  not  now  necessary,  as  it  was 
undor  the  former  practice,  that  appli- 
cation be  made  to  the  court  for  the 
wife  to  answer  separately.  She  may 
answer  separately  as  of  right.    Harlay 


V.  Ritter,  18  How.  Pr.  (N.  Y.  C.  PL) 
147. 

Where  the  wife  has  an  interest  sepa- 
rate from  that  of  her  husband  and  they 
answer  jointly,  the  answer  should  be 
verified  by  both.  Youngs  v.  Seely,  12 
How.  Pr.  (N.  Y.  Supreme  Ct.)  395. 

A  married  woman  sued  with  her 
husband  in  respect  to  her  separate 
estate  may  put  in  a  separate  demurrer. 
Arnold  v.  Ringold,  16  How.  Pr.  (N. 
Y.  Supreme  Ct.)  158. 

Withoat  Consideration  as  to  One  Defend- 
ant.— One  of  the  joint  makers  of  a 
promissory  note  can  make  the  defense 
that  as  to  him  such  note  is  without 
consideration.  Moyer  v.  Brand,  102 
Ind.  301. 

But  a  separate  answer  which  alleges 
that  the  note  was  given  by  the  defend- 
ant to  the  plaintiff  "  without  any  con- 
sideration of  any  kind  to  this  defend- 
ant," is  bad  on  demurrer.  It  is  not 
necessary  that  the  consideration  for 
the  note  should  pass  to  the  defendant. 
Bingham  v.  Kimball,  33  Ind.  184; 
Anderson  v.  Meeker,  31  Ind.  245. 

4.  Cathcart  v.  Peck,  11  Minn.  45. 

But  where  evidence  to  support  a  de- 
fense pleaded  by  one  defendant  alone 
is  offered  and  received,  generally,  on 
behalf  of  all  the  defendants  without 
objection,  no  objection  thereto  can  be 
raised  on  appeal.  Devyr  v.  Schaefer, 
55  N.  Y.  446. 

6.  If  the  defense  set  up  by  the  party 
taking  the  second  trial  is  several  only, 
leaving  a  valid  cause  of  action  against 
the  other  defendants,  the  liability  of 
those  not  taking  a  second  trial,  as 
fixed  by  the  findings  on  the  first  trial, 
will  remain  unaffected  by  such  second 
trial.  Sprague  v.  Childs,  16  Ohio  St. 
108. 


861 


Joint  and 


ANSWERS  IN  CODE  PLEADING. 


Several. 


cause  of  action,  it  will,  to  the  extent  it  may  be  established,  enure 
to  the  benefit  of  the  other  defendants.* 

5.  Adoption  of  an  Answer. — Closely  allied  with  the  subject  of 
joint  answers  is  that  of  the  adoption  of  answers.  A  defendant 
subsequently  brought  in  by  substitution  may  adopt  the  answer  of 
the  one  for  whom  he  is  substituted.* 


1.  Sprague  v.  Childs,  i6  Ohio  St. 
io8;  Cooke  v.  Altvater,  21  Ohio  St. 
628. 

If  a  separate  answer  by  one  of  sev- 
eral defendants  goes  to  the  merits  of 
the  case,  and  is  such  that  the  proof  of 
it  will  defeat  a  recovery,  it  will  enure 
to  the  benefit  of  the  other  defendants. 
Moyer  v.  Brand,  102  Ind.  301;  Suther- 
lin  V.  Mullis,  17  Ind.  19;  Stapp  v. 
Davis,  78  Ind.  128;  Kirkpatrick  v. 
Armstrong,  79  Ind.  384. 

Thus,  in  an  action  against  several 
for  a  joint  and  several  tort,  if  the  an- 
swer of  one  shows  that  plaintiff  could 
have  no  cause  of  action  against  any 
of  them,  the  others,  though  they  do 
not  plead  it,  will  have  the  benefit  of  a 
finding  on  it  against  the  plaintiff. 
Williams  v.  McGrade,  13  Minn. 
40. 

86 


A  separate  defense,  that  the  consid- 
eration of  the  note  sued  on  was  illegal 
interest,  enures  to  the  benefit  of  all 
the  defendants.  Miller  v.  Longacre, 
26  Ohio  St.  291. 

2.  Louisville  etc.,  R.  Co.  v.  Utz,  133 
Ind.  265,  where  a  defendant  corpora- 
tion, after  suit,  consolidated  with 
other  corporations,  and  the  consoli- 
dated corporation  was  made  a  party, 
and  it  was  held  that  the  answer  of 
the  original  corporation  was  the  an- 
swer of  the  consolidated  one.  See 
also  Beel  v.  Corbin  (Ind.,  1894),  36  N. 
E.  Rep.  23;  Alliance  Milling  Co.  v. 
Eaton  (Tex.  Civ.  App.,  1893),  23  S.  W. 
Rep.  455. 

The  subject  of  the  adoption  of 
pleadings  is  closely  allied  with  the 
cognate  subjects  of  Parties  and 
Amendments.     See  those  articles. 


ANSWERS  IN  EQUITY  PLEADING. 

By  W.  A.  Martin  and  S.  R.  Perry. 

I.  Definition,  865. 

II.  FOBM  OF  ANSWEES,  865. 

1.  Parties,  865. 

2.  Frame  of  Answer,  865. 

3.  Oath,2>67. 

a.  Necessity  of  Oath,  867. 

b.  How  Administered,  867. 

c.  Before  Whom  Taken,,  868. 

4.  Signature,  868. 

5.  Jurat,  869. 

III.  Nature  of  Answer,  870. 

rv.  Requirements  of  Answer,  873. 

1.  Must  be  Full,  873. 

2.  Must  be  Certain,  875. 

3.  Mtist  be  on  Knowledge,  Information,  Remembrance,  or 

Belief,  876. 

4.  Must  Not  Contain  Inconsistent  Defenses,  878. 

5.  Must  State  Facts,  878. 

V.  Defenses  Taken  by  Answer,  878.    ^ 

1.  Usury,  ^-J^. 

2.  Statute  of  Limitations,  880. 

3.  Laches,  880. 

4.  Innocent  Purchase,  880. 

5.  Undue  Influence,  882. 

6.  Res  Judicata,  882. 

7.  Statute  of  Frauds,  882. 

8.  Fraud,  2>%2>- 

9.  Want  of  Jurisdiction,  883. 
10.  Other  Defenses,  884. 

VI.  Answers  by  Persons  under  Disability,  885 

1.  Married  Women,  C85. 

2.  Infants,  Lunatics,  etc.,  886. 

3.  Corporations  Aggregate,  886. 

Vn.  Answers  in  Patent  Cases,  887. 

1.  Defenses  Allowed  by  Statute,  887. 

2.  Other  Defenses,  889. 

VIII.  Joinder  of  Several  Defenses,  889. 
IX.  Filing  and  Serving  Answers,  891. 
863 


ANSWERS  IN  EQUITY  PLEADING. 

X.  Steizing  Answeks  feom  File,  892. 
XI.  Compelling  Answees  by  Attachment,  894. 
XII.  Taking  Bill  Peg  Confesso  (see  Decrees),  895. 

XIII.  Exceptions  to  Answees,  895. 

1.  Definition  atid  Object,  895. 

2.  For  Insufficiency,  896. 

a.  When  They  Lie,  896. 

b.  When  They  Do  Not  Lie,  898. 

c.  Plea  Standing  for  Answer,^!. 

d.  Answer  Accompanied  by  Plea  or  Demurrer,  901. 

3.  Form,  902. 

4.  Time,  903. 

5.  Proceedings,  905. 

6.  Further  Answer,  goy, 

a.  Procedure,  907. 

b.  Form,  909. 

c.  New  Exceptions,  909, 

7.  Except  iofis  for  Scandal  and  Impertinence,  st&SCMi'DAl. 

and  Impertinence, 

8.  Proceedings   When  Referred  to  Master,  see   Refer- 

ences. 

9.  Costs  on  Exceptions,  see  COSTS. 

XIV.  Answees  as  Evidence,  910- 

1.  Responsive  Answers,  910. 

a.  In  Gejteral,  910. 

b.  Sworn  Bill  and  Answer,  914. 

c.  Answer  Conclusive,  914. 

d.  Aitswer  Entitling  Complainant  to  Decree,  915. 

e.  What  is  Responsive,  y:6. 

f.    What  is  Not  Responsive,  9 1 8. 

2.  Answer  Containing  New  Matter,  920, 

3.  Hearing  on  Bill  and  Answer,  924. 

4.  Hearing  ott  Bill,  Answer,  and  Replication,  926. 

5.  Admissions  in  Answer,  927. 

a.  In  General,  927. 

b.  Failure  to  Answer  Fully,  930. 

6.  Overcoming  Answer,  932. 

a.  By  Witnesses  and  Circumstances,  932. 

b.  By  Circumstances  Alone,  g^i. 

c.  Answer  Inconsistent  and  Contradictory,  912. 

d.  Impeaching  Credibility  of  Defendant,  942. 

e.  Answer  Contradicted  on  Material  Point,  943. 

7.  Answer  Not  Direct  and  Positive,  943. 

a.  In  General,  943. 

b.  Evasive  Answers,  944. 

c.  Answers  on  Information  and  Belief,  944. 

d.  Answers  on  Hearsay,  947. 

e.  Answers  Alleging  Ignorance,  947. 

8.  Unsworn  Answer,  948. 

9.  Answer  Where  Oath  is  Waived,  949. 

10.  Answer  of  Codefendant,  95 1 . 

a.  As  Evidence  against  Codefendant,^^!. 

b.  As  Evidence  for  Codefendant,  954. 

1 1 .  Answer  of  Infants,  955. 

12.  Answer  of  Corporation  Aggregate,  956. 

864 


Definition.        ANSWERS  IN  EQUITY  PLEADING. 


Form. 


Answer  of  Party  Interested  or  Incompetent,  957. 
Answers  in  Injunction  Proceedings,  957. 
Answers  as  Evidence  in  Other  Causes,  959. 

a.  Suits  in  Equity,  959. 

b.  Actions  at  Law,  960. 
Answers  as  Evide7ice  in  Issues  Sent  to  Jury,  961. 

As  to  Amendment  of  Answers,  see  article  AMENDMENTS. 
As  to  Discovery  by  Answer,  see  article  DISCO  VER  Y. 


13- 
14. 

15- 


16. 


1.  Definition. — An  answer  in  equity  pleading  consists  of  a 
defense  in  writing  made  by  a  defendant  to  the  charges  contained 
in  a  bill  or  information  filed  by  the  complainant  against  him  in  a 
court  of  equity.* 

11.  FOKM  OF  Answeks — 1.  Parties. — Several  defendants  may  join 
in  the  same  answer,  and  should  generally  do  so  where  their  inter- 
ests are  the  same.* 

2.  Frame  of  Answer — Caption. — The  answer  begins  with  the  title 
of  the  cause,  specifying  of  which  of  the  defendants  it  is  the  an- 
swer, and  the  names  of  the  plaintiffs.^ 


1.  Bouvier  L.  Diet.  74.  An  answer 
is  a  defense  in  writing  made  by  a  de- 
fendant to  the  allegations  contained 
in  a  bill  or  information  filed  against 
him.  Black  L.  Diet.  74.  The  answer 
is  the  regular  mode  of  replying  to  a 
bill  or  petition  setting  up  an  equitable 
cause  of  action.  The  plea  and  de- 
murrer were  originally  unknown  iji 
equity  pleading,  and  did  not  come 
into  general  use  until  comparatively 
recent  times.  They  were  bor  owed 
from  the  common  law.  Langdell's  Eq. 
PI.  §  92.  The  term  is  sometimes  used 
in  a  general  sense  to  denote  any  plead- 
ing whereby  an  issue,  whether  of  law 
or  of  fact,  is  made  or  tendered  by  de- 
fendant.    Howell  V.   Howell,   15  Wis. 

59- 

2.  Daniell  Ch.  Pr.  (5th  Am.ed.)73o; 

Story  Eq.  PI.  §  869;  Van  Sandau  v. 
Moore,  i  Russ.  441. 

Severance. — Where  defendants  have 
a  joint  interest  only,  they  will  not  in 
general  be  permitted  to  sever.  Dan. 
Ch.  Pr.  (5th  Am.  ed.)  731.  Thus 
trustees  will  not  geneijs»lly  be  allowed 
costs  for  separate  defenses  unless  they 
have  some  beneficial  interest  or  some 
special  reason  for  severing.  Dan.  Ch. 
Pr.  (5th  Am.  ed.)  731.  Trustees  and 
cestuis  qtie  trustent,  husband  and  wife, 
bankrupt  and  assignee,  will  be  allowed 
only  one  set  of  costs  if  they  have  not 
conflicting  interests.  Dan.  Ch.  Pr. 
(5th  Am.  ed.)  731. 

If  defendants  are  allowed  to  sever 
they  will  be  allowed  costs  of  separate 


counsel  though  their  defense  be  prac- 
tically the  same.  Dan.  Ch.  Pr.  (5th 
Am.  ed.)  731. 

Adopting  Codefendant's  Answer.  —  A 
defendant  to  a  bill  in  equity  may  suf- 
ficiently answer  by  adopting  his  co- 
defendant's  answer.  .Binney's  Case, 
2  Bland  (Md.)  99,  citing  Anonymous,  I 
P.  Wm§.  200;  Whitworth  v.  Davis, 
I  Ves.  &  B.  549;  Jones  v,  Magill,  x 
Bland  (Md.)  177;  Lingan  v.  Hender- 
son, I  Bland  (Md.)  236.  See  Warfield 
V.  Banks,  11  Gill  &  J.  (Md.)  98. 

An  answer  merely  alleging  that  the 
facts  stated  in  a  paper  purporting  to  be 
the  answer  of  a  codefendant  "are 
substantially  correct  as  far  as  this  de- 
fendant is  concerned,  is"  bad  both  in 
form  and  substance.  Carr  v.  Weld, 
18  N.  J.  Eq.  41. 

3.  Daniell  Ch.  Pr.  (5th  Am.  ed.)  732; 
Story  Eq.  PL  §  870. 

General  Form  of  Caption. — "The  an- 
swer of  A.B.,  one  of  the  abovenamed 
defendants  to  the  bill  of  complaint  of 
the  abovenamed  plaintiff."  Dan.  Ch. 
Pr.  (5th  Am.  ed.)  732. 

Form  Where  Bill  Amended  After 
Answer. — The  caption  states  that  the 
answer  is  "to  the  amended  bill  of 
complaint  of  the  abovenamed  plain- 
tiff." Dan.  Ch.  Pr.  (5th  Am.  ed.) 
732. 

Several  Defendants.  —  If  there  are 
more  than  one  defendant  the  caption 
is  "The  joint  and  several  answer"; 
but  if  the  defendants  are  man  and 
wife  the  heading  is,   "The  joint  an- 


I  Encyc.  PI.  &  Pr.— 55. 


865 


Form  of 


ANSWERS  IN  EQUITY  PLEADING.  Answers. 


Keservation. — Following  the  title  is  a  reservation  of  all  advantages 
that  might  be  taken  by  exceptions  to  the  bill.  This  form,  however, 
is  unnecessary.* 

Substance. — The  next  part  of  the  answer  is  the  substance,  con- 
taining the  answer  to  the  matter  of  the  bill  and  the  interrogatories, 
and  additional  matter  as  defense.* 

In  Conclusion  the  answer  traverses  generally  the  allegation  of 
unlawful  combination  charged  in  the  bill,  and  all  other  matter 
therein  contained.* 


swer."      Dan.   Ch.    Pr.  (5th  Am.  ed.) 

732- 

Marriage  of  Female  Defendant. — If 
a  female  defendant  marry  after  bill 
filed,  but  before  answer,  she  may  ob- 
tain leave  of  court  to  answer  separately 
or  to  answer  jointly  with  her  husband; 
in  the  latter  case  the  caption  should 
be,  "  The  answer  of  A.  B.  and  C,  his 
wife,  lately  and  in  the  bill  called  C.  D., 
spinster,"  or  "widow,"  as  the  case  may 
be.     Dan.  Ch.  Pr.  (5th  Am.   ed.)732. 

Infants. — The  answer  of  an  infant, 
which  must  be  by  guardian,  is  headed, 
"The  answer  of  A.  B.,  one  of  the 
abovenamed    defendants,    under    the 

age  of  21  years,  by his  guardian." 

Dan.  Ch.'Pr.  (5th  Am.  ed.)  2112. 

Lunatics. — The  heading  of  an  answer 
by  a  lunatic  is,  "  The  answer  of  A.  B., 
a  lunatic,  by  CD.,  his  corfimittee." 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  §  2143. 

Defective  Captions. — A  defect  occur- 
ring in  the  caption,  so  that  it  does  not 
appear  whose  answer  it  is  or  to  what 
bill  it  is  an  answer,  renders  it  irregular 
and  liable  to  be  taken  from  the  files 
for  irregularity.  Dan.  Ch.  Pr.  (5th 
Am.  ed.)  732.  Thus,  if  there  be  a 
misnomer  of  plaintiff,  the  answer  will 
be  deemed  a  nullity.  Griffiths  ^.  Wood, 
II  Ves.  Jr.  62;  Fry  z/.  Mantell,  4  Beav. 
4S5;  Upton  V.  Sowton,  12  Sim.  45. 
An  answer  is  bad  where  it  purports  to 
be  the  bill  of  five  complainants,  and  six 
were  named  in  the  bill.  Cope  v.  Parry, 
I  Madd.  83.  So  an  answer  purporting 
to  be  the  answer  of  a  definite  number 
of  defendants  will  be  bad  if  there  are 
more  or  less  than  that  number.  Harris 
V.  James,  3  Bro.  C.  C.  399;  Cooke  v. 
Westal,  I  Madd.  265;  Thatcher  v. 
Lambert,  5  Hare  228.  A  paper  pur- 
porting to  be  an  answer,  but  not  re- 
ferring to  any  bill  as  pending,  is 
deficient,  and  this  defect  is  a  sufficient 
ground  for  taking  it  from  the  file. 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  365- 


Notice  of  Motion  to  Take  Answer  from 
Files  for  Defective  Caption  should  de- 
scribe it  not  as  an  answer,  but  as  "a 
paper  writing  purporting  to  be  an  an- 
swer." Griffiths  V.  Wood,  11  Ves.  Jr. 
62. 

1.  Story  says  the  form  "is  prob- 
ably intended  to  prevent  a  conclusion, 
that  the  defendant,  having  submitted 
to  answer  the  bill,  admits  everything 
which  by  his  answer  he  does  not  ex- 
pressly controvert,  and  especially  to 
such  matters  as  he  might  have  ob- 
jected to  by  demurrer  or  plea.  It  will 
not  in  general  have  that  effect."  Story 
Eq.  PI.  (loth  ed.)  §  870.  See  also 
United  States  Eq.  Rule  39. 

Infants. — In  the  case  of  infants  the 
reservation  is  always  omitted.  Story 
Eq.  PI.  (loth  ed.)  g  871. 

2.  Story  Eq.  PI.  (loth  ed.)  §  870; 
Cooper  Eq.  PI.  323;  Mitford  Eq.  PI. 
(by  Jeremy)  313. 

3.  Story  Eq.  PI.  (loth  ed.)  §  870; 
Cooper  Eq.  PI.  323;  Mitford  Eq.  PL 
(by  Jeremy)  313;  i   Barb.  Ch.  Pr.  383. 

It  has  been  held,  though,  that  the 
omission  of  the  general  traverse  does 
not  render  the  pleading  bad.  Mitford 
Eq.  PI.  (by  Jeremy)  313,  314,  315. 
And  in  this  connection  Story  says: 
"  But  although  it  is  the  practice  now 
to  answer  every  clause  in  the  bill,  and 
a  general  traverse  therefore  seems  im- 
pertinent and  has  been  held  to  be  un- 
necessary, yet  this  formulary  is  still 
continued  in  answers."  Story  Eq.  PI. 
(loth  ed.)  §  870. 

It  has  also  been  held  that  the  tech- 
nical traverse  usually  inserted  as  the 
conclusion  of  an  answer  does  not 
amount  to  an  admission  of  the  allega- 
tions of  the  bill  not  expressly  denied 
in  the  answer;  and  such  allegations 
in  the  bill  must  be  substantiated  by 
proof.     Litch  v.  Clinch,  136  111.  410, 

Infants. — In  the  answer  of  infants 
the  general  traverse  is  always  omitted. 
Story  Eq.  PI.  (loth  ed.)  §  871. 


866 


J?orm  of 


ANSWERS  IN  EQUITY  PLEADING.         Answers. 


3.  Oath— rt^.  Necessity  of  Oath. — The  party  filing  an  answer 
(except  corporations  aggregate  or  peers)  must  make  oath  thereto, 
unless  exempted  by  statute  or  rule  of  court.*  The  answer,  how- 
ever, may  be  received  without  oath  by  consent  of  complainant,*-*  or 
•complainant  may  by  his  bill  waive  oath  thereto.' 

b.  How  Administered. — In  the  case  of  Christians  the  oath  is 
upon  the    Evangels;*    persons   not   believing    in    the    Christian 


1.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  735; 
Story  Eq.  PI.  (loth  ed.)  §  874;  Union 
Bank  v.  Geary,  5  Pet.  (U.  S.)  no. 

But  if  complainant  proceeds  with  the 
cause  without  objection  he  cannot  ob- 
ject in  appellate  court  that  the  answer 
was  insufficient  for  want  of  verification. 
Mitchell  V.  Tishomingo  Sav.  Inst.,  53 
Miss.  614;  Nesbitt  v.  Dallam,  7  Gill 
&  J.  (Md.)494;  Fulton  Bank  v.  Beach, 
2  Paige  (N.  Y.)  307. 

Several  Defendants.  —  An  answer 
sworn  to  by  only  a  part  of  the  defend- 
ants cannot  be  admitted  as  their  joint 
answer.     Masterson  v.  Craig,   5  Litt. 

(Ky.)39. 

An  answer  must  be  sworn  to  by 
each  of  the  defendants  unless  the  oath 
be  waived,  otherwise  it  will  be  no 
answer  as  to  the  defendant  not  mak- 
ing oath.  Cooke  v.  Dews,  2  Tenn. 
Ch.  496;  Fulton  Bank  v.  Beach,  2 
Paige  (N.  Y.)  307;  Binney's  Case, 
2  Bland  (Md.)  99. 

Where  an  answer  is  filed  by  one  of 
several  judgment  creditors  joining 
with  him  therein  his  coplaintiffs  in  the 
judgment,  but  is  only  sworn  to  by  him, 
it  will  be  permitted  to  stand  as  his  an- 
swer, notwithstanding  the  fact  that  it 
purports  to  be  the  answer  of  his  co- 
plaintiffs  also.  Young  v.  Clarksville 
Mfg.  Co.,  27  N.  J.  Eq.  67. 

An  answer  purporting  to  be  that  of 
several  defendants,  but  not  sworn  to 
by  all,  may  on  special  order  be  directed 
to  be  filed  as  the  answer  of  those 
defendants  only  who  have  made  oath 
thereto.     Dan.  Ch.   Pr.  (5th  Am.  ed.) 

753- 

Where  one  of  the  defendants  is  out 
of  the  jurisdiction  when  the  answer  is 
filed,  an  order  may  be  made  subse- 
quently directing  him  to  swear  to  it, 
and  when  so  sworn  to  the  answer  may 
be  treated  as  the  joint  answer  of  all 
the  parties  whose  answer  it  purports 
lO  be.     Dan.    Ch.    Pr.    (5th   Am.    ed.) 

733- 

Corporations  Agg^regate. — If  the  de- 
fendant is  a  corporation  aggregate 
the  answer  need  not  be  under  oath, 


but  should  be  put  in  under  the  cor- 
porate seal.  Van  Wyck  v.  Norvell,  2 
Humph.  (Tenn.)  192;  McLard  v.  Linn- 
ville,  10  Humph.  (Tenn.)  164;  Ver- 
milyea  v.  Fulton  Bank,  i  Paige  (N.  Y.) 
37;  Champlin  v.  New  York,  3  Paige 
(N.  Y.)  573;  Fulton  Bank  v.  New 
York,  etc.,  Canal  Co.,  i  Paige  (N.  Y.) 
311;  Griffin  v.  State  Bank,  17  Ala.  258; 
Gamewell  Fire  Alarm  Tel.  Co.  v. 
Mayor,  31  Fed.  Rep.  312;  Colgate  v. 
Compagnie  Fran9aise,  23  Blatchf.  (U. 
S.)88;  Kittredgez/.  Claremont  Bank,  i 
Woodb.  &  M.  (U.  S.)  244;  Baltimore, 
etc.,  R.  Co.  V.  Wheeling,  13  Gratt. 
(Va.)40. 

But  where  a  corporation  desires  to 
obtain  the  dissolution  of  an  injunction 
the  answer  must  be  verified  by  some 
of  the  corporators  or  officers  acquainted 
with  the  facts,  for  the  reason  that  an 
injunction  cannot  be  dissolved  on  an 
answer,  without  oath  denying  the 
equity  of  the  bill.  Griffin  v.  State 
Bank,  17  Ala.  258,  overruling  Hogan 
V.  Branch  Bank,  10  Ala.  485;  Fulton 
Bank  v.  New  York,  etc..  Canal  Co.,  i 
Paige  (N.  Y.)  311.  Cotitra,  Haight  v. 
Morris  Aqueduct,  4  Wash.  (U.  S.) 
601. 

In  Mississippi  the  answer  of  a  cor- 
poration need  not  be  under  seal,  but 
should  be  sworn  to  by  its  president, 
general  manager,  superintendent,  or 
other  general  officer,  unless  answer 
under  oath  be  waived.  Ann.  Code 
1892,  §  534. 

In  Massachusetts  answers  need  not 
be  under  seal  except  in  cases  of  dis- 
covery only.  Supp.  Pub.  Sts.  Mass. 
126. 

Peers,  instead  of  making  oath,  an- 
swer upon  protestation  of  honor.  Dan. 
Ch.  Pr.,  (5th  Am.  ed.)  735. 

2.  Contee  v.  Dawson,  2  Bland  (Md.) 
264;  Blllingslea  v.  Gilbert,  i  Bland 
(Md.)  567. 

d.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  736; 
Story  Eq.  PI.  (loth  ed.)  §  874. 

4.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  736; 
Braithwaite  Pr.  343. 

Forms  of  Oath. — Story  cites  the  fol- 


867 


Form  of 


ANSWERS  IN  EQUITY  PLEADING. 


Answers. 


oath  may  be  sworn  according  to  their  notion  of  an  oath  or  in  the 
manner  most  binding  on  their  conscience.*      See  article  Oaths. 

c.  Before  Whom  Taken. — Under  the  early  English  practice 
it  was  generally  necessary  for  defendant  to  swear  to  his  answer 
before  a  master  in  chancery,*  but  now  an  answer  may  be  filed 
without  any  further  formality  as  to  oath  than  is  required  in  filing^ 
an  affidavit. ^  The  practice  in  the  United  States  in  this  regard  is 
usually  regulated  by  statute  or  rule  of  court.* 

4.  Signature. — The  answer  must  generally  be  signed  by  the  de- 
fendant *  and  by  counsel.® 

Waiver. — Complainant,  however,  may  waive  signature;  and  where,, 
after  an  answer  defective  in  this  respect  was  filed,  complainant 
filed  a  replication,  it  was  held  that  the  filing  of  the  replication  was 
evidence  of  such  waiver.'' 

Modification  of  Kule. — In  some  states  the  requirement  as  to  signa- 
ture has  been  modified,  and  it  is  not  necessary  that  both  defend- 
ant and  counsel  sign  the  answer.* 


lowing  as  a  form  of  oath:  "  You  swear 
(or  solemnly  affirm)  that  what  is  con- 
tained in  this  your  answer,  as  far  as 
concerns  your  own  act  and  deed,  is  true 
to  your  own  knowledge,  and  that  what 
relates  to  the  act  and  deed  of  any 
other  person  or  persons,  you  believe 
to  be  true."  Story  Eq.  PI.  (loth  ed.) 
§  872,  note  3. 

1.  Daniell   Ch.    Pr.    (5th.  Am.    ed.) 

736. 

2.  Snowden  v.  Snowden,  i  Bland 
(Md.)  550. 

3.  2  Dan.  Ch.  Pr.  (5th  Am.  ed.)  744, 
citing  15  &  16  Vic.  c.  86,  g  i.  See 
Guice  V.  Parker,  46  Ala.  616. 

4.  United  States. — Equity  Rule  59  pro- 
vides that  every  defendant  may  swear 
to  his  answer  before  any  justice  or 
judge  of  any  court  of  the  United  States, 
or  before  any  commissioner  appointed 
by  any  Circuit  Court  to  take  testimony 
or  depositions,  or  before  any  master 
in  chancery  appointed  by  any  Circuit 
Court,  or  before  any  judge  of  any 
court  of  a  state  or  territory.  See  also 
Guice  V.  Parker,  46  Ala.  616. 

5.  Bayley  v.  De  Walkiers,  10  Ves. 
Jr.  441  ;  Denison  v.  Bassford,  7  Paige 
(N.  Y.)  370;  Kimball  v.  Ward,  Walk. 
(Mich.)  439;  Cook  V.  Dews,  2  Tenn. 
Ch.  496. 

Exceptions. — The  rule  is  otherwise 
where  there  is  a  good  and  sufficient 
excuse  for  defendant's  not  signing  it. 
Thus,  where  the  defendant,  an  officer 
in  the  army,  had  sailed  for  India  under 
orders  immediately  after  service  of 
subpcena  and  appearance,  and  before 


he  had  time  to  answer,  the  answer 
was  by  mutual  consent  put  in  without 

his   signature.     v.   Lake,  6  Ves. 

Jr.  171.  The  answer  of  a  defendant 
abroad,  not  required  to  be  under  oath, 
was  ordered  to  be  put  in  by  a  person 
having  a  general  power  of  attorney  to 
act  for  him,  without  signature.  Bay- 
ley  V.  De  Walkiers,  10  Ves.  Jr.  441. 

Where  defendant,  in  the  hurry  of 
going  abroad,  forgot  to  sign  his  an- 
swer, it   was   ordered   taken   without 

signature.     v.    Gwillim,    6   Ves. 

Jr.  285. 

Where  defendants  were  out  of  the 
jurisdiction,  their  answer  was  ordered 
taken  without  signature  on  affidavit  of 
their  father  that  he  had  authority  to^ 
act  for  them.  Harding  v.  Harding, 
12  Ves.  Jr.  159. 

6.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  733; 
Story  Eq.  PI.  §  876. 

Exceptions. — If  the  answer  is  taken 
by  commissioners,  the  signature  of 
counsel  is  unnecessary.  Davis  v. 
Davidson,  4  McLean  (U.  S.)  137. 

7.  Fulton  Bank  v.  Beach,  2  Paige 
(N.  Y.)  307;  Collard  v.  Smith,  13  N. 
J.  eq.  43. 

8.  In  Alabama  it  j  not  necessary 
that  an  answer  be  signed  by  counsel, 
as  every  person  has  the  constitutional 
right  (Const.,  art.  i,  §  29)  to  defend 
any  suit  against  himself  by  himself  or 
counsel.  May  v.  Williams,  17  Ala. 
23. 

In  Illinois  it  is  not  necessary  that  de- 
fendant sign  his  own  name.  It  may 
be  signed  by  counsel  for  him.     Fultoa 


868 


Form  of 


ANSIVERS  IN  EQUITY  PLEADING.         Answers. 


5.  Jurat. — The  jurat,  or  certificate  of  the  officer  administering 
the  oath  made  by  defendant  to  the  answer,  states  the  substance 
of  the  oath,  and  is  written  at  the  end  of  the  answer  at  the  oppo- 
site side  from  the  signature. *     See  also  AFFIDAVITS,  ante,  p.  316. 


County  V.  Mississippi,  etc.,  R.  Co.,  21 

111.  338. 

In  Maine,  if  the  complainant  in  his 
bill  asks  for  answer  under  oath,  the 
answer  shall  be  signed  by  respondent 
and  sworn  to  by  him,  otherwise  it 
may  be  signed  by  respondent,  or  by 
his  attorney  or  agent.     Rev.  Sts.  629, 

§15. 

In  Massachuietts  answers  may  be 
signed  by  the  party  or  his  attorney, 
and  no  other  signature  is  necessary. 
Supp.  to  Pub.  Sts.  1882-1886,  p.  126, 
5?  10. 

In  Michigan  it  seems  that  the  signa- 
ture of  a  solicitor  to  an  answer  would 
be  sufficient,  since  under  the  practice 
in  that  state  solicitors  are  also  coun- 
sellors. Henry  v.  Gregory,  29  Mich. 
68.  The  signature,  however,  must  be 
in  writing;  a  printed  signature  is  bad. 
Eveland  v.  Stephenson,  45  Mich.  394. 

In  New  Jersey  the  signature  of  either 
defendant  or  counsel  is  sufficient;  and 
in  this  connection  it  may  be  stated 
that  the  answer  may  be  signed  by  a 
solicitor  instead  of  counsel,  even 
though  the  solicitor  is  not  of  the 
degree  of  counsel.  Freehold  Mut. 
Loan  Assoc,  v.  Brown,  28  N.  J.  Eq. 
42;  Dickerson  v.  Hodges,  43  N.  J.  Eq. 
45.  So  it  would  also  seem  that  a  signa- 
ture to  answer  in  the  firm  name  of 
several  counsellors  would  be  sufficient. 
Hampton  v.  Coddington,  28  N.  J.  Eq. 

557. 

In  New  York  it  was  held  that  de- 
fendant's answer  should  be  actually 
signed  by  him,  though  oath  thereto 
was  waived,  unless  a  special  order  of 
the  court  was  obtained  allowing  him 
to  put  in  his  answer  without  oath,  and 
that  the  signature  by  his  attorney  was 
insufficient.  Denison  v.  Bassford,  7 
Paige  (N.  Y.)  370.  But  there  is  a 
reported  case  in  which  it  seems  that 
the  answer  need  not  be  actually  signed 
by  defendant  in  person,  and  that  it 
would  be  sufficient  if  defendant's  name 
were  signed  by  solicitor  or  counsel. 
Hatch  w.  Eustaphieve,  Clarke  Ch.  (N. 
Y.)  63. 

Where  discovery  was  not  the  object 
of  the  bill,  and  where  the  suit  was 
merely  for  the  safety  of  the  adminis- 
trator,   the    answer    of    a    defendant 


living  in  another  state  signed  only  by 
the  attorney  in  fact  is  sufficient.  Du- 
mond  V.  Magee,  2  Johns.  Ch.  (N.  Y.) 
240. 

It  has  also  beei\  held  that  an  omis- 
sion of  the  signature  will  not  affect 
the  validity  of  the  decree.  Sears  v. 
Hyer,  i  Paige  (N.  Y.)  483. 

In  Tennessee  answer  should  be  signed 
by  the  parties,  Johnson  v.  Murray,  12 
Lea.  (Tenn.)  109);  but  signing  by  so- 
licitors is  sufficient  where  no  oath  is 
required,  Stadler  v.  Hertz,  13  Lea 
(Tenn.)  315. 

1.  Barb.  Ch.  Pr.  (2d  ed.)  144;  i 
Hinde  Ch.  227;  Beach  Mod.  Eq.  Pr. 
§  359;  Dan.  Ch.  Pr.  (5th  Am.  ed.) 
746. 

Usual  Form.  —  The    usual   form   is, 

"Sworn  to  before   me   this       day  of 

,  18     ."     Foster  Fed.  Pr.  §  273. 

Jurat  of  Deaf,  Dumb,  or  Blind  Persons, 
Marksmen,  or  Foreigners  who  do  not 
understand  English  must  express  that 
steps  have  been  taken  from  which  it 
may  appear  that  defendant  fully  un- 
derstood the  contents  of  the  answer 
before  swearing  thereto.  Dan.  Ch. 
Pr.  (5th  Am.  ed.)  748. 

Jews. — Where  the  jurat  of  Jews  to 
their  answer  was  in  the  ordinary  form, 
and  the  commissioner  certified  that 
they  had  been  "  duly  sworn,"  a  motion 
to  strike  the  answer  off  the  files  was 
refused,  there  being  no  proof  that  de- 
fendants were  not  sworn  according  to 
their  creed.  Fryatt  v.  Lindo,  3  Edw. 
Ch.{N.  Y.)239. 

Several  Defendants. — If  there  are  sev- 
eral defendants,  and  they  are  sworn 
together,  one  jurat  is  sufficient.  If 
sworn  at  different  times  there  must  be 
a  separate  jurat  for  each  defendant. 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  746. 

Immaterial  Defects. — Where  a  foreign 
notary  affixed  his  seal  and  signed  his 
name,  but  without  adding  his  official 
designation,  the  jurat  was  held  suffi- 
cient, the  official  designation  appear- 
ing in  the  body  of  the  jurat.  Feucht- 
wanger  v.  McCool,  29  N.  J.  Eq.  151. 

Under  a  rule  of  court  providing  that 
the  "matters"  stated  in  an  answer 
should  be  sworn  to,  a  jurat  stating 
that  the  defendant  swore  that  the 
"facts"  alleged,  etc.,  instead  of  the 


869 


Nature  of        ANS  WERS  IN  EQ  UITY  PLEADING. 


Answer, 


III.  Nattjke  of  Answee. — The  answer  usually  denies  all  or  a 
part  of  the  facts  alleged  in  the  bill,  and  sets  out  others  showing^ 
defendant's  rights  in  the  subject  of  the  suit.  Sometimes,  how- 
ever, it  admits  the  case  made  by  the  bill,  and  submits  for  judg- 
ment the  questions  arising  thereon,  with  or  without  alleging  fur- 
ther facts.i     If  the  bill  seeks  relief  as  well  as  discovery,  the  an- 


"  matters "  alleged,  is  sufficient. 
Whelpley  v.  Van  Epps,  9  Paige  (N.  Y.) 
332,  38  Am.  Dec.  400. 

Waiver  of  Jurat.  —  Though  answer 
on  oath  is  not  waived  by  complainant 
in  his  bill,  the  irregularity  of  service 
of  an  answer  without  a  jurat  attached 
is  waived  where  complainant  files  a 
replication  and  goes  to  a  hearing  with- 
out objection.  Reed  v.  Warner,  5 
Paige  (N.  Y.)  650. 

Wantof  Jurat— Effect.— Where  the  bill 
requires  an  answer  under  oath,  and 
the  paper  purporting  to  be  an  answer 
has  attached  to  it  the  draft  of  an  affi- 
davit signed  by  two  of  the  defendants, 
but  the  jurat  is  not  authenticated  by 
the  signature  of  an  officer  authorized 
to  take  an  answer,  the  paper  will  be 
treated  as  no  answer.  Westerfield  v. 
Bried,  26  N.  J.  Eq.  357. 

Amendment  of  Jurat. — Where  defend- 
ant obtains  leave  to  amend  by  adding 
a  proper  jurat  to  the  answer,  the 
amendment  is  not  complete  till  a  copy 
of  the  amended  jurat  is  served  on 
complainant's  solicitor.  Taylor  v. 
Bogert,  5  Paige  (N.  Y.)  33. 

Signature. — If  the  verification  be  in 
the  form  of  an  affidavit,  defendant's 
name  should  appear  at  the  foot  ®f  the 
affidavit;  if  in  the  form  of  a  certificate 
of  the  officer  administering  the  oath, 
it  should  be  subscribed  to  the  answer. 
Anderson  v.  Stather,  9  Jur.  1085; 
Pincers  v.  Robertson,  24  N.  J.  Eq. 
348;  Hathaway  v.  Scott,  11  Paige 
(N.  Y.)  173. 

1.  Story  Eq.  PI.  (loth  ed.)  §  849; 
Mitford  Eq.  PI.  (by  Jeremy)  15,  16. 

The  Answer  is  the  Ordinary  Mode  of 
Defense  in  an  equitable  proceeding,  and 
may  be  put  in  to  the  whole  bill  or  to 
such  parts  thereof  as  are  not  covered 
by  plea  or  demurrer.  Since  it  may 
embrace  more  circumstances  than  a 
plea,  it  may  be  used  with  greater 
propriety  where  defendant  is  not 
anxious  to  prevent  a  discovery,  though 
the  plea  might  be  a  complete  bar. 
But  where,  by  introducing  additional 
circumstances,  he  has  an  opportunity 
of  exhibiting  his  case  in  a  more  favor- 

87 


able  light,  the  answer  is  the  best 
method  of  defense,  i  Barb.  Ch.  Pr. 
130,  131- 

An  Answer  is  Preferable  to  a  Plea  as  a 
means  of  defense,  because  less  preci- 
sion is  required  in  an  answer  than  in 
a  plea.  McCabe  v.  Cooney,  2  Sandf. 
Ch.  (N.  Y.)  314. 

Answer  to  Part  of  Bill. — If  a  divisi- 
ble cause  of  action  is  alleged,  defend- 
ant may  deny  a  part  of  the  cause  of 
action  and  leave  the  remainder  un- 
answered. Smith  V.  Shufelt,  3  Code 
Rep.  (N.  Y.)  175.  So  also  defendant 
may  plead  in  bar  to  the  whole  bill  or 
to  a  part  only,  and  in  the  latter  case 
he  must  answer  to  the  remainder. 
Graves  v.  Blondell,  70  Me.  190. 

Defenses. — All  the  defenses  on  the 
merits  relied  on  must  be  set  out  in  a 
plea  or  in  the  answer,  in  accordance 
with  the  rule  that  the  decree  must 
follow  the  pleadings  as  well  as  the 
proof.  Williams  v.  Burg,  9  Lea. 
(Tenn.)  464;  Williams  v.  Bartlett,  4 
Lea.  (Tenn.)  620;  Turley  v.  Turley,  85 
Tenn.  251;  Genthner  v.  Fagan,  85 
Tenn.  491. 

Several  Defenses.  —Defendant  may  set 
up  in  his  answer  as  many  defenses  as 
he  may  think  proper.  Dan.  Ch.  Pr. 
(5th  Am.  ed.)  713,  714;  Hopper  v. 
Hopper,  II  Paige  (N.  Y.)  46. 

Where  defendant  wishes  to  set  up 
more  than  one  defense  to  the-  bill,  he 
must  generally  do  so  by  answer  and 
not  by  plea;  and  in  order  to  justify  a 
departure  from  this  general  rule  he 
must  show  a  special  case  of  hardship 
and  inconvenience  if  he  were  required 
to  make  his  several  defenses  by  an- 
swer. Didier  v.  Davison,  10  Paige 
(N.  Y.)  515;  Saltus  z/.  Tobias,  7  Johns. 
Ch.  (N.  Y.)  214;  Van  Hook  v.  Whit- 
lock,  3  Paige  (N.  Y.)  419.  • 

In  setting  up  an  immemorial  pay- 
ment in  lieu  of  tithes,  defendant  was 
permitted  to  rely  on  it  either  as  a 
modus,  or  as  a  composition  real  exist- 
ing from  time  immemorial,  or  as  a 
composition  undetermined  by  notice. 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  714. 

Distinct  or  Separate  Defenses.  —  De- 
o 


Nature  of        ANSWERS  IN  EQUITY  PLEADING. 


Answer. 


swer  should  contain,  first,  a  defense,  and  second,  the  sworn  re- 
sponses touching  the  matters  sought  to  be  discovered.^ 

Answer  Not  Demurrable. — A  demurrer  to  an  answer  is  a  pleading 
unknown  to  chancery  practice,  and  the  sufficiency  of  the  defenses 
thereby  raised  cannot  be  thus  tested.  * 

Cross-Bill  Necessary  for  Affirmative  Relief. — Defendant  usually  cannot 
pray  anything  but  to  be  dismissed  the  court,  a  cross-bill  being 
necessary  if  discovery  or  affirmative  relief  be  desired.* 


fendant  may  deny  the  allegations  on 
which  claimant's  right  to  relief  is 
based,  and  at  the  same  time  set  up  in 
his  answer  any  other  matters  not  in- 
consistent with  the  denial  as  a  distinct 
or  separate  defense  to  the  suit  or  to 
some  part  of  the  relief  claimed  by  the 
bill.  Hopper  v.  Hopper,  ii  Paige 
(N.  Y.)46. 

Matters  Occurring  Since  Bill  Filed  may 
be  set  up  in  the  answer.  Lyon  v. 
Brooks,  2  Edw.  Ch.  (N.  Y.)  no.  But 
see  Musselman  v.  Manly,  42  Ind.  462; 
Carr  v.  Ellis,  37  Ind.  465. 

1.  Beech  v.  Haynes,  i  Tenn.  Ch. 
574;  Smith  V.  St.  Louis  Mat.  Life  Ins. 
Co.,  2  Tenn.  Ch.  601. 

2.  Travers  v.  Ross,  14  N.  J.  Eq. 
254;  Adams  v.  Bridgewater  Iron  Co., 
6  Fed.  Rep.  179;  Crouch  v.  Kerr,  38 
Fed.  Rep.  549;  Brown  v.  Scottish 
American  Mortg.  Co.,  no  III.  235; 
Edwards  v.  Drake,  15  Fla.  666;  Ray- 
mond V.  Simonson,  4  Blackf.  (Ind.) 
79;  Thomas  v.  Brashear,  4  T.  B.  Mon. 
(Ky.)65;  Mitford  Eq.  PI.  (by  Jeremy) 
107;  Barton  Suits  in  Eq.  96;  Langdell 
Eq.  PI.  §  83;  Cooper  Eq.  PI.  no.  See 
also  Winters  v.  Claitor,  54  Miss.  341. 

3.  Lube  Eq.  PI.  55,  142;  Andrews  v. 
Kilbee,  12  Mich.  94,  83  Am.  Dec.  766; 
Andrews  v.  Oilman,  122  Mass.  471; 
Chapin  v.  Walker,  6  Fed.  Rep.  794; 
Armstrong  v.  Chemical  Nat.  Bank,  37 
Fed.  Rep.  466;  Carnochan  v.  Christie, 
II  Wheat.  (U.  S.)  446;  Ringo  v.  Wood- 
ruff, 43  Ark.  469;  Wickliffe  v.  Clay, 
I  Dana  (Ky.)  589;  Hubbard  z*. Turner,  2 
McLean  (U.  S. )  519;  Morgan  v.  Tipton, 
3  McLean  (U.  S.)  339;  Weisman  v. 
Smith,  6  Jones  Eq.  (N.  Car.)  124;  Mil- 
ler V.  Gregory,  16  N.  J.  Eq.  274;  Hoff 
V.  Burd,  17  N.  J.  Eq.  201;  McGuckin  v. 
Kline,  31  N.  J.  Eq.  454;  Aspinwall  v. 
Aspinwall,  49 N.  J.  Eq.  302;  Hathaway 
V.  Hagan,  59  Vt.  75;  Norman  v.  Hud- 
leston,  64  in.  11;  Tarleton  v.  Vietes, 
6  111.  470;  Mason  z/.  McGirr,  28  111.  322; 
White  V.  White,  103  111.  438;  Ballance 
V.  Underbill,  4  111.  453;  Edwards  v. 
Helm,  5  111.  143.     See  Cross-bills. 


Beason  for  Kule. — The  answer  is  a 
mode  of  defense;  hence  defendant,  if 
he  has  any  relief  to  pray  or  discovery 
to  seek,  must  do  so  by  bill  of  his  own. 
Cullum  V.  Erwin,  4  Ala.  452;  Cum- 
mings  V.  Gill,  6  Ala.  562;  Goodwin  v. 
McGehee,  15  Ala.  232. 

Illustrations  of  Rule. — On  a  bill  for 
rents  collected  by  defendant,  if  defend- 
ant claims  the  right  thereto  on  the 
ground  of  a  resulting  trust,  he  must 
file  a  cross-bill  in  order  to  procure  a 
decree  establishing  the  trust.  Beck  v. 
Beck,  43  N.  J.  Eq.  40. 

Except  in  matters  of  account,  affirma- 
tive relief  cannot  be  given  to  defend- 
ant on  the  facts  stated  in  the  answer; 
and  if  the  bill  cannot  prevail  against  a 
defendant  on  account  of  his  superior 
right,  the  bill  should  be  dismissed  as 
to  him,  unless  he  files  a  cross-bill  set- 
ting forth  his  rights,  with  a  proper 
prayer  for  relief  against  all  other  par- 
ties. Wooten  V.  Bellinger,  17  Fla. 
289. 

Rescission  of  Contract. — Under  a  bill 
filed  by  a  purchaser  for  the  rescission 
of  a  contract,  when  the  facts  only 
justify  a  decree  allowing  him  a  credit 
on  the  unpaid  notes  for  the  purchase- 
money,  the  defendant  cannot  without 
a  cross-bill  have  a  decree  in  his  favor 
for  the  balance  of  the  unpaid  purchase- 
money.  Gallagher  v.  Witherington, 
29  Ala.  420. 

Specific  Performance. — Substantive  re- 
lief by  way  of  specific  performance  of 
an  answer  cannot  be  granted  on  an- 
swer; a  cross-bill  is  necessary  for  that 
purpose.  Duryee  v.  Linsheimer,  27 
N.  J.  Eq.  366. 

On  a  bill  to  enforce  specific  perform- 
ance of  a  contract,  relief  based  on  an 
alleged  rescission  of  the  contract  can 
only  be  had  on  cross-bill.  Leicester 
Piano  Co.  v.  Front  Royal,  etc..  Imp. 
Co.,  55  Fed.  Rep.  196. 

On  a  bill  to  foreclose  a  mortgage, 
reformation  cannot  be  granted  on  a 
prayer  therefor  in  the  answer;  it  must 
be  by  cross-bill.     French  v.  Griffin,  18 


871 


Nature  of         ANS  WEJiS  IN  EQ  UITY  PLEADING. 


Answer. 


Waiver. — If,  however,  matters  only  proper  for  a  cross-bill  are  in- 
cluded in  the  answer,  and  no  objection  is  made  after  evidence  has 
been  introduced  by  both  parties,  and  the  issues  have  been  de- 
termined thereon,  the  irregularity  is  waived,  and  affirmative  relief 
may  be  granted  as  if  a  cross-bill  had  been  filed.' 

So  also,  when  the  parties  stipulated  that  the  answer  might  be 
treated  as  a  cross-bill  with  any  appropriate  prayer,  the  court  so 
treated  it,  and  made  a  decree  thereon.* 

Statutory  Change  of  Kule. — In  some  jurisdictions  the  rule  has  been 
so  changed  by  statutes  and  rules  of  court  that  the  answer  is  not 
limited  to  matters  of  defense,  but  may  seek  affirmative  relief.* 


N.  J.  Eq.  279;  Allen  v.  Roll,  25  N.  J. 
Eq.  163. 

Keformation  of  Contract. — In  the  ab- 
sence of  fraud  a  defendant  cannot 
show  under  an  answer  alone  that  a 
contract  complete  and  perfect  in  all  its 
parts  differs  materially  from  the  con- 
tract which  he  made;  if  he  demurs  to 
show  that  fact,  he  must  ask  by  cross- 
bill to  have  the  contract  reformed. 
Van  Syckel  v.  Dalrymple,  32  N.  J.  Eq. 
233,  826. 

1.  Book  V.  Justice  Min.  Co.,  58 
Fed.  Rep.  827.  See  also  Kelsey  v. 
Hobby,  16  Pet.  (U.  S.)  277;  Coburn  v. 
Credit  Valley  Land  Co.,  138  U.  S.  221. 

2.  Passumpsic  Sav.  Bank  v.  First 
National  Bank,  53  Vt.  82. 

3.  In  Michigan. — A  chancery  rule 
authorizes  a  defendant  in  his  answer 
to  present  the  facts  on  which  his 
equity  rests  without  filing  a  cross-bill. 
Under  this  rule  it  is  still  necessary  for 
the  defendant  to  state  a  cause  for 
equitable  relief  touching  the  matter 
in  question  in  the  original  bill;  and  an 
answer  to  a  bill  to  quiet  title  is  insuf- 
ficient as  a  basis  for  affirmative  relief 
if  it  alleges  that  the  deed  under  which 
complainant  claims  was  obtained  by 
fraud,  with  knowledge,  etc.,  without 
stating  by  whom  or  how  the  fraud  was 
committed.  McGuire  v.  Van  Buren 
County,  69  Mich.  593. 

This  rule  does  not  deprive  a  party 
of  any  of  the  substantial  rights  secured 
to  him  by  a  resort  to  a  cross-bill,  but 
preserves  to  him  all  the  benefits  to  be 
derived  from  a  cross-bill  by  stating 
the  substance  thereof  in  his  answer; 
and  the  complainant  is  entitled  to 
make  defense  to  matter  so  set  up  in 
the  answer  as  fully  as  he  could  have 
done  before  the  rule  was  made.  Hack- 
ley  V.  Mack,  60  Mich.  59. 

Though  the  answer  contains  no 
specific  prayer  for  relief,  but  simply 

87 


prays  to  have  the  bill  dismissed,  if  the 
facts  shown  clearly  entitle  the  defend- 
ant to  relief,  the  court  will  treat  the 
prayer  as  amended.  Cooley  v.  Harris, 
92  Mich.  135. 

Mississippi. — In  Mississippi  defendant 
may  make  his  answer  a  cross-bill 
against  the  complainant,  or  his  code- 
fendant  or  codefendants,  or  all  of 
them,  and  may  introduce  any  new 
matter  material  to  his  defense,  and 
require  the  same  to  be  answered.  So, 
also,  he  may  require  of  the  complain- 
ant or  of  any  of  the  defendants  a  dis- 
covery of  any  matter  material  to  his 
defense,  and  he  shall  have  process 
thereon  against  the  defendants  to  such 
cross-bill,  and  the  like  proceedings 
thereon  as  in  other  cross-bills.  Ann. 
Code,  1892,  §  537. 

If  defendant  in  his  answer  relies  for 
any  cause  on  the  invalidity  of  an  in- 
strument relied  on  by  complainant  for 
recovery,  he  cannot  have  the  affirma- 
tive relief  of  cancellation  unless  he 
makes  his  answer  a  cross-bill.  Bay  v. 
Shrader,  50  Miss.  326  ;  Weeks  v. 
Thrasher,  52  Miss.  144. 

An  answer  seeking  specific  relief, 
but  not  made  a  cross-bill,  will  not  en- 
title defendant  to  relief.  Millsaps  v. 
Pfeiffer,  44  Miss.  805;  Arnold  v.  Mil- 
ler, 26  Miss.  152. 

But  on  a  bill  by  one  tenant  in  com- 
mon for  partition,  where  a  defendant 
by  his  answer  set  up  a  claim  for  con- 
tribution,from  the  other  co-tenants,  for 
expenditures  by  him  for  taxes  and  re- 
pairs on  the  common  estate,  it  was 
held  that  the  relief  could  be  granted 
him,  although  he  did  not  make  his  an- 
swer a  cross-bill.  Harrison  v.  Harri- 
son, 56  Miss.  174. 

Rhode  Island. — In  Rhode  Island  no 
cross-bill  is  necessary  in  any  suit  in 
equity,  but  defendant  may  avail  him- 
self of  any  matter  in  defense    which 

2 


Hequirements  ANSWERS  IN  EQUITY  PLEADING.       of  Answer. 


IV.  KEftUlEEMENTS  OF  Answee — 1.  Must  be  Full.— Generally  if 
defendant  attempts  to  make  defense  by  answer,  he  must  answer 
fully  all  the  statements  and  charges  of  the  bill,  with  all  their 
material  circumstances,  without  any  special  interrogatories  in  the 
bill  for  that  purpose.* 


would  be  open  to  him  as  a  cross-bill 
by  setting  up  such  matter  in  his  an- 
swer; and  the  court,  on  the  hearing  of 
the  case,  may  make  any  decree,  final 
or  interlocutory,  for  or  against  either 
party,  warranted  by  the  merits  of  the 
case,  that  it  could  have  made  had  such 
a  cross-bill  been  filed.  Pub.  Sts.  1882, 
507,  §  16. 

Tennessee. — The  defendant  may,  by 
proper  allegations,  file  his  answer  as  a 
cross-bill  and  require  a  discovery  from 
the  complainant  ;  in  which  case  de- 
murrer or  pleas  may  be  filed,  or  other 
proceedings  had  upon  the  answer,  as 
upon  a  cross-bill.  M.  &  V.  Code, 
§  5066. 

Under  this  statute  an  answer,  filed 
as  a  cross-bill,  is  on  the  same  footing 
as  a  cross-bill,  and  is  not  limited  to 
purposes  of  defense.  Nichol  v.  Nichol, 
4  Baxt.  (Tenn.)  147. 

An  answer  filed  as  a  cross-bill  need 
not  necessarily  be  a  bill  for  discovery, 
specifically,  but  may  well  be  based  on 
any  proper  matters  of  equity  growing 
out  of  the  original  bill  or  connected 
with  it,  on  which  the  respondent 
would  be  entitled  to  affirmative  relief 
on  a  cross-bill  filed  separately.  Odom 
V.  Owen,  2  Baxt.  (Tenn.)  446. 

An  answer  filed  as  a  cross-bill  under 
the  statute  can  only  be  treated  as  a 
cross-bill  proper,  and,  being  defen- 
sive, will  go  with  the  original  bill. 
And  the  court  cannot  be  required  to 
notice  original  matter  set  up  therein, 
at  any  rate  if  the  original  matter  be  a 
cause  of  action  against  the  heir,  when 
the  original  bill  is  by  the  personal 
representative  of  a  decedent.  Elliston 
V.  Morrison,  3  Tenn.  Ch.  2S0. 

West  Virginia. — Defendant  may  al- 
lege any  new  matter  constituting  a 
claim  for  affirmative  relief  against 
plaintiff  or  any  delendant  therein,  in 
the  same  manner  and  with  like  effect 
as  if  the  same  had  been  alleged  in  a 
cross-bill  filed  by  him  therein;  and 
if  the  plaintiff  or  defendant  against 
whom  such  a  relief  is  claimed  desire 
to  controvert  the  relief  prayed  for  in 
the  answer,  he  shall  file  a  special  reply 
in  writing,  denying    such  allegations 


of  the  said  answer  as  he  does  not  ad- 
mit to  be  true,  and  stating  any  facts 
constituting  a  defense  thereto.  But 
in  case  a  defendant  allege  new  matter 
in  his  answer  upon  which  he  relies, 
and  prays  affirmative  relief,  such  de- 
fendant shall  not  file  a  cross-bill  in  the 
same  cause  except  upon  condition  of 
striking  from  his  answer  all  such  mat- 
ter and  prayer  for  affirmative  relief  as 
are  contained  in  such  cross-bill.  Code, 
785.  ^35- 

An  answer  alleging  new  matter,  con- 
stituting a  claim  to  affirmative  relief 
in  the  suit,  within  the  meaning  of  the 
statute,  was  intended  simply  to  be  al- 
lowed in  lieu  of  a  cross-bill  in  the 
cause  as  to  such  new  matter,  and  not 
to  make  any  other  change  in  the  prac- 
tice as  to  the  pleading  in  courts  of 
equity.  Moore  v.  Wheeler,  10  W.  Va. 
35. 

An  answer  setting  up  affirmative 
matter  and  asking  relief  thereon  will 
be  bad  on  demurrer  if  the  relief  asked 
for  is  foreign  to  the  original  bill. 
Rust  V.  Rust,  17  W.  Va.  901;  McMul- 
len  V.  Eagan,  21  W.  Va.   234. 

Any  affirmative  relief  available  in  a 
cross-bill  is  available  by  an  answer  if 
properly  pleaded  under  the  statute. 
Middleton  v.  Selby,  ig  W.  Va.  167; 
Armstrong  v.  Wilson,  19  W.  Va.    108. 

United  States. — Under  Rev.  Sts.  U. 
S.  §  491S,  providing  for  suits  touching 
interfering  patents,  defendant  may 
have  affirmative  relief  without  filing  a 
cross-bill.  Lockwood  v.  Cleaveland, 
6  Fed.  Rep.  721;  American  Clay  Bird 
Co.  V.  Ligowski  Clay  Pigeon  Co.,  31 
Fed.  Rep.  466. 

1.  Bank  of  Utica  v.  Messereau,  7 
Paige  (N.  Y.)  517,  49  Am.  Dec.  189; 
Cuyler  v.  Bogert,  3  Paige  (N.  Y.)  186; 
Disosway  v.  Carroll,  3  Chan.  Sent.  (N. 
Y.)  57;  Phillips  V.  Prevost,  4  Johns. 
Ch.  (N.  Y.)  205;  Methodist  Episcopal 
Church  V.  Jacques,  r  Johns.  Ch.  (N. 
Y.)  65;  Mechanics'  Bank  v.  Levy,  3 
Paige  (N. Y.)  606;  Champlin  v.  Champ- 
lin,  2  Edw.  Ch.  (N.  Y.)  362;  Whitney 
V.  Belden,  i  Edw.  Ch.  (N.  Y.)  386; 
Davis  V.  Mapes,  2  Paige  (N.  Y.)  105; 
Miles  V.  Miles,  27   N.  H.  440;  Salmon 


873 


Eequirements  ANSWERS  IN  EQUITY  PLEADING.        of  Answer. 


Exceptions. — This  rule  is  subject  to  several  well-established  ex- 
ceptions. Thus,  all  matters  merely  scandalous,  impertinent,  ir- 
relevant, or  immaterial  need  not  be  answered.* 

Defendant  need  not  answer  anything  which  will  subject  him  to 
any  penalty  or  forfeiture.'-* 

He  need  not  divulge  matters  where  such  divulgence  would 
involve  a  breach  of  professional  confidence.^ 

Nor  need  he  discover  the  facts  relating  to  his  own  title,  but 
only  those  relating  to  plaintiff's  title."*     So  also  statutes  and  rules 


V.  Clagett,  3  Bland.  (Md.)  125;  Neale 
V.  Hagthrop,  3  Bland.  (Md.)  551; 
Chappell  V.  Funk,  57  Md.465;  Harvey 
V.  Lance,  i  Luz.  Leg.  Obs.  (Pa.)  315; 
Parkinson  v.  Trousdale,  4  111.  367; 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  338;  Hopkins  v.  Medley,  97 
111.  402;  Vreelandr.  New  Jersey  Stone 
Co.,  25  N.  J.  Eq.  140;  Hogencamp  v. 
Ackerman,  10  N.  J.  Eq.  267;  Brown  z'. 
Fuller,  13  N.  J.  Eq.  271;  Cartwright 
V.  Hateley,  i  Ves.  Jr.  292;  Shepherd 
V.  Roberts,  3  Bro.  C.  C.  239;  Story  Eq. 
■Pl.  doth  ed.)^§38,  846;  Beach  Mod. 
Eq.  Pr.  §  334.  See  also  Rev.  Sts.  111. 
1845,  p.  96,  ^  23;  Ann.  Code  Miss.  1S92, 

^■533- 

Method  of  Compelling  Full  Answer. — 
If  the  answer  be  in  any  respect  eva- 
sive or  insufficient,  the  plaintiff  may 
except  to  it,  and  thus  extract  from  his 
opponent  a  full  and  perfect  answer. 
Beam  Orders,  28,  179;  King  v.  Maris- 
sal,  3  Atk.  192;  Radford  v.  Wilson,  3 
Atk.  815,  Hepburn  v.  Durand,  i  Bro. 
C.  C.  503;  Deane  v.  Rastron,  i  Anst. 
64;  Prout  V.  Underwood,  2  Cox  135; 
Mountford  v.  Taylor,  6  Ves.  792; 
White  V.  Williams,  8  Ves.  193;  Somer- 

vile    V.    Mackay,    16  Ves.  382;  

V.  Harrison,  4  Madd.  252;  Wharton  v. 
Wharton,  i  Cond.  Ch.  Rep.  117.  See 
post,  section  Exceptions. 

1.  Story  Eq.  PI.  (loth  ed.)  §  846; 
Mitford  Eq.  PI.  (by  Jeremy)  367,  note 
h;  Wigram  on  Discovery  (ist  ed.)  195, 
198;  Agar  V.  Regents  Canal  Co.,  G. 
Coop.  212;  Waldron  v.  Bayard,  i 
Phila.  (Pa.)  484;  Utica  Ins.  Co.  v. 
Lynch,  3  Paige  (N.  Y.)  210;  Wiswall  v. 
Wandell,  3  Barb.  Ch.(N.  Y.)  312.  See 
also  BattersonT/.  Ferguson,  i  Barb.  (N. 
Y.)  490;  Neale  v.  Hagthrop,  3  Bland 
(Md.)  551.  But  there  are  cases  hold- 
ing that  if  defendant  submits  to 
answer,  he  is  bound  to  answer  every 
immaterial  as  well  as  material  state- 
ment of  the  bill.  Hogencamp  v.  Ack- 
erman, ID  N.  J.  Eq.  267;  Brown  v. 
Fuller,  13  N.  J.  Eq.  271. 


2.  Story  Eq.  PI.  §  846;  Smith  v. 
Read,  i  Atk.  526;  Harrison  v.  South- 
cote,  I  Atk.  528;  Bird  v.  Hardwicke,  i 
Vern.  no;  Sharp  v.  Carter,  3  P.  Wms. 
375;  Wrottesley  z'. Bendish,  3  P.  Wms. 
236;  Chancey  v.  Fenhoulet,  2  Ves. 
265;  Boteler  v.  Allington,  3  Atk.  453  ; 
Chauncey  v.  Tahourden,  2  Atk.  392; 
Fane  v.  Atlee,  i  Eq.  Cas.  Abr.  77,  pl. 
15;  Uxbridge  v.  Staveland,  i  Ves.  56; 
Claridge  v.  Hoard,  14  Ves.  59;  Patter- 
son V.  Patterson,  i  Havw.  (N.  Car.) 
168;  Butler  V.  Catling,  i  Root  (Ccnn.> 
310;  Higdon  v.  Heard,  14  Ga.  255; 
Atterbury  v.  Knox,  8  Dana  (Ky.)  284; 
Leigh  V.  Everhart,4T.  B.  Mon.  (Ky.) 
379,  16  Am.  Dec. 160;  Adams  i/.  Porter,  i 
Cush.(Mass.)  170;  Taylor  v.  Bruen,  2 
Barb.  Ch.  (N.  Y.)  302:  Union  Bank  v. 
Barker,  3  Barb.  Ch.  (N.  Y.)  358;  Leg- 
gett  V.  Postley,  2  Paige  (N.  Y.)  599; 
Livingston  v  Harris,  3  Paige  (N.  Y.) 
528;  Mclntyre  v.  Mancius,  16  Johns. 
N.Y.)  592;  Skinner  z/.  Judson,  8  Conn. 
527,  21  Am.  Dec.  691;  Northrop  v. 
Hatch,  6  Conn.  361;  U.  S.  Bank  v. 
Biddle,  2  Pars.  Eq.  Cas.  (Pa.)  31. 

Protection  by  Statute — Effect. —  But 
defendant  must  answer  as  to  a  fraud 
charged  in  the  bill,  though  it  amounts 
to  an  indictable  offense,  where  it  is 
provided  by  statute  that  the  answer 
shall  not  be  used  as  evidence  against 
him.  Schott  v.  Bragg,  i  T.  &  H.  Pr. 
(Pa.)  96. 

Penalty  Barred  by  Statute  of  Limita- 
tions or  Waived. — If  the  forfeiture  or 
penalty  be  barred  by  the  statute  of 
limitations,  defendant  is  no  longer 
protected  from  answering  fully.  Skin- 
ner V.  Judson,  8  Conn.  528,  21  Am. 
Dec.  691.  Contra,  Northrop  v.  Hatch, 
6  Conn.  361. 

3.  Story  Eq.  Pl.  (loth  ed.)  ^  846; 
Wigram  on  Disc,  (ist  ed.)  195,  196; 
Beach  Mod.  Eq.  Pr.  g  335;  Stratford  v. 
Hogan,  2  Ball.  &  B.  164;  Jones  v. 
Pugh,  12  Sim.  470;  Greenough  v. 
Gaskell.  i  Myl.  &  K.  98. 

4.  Story  Eq.   Pl.    (loth    ed.)   g   846; 


874 


Eequirements  ANSWERS  IN  EQUITY  PLEADING.        of  Answer. 


of  court  have  modified  the  rule  in  some  jurisdictions.^ 

2.  Must  be  Certain. — The  answer  should  be  certain  as  far  as 
practicable;  and  to  so  much  of  the  bill  as  it  is  necessary  to  answer 
defendant  must  speak  directly,  without  evasion,  and  not  by  way 
of  negative  pregnant.  He  must  not  answer  the  charges  merely 
literally,  but  must  confess  or  traverse  the  substance  of  each  posi- 
tively and  with  certainty;  particular  precise  charges  must  be 
answered  particularly,  not  in  a  general  manner.* 


Hare  on  Disc.  266,  268;  Beach  Mod. 
Eq.  PI.  335. 

Other  Exceptions. — So  also  a  party  in 
whose  favor  a  judgment  has  been  en- 
tered up  is  not  bound  to  answer  any 
inquiries  in  a  bill  filed  by  a  subse- 
quent purchaser  which  go  to  impeach 
the  consideration  or  validity  of  the 
judgment.  French  v.  Shotwell,  6 
Johns.  Ch.  (N.  Y.)  235. 

On  a  bill  against  bankrupt's  assign- 
ees for  an  accounting  and  to  enjoin 
proceeding  at  law,  an  answer  by  one 
of  the  defendants  setting  forth  that 
his  name  was  used  in  the  action  at 
law  without  his  authority,  and  that 
his  actions  as  assignee  were  in  refer- 
ence to  matters  not  connected  with  the 
subject  of  the  bill  therein  set  forth, 
was  held  good  though  he  had  not 
answered  each  interrogatory.  Jones 
V.  Wiggins,  2  Y.  &  J.  385. 

A  defendant  may  answer  in  part, 
and  by  his  answer  state  grounds  why 
he  should  not  be  compelled  to  make 
further  answer.  Hunt  v.  Gookin,  6 
Vt.  462.  See  also  M.  E.  Church  v. 
Jacques,  i  Johns.  Ch.  (N.  Y.)  65;  Cuy- 
ler  V.  Bogert,  3  Paige  (N.  Y.)  186; 
Phillips  V.  Prevost,  4  Johns.  Ch.  (N.  Y.) 
205;  Desplaces  v.  Goris,  i  Edw.  Ch. 
(N.  Y.)  350;  Bentley  v.  Cleaveland,  22 
Ala.  814. 

On  a  bill  for  an  accounting,  where 
it  does  not  appear  on  the  face  of  the 
bill  that  the  account  will  be  necessary 
in  establishing  complainant's  right 
thereto,  but  it  appears  merely  that 
the  account  is  that  which  must  ulti- 
mately be  rendered  in  fulfilment  of  an 
obligation  sought  to  be  enforced,  the 
account  need  not  be  set  out  in  the 
answer,  where  resort  to  answer  is 
preferable  to  plea  or  demurrer  in  re- 
sisting the  complainant's  alleged  right 
to  account;  but  if  the  alleged  right 
may  be  resisted  by  plea  or  demurrer, 
and  defendant  chooses  to  answer,  he 
must  answer  setting  out  the  account 
fully.  Pace  v.  Bartles,  45  N.  J.  Eq. 
371.  See  also  Phillips  v.  Prevost,  4 
Johns.     Ch.   (N.     Y.)    205;    French  v. 


Rainey,  2   Tenn.  Ch.  640;  Armstrong 
V.  Crocker,  ro  Gray  (Mass.)  269. 

1.  In  Alabama  a  defendant  in  his 
answer  may  protect  himself  from 
making  a  full  answer  to  the  allega- 
tions of  the  bill.     Code  1886,  ^3440. 

United  States  Equity  Rule  39  provides 
as  follows  :  "  The  rule  that  if  a  de- 
fendant submits  to  answer  he  shall 
answer  fully  to  all  the  matters  of  the 
bill  shall  no  longer  apply  in  cases 
where  he  might  by  plea  protect  him- 
self from  such  answer  and  discovery. 
And  the  defendant  shall  be  entitled 
in  all  cases  by  answer  to  insist  upon 
all  matters  of  defense  (not  being  mat- 
ters of  abatement,  or  to  the  character 
of  the  parties,  or  matters  of  form)  in 
bar  of  or  to  the  merits  of  the  bill,  of 
which  he  may  be  entitled  to  avail 
himself  by  a  plea  in  bar,  and  in  such 
answer  he  shall  not  be  compellable  to 
answer  any  other  matters  than  he 
would  be  compellable  to  answer  and 
discover  upon  filing  a  plea  in  bar,  and 
an  answer  in  support  of  such  plea, 
touching  the  matters  set  forth  in  the 
bill,  to  avoid  or  repel  the  bar  or  de- 
fense. Thus,  for  example,  a  bona-fide 
purchaser  for  a  valuable  considera- 
tion without  notice  may  set  up  that 
defense  by  way  of  answer  instead  of 
plea,  and  shall  be  entitled  to  the  same 
protection,  and  shall  not  be  compella- 
ble to  make  any  further  answer  or 
discovery  of  his  title  than  he  would 
be  in  any  answer  in  support  of  such  a 
plea."  Equity  Rule  44  provides  that 
"a  defendant  shall  be  at  liberty,  by 
answer,  to  decline  answering  any  in- 
terrogatory, or  part  of  an  interroga- 
tory, from  answering  which  he  might 
havQ  protected  himself  by  demurrer; 
and  he  shall  be  at  liberty  so  to  decline 
notwithstanding  he  shall  answer  other 
parts  of  the  bill  from  which  he  might 
have  protected  himself  by  demurrer." 

In  Maryland  Chancery  Rule  23  is  an 
exact  copy  of  United  States  Eq.  Rule 
39,  supra. 

2.  Boh.  Cur.  Can.  iii;  Wy.  P.  Reg. 
13;  I   Har.  Ch.  Pr.  303;  Mitf.    Eq.  PL 


«75 


Eequirements   ANSWERS  IN  EQUITY  PLEADING.        of  Answer. 


Defendant  cannot  shelter  himself  behind  equivocal,  evasive,  or 
doubtful  terms,  and  thus  mislead  complainant,  nor  behind  a  lit- 
eral denial  which  amounts  to  no  more  than  a  negative  pregnant 
or  an  evasion  of  the  points  of  substance.* 

3.  Must  be  on  Knowledge,  Information,  Remembrance,  or  Belief. — 
As  a  general  rule  the  answer  of  a  defendant  in  an  equitable  pro- 
ceeding should  be  as  to  his  knowledge,  information,  remem- 
brance, or  belief.* 

Where  the  facts  are  within  defendant's  knowledge,  he  must 
answer  positively  and  not  as  to  his  information  and  belief ;  •  and 


247;  Coop.  Eq.  PI.  314;  Dan.  Ch.  Pr. 
(5ih  Am.  ed.)  726;  Story  Eq.  PI.  (loth 
ed.)  i?  852;  Wood  V.  Morrell,  i  Johns. 
Ch.  (N.  Y. )  103;  Leacraft  v.  Demprey, 

4  Paige  (N.  Y.)  124;  Chan.  1821, 
Smith  V.  Lasher,  5  Johns.  Ch.  (N.*Y.) 
247;  Morris  v.  Parker,  3  Johns.  Ch. 
(N.  Y.)  297;  Utica  Ins.  Co.  v.  Lynch, 
3  Paige  (N.  Y.)  210;  Pettit  v.  Chand- 
ler, 3  Wend.  (N.  Y.)  618;  Morris  v. 
Barker,  3  Johns.  (N.  Y.)  297;  Hall  v. 
Wood,  I  Paige  (N.  Y.)404;  Devereaux 
V.  Cooper,  11  Vt.  105;  Hepburn  v. 
Durand,  i  Bro.  C.  C.  503;  Taylor  v. 
Luther,  2  Sumn.  (U.  S.)  228;  Mount- 
ford  V.  Taylor,  6  Ves.  792;  New  Eng- 
land Bank  v.  Lewis,  8  Pick.  (Mass.) 
119;  Hunter  v.  Bradford,  3  Fla.  285; 
Barrow  v.  Bailey,  5  Fla.  9;  Savage  v. 
Benham,  17  Ala.  119;  Smith  v.  Loomis, 

5  N.  J.  Eq.  60.  See  also  Jenkins  v. 
Greenbaum,  95  111.  11. 

Illustrations  of  Eule. — If  the  bill 
charges  defendant  with  having  writ- 
ings and  papers  in  his  custody,  pos- 
session, or  power,  an  answer  alleging 
that  there  are  writings  or  papers 
in  the  West  Indies,  and  that  he  cannot 
set  forth  the  particulars  thereof,  but 
not  alleging  whether  or  not  they  are 
in  defendant's  custody,  possession,  or 
power,  is  insufficient  for  the  reason 
that,  if  he  admitted  them  to  be  in  his 
possession,  custody,  or  power,  the 
court  might  order  them  brought  into 
court  within  a  reasonable  time  on  a 
motion  by  complainant  therefor.  Far- 
quharson  v.  Balfour,  T.  &  R.  190;  Dan. 
Ch.  Pr.  (5th  Am.  ed.)  726;  Story  Eq. 
PI.  (loth  ed.)§852. 

An  answer  alleging  that  defendant 
had  not  certain  books,  papers,  and 
writings  in  his  possession,  custody,  or 
power,  because  they  w^ere  coming 
over  to  this  country,  was  held  bad  in 
that  they  were  in  his  possession,  and 
he  should  have  so  stated  in  his  answer. 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  726;  Story 
Eq.  PI.  (loth  ed.)  §  852. 


I    Bro.    C.   C. 

9    Dana   (Ky.) 
9   Dana  (Ky.) 


On  a  bill  for  a  general  accounting, 
which  required  defendant  to  show 
whether  he  had  received  specified 
sums,  and  if  so,  when,  from  whom, 
and  on  what  accounts  he  had  received 
them,  it  was  held  that  setting  forth  a 
general  account  by  way  of  schedule  to 
the  answer,  and  referring  to  it  as  con- 
taining a  full  account  of  all  sums  re- 
ceived, was  insufficient,  it  being  con- 
sidered necessary  that  the  answer 
should  be  specific  to  the  specific 
charges  of  the  bill.  Story  Eq.  PI. 
doth  ed.)  §  852;  I  Mitf.  Eq.  PI.  (by 
Jeremy)  309;  Cooper  Eq.  PI.  314; 
Hepburn  v.  Durand, 
503- 

1.  Hill  V.  Lackey, 
83;  McLain  v.  Waters, 
55;  Talbot  V.  Sebree,  i  Dana  (Kv.)  56; 
Bailey  v.  Wilson,  i  Dev.  &  B.  Eq.  (N. 
Car.)  187;  Bissell  v.  Bozman,  2  Dev. 
Eq.  (N.  Car.)  163;  Grady  v.  Robinson, 
28  Ala.  289. 

2.  Daniell  Ch.  Pr.  (5th  Am.  ed.)722; 
Baileys.  Wilson,  i  Dev.  &  B.  (N.  Car.) 
182,  187;  Reed  v.  Cumberland  Mut.  F. 
Ins.  Co.,  36  N.  J.  Eq.  146;  Kinnaman 
V.  Henry,  6  N.  J.  Eq.  90;  Utica  Ins. 
Co.  V.  Lynch,  3  Paige  Ch.  (N.  Y.)  210; 
Brotherton  v.  Downey,  21  Hun  (N.  Y.) 
436;  Tradesmen's  Bank  v.  Hyatt,  2 
Edw.  Ch.  (N.  Y.)  195;  Robinson  v. 
Woodgate,  3  Edw.  Ch.  (N.  Y.)  422: 
Kittridge  v.  Claremont  Bank,  i  Woodb. 
&  M.  (U.  S.)  573;  Kinnman  v.  Henry.^ 
6  N.  J.  Eq.  90;  Devereux  z/.  Cooper,  ir 
Vt.  103;  Sanderlin  w.  Sanderlin,  24  Ga. 
583;  Steinman  v.  Lancaster,  2  L.  Bar. 
(Pa.)  Nov.  12,  1870;  Painter  v.  Hard- 
ing, 3  Phila.  (Pa.)  144. 

3.  Miles  V.  Miles,  7  Fost.  (N.  H.) 
440;  Dinsmore  v.  Hazleton,  2  Fost. 
(N.  H.)  535;  Woods  z/.  Morrell,  i  Johns'. 
Ch.  (N.  Y.)  107;  Noyes  v.  Inland,  etc., 
Coasting  Co.,  4  McArth.  (D.  C.)  i; 
Carey  v.  Jones,  8  Ga.  516;  McAllister 
V.  Ciopton,  51  Miss.  257;  Mead  v. 
Day,  54  Miss.  58. 


876 


Requirements  ANSWERS  IN  EQUITY  PLEADING.       of  Answer.. 

if  not  within  his  knowledge  he  must  answer  as  to  his  information 
and  belief,  and  not  as  to  his  information  only,  without  stating 
his  belief.* 

If  defendant  answers  that  he  has  no  knowledge  or  information 
of  the  facts  charged  in  the  bill,  he  need  not  admit  or  deny  them, 
or  express  any  belief  as  to  them  one  way  or  the  other.'-* 

If  defendant  denies  all  knowledge  of  facts  charged  in  the  bill, 
but  admits  belief,  he  need  not  deny  information.^ 

If  facts  are  within  defendant's  knowledge,  but  are  not  of  recent 
occurrence,  he  has  sometimes  been  permitted  to  answer  as  to  his 
remembrance.* 


\.  Miles  t/.  Miles,  7  Fost.  (N.H.)  440: 
Dinsmore  v.  Hazleton,  2  Fost.  (N.  H.) 
535;  Woods  V.  Morrell,  I  Johns.  Ch. 
(N.  Y.)  107;  Noyes  v.  Inland,  etc., 
Coasting  Co.,  4  McArthur  (D.  C.)  i; 
Carey  v.  Jones,  8  Ga.  516;  Mead  v. 
Day,  54  Miss.  58;  McAllister  v.  Clop- 
ton,  51  Miss.  257. 

Illustration.  —  Thus  an  answer  ad- 
mitting that  the  facts  charged  in  the 
bill  might  be   true,  but  asserting  that 


ant  is  a  stranger  to  such  facts  and  has 
no  knowledge  thereof,  is  bad  if  it  does 
not  also  answer  as  to  information  and 
belief,  if  he  has  information,  since  de- 
fendant might  be  a  stranger  to  the  facts 
charged  and  yet  have  information  and 
belief  concerning  them.  Smith  v. 
Lasher,  5  Johns.  Ch.  (N.  Y.)  246. 

Failure  to  Deny  Information  and  Ex- 
press Belief— Effect. — An  answer  which 
fails  to  deny  charges  made  in  the  bill 


defendant  has  no  knowledge  of  such    prima  facie  vixthxTi  the  knowledge,  in- 


matters  except  from  the  bill,  is  insuf- 
ficient. Rienzle  v.  Barker,  4  Atl.  Rep. 
(N.J.)  309;  Reese  v.  Cumberland  Ins. 
Co.,  36  N.  J.  Eq.  146. 

Answer  in  Effect  Denying  Information. 
— Where  defendant  answered  to  the 
facts  charged  in  the  bill,  that  "  it 
might  be  true  for  anything  he  knew  to 
the  contrary,  but  that  he  was  an  utter 
stranger  to  all  and  every  such  matter," 
it  was  held  that  the  answer  was  suffi- 
cient in  that  it  also  (at  least  in  effect) 
denied  information  concerning  the 
facts.  Amhurst  v.  King,  2  Sim.  & 
Stu.  183. 

So  also  an  answer  as  to  matters  to 
which  the  defendant  is  not  alleged  to 
be  privy,  stating  that  they  may  be  true 
for  anything  he  knows  to  the  contrary, 
but  that  he  is  a  stranger  to  and  cannot 
form  any  belief  respecting  them,  is 
sufficient.  Stetson  v.  Peters,  16  Leg. 
Int.  (Pa.)  147,  decided  on  the  author- 
ity of  Amhurst  v.  King,  2  Sim.  &  Stu. 
183. 

If  the  Court  is  Satisfied  that  Defendant 
Cannot  Answer  Positively,  an  answer  as 
to  his  belief  will  be  allowed  even  as  to 
his  own  acts.     Hall  v.  Wood,  i  Paige 

(N.  Y.)404- 

Answer  that  Defendant  is  a  Stranger 
to  Facts  Should  be  on  Information  and 
Belief.  —  An  answer  that  the  facts 
charged  may  be  true,  but  that  defend- 


formation,  or  belief  of  defendant,  or  to 
express  belief  as  to  the  falsity  of  such 
charges,  and  which  does  not  allege 
that  he  cannot  form  any  belief  respect- 
ing their  truth,  will  be  deemed  to  ad- 
mit them.  Grady  z/.  Robinson,  28  Ala. 
289;  Smilie  v.  Siler,  35  Ala.  88;  Clark 
V.  Jones,  41  Ala.  349. 

2.  King  f.  Ray,  II  Paige  (N.  Y.)255; 
Morris  v.  Parker,  3  Johns.  Ch.  (N.  Y.) 
297;  Jones  V.  Wiggins,  2  Younge  &  J. 
385.  See  also  Norton  v.  Warner.  3 
Edw.  Ch.  (N.  Y.)  186. 

When  Answer  Need  not  Express  Belief. 
— If  defendant  has  neither  knowledge 
nor  information  of  the  matters  charged 
except  what  he  may  derive  from  the 
bill,  he  need  not  express  any  belief. 
Utica  Ins.  Co.  v.  Lynch  (N.  Y.)  210; 
Sloan  V.  Little,  3  Paige  (N.  Y.)  no. 

An  answer  containing  a  response  to 
a  material  allegation  of  the  bill,  that 
defendant,  having  no  personal  knowl- 
edge thereof,  leaves  complainant  to 
make  such  proof  as  he  may  be  advised, 
is  bad.  Ryan  v.  Anglesea  R.  R.  Co. 
(N.  J.  Eq.),  12  Atl.  Rep.  539. 

S.  Davis  V.  Mapes,  2  Paige  (N.  Y.) 
105. 

4.  Story  Eq.  PI.  (loth  ed.)  §  855. 

Illustrations.  —  Defendant  was  per- 
mitted to  answer  as  to  his  remem- 
brance, where  the  facts  occurred  more 
than  six  years  before.  Carey  v.  Jones,. 


877 


Defenses  ANSWERS  IN  EQUITY  PLEADING.       by  Answer. 

4.  Must  Not  Contain  Inconsistent  Defenses. — Though  defendant 
may  set  up  as  many  defenses  in  his  answer  as  he  may  think 
proper,  it  is  essential  that  such  defenses  be  consistent.* 

Waiver. — If,  however,  no  exception  is  taken  to  an  answer  con- 
taining iipconsistent  defenses,  and  one  of  them  is  sustained  by  the 
proof,  such  inconsistency  will  not  be  a  ground  to  reverse  a  decree 
for  defendant.'-* 

5.  Must  State  Facts. — The  answer  should  consist  of  averments  of 
fact,  not  of  conclusions  of  law.*    See  article  LEGAL  CONCLUSIONS. 

V.  Defenses  Taken  by  Answer— 1.  Usury. —The  defense  of 
usury  may  either  be  set  up  by  plea  or  relied  on  in  the  answer.* 
The  facts  and  circumstances  of  the  alleged  usurious  bargain 
should  be  set  forth  with  certainty.*     See  article  USURY. 


8  Ga.  516.     See  also  Hall   v.  Wood,  i 
Paige  (N.  Y.)  404. 

Where  defendant  in  his  answer  said 
fhat  to  his  remembrance  he  had  re- 
ceived no  other  sum  than  what  was 
mentioned  in  his  answer,  the  answer 
was  held  good.  Hall  v.  Bodily,  i 
Vern.  470. 

1.  Hopper  z'.  Hopper,  11  Paige  (N. 
Y.)  46;  Stone  v.  Moore,  26  111.  165; 
Scanlan  v.  Scanlan,  134  111.  630. 

Where  several  defenses  are  pleaded 
in  an  answer,  each  defense  must  be 
complete  in  itselJ  and  a  full  answer  to 
the  action;  but  the  several  defenses 
need  not  be  harmonious  throughout, 
or  such  as  will  admit  of  comparison  in 
respect  to  the  facts  alleged  by  them. 
Hummel  v.  Moore,  25  Fed.  Rep.  380. 

Effect  of  Inconsistency.  —  "That  an- 
swer is  bad  which  either  contains  in- 
consistent defenses,  or  an  alternative 
of  inconsistent  defenses  "  (per  Alder- 
son,  B.,  in  Jesus  College  v.  Gibbs,  i  Y. 
&  C.  160);  and  defendant  will  be  de- 
prived of  the  benefit  of  either. 

2.  Scanlan  v.  Scanlan,  134  111.  630. 

3.  Ormes  v.  Beadel,  2  De  G.,  F.  &  J. 
333;  Atty.  Gen.  v.  Oakland  County 
Bank,  Walk.  (Mich.)  90;  Chambers  v. 
Chalmers,  4Gill  &  J.  (Md.)  420,  23  Am. 
Dec.  572;  Strike's  Case,  i  Bland  (Md.) 
57;  Hood  V.  Inman,  4  Johns.  Ch.  (N. 
Y.)  437;  McKim  v.  Mason,  2  Md.  Ch. 
510.  Thus  the  mere  denial  in  an  an- 
swer of  a  fraudulent  intent  in  convey- 
ing property  beyond  the  reach  of  an 
execution  against  the  grantors,  while 
admitting  all  the  facts  which  in  law 
and  equity  constitute  a  fraudulent  con- 
veyance, is  not  such  a  denial  as  must 
be  overcome  by  the  testimony  of 
several  witnesses  or  equivalent  evi- 
dence.     Such   denial    must    relate   to 


facts  charged,  not  to  the  conclusions 
and  arguments  following  from  the 
facts.     Gainer  v.  Russ,  20  Fla.  157. 

4.  Smith  V.  Nicholas,  8  Leigh  (Va.) 
330;  McKim  V.  Mason,  2  Md.  Ch.  510; 
Jenkins  v.  Greenbaum,  95  111.  11; 
Maher  z/.  Lanfrom,  86  111.  513;  Homeo- 
pathic Mut.  L.  Ins.  Co.  V.  Crane,  25 
N.  J.  Eq.  418,  27  N.  J.  Eq.  484;  New 
Jersey  Patent  Tanning  Co.  v.  Turner, 
14  N.  J.  Eq.  326;  Taylor  v.  Morris,  22 
N.  J.  Eq.  611;  Beatty  v.  Van  Brenner, 
24  N.  J.  Eq.  312;  Turrell  v.  Byard,  24 
N.  J.  Eq.  135;  Hannas  v.  Hawk,  24  N. 
J.  Eq.  124;  Watson  v.  Conkling,  24  N. 
J.  Eq.  230;  Vroom  v.  Ditmas,  4  Paige 
(N.  Y.)  526;  Rowe  V.  Phillips,  2  Sandf. 
Ch.(N.Y.)i4;  New  Orleans,  Gas  Light 
etc.,  Co.  V.  Dudley,  8  Paige  (N.  Y.)  452; 
Curtis  V.  Masten,  11  Paige  (N.  Y.)  15; 
Suydam  v.  Bartle,  10  Paige  (N.  Y.)  94; 
Clarke  v.  Hastings,  9  Gray  (Mass.)  64. 

But  it  has  been  held  that  the  pur- 
chaser of  the  mere  equity  of  redemp- 
tion in  premises  covered  by  an  usu- 
rious mortgage,  who  purchases  sub- 
ject to  the  lien  of  the  mortgage,  cannot 
set  up  usury  as  a  defense  to  the  in- 
cumbrance. Brolasky  v.  Miller,  9  N.. 
J.  Eq.  814;  Vroom  v.  Ditmas,  4  Paige 
(N.  Y.)  527. 

5,  Homeopathic  Mut.  L.  Ins.  Co.  v. 
Crane,  25  N.  J.  Eq.  418,  27  N.  J.  Eq. 
484;  Taylor  v.  Morris,  22  N.  J.  Eq. 
606;  Hannas  v.  Hawk,  24  N.  J.  Eq. 
124;  Turrell  v.  Byard,  24  N.  J.  Eq. 
135;  Beatty  v.  Van  Brenner,  24  N.  J. 
Eq.  312;  New  Jersey  Patent  Tanning 
Co.  V.  Turner,  14  N.  J.  Eq.  326;  Vroom 
V.  Ditmas  4  Paige  (N.  Y.)  526;  Rowe 
V.  Phillips,  2  Sandf.  Ch.  (N.  Y.)  14; 
New  Orleans  Gas  Light,  etc.,  Co.  v. 
Dudley,  8  Paige  (N.  Y.)  452;  Curtis  v. 
Masten,  11  Paige  (N.  Y.)  15;  Suydam 


878 


Defenses  ANS  WERS  IN  EQUITY  FLEA  DING.       by  Answer. 


Waiver. — But  after  the  parties 
alleging  usury  generally,  complai 

V.  Bartle,  lo  Paige  (N.  Y.)94;  Clarke 
1/.  Hastings,  9  Gray  (Mass.)  64. 

Precision  and  Certainty  Required. — An 
answer  by  an  endorser  to  an  action  on 
a  promissory  note,  that  "the  plaintiff 
reserved  a  greater  rate  of  interest  than 
is  allowed  by  law  at  the  time  of  dis- 
counting said  note  for  defendant,  to 
wit,"  the  sum  of  $4.50,  is  insufficient 
because  it  does  not  set  forth  any  usu- 
rious contract  made  by  the  defendants 
with  the  plaintiff,  nor  any  reservation 
of  usurious  interest  with  the  certainty 
and  precision  required  to  enable  de- 
fendant to  enforce  the  forfeiture. 
Clarke  v.  Hastings,  9  Gray  (Mass.)  64. 

General  Charge  of  Usury  insufficient. — 
An  answer  in  which  the  defendant 
states  in  general  terms  that  he  believes 
the  transaction  was  tainted  with  usury 
is  insufficient.  Suydam  v.  Bartle,  10 
Paige  (N.  Y.)  94. 

A  plea  or  answer  which  merely  con- 
tains a  general  charge  that  the  mort- 
gage for  the  foreclosure  of  which  the 
bill  was  filed  is  usurious  and  was 
founded  on  a  corrupt  agreement  by 
which  the  lender  was  to  receive  or  in 
some  way  obtain  a  greater  interest 
than  was  lawful,  either  by  a  pretended 
sale  of  property  at  more  than  its  value 
or  in  some  other  way,  is  bad  both  in 
form  and  in  substance.  New  Orleans 
Gas  Light,  etc.,  Co.  v.  Dudley,  8  Paige 
(N.  Y.)452. 

An  answer  denying  that  defendants 
received  the  whole  sum  of  money 
mentioned  in  the  mortgage  sought  to 
be  foreclosed,  and  alleging  that  a 
"  large  amount  of  money  was  unjustly 
and  unlawfully  detained  by  the  com- 
plainants as  a  bonus  and  unlawful  in- 
terest in  excess  of  seven  per  cent  per 
annum  and  not  paid  over  to  the  de- 
fendants at  the  time  of  the  execution 
of  the  mortgage,  and  that  it  has  not 
been  paid  to  them  or  to  any  other 
person  in  their  behalf  since  the  execu- 
tion of  the  mortgage,  was  held  insuffi- 
cient as  failing  to  give  any  particulars 
of  the  transaction,  as  not  alleging  an 
usurious  agreement,  and  as  not  even 
stating  the  amount  of  the  alleged 
bonus.  Watson  v.  Conkling,  24  N.  J. 
Eq.  231. 

Illustration  of  Answer  Sufficiently  Clear 
and  Specific-  A  charge,  in  an  answer 
to  a  bill  to  foreclose  a  mortgage  or 
deed  of  trust  given  to  secure  the  pay- 


have  joined  issue  on  an  answer 
nant  will  not  be  permitted  to  ob- 

ment  of  a  note  of  $10,000  loaned,  that 
fiooo  was  retained  out  of  the  loan, 
and  only  $9000  received  by  the  bor- 
rower when  he  gave  the  note,  is  suffi- 
ciently clear  and  specific  that  $1000 
was  reserved  as  usury.  So,  a  charge 
that  a  party  had  paid  unlawful  interest 
on  a  $2000  note,  at  the  rate  of  over 
twenty  per  cent  per  annum  from  a  cer- 
tain time  to  a  given  day,  and  a  claim 
that  if  such  note  be  held  valid  such 
amount  should  be  deducted  from  the 
amount  due  thereon,  and  that  all  right 
to  interest  on  such  note  be  declared 
forfeited,  was  held  sufficient  to  raise 
the  question  of  usury.  Maher  v. 
Lanfrom,  86  111.  513. 

Defense  when  Available  Without  Being 
Set  Up. — Where  a  bill  to  foreclose  a 
deed  of  trust  prays  that  an  account 
may  be  taken  of  what  is  due  on  the 
notes  secured,  even  if  the  answer  does 
not  set  up  the  technical  defense  of 
usury  by  claiming  a  forfeiture  of  all 
the  interest,  but  simply  claims  that  the 
usurious  interest  paid  in  excess  of  six 
per  cent  be  applied  as  a  credit  on  the 
debt,  and  that  the  account  be  stated  on 
equitable  principles,  it  will  be  sufficient 
to  enable  the  defendant  to  take  advan- 
tage of  any  usurious  payments  made 
in  excess  of  six  per  cent  on  the  notes 
secured  or  in  the  various  transactions 
upon  which  they  were  based.  Jenkins 
V.  Greenbaum,  95  111.  11. 

Usury  under  Laws  of  Another  State. — 
Where  defendant  desires  to  set  up 
usury  as  a  defense,  on  the  ground 
that  the  securities  alleged  to  be  usuri- 
ous were  first  sold  in  another  state 
or  country,  in  violation  of  the  usury 
laws  in  force  there,  he  must  state  in 
his  answer  what  those  laws  were  at 
the  time  of  the  supposed  usurious  sale, 
and  the  particular  facts  and  circum- 
stances of  the  case  which  rendered  the 
transaction  usurious  under  those  laws, 
so  that  the  court  may  see  that,  if  the 
answer  is  true,  the  securities  are  void 
for  usury  in  the  hands  of  purchasers 
and  holders  thereof.  Curtis  v.  Masten, 
II  Paige  (N.  Y.)  15.  If  the  defense 
relied  on  is  that  the  contract  was  usu- 
rious under  the  laws  of  another  state, 
in  which  the  contract  was  made,  it  must 
be  so  averred  in  the  answer.  Andrews 
o.  Torrey,  14  N.  J.  Eq.  355;  Dolman  v. 
Cook,  14  N.  J.  Eq.  56;  Campion  v. 
Kille,  14  N.  J.  Eq.  229,  15  N.  J.  Eq.  476. 


879 


Defenses  ANS IVERS  IN  EQ  UI  TV  PLEADING.       by  Answer.. 


ject  at  the  hearing  that  the  answer  was  not  taken  with  more  legal 
precision.* 

2.  Statute  of  Limitations. — The  statute  of  Hmitations  may  be 
set  up  as  a  defense  by  answer  as  well  as  by  plea  or  demurrer,*  but 
to  be  available  it  must  be  pleaded.^  Where  the  statute  is  relied 
on  in  the  answer  as  a  defense,  as  much  strictness  as  in  a  plea  is 
not  required.* 

How  Pleaded. — It  is  not  necessary  to  refer  in  terms  to  the  statute 
which  creates  the  bar.  Defendant  need  only  state  the  necessary 
facts  to  bring  the  case  within  the  statute,  and  then  insist  that,  by 
reason  of  the  existence  of  such  facts,  complainant's  cause  of  action 
is  barred.' 

3.  Laches. — This  defense  maybe  madeby  answer  where  the  facts 
on  which  it  rests  do  not  sufficiently  appear  on  the  face  of  the 
bill.®  The  authorities  are  in  conflict  as  to  whether  or  not  it  must 
be  pleaded  to  be  available.'' 

4.  Innocent  Purchase. — The  defense  that  defendant  is  2ibona-fide 
purchaser  for  a  valuable  consideration  without  notice  may  be 
taken  by  answer  as  well  as  by  plea.** 

4.  Maury  v.  Mason,  8  Port.  (Ala.) 
213;  Price  V.  Price,  i  Vern.  185;  Anon- 
ymous, 3  Atk.  70;  Hilyard  v.  Crassy, 
3  Atk.  303;  Jones  v.  Pengree,  6  Ves. 
Jr.  580;  Baile^y  z/.  Adams,  6  Ves.  Jr.  583. 

5.  Van  Hook  v.  Whitlock,  7  Paige 
(N.  Y.)  373- 

6.  Snow  V.  Boston  Blank  Book  Mfg. 
Co.,  153  Mass.  456. 

7.  Laches  Mast  Be  Pleaded. — A  defend- 
ant, to  avail  himself  of  this  defense, 
should  set  it  up  in  his  answer,  so  as  to 
give  complainant  an  opportunity  to 
amend  his  bill  by  inserting  allegations 
accounting  for  the  delay.  School 
Trustees  z/.  Wright,  12  111.  432;  Zeigler 
V.  Hughes,  55  III.  2S8.  But  such  de- 
fense need  not  be  set  up  in  the  answer 
where  it  has  been  anticipated  and  an 
excuse  set  up  in  the  bill.  Williams  v. 
Rhodes,  81  111.  571;  Sloan  v.  Graham, 
85  III.  26.  See  also  Hall  v.  Fullerton, 
69  111.  448. 

Contra. — Laches  is  a  defense  which 
the  court  will  take  notice  of  even 
though  not  pleaded.  Sullivan  v.  Port- 
land, etc.,  R.  Co.,  94  U.  S.  806;  Credit 
Co.  V.  Arkansas  Cent.  R.  Co.,  15  Fed. 
Rep.  46.  See  also  Maxwell  v.  Kennedy, 
8  How.  (U.  S.)  222;  Landsdale  v. 
Smith,  106  (U.  S.)  391. 

Who  May  Make  Defense. — The  defense 
of  laches  in  asserting  title  to  land  is  not  • 
available  by  one  whose  claim  to  the 
land  has  never  been  united  with  the 
possession.  Bush  v.  Stanley,  122  111. 
J06. 

8.  High  V.  Batte,  10  Yerg.   (Tenn.) 


1.  Chambers  v.  Chalmers,  4  Gill 
&  J.  (Md.)  420,  23  Am.  Dec.  572. 

2.  Van  Hook  v.  Whitlock,  7  Paige 
(N.  Y.)  373;  Bogardus  v.  Trinitv 
Church,  4  Paige  (N.  Y.)  178;  Smith  v. 
Hickman,  Cooke  (Tenn.)  330;  Maury  z'. 
Mason,  8  Port.  (Ala.)  213;  Highstone 
V.  Franks,  93  Mich.  52;  Nichols^/.  Pad- 
field,  77  111.  253;  Borders  v.  Murphy, 
78  111.  8r;  Pierce  v.  McClellan,  93  111. 
245;  Phelps  V.  Elliott,  35  Fed.  Rep. 
455.     See  Limitations,  Statutes  of. 

Illustrations. — Thus  heirs  of  a  debtor 
may  rely  on  the  statute  of  limitations 
as  a  defense  of  real  assets  of  decedent, 
although  the  executor  may  have  had 
judgment  rendered  against  him  on 
account  of  the  same  claim.  Strike's 
Case,  I  Bland  (Md.)57. 

Under  an  answer  alleging  that  com- 
plainant's right  to  sue  did  not  accrue 
at  any  time  within  six  years  before  the 
filling  of  the  bill,  defendant  may  rely 
upon  the  benefit  of  a  statute  of  limita- 
tions requiring  complainant  to  sue 
within  three  years  after  his  right  of 
action  had  accrued.  Van  Hook  v. 
Whitlock,  7  Paige  (N.  Y.)  373. 

Effect  — Where  the  statute  of  limita- 
tions is  so  interposed  by  answer  it  has 
the  effect  of  and  operates  as  a  plea. 
Pierce  v.  McClellan,  93  111.  245. 

3.  Borders  v.  Murphy,  78  111.  81; 
Chambers  v.  Chalmers,  4  Gill  &  J. 
(Md.)  420,  23  Am.  Dec.  572;  Strike's 
Case,  I  Bland  (Md.)  57;  Gibson  v. 
Green,  89  Va.  524;  Crutcherz/.  Trabue, 
5  Dana  (Ky.)  80. 


880 


Defenses  ANSWERS  IN  EQUITY  PLEADING.       by  Answer. 


How  Pleaded. — In  pleading  this  defense  it  is  essential  to  state 
briefly  the  instrument  of  purchase,  the  date,  and  the  parties  ;  *  to 
show  the  consideration  and  to  allege  the  bona-fide  payment 
thereof ;  *  to  allege  possession  by  the  grantor  at  the  time  of  the 
purchase  ;  ^  and  to  deny  notice.^  This  denial  is  necessary  even 
though  notice  is  not  charged  in  the  bill.* 


335;  Jerrard  v.  Saunders,  2  Ves.  455; 
Rowe  V.  Teed,  15  Ves.  372;  Weston  v. 
Berkeley,  3  P.  Wms.  244,  note;  Steph- 
ens V.  Gaule,  2  Vern.  701;  Aston  v. 
Curzon,  3  P.  Wms.  244,  note;  Bradlin 
V.  Ord,  I  Atk.  53S;  Harrison  v.  South- 
cote,  I  Atk.  50S;  Fitzgerald  v.  Burk,  2 
Atk.  397;  Hardingham  v.  Nicholls,  3 
Atk.  304;  Fox  V.  Coon,  64  Miss.  465; 
Donnell  v.  King,  7  Leigh  (Va.)  393; 
Dovvnman  v.  Rust,  6  Rand.  (Va.)  587; 
Tompkins  v.  Mitchell,  2  Rand.  (Va.) 
430;  Doswell  V.  Buchanan,  3  Leigh 
(Va.)  365,  23  Am.  Dec.  280;  Rorer 
Iron  Co.  V.  Trout,  83  Va.  397;  Moore 
V.  Clay,  7  Ala.  742;  Ledbetter  v.  Walk- 
er, 31  Ala.  175;  Wells  v.  Morrow,  38 
Ala.  125;  Johnson  v.  Toulmin,  18  Ala. 
50,  52  Am.  Dec.  212;  Harris  v.  Fly,  7 
Paige  (N.  Y.)  424;  Denning  v.  Smith, 
3  Johns.  Ch.  (N.  Y.)  332;  Frost  v. 
Beekman,  i  Johns.  Ch.  (N.  Y.)  288; 
Countryman  v.  Boyer,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  389;  Balcom 
V.  New  York  L.  Ins.,  etc.,  Co., 
II  Paige  (N.  Y.)  455;  Wyckoff  v. 
Sniffin,  2  Edw.  Ch.  (N.  Y.)  580;  Mur- 
ray t'.  Finster,  2  Johns.  Ch.  (N.  Y.)i55; 
Galatian  v.  Erwin,  Hopk.  (N.  Y.)  48; 
Griffith  V.  Griffith,  Hoffm.  Ch.  (N.  Y.) 
153,  note;  Makepeace  v.  Davis,  27 
Ind.  352;  Wood  V.  Mann,  i  Sumn.  (U. 
S.)  510;  Flagg  V.  Mann,  2  Sumn.  (U. 
S.)  563;  Wormley  v.  Wormley,  8 
Wheat.  (U.  S.)449;  Boone  v.  Chiles, 
ID  Pet.  (U.  S.)  177;  U.  S.  Eq.  Rule  39; 
Maryland  Rule  of  Chancery  293. 

Contra. — Story  {citing  Portarlington 
V.  Soulby,  7  Sim.  28;  Ovey  v.  Leigh- 
ton,  2  Sim.  &  Stu.  234;  Gordon  v. 
Shaw,  14  Sim.  393)  says:  "  It  is  now 
well  settled  that  a  defendant  cannot 
by  answer  set  up  a  defense  to  a  bill 
for  discovery  and  relief  that  he  is  a 
bonc.-fide  purchaser  for  a  valuable  con- 
sideration without  notice;  but  if  he 
means  to  insist  on  it  he  must  do  so  by 
way  of  plea,  because  if  he  answers  at 
all  he  must  answer  fully."  Story  Eq. 
PI.  (loth  ed.)  §  847. 

1.  Boone    v.  Chiles,  10  Pet.  (U.  S.) 

177- 

2.  Boone  v.  Chiles,  10  Pet.  (U.   S.) 

I  Encyc.  PI.  &  Pr.— 56.  8i 


177;  Wormley  v.  Wormley,  8  Wheat. 
(U.  S.)  449;  Wood  V.  Mann,  i  Sumn. 
(U.  S.)  510;  Flagg  V.  Mann,  2  Sumn. 
563;  Harrison  v.  Southcote,  i  Atk. 
538;  Bradlin  v.  Ord,  i  Atk.  538;  Fitz- 
gerald V.  Burk,  2  Atk.  397;  Harding- 
ham  V.  Nicholls,  3  Atk.  304;  Wells  v. 
Morrow,  38  Ala.  125;  Doswell  v.  Bu- 
chanan, 3  Leigh  (Va.)  365,  23  Am.  Dec. 
280;  Rorer  Iron  Co.  v.  Trout,  83  Va. 

397- 

An  averment  in  an  answer  that  a 
"  full  and  fair  consideration  was  paid  " 
is  insufficient;  defendant  must  state 
what  he  paid  or  of  what  the  consider- 
ation consisted,  in  order  that  the  court 
may  judge  whether  the  consideration 
was  valuable.  High  v.  Batte,  10  Yerg. 
(Tenn.)  335. 

3.  Boone  v.  Chiles,  10  Pet.  (U.  S.) 
177;  Rorer  Iron  Co.   v.  Trout,  83  Va. 

397- 

4.  Weston  v.  Berkeley,  3  P.  Wms. 
244,  note;  Aston  v.  Curzon,  3  P.  Wms. 
244,  note;  Harrison  v.  Southcote,  i 
Atk.  538;  Bradlin  v.  Ord,  i  Atk.  538; 
Fitzgerald  v.  Burk,  2  Atk.  397;  Hard- 
ingham V.  Nicholls,  3  Atk.  304;  Moore 
V.  Clay,  7  Ala.  742;  Wells  v.  Morrow, 
38  Ala.  125;  Denning  v.  Smith,  3 
Johns.  Ch.  (N.  Y.)  345;  Doswell  v. 
Buchanan,  3  Leigh  (Va.)  365,  23  Am. 
Dec.  280;  Wood  V.  Mann,  i  Sumn.  (U. 
S.)  510;  Flagg  V.  Mann,  2  Sumn.  (U. 
S.)563. 

Season  for  Eule. — Where  a  defendant 
wishes  to  protect  himself  as  a  bona- 
fide  purchaser  without  notice,  he  must 
deny  such  notice  in  his  answer,  so  as 
to  give  the  adverse  party  an  oppor- 
tunity to  put  the  fact  in  issue  and 
prove  it.  Harris  v.  Fly,  7  Paige  (N. 
Y.)  422;  Denning  z/.  Smith,  3  Johns. 
Ch.  (N.  Y.)  345;  Moore  v.  Clay,  7  Ala. 
742. 

5.  Boone  v.  Chiles,  10  Pet.  (U.  S.) 
177;  Denning  v.  Smith,  3  Johns.  Ch. 
(N.Y.)  332;  Frost  V.  Beekman,  i  Johns. 
Ch.  (N.  Y.)  288;  Countryman  ».  Boyer, 
3  How.  Pr.  (N.  Y.  Supreme  Ct.)  389; 
Balcom  v.  New  York  L.  Ins.,  etc.,  Co., 
II  Paige  (N.  Y.)  455;  Harris  v.  Fly,  7 
Paige  (N.  Y.)  424;  Galatian  v.  Erwin, 


Defenses  ANSWERS  IN  EQUITY  PLEADING.        by  Answer. 


5.  Undue  Influence. — The  defense  that  defendant  was  induced 
by  undue  influence  to  sign  a  contract  sought  to  be  enforced  in 
equity  may  be  set  up  by  answer.* 

6.  Res  Judicata. — This  defense,  to  bar  a  hearing  on  the  merits, 
must  be  set  up  by  proper  averments  in  the  answer  or  by  separate 
plea,  otherwise  it  cannot  be  relied  on  in  the  proof.'-^ 

How  Pleaded. — So  much  of  the  former  proceedings  must  be  set 
out  as  will  clearly  show  that  the  issues  in  the  former  and  in  the 
pending  suit  are  identical.* 

7.  Statute  of  Frauds. — It  is  a  general  rule  of  equity  that  a  party 
desiring  to  avail  himself  of  the  benefit  of  this  defense  must  insist 

it  or  it  will  be  deemed  to  have  been  waived.*     Where  the 


on 


Hopk.  (N.  Y.)  56;  Griffith  v.  Griffith, 
Hoffm.  Ch.  (N.  Y.)  153,  note;  Murray 
V.  Finster,  2  Johns.  Ch.  (N.  Y.)  156; 
Makepeace  v.  Davis,  27  Ind.  352;  Wil- 
son V.  Hillyer,  i  N.  J.  Eq.  63;  Dosweli 
V.  Buchanan,  3  Leigh  (Va.)  365,  23  Am. 
Dec.  280;  Rorer  Iron  Co.  v.  Trout,  83 
Va.  397;  Downman  v.  Rust,  6  Rand. 
(Va.)  587;  Tompkins  v.  Mitchell,  2 
Rand.  (Va.)  430;  Johnson  v.  Toulmin, 
18  Ala.  50,  52  Am.  Dec.  212. 

1.  Rau  V.  Von  Zedlitz,  132  Mass. 
164. 

2.  Galloway  v.  Hamilton,  i  Dana 
(Ky.)  576;  Ferguson  v.  Miller,  5  Ohio 
459;  Arnold  v.  Kyle,  8  Baxt.  (Tenn.) 
319;  Jourolmonz/.  Massengill,  86  Tenn. 
81;  Turley  v.  Turley,  85  Tenn.  251; 
Bank  of  U.  S.  v.  Beverly,  i   How.  (U. 

S.)i34. 

Where  a  bill  is  filed  seeking  cancel- 
lation of  a  note  executed  by  the  com- 
plainant on  the  ground  that  execution 
thereof  was  obtained  by  fraud,  an  an- 
swer that  the  note  had  been  answered 
and  judgment  rendered,  from  which 
there  was  no  appeal,  is  equivalent  to 
a  formal  plea  of  res  judicata,  and  is 
sufficient.  Arnold  v.  Kyle,  8  Baxt. 
(Tenn.)  319. 

Where  a  former  decree  is  relied  on 
as  a  bar,  a  prayer  in  the  answer,  that 
"  the  pleadings  and  proofs  in  a  former 
suit  may  be  made  a  part  of  this  cause," 
does  not  present  the  decree;  and  though 
it  be  copied  in  the  transcript,  it  will 
not  be  regarded  in  the  appellate  court. 
Galloway  v.  Hamilton,  i  Dana  (Ky.) 
576. 

Former  Suit  Pending. — The  objection 
that  a  former  suit  is  pending  must  be 
taken  by  plea  and  not  by  answer. 
The  practice  in  such  case  is,  not  to  re- 
ply to  the  plea  nor  to  set  it  down  for 
argument,  but  to  refer  to  it  on  motion 
at  once  to  a  master  to  ascertain  and 


report  whether  or  not  both  suits  are 
for  the  same  matter;  and  if  they  are 
found  to  be,  the  plea  is  allowed,  and 
if  they  are  found  not  to  be,  it  is  over- 
ruled, etc.  Battell  v.  Matot,  58  Vt. 
271;  Pierce  v.  Feagans,  39  Fed.  Rep. 
587. 

3.  Jourolmon  v.  Massengill,  86  Tenn. 
81;  Marvin  v.  Hampton,  18  Fla.  131. 

4.  Tarleton  v.  Vietes,  6  111.  470; 
Thornton  v.  Vaughan,  3  111.  218;  Dyer 
V.  Martin,  5  111.  146;  Esmay  v.  Gorton, 
18  111.  483;  McClure  v.  Otrich,  118  111. 
320;  Cozine  v.  Graham,  2  Paige  (N. 
Y.)  177;  Talbot  V.  Bovven,  i  A.  K. 
Marsh.  (Ky.)  436,  10  Am.  Dec.  747; 
Ang^el  v.  Simpson,  85  Ala.  53;  Ash- 
more  V.  Evans,  11  N.  J.  Eq.  151; 
Coop.   Eq.  PI.  256. 

When  Unnecessary  to  Plead  Statute. — 
Where  complainant  sets  up  an  agree- 
ment which  would  be  invalid  by  the 
Statute  of  Frauds  unless  in  writing, 
and  defendant  denies  by  answer  the 
agreement,  he  need  not  insist  on  the 
statute  as  a  bar.  Ontario  Bank  v. 
Root,  3  Paige  (N.  Y.)  478.  See  also 
Cole  V.  Bowne,  10  Paige  (N.  Y.)  526; 
Champlin  v.  Parish,  11  Paige  (N.  Y.) 
405;  Ridgway  v.  Wharton,  3  DeG., 
M.  &  G.  677. 

So,  also,  if  an  agreement  for  the 
sale  of  lands  alleged  in  a  bill  praying 
specific  performance  is  denied  by  the 
answer,  defendant  may,  if  there  be  no 
written  evidence  of  such  agreement, 
insist  on  the  statute  of  frauds  at  the 
hearing  as  effectually  as  if  it  had 
been  pleaded.  May  v.  Sloan,  loi  U. 
S.  231. 

Where  a  complainant  claims  that 
defendant  holds  land  subject  to  a  trust 
in  his  favor  under  an  agreement  cre- 
ating it,  and  defendant  denies  the 
agreement,  his  denial  entitles  him  to 
the  benefit  of   the  Statute  of  Frauds 


Defenses  ANSWERS  IN  EQUITY  PLEADING.       by  Answer. 


answer  admits  a  parol  agreement,  defendant  will  nevertheless  be 
entitled  to  the  benefit  of  the  statute  if  the  answer  sets  it  up ;  * 
otherwise  if  it  is  not  so  set  up.*    See  article  FRAUDS,  STATUTE  OF. 

8.  Fraud. — This  defense  may  be  generally  taken  by  answer,* 
and  the  allegations  of  fraud  should  be  distinct  and  positive,  set- 
ting forth  the  specific  acts.* 

9.  "Want  of  Jurisdiction. — The  objection  that  the  court  has  no 
jurisdiction  because  there  is  an  adequate  remedy  at  law  may  be 
taken  by  answer.* 


without  pleading  it.  Busick  v.  Van 
Weis,  44  N.  J.  Eq.  82;  Van  Duyne  v. 
Vreeland,  12  N.  J.  Eq.  142;  Walker  v. 
Hill,  21  N.  J.  Eq.  513;  Whyte  v. 
Arthur,  17  N.  J.  Eq.  521;  Wakeman  v. 
Dodd,  27  N.  J.  Eq.  564. 

It  is  not  necessary  to  set  up  the 
statute  as  a  defense  unless  the  con- 
tract against  which  it  is  set  up  is  that 
on  which  the  relief  prayed  is  founded. 
Force  v.  Dutcher,  18  N.   J.   Eq.  401. 

1.  Harris  v.  Knickerbacker,  5  Wend. 
(N.  Y.)  638;  Cozine  v.  Graham,  2 
Paige  (N.  Y.)  181;  Ontario  Bank  v. 
Root,  3  Paige  (N.  Y.)  47S;  Champlin 
V.  Parish,  11  Paige  (N.  Y.)  405;  Van 
Duyne  v.  Vreeland,  12  N.  J.  Eq.  142; 
Walker  v.  Hill,  21  N.  J.  Eq.  191;  Dean 
V.  Dean,  9  N.  J.  Eq.  425;  Ashmore  v. 
Evans,  11  N.  J.  Eq.  151;  Wakeman  v. 
Dodd,  27  N.  J.  Eq.  564. 

2.  Buttermere  v.  Hayes,  5  M.  &  W. 
456;  Johnson  v.  Dodgson,  2  M.  &  W. 
653;  Leaf  V.  Tuton,  10  M.  &  W.  393; 
Eastwood  V.  Kenyon,  11  Ad.  &  El. 
438;  Walker  v.  Hill,  21  N.  J.  Eq.  191; 
Van  Duyne  v.  Vreeland,  12  N.  J.  Eq. 
142;  Dean  v.  Dean,  g  N.  J.  Eq.  425; 
Ashmore  v.  Evans,  1.1  N.  J.  Eq.  151; 
Wakeman  v.  Dodd,  27  N.  J.  Eq.  564; 
Cozine  v.  Graham,  2  Paige  (N.  Y.)i8i; 
Champlin  v.  Parish,  11  Paige  (N.  Y.) 
405;  Vaupell  V.  Woodward,  2  Sandf. 
Ch.  (N.  Y.)  143- 

3.  Watkinsw.  Clifton  Hill  Land  Co., 
gi  Tenn.  683;  Memphis,  etc.,  R.  Co.  v. 
Neighbors,  51  Miss.  413;  Bertine  v. 
Varian,  i  Edw.  Ch.  (N.  Y.)  343;  Car. 
roll  V.  Potter,  Walk.  (Mich.)  355. 

But  to  enable  a  defendant  to  avail 
himself  of  the  defense  of  fraud  in  the 
consideration  of  a  mortgage,  which 
does  not  go  to  the  extent  of  complete 
nullification  thereof,  he  must  have 
recourse  to  a  cross-bill.  O'Brien  v. 
Hulfish,  22  N.  J.  Eq.  472;  Graham  v. 
Berryman,  ig  N.  J.  Eq.  29;  Parker  v. 
Jameson,  32  N.  J.  Eq.  222;  Parker  v. 
Hartt,  32  N.  J.  Eq.  225;  Miller  v. 
Gregory,  16  N.  J.  Eq.  274. 


lUnstrations.  —  A  married  woman 
who  has  been  induced  to  join  in  the 
execution  of  a  mortgage  on  her  home- 
stead, through  the  fraudulent  repre- 
sentations of  her  husband  and  the 
mortgagee  that  the  homestead  was 
not  included  in  the  mortgage,  may 
defend  against  a  bill  to  foreclose  by 
answer  impeaching  the  mortgage  for 
fraud.  Genthner  v.  Fagan,  85  Tenn. 
491.  See  also  Furguson  v.  Coleman, 
5  Heisk.  (Tenn.)  378. 

On  bill  to  foreclose,  fraud  in  the 
consideration  of  a  prior  incumbrance 
may  be  set  up  by  a  mortgagee  in  his 
answer  without  filing  a  cross-bill. 
McGuckin  v.  Kline,  31  N.  J.  Eq.  454. 

The*  defense  that  the  mortgagee 
materially  misrepresented  the  con- 
tents of  the  mortgaged  premises  to 
the  mortgagor  on  the  sale  thereof  by 
the  former  to  the  latter,  the  sale  hav- 
ing been  by  the  acre,  and  the  mort- 
gage having  been  given  for  part  of 
the  purchase-money,  might  be  set  up 
by  answer  in  a  suit  by  the  mortgagee 
against  the  mortgagor  to  foreclose  the 
mortgage.  Dayton  v.  Melick,  27  N.  J. 
Eq.  362;  Melick  v.  Dayton,  34  N.  J. 
Eq.  245.  See  also  O'Brien  v.  Hulfish, 
22  N.  J.  Eq.  477. 

4.  Memphis,  etc.,  R.  Co.  v.  Neigh- 
bors, 51  Miss.  413;  Bertine  v.  Varian, 
I  Edw.  Ch.  (N.  Y.)  343. 

5.  Ryan  v.  Duncan,  88  111.  144; 
Heyer  v.  Burger,  Hoflfm.  Ch.  (N.  Y.)  i; 
Grandin  v.  Le  Roy,  2  Paige  (N.  Y.) 
509;  Whitlock  V.  Duffield,  Hoflm.  Ch. 
(N.  Y.)  122;  Cowman  v.  Sedgwick, 
Hoffm.  Ch.  (N.  Y.)  67;  Fulton  Bank 
V.  New  York,  etc..  Canal  Co.,  4  Paige 
(N.  Y.)  127;  Utica  Bank  v.  Mersereau, 
3  Barb.  Ch.  (N.  Y.)  574,  49  Am.  Dec. 
109;  Tenney  v.  State  Bank,  20  Wis. 
161;  Peck  V.  School  Dist.  No.  4,  21 
Wis.  516;  Burroughs  v.  M'Neill,  2 
Dev.  &  B.  Eq.  (N.  Car.)  300. 

Jurisdiction  of  Person  or  Subject- 
matter. — Under  M.  &  V.  Code  (Tenn.) 
§§    5060,    5061,    5064,    providing    that 


883 


9«fenseB  ANSWERS  IN  EQUITY  PLEADING.       by  Answer. 


10.  Other  Defenses. — There  are 
are  most  properly  taken  by  answ 

defendant  need  not  plead  specially 
in  any  case,  except  to  the  jurisdic- 
tion of  the  court;  nor  demur  except 
for  want  of  jurisdiction  of  the  sub- 
ject-matter, or  of  the  person;  and 
that  the  filing  of  an  answer  is  a 
waiver  of  objection  to  the  jurisdiction 
of  the  court,  a  defendant  who  seeks  to 
raise  the  objection  of  want  of  jur- 
isdiction must  plead  specially  or 
demur;  he  cannot  do  so  by  answer. 
Lowry  v.  Naff,  4  Coldw.  (Tenn.)  370; 
Bennett  v.  Wilkins,  5-  Coldw.  (Tenn.) 
240;  Kirkman  v.  Snodgrass,  3  Head. 
(Tenn.)  370;  Holcomb  v.  Canady,  2 
Heisk,  (Tenn.)  610;  Brazleton  v. 
Brooks,  2  Head.  (Tenn.)  194;  Vincent 
V.  Vincent,  I  Heisk.  (Tenn.)  333;  Lev- 
erton  v.  Waters,  7  Coldw.  (Tenn.)  20. 

1.  Want  of  Notice  of  Protest. — When 
an  endorser  wishes  to  defend  in  equity 
against  liability  for  want  of  due  notice 
he  should  set  up  the  defense  in  his 
answer.  Williams  v.  Bartlett,  4  Lea. 
(Tenn.)  620. 

Set-Off. — On  a  bill  to  foreclose  a 
mortgage  or  to  obtain  satisfaction  of 
the  amount  due,  the  defendant  may 
set  off  a  debt  due  to  him  from  the 
complainant  which  would  be  a  proper 
subject  of  set-off  in  a  suit  brought  by 
complainant  at  law  to  recover  the 
amount  due  on  the  mortgage,  2  Rev. 
Sts.  N.  Y.  174,  §  40,  providing  that  in 
suits  for  the  recovery  of  money  a  set- 
off shall  be  allowed  in  courts  of  equity 
in  the  same  manner  and  with  like  ef- 
fect as  in  action  at  law.  Chapman  v. 
Robertson,  6  Paige  (N.  Y.)  627,  31 
Am.  Dec.  264. 

Where  defendant  is  entitled  to  set 
off  a  debt  due  to  himself  against  the 
debt  claimed  by  complainant  in  the 
bill,  he  may  state  the  facts  in  his  an- 
swer and  claim  the  right  of  set-off 
without  filing  a  cross-bill.  Jennings 
V.  Webster,  8  Paige  (N.  Y.)  503,  35 
Am.  Dec.  722. 

But  in  a  foreclosure  suit  defendant 
cannot  set  off  an  unliquidated  demand 
not  connected  with  the  mortgage 
debt,  and  which  is  not  a  proper  sub- 
ject of  set-off  at  law,  unless  there  is 
some  peculiar  equity  in  the  case  to 
take  it  out  of  the  general  rule  that  un- 
liquidated demands  cannot  be  set  off. 
Jennings  v.  Webster,  8  Paige  (N.  Y.) 
503,  35  Am.  Dec.  722. 

In  Alabamfi,  where  no  such  statute 


also  many  other  defenses  which 
er.» 

existp,  it  has  been  held  that  a  set-off 
in  defendant's  favor  may  be  had  only 
on  cross-bill,  but  that,  if  the  defense 
is  only  in  the  nature  of  a  set-off  in 
equity  by  showing  a  discharge  of  the 
obligations  sought  to  be  enforced  be- 
fore the  filing  of  the  bill,  no  cross-bill 
is  necessary.  Goodwin  v.  McGehee, 
15  Ala.  233.  See  also  Cartwright  v. 
Clark,  4  Met.  (Mass.)  104. 

And  in  New  Jersey  it  has  been  held 
that  a  bill  for  board  or  any  other  de- 
mand which  the  debtor  may  have  can- 
not be  set  off  against  a  mortgage  debt 
upon  proceedings  for  foreclosure  ex- 
cept by  agreement  of  the  parties. 
Bird  V.  Davis,  14  N.  J.  Eq.  468;  White 
V.  Williams,  3  N.  J.  Eq.  383;  Dolman 
V.  Cook,  14  N.  J.  Eq.  56. 

Insufficiency  of  Complainant's  Offer  to 
Do  Equity. — Under  a  bill  filed  for  the 
reformation  of  a  contract,  the  defense 
may  be  set  up  in  the  answer,  without 
filing  a  cross-bill,  that  complainant's 
offer  to  do  equity  is  insufficient.  Bil- 
lingsley  v.  Billingsley,  37  Ala.  425. 

Mistake. — Under  a  bill  for  partition 
and  account  filed  by  two  tenants  in 
common  against  the  heirs  and  admin- 
istrator of  a  deceased  tenant  who 
executed  the  deed  under  which  plain- 
tiffs claim,  the  defense  may  be  set  up 
by  answer,  without  filing  a  cross-bill, 
that  the  deed  was  executed  through 
mistake  and  misrepresentation  as  to 
material  facts,  and  therefore  ought 
not  to  be  sustained  in  equity.  Trippe 
V.  Trippe,  29  Ala.  637. 

On  a  bill  to  foreclose  a  mortgage 
which  by  mistake  included  property 
not  intended  to  be  covered  thereby, 
defendant  may  set  up  the  mistake, 
and  claim  exemption  for  such  prop- 
erty, by  answer;  a  cross-bill  for  that 
purpose  is  unnecessary.  Ames  v.  New 
Jersey  Franklinite  Co.,  12  N.  J.  Eq.  66, 
72  Am.  Dec.  385. 

Want  of  Capacity. — This  defense  to 
the  enforcement  of  a  contract  may  be 
taken  by  answer,  but  to  be  available 
must  be  distinctly  set  up  in  the  an- 
swer.    Miller  v.  Miller,  25   N.  J.    Eq. 

354. 

Invalidity  of  Mortgage  Sought  to  Be 
Foreclosed.  —  A  subsequent  incum- 
brancer may  take  the  objection  by  an- 
swer that  the  mortgage  sought  to  be 
foreclosed  is  of  a  homestead,  and  in- 
valid for  want  of  the  wife's  signature; 


884 


Persons  Under  ANSWERS  IN  EQUITY  PLEADING.        Disability. 


VI.  Answees  by  Peesons  Undee  Disability — 1.  Married  Women. 

— Where  a  wife  is  made  a  party  defendant  with  her  husband  to  a 
suit  in  equity  she  must  answer  jointly  with  him  unless  leave  of 
court  be  granted  for  her  to  make  a  separate  answer ;  *  but  in  a 
proper  case  such  leave  will  be  granted  on  application  therefor.* 

Suppressing  Answer. — If  the  wife,  sued  jointly  with  her  husband, 
puts  in  a  separate  answer  without  having  previously  obtained 
leave  therefor,  it  will,  on  motion,  be  suppressed.^ 


a  cross-bill  is  not  necessary  for  the 
purpose.     Dye  v.  Mann,  lo  Mich.  291. 

Subrogation  to  Eights  of  Prior  Mort- 
gage.— On  a  bill  to  foreclose  a  mort- 
gage defendant  may  make  the  defense 
by  answer  that  he  is  entitled  to  be 
subrogated  to  the  rights  of  a  prior 
mortgagee;  he  is  not  compelled  to  re- 
sort to  a  cross-bill.  Gerrish  v.  Bragg, 
55  Vt.  329. 

Estoppel. — The  defense  that  defend- 
ant is  estopped  from  maintaining  a 
bill  may  be  taken  by  answer,  but  if 
relied  on  must  be  pleaded.  So  an 
averment,  in  an  answer  to  a  bill  to 
quiet  title  and  to  restrain  an  eject- 
ment, that  a  person  alleged  to  be  a 
solicitor  urged  the  institution  of  eject- 
ment suit  and  represented  that  com- 
plainant knew  he  had  no  title  and  de- 
sired an  ejectment  prosecuted  to  judg- 
ment to  enable  him  to  have  recourse 
against  his  warrantor,  but  which  is 
not  pleaded  as  matter  of  estoppel,  is 
insufficient,  even  if  established,  to 
make  out  a  valid  defense  of  estoppel. 
Dale  V.  Turner,  34  Mich.  405. 

1.  Getzler  v.  Saroni,  18  111.  511; 
Robbins  v.  Abrahams,  5  N.  J.  Eq.  51; 
Collard  v.  Smith,  13  N.  J.  Eq.  43; 
Kerchner  v.  Kempton,  47  Md.  590; 
Lingan  v.  Henderson,  i  Bland  (Md.) 
236;  Toole  V.  De  Kay,  4  Sandf.  Ch.  (N. 
Y.)  385;  Leavill  v.  Cruger,  i  Paige 
(N.  Y.)42i;  Farmer's  Loan,  etc.,  Co. 
V.  Jewett,  3  Chan.  Sent.  (N.  Y.)  53; 
Ferine  v.  Swaine,  i  Johns.  Ch.  (N.  Y.) 
24;  Ferguson  v.  Smith,  2  Johns.  Ch. 
(N.  Y.)  139;  English  v.  Roche,  6  Ind. 
62;  Vanderveer  v.  Holcomb,  22  N.  J. 
Eq.  558;  Gee  v.  Cottle,  3  Myl.  &  C. 
180. 

But  if  it  appears  that  the  marriage 
has  been  entered  into  with  a  view  to 
defraud  creditors,  the  wife  may  be 
made  to  answer  separately,  as  though 
she  were  a  feme  sole.  Cooper  Eq.  PI. 
325;  Story  Eq.  PI.  §873. 

2.  Robbins  v.  Abrahams,  5  N.  J.  Eq. 
51;  Toole  V.  DeKay,  4  Sandf.  Ch.  (N. 
Y.)  385;  Getzler  v.  Saroni,  18  111.  511; 


V.    Kempton,   47   Md.    590; 
Henderson,  i  Bland  (Md.) 


Kerchner 
Lingan  v. 
236. 

Demand  Against  Wife's  Separate  Es- 
tate.— Generally  the  husband  and  wife 
must  answer  jointly,  but  where  the 
suit  relates  to  a  demand  against  the 
wife's  separate  estate,  and  the  hus- 
band is  joined  solely  for  conformation, 
a  separate  answer  from  the  wife  may 
be  had  on  application  therefor.  Du- 
bois V.  Hole,  2  Vern.  613. 

Where  the  Husband  and  Wife  Are  Liv- 
ing Apart,  on  application  of  either, 
leave  may  be  granted  to  make  sepa- 
rate answers,  i  Dan.  Ch.Pr.  (5th  Am. 
ed.)  180. 

Where  a  Wife  Has  a  Distinct  or  Sepa- 
rate Interest  in  the  subject-matter  of 
the  bill,  or  where  her  interest  is  ad- 
verse to  that  of  her  husband,  or 
where  for  other  reasons  her  interests 
demand  it,  the  court  on  application 
will  give  her  leave  to  answer  sepa- 
rately.    Getzler  v.  Saroni,  18  111.  511. 

Improper  Defense  by  Husband.  —  If 
there  be  ground  of  apprehension  that 
the  husband  will  not  make  proper  de- 
fense, leave  may  be  granted  to  the  wife 
to  answer  separately.  Robbins  v. 
Abrahams,  5  N.  J.  Eq.  51. 

Bill  Taken  Fro  Confesso  Against  Hus- 
band.— If  the  husband  suffers  the  bill 
to  be  taken  as  confessed  as  against 
him,  and  the  wife  subsequently  ap- 
pears, and  complainant  desires  no 
more  than  to  take  the  bill  as  confessed 
against  her,  he  may  proceed  with  the 
common  order  that  she  answer  within 
forty  days  or  that  the  bill  be  taken  as 
confessed  by  her;  and  if  she  deem  it 
necessary  or  proper  to  answer  she 
must  obtain  an  order  for  leave  to  an- 
swer separately,  inasmuch  as  none 
but  a  separate  answer  can  be  filed  at 
that  stage  of  the  suit.  Toole  v.  De 
Kay.  4  Sandf.  (N.  Y.)  Ch.  3S5. 

3.  Ferine  v.  Swaine,  i  Johns.  Ch. 
(N.  Y.)  24;  Robbins  v,  Abrahams,  5 
N.  J.  Eq.  51;  Collard  v.  Smith,  13  N. 
J.  Eq.  43. 


885 


Persons  Under  A  NS IVERS  IN  EQUITY  PLEA  DING.        DisabiUty. 

Answer  Where  Husband  Complainant. — If  the  husband  be  complain- 
ant, and  the  wife  be  made  defendant,  she  may  answer  separately 
without  order  of  court,  and  without  guardian  or  next  friend.* 

2.  Infants,  Lunatics,  etc. — The  answer  of  an  infant  is  by  guar- 
dian ad  litem^  and  that  of  an  idiot  or  lunatic  by  his  committee,^ 
or,  if  his  interests  conflict  with  those  of  his  committee,  by  guar- 
dian ad  litem.^  Persons  who  are  superannuated  and  of  weak 
intellect,  and  persons  who  are  lunatics  or  idiots,  but  not  so  found 
by  inquisition,  may  answer  by  guardian  ad  litem,  like  infants.* 

3.  Corporations  Aggregate. — The  answers  of  corporations  aggre- 
gate are  under  their  corporate  seal,®  but  no  particular  form  of 


1.  Copeland  v.  Granger,  3  Tenn.  Ch. 
487,  citing  Ex  p.  Strangeways,  3  Atk. 
478;  Brooks  V.  Brooks,  Pr.  Ch.  24; 
AinsHe  v.  Medlicott,  13  Ves.  266:  Hig- 
ginson  v.  Wilson,  11  Jur.  1071. 

2.  Story  Eq.  PI.  §  873;  Dan.  Ch.  Pr. 
(5th  Am.  ed.)  754;  Williams  v.  Wynn, 

10  Ves.  Jr.   159;   Tappen  v.  Norman, 

11  Ves.  563;  Hill  V.  Smith,  i  Madd. 
290;  Walsh  V.  Walsh,  116  Mass.  377, 
17  Am.  Rep.  162;  Tucker  v.  Bean,  65 
Me.  352;  Wakefield  v.  Marr,  65  Me. 
341;  Mills  V.  Dennis,  3  Johns.  Ch.  (N. 
Y.)  367;  Lane  v.  Hardwicke,  6  Beav. 
148. 

United  States  Equity  Rule  87  provides 
that  the  court  or  any  judge  thereof 
may  appoint  a  guardian  ad  litem  for 
infants  or  other  persons  who  are 
under  guardianship,  or  are  otherwise 
incapable  of  suing  for  themselves. 

In  all  cases  where  it  is  sought  to 
affect  the  interests  of  infants,  more 
especially  their  interest  in  land,  by  an 
attempt  to  charge  it  or  to  make  parti- 
tion and  sale  thereof,  whether  the  ap- 
plication be  by  a  stranger,  by  an  adult 
codefendant,  or  by  others  claiming  a 
right  to  do  so,  the  infants  must  be 
made  defendants,  and  it  is  the  solemn 
duty  of  the  court  to  select  a  suitable 
person  as  guardian  ad  litem.  David- 
son V.  Bowden,  5  Sneed  (Tenn.)  134. 

3.  Westcomb  v.  Westcomb,  Dick. 
233;  Harrison  v.  Rowan,  4  Wash. 
(U.  S.)  202;  Teal  v.  Woodworth,  3 
Paige  (N.  Y.)  470;  Brasher  v.  Van 
Cortland,  2  Johns.  Ch.  (N.  Y.)  242. 

4.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  754; 
Story  Eq,  PI.  §70;  Snell  v.  Hyat, 
Dick.  287;  Howlett  v.  Wilbraham,  5 
Madd.  423. 

5.  Ld.  Redfield,  103;  In  re  Barber,  2 
Johns.  Ch.  (N.  Y.)  235;  Newman  v. 
Selfe,  II  W.  R.  764;  Brassington  v. 
Brassington,  2  Anst.   369;   Wilson  v. 


Grace,  14  Ves.  172;  Gason  v.  Garnier, 
I  Dick.  286. 

6.  Baltimore,  etc.,  R.  Co.  v.  Wheel- 
ing, 13  Gratt.  (Va.)  40;  Ransom  v. 
Stonington  Sav.  Bank,  13  N.  J.  Eq. 
212;  Haight  V.  Morris  Aqueduct,  4 
Wash.  (U.  S.)  601;  Griffin  v.  State 
Bank,  17  Ala.  258;  Van  Wyck  v.  Nor- 
vell,  2  Humph.  (Tenn.)  192;  McLardz/. 
Linnville,  10  Humph.  (Tenn.)  164; 
Smith  V.  St.  Louis  Mut.  L.  Ins.  Co.,  2 
Tenn.  Ch.  599;  Maryland,  etc.,  Co.  v. 
Wingart,  8  Gill  (Md.)  170;  Rex  v. 
Wyndham,  Cowp.  377;  Cooper  Eq.  PL 
325;  Story  Eq.  PI.  874;  i  Dan.  Ch.  Pr. 
(6th  Am.  ed.)  876,  note  i;  3  Hoff.  Ch. 
Pr.  239. 

Making  Corporate  Officer  Party. — 
Where  discovery  is  sought  from  a 
corporation,  its  principal  officer  or 
agent  may  be  joined  as  defendant  for 
that  purpose,  though  he  has  no  indi- 
vidual interest,  and  though  relief  as 
against  him  cannot  be  had.  Lindsley 
V.  James,  3  Coldw.  (Tenn  )  478;  Ver- 
milyea  v.  Fulton  Bank,  i  Paige  (N.  Y.) 
37  ;  Brumly  v.  Westchester  County 
Mfg.  Soc,  I  Johns.  Ch.  (N.  Y.)  366; 
Dumner  v.  Chippenham,  14  Ves.  245. 

Answers  by  Stockholders. — Stockhold- 
ers who  have  been  allowed  to  put  in 
an  answer  in  the  name  of  a  corpora- 
tion cannot  be  regarded  as  answering 
for  the  corporation  itself.  But  if  it  is 
alleged  that  the  directors  refused  to 
attend  to  the  corporate  interests,  the 
court  will  in  its  discretion  allow  a 
stockholder  to  become  a  defendant  to 
protect  from  unfounded  and  illegal 
claims  against  the  company  h's  own 
interests  and  those  of  others  who  de- 
sire to  join  him  in  the  defense.  Bron- 
son  V.  La  Crosse,  etc.,  R.  Co.,  2  Wall. 
(U.  S.)283. 

By  Whom  Answer  Filed. — Where,  after 
a  corporation   has  been  brought  into 


886 


Patent 


ANSWERS  IN  EQUITY  PLEADING. 


Cases. 


seal  is  necessary.* 

Suppressing  Answer  Without  Seal. — If  the  answer  is  put  in  without  seal, 
it  may  be  suppressed  as  irregular.* 

Dispensing  With  Seal. — The  seal  may  be  dispensed  with,  however, 
by  leave  of  court,  but  leave  should  be  obtained  before  answering.' 

VII.  Answees  in  Patent  Cases — 1.  Defenses  Allowed  by  Statute. 
— Certain  defenses  which  may  be  taken  by  answer  to  a  suit  for 
infringement  of  letters  patent  are  prescribed  by  statutory  enact- 
ment.'* If  the  thing  patented  is  an  entirety,  these  defenses  must 
be  addressed  to  the  entire  invention,  and  not  to  part  of  it.* 

The  question  as  to  whether  or  not  the  defense  of  insufficient 
description  can  be  set  up  by  answer,  without  also  alleging  intent 
to  deceive  the  public,  is  unsettled.® 

An  answer  setting  up  that  the  patentee  fraudulently  and  sur- 


court,  but  before  it  has  answered,  a 
change  occurs  in  its  officers,  the  an- 
swer must  be  filed  by  the  persons  who 
are  officers  at  the  time  it  is  filed.  Me- 
chanics' Nat.  Bank  of  Newark  v.  Bur- 
net Mfg.  Co.,  32  N.  J.  Eq.  237. 

1.  Ransom  v.  Stonington  Sav.  Bank, 
13  N.  J.  Eq.  212,  holding  that  a  corpo- 
ration may  adopt  a  seal  pro  hac  vice, 
and  that  "if  any  seal  whatever  is  at- 
tached to  the  answer  by  the  authority 
of  the  corporation  it  becomes  their 
seal." 

2.  Ransom  v.  Stonington  Sav.  Bank, 
13  N.  J.  Eq.  212. 

3.  Ransom  v.  Stonington  Sav.  Bank, 
13  N.  J.  Eq.  212. 

4.  In  an  action  for  infringement  the 
defendant  may  plead  the  general  issue, 
and  having  given  notice  in  writing  to 
the  plaintiff  or  his  attorney,  thirty 
days  before,  may  prove  on  trial  any 
one  or  more  of  the  following  special 
matters: 

1.  That  for  the  purpose  of  deceiv- 
ing the  public  the  description  and 
specification  filed  by  the  patentee  in 
the  Patent  Office  was  made  to  contain 
less  than  the  whole  truth  relative  to 
his  invention  or  discovery,  or  more 
than  is  necessary  to  produce  the  de- 
sired effect; 

2.  That  he  had  surreptitiously  or 
unjustly  obtained  the  patent  for  that 
which  was  in  fact  invented  by  another, 
who  was  using  reasonable  diligence  in 
adapting  and  perfecting  the  same; 

3.  That  it  had  been  patented  or 
described  in  some  printed  publication 
prior  to  his  supposed  invention  or  dis- 
covery thereof; 

4.  That  he  was  not  the  original  and 
first  inventor  or  discoverer  of  any  ma- 


terial and  substantial  part  of  the  thing 
patented; 

5.  That  it  had  been  in  public  use  or 
on  sale  in  this  country  for  more  than 
two  years  before  his  application  for  a 
patent,  or  had  been  abandored  to  the 
public. 

And  in  notices  as  to  proof  of  previ- 
ous invention,  knowledge,  or  use  of 
the  thing  patented,  the  defendant 
shall  state  the  names  of  patentees  and 
dates  of  their  patents,  and  when 
granted,  and  the  names  and  residences 
of  the  persons  alleged  to  have  invented 
or  to  have  had  the  prior  knowledge  of 
the  thing  patented,  and  where  and  by 
whom  it  had  been  used;  and  if  any 
one  or  more  of  the  special  matters  al- 
leged shall  be  found  for  the  defendant, 
judgment  shall  be  rendered  for  him 
with  costs.  And  the  like  defenses 
may  be  pleaded  in  any  suit  in  equity 
for  relief  against  an  alleged  infringe- 
ment; and  proofs  of  the  same  may  be 
given  upon  like  notice  in  the  answer 
of  the  defendant  and  with  the  like  ef- 
fect.    Rev.  Sts.  U.  S.  §  4920. 

5.  Parks  v.  Booth,  102  U.  S.  96; 
Bates  V.  Coe,  98  U.  S.  31. 

More  than  one  patent  may  be  in- 
cluded in  one  suit,  and  more  than  one 
invention  may  be  secured  in  the  same 
patent,  in  which  cases  the  several  de- 
fenses may  be  made  to  each  patent  in 
the  suit  and  to  each  invention  to  which 
the  charge  of  infringement  relates. 
Bates  V.  Coe,  98  U.  S.  31;  Parks  v. 
Booth,  102  U.  S.  96. 

6.  Loom  Co. 'z'.  Higgins,  105  U.  S. 
580.  See  also,  as  bearing  on  the  ques- 
tion. Grant  v.  Raymond,  6  Pet.  (U.  S.) 
218;  Whittemore  v.  Cutter,  i  Gall.  (U. 
S.)429;  Gray  v.  James,  Pet.  (C.  C.)  394, 


887 


Patent 


ANSWERS  IN  EQUITY  PLEADING. 


Cases. 


reptitiously  obtained  the  patent  for  that  which  he  knew  was 
invented  by  another  is  insufficient  unless  it  also  alleges  that  the 
prior  inventor  was  using  due  diligence  to  perfect  his  invention.* 

The  defense  that  the  invention  had  been  fully  described  and 
publicly  made  known  in  several  patents  is  insufficient  without  a 
further  statement  that  the  invention  had  been  patented.'-* 

The  defense  of  prior  invention,  to  be  available,  should  be  set 
up  by  answer.^ 

Waiver. — But  if  such  defense  is  not  set  up  in  the  answer  in  the 
manner  required  by  statute,  an  objection  to  the  answer  for  that 
reason,  if  not  taken  at  the  hearing,  cannot  be  taken  thereafter.* 

Prior  Use. — An  answer  setting  up  sale  or  public  use  with  the  in- 
ventor's consent  prior  to  the  filing  of  application  is  bad  if  it  does 
not  also  allege  that  such  sale  or  use  was  for  more  than  two  yeafrs 
before  the  patent  was  applied  for.* 


1.  Agawam  Woolen  Co.  v.  Jordan, 
7  Wall.  (U.  S.)  5S3.  See  also  Reed  v. 
Cutter,  I  Story  (U.  S.)  590. 

2.  Saunders  v.  Allen,  53  Fed.  Rep.  109. 
In  this  case  the  court  said:  "The  an- 
swer does  not  set  forth  that  this  inven- 


tion  was  patented  to 


any  one. 


but  only  that  it  was  fully  described 
and  publicly  made  known  in  several 
patents.  *  *  *  The  statutory  defense 
required  to  be  set  forth  is  that  the  in- 
vention had  been  before  patented,  giv- 
ing the  name  and  date.  It  might  be 
described  and  publicly  made  known  by 
a  patent,  and  not  be  patented." 

3.  Loom  Co.  V.  Higgins,  105  U.  S. 
5  So. 

When  Sufficiently  Pleaded. — In  a  suit 
for  infringement  an  answer  which  ex- 
pressly denies  that  the  patentee  is  the 
first  and  original  inventor,  and  setting 
up  prior  patents  in  justification,  sufl5- 
ciently  raises  the  question  of  priority 
of  invention,  though  it  does  not  allege 
abandonment  by  complainant.  Penn- 
sylvania Diamond  Drill  Co.  v.  Simp- 
son, 29  Fed.  Rep    288. 

When  an  Insufficient  Defense. — In  a 
suit  for  infringement  of  a  patent  for 
making  oil-cans,  an  answer  alleging 
that  defendant  manufactured  the  cans 
under  an  older  patent,  but  admitting 
that  the  cans  contained  the  features  of 
the  first  claim  of  the  patent  alleged  to 
be  infringed,  amounts  to  a  complete 
admission  of  infringement,  the  affirma- 
tive averment  that  an  older  patent  ex- 
isted being,  in  the  absence  of  proof, 
insufficient  to  avoid  the  effect  of  the 
admission.  Lane  v.  Sovereign,  43 
Fed,  Rep.  890. 


4.  Loom  Co.  V.  Higgins,  105  U.  S. 
580;  Roemer  v.  Simon,  95  U.  S.  214; 
Zane  v.  Soffe,  no  U.  S.  200. 

5.  Agawam  Woolen  Co.  v.  Jordan, 
7  Wall.  (U.  S.)  5S3. 

General  Allegation  of  Prior  Knowledge 
and  Use  Insufficient. — In  a  suit  for  in- 
fringement, where  the  answer  merely 
avers,  generally,  prior  knowledge  and 
use  of  invention,  but  does  not  state 
the  name  or  residence  of  any  person 
alleged  to  have  had  prior  knowledge 
of  the  patented  invention,  or  set  up  a 
defense  of  the  abandonment  of  the  in- 
vention to  the  public  by  the  inventor, 
the  defenses  that  the  invention  was, 
with  the  inventor's  consent,  in  public 
use  at  a  place  named  for  more  than 
two  years  before  the  patent  was  ap- 
plied for,  and  that  the  invention  was 
previously  known  by  persons  named, 
are  not  available.  Union  Paper  Bag 
Mach.  Co.  V.  Newell,  11  Blatchf.  (U.  S.) 

549- 

Illustration  of  Defense  Properly  Pleaded. 
— An  answer  to  a  suit  for  infringe- 
ment, that  articles  such  as  are  de- 
scribed in  the  patent  alleged  to  have 
been  infringed  "had  been  made  and 
in  public  use  and  on  sale  by  divers 
and  sundry  persons  for  many  years 
prior  to  plaintiff's  application,  and 
that  several  years  before  complainant 
applied  for  a  patent  defendant  had 
sold  and  manufactured  articles  of  the 
pattern  and  design  of  the  one  filed, 
contains  a  sufficient  notice  of  the  de- 
fense of  want  of  novelty  and  two 
years'  public  use  to  satisfy  the  require- 
ments of  the  statute  (Rev.  Sts.  U.  S., 
§4920),  that  such  notice  shall  "state 


888 


Joinder  of        ANSWERS  IN  EQUITY  PLEADING.         Defenses. 


2.  Other  Defenses. — Besides  the  defenses  provided  for  by  statute 
there  are  others  which  may  be  taken  by  answer,  and  which,  to  be 
available,  should  be  so  taken.' 

VIII.  Joinder  of  Seveeal  Defenses.— It  is  an  established  rule 
of  equity  pleading  that  defendant  may  meet  the  bill  by  several 
modes  of  defense.*  He  may  demur,  answer,  plead,  or  disclaim 
as  to  different  parts  of  the  bill,'  but  these  defenses  must  be  put 


the  names  and  residences  of  those  al- 
leged to  have  invented,  or  to  have  had 
prior  knowledge  of,  the  thing  pat- 
ented." Anderson  v.  Miller,  129  U.  S. 
70. 

Fourth  and  Fifth  Defenses,  Separate 
Defenses. — The  fourth  and  fifth  de- 
fenses, to  suits  for  infringements  of 
patents,  authorized  by  sec.  4920  Rev. 
Sts.  U.  S.,  i.e.,  that  plaintiff  was  not 
the  original  or  prior  inventor,  and 
that  the  invention  had  been  in  public 
use  for  more  than  two  years,  etc.,  are 
separate  and  independent  defenses, 
and  each  requires  its  appropriate 
notice  or  answer  in  order  to  let  in  tes- 
timony to  establish  the  defense.  Mey- 
ers V.  Busby,  32  Fed.  Rep.  670. 

1.  Non-compliance  of  Patentee  with 
Statutory  Requirements. — In  a  suit  for 
infringement  the  defense  that  com- 
plainant's articles  were  not  marked 
with  the  date  of  his  patent  as  required 
by  statute  must  be  rais  1  by  answer, 
and  cannot  be  raised  for  the  first  time 
at  the  hearing.  Anderson  v.  Saint, 
46  Fed.  Rep.  760.  So,  also,  the  defense 
that  the  patented  article  had  not  fixed 
upon  it  the  word  "  patented,"  as  re- 
quired by  the  statute,  must  be  taken 
by  answer.  Providence  Rubber  Co. 
V.  Goodyear,  9  Wa.\\.  (U.  S.)  789. 

Want  of  Knowledge  of  Existence  of 
Patent. — A  defendant  in  a  suit  for  in- 
fringement, who  relies  upon  want  of 
knowledge  upon  his  part  of  the  actual 
existence  of  the  patent,  should  aver 
the  same  in  his  answer,  so  that  plain- 
tiff may  be  duly  advised  of  the  de- 
fense. Sessions  v.  Romadka,  145  U. 
S.  29;  Providence  Rubber  Co.  z/.ijood- 
year,  9  Wall.  (U.  S.)  788;  Allen  v. 
Deacon,  10  Sawy.  (U.  S.)  210. 

An  answer  setting  up  that  neither 
complainant  nor  any  one  for  it  duly 
notified  defendant  of  the  existence  of 
the  patent  charged  to  be  infringed 
presents  no  defense,  since  it  devolves 
on  defendant  to  negative  notice  of 
such  patent  from  any  source  what- 
ever. Winchester  Repeating  Arms 
Co.  V.  American  Buckle  &  Cartridge 
Co., 54  Fed.  Rep.  703. 


License  to  TTse  Invention. — The  ques- 
tion as  to  whether  or  not  defendant 
has  a  license  to  use  an  invention  or 
interest  tiferein  under  an  agreement 
must  be  raised  by  the  pleadings,  or  it 
will  not  be  considered.  Puetz  v. 
Bransford,  31  Fed.  Rep.  458. 

But  Non-patentability  of  an  infringed 
claim  may  be  availed  of  as  a  defense 
without  setting  it  up  in  the  answer. 
Hendy  v.  Golden  State  &  Miners'  Iron 
Works,  127  U.  S.  370;  Dunbar  z-.  Myers, 
94  U.  S.  187;  Slawson  v.  Grand  St.  R. 
Co.,  107  U.  S.  649;  Mahn  v.  Harwood, 
112  U.  S.  354. 

2.  Livingston  v.  Story,  9  Pet.  (U.  S.) 
632;  Dan.  Ch.  Pr.  (5th  Am.  ed.)  787. 

3.  Livingston  v.  Story,  9  Pet.  (U.  S.) 
632;  Leacraft  v.  Demprey,  4  Paige  (N. 
Y.)  124;  Pieri  v.  Shieldsboro,  42  Miss. 
493;  Dan.  Ch.  Pr.  (5th  Am.  ed.)  787. 

So,  also,  a  defendant  may  put  in 
separate  demurrers  to  separate  parts 
of  the  bill,  and  likewise  plead  different 
matters  to  separate  parts  of  the  same 
bill.    Dan.  Ch.  Pr.  (5th  Am.  ed.)787. 

The  defendant  may  at  any  time  be- 
fore the  bill  is  taken  for  confessed,  or 
afterward  with  the  leave  of  the  court, 
demur  or  plead  to  the  whole  bill,  or  to 
part  of  it,  and  he  may  demur  to  part, 
plead  to  part,  and  answer  as  to  the 
residue;  but  in  every  case  in  which  the 
bill  specially  charges  fraud  or  com- 
bination, a  plea  to  such  part  must  be 
accompanied  with  an  answer  fortify- 
ing the  plea  and  explicitly  denying  the 
fraud  and  combination  and  the  facts 
on  which  the  charge  is  founded.  U. 
S.  Rules  of  Equity  Practice,  32. 

Captions. — Where  there  is  a  demurrer 
to  part  of  the  bill,  and  answer  to  the 
remainder,  the  caption  should  b«: 
"  The  demurrer  of  A.  B.,  the  above- 
named  defendant,  to  part  of  the  bill, 
and  the  answer  of  the  said  defendant 
to  the  remainder  of  the  bill  of  com- 
plaint of  the  abovenamed  plaintiff." 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  788;  Braith- 
waite  Pr.  43;  Tomlinson  v.  S winner- 
ton,  I  Keen  9. 

If  the  defense  is  a  plea  to  part  of 
the  bill,  and  an  answer  as  to  the  re- 


889 


Joinder  of        ANSWERS  IN  EQUITY  PLEADING.         Defenses. 


in  to  separate  and  distinct  parts  of  the  bill.*  If  there  is  a  demur- 
rer to  part  of  the  bill,  there  cannot  be  a  plea  or  answer  to  the 
same  part  without  overruling  the  demurrer.'-*  So,  also,  if  there  is 
a  plea  and  answer  to  the  same  matter,  the  answer  overrules  the 
plea  ;^  and  if  a  disclaimer  and  answer  are  inconsistent,  the  mat- 


mainder,  the  same  rule  is  applicable, 
except  where  the  answer  is  in  support 
of  the  plea,  in  which  case  the  caption 
is:  "  The  plea  and  answer."  Dan.  Ch. 
Pr.  (5th  Am.  ed.)  788,  789. 

1.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  787; 
Souzer  v.  De  Meyer,  2  Paige  (N.  Y.) 
574;  Brownell  v.  Curtis,  10  Paige  (N. 
Y.)  210;  Clark  v.  Phelps,  6  Johns.  Ch. 
(N.  Y.)  214;  Bolton  V.  Gardner,  3  Paige 
(N.  Y.)  273;  Bruen  v.  Bruen,  4  Edw. 
Ch.  (N.  Y.)  640;  Bank  v.  Dugan,  2 
Bland  (Md.)  254;  Bell  v.  Woodward, 
42  N.  H.  181;  Robertson  v.  Bingley,  i 
McCord  Eq.  (S.  Car.)  333;  Joyce  v. 
Gunnels,  2  Rich.  Eq.  (S.  Car.)  259; 
Livingston  v.  Story,  9  Pet.  (U.  S.)  632; 
Cottington  v.  Fletcher,  2  Atk.  155; 
Jones  V.  Strafford,  3  P.  Wms.  80. 

2.  Clark  v.  Phelps,  6  Johns.  Ch.  (N. 
Y.)  214;  Souzer  v.  De  Meyer,  2  Paige 
(N.  Y.)  574;  Leacraft  v.  Demprey,  4 
Paige  (N.  Y.)  124;  Spofford  v.  Man- 
ning, 6  Paige  (N.  Y.)  383;  Jarvis  v. 
Palmer,  11  Paige  (N.  Y.)  650;  Chase's 
Case,  I  Bland  (Md.)  206;  Bank  v. 
Dugan,  2  Bland  (Md.)  254;  Pieri  v. 
Shieldsboro,  42  Miss.  493;  Robertson 
V.  Bingley,  i  McCord  Eq.  (S.  Car.)  333; 
Miller  v.  Furse,  i  Bailey  Eq.  (S.  Car.) 
181;  Adams  v.  Howard,  9  Fed.  Rep. 
347;  Jones  V.  Strafford,  3  P.  Wms.  81; 
Dan.  Ch.  Pr.  (5th  Am.  ed.)  787- 

But  a  demurrer  of  one  codefendant 
cannot  be  deemed  overruled  by  plea 
of  another  codefendant.  Dakin  v. 
Union  Pac.  R.  Co.,  5  Fed.  Rep.  665. 

Illustration  of  Rale. — Where  a  defend- 
ant demurred  to  both  discovery  and 
relief  as  to  part  of  the  bill,  and  an- 
swered as  to  the  other  part,  but  in  his 
answer  inserted  a  general  denial  of 
knowledge  as  to  any  matters  of  the 
bill  other  than  those  which  he  had  an- 
swered, and  concluded  his  answer  with 
the  usual  traverse,  the  answer  was 
held  to  cover  a  part  of  the  discovery 
to  which  the  demurrer  related,  and  to 
overrule  the  demurrer.  Spofford  v. 
Manning,  6  Paige  (N.  Y.)  383. 

Exceptions  to  Bale. — United  States  Su- 
preme Court  Equity  Rule  37  provides 
that  a  demurrer  or  plea  shall  be  held 
bad  and  overruled  upon  argument  only 
because  the  answer  of  the  defendant 


may  extend  to  some  part  of  the  same 
matter  as  may  be  covered  by  such  de- 
murrer or  plea. 

Maine  Rule  of  Chancery  Practice  6 
provides  that  defendant  may  demur  or 
plead  in  bar  to  parts  of  the  bill,  and 
answer  the  residue;  or  may  have  the 
benefit  of  a  plea  in  bar  by  inserting  its 
substance  in  his  answer;  and  that  de- 
murrers, pleas,  and  answers  will  be 
decided  on  their  own  merits,  and  one 
will  not  be  regarded  as  overruling  an- 
other. See  also  Hartshorn  v.  Fames, 
31  Me.  97;  Smith  v.  Kelley,  56  Me.  65. 

M.  &  V.  Code  of  Tennessee,  §g  5061, 
5062,  provides  that  defendant  may  in- 
corporate all  matters  of  defense  in  his 
answer,  and  need  not  plead  specially 
in  any  case,  and  that  he  may  have  all 
the  benefit  of  a  demurrer  by  relying 
thereon  in  his  answer. 

A  defendant  in  chancery  in  Virginia 
may  answer  a7id demur  at  the  same  time 
to  the  same  matter  in  the  bill.  Bas- 
sett  V.  Cunningham,  7  Leigh  (Va.)402. 
Tucker,  C,  dissenting. 

3.  Summers  v.  Murray,  2  Edw.  Ch. 
(N.  Y.)  205;  Bolton  V.  Gardner,  3 
Paige  (N.  Y.)273;  Souzer  z*.  De  Meyer, 
2  Paige  (N.  Y.)  574;  Ferguson  v. 
O'Hara,  i  Pet.  (U.  S.)493;  Stearns  v. 
Page,  I  Story  (U.  S.)  204;  Chase's 
Case,  I  Bland  (Md.)  217,  17  Am.  Dec. 
277;  Cottington  v.  Fletcher,  2  Atk.  155; 
Blacket  v.  Langlands,  i  Anst.  14; 
Forum  Rom.  58. 

So,  also,  if  an  answer  commences  as 
an  answer  to  the  whole  bill,  it  over- 
rules a  plea  or  demurrer  to  a  part  of 
the  bill,  though  such  part  is  not  actu- 
ally answered.  Leacraft  v.  Demprey, 
4  Paige  (N.  Y.)  124.  But  see  United 
States%S\i-prexae  Court  Equity  Rule  37; 
Maine  Rules  of  Chancery  Practice,  6; 
M.  &  V.  Code  Tennessee,  §§5061,  5062, 
sufra. 

Where  complainant,  in  his  bill  charg- 
ing a  fraudulent  transfer  of  property, 
w^aives  defendant's  oath  to  the  re- 
quired answer,  a  plea  in  abatement 
"to  the  said  bill,  so  far  as  the  same 
makes  any  charges  or  seeks  any  relief 
against  "  defendant,  need  not  be  sup- 
ported by  an  answer,  as  in  such  case 
— both   pleadings  covering  the   same 


89c 


Filing  and       ANSWERS  IN  EQUITY  PLEADING.  serving. 


ter  will  be  taken  most  strongly  against  defendant  on  the  dis- 
claimer.^ 

IX.  Filing  and  Serving  Answers. — Filing. — The  answer  is  not 
strictly  considered  such  until  it  is  filed,  and  if  costs  for  contempt 
in  not  answering  have  been  incurred,  the  answer  should  not  be 
filed  till  such  costs  are  paid.'-*  The  time  of  filing  answers  is 
usually  regulated  by  statute,*  and  after  the  regular  time  for  filing 
an  answer  has  expired  it  cannot  be  filed  without  special  leave  of 
court,  for  good  cause  shown.* 

Waiver.— If  complainant  goes  to  hearing,  notwithstanding  the 
fact  that  the  answer  was  not  filed  in  time,  and  a  decree  is  rendered 
in  the  cause,  he  must  be  deemed  to  have  waived  the  objection 
that  the  answer  was  not  filed  in  time.* 


parts  of  the  bill — the  answer  would 
overrule  the  plea  in  toto.  Cheatham 
V.  Pearce,  Sg  Tenn.  668.  See  also 
Newaygo  County  Mfg.  Co.  v.  Stevens, 
79  Mich.  398;  Godwin  v.  Neustadl,  42 
La.  Ann.  735;  Welsh  v.  Solenberger, 
85  Va.  441. 

1.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  788; 
Ld.  Redfield,  319. 

2.  Dan.  Ch.  Pr.  (5th  Am.  ed.)756. 
Exception.  —  Sometimes,    however, 

the  answer  is  filed  before  costs  of  con- 
tempt are  paid;  in  that  case  plaintiff 
should  not  take  an  office  copy  thereof, 
or  do  any  other  act  in  acceptance 
thereof,  or  he  will  be  deemed  to  have 
waived  the  contempt.  Dan.  Ch.  Pr. 
(5th  Am.  ed.)  756. 

3.  See  Code  Ala.  1886,  §3434;  Rev. 
Sts.  Illinois  (1845),  p.  95,  §  18;  Rev. 
Sts.  Maine,  p.  629,  ^§  14,  15;  Pub. 
Gen.  Laws  Maryland,  177;  Code  Vir- 
ginia, 1873,  ch.  167,  §  35;  Bowles  V. 
Woodson,  6  Gratt.  (Va.)  81;  Bean  v. 
Simmons,  9  Gratt.  (Va.)39i;  Preston 
V.  Heiskell,  32  Gratt.  (Va.)  48;  Rad- 
ford V.  Fowlkes,  85  Va.  820. 

Legal  Holiday.- -Where  the  last  day 
for  filing  is  a  legal  holiday,  the  answer 
may  be  filed  on  the  next  day  on  which 
the  clerk's  office  is  open.  Feuchtwan- 
ger  V.  McCool,  29  N.  J.  Eq.  151. 

How  Time  Computed. — The  time  in- 
tervening between  the  day  when  an 
order  for  complainant  to  give  security 
is  served  and  the  day  when  security  is 
given  is  not  to  be  reckoned  in  comput- 
ing the  time  allowed  defendant  to  an- 
swer. Feuchtwanger  v.  McCool,  29 
N.  J.  Eq.  151- 

Granting  Further  Time.  —  Where, 
after  demurrer  is  overruled,  defend- 
ants are  ordered  to  put  in  their  answer 
within  a  certain  time  and  pay  costs,  or 
that  the   bill   be    taken  as   confessed 


against  them,  the  court  cannot  grant 
further  time  to  answer  on  a  subse- 
quent ex-parte  hearing,  and  an  order 
granting  further  time  on  such  hearing 
is  irregular.  Hurd  v.  Haynes,  9  Paige 
(N.  Y.)6o4. 

Answer  Filed  in  Time  as  to  One  De- 
fendant Only. — Where  one  of  several 
judgment  creditors  files  an  answer 
purporting  to  be  in  behalf  of  all,  and 
the  answer  is  filed  in  time  as  to  him- 
self but  not  as  to  the  others,  the  an- 
swer will  be  permitted  to  stand  as  his 
answer  as  having  been  filed  in  time  by 
him,  but  will  be  stricken  out  as  to  the 
others.  Young  v.  Clarksville  Mfg. 
Co.,  27  N.  J.  Eq.  67. 

4.  Lindsey  v.  Stevens,  5  Dana  (Ky.) 
104.  A  defendant  coming  in  after  a 
decree  pro  confesso  regularly  taken 
upon  any  reasonable  ground  of  in- 
dulgence without  unnecessary  delay 
will  be  permitted  to  answer  upon  pay- 
ment of  costs.  Emery  v.  Downing,  13 
N.  J.  Eq.  59.  Though  there  has  been 
a  delay  of  a  year  and  a  half  in  filing 
answer,  an  answer  may  nevertheless 
be  permitted  if  defendant  shows  that 
he  has  a  meritorious  defense,  and  that 
there  is  good  excuse  for  his  delay. 
Central  Trust  Co.  v.  Texas,  etc.,  R. 
Co.,  23  Fed.  Rep.  S46. 

Restricted  to  Equitable  Defenses. — If 
defendant  fail  to  answer  the  bill  within 
the  prescribed  time,  and  is  compelled 
to  appeal  to  the  favor  of  the  court  for 
leave  to  file  his  answer,  he  will  be  re- 
stricted to  an  equitable  defense,  and 
will  not  be  permitted  to  set  up  usury. 
Vanderveer  v.  Holcomb,  22  N.  J.  Eq. 
556;  Collard  v.  Smith,  13  N.  J.  Eq.  43; 
Remer  v.  Shaw,  8  N.  J.  Eq.  355;  Cam- 
pion V.  Kille,  15  N.  J.  Eq.  476. 

5.  Perkins  v.  Hendryx,  31  Fed.  Rep. 
522. 


891 


striking  ANSWERS  IN  EQUITY  PLEADING.        from  File. 


Service. — After  the  answer  has  been  filed,  a  copy  thereof,  prop- 
erly endorsed,  should  be  served  on  complainant's  solicitor.^ 

X.  Steiking  Answees  FEOM  File.— Answers  irregular  either  in 
form  or  frame  may,  on  motion,  be  stricken  from  the  files.^ 


1.  I  Barb.  Ch.  Pr.  (2d  ed.)  146. 
Time  of  Serving  Answer. — The  answer 

need  not  have  been  filed  at  the  moment 
the  copy  thereof  is  served,  but  it  will 
be  sufficient  if  it  is  filed  on  the  same 
day,  where  no  proceeding  has  been 
taken  in  the  meantime  such  as  will 
render  the  subsequent  filing  of  the 
answer  improper.  The  service  of  a 
copy  of  an  answer,  however,  is  not, 
complete  until  the  original  is  actually 
delivered  to  the  proper  officer  to  be 
filed.     Quincy   v.  Foote,   i  Barb.  Ch, 

(N.  Y.)496- 

Defendant  has  the  whole  of  the  last 
day  specified  in  the  order  in  which  to 
serve  his  answer,  and  complainant's 
solicitor  cannot  enter  an  order  to  take 
the  bill  as  confessed  on  an  affidavit 
made,  after  nine  o'clock  in  the  even- 
ing, on  the  last  day  on  which  defend- 
ant could  serve  his  answer.  He  must 
wait  till  the  full  time  has  expired  be- 
fore making  his  affidavit.  Hoxie  v. 
Scott,  Clarke  Ch.  (N.  Y.)  457- 

Service  on  Clerk. — Service  of  an  an- 
swer upon  a  clerk  at  the  door  of  the 
solicitor's  office  in  the  solicitor's  ab- 
sence was  held  sufficient  service  where 
the  clerk  immediately  carried  it  in. 
Quincy  z/.Foote,i  Barb.  Ch.(N.Y.)  496. 

Service  After  Expiration  of  Time. — 
After  the  time  of  answering  has  ex- 
pired defendant  may  serve  his  answer 
at  any  time  before  an  order  to  take  the 
bill  as  confessed  is  actually  entered 
with  the  clerk.  Hoxie  v.  Scott,  Clarke 
Ch.  (N.  Y.)  457- 

Where  complainant  is  served  with 
an  answer  accompanied  with  payment 
of  costs  ordered  as  a  condition  of  being 
allowed  to  answer  he  cannot  return 
the  answer  as  having  been  served  too 
late  without  also  returning  the  costs. 
Hoxie  V.  Scott,  Clarke  Ch.  (N.  Y.)457- 

Waiver  of  Service. — Where  it  ap- 
peared from  a  decree  that  an  answer 
duly  sworn  to  and  filed  was  read  at  the 
hearing  without  objection,  it  will  be 
presumed  that  the  answer  was  regu- 
larly served  as  an  affidavit,  or  that 
service  was  waived.  Philadelphia, 
etc.,  R.  Co.  V.  Little,  41  N.  J.  Eq.  519. 

2.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  784. 
See  also  Fulton  Bank  v.  Beach,  2 
Paige  (N.  Y.)  307. 

niastrations. — Thus,  where  a  bill  is 


filed  against  a  husband  and  wife,  the 
filing  of  a  separate  answer  by  the 
husband  without  an  order  authorizing 
it  is  irregular,  and  the  answer  will  be 
stricken  from  the  files.  Leavitt  v. 
Cruger,  i   Paige  (N.  Y.)  421. 

So,  also,  after  a  defendant  has  an- 
swered the  original  bill,  and  the  proofs 
have  been  taken  in  the  cause,  it  is 
irregular  and  unauthorized  for  him 
either  to  answer  the  matter  of  the 
original  bill  anew  or  to  put  in  an  an- 
swer to  a  supplemental  bill  filed  for 
the  purpose  of  bringing  additional 
parties  before  the  court,  to  which  sup- 
plemental bill  he  is  not  a  party;  and 
the  answer  may  be  stricken  from  the 
files  on  motion.  American  L.  Ins., 
etc.,  Co.  V.  Bayard,  3  Barb.  Ch.  (N. 
Y.)  610. 

And  where  the  vacation  of  a  decree 
has  been  procured  upon  defendant's 
agreement  with  the  complainant  to 
file  an  answer  by  a  certain  time  ad- 
mitting certain  facts  charged  in  the 
bill,  the  court,  as  a  proper  mode  of  en- 
forcing the  agreement,  may  strike  from 
the  files  an  answer  putting  in  issue 
facts  which  it  was  agreed  to  admit. 
Pearce  v.  Daughdrill,  54  Ala.  456. 

Taking  Answer  from  Files  to  Prosecute 
for  Perjury. — Application  to  take  an- 
swer off  the  files  in  order  to  prosecute 
for  perjury  will  not  be  granted  unless 
some  ground  is  laid  to  enable  the 
court  to  judge  of  the  propriety  of  such 
proceedings.  Daly  v.  Toole,  i  Ir.  Eq. 
414.  An  answer  cannot  be  taken  from 
the  file  in  order  to  prosecute  defend- 
ant for  perjury  if  it  shows  that  the 
alleged  perjury  is  in  a  part  wholly  im- 
material to  the  merits  of  the  case. 
M'Gowan  v.  Hall,  Hayes  17. 

Waiver  of  Irregularity. — Application 
to  take  an  answer  from  the  files  for  ir- 
regularity must  be  made  before  ac- 
ceptance of  the  answer,  otherwise  the 
irregularity  is  waived,  except  in  the 
case  of  an  irregularity  in  th^  jurat,  or 
an  omission  of  the  oath,  or  an  altera- 
tion of  the  name  of  the  defendant,  with- 
out an  order  to  warrant  such  omission, 
in  which  case  there  must  be  an  ex- 
press waiver  of  such  omission.  Dan. 
Ch.  Pr.  (5th  Am.  ed.)  785.  See  also 
Fulton  Bank  v.  Beach,  2  Paige  (N. 
Y.)307. 


892 


striking 


ANS  WERS  IN  EQ  UIT  Y  PLEADING.        from  File. 


Lack  of  signature  or  oath  to  the  answer,^  failure  to  properly 
entitle  it,*  and  unauthorized  erasures  and  interlineations  therein, 
are  sufficient  grounds  for  taking  it  off  the  files.*  If  the  error  for 
which  an  answer  is  taken  off  the  files  is  merely  one  of  form,  the 
court  may  permit  it  to  be  corrected  and  the  answer  filed  anew.'* 

An  answer  so  evasive  that  it  is  clearly  a  mere  delusion  will 
be  ordered  to  be  taken  off  the  files.'     So  also  an  answer  filed  by 


An  answer  cannot  be  taken  from  the 
files  after  exception  is  taken  to  it. 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  337;  Glassington  v. 
Thwaites,  2  Russ.  45S;  Seaton  v.  Grant, 
L.  R.  2  Ch.  459;  Bailev  Washing  Mach. 
Co.  V.  Young,  12  Blatchf.  (U.  S.) 
199. 

1.  Denison  v.  Bassford,  7  Paige 
(N.  Y.)  370;  Kimball  v.  Ward,  Walk. 
(Mich.)  439;  Bernier  v,  Bernier,  72 
Mich.  43. 

lUastrations  of  Bnle. — The  answer  of 
a  corporation  maybe  stricken  from  the 
files  when  it  is  not  signed  by  its  chief 
officer,  or  the  seal  is  not  attached. 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  337. 

An  answer  made  in  the  name  of 
three  defendants  as  their  joint  and 
several  answer,  but  sworn  to  by  only 
two  of  them,  will  be  stricken  from  the 
files  as  irregular,  but  with  leave  to  the 
two  to  erase  therefrom  the  name  of 
the  third  and  to  file  the  answer  as  that 
of  the  two  only.  Bailey  Washing 
Mach.  Co.  V.  Young,  12  Blatchf.  (U. 
S.)  199. 

Where  the  copy  of  an  answer  served 
does  not  contain  the  signature  of  coun- 
sel or  solicitor,  or  where  it  has  no  seal 
annexed,  the  complainant  may  apply 
to  have  the  answer  taken  off  the  files 
for  irregularity.  Littlejohn  v.  Munn, 
3  Paige  (N.  Y.)  280. 

Where  a  joint  answer  of  husband 
and  wife  was  sworn  to  by  husband 
only,  it  was  ordered  to  be  taken  off  the 
files.  New  York  Chemical  Co.  v. 
Flowers,  6  Paige  (N.  Y.)  654. 

An  answer  taken  by  commissioners 
will  be  taken  from  the  files  if  the  jurat 
fails  to  show  where  it  was  sworn, 
Henry  v.  Costello,  i  Hogan  274. 

The  answer  of  a  foreigner  who  does 
net  understand  English  may  be  sworn 
to  in  the  language  he  speaks,  and  be 
filed  with  an  English  translation  ;  if  it 
be  filed  in  English  only,  it  will  be 
stricken  from  the  files.  Hayes  v. 
Lequin,  i  Hogan  274. 

Waiver  of  Signature  or  Oath. — An  an- 


swer will  not  be  stricken  from  the  files 
for  lack  of  signature  where  signature 
is  waived  by  the  replication.  Bernier 
V.  Bernier,  72  Mich.  43. 

Though  an  answer  must  be  verified 
by  affidavit,  and  though  complainant 
may  treat  it  as  a  nullity  if  this  be 
omitted,  and  cause  it  to  be  taken  from 
the  files,  yet  if  he  proceeds  with  the 
cause  he  cannot  avail  himself  of  such 
defect  in  the  appellate  court.  Nesbitt 
V.  Dallam,  7  Gill  &  J.  (Md.)  494. 

If  the  oath  to  an  answer  be  waived, 
complainant  cannot  apply  to  have  it 
taken  off  the  files  on  the  ground  that 
defendant  knows  it  to  be  false.  His 
remedy  in  such  case  is  to  ask  the  court 
at  the  hearing  to  have  defendant 
charged  personally  with  the  costs  to 
which  complainant  has  been  subjected 
by  such  false  pleading.  Denison  v. 
Bassford,  7  Paige  (N.  Y.)  370. 

2.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  732; 
Fulton  County  v.  Mississippi  R.  Co.,  21 
111.  337;  Griffiths  V.  Wood,  11  Ves.  62. 

In  Alabama  it  has  been  held  that  the 
omission  of  the  name  of  one  of  the  de- 
fendants in  the  title  of  a  cause  is  not 
sufficient  ground  to  strike  an  answer 
from  the  files,  McLure  v.  Colclough, 
17  Ala.  89. 

3.  Fulton  County  v.  Mississippi, 
etc.,  R.  Co.,  21  111.  337. 

Interlineation  in  Material  Part. — But 
the  fact  that  the  answer  was  interlined 
in  a  material  part  before  it  was  filed  is 
not  ground  to  take  it  off  the  files,  if  it 
does  not  appear  that  it  was  interlined 
after  it  was  sworn  to.  McLure  v.  Col- 
clough, 17  Ala.  89. 

4.  Bailey  Washing  Mach.  Co,  v. 
Young,  12  Blatchf.  (U,  S.)  199. 

5.  Smith  z/.  Searle,  14  Ves.  415;  Tom- 
kin  V.  Lethbridge,  9  Ves.  179;  Lynch 
V.  Lecesne,  i  Hare  626;  Read  v.  Bar- 
ton, 3  K.  &  J.  166;  Brooks  v.  Purton, 
I  Y.  &  C.  C.  C.  278;  Spivey  v.  Frazee, 
7  Ind.  661;  Travers  v.  Ross,  14  N.  J. 
Eq.  254;  Phillips  v.  Overton,  4  Hayw. 
(Tenn.)  292. 

Contra.  —  In  the  case  of  Marsh  v. 
Hunter,  3  Madd.  226,  a  motion  to  take 


893 


Oompelling  by  ANS WERS  IN  EQUITY  PLEADING.      Attachment. 

a  person  not  named  in  the  bill  nor  admitted  as  a  defendant.*  If 
an  answer  contains  scandalous  matter  it  may  on  consent  of  the 
parties  be  taken  off  the  files.*-* 

Where  any  part  of  an  answer  may  be  regarded  as  responsive  to 
any  part  of  the  bill,  it  will  not  be  ordered  off  the  files.* 

XL  Compelling  Answee  by  Attachment. — In  most  jurisdictions 
there  are  statutes  and  rules  of  court  providing  for  the  issuance  of 
attachments  to  compel  a  defendant  to  answer  where  he  has  failed 
to  do  so  within  the  time  required  by  law.* 


an  answer  off  the  files  because  it  was 
delusive,  as  answering  only  a  few  facts 
stated  in  the  bill,  was  denied.  See  also 
White  V.  Howard,  2  DeG.  &  S.  223.  In 
Olding  V.  Glass,  i  Y.  &  J.  340,  the  court 
refused  to  order  an  answer  to  be  taken 
off  the  files,  on  the  alleged  ground  that 
it  was  illusory,  the  defendant  merely 
stating  that  he  had  no  knowledge  of 
any  of  the  matters  in  the  bill  mentioned, 
and  left  the  plaintiff  to  except. 

1.  Putnam  v.  New  Albany,  4  Biss. 
(U.  S.)  365. 

2.  Tremaine  v.  Tremaine,  i  Vern. 
189;  Walton  V.  Broadbent,  3  Hare  334; 
Jewin  V.  Taylor,  6  Beav.  120;  Clifton 
V.  Bentall.  9  Beav.  105;  Makepeace  v. 
Romieux,8W.  R.  687;  Barritt  v.  Tids- 
well,  7  W.  R.  85;  V.  C.  K.,  Dan.  Ch. 
Pr.  (5th  Am.  ed.)785. 

3.  Squier  v.  Shaw,  24  N.  J.  Eq.  74; 
Travers  v.  Ross.  14  N.  J.  Eq.  257; 
Feuchtwanger  v.  McCool,  29  N.  J.  Eq. 
151;  Carpenter  v.  Gray,  38  N.  J.  Eq. 
135;  May  V.  Williams,  17  Ala.  23. 

4.  United  States  Equity  Kule  18  pro- 
vides that,  unless  the  time  be  other- 
wise enlarged  on  motion  for  cause 
shown,  defendant  shall  file  his  plea, 
demurrer,  or  answer  to  the  bill  in  the 
clerk's  office  on  the  rule  day  next  suc- 
ceeding that  of  entering  his  appear- 
ance; and  that  if  plaintiff  require  any 
discovery  or  answer  to  enable  him  to 
obtain  a  proper  decree,  he  shall,  on  de- 
fendant's failure  toanswer,  be  entitled 
to  process  of  attachment  against  the 
defendant  to  compel  an  answer;  and 
the  defendant  shall  not,  when  arrested 
upon  such  process,  be  discharged  there- 
from unless,  upon  filing  his  answer,  or 
otherwise  complying  with  such  order 
as  the  court  or  a  judge  thereof  may 
direct  as  to  pleading  or  fully  answer- 
ing the  bill  within  a  period  to  be  fixed 
by  the  court  or  judge,  and  undertak- 
ing to  speed  the  cause. 

Alabama.  —  If  the  bill  is  filed  for 
discovery,  or  answer   on   oath  is  not 


waived,  answers  from  resident  de- 
fendants may  be  compelled  by  attach- 
ment. Code,  §  3435.  Such  attach- 
ments are  executed  by  the  arrest  of  the 
defendant  and  bringing  him  before  a 
chancellor,  circuit  judge,  or  register, 
who  may  discharge  him  on  his  giving 
bond  with  surety  in  such  sum  as  may 
be  fixed  by  such  chancellor,  circuit 
judge,  or  register,  to  be  approved  by 
the  arresting  officer,  payable  to  the 
register  of  the  court  in  which  the  bill 
is  filed,  and  conditioned  that  he  will 
file  a  full  answer  to  the  bill  within  a 
time  to  be  prescribed  by  the  officer  be- 
fore whom  such  defendant  is  brought; 
which  bond  must  be  returned  with  the 
attachment  within  the  same  time  after 
service  and  in  the  same  manner,  if  by 
mail,  as  a  summons  is  required  to  be 
returned  under  the  provisions  of  this 
chapter.     Code,  §  3436. 

Florida. — The  complainant  may,  how- 
ever, instead  of  causing  a  decree  pro 
confesso  to  be  entered,  if  he  requires 
any  discovery  or  answer  to  enable  him 
to  obtain  a  proper  decree,  have  process 
of  attachment  against  the  defendant  to 
compel  an  answer;  and  the  defendant 
shall  not,  when  arrested  upon  such 
process,  be  discharged  therefrom,  un- 
less upon  filing  his  answer  or  other- 
wise complying  with  such  order  as  the 
court  may  direct  as  to  pleading  to  or 
fully  answering  the  bill  within  a  period 
to  be  fixed  by  the  court,  and  undertak- 
ing to  speed  the  cause.  Rev.  Sts.  Fla. 
§  1447-  . 

Illinois. — If  defendant  in  a  proceed- 
ing in  equity,  having  been  served  with 
summons  or  personally  notified,  as 
provided  in  this  act,  shall  fail  or  re- 
fuse to  appear  or  answer  the  bill  of 
complaint,  he  may  be  attached  and 
otherwise  proceeded  against  according 
to  the  practice  in  equity  in  cases  of 
contempt.  Rev.  Sts.  111.  1893,  p.  221, 
§  41.  See  also  Rev.  Sts.  111.  1893,  p. 
220,  §  24. 


894 


Taking  Bill      ANSWERS  IN  EQUITY  PLEADING.    Pro  Confesso. 


XII.  Taking  Bill  Pro  Confesso.— Another  remedy  in  case  of 
the  defendant's  failure  to  answer  is  that  of  taking  the  hill  pro 
confesso.^ 

XIII.  Exceptions  to  Answers— 1.  Definition  and  Object.  —  Ex- 
ceptions are  allegations  in  writing,  stating  the  particular  points  or 
matters  in  respect  to  which    complainant    considers  the  answer 


Maryland. — Where  a  bill  for  discovery- 
is  filed  against  a  defendant  of  full  age, 
and  the  subpoena  shall  be  returned 
summoned,  and  the  defendant  shall 
fail  to  appear,  or,  after  appearance, 
shall  fail  to  answer,  an  attachment  of 
contempt  may  issue;  and  if  the  said 
attachment  is  returned  served,  and  the 
defendant  fails  to  appear  or  answer,  as 
the  case  may  be,  the  court,  upon  being 
satisfied  of  the  service  of  both  sub- 
poena and  attachment,  may  pass  a  de- 
cree/r^  confesso;  or  if  in  such  case  the 
attachment  is  returned  non  est  inventus, 
an  attachment  with  proclamations  may 
issue;  and  if  the  defendant  shall  fail 
to  appear  or  answer,  as  the  case  may 
be,  the  court,  upon  being  satisfied  of 
the  service  of  the  subpoena,  may  pass 
a  decree  pro  confesso,  without  examin- 
ing the  plaintiff,  in  its  discretion;  and 
such  decree,  in  either  case,  shall  have 
^11  the  effect,  in  evidence  or  otherwise, 
that  the  answer  of  such  defendant  con- 
fessing all  the  allegations  in  the  bill 
would  have.  Pub.  Gen.  Laws  Md. 
p.  189,  §  172. 

If  any  defendant,  after  appearance, 
shall  fail  to  answer  within  the  time 
prescribed  by  the  rules  of  court,  an  at- 
tachment may  issue  against  such  de- 
fendant to  compel  him  to  answer,  and 
he  may  be  committed  as  for  a  contempt 
for  not  answering;  and  if  the  attach- 
ment shall  be  returned  served,  and  the 
defendant  does  not  answer  by  the  first 
day  of  the  term  next  after  that  to  which 
the  attachment  was  returnable,  or  if 
the  attachment  be  returned  non  est,  an 
attachment  with  proclamations  may 
issue;  and  if  the  defendant  shall  fail 
to  answer  by  the  first  day  of  the  term 
next  after  that  to  whichjthe  last  named 
attachment  was  returnable,  the  court, 
in  either  case,  may  pass  a  decree /r<7 
confesso  a.ga.\r\sX.  such  defendant,  or  may 
order  testimony  to  be  taken  ex  parte; 
any  defendant  under  this  or  the  pre- 
ceding section  may  answer  at  any  time 
before  final  decree,  on  such  terms  as 
the  court  may  prescribe.  Pub.  Gen. 
Laws  Md.  p.  190,  §  174. 

So,  also,  it  has  been  held  that  a  de- 


fendant whose  answer  on  exceptions 
has  been  held  insufficient,  or  who  has 
on  demurrer  or  plea  failed  to  protect 
himself  from  answering  as  the  bill  re- 
quires, may  be  attached  and  compelled 
to  answer.  Buckingham  v.  Peddicord, 
2  Bland  (Md.)  447. 

Mississippi. — When  a  defendant  shall 
fail  to  answer  within  the  time  required 
by  law.  the  complainant,  instead  of 
taking  a  decree  pro  confesso,  may  ob- 
tain from  the  chancellor  an  order  for 
an  attachment,  returnable  in  term- 
time,  to  compel  such  defendant  to  an- 
swer: but  affidavit  must  first  be  made 
and  filed  in  the  cause  by  the  complain- 
ant or  his  solicitor,  that  such  answer 
is  necessary  for  the  ends  of  justice,  as 
he  believes.  Ann.  Code  Miss.  1892, 
§  537- 

Tennessee. — If  the  defendant  upon 
whom  process  has  been  served  fails 
to  appear  and  defend  in  the  time  re- 
quired by  law,  the  bill  may  be  taken  for 
confessed,  or  the  complainant  may  pro- 
ceed by  process  of  contempt  to  compel 
an  answer.  M.  &  V.  Code  Tenn. 
8  5103.  The  only  process  of  contempt 
is  an  attachment,  which  is  issued  upon 
order  of  the  chancellor  at  the  instance 
of  the  complainant,  upon  the  return  of 
the  subpoena  duly  served  by  the  proper 
officer,  or  upon  affidavit  by  him  of  such 
service.  M.  &  V.  Code  Tenn.  §  5104. 
See  also  §§  5106,  5107,  5109. 

Virginia. — Although  a  bill  be  taken 
for  confessed  as  to  any  defendant,  the 
plaintiff  may  have  an  attachment 
against  him,  or  an  order  for  him  to  be 
brought  in  to  answer  interrogatories. 
No  plea  or  demurrer  shall  be  received 
after  such  attachment,  unless  by  order 
of  court  upon  motion.  Code  Va. 
1887,^3287. 

West  Virginia. — In  this  state  the  sec- 
tion of  the  statute  relating  to  attach- 
ments (Code  1887,  p.  789,  ^5  48)  is  iden- 
tical with  the  section  of  the  Virginia 
Code  above  set  forth. 

1.  Dan.  Ch.  Pr.  (5th  Am.  ed.)  517; 
Langdell  Eq.  PI.  fc?  84. 

As  to  taking  bills  pro  confesso,  see 
article  Decrees. 


895 


Exceptions        ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 


insufficient  as  a  response  to  the  bill,  or  scandalous,  or  imperti- 
nent. 

The  Object  of  exceptions  is  to  direct  the  attention  of  the  court  to 
the  points  excepted  to,  and  to  take  its  opinion  thereon  before 
further  proceedings  are  had,  to  the  end  that,  if  the  answer  is  in- 
sufficient, a  better  answer  may  be  compelled,  or  if  it  is  scandalous 
or  impertinent,  the  scandalous  or  impertinent  mattter  may  be 
expunged.* 

They  Are  Therefore  of  Two  Kinds,  {a)  for  insufficiency,  {U)  for  scan- 
dal or  impertinence.* 

2.  Exceptions  for  Insufficiency  —  a.  When  they  Lie.  —  If  the 
answer  of  the  defendant  is  conceived  to  be  insufficient,  the 
objection  should  be  taken  by  exceptions.*  And,  it  seems,  if  the 
complainant  does  not  except  he  cannot  rely  upon  the  silence  of  the 
respondent  in  relation  to  any  material  allegation,  but  must 
prove  it.-* 


1.  Barb.  Ch.  Pr.  (ad  ed.)  176;  Rich- 
ardson V.  Donehoo,  16  W.  Va.  703; 
followed  in  Arnold  v.  Slaughter,  36 
W.  Va.  589;  Fulton  County  v.  Missis- 
sippi, etc.,  R.  Co.,  21  111.  365.  The 
object  of  exceptions  to  an  answer  for 
insufficiency  is  to  obtain  discovery, 
Smith  V.  St.  Louis  Mut.  L.  Ins.  Co., 
2  Tenn.  Ch.  599. 

2.  As  to  exceptions  for  scandal  and 
impertinence,  see  article  Scandal  and 
Impertinence. 

Where,  by  One  Exception  to  an  Answer, 
the  defendant  is  called  upon  to  answer 
as  to  his  knowledge  of  a  fact,  he  can- 
not, by  another  exception,  be  com- 
pelled to  answer  whether  or  not  he 
has  sworn  differently  in  relation  to 
such  knowledge,  in  a  former  pro- 
ceeding. Mechanics'  Bank  v.  Levy,  3 
Paige  (N.  Y.)  477. 

3.  Arnold  v.  Styles,  2  Blackf.  (Ind.) 
391;  Ryan  z/.  Melvin,  14  111.  68;  Brown 
V.  Scottish  American  Mortgage  Co., 
no  111.  235  ;  Lane  v.  Roche,  Riley  Eq. 
(S.  Car.)  215;  Blaisdell  v.  Stevens,  16 
Vt.  179;  Trotter  v.  Bunce,  i  Edw.  Ch. 
(N.  Y.)  573;  Stat.  Mich.  (1882)  §  8257. 

Omissions  in  an  answer  are  not  cured 
by  failure  to  except.  Doughty  v. 
Doughty,  7  N.  J.  Eq.  2S2. 

Motion  to  Compel  Defendant  to  Answer 
Interrogatories. — A  defendant  cannot, 
by  a  motion  to  that  effect,  be  com- 
pelled to  answer  certain  interroga- 
tories annexed  to  the  bill.  If  the 
answer  is  deemed  insufficient,  the 
complainant  must  present  exceptions. 
Fuller  V.  Knapp,  24  Fed.  Rep.  100. 

Demurrer  Does  Not  Amount  to  Answer. 
— No  demurrer  amounts  to  an  answer 


in  equity;  hence,  if  there  be  any  an- 
swer, however  defective,  the  com- 
plainant must  either  file  exceptions  or 
a  replication,  or  set  down  the  cause 
for  hearing  upon  bill  and  answer. 
Travers  v.  Ross,  14  N.  J.  Eq.  254  ; 
Stone  V.  Moore,  26  111.  165;  Squier  v. 
Shaw,  24  N.  J.  Eq.  74. 

Taking  Exceptions  Implies  an  Answer. 
— Upon  appeal  it  is  too  late  for  the 
appellee  to  say  that  the  paper  filed  as 
an  answer  was  no  answer.  He  treated 
it  as  an  answer  by  taking  exceptions 
to  it  as  the  statute  required.  Holly 
V.  Powell,  63  111.  139.  But  see  Mayer 
V.  Tyson,  i  Bland  (Md.)  559. 

4.  Warfield  v.  Gambrill,  i  Gill  &  J. 
(Md.)  503;  Pegg  V.  Davis,  2  Blackf. 
(Ind.)  281;  Coleman  v.  Lyne,  4  Rand 
(Va.)  454;  Squier  v.  Shaw,  24  N.  J.  Eq. 

74- 

Defendant's  Admissions  not  Available. 
— "  The  rule  in  future  will  be  under- 
stood as  settled,  that  where  the  answer 
is  not  responsive  to  a  material  allega- 
tion of  the  bill,  the  plaintiff  may  ex- 
cept to  it  as  insufficient,  or  may  move 
to  have  that  part  of  the  bill  taken  for 
confessed;  but  if  he  does  neither,  he 
shall  not,  on  the  trial,  avail  himself  of 
any  implied  admissions  by  the  defend- 
ant; for  where  the  defendant  does  not 
answer  at  all,  the  plaintiff  cannot  take 
his  bill  for  confessed,  without  an  order 
of  the  court  to  that  effect,  and  having 
it  served  upon  the  defendant;  and  this 
is  the  onlyevidence  of  his  admission." 
Per  Taylor,  Ch.,  in  Dangerfield  v.  Clai- 
borne, 2  Hen.  &  M.  (Va.)  17. 

Burden  of  Proof. — "  If  a  bar  set  up  in 
the  answer  be  insufficient  as  such,  the 


896 


Exceptions        ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 

Material  Allegation  or  Interrogatory  Unanswered. — But  exceptions  will 
only  be  allowed  where  some  material  allegation,  charge,  or  inter- 
rogatory in  the  bill  has  not  been  fully  answered.* 

Confined  to  Discovtry. — Exceptions  are  confined  to  matters  of  dis- 
covery,^ where  the  complainant  must  rely  on  the  defendant  to 
prove  his  case.* 


complainant  would  be  entitled  to  ex- 
cept as  for  want  of  a  full  answer;  and 
to  avoid  answering  the  exceptions,  the 
defendant,  in  such  case,  would  require 
leave  of  court  before  he  could  amend 
the  bar.  If,  instead  of  excepting,  the 
complainant  should  go  to  proof,  the 
burden  would  be  on  him  to  prove  the 
bill  and  on  the  defendant  to  prove  the 
bar,  each  being  entitled  to  examine  the 
other  as  a  witness."  Per  Bradley,  C. 
J.,  in  Gaines  v.  Agnelly,  i  Woods  (U. 
S.)  238. 

Amoant  of  Proof. — Where  an  answer 
is  objectionable  as  insufficient,  but  no 
exceptions  are  taken  to  it,  the  effect  is 
to  put  the  complainant  to  proof  of  the 
allegations  in  the  bill,  though  the 
same  amount  of  proof  is  not  required. 
Savage  7/.  Benham,  17  Ala.  119;  citing 
Goodwin  v.  McGehee,  15  Ala.  232; 
Waters  v.  Creagh,  4  Stew.  &  P.  (Ala.) 
410;  Wilkins  v.  Woodfin,  5  Munf.  (Va.) 

183. 

1.  Frivolous  Exceptions. — Frivolous 
exceptions,  even  though  technical 
ly  well  taken,  are  discountenanced. 
Johnson  v.  Tucker,  2  Tenn.  Ch.  244; 
Del  Pont  V.  De  Fastet,  i  T.  &  R.  486; 
Reed  v.  Cumberland  Mut.  F.  Ins.  Co., 
36  N.  J.  Eq.  393.  See  Utica  Ins.  Co.  v. 
Lynch,  3  Paige  (N.  Y.)  210. 

Verbal  Criticism — Slight  Defects,  etc. 
— Exceptions  for  insufficiency  will  not 
be  allowed  when  founded  upon  mere 
verbal  criticism,  slight  defects,  or 
omissions  in  matter  not  material. 
Cleaves  v.  Morrow,  2  Tenn.  Ch.  592; 
Baggott  V.  Henry,  i  Edw.  Ch.  (N.  Y.) 
7.  In  the  last  case  McCoun,  V.-Ch., 
expressed  himself  thus  :  "  I  wish  to 
have  it  understood  that  whilst,  on  the 
one  hand,  I  shall  always  hold  a  de- 
fendant to  a  full,  frank,  and  explicit 
disclosure  of  all  matters  material  or 
necessary  to  be  answered,  whether 
resting  within  his  own  knowledge  or 
upon  his  information  and  belief,  so, 
on  the  other  hand,  I  mean  as  far  as  lies 
in  my  power  to  discourage  the  taking 
of  those  exceptions  which  are  found- 
ed upon  mere  verbal  criticism,  slight 
defects,  or  omissions    in    matter    not 


material  to  the  cause,  and  when  it  is 
evident  the  defendant  can  have  no  de- 
sign or  intention  to  suppress  the  truth, 
or  evade  a  full  and  fair  answer;  and 
whenever  exceptions  of  the  latter  char- 
acter are  brought  before  me  I  shall 
not  hesitate  to  overrule  them  and  im- 
pose payment  of  all  such  costs  as  a 
litigious  and  vexatious  proceeding 
deserves." 

Allegations  Neither  Admitted  Nor 
Denied. — If  an  exception  be  taken  to 
an  answer  in  chancery  upon  the  ground 
that  certain  allegations  in  the  bill  are 
neither  admitted  nor  denied,  it  be- 
comes necessary  to  inquire  whether 
the  facts  charged  in  the  allegations 
are  material,  and  might,  if  established, 
contribute  to  support  the  equity  of  the 
complainant.  If  they  will  not,  the 
omission  to  answer  the  allegations  is 
not  a  good  ground  for  exceptions  to 
the  answer.  Hardiman  -v.  Harris,  7 
How.  (U.  S.)  726. 

Correctness  of  Arithmeticfil  Problem. — 
An  exception  for  insufficiency  on  the 
ground  that  defendant  has  not  an- 
swered as  to  the  correctness  of  a  mere 
arithmetical  proposition  will  not  be 
allowed.  Mclntyre  v.  Union  College, 
6  Paige  (N.  Y.)  239. 

No  Occasion  for  Controversy. — The 
complainant  cannot  by  means  of  an 
exception  to  the  answer  make  that  a 
matter  of  controversy  as  to  which,  ac- 
cording to  the  frame  of  his  bill,  no 
controversy  can  arise.  Gleaves  v. 
Morrow,  2  Tenn.  Ch.  592. 

2.  Stafford  v.  Brown.  4  Paige  (N.  Y.) 
88;  Richardson  v.  Donehoo,  16  W.  Va. 
703;  West  V.  Williams,  i  Md.  Ch.  358. 

3.  U.  S.  V.  McLaughlin,  24  Fed. 
Rep.  823;  Smith  v.  St.  Louis  Mut.  L. 
Ins.  Co.,  2  Tenn.  Ch.  599. 

Discovery  Must  Be  Beneficial. — Excep- 
tions for  insufficiency  are  proper  only 
for  obtaining  a  discovery  which  would 
be  beneficial  to  the  complainant.  Clute 
V.  Bool,  8  Paige  (N.  Y.)  83;  Fay  v. 
Jewett,  3  Edw.  Ch.  (N.  Y.)  323;  Davis 
V.  Mapes,  2  Paige  (N.  Y.)  105. 

4.  Not  Applicable  to  Bills  for  Belief. — 
This  doctrine  does  not  apply  to  bills 


1  Encyc.  PI.  &  Pr.— 57. 


897 


Exceptions       A NS WERS  IN  EQUITY  PLEADING,     to  Answers. 


Under  General  Interrogatory. — The  practice  in  many  states  allows 
exceptions  to  be  taken  to  an  answer  that  fails  to  notice  material 
charges  and  statements  in  the  bill  under  the  general  interroga- 
tory, though  no  special  interrogatories  be  introduced.* 

Several  Defendants. — Where  several  defendants  answer  separately, 
exceptions  should  be  taken  to  each  answer.*  And  if  a  defendant, 
answering  jointly  with  another,  dies,  exceptions  may  be  taken  to 
the  answer,  as  being  that  of  the  survivor  only.^ 

Setting  Up  Questions  of  Law. — Where  an  answer  sets  up  questions 
of  law  instead  of  facts,  exceptions  are  well  taken."* 

Waiver. — The  right  to  except  may  be  waived.* 

b.  When  They  Do  Not  Lie— New  Matter. — A  substantive  de- 
fense not  responsive  to  the  inquiries  of  the  bill,  but  consisting 
of  new  matter  exclusively,  is  not  the  subject  of  exceptions.® 


for  relief.  McClaskeyz'.  Barr,  40  Fed. 
Rep.  559.  See  U.  S.  V.  McLaughlin, 
24  Fed.  Rep.  823. 

1.  Miles  V.  Miles,  27  N.  H.  440; 
Tucker  v.  Cheshire  R.  Co.,  21  N.  H. 
29;  M.  E.  Church  v.  Jaques,  i  Johns. 
Ch.  (N.  Y.)  65  ;  Bank  of  Utica  v. 
Messereau,  7  Paige  (N.  Y.)  517;  Cuy- 
ler  V.  Bogert,  3  Paige  (N.  Y.)  186. 
See  also  Langdon  v.  Goddard,  3  Story 
(U.  S.)  13;  Brakeley  v.  Tuttle,  3  W. 
Va.  129. 

2.  I  Dan.  Ch.  Pr.  (5th  ed.)  674; 
Sydolph  V.  Monkston,  2  Dick.  609. 

3.  I  Dan.  Ch.  Pr.  (5th  ed.)764;  Lord 
Herbert  v.  Pusey,  1  Dick.  255. 

4.  Craig  v.  People,  47  111.  487. 

5.  Waiver  of  Exceptions  Judicious  at 
Times.  —  "The  plaintiff  may,  if  he 
choose,  waive  his  right  to  except;  and 
it  is  always  most  judicious  to  do  so 
where  his  proofs  are  ample  and  at 
hand  and  the  character  or  conduct  of 
the  defendant  indicates  that  he  is  not 
altogether  trustworthy  upon  oath;  for 
in  such  cases  he  will  attain  his  object 
much  sooner  and  better  by  taking  the 
answer  at  once,  as  he  can  get  it,  and 
proceeding  directly  to  collect  proof, 
without  loss  of  time,  than  by  stopping 
to  take  exceptions."  Per  Bland,  C, 
in    Hagthorp    v.    Hook,    i    Gill    &    J. 

<Md.)274- 

Taking  Bill  as  Confessed  Waives  Ex- 
ceptions.— It  is  a  waiver  of  exceptions 
if  complainant  takes  his  bill  as  con- 
fessed as  to  those  points  not  responded 
to.  Griffith  v.  Depew,  3  A.  K.  Marsh. 
(Ky.)  177,  13  Am.  Dec.  141. 

Moving  to  Amend  Bill  Waives  Excep- 
tions.— If  a  plaintiff  excepts  to  an  an- 
swer and  afterward  moves  to  amend 
his  bill,  that  operates  as  a  waiver  of 


the  exceptions  to  the  answer;  for  the 
plaintiff  by  the  amendments  may  strike 
out  the  very  passages  excepted  to. 
De  La  Torre  v.  Bernales,  4  Madd. 
395- 

Waiver  of  Exceptions  to  First  Answer. 
— After  objecting  to  the  filing  of  an 
answer  because  verified  by  a  clerk  in 
another  state,  plaintiff  offered  to  reply 
to  it  and  filed  an  amended  petition, 
and  also  waived  any  objections  to  a 
subsequent  answer  of  the  same  party. 
Any  of  these  acts  should  have  been 
deemed  a  waiver  of  objections  to  the 
first  answer,  especially  as  no  excep- 
tion was  taken  until  the  submission  of 
the  case.  Mason  v.  Mason,  5  Bush 
(Ky.)  190. 

6.  Bower  Barff  Rustless  Iron  Co.  v. 
Wells  Rustless  Iron  Co.,  43  Fed.  Rep. 
391;  Adams  v.  Bridgewater  Iron  Co., 
6  Fed.  Rep.  179;  Spencer  v.  Van  Du- 
zen,  I  Paige  (N.  Y.)  555. 

Exceptions  Lie  Only  for  Matters  Alleged 
in  Bill. — Exceptions  do  not  lie  to  an 
answer  because  it  does  not  state  mat- 
ter set  forth  in  avoidance  fully  and 
explicitly.  They  lie  only  for  matters 
alleged  in  the  bill  and  not  sufficiently 
answered.  Lanum  v.  Steel,  10  Humph. 
(Tenn.)  280;  Stafford  v.  Brown,  4  Paige 
(N.  Y.)  88. 

"  A  defendant  may  allege  any  facts 
in  his  answer,  as  an  avoidance,  which 
gives  rise  to  an  equity  that  constitutes 
a  good  defense,  as  payment,  a  release, 
etc.;  and  however  generally  or  darkly 
such  matter  may  be  stated,  the  plaintiff 
cannot  except  because  they  form  no 
part  of  that  response  he  had  called  for; 
and  if  such  statements  are  so  obscure 
as  to  be  of  no  avail  it  can  be  of  no  in- 
jury to   him.      The  defendant    alone 


Exceptions        ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 


Failure  to  Answer,  Admission  of  Truth. — Nor  are  exceptions  for  insuf- 
ficiency proper  where  by  statute  the  failure  to  answer  a  material 
averment  admits  its  truth.* 

Interrogatory  as  to  Books  and  Papers. — Where  the  bill  contains  an  in- 
terrogatory as  to  books  and  papers  which  the  defendant  does  not 
answer,  an  exception  for  this  reason  should  not  now  be  taken.* 

Interrogatories  Substantially  Answered. — And  where  interrogatories  are 
substantially  answered,  exceptions  will  be  allowed  with  reluct- 
ance.^ 

Bill  Inexplicit. — If  the  bill  is  inexplicit  and  ambiguous,  excep- 
tions to  the  answer  should  not  be  allowed.* 

Objection  of  Res  Judicata. — And  the  objection  of  res  judicata  to 
the  defenses  setup  by  an  answer  cannot  be  taken  by  exceptions.® 

Disclaimer.  —  Exceptions  will  not  be  allowed  to  a  simple  dis- 
claimer.* 

Irregularities  in  Practice. — They  do  not  lie  for  irregularities  in  prac- 
tice.' 

swered. — If  the  whole  answer,  taken 
together,  is  a  substantial  reply  to  the 
whole  interrogatory,  that  is  sufficient, 
though  each  separate  question  may 
not  be  separately  answered.  Mott  v. 
Hall,  41  Ga.  117. 

4.  The  court  must  see  by  referring 
to  the  bill,  in  connection  with  the  ex- 
ception, that  the  precise  matters  as  to 
which  a  further  answer  in  the  bill  is 
sought  are  stated  in  the  bill,  or  that 
such  an  answer  was  called  for  by  in- 
terrogatories. A  plaintiff  should  not 
be  allowed  to  except  to  an  answer  for 
insufficiency  when  his  own  bill  is  in- 
explicit and  ambiguous,  and  it  is  con- 
sequently doubtful  what  information 
he  seeks  to  obtain  from  the  defendant. 
West  V.  Williams,  i  Md.  Ch.  35S. 

Failure  to  Append  Footnote  to  Bill. — 
The  complainant's  omission  to  append 
a  footnote  to  his  bill  precludes  him 
from  claiming  advantage  of  the  fail- 
ure of  the  defendant  to  answer  any  of 
its  allegations.  Sprague  v.  Tyson,  44 
Ala.  338. 

6.  Thrifts  v.  Fritz,  loi  111.  457. 

6.  Bemedy  for  Disclaimer  —  Accom- 
panied by  Answer. — Where  defendant 
files  a  mere  disclaimer,  the  remedy  of 
the  complainant  who  is  entitled  to  an 
answer  is  to  move  to  have  the  dis- 
claimer taken  off  the  files.  If,  how- 
ever, it  be  accompanied  by  an  insuf- 
ficient answer,  that  may  be  excepted 
to.  Ellsworth  V.  Curtis,  2  Chan.  Sent. 
(N.  Y.)  72. 

7.  Thus,  the  verification  of  an 
answer,  taken  abroad,  was  alleged  to 
be  not  properly  authenticated;  where- 


bears  the  consequence  of  the  lame  and 
imperfect  manner  in  which  he  puts  for- 
ward his  own  defense."  Per  Bland,  C, 
in  Salmon  v.  Clagett,  3  Bland  (Md.) 
T41. 

Answer  Stating  Immaterial  Fact — Im- 
proper Interrogatories. — Exceptions  to 
an  answer  will  not  be  sustained  be- 
cause it  states  a  fact  totally  immaterial; 
nor  because  it  answers  interrogatories 
which  were  improperly  put,  and  which 
the  party  was  not  bound  to  answer. 
Conway  v.  Turner,  8  Ark.  356. 

1.  Richardson  v.  Donehoo,  16  W. 
Va.  6S5,  holding,  however,  that  in 
such  a  case  an  answer  may  be  ex- 
cepted to  on  the  ground  that  its  de- 
nials are  not  sufficiently  specific. 

What  is  Admitted. — Under  such  a 
statute  only  averments  of  facts 
charged  to  be  or  clearly  within  the 
defendant's  knowledge  are  admitted 
by  failure  to  deny.  Cowen  v.  Alsop, 
51  Miss.  158. 

2.  I  Dan.  Ch.  Pr.  (5th  ed.)  760;  Law 
■V.  London  Indisputable  L.  Policy  Co., 
ID  Hare  App.  20;  Rochdale  Canal  Co. 
V.  King,  15  Beav.  11;  Kidger  v.  Wors- 
wick,  5  Jur.  N.  S.  37;  Barnard  v. 
Hunter,  i  Jur.  N.  S.  1065;  Pifford  v. 
Beeby,  L.  R.  i  Eq.  623.  But  see  Hud- 
son V.  Grenfell,  3  Giff.  388. 

Failure  to  Answer  as  to  Particular  Docu- 
ments Exceptable. — But  if  the  interrog- 
atory is  as  to  particular  documents, 
a  failure  to  answer  this  would  be  ex- 
ceptable. Catt  V.  Tourle,  18  W.  R. 
966. 

3.  Read  v.  Woodruffe,  24  Beav.  421. 
Separate  Questions  Not  Separately  An- 


899 


Exceptions        ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 

Oath. — Nor  are  they  applicable  to  an  answer  not  under  oath,* 
nor  where  the  oath  has  been  waived.* 

Answer  of  Corporation. — Neither  can  exception  be  taken  to  the 
answer  of  a  corporation  under  its  corporate  seal.* 

Answer  of  Attorney-General. — Exceptions  will  not  lie  to  the  answer 
of  the  Attorney-General.* 

Answer  of  Infant. — Likewise  they  cannot  be  taken  to  the  answer 
of  an  infant. 

Guardians. — Exceptions  are  not  applicable  to  the  answer  of  a 
guardian  of  a  person  of  unsound  mind,  against  whom  no  com- 
mission has  issued.® 

Answer  in  Aid  of  Plea. — Nor  will  they  lie  to  an  answer  in  aid  of  a 
plea.'' 

Answer  Used  as  Plea. — Nor  where  the  answer  is  used  as  a  plea  in 
bar.** 


upon  the  complainant  excepted  to  cer- 
tain portions  of  the  answer  for  in- 
sufficiency, relying  upon  its  being  no 
answer  by  reason  of  the  defect  in  its 
verification.  Held,  that  he  had  mis- 
taken his  remedy,  which  was  by  mov- 
ing to  take  it  from  the  files,  not  by  ex- 
cepting. Vermilya  v.  Christie,  4  Sandf . 
Ch.  (N.  Y.)376. 

1.  Goodwin  v.  Bishop,  145  111.  421; 
Fulton  County  z'.  Mississippi,  etc.,  R. 
Co.,  21  in.  366;  Brown  v.  Scottish 
American  Mortgage  Co.,  no  111.  235. 
Mr.  Hoffman  says  :  "  The  general  rule 
is  that  exceptions  cannot  be  taken  to 
an  answer  without  oath,  or  upon  pro- 
testation of  honor."  i  Hoff.  Ch.  Pr. 
240,  note,  citing  Hill  v.  Earl  of  Bute, 
2  Fowl.  II. 

2.  Mix  V.  People,  116  111.  265;  Shep- 
pard  V.  Akers.  i  Tenn.  Ch.  326;  McCor- 
mick  V.  Chamberlin,  11  Paige  (N.  Y.) 
543;  U.  S.  V.  McLaughlin,  24  Fed. Rep. 
823. 

New  Jersey. — But  see  Rvan  v.  Angle- 
sea  R.  Co.  (N.  J.  1888),  '12  Atl.  Rep. 
539,  where  it  was  held  that  under  TWw 
Jersey  statutes  a  person  calling  for  an 
answer  not  under  oath  might  never- 
theless except  to  the  answer  filed. 

3.  Wallace  v.  Wallace,  Halst.  Dig. 
(N.  J.)  173;  Fulton  County  v.  Missis- 
sippi,  etc.,  R.  Co.,  21  111.  365.  Ex- 
ceptions to  the  answer  of  a  corporation 
under  its  corporate  seal  alone,  as  a 
discovery,  will  not  lie,  and  as  a  plead- 
ing would  be  a  useless  form.  Smith 
V.  St.  Louis  Mut.  L.  Ins.  Co.,  2  Tenn. 
Ch.  599. 

Corporation  Required  to  Answer, 
Though  Not  Under  Oath. — In  Gamewell 


Fire  Alarm  Tel.  Co.  v.  Mayor,  31  Fed. 
Rep.  312,  it  was  held  that  although  a 
corporation  cannot  be  compelled  to 
answer  to  a  bill  in  equity  under  cath, 
it  can  be  required  to  answer  and  must 
answer  fully.  Exceptions  in  this  case 
were  sustained.  And  see  Reed  v. 
Cumberland  Mut.  F.  Ins.  Co.,  36  N. 
J.  Eq.  393;  Colgate  v.  Compagnie 
Fran9aise,  23  Blatch.  (U.  S.)  88,  23 
Fed.  Rep.  82;  Hale  v.  Continental  L. 
Ins.  Co.,  16  Fed.  Rep.  718;  Kittredge 
V.  Claremont  Bank,  i  Woodb.  &  M. 
(U.  S.)  244,  3  Story  (U.  S.)  590. 

Voluntary  Answer  of  Corporation  Offi- 
cer.— A  complainant  is  not  entitled  to 
file  exceptions  to  the  voluntary  answer 
of  a  corporation  officer  to  a  judgment 
creditor's  bill,  especially  when  the 
answer  contains  an  express  denial  of 
the  allegations  of  the  bill.  McCreery 
V.  Circuit  Judge,  93  Mich.  463. 

4.  Davison  v.  Att.-Gen.,  5  Price 
398. 

5.  Lucas  V.  Lucas,  13  Ves.  Jr.  274; 
Copeland  v.  Wheeler,  4  Bro.  C.  C. 
256;  Leggett  V.  Sellon,  3  Paige  (N.  Y.) 
84.  See  Bulklev  v.  Van  Wyck,  5 
Paige  (N.  Y.)  536. 

6.  Micklewaithe  v.  Atkinson,  i  Coll. 

173- 

7.  Leftwich  v.  Orne,  i  Freem.  Ch. 
(Miss.)  207. 

8.  Under  the  new  rule  in  equity, 
39th,  where  the  answer  sets  up  a  bar 
to  the  whole  bill,  and  claims  the  benefit 
of  it  as  of  a  plea  in  bar,  it  is  no  longer 
a  ground  of  exception  that  it  does  not 
fully  answer  the  allegations  of  the 
bill.  Gaines  v.  Agnelly,  i  Woods  (U. 
S.)  238. 


900 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,     to  Answew. 


c.  Plea  Standing  for  Answer. — Where  a  plea  is  ordered 
to  stand  for  an  answer,  a  direction  is  frequently  inserted  giving 
the  plaintiff  liberty  to  except.* 

Express  Leave. — And  exceptions  Cannot  be  taken  unless  this  leave 
be  expressly  given.* 

Prohibiting  Exceptions. — The  order  may  of  course  prohibit  the  com- 
plainant from  taking  exceptions.' 

d.  Answer  Accompanied  by  Plea  or  Demurrer. — Where 
an  answer  is  accompanied  by  a  plea  or  demurrer  to  a  part  of  the 


1.  I  Dan.  Ch.  Pr,  (5th  ed.)  701; 
■citing  Glover  v.  Weedon,  3  Jur.  N.  S. 
^3;     Dean    v.    Webster,    15    W.    R. 

395. 

"  Where  the  complainant  is  allowed 
to  except  to  the  answer  for  insufficien- 
cy, the  order  allowing  the  plea  to 
stand  for  an  answer,  with  leave  to  ex- 
cept thereto,  only  implies  that  the 
plea  contains  matters  which,  if  put  in 
the  form  of  an  answer,  would  have 
been  available  as  a  defense  to  the 
whole  or  a  part  of  the  matters  which 
it  professes  to  cover.  But  the  com- 
plainant is  permitted  to  except  to  it, 
as  an  answer,  because  he  is  entitled 
to  a  further  discovery  in  reference  to 
matters  of  the  bill."  McCormick  v. 
Chanjberlin,  11  Paige  (N.  Y.)  543. 

Complainant  Not  Obliged  to  Except. — 
Where  a  plea  is  allowed  to  stand  for 
an  answer,  the  complainant  is  not 
obliged  to  take  exceptions,  although 
the  order  gives  him  leave  so  to  do. 
McCormick  v.  Chamberlin,  11  Paige 
(N.  Y.)  543- 

2.  Order  Silent  as  to  Exceptions. — 
Where  the  defendant  pleaded  to  the 
whole  bill,  and,  on  arguing  the  plea, 
it  was  ordered  to  stand  for  an  answer, 
without  saying  one  way  or  the  other 
whether  the  plaintiff  might  except,  it 
was  held  that  he  could  not,  for  the 
court,  in  ordering  the  plea  to  stand 
for  an  answer,  must  be  understood  to 
have  meant  a  sufficient  answer,  an  in- 
sufficient answer  being  as  none.  Sel- 
lon  V.  Lewen,  3  P.  Wms.  239. 

If  a  Plea  is  Ordered  to  Stand  for  an  an- 
swer, it  is  allowed  to  be  a  sufficient 
answer  to  so  much  of  the  bill  as  it 
covers,  unless,  by  the  order,  liberty  to 
except  is  given  to  the  plaintiff.  Kirby 
V.  Taylor,  6  Johns.  Ch.  (N.  Y.)  242; 
Coke  V.  Wilcocks,  Mos.  73;  Maitland 
V.  Wheeler,  3  Atk.  814.  And  see  Or- 
cutt  V.  Orms,  3  Paige  (N.  Y.)  459; 
McCormick  v.  Chamberlin,  11  Paige 
(N.  Y.)  543;  Goodrich  v.  Pendleton,  3 


Johns.  Ch.  (N.  Y.)  384;  Meeker  v. 
Marsh,  i  N.  J.  Eq.  198. 

Exceptions  to  Part  of  Bill  Not  Covered 
by  Plea. — Where  the  plea  is  to  part 
only  of  a  bill,  and  it  is  accompanied 
by  an  answer  to  the  rest,  an  order 
that  it  may  stand  for  an  answer,  with- 
out giving  the  plaintiff  liberty  to  ex- 
cept, will  not  preclude  the  plaintiff 
from  excepting  to  the  answer  to  that 
part  of  the  bill  which  is  not  covered  by 
the  plea,  i  Dan.  Ch.  Pr.  (5th  ed.)  700; 
Coke  V.  Wilcocks,  Mos.  73;  Ld.  Red. 
304;  Kirby  v.  Taylor,  6  Johns.  Ch. 
(N.  Y.)242. 

Complainant  May  Hove  for  Leave  to  Ex- 
cept.— In  Brien  v.  Jordan,  i  Tenn. 
Ch.  625,  it  was  held,  that  inasmuch  as 
the  practice  of  allowing  a  plea  to 
stand  for  an  answer  was  unusual  in 
Tennessee,  the  complainant  might  move 
for  leave  to  except,  and  the  defendant 
for  leave  to  file  a  more  complete  an- 
swer, if  either  saw  proper  so  to  do. 

3.  Liberty  Qualified. — Thus  the  liberty 
to  except  is  sometimes  qualified,  so 
that  the  defendant  may  be  protected 
from  any  particular  discovery  he  ought 
not  be  called  upon  to  make.  Pusey 
V.  Desbouvrie,  3  P.  Wms.  315; 
Alardes  v.  Campbel,  Bunb.  265; 
Pearse  v.  Dobinson,  L.  R.  i  Eq.  241; 
King  V.  Holcombe,  4  Bro.  C.  C.  439. 
Or  as  to  matters  which  he  is  not  legally 
bound  to  answer.  Orcutt  v.  Orms,  3 
Paige  (N.  Y.)  459;  Brereton  v.  Gamul, 
2  Atk.  240;  Bayley  v.  Adams,  6  Ves. 
Jr.  586. 

Plea  Disallowed  on  Technical  Defect.— 
Where  a  plea,  which  constituted  a  full 
defense  to  a  particular  part  of  the 
bill,  was  disallowed  on  the  ground  of 
technical  defect  or  informality  in  the 
manner  of  pleading,  the  court  permit- 
ted it  to  stand  for  an  answer,  and  pro- 
hibited the  complainant  from  calling, 
by  exceptions,  for  a  further  answer  to 
that  part  of  the  bill.  Leacraft  v. 
Demprey,  4  Paige  (N.  Y.)  124. 


901 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,     to  Answers. 


bill,  exceptions  cannot  be  taken  to  the  answer  till  the  plea  or 
demurrer  has  been  argued,  because  by  so  excepting  the  complain- 
ant would  admit  the  validity  of  the  plea  or  demurrer.* 

Plea  Confined  to  Belief  Prayed. — But  where  the  plea  is  confined  to  the 
relief  prayed,  it  seems  that  exceptions  may  be  taken  to  the  ac- 
companying answer  before  the  plea  is  set  down  for  argument.* 

Plea  or  Demurrer  Overruled.  —  After  the  plea  or  demurrer  accom- 
panied by  an  answer  is  overruled,  the  complainant,  if  he  desires  a 
further  answer,  must  take  exceptions.' 

Allowed. — And  so  he  may  except  upon  their  allowance,  or 

upon  the  allowance  of  a  partial  demurrer,  or  upon  the  overrul- 
ing of  a  partial  plea.'* 

3.  Form. — Care  should  be  exercised  in  drawing  the  exceptions, 
since,  if  mistakes  occur  therein,  no  new  exceptions  can  properly 
be  added.*    They  should  be  in  writing,*  signed  by  counsel,''  and 


1.  I  Dan.  Ch.  Pr.  (5thed.)69i;  Braith- 
waite  Pr.  127,  128;  Darnell  v.  Reyny, 
I  Vern.  344;  Siffkin  v.  Manning,  9 
Paige  (N.  Y.)  222. 

Motion  to  Strike  Case  from  Calendar. — 
When  the  complainant  before  the  ar- 
gument of  the  plea  had  filed  excep- 
tions for  insufficiency  in  the  accom- 
panying answer,  it  was  held  that,  when 
the  plea  was  set  down  for  argument, 
the  defendant  might  have  moved  to 
strike  the  case  from  the  calendar,  on 
the  ground  that  the  filing  of  excep- 
tions admitted  the  goodness  of  the 
plea.  Brownell  v.  Curtis,  10  Paige 
(N.  Y.)  210.  In  this  case  the  language 
of  Lord  Redesdale  is  given  thus : 
"  Where  a  defendant  pleads  or  demurs 
to  any  part  of  the  discovery  sought  by 
the  bill,  and  answers  likewise,  if  the 
complainant  takes  exceptions  to  the 
answer  before  the  plea  or  demurrer 
has  been  argued  and  disallowed,  he 
admits  the  plea  or  demurrer  to  be 
good;  for  unless  he  admits  it  to 
be  good  it  is  impossible  to  determine 
whether  the  answer  is  sufficient  or 
not." 

In  Boyd  v.  Mills,  13  Ves.  Jr.  85, 
where  the  demurrer  was  set  down  for 
argument  after  exceptions  had  been 
filed  to  the  answer,  the  application  was 
to  strike  it  from  the  calendar;  and  the 
court  gave  the  complainant  leave  to 
withdraw  the  exceptions,  on  payment 
of  the  costs  of  the  motion,  and  to 
again  except  if  the  demurrer  were 
allowed. 

2.  I  Dan.  Ch.  Pr.  (5th  ed.)  691,  citing 
Pigot  V.  Stace,  2  Dick.  496;  Sidney  v. 
Perry,  2  Dick.  602. 

3.  Kuyper     v.     Reformed     Dutch 


Church,  6  Paige  (N.  Y.)  570;  Siffkin  v. 
Manning,  9  Paige  (N.  Y.)  222;  Many 
V.  Beekman  Iron  Co.,  9  Paige  (N.  Y.) 
196. 

Exceptions  Proper  as  to  those  Parts  Not 
Covered  by  Demurrer. — If  a  provision, 
that  complainant  have  leave  to  except 
to  the  answer  to  that  part  of  the  bill 
attempted  to  be  covered  by  the  de- 
murrer, be  inserted  in  the  order  over- 
ruling the  demurrer,  this  does  not 
deprive  complainant  of  his  right  to 
except  to  the  answer  to  that  part  of 
the  bill  which  the  demurrer  did  not 
profess  to  cover.  Siffkin  v.  Manning, 
9  Paige  (N.  Y.)  222. 

Time. — Twenty  days  were  allowed 
complainant  within  which  to  except,  in 
Summers  v.  Murray,  3  Edw.  Ch.  (N. 
Y.)  205;  Siffkin  v.  Manning,  9  Paige 
(N.  Y.)  222;  Bragg  v.  Witcomb,  Walk. 
(Mich.)  307.  Thirty  days  were  allowed 
in  Many  v.  Beekman  Iron  Co.,  9  Paige 
(N.  Y.)  196. 

4.  I  Dan.  Ch.  Pr.  (5th  ed.)  761; 
Cotes  V.  Turner,  Bunb.  123;  Story's 
Eq.  PI.  §  866. 

5.  I  Dan.  Ch.  Pr.  (5th  ed.)  764,  re- 
ferring to  Partridge  v.  Haycraft,  11 
Ves.  Jr.  570. 

Amendments. — There  are  cases,  how- 
ever, allowing  the  exceptions  to  be 
amended  on  the  ground  of  mistake. 
Dolder  v.  Bank  of  England,  10  Ves. 
Jr.  284;  Bancroft  v.  Wentworth,  cited 
in  note  to  10  Ves.  Jr.  285;  Northcote 
V.  Northcote,  i  Diclc.  22. 

6.  I  Dan.  Ch.  Pr.  (5th  ed.)  763; 
citing  Beames  78,  181. 

7.  Candler  v.  Partington,  6  Madd. 
72;  Yates  V.  Hardy,  Jac.  223;  Hitch- 
cock   V.    Rhodes,   42   N.    J.    Eq.    495; 


902 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,      to  Answers, 


properly  entitled,*  else  they  may  be  suppressed. 

Should  be  Specific. — Exceptions  for  insufficiency  must  be  specific,* 
and  should  state  the  particular  points  or  matters  which  are  unan- 
swered or  imperfectly  answered.* 

Mode  Discretionary. — The  mode  in  which  the  insufficiency  shall  be 
pointed  out  seems  to  be  discretionary  with  the  court.* 

4.  Time. — The  time  allowed  for  taking  exceptions  is  in  some 
cases  governed  by  order  or  rule  of  court,*  in  others  it  is  prescribed 


Cross  V.  Cohen,  3  Gill  (Md.)  257; 
Stephens  Eq.  PI.  §  864;  Mitf.  Eq.  PI. 
(Jeremy)3i3;  37  Me.  583;  Rule  8,  Chan- 
cery Rules. 

If  the  Exceptions  Are  Not  Signed  by 
counsel'  they  may.  on  motion,  with 
notice  to  the  plaintiff,  be  striken  from 
the   files.     I    Dan.    Ch.    Pr.   (5th  ed.) 

763. 

1.  I  Barb.  Ch.  Pr.  (2d  ed.)  181,  citing 
Williams  v.  Davis,  i  Sim.  &  Stu.  426. 

2.  Turnage  v.  Fisk,  22  Ark.  286. 
Exception  Too  General. — An  objection 

to  an  answer  on  the  ground  that  it  is 
without  fulness  and  particularity, 
and  not  according  to  the  best  of  de- 
fendant's knowledge,  information,  re- 
membrance, and  belief,  is  too  general. 
Mutual  L.  Ins.  Co.  v.  Cokefair,  41  N. 
J.  Eq.  142. 

3.  Stafford  v.  Brown,  4  Paige  (N.  Y. ) 
88;  Buloid  v.  Miller,  4  Paige  (N.  Y.) 
473;  Baker  v.  Kingsland,  3  Edw.  Ch. 
(N.  Y.)  138;  Mix.  V.  People,  116  111. 
265;  Hodgson  V.  Butterfield,  2  Sim.  & 
Stu.  236. 

What  Should  be  Stated. — Exceptions 
for  insufficiency  should  state  the 
charges  in  the  bill,  the  interrogatory 
applicable  thereto  to  which  the  an- 
swer is  responsive,  and  the  terms  of 
the  answer  verbatim,  so  that  the  court 
may  see  whether  it  is  sufficient  or  not. 
Brooks  V.  Byam,  i  Story  (U.  S.)  296; 
Fuller  V.  Knapp,  24  Fed.  Rep.  100 ; 
Bower  Barff  Rustless  Iron  Co.  v. 
Wells  Rustless  Iron  Co.,  43  Fed.  Rep. 
391;  Richardson  v.  Donehoo,  16  W.  Va. 
685.  See  Woodroffe  v.  Daniel,  10  Sim. 
243;  Brown  v.  Keating,  2  Beav.  581; 
Esdaile  v.  Molyneux,  i  De  G.  &  S.  218; 
Hodgson  V.  Butterfield,  2  Sim.  &  Stu. 
236;  Duke  of  Brunswick  v.  Duke  of 
Cambridge,  12  Beav.  279.  See  also 
Higginson  v.  Blockley,  i  Jur.  N.  S. 
1104,  25  L.  J.  Ch.  74  V.  C.  K.  And 
they  must  specify  that  the  answer 
complained  of  was  an  answer  to  the 
bill.  I  Dan.  Ch.  Pr.  (5th  ed.)  763; 
Earl  of  Lichfield  v.  Bond,  5  Beav.  513, 
6  Jur.  1076. 


Extracts  from  Answer  Not  Sufficient. — 
Exceptions  to  an  answer  for  insuffi- 
ciency should  refer  pointedly  to  the 
bill.  It  is  not  enough  to  give  mere 
extracts  from  the  answer  and  declare 
them  insufficient.  Baker  v.  Kings- 
land,  3  Edw.  Ch.  (N.  Y.)  138. 

Exception  Having  No  Point  Disallowed. 
— An  exception  having  no  point,  and 
which  would  compel  the  court  to  find 
out  what  was  required  to  be  answered, 
will  be  disallowed.  McKeen  v.  Field, 
4  Edw.  Ch.  (N.  Y.)  379. 

Several  Questions  in  One  Interrogatory. 
Where  several  questions  are  comprised 
in  one  interrogatory,  the  unanswered 
questions  only  should  be  included  in 
the  exceptions,  i  Dan.  Ch.  Pr.  {5th 
ed.)  764;  Higginson  «».  Blockley,  i  Jur. 
N.  S.  1104,  V.  C.  K.  See,  however, 
Hambrook  v.  Smith,  17  Sim.  209,  16 
Jur.  144;  Hoffman  v.  Postill,  L.  R.  4 
Ch.  App.  681. 

For  forms  of  exceptions,  see  Lang- 
don  V.  Goddard,  3  Story  (U.  S.)  13; 
Kittredge  v.  Claremont  Bank,  3  Story 
(U.  S.)  590. 

4.  Craig  v.  Sebrell,  9  Gratt.  (Va.) 
131.  In  this  case  it  was  said  that, 
even  if  the  form  of  exceptions  is  not 
discretionary,  yet,  if  they  are  sus- 
tained and  a  further  answer  is  filed, 
the  objections  will  be  waived. 

5.  By  Order  or  Kule  of  Court. — Illinois. 
— All  exceptions  to  answers  or  to  in- 
terrogatories exhibited  shall  be  filed 
within  such  time  as  the  court  may  di- 
rect, and  be  argued  within  such  time 
as  may  be  fixed  by  the  court.  Rev. 
Sts.  111.  (1845)  p.  96,  sec.  30;  Rev.  Sts. 
111.  (1893),  p.  220,  sec.  27. 

Nt'w  Jersey. — By  the  eleventh  Rule 
of  this  court,  exceptions  for  insuffi- 
ciency shall  not  be  entered  until  six 
days  after  service  of  a  copy  of  the  ex- 
ceptions on  the  defendant  or  his  solici- 
tor. Wyckoff  V.  Cochran,  4  N.  J.  Eq. 
420. 

Ten  Days  Allowed  by  Court. — An  an- 
swer from  China  being  objected  to  as 
not   responsive   to  all   the   charges  of 


903 


Exceptions        ANSWERS  IN  EQUITY  PLEADING.      to  Answers. 


by  statute,^ 

Enlarging  Time. — But  the  court  may,  for  good  cause  shown,  en- 
large tiie  time.*^ 

Exceptions  Not  Filed  in  Time.— If  the  exceptions  are  not  filed  within 
the  prescribed  period,  the  answer  will  be  deemed  sufificient.^ 

After  Replication. — Exceptions  cannot  be  taken  after  replication 
filed.* 

In  Appellate  Conrt. — And,  a  fortiori,  when  no  exceptions  were 
taken  in  the  court  below,  it  is  too  late  to  make  objection  in  the 
appellate  court.* 


the  bill,  the  court  directed  the  plain- 
tiff to  file  his  exceptions  within  ten 
days.      Read    v.    Consequa,    4   Wash. 

(U.S.)  335. 

No  Rule  to  Reply. — The  complainant 
may  file  exceptions  to  the  defendant's 
answer  although  two  months  have 
elapsed  since  the  answer  was  put  in, 
if  the  defendant  has  not  left  a  rule  to 
reply.  Brent  v.  Venable,  3  Cranch 
(C.  C.)  227. 

1.  By  Statute. — Alabama. — Excep- 
tions to  answers  must  be  made  within 
sixty  days  after  the  same  are  filed. 
Code  Ala.  (1886)  sec.  3457. 

New  Jersey. — The  complainant  shall 
file  exceptions  or  a  replication,  or  set 
down  the  cause  for  hearing  upon  bill 
and  answer,  within  thirty  days  after 
the  expiration  of  the  time  limited  or 
granted  for  filing  the  answer;  or  on 
failure  thereof  his  bill  shall  be  dis- 
missed, with  costs,  unless  good  cause 
be  shown  to  the  contrary.  Chan. 
Acts  N.  J.  (Ridley)  sec.  33;  Wyckoff  v. 
Cochran,  4  N.  J.  Eq.  420. 

Mississippi. — Exceptions  to  answers 
must  be  filed  at  or  before  the  next 
term  after  the  answer  has  been  filed. 
Rev.  Code  Miss.  (1880)  sec.  1891. 

Tennessee. — Twenty  days  are  al- 
lowed within  which  to  file  exceptions. 
Code  Tenn.  (18S4)  sec.  5143. 

2.  Time  Prescribed  May  be  Changed. — 
The  time  allowed  for  filing  exceptions 
is  limited  by  the  act  of  1801,  ch.  6,  § 
24,  and  the  23rd  Rule  of  chancery 
practice,  but  these  are  not  so  impera- 
tive and  inflexible  in  their  nature  that 
the  chancellor,  upon  sufficient  cause 
shown,  may  not  relax  them  and  per- 
mit the  exceptions  to  be  filed  after  the 
time  so  limited.  Marsh  v.  Crawford, 
I  Swan  (Tenn.)  116. 

Withdrawal  of  Exceptions. — Where 
the  complainant  allows  the  time  fixed 
by  rule  of  court  for  setting  down 
exceptions  to  pass  by,  and  the  court, 
after  examining  the  exceptions,  is  of 


opinion  that  the  cause  will  be  more 
speedily  determined  by  a  withdrawal 
of  the  exceptions,  the  time  will  not  be 
enlarged,  though  good  cause  be  shown, 
but  the  complainant  will  be  allowed  to 
withdraw  the  exceptions,  and  to  reply 
to  the  answer.  American  L.  &  T.  Co. 
V.  East,  etc.,  R.  Co.,  40  Fed.  Rep.  3S4. 

Special  Application  for  Enlarging  Time. 
— A  chamber  order  allowing  the  com- 
plainant further  time  to  file  exceptions 
does  not  operate  so  as  to  enlarge  the 
time  within  which  exceptions  must  be 
filed  to  prevent  an  application  for  the 
dissolution  of  an  injunction  upon  bill 
and  answer.  If  it  is  desired  to  extend 
the  time  for  excepting  beyond  the  ten 
days  allowed,  there  must  be  a  special 
application  to  the  court,  upon  due 
notice  to  the  adverse  party.  Wake- 
man  V.  Gillespy,  5  Paige  (N.  Y.)  112. 

Moving  to  Discharge  Writ  of  Ne  Exeat 
before  Time  for  Filing  Exceptions  Had 
Expired. — Though  the  plaintiff  has  a 
certain  time  allowed  him  to  except  to 
the  answer  to  a  bill  for  a  ne  exeat, 
it  is  not  in  all  cases  necessary  for  the 
defendant  to  await  the  expiration  of 
that  time  before  moving,  on  the 
ground  of  the  answer,  for  a  discharge 
of  the  writ.  Thorn  z/.  Halsey,  7  Johns. 
Ch.  (N.  Y.)  189. 

3.  Pierce  v.  Brown,  7  Wall.  (U.  S.) 
205;  Siffkin  V.  Manning,  9  Paige  (N. 

Y.)222. 

Tennessee.  —  If  the  plaintiff  fail  to 
except  within  said  time  (twenty  days 
after  answer  filed),  the  cause  shall  be 
at  issue,  and  stand  for  trial  at  the  first 
term  after  the  answer  is  filed.  Code 
Tenn. (1884) §  5144. 

4.  Coleman  v.  Lynn,  4  Rand.  (Va.) 

454- 

Answer  Not  Regularly  Filed. — Excep- 
tions to  an  answer,  where  the  answer 
is  not  regularly  filed,  may  be  filed  at 
anytime  before  replication.  Knowles 
V.  Gwinnup,  MS.  (N.  J.)  Jan.  1828. 

6.  Arnold  v.  Slaughter, 36  W.Va.598. 


904 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 


Final  Hearing. — Or  after  the  cause  is  opened  upon  the  final  hear- 


ing. 


After  Reference  for  Impertinence. —  Exceptions  for  insufficiency  may 
now  be  filed  after  a  reference  for  impertinence.* 

5.  Proceedings. — The  exceptions  having  been  properly  drawn 
and  signed  by  counsel,  in  the  manner  already  indicated,  are 
in  the  next  place  to  be  endorsed  and  filed  in  the  proper  office, 
and  a  copy  is  to  be  served  upon  the  defendant  or  his  solicitor.' 

Setting  Down  for  Hearing. — And  if  the  defendant  does  not  submit 
to  the  exceptions,  he  may  set  them  down  for  hearing.'* 

Two  Defendants. — Where  two  or  more  defendants  put  in  a  joint 
and  several  answer,  which  is  excepted  to  for  insufficiency,  and  one 
or  more  of  them  submit  to  the  exceptions,  the  others  may  have 
them  argued.* 

Disposal  of  Exceptions. — When  exceptions  are  filed  to  an  answer 
they  must  be  disposed  of  before  any  further  proceedings  can  take 
place  in  the  cause.®  The  manner  of  disposing  of  exceptions  va- 
ries in  different  jurisdictions,  in  some  being  referred  in  the  first 


1.  Severns  v.  Hill,  3  Bibb  (Ky.)  240. 

2.  Patriotic  Bank  v.  Bank  of  Wash- 
ington, 5  Cranch  (C.  C.)  602. 

English  Practice — Present  Practice. — 
By  the  English  practice,  scandal  and 
impertinence  in  an  answer  must  be 
disposed  of  before  its  sufficiency  can 
be  considered  ;  but  here,  exceptions 
for  insufficiency  and  impertinence  may 
be  filed  and  acted  on  together.  John- 
son V.  Tucker,  2  Tenn.  Ch.  244. 

3.  Barb.  Ch.  Pr.  (2ded.)i85. 

New  York. — On  taking  exceptions,  it 
was  the  duty  of  the  complainant,  in 
addition  to  the  entry  of  the  order  of 
reference,  to  either  serve  a  copy  of  the 
order  or  a  notice  that  it  has  been 
entered;  or  he  had  to  take  out  a  sum- 
mons to  proceed  upon  the  exceptions, 
and  serve  the  same  within  the  ten  days 
specified  in  the  fifty-first  Rule  of  the 
Court  of  Chancery,  or  the  exceptions 
were  considered  as  abandoned. 
Joslin  V.  Joslin,  i  Chan.  Sent.  (N.  Y.) 
55;  Peale  v.  Bloomer,  8  Paige  (N.  Y.) 
78. 

New  Hampshire. — Exceptions  will  be 
deemed  waived  unless  allowed  and 
delivered  to  the  defendant's  solicitor 
within  one  month  from  the  delivery  of 
the  answer,  or  unless  further  time  be 
allowed  by  the  justice.  38  N.  H.  609; 
Rule  20,  Chan.  Rules. 

4.  I  Dan.  Ch.  Pr.  (5th  ed.)  767. 
Exceptions  to  Part  of  Answer  Sustained. 

—  Where    exceptions    to    part    of    the 
-answer  are  filed  and   sustained,  all  of 


the  answer  not  affected  by  such  excep- 
tions is  left  standing  in  the  cause. 
Hemphill  v.  Miller,  16  Ark.  271. 

If  defendant,  in  such  case,  does  not 
ask  leave  to  amend  his  answer,  it  is 
not  error  to  proceed  to  hear  the  case 
on  the  bill  and  so  much  of  the  answer 
as  is  not  excepted  to.  Chapman  v. 
Pittsburg,  etc.,  R.  Co.,  26  W.  Va.  300. 

Virginia  and  West  Virginia. — When 
the  plaintiff  files  exceptions ,  to  an  an- 
swer, they  shall  at  once  be^set  down 
to  be  argued.  Code  Va.  (1887)  sec. 
3276;  Code  W.  Va.  (1887)  p.  790,  sec. 
54- 

5.  I  Dan.  Ch.  Pr.  (5th  ed.)  767,  citing 
Hinde268;  Wyatt  Pr.  204. 

6.  Clarke  v.  Tinsley,  4  Rand.  (Va.) 
250.  Strictly  speaking,  the  court 
should  expressly  pass  upon  the  excep- 
tions filed  to  an  answer  before  proceed- 
ing to  finally  hear  the  case.  But  if  the 
exceptions  are  insufficient  on  their  face, 
or  if  the  allegation,  charge,-  or  inter- 
rogatory alleged  not  to  be  sufficiently 
answered  is  not  material,  or  if  it  ap- 
pears that  the  allegation  is  sufficiently 
answered,  and  that  the  court  ought  to 
have  disallowed  or  annulled  theexcep- 
tions  for  either  of  said  causes,  and  the 
court  sees  that  the  plaintiff  is  not  prej- 
udiced by  the  court  below  proceeding 
to  finally  hear  the  case,  the  final  decree 
will  not  be  reversed  merely  because 
the  court  below  did  not  expressly  pass 
upon  such  exceptions.  Richardson  v. 
Donehoo,  16  W.  Va.  685. 


905 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 


instance  to  a  master,*  in  others  being  decided  upon  directly  by 
tiie  court.* 

Allowed  in  Part. — Exceptions  for  insufficiency  may  be  allowed  in 
part  and  overruled  in  part.* 

Appeal. — The  defendant  is  entitled  to  a  writ  of  error  to  reverse 
the  order  of  the  court  below,  sustaining  exceptions  to  the  suffi- 
ciency of  his  answer.* 

When  Disallowed. — Where  exceptions  are  disallowed,  and  no  rep 
lication  is  filed,  the  answer  will  be  taken  as  true.' 


1.  New  York — Tennessee — Vermont. — 

In  A'ew  York,  Tennessee,  Vermont,  and 
some  of  the  other  states  exceptions 
are  referred  to  a  master  in  the  first 
instance,  with  an  appeal  to  the  chan- 
cellor. Byington  v.  Wood,  i  Paige 
(N.  Y.)  145;  Wood  V.  McFerrin,  2 
Baxt.  (Tenn.)  493;  Hunt  v.  Gookin,  6 
Vt.  462.  See  Davis  v.  Davis,  2  Atk. 
24. 

New  Jersey. — By  statute  in  New 
Jersey  it  is  provided  that,  when  ex- 
ceptions shall  be  filed  to  an  answer,  a 
rule  may  be  entered,  of  course,  with 
the  clerk,  either  in  term  time  or  in  va- 
cation, to  refer  the  same  to  a  master  of 
the  court,  who  shall  decide  and  report 
upon  them  within  thirty  days  after 
they  are  filed;  but  that  an  appeal 
from  such  report  shall  be  allowed,  to 
the  chancellor,  who  shall  hear  and 
determine  the  same  at  the  next  term 
or  at  such  times  as  the  chancellor, 
upon  the  application  of  either  party, 
shall  appoint.  Chancery  Acts  N.  J. 
(Ridley)  sec.  34;  Wyckoff  v.  Cochran, 
4  N.  J.  Eq.  420. 

In  Camden,  etc.,  R.  Co.  v.  Stewart, 
19  N.  J.  Eq.  345,  however,  it  was  held 
that  the  above  provisions  were  for 
the  relief  of  the  court,  and  that  con- 
sequently exceptions  might  be  heard 
directly  by  the  chancellor  at  his  op- 
tion. 

West  Virginia. — In  West  Virginia 
there  may  be  a  reference  to  a  com- 
missioner in  the  discretion  of  the  Cir- 
cuit Court.  Arnold  v.  Slaughter,  36 
W.  Va.  589. 

Mississippi. — When  exceptions  shall 
be  filed  in  vacation,  the  clerk  shall 
refer  the  same  to  a  master.  Excep- 
tions filed  in  term  time  shall  be  set 
down  on  the  motion  docket  by  the 
party  excepting,  and  be  disposed  of  if 
possible  during  such  term.  Rev.  Code 
Miss.  (1880)  sec.  1891. 

South  Carolina. — In  South  Carolina  ex- 
ceptions may  be  heard  and  decided  by 
the  court  without  any  reference  to  a 


master,  Wardlaw,  Ch.,  saying:  "The 
chancellor  is  the  court,  and  he  may  if 
he  chooses  dispense  altogether  with 
the  aid  of  the  master."  Sattervvhite 
V.    Davenport,   10  Rich.  Eq.  (S.   Car.) 

305- 

New  Hampshire. — In  New  Hampshire 
exceptions  may  be  allowed  by  a  jus- 
tice. 38  N.  H.  609,  Rule  20,  Chan, 
Rules. 

For  proceedings  on  exceptions  when 
referred  to  master,  see  article  Refer- 
ences. 

2.  Practice  in  Federal  Courts. — Under 
the  63rd  Rule  of  equity  practice,  ex- 
ceptions to  an  answer  for  insufficiency 
must  be  set  down  on  a  rule  day  for 
hearing  before  a  judge  of  the  court. 
A  reference  of  such  exceptions  on  a 
day  not  a  rule  day,  and  to  a  master 
instead  of  a  judge  of  the  court,  is,  un- 
less cured  by  some  subsequent  action 
of  the  court,  a  nullity,  and  is  an  aban- 
donmerit  of  the  exceptions.  La  Vega 
V.  Lapsley,  i  Woods  (U.  S.)  428. 

3.  I  Dan.  Ch.  Pr.  (5th  ed.)  764;  i 
Barb.  Ch.  Pr.  (2nd  ed.)  182;  East  India 
Co.  V.  Campbell,  i  Ves.  247. 

4.  Rutherford  v.  Cleghorn,  26  Ga. 
154. 

Exception  for  Insufficiency  Resembles 
Demurrer. — An  exception  to  an  an- 
swer for  insufficiency  is  in  the  nature 
of  a  demurrer,  and  admits  the  truth  of 
the  matters  excepted  to  ;  and  it  is 
error  for  the  court  to  sustain  an  excep- 
tion to  a  matteralleged  in  the  answer, 
which,  if  true,  would  be  a  proper 
ground  of  defense  to  the  bill  in  whole 
or  in  part.  Blair  v.  Core,  20  W.  V'a. 
265.  Exceptions  for  insufficiency 
necessarily  assume  that  the  answer  is 
valid,  and  properly  before  the  court, 
Vermilya  v.  Christie,  4  Sandf.  Ch.  (N. 
Y.)  376. 

5.  Prettyman  v.  Barnard,  37  111.  105. 
This  rule,  however,  applies  only  when 
the  exceptions  are  disallowed,  not 
when  they  are  sustained.  Mix  v. 
People,  116  111.  265. 


906 


Exceptions       ANSWERS  IN  EQUITY  PLEADING,     to  Answers, 


Heading  at  Trial.— Exceptions  to  an  answer  in  equity  are  a  part  of 
the  pleadings  in  the  case,  and  as  such  may  be  read  on  the  trial.* 

Injunctions. — The  filing  of  exceptions  is  of  itself  no  objection  to 
the  dissolution  of  an  injunction  ;*  and  a  motion  to  dissolve  an  in- 
junction and  exceptions  to  an  answer  may  be  taken  up  and  de- 
cided at  the  same  time.* 

6.  Further  Answer — a.  Procedure. — If  the  exceptions  taken  to 
the  answer  are  sustained,  the  proper  practice  is  to  take  a  rule  upon 
the  defendant  to  file  a  further  answer,*     But  he  can  be  required 

"  If  interrogatories  stated  in  a  bill 
are  not  answered,  the  complainant  has 
a  right  to  except  to  the  answer,  and  if 
the  interrogatories  are  proper,  the  de- 
fendant will  be  compelled  to  answer 
plainly,  fully,  and  e.xplicitly.  If  then 
any  material  matter,  charged  in  the 
complainant's  bill,  has  been  neither 
denied  nor  admitted  by  the  answers,  it 
stands  on  hearing  of  the  cause  for 
naught."  Hanson,  C,  in  Hopkins  v. 
Stump,  2  Har.  &  J.  (Md.)305. 

1.  Riggins  f .  Brown,  I2  Ga.  271. 

2.  The  court  will  consider  the  excep- 
tions only  for  the  purpose  of  ascertain- 
ing whether  they  relate  to  those  parts 
of  the  bill  on  which  the  injunction 
rests.  Stitt  v.  Hilton,  31  N.  J.  Eq. 
285;  Robert  v.  Hodge,  16  N.  J.  Eq. 
299;  Doe  V.  Roe,   Hopk.  (N.  Y.)  276. 

Equity  of  Bill  Fully  Answered. — The 
filing  of  exceptions  constitutes  no  ob- 
jection to  the  dissolution  of  an  injunc- 
tion, if  the  equity  of  the  bill  upon 
which  the  injunction  rests  has  been 
fully  answered.  McGee  v.  Smith,  16 
N.  J.  Eq.  462.  And  see  Mitchell  v. 
Mitchell,  20  N.  J.  Eq.  234,  in  which  it 
is  said  that  the  English  rule  that  ex- 
ceptions, undisposed  of,  are  a  bar  to 
the  dissolution  of  an  injunction  upon 
the  denials  of  the  answer,  has  not 
been  adopted  in  N.  J. 

Exceptions  Submitted  to  or  Allowed  by 
a  Master  — Exceptions  to  the  answer  of 
one  of  the  defendants,  if  submitted  to 
by  the  defendant,  or  if  allowed  by  a 
master,  are  a  good  answer  to  amotion 
to  dissolve  an  injunction,  if  the  excep- 
tions go  to  the  merits  of  the  case  on 
which  the  injunction  rests.  If  not  sub- 
mitted to  or  not  allowed  by  a  master, 
they  are  no  answer  to  the  motion,  and 
the  court  will  look  into  them  and  see 
that  they  are  not  frivolous.  Noble  v. 
Wilson,  I  Paige  (N.  Y.)  164. 

Notice  of  Application  to  Dissolve  In- 
junction.— It  is  irregular  for  a  party  to 
give  notice  of  an  application  to  dis- 
solve an  injunction  for  a  time  which  is 

907 


within  the  ten  days  allowed  by  the  38th 
Rule  for  excepting  to  the  answer, 
since,  by  the  39th  Rule,  the  motion 
could  not  be  heard  within  that  time. 
Satterlee  v.  Bargy,  3  Paige  (N.  Y.) 
142.  But  the  provisions  of  the  39th. 
Rule  are  not  applicable  to  the  case  of 
an  answer  to  which  the  oath  has  been 
waived,  and  which  therefore  cannot 
be  excepted  to  for  insufficiency.  Liv- 
ingston V.  Livingston,  4  Paige  (N.  Y.) 
III. 

When  Motion  to  Dissolve  Injunctioa 
May  be  Made. — Exceptions  being  filed 
within  the  time  allowed  by  the  38th 
Rule,  it  was  not  in  order  to  make  the 
motion  to  dissolve  the  injunction,  on 
bill  and  answer,  until  after  the  time 
for  obtaining  the  master's  report  on  the 
exceptions  had  expired.  Parker  v. 
Wil  iams,  4  Paige  (N.  Y.)  439. 

3.  Wyckoff  V.  Cochran,  4  N.  J.  Eq. 
420;  Keighler  v.  Savage  Mfg.  Co.,  12 
Md.  383,  71  Am.  Dec.  600;  Salmon  v. 
Clagett,  3  Bland  (Md.)  125;  Gibson  v. 
Tilton,  I  Bland  (Md.)  352,  17  Am.  Dec. 
306;  Alexander  z*.  Alexander,  MS.  Dec. 
13,  1817. 

Injunction  Obtained  Before  Answer 
Filed. — Where  the  plaintiff  before  an- 
swer obtains  an  injunction,  and,  when 
the  answer  is  put  in,  excepts  to  the 
same,  he  cannot  move  to  refer  excep- 
tions instanter.  Candler  v.  Parting- 
ton, 6  Madd.  72. 

4.  Craig  v.  People,  47  111.  487.  The 
Illinois  statute  is  imperative  ;  if  on  ex- 
ceptions filed  an  answer  is  adjudged  in- 
sufficient, the  defendant  must  be  ruled 
to  answer  further  before  the  cause  can 
be  set  down  for  hearing.  Holly  v. 
Powell,  63  111.  139;  Stone,  z/.  Moore,  26 
111.  165. 

Order  for  Further  Answer. — "  If  all  the 
exceptions  to  the  answer  are  submitted 
to  by  the  defendant,  or  a  part  are  sub- 
mitted to  and  the  rest  abandoned,  or 
on  a  reference  to  a  master  are  disal- 
lowed, the  complainant  may  have  an 
order   of   course   that   the   defendant 


:Exceptioiis       ANSWERS  IN  EQUITY  PLEADING,      to  Answers. 


to  answer  over  only  so  far  as  the  exceptions  extend.* 

Filing  Further  Answer. — If  the  further  answer  be  not  filed  within 
the  time  prescribed,*  the  bill  may  be  taken  as  confessed.' 


put  in  a  further  answer  within  twenty 
days  after  notice  of  the  order,  and 
pay  the  costs  of  the  exceptions,  or  that 
an  attachment  issue,  or  that  the  bill 
be  taken  as  confessed,  at  the  election 
of  the  complainant."  i  Barb.  Ch.  Pr. 
(2d  ed.)  193. 

Answer  Cannot  be  Taken  from  Files. — 
Even  the  court  cannot  order  an  answer 
to  be  taken  from  the  files  after  excep- 
tions to  it,  notwithstanding  the  an- 
swer be  evasive.  In  mere  matters  of 
form  or  mistakes  of  dates,  etc.,  an 
answer  may  be  taken  from  the  files 
and  amended,  but  it  is  not  allowed  to 
make  any  material  alterations  in  it. 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  366. 

No  Right  to  Further  Answer  Till  Re- 
port of  Master  Disposed  of. — Until  ex- 
ceptions to  the  report  of  a  master  dis- 
allowing some  of  the  exceptions  and 
allowing  others  were  disposed  of  by 
order  of  court,  the  complainant  had  no 
more  right  to  call  for  a  further  answer 
as  to  the  exceptions  allowed  than  he 
had  before  the  decision  of  the  court 
below,  disallowing  the  exceptions  to 
the  master's  report,  was  pronounced. 
New  York  F.  Ins.  Co.  v.  Lawrence,  6 
Paige  (N.  Y.)  511.  See  Whitney  v. 
Belden,  4  Paige  (N.  Y.)  140. 

Before  Exceptions  for  Impertinence  Dis- 
posed of. — An  order  maybe  entered  for 
a  further  answer  upon  exceptions  for 
insufficiency  submitted  to,  before  ex- 
ceptions for  impertinence  are  disposed 
of.  Lawrence  v.  Lawrence,  4  Edw. 
Ch.  (N.  Y.)  357. 

1.  Pegg  V.  Davis,  2  Blackf.  (Ind.) 

23l. 

Answer  May  Be  Perfected. — The  de- 
fendant may,  if  he  chooses,  make  his 
answer  perfect,  though  the  exceptions 
do  not  extend  to  all  the  matters  in  the 
original  answer  which  might  have 
been  objected  to  as  insufficient.  Al- 
derman V.  Potter,  6  Paige  (N.  Y.)  658. 

And  the  complainant  has  no  right 
to  treat  it  as  an  answer  to  the  excep- 
tions only;  but  if  the  new  answer  is 
insufficient,  he  must  file  new  excep- 
tions. Hall  V.  Wood,  I  Paige  (N.  Y.) 
404. 

2.  Tennessee. — Exceptions  filed  shall 
be  acted  on  by  the  clerk  within  ten 
days,  and  if  they  are  allowed  he  shall, 


by  letter  or  otherwise,  notify  the  de- 
fendant's solicitor  to  file  a  sufficient 
answer  within  thirty  days,  from  which 
order  the  defendant  may  within  said 
time  appeal.  Code  Tenn.  (1884)  § 
5i45-_ 

Maine.  —  If  a  further  answer  be 
directed,  it  shall  be  made  within 
twenty  days  after  notice  that  it  has 
been  directed.  37  Me.  583,  Rule  8, 
Chan.  Rules. 

Florida. — The  complainant  may  enter 
a  rule  with  the  clerk  that  the  defend- 
ant make  a  better  answer  before  the 
next  succeeding  rule  day,  notice  of 
which  rule  and  the  filing  of  e.xceptions 
shall  be  served  upon  the  defendant  or 
his  solicitor.  If  this  rule  is  not  com- 
plied with  the  bill  may  be  taken  for 
confessed.  Rev.  Sts.  Fla.  (1892)  § 
1417. 

Time  May  Be  Enlarged. — If  the  de- 
fendant finds  that  he  is  unable  to  file 
his  further  answer  within  the  time 
prescribed  by  the  master,  he  may 
have  the  time  enlarged  on  application 
to  the  court.  i  Barb.  Ch.  Pr.  (2d 
ed.)  194. 

3.  Craig  v.  People,  47  111.  487;  Work 
V.  Hall,  79  111.  196;  Mayer  v.  Tyson,  i 
Bland.  (Md.)  559;  Lea  v.  Vanbibber,  6 
Humph.  (Tenn.)  181^  Code  Tenn.  (1884) 
§  5150;  I  Barb.  Ch.  Pr.  (2d  ed.)  194. 

Bill  Taken  as  Confessed. — Exceptions 
had  been  taken  to  the  answer,  but  de- 
fendant had  neglected  to  answer  fur- 
ther. A  motion  was  granted  that  he 
answer  within  thirty  days,  or  that  the 
parts  of  the  bill  alleged  by  the  excep- 
tions to  be  not  sufficiently  answered 
be  taken  as  confessed.  Weaver  v. 
Livingston,  Hopk.  (N.  Y.)  595. 

Refusal  to  Answer  After  Second  Answer 
Filed. — Where  defendant's  answer  was 
excepted  to  for  insufficiency,  and  he 
made  a  second  answer,  which  was 
also  excepted  to,  and  the  defendant 
refused  to  again  answer,  the  bill  was 
taken  for  confessed  as  to  those  parts 
covered  by  the  exceptions.  Cum- 
mings  V.  Corey,  58  Mich.  494. 

Defendant  Not  Entitled  to  Same  Dis- 
covery by  Pro  Confesso  Order. — If  excep- 
tion to  an  answer  for  insufficiency  is 
overruled,  the  complainant  is  not  en- 
titled to  the  same  discovery  by  means 
of  a  pro  confesso  order  upon  the  same 


908 


Exceptions        ANSWERS  IN  EQUITY  PLEADING,     to  Answers.. 


Further  Answer  Also  Insufficient. — If  the  defendant  puts  in  a  further 
answer,  which  also  is  adjudged  insufficient,  he  may,  in  some  juris- 
dictions, be  examined  upon  interrogatories,  being  committed  until 
he  answers  them  ;  or  the  complainant  may  take  the  h'xW  pro  coii- 
fesso.^ 

b.  Form. — The  form  of  the  further  answer  is  similar  to  that  of 
the  original  answer,*  and  it  should  be  prepared,  signed,  and  filed 
in  like  manner.* 

c.  New  Exceptions.  —  New  exceptions  for  insufficiency, 
founded  upon  the  matter  of  the  original  bill,  cannot  be  taken  to 
the  further  answer.*  If  the  further  answer  is  insufficient,  it  must 
be  referred  back  upon  the  old  exceptions.* 


grounds  of  insufficiency.  Smith  v.  St. 
Louis  Mut.  L.  Ins.  Co.,  2  Tenn.  Ch. 
604. 

Decree  Without  Regard  to  Answer  Is 
Error. — If  a  defendant  makes  full  and 
perfect  answer,  and  upon  exceptions 
thereto  the  chancellor  adjudges  it 
insufficient,  and  proceeds  to  decree 
finally  upon  the  bill  and  order  pro 
confesso,  disregarding  the  answer,  that 
is  error  which  the  Supreme  Court  will 
revise.  Marsh  v.  Crawford,  i  Swan. 
(Tenn.)  116. 

1.  Code  Va.  (18S7)  sec.  3277;  Code 
W.  Va.  (1887)  p.  790,  sec.  55. 

Third  Answer  Insufficient. — If  a  third 
answer  is  reported  insufficient  on  the 
original  exceptions,  the  complainant 
may  have  an  order  of  course  for  an  at- 
tachment against  the  defendant.  i 
Barb.  Ch.  Pr.  (2d  ed.)  198. 

English  Practice. — After  filing  four 
insufficient  answers  the  English  prac- 
tice was  to  commit  the  defendant  to 
prison  for  contempt,  and  compel  him  to 
answer  written  interrogatories  pre- 
pared by  plaintiff's  counsel  and  settled 
by  the  master,  i  Dan.  Ch.  Pr.  (5th 
ed.)  771  :  Farquharson  v.  Balfour,  T.  & 
R.  184;  Langdell  Eq.  PI.  64. 

2.  "The  title  of  it  must  correspond 
with  the  order  under  which  it  is  put  in; 
and  if  there  are  no  amendments,  it 
should  be  entitled  'The  further  an- 
swer of  the  defendant  C.  D.  to  the 
original  bill  of  complaint  of  the  com- 
plainant.' If  there  are  amendments,  it 
should  be,  '  The  further  answer  of  the 
defendant  C.  D.  to  the  original  bill  of 
complaint,  and  the  answer  of  the  same 
defendant  to  the  amended  bill  of  the 
complainant.'"  i  Barb.  Ch.  Pr.  (2d 
ed.)  197. 

What  is  Further  Answer. — The  further 
answer  is  understood  to  mean  a  formal 
answer,  specially  directed  to  the  mat- 


ters excepted  to,  and  to  supply  the  de- 
ficiencies of  the  first  answer.  Fulton 
County  V.  Mississippi,  etc.,  R.  Co.,  21 
111.  338. 

8.   I  Barb.  Ch.  Pr.  (2d  ed.)  197. 

4.  Bennington  Iron  Co.  v.  Camp- 
bell, 2  Paige  (N.  Y.)  159. 

All  Exceptions  Should  be  Taken  in  First 
Instance. — If  an  answer  is  insufficient, 
the  complainant  must  raise  all  his  ob- 
jections to  it  in  the  first  instance.  He 
will  not  be  allowed  to  take  exceptions 
to  the  further  answer  which  were  not 
taken  to  the  first.  Eager  v.  Wiswall, 
2  Paige  (N.  Y.)  369. 

Failure  to  Except  to  Original  Answer. — 
Where  the  plaintiff  had  not  excepted, 
and  the  defendant  put  in  a  further  an- 
swer, leave  was  given  to  the  plaintiff 
to  file  exceptions  thereto,  although  he 
had  filed  none  to  the  original  answer. 
Atty.  Gen.  v.  London,  12  Beav. 
219. 

5.  I  Barb.  Ch.  Pr.  (2d  ed.)  196;  Will- 
iams V.  Davis,  I  Sim.  &  Stu.  426. 

Amended  Answer  Insufficient.  —  An 
amended  answer  being  insufficient, 
the  complainant  has  the  right  to  have 
it  referred  to  the  clerk  and  master,  on 
the  exceptions  to  the  original  answer, 
and  it  is  the  duty  of  the  chancellor  to 
require  the  defendant  to  put  in  a  full 
and  sufficient  answer.  Thompson  v. 
Paul,  8  Humph.  (Tenn.)  114. 

Several  Beferences  on  Original  Excep- 
tions.— The  defendant  having  submit- 
ted to  the  original  exceptions,  or  the 
same  having  been  allowed  by  the  mas- 
ter upon  a  reference  thereof,  it  is  too 
late,  upon  a  reference  of  a  second 
or  third  answer  for  insufficiency 
on  these  exceptions,  to  insist  that 
the  original  exceptions  were  not 
well  taken,  and  that  the  further  discov- 
ery called  for  was  immaterial.  Higbie 
V.  Brown,  i  Barb.  Ch.  (N.  Y.)  320. 


909 


Answers  as      ANSWERS  IN  EQUITY  PLEADING,         Evidence. 

Amended  Bill. — And  this  principle  applies  to  the  answer  to  an 
amended  bill.* 

Bill  stating  New  Case. — But  where  the  amendment  causes  the  bill 
to  state  an  entirely  new  case,  exceptions  may  be  taken.* 

Amendments  Insufficiently  Answered. — And  though  exceptions  may 
not  be  taken  to  the  answer  to  an  amended  bill,  founded  upon 
matter  contained  in  the  original  bill,  yet  they  are  proper  as  to 
tho-se  parts  of  the  amendments  not  sufficiently  answered.^ 

XIV.  Answers  as  Evidence  —  1.  Responsive  Answers  —  a.  In 
General. — It  is  a  general  rule  of  equity  practice  that  whatever 
in  the  defendant's  answer  is  directly  responsive  to  the  complain- 
ant's bill  is  evidence  for  as  well  as  against  the  defendant.* 


1.  Amended  Bill. — Where  exceptions 
are  not  taken  to  the  answer  to  the 
original  bill,  they  cannot  be  taken  to 
the  answer  on  an  amended  bill,  on  the 
ground  that  the  original  bill  was  not 
fully  answered.  Chazournes  t'.  Mills, 
2  Barb.  Ch.  (N.  Y.)  466;  Ovey  v. 
Leighton,  2  Sim.  &  Stu.  234;  Wich  v. 
Parker,  22  Beav.  59,  2  Jur.  N.  S.  582; 
Denis  v.  Rochussen,  4  Jur.  N.  S.  298. 
But  see  Glassington  v.  Thwaites,  2 
Russ.  464;  also  Irving  v.  Viana,  M'Clel. 
&  Y.  563. 

Objections  to  an  answer  to  a  bill  as 
it  stood  before  amendment  cannot  be 
made  after  amendment,  unless  the  de- 
fendant, after  being  duly  called  upon 
to  file  his  answer  to  the  bill  as  amend- 
ed, or  voluntarily  waiving  such  call, 
chooses  to  let  it  stand  as  an  answer  to 
the  amended  bill.  Angel  v.  Pennsyl- 
vania R.  Co.,  37  N.  J.  Eq.  92. 

Immaterial  Amendment. — This  prin- 
ciple does  not  prevent  exceptions  being 
taken  to  the  answer  where  the  amend- 
ment of  the  bill  consists  merely  in  the 
substitution  of  a  name,  or  the  addition 
of  another  party.  Miller  v.  Wheatley, 
I  Sim.  296;  Taylor  v.  Wrench,  9  Ves. 
Jr.  315.  See  also  Salisbury  v.  Miller, 
14  Mich.  160. 

Reason  of  Rule. — The  reason  of  the 
rule  that  a  plaintiff,  if  he  does  not  ex- 
cept to  the  answer  to  the  original  bill, 
cannot  afterwards  except  to  the  an- 
swer of  an  amended  bill,  on  the  ground 
that  the  defendant  has  not  answered 
matters  which  were  contained  in  the 
original  bill,  is  that  by  amending  his 
bill  the  plaintiff  has  admitted  the  an- 
swer to  be  sufficient,  i  Dan.  Ch.  Pr. 
{5th  ed.)  762. 

2.  I  Dan.  Ch.  Pr.  (5th  ed.)  761; 
Mazarredo  v,  Maitland,  3  Mad.  72; 
Partridge  v.  Haycraft,  11  Ves.  Jr.  581. 


See  also   Kaye  v.   Wall,   4  Hare  128; 
Duncombe  v.  Davis,  i  Hare  193. 

3.  Partridge  v.  Haycraft,  11  Ves. 
Jr.  570. 

Exceptions  and  Amendments  Answered 
Together.  —  Where  exceptions  to  a 
former  answer  and  amendments  to  the 
bill  are  answered  together,  if  neither 
the  amendments  nor  exceptions  are 
fully  answered,  the  complainant  is 
only  at  liberty  to  file  new  exceptions 
founded  on  the  new  matter  introduced 
into  the  bill  by  such  amendments.  The 
answer  will  then  be  referred  on  the  new 
exceptions,  and  upon  such  of  the  old 
exceptions  as  are  specified  in  the  order 
of  reference.  Bennington  Iron  Co.  v. 
Campbell,  2  Paige  (N.  Y.)  159.  See 
Hart  7^.  Small,  4  Paige  (N.  Y.)  333. 

Time. — Under  the  50th  Rule  the  com- 
plainant has  twenty  days  to  file  new 
exceptions  to  a  further  answer  as  re- 
spects the  amendments.  Van  Wagenen 
V.  Murray,  i  Edw.  Ch.  (N.  Y.)  319. 

4.  Michigan. — Schwarz  v.  Wendell, 
Walk.  (Mich.)  267. 

New  York. — Woodcock  v.  Bennet,  i 
Cow.  (N.  Y.)  743;  Forrest  v.  Forrest,  6 
Duer  (N.  Y.)  129;  Benson  v.  LeRoy,  i 
Paige  (N.  Y.)  122. 

New  Jersey. — Fisler  v.  Porch,  10  N.  J. 
Eq.  249. 

Pennsylvania.  —  Com.  v.  Cullen,  13 
Pa.  St.  143,  53  Am.  Dec.  450. 

Maryland. — Jones  v.  Slubey,  5  Har. 
&  J.  (Md.)  372;  Ringgold  v.  Ringgold, 
I  Har.  &  J.  (Md.)  11,  18  Am.  Dec.  250; 
Hardy  v.  Summers,  10  Gill  &  J. 
(Md.)  316,  32  Am.  Dec.  167  ;  Stewart 
V.  Duvall,  7  Gill  &  J.  (Md.)  179;  Dilly 
V.  Barnard,  8  Gill  &  J.  (Md.)  170. 

Tennessee. — Spurlockz/.  Fulks,  i  Swan 
(Tenn.)  289  ;  Jones  v.  Perry,  10  Yerg. 
(Tenn.)  59,  30  Am.  Dec.  430;  Ragsdale 
V.   Beaufort,  3  Hayw.  (Tenn.)  192. 


910 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.        Evidence. 


Charging  and  Stating  Part  of  Bill. — Thus  whatever   in   an  answer  is 
fairly  a  reply  to  the  general  scope  of  the  claim  set  up  in  the  bill, 


Alabama.  —  Grier  v.  Campbell,  21 
Ala.  327;  Danforth  v.  Laney,  28  Ala. 
274 ;  Hogan  v.  Smith,  16  Ala.  600 ; 
Walthall  V.  Rives,  34  Ala.  91. 

Georgia.  —  Laughlin  v.  Greene,  13 
Ga.  359- 

Mississippi. — Oakey  v.  Rabb,  Freem. 
Ch.  (Miss.)  546. 

North  Carolina. — Lyerly  v.  Wheeler, 
3  Ired.  Eq.  (N.  Car.)  599;  ChafEn  v. 
Chaffin,  2  Dev.  &  B.  Eq.  (N.  Car.)  255; 
Hughes  V.  Blackwell,  6  Jones  Eq. 
<N.  Car.)  73. 

Delaware. — Wharton  v.  Clements,  3 
Del.  Ch.  216. 

Ohio. — Steele  v.  Worthington,  2  Ohio 
1S2. 

Wisconsin. — Farmers',  etc.,  Bank  v. 
Griffith,  2  Wis.  443. 

Vermont. — Grafton  Bank  v.  Doe,  19 
Vt.  463,  47  Am.  Dec.  697;  Adams  v. 
Adams,  22  Vt.  50;  Blaisdell  z/.  Bowers, 
40  Vt.  126. 

Virginia. — Major  v.  Ficklin,  85  Va. 
732. 

Arkansas. — King  v.   Payan,   18  Ark. 

583. 

West  Virginia. — Pithole  Creek  Pe- 
troleum Co.  V.  Rittenhouse.  12  W. 
Va.  313  ;  Jones  v.  Cunningham,  7  W. 
Va.  707. 

United  States. — Lenox  v.  Notrebs, 
Hempst.  (U.  S.)  251  ;  Hinkle  v.  Wan- 
zer,  17  How.  (U.  S.)  353;  Delano  v. 
Winsor,  i  Cliff.  (U.  S.)  501  ;  Scammon 
V.  Cole,  3  Cliff.  (U.  S.)  479  ;  Clarke  v. 
White,  12  Pet.  (U.  S.)  190;  Morgan  v. 
Tipton,  3  McLean  (U.  S.)  350;  Reid  v. 
McCallister,  49  Fed.  Rep.  16. 

An  answer  is  competent  evidence 
against  the  party  as  his  statements  on 
oath.  Roberts  v.  Tennell,  3  T.  B. 
Mon.  (Ky.)  249. 

Evidence  Against  Whom. — An  answer 
in  chancery  is  not  evidence  except  as 
against  the  party  who  made  it  ;  as  to 
others,  it  is  res  inter  alios  acta.  Lun- 
day  V.  Thomas,  26  Ga.  537. 

Answer  of  Complainant  to  Cross-bill. — 
The  answers  of  a  complainant  to  in- 
terrogatories propounded  in  a  cross- 
bill filed  by  the  respondent  are,  if 
responsive,  good  evidence  for  the 
complainant.  Money  v.  Dorsey,  15 
Miss.  15;  Graham  v.  Berryman,  19  N. 
J.  Eq.  29,  574. 

Discovery  Sought  by  Bill. — The  rule  in 
equity  practice  that  the  responsive  an- 
swer of  the  defendant  is  evidence  in 


his  favor  applies  not  only  where  a 
material  allegation  of  the  bill  is  denied 
by  the  answer,  but  also  where  a  ma- 
terial disclosure  is  called  for  by  the 
bill  and  made  by  answer.  Fant  v.  Mil- 
ler, 17  Gratt.  (Va.)  187;  Thompson  v. 
Clark,  81  Va.  422;  Chapman  v.  Turner, 

1  Call  (Va.)28o,  i  Am.  Dec.  514;  Moors 
V.  Moors,  17  N.  H.  481. 

No  Discovery  Sought  by  Bill. — Where 
the  defendant  in  his  answer  sets  forth 
circumstances  negativing  a  statement 
in  the  bill,  the  answer  is  so  far  evi- 
dence as  to  put  the  plaintiff  upon  proof 
of  his  case,  though  no  discovery  is 
sought  by  the  bill.  Columbia  Branch 
Bankz/.  Black,  2  McCord  Eq.  (S.  Car.) 

344- 

Bill  for  Belief— Waiving  Discovery. — 
The  defendant  is  entitled  to  the  bene- 
fit of  his  answer  as  evidence  in  the 
cause  if  the  bill  be  filed  for  relief,  and 
the  plaintiff  cannot,  even  by  expressly 
waiving  a  discovery,  deprive  him  of 
the  benefit  of  it.  Fant  v.  Miller,  17 
Gratt.  (Va.)  187;  Thornton  v.  Gordon, 

2  Rob.  (Va.)  727. 
Answer  Evidence  in  Part. — In  a  suit  in 

chancery  brought  against  a  consignee, 
if  in  his  answer  he  states  that  he  sold 
the  articles  at  a  specified  price,  "ac- 
cording to  the  instructions  of  the  com- 
plainants, which  he  files  with  his  an- 
swer," but  in  fact  he  files  no  such  in- 
structions, his  answer  will  be  evidence 
merely  that  he  sold  at  such  a  price, but 
not  that  he  was  instructed  to  do  so; 
and  he  will  be  answerable  for  the  aver- 
age price  of  such  articles  at  the  time 
of  sale,  at  the  market  at  which  he  sold. 
Winters  v.  January,  Litt.  Sel.  Cas. 
(Ky.)  13. 

Appeal — Answer  TJntrne. — Answer  of 
defendant  found  to  be  untrue  by  com- 
mittee of  the  court  below  is  not  evi- 
dence in  the  court  above,  of  facts 
therein  stated.  Callender  z'.Colegrove, 
17  Conn.  30. 

On  a  General  Bill  to  Account,  the  an- 
swer is  no  evidence  of  disbursements; 
such  a  bill  is  nothing  more  than  a  de- 
mand on  defendant  to  show  his  re- 
ceipts and  the  legal  sufficiency  of  his 
expenditures.  Ringgold  v.  Ringgold, 
I  Har.  &  G.  (Md.)  28,  18  Am.  Dec. 
250;  McNeal  v.  Glenn,  4  Md.  90. 

Answer  by  Committee  of  a  Drunkard. — 
Where  a  bill  for  the  payment  of  money 
■^  due  from  a  drunkard  against  a  com- 
yii 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.        Evidence. 


24 


whether  in  the  stating  or  in  the  charging  part,  and  whether  by 
way  of  denial,  excuse,  or  avoidance,  is  evidence  for  the  defendant. 

mittee  called  for  the  answer  by  the  in  the  case.  Welborn  v.  Rogers, 
«ommittee  under  oath,  the  answer  of 
the  committee,  in  reply  to  an  allega- 
tion that  no  part  of  the  debt  had  been 
paid,  stating  the  manner  in  which 
payment  had  been  made  was  held  to 
be  evidence.  Beech  v.  Bradley,  8 
Paige  (N.  Y.)  146. 

Answer  of  Executor. — A  general  alle- 
gation in  a  bill  against  an  executor, 
that  he  retains  the  money  of  the  estate 
in  virtue  of  a  pretended  debt  claimed 
from  the  testator  by  a  pretended  con- 
tract, which  the  bill  denies,  the  prayer 
of  the  bill  being  generally  for  an  an- 
swer to  the  matters  charged  therein, 
does  not  make  the  answer  of  the  ex- 
ecutor evidence  to  support  such  debt 
when  he  admits  there  is  money  of  the 
estate  in  his  hands  for  which  he  must 
account  if  he  does  not  establish  the 
debt.  Tilghman  v.  Tilghman,  Baldw. 
(U.  S.)464- 

Answer  of  Commissioner. — The   com- 
missioners of  confiscation  sold  land  and 

gave  a  deed,  describing  the  lot  as  con- 
taining a  certain  quantity,  "more  or 

less."       A  third   person    having    sub- 
stantiated a  claim  to  a  large  portion  of 

the  land,  the  purchaser  filed  a  bill  to 

rescind  the  sale,    making  one  of  the 

commissioners    a    party.       Held,    that 

the  answer  of  the  commissioner  was 

competent  to  prove  that,  in  accordance 

with  the  advertisement  of  sale,  which 

stated  no  terms,  it   was   publicly  de- 
clared, at  the  time  of  sale,  that  there 

was  an  adverse  claim  to  a  portion  of 

the  land,  for  which,  when  ascertained, 

a  deduction  would  be  made  from  the 

price.  Wainwright  v.  Read,  i  Desaus. 

(S.  Car.)  573- 

Answer  of  Purchaser. — The  answer  of 

a  purchaser  at  a  master's  sale  to  a  rule 

against   him   to   show   cause  why  he 

should   not  complete  the  purchase  is 

evidence  in  his  favor  except  where  it 

states  new  facts.   Gordon  v.  Saunders, 

2  McCord  Eq.  (S.  Car.)  151. 

Deed  Attached  to  Answer. — A  deed  is 

not  made  evidence  by  attaching  to  an 

answer  in  chancery  what  is  alleged  to 

be  a  copy  of  it;  this  only  amplifies  the 

pleading.       Shepard    v.    Shepard,    36 

Mich.  173.    See  also  Stevens  z'.  Gordy,  9 

Gill  (Md.)  405. 

Answer  of  a  Defendant  Not  a  Party. — 
The  answer  of  a  defendant  not  a  party 
to  the  issue  to  be  tried  is  not  evidence 


in  the  case. 
Ga.  55S. 

Answer  Not  Used  as  Evidence. — Where 
the  answer  to  a  bill  of  discovery  is 
used,  it  is  evidence  for  or  against  the 
party  using  it;  but  the  bill  may  be  dis- 
missed and  other  evidence  resorted 
to.  If  the  party  who  asks  for  the 
discovery  does  not  use  the  answer,  it 
is  not  his  evidence  and  he  cannot  be 
concluded  by  it;  and  he  may  use 
other  evidence  to  establish  the  fact 
in  reference  to  which  a  discovery  was 
sought.  Carson  v.  Flowers,  7  Smed.  & 
M.  (Miss.)  99. 

One  Answer  Referring  to  Another. — The 
answer  of  a  defendant  A.,  so  far  as  it 
states  that  he  has  seen  the  answer  of 
another  defendant,  B.,  and  that  the 
same  is  true,  is  no  evidence  for  A. 
when  no  answer  of  B.  was  on  file  at 
the  time  when  that  of  A.  was  sworn 
to,  and  there  is  nothing  to  identify  the 
paper  afterwards  sworn  to  and  filed  by 
B.  with  the  paper  sworn  to  by  A. 
Carr.  v.  Weld,  19  N.  J-  Eq.  319. 

Answer  ofWife. — The  answer  of  a  wife 
cannot  be  read  as  evidence  against  her 
husband.  City  Bank  v.  Bangs,  3  Paige 
(N.  Y.)  36. 

Answer  as  Secondary  Evidence. — The 
bill  charged  that  an  alleged  deed,  on 
which  the  defendant  rested  his  de- 
fense, had  no  valid  existence.  The  an- 
swer averred  the  existence  and  va- 
lidity of  the  deed.  Held,  that  this 
state  of  pleadings  did  not  dispense 
with  the  necessity  of  defendant's  prov- 
ing affirmatively  the  existence  and  va- 
lidity of  such  deed.  Sims  v.  Sims,  5 
Humph.  (Tenn.)  370. 

Answer  Must  be  Designated  asTestimony 
— Alabama. — The  answer  in  equity  can- 
not be  used  as  evidence  by  the  defend- 
ant unless  at  the  hearing  he  designates 
it  as  part  of  the  testimony  on  which 
he  relies,  the  seventy-seventh  Rule  of 
Chancery  Practice  (Code  Ala.  1876,  p. 
172)  providing  that  "any  testimony 
not  offered  in  this  way,  and  noted  by 
the  register  on  the  minute,"  is  not  part 
of  the  record,  and  must  not  be  consid- 
ered by  the  chancellor.  Goodloe  v. 
Dean,  81  Ala.  479. 

Arkansas. — Under  the  statutes  of 
Arkansas,  an  answer  denying  the  alle- 
gation of  a  cross-bill,  that  plaintiff 
was  a  tenant  from  year  to  year  of  cer- 
tain premises,   and  averring   that  he 

912 


Answers  a8      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


The  defendant  is  bound  to  answer  the  charging  part  of  the  bill  as 
well  as  the  stating  part,  and  his  answer  to  the  charging  part  and 
response  thereto  is  evidence  in  his  favor  as  much  as  his  answer  to 
the  stating  part.* 

Answer  Connected  with  Responsive  Matter. — And  it  seems  the  answer 
of  the  defendant  is  evidence  for  him  not  only  when  it  is  respon- 
sive to  the  call  of  the  bill  for  discovery,  but  also  when  it  is  neces- 
sarily connected  with  the  responsive  matter  or  explanatory  of  it.* 

Rules  of  Evidence  Apply. — But  even  an  answer  strictly  responsive 
can  be  evidence  for  the  defendant  of  no  fact  which  he  would  not 
be  permitted  by  the  rules  of  law  and  of  evidence  to  make  out  by 
indifferent  testimony.' 

Facts  Not  stated  in  Bill. — An  answer  may  sometimes  be  evidence  of 
a  fact  not  stated  in  the  bill.* 

Voluntary  Answer. — But  a  voluntary  answer  has  no  effect  as  evi- 
dence.* 

Reason  for  General  Rule. — The  reason  for  the  rule  that  a  responsive 
answer  is  evidence  is  that  the  complainant  calls  upon  the  re- 
spondent for  an  answer  and  therefore  necessarily  admits  that 
answer  to  be  evidence.® 


went  into  possession  under  a  parol 
contract  for  a  lease  for  a  term  of  years, 
setting  it  forth,  was  held  evidence  not 
only  of  the  terms  of  the  contract,  but 
also  of  the  fact  that  the  plaintiff  was 
admitted  into  possession  under  it,  and 
with  a  view  to  its  performance.  Mor- 
rison V.  Peay,  21  Ark.  no. 

State  Courts — Connecticut. — In  the 
State  Courts  in  Connecticut  an  answer 
stands  on  the  same  footing  as  a  plea, 
and  is  not  evidence  unless  the  com- 
plainant seeks  a  disclosure  by  an  ap- 
peal to  the  conscience  of  the  defend- 
ant. Pomeroy  v.  Manin,  2  Paine  (U. 
S.)476. 

1.  Rich  V.  Austin,  40  Vt.  420;  Smith 
V.  Clark,  4  Paige  (N.  Y.)  368. 

2.  Shiels  v.  Stark,  14  Ga.  429. 
Where   a  bill  was    filed,  cliarging  a 

partnership  between  the  parties  to  the 
suit,  and  claiming  a  share  of  the 
profits,  but  not  interrogating  the  de- 
fendant as  to  any  payment  by  him,  the 
answer,  stating  a  payment  to  the 
plaintiff, /Was  held  to  be  evidence  for 
the  defendant.  Jones  v.  Jones,  i 
Ired.  Eq.  (N.  Car.)  332. 

Necessary  Statement  of  Facts. — An 
answer  is  competent  evidence  of  facts 
when  a  statement  of  such  facts  is 
necessary  for  a  full  reply  to  the  bill. 
Allen  V.  Mower,  17  Vt.  61. 

3.  Stevens  v.  Post,  12  N.  J.  Eq.  421. 
The  answer,  when  responsive  to  the 

bill,    though    uncontradicted,   cannot 
I  Encyc.  PI.  &  Pr.— 58.  9 


be  taken  to  establish  anything  in  bar 
of  the  relief  prayed,  which  parol  testi- 
mony would  not  be  admitted  to  prove, 
for  it  is  as  evidence  only  that  it  is  re- 
ceived. Winn  V.  Albert,  2  Md.  Ch. 
169;  Jones  V.  Slubey,  5  Har.  &  J, 
(Md.)  372. 

Not  Evidence  to  Vary  Written  Agree- 
ment.— The  answer  of  a  defendant  is 
evidence  only  as  to  facts  to  which 
other  testimony  could  be  received,  and 
will  not  be  admitted  to  show  that  the 
intent  and  meaning  of  the  parties  to  a 
written  agreement  was  contrary  to 
what  appears  on  the  face  of  it.  Carter 
V.  Bennett,  6  Fla.  214. 

4.  Answer  Evidence  of  Facts  Not  Stated 
in  Bill. — Where  the  bill  sets  forth  only 
part  of  the  complainant's  case,  instead 
of  the  whole,  and  the  part  omitted 
and  stated  in  the  answer  shows  a  dif- 
ferent case  from  that  stated  in  the 
bill,  and  is  not  in  avoidance  merely, 
the  answer  is  evidence.  Schwarz  v. 
Wendell,  Walk.  (Mich.)  267, 

6.  Voluntary  Answer  Not  Evidence. — 
A  voluntary  answer  has  no  effect  as 
evidence.  As  where  a  bill  charged 
forgery,  and  the  plaintiff  could  not 
call  for  an  answer  to  this  charge,  since 
it  would  tend  to  criminate  the  defend- 
ant, the  answer  put  in  was  volun- 
tary, and  not  evidence.  Kibby  v. 
Kibby,  Wright  (Ohio)  607. 

6.  Gilman  v.  Libbey,  4  Cliflf.  (U.  S.) 
447- 


13 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


b.  Sworn  Bill  and  Answer. — When  the  complainant  and 
defendant  speak  to  the  same  transaction,  the  complainant,  on 
oath,  in  a  bill  requiring  an  oath,  directly  affirming,  and  the  de- 
fendant, on  oath,  in  an  answer  where  the  oath  is  not  waived  by 
the  bill,  directly  denying,  the  answer  only  raises  an  issue,  and  is 
not  evidence. *^ 

c.  Answer  Conclusive. — A  statement  in  a  sworn  answer,  re- 
sponsive to  a  direct  interrogatory  in  the  bill,  must  be  accepted  as 
true  until  disproved.* 


Reasons  for  the  rule  that  the  re- 
sponsive answer  is  evidence  given. 
Cannon  v.  Collins,  3  Del.  Ch.  132. 

"  The  object  in  calling  for  an  answer 
is  to  serve  the  purposes  of  the  plain- 
tiff, not  of  the  defendant.  The  plain- 
tiff calls  for  it  as  evidence,  and  it  is 
equivalent  to  parol  evidence  as  to  all 
matters  where  such  testimony  is 
available.  But  the  necessary  conse- 
quence of  this  position  is,  that,  since 
the  plaintiff  has  called  on  the  defend- 
ant to  testify  by  way  of  answer,  it  is, 
to  the  full  extent  of  the  call  or  so  far 
as  it  is  responsive  to  the  bill,  compe- 
tent evidence  which  cannot  be  over- 
turned by  the  testimony  of  one  witness 
alone;  and  the  answer  so  called  for  is 
evidence  to  this  extent  although  it  be 
made  by  a  defendant  deeply  inter- 
ested, or  by  one  who  is  incompetent  as 
a  witness  in  ordinary  cases,  or  by  a 
corporation  aggregate  under  its  seal 
without  oath."  Bland,  C,  in  Salmon 
V.  Clagett,  3  Bland  (Md.)  141. 

"  So  far  as  the  answer  operates  as 
evidence,  its  averments  are  regarded 
as  the  testimony  of  a  witness  called  by 
the  plaintiff.  This  is  the  foundation 
of  the  principle.  The  plaintiff  calls 
upon  the  defendant  to  answer  an  alle- 
gation of  fact  which  he  makes,  and 
thereby  admits  the  answer  to  be  evi- 
dence of  that  fact.  If  testimony,  it  is 
equal  to  the  testimony  of  any  other 
witness.  This  is  the  light  in  which  it 
is  constantly  presented  in  the  books." 
Per  Chan,  in  Brown  v.  Bulkley,  14  N. 
J.  Eq.  294,  301. 

1.  McLard  v.  Linnville,  10  Humph. 
(Tenn.)  103;  Searcy  v.  Pannell,  Cooke 
(Tenn.)  no;  Deakins  v.  Alley,  9  Lea 
(Tenn.)  494;  Williamson  v.  Williams, 
II  Lea  (Tenn.)  355. 

2.  Mississippi. — Fulton  v.  Woodman, 
54  Miss.  158;  Petrie  v.  Wright,  6  Smed. 
&  M.  (Miss.)  647. 

Missouri. — Laberge  v.  Chauvin,  2 
Mo.  179 ;  Prior  v.  Matthews,  9  Mo. 
267. 


Virginia.  —  Maupin  v.  Whiting,  i 
Call.  (Va.)  224;  Pryor  v.  Adams,  i 
Call.  (Va.)382,  i  Am.  Dec.  533;  Buck 
V.  Copland,  2  Call.  (Va.)  218. 

United  States. — Lenox  v.  Prout,  3 
Wheat.  (U.  S.)  520;  American  File  Co. 
V.  Garrett,  no  U.  S.  228. 

Alabafua.  —  PauUing  v.  Sturgus,  3 
Stew.  (Ala.)  95;  Henderson  v.  McVay, 
32  Ala.  471. 

Illinois. — O' Brian  v.  Fay,  82  111.  274; 
Cassell  V.  Ross,  33  III.  244,  85  Am. 
Dec.  270;  Duncan  v.  Wickliffe,  5  111. 
452. 

Maryla7id.  —  Neale  v.  Hagthrop,  3 
Bland  (Md.)  551;  Cowman  v.  Hall,  3 
Gill  &  J.  (Md,)398;  Kent  v.  Carcaud, 
17  Md.  291. 

N'ew  York. — Becker  v.  Ten  Eyck,  6 
Paige  (N.  Y.)  68. 

Pennsylvania.  —  Peacock  v.  Cham- 
bers, 3  Grant's  Cas.  (Pa.)  398. 

New  Jersey. — Neville  v.  Demeritt,  2 
N.  J.  Eq.  321;  Allen  v.  Cole,  9  N.  J. 
Eq.  286;  Morris,  etc.,  R.  Co.  v.  Blair,  9 
N.  J.  Eq.  635;  Reed  v.  Reed,  16  N.  J. 
Eq.  248;  Petrick  v.  Ashcroft,  20  N.  J. 
Eq.  198. 

See  Alford  v.  McNarrin,  44  Me.  90; 
McConnell  v.  Madisonville,  2  Humph. 
(Tenn.)  53;  Coal  River  Nav.  Co.  v. 
Webb,  3  W.  Va.  438  ;  Cheuvete  v. 
Mason,  4  Greene  (Iowa)  231. 

Connecticut.  —  Pollard  v.  Lyman,  i 
Day  (Conn.)  156. 

Kentucky. — Shiddell  v.  Messick,  43 
Ky.  157- 

Where  the  answer  is  responsive  to 
the  allegations  of  the  bill,  sworn  to, 
and  uncontradicted,  it  must  be  taken 
as  true;  and  contradictory  evidence, 
to  destroy  its  effect,  must  more  than 
counterbalance  the  oath  of  the  defend- 
ant. Nevitt  z/.  McAroy,  Wright  (Ohio) 
289. 

Oath  Waived. — Where  an  answer  on 
oath  is  not  waived,  matters  stated  in 
the  bill  as  being  within  the  personal 
knowledge  of  the  defendant  are  to  be 
taken  as  true  upon  the  hearing;  but 


914 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


d.  Answer  Entitling  Complainant  to  Decree. — And 
where  the  answer  of  the  defendants  sets  forth  and  shows  a  state 
of  facts  which  entitles  the  complainant  to  a  decree,  the  complain- 
ant is  entitled  to  such  a  decree,  though  the  bill  may  not  by  its 
allegations  make  out  such  a  case.*  And  being  conclusive  for  the 
complainant,  the  defendant  is  estopped  from  introducing  evidence 
conflicting  with  its  truth.* 


not  where  the  complainant,  by  waiv- 
ing an  answer  on  oath,  elects  to  take 
upon  himself  the  burden  of  sustaining 
the  allegations  in  his  bill  without  the 
aid  of  a  discovery  from  defendant. 
Miller  v.  Avery,  2   Barb.  Ch.  (N.  Y.) 

583. 

Denial  of  Parol  Agreement. — In  equity, 
the  denial  by  the  answer  of  a  parol 
agreement  within  the  Statute  of  Frauds 
is  conclusive;  the  court  will  not  in- 
quire into  its  truth.  Cooth  v.  Jack- 
son, 6  Ves.  Jr.  12. 

SufBcient  Proof  of  Fact. — Where  an 
answer,  by  its  caption,  purports  to  be 
the  answer  of  the  defendant  to  a  bill 
exhibited  against  him  "by  the  heirs 
of  P.,"  such  recognition,  in  the  ab- 
sence of  express  denial  in  the  body  of 
the  answer,  is  sufficient  to  establish 
the  fact  that  the  complainants  are  the 
heirs  of  P.  Owings  v.  Patterson,  i  A. 
K.  Marsh.  (Ky.)  620. 

Denial  of  Fraud. — Whera  complainant 
seeks  to  avoid  his  bond  upon  the 
ground  of  fraud,  and  defendant  posi- 
tively denies  the  allegation  of  fraud, 
his  answer  is  conclusive  if  uncontra- 
dicted by  any  witness  in  the  case. 
Cummings  v.  Harrell,  6  Ark.  308. 
See  also  Prevo  v.  Walters,  5  111.  35; 
Monroe  Cattle  Co.  v.  Becker,  147  U.  S. 

47. 

A  responsive  answer  to  a  bill  in 
chancery  charging  fraud,  which  denies 
the  charge  and  is  uncontradicted  by 
evidence,  rebuts  the  idea  of  fraud. 
Murray  v.  Blatchford,  i  Wend.  (N. 
Y.)  583,  19  Am.  Dec.  537;  Cunning- 
ham V.  Freeborn,  3  Paige  (N.  Y.)  557. 

Bill  to  Obtain  Dower. — In  a  bill  filed 
to  obtain  dower,  the  answer,  when 
responsive  to  the  bill,  will  prevail  un- 
less countervailed  by  proof,  as  in  any 
other  case.  Edmonson  v,  Montague, 
14  Ala.  370. 

Bill  Dismissed. — Where  a  bill  in  chan- 
cery alleges  that  certain  bonds  were 
entered  in  the  name  of  a  third  person, 
with  a  view  to  cover  them  from  the 
creditors  of  the  person  who  entered 
them,  and  ih.\s  allegation  is  denied  in 


the  answer  and  not  sustained  by  proof, 
the  bill  pro  ta7ito  must  be  dismissed. 
McCoy  V.  Rhodes,  11  How.  (U.  S.) 
131.  And  see  Berryman  v.  Sullivan, 
13  Smed.  &  M.  (Miss.)  65. 

Answer  Bar  to  Bill. — Where  a  bill  in 
equity  is  brought  for  an  account,  and 
the  answer  sets  up  an  account  stated 
in  writing,  and  settled  and  signed  by 
the  parties,  and  states  on  oath  that 
such  account  is  just  and  true,  it  is  a 
bar  to  the  bill,  unless  impeached  for 
some  fraud,  omission,  or  mistake 
pointed  out.  Harrison  v.  Bradley,  5 
Ired.  Eq.  (N.  C.)  136. 

Answer  Insufficient. — That  an  answer 
is  insufficient  in  some  particulars  does 
not  destroy  its  effect  upon  the  points 
upon  which  it  answers  directly.  And 
where  the  complainant  has  accepted 
it,  he  is  bound  by  it.  Whitney  v. 
Robbins,  17  N.  J.  Eq.  360. 

Answer  Not  Conclusive. — A  bill  being 
filed  to  reach  land,  for  which  it  was 
alleged  the  husband  had  paid,  taking 
title  jointly  to  himself  and  his  wife  to 
defraud  his  creditors,  a  sworn  answer 
was  filed  alleging  that  title  was  so  taken 
in  order  that  the  survivor  should  take 
and  that  the  consideration  was  paid 
principally  from  the  wife's  money.  It 
was  held  that  although  the  answer 
was  evidence  it  was  not  conclusive 
and  was  of  little  weight  in  view  of  the 
defendant's  refusal  to  testify  how 
much  the  wife  paid.  Newlove  v.  Cal- 
laghan,  86  Mich.  301.  See  also  Morse 
V.  Slason,  16  Vt.  319. 

1.  Jameson  v.  Shelby,  2  Humph. 
(Tenn.)  198. 

2.  McGehee  v.  Lehman,  65  Ala.  316; 
Fant  V.  Miller,  17  Gratt.  (Va.)  187. 

A  defendant  is  required  to  abide  by 
the  case  made  in  his  answer  and  is  not 
permitted  to  take  advantage  of  an- 
other case  made  by  the  proofs.  Mead 
V.  Coombs,  26  N.  J.  Eq.  173. 

Defendant  Estopped  from  Showing 
Larger  Sum  than  that  Alleged. — By  his 
answer  defendant  had  alleged  the  con- 
sideration of  a  certain  deed  (decreed 
by  the  court  to  be  a  mortgage)  to  have 


915 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence 


e.  What  is  Responsive. — When  the  answer  is  confined  to 
such  facts  as  are  necessarily  required  by  the  bill,  and  those 
that  are  inseparably  connected  with  them  forming  a  part  of  the 
same  transaction,  the  answer  is  responsive.^     Thus,  if  the  de- 


been  a  debt  to  a  certain  amount.  The 
answer  estops  him  from  showing  that 
a  larger  sum  was  due.  Emerson  v.  At- 
water,  12  Mich.  314. 

But  where  a  party  in  chancery  shows 
himself  entitled  to  property,  and  esti- 
mates its  value  in  his  answer  at  a  cer- 
tain sum,  but  states  that  he  has  no 
means  of  ascertaining  the  value,  it  is 
erroneous  to  restrict  him  to  that  esti- 
mate, but  he  should  be  allowed  what 
the  proof  shows  the  property  to  be 
worth.  Ward  v.  Grayson,  9  Dana 
(Ky.)  2S0. 

or  from  Prejudicing    Purchaser's 

Title — Where  a  defendant  has  filed  an 
answer  to  a  bill  to  foreclose,  a  pur- 
chaser at  a  sheriff's  sale  under  the 
decree  is  presumed  to  have  purchased 
upon  the  face  of  that  answer,  and  in 
reliance  upon  the  truth  of  its  state- 
ments. Such  defendant  is  estopped 
from  denying  the  truth  of  the  answer, 
to  the  prejudice  of  the  purchaser's  title. 
McGee  v.  Smith,  16  N.  J.  Eq.  462. 

1.  Green  v.  Vardiman,  2  Blackf. 
(Ind.)  330;  Powell  v.  Powell,  7  Ala. 
582;  May  V.  Barnard,  20  Ala.  200; 
Jackson  v.  Hart,  11  Wend.  (N.  Y.)343; 
Cresson's  App.,  91  Pa.  St.  447. 

The  general  rule  in  equity  that  where 
an  allegation  in  the  answer  is  respon- 
sive to  the  bill,  if  the  plaintiff  seek  to 
impeach  the  answer,  he  must  overcome 
it  by  something  more  than  the  testi- 
mony of  a  single  witness,  is  not  limited 
to  matters  in  the  answer  which  deny 
what  is  stated  in  the  bill.  There  is  no 
sound  foundation  for  a  distinction  in 
this  respect  between  matter  of  denial 
and  matter  of  affirmance,  if  the  latter 
be  in  relation  to  a  particular  point 
which  the  bill  requires  the  defendant 
to  answer.  The  true  distinction  is  be- 
tween allegations  upon  those  subjects 
upon  which  the  bill  requires  some  an- 
swer and  allegations  of  new  matter  not 
stated  or  inquired  of  in  the  bill,  but  in- 
troduced by  the  defendant  in  his  de- 
fense.  Bellows  V.  Stone,  18  N.  H.  465. 

Besponsive  Answers  Illustrated.  —  A 
bill  for  specific  performance  called 
upon  the  defendant  to  answer  as  to  the 
making  of  the  contract,  how  it  was  dis- 
posed of,  and  when,  where,  and  how 
the  defendant  got  possession  of  the 

91 


contract  and  under  what  pretenses. 
It  was  held  that  the  allegations  in  the 
answer  setting  up  an  agreement  to  re- 
scind the  contract  were  responsive  to 
the  bill  and  were  evidence  for  the  de- 
fendant. Woodcock  V.  Bennett,  i  Cow. 
(N.  Y.)  711. 

Where  a  bill  alleged  that  a  defend- 
ant claimed  some  interest  in  certain 
lands,  and  an  interrogatory  required 
him  to  state  the  nature  of  his  claim 
and  the  time  and  circumstances  under 
which  he  acquired  it,  it  was  held  that 
the  interrogatory  was  authorized  by 
the  allegations,  and  that  the  defend- 
ant's answer  that  he  purchased  in  good 
faith  for  valuable  consideration  was 
responsive  to  it  and  evidence  for  him. 
Fenno  v.  Sayre,  3  Ala.  458. 

To  a  bill  by  a  wife  against  her  hus- 
band to  receive  a  sum  of  money  alleged 
to  have  been  paid  to  her  in  building 
and  furnishing  their  house,  and  for 
which  defendant  had  given  her  no 
security,  an  answer  that  the  money 
had  been  given  him  by  complainant, 
and  that  there  was  no  agreement,  con- 
tract or  understanding  that  he  was  to 
repay  or  in  any  way  secure  the  money, 
is  responsive.  Gleghorne  v.  Gleg- 
home,  118  Pa.  St.  383. 

A  bill  to  foreclose  a  mortgage  alleged 
it  to  have  been  given  for  an  actual  in- 
debtedness to  an  amount  named  which 
still  remained  unpaid,  and  the  answer 
on  oath  stated  the  circumstances  under 
which  the  mortgage  was  given,  show- 
ing it  to  have  been  in  part  for  money 
advanced  and  in  part  for  property  at 
a  valuation  which  the  party  had  failed 
to  convey  according  to  agreement;  it 
was  held  that  the  answer  was  respon- 
sive to  the  bill  and  was  evidence. 
Robinson  v.  Cromelein,  15  Mich.  316. 
See  also  Blaisdell  v.  Bowers,  40  Vt. 
126;  Grafton  Bank  v.  Doe,  19  Vt.  463, 
47  Am.  Dec.  697. 

In  a  bill  filed,  charging  a  sale  of 
goods  as  in  fraud  of  creditors,  there 
were  special  interrogatories,  as  fol- 
lows :  What  amount  of  goods  was  re- 
ceived ?  whether  anything  was  paid 
for  the  goods;  and  if  so,  when,  where, 
and  in  what  manner  ?  An  answer,  stat- 
ing that  the  vendor  was  indebted  to 
the  vendee,  on  account  of  payments 
6 


Asewm  as      ANSWERS  IN  EQUITY  PLEADING.        Evidence. 

fendant  denies  the  allegations  in  the  bill  or  affirms  matter  imme- 
diately connected  with  the  original  liability  charged  by  way  of 
defense,  the  answer  is  responsive.* 
Material  Facts. — So  if  a  fact  stated  in  the  bill  and  answered  by 


made  on  debts  of  a  previous  partner- 
ship between  them;  that  he  proposed 
to  the  vendee  to  transfer,  and  the  ven- 
dee agreed  to  receive,  the  goods  in 
payment  of  the  amount  due  and  justly 
owing  to  him;  that  about  the  first  day 
of  October  he  sent  the  goods — held 
responsive  to  the  interrogatories. 
Walter  v.  McNabb,   i   Heisk.  (Tenn.) 

703- 

In  a  suit  to  enforce  the  lien  of  a  mort- 
gage against  a  husband  and  wife,  the 
wife  answered  admitting  that  she 
signed  the  instrument,  but  only  upon 
the  force  and  fraudulent  representa- 
tion of  the  complainant's  agent  who 
obtained  her  signature  and  acknowl- 
edgment, and  that  she  was  ignorant 
and  unable  to  read,  A  general  repli- 
cation was  filed  and  the  cause  was 
heard  oh  the  pleadings  alone.  It  was 
held  that  the  allegations  of  fraud  were 
not  new  matter  in  avoidance,  but  were 
responsive  to  the  bill  and  were  suffi- 
cient to  prove  that  the  wife  did  not 
execute  the  mortgage.  Reid  v.  Mc 
Callister,  49  Fed.  Rep.  16. 

Where  the  bill  alleges  that  one  of 
»the  defendants  had  sold  a  portion  of 
the  property  sought  to  be  condemned 
to  the  payment  of  the  complainant's 
debts,  under  a  pretended  mortgage  or 
lien  given  by  the  debtor  to  secure  a 
fictitious  debt;  and  that  the  secured 
debt,  if  any  part  of  it  was  just,  was 
fully  discharged  by  the  proceeds  of 
sale,  leaving  a  balance  ,in  the  defend- 
ant's hands  subject  to  the  complain- 
ant's claims,  an  answer  asserting  the 
bona  fides  of  the  secured  debt,  the  va- 
lidity of  the  mortgage  (which  is  made 
an  exhibit,  and  which  contains  a  power 
of  sale),  and  that  the  entire  proceeds 
of  the  sale  were  not  sufficient  to  satisfy 
the  secured  debt,  is  responsive.  Eng- 
land V.  Reynolds,  38  Ala.  370. 

An  answer  not  stating  particulars 
of  a  transaction  charged  and  inquired 
into  by  the  bill  is  responsive.  It  was 
so  held  by  Vroom,  Ch.,  in  Youle  v. 
Richards,  Saxt.  539;  and  in  this  case 
the  details  are  expressly  in  answer  to 
the  interrogatory  which  asks  "  for 
what  purpose  and  consideration  the 
said  stock  was  assigned  ?"  and  the  de- 

91 


fendants  could  not  refuse  to  answer 
this  without  bringing  themselves  ipto 
contempt.  Merritt  v.  Brown,  19  N.  J. 
Eq.  289. 

1.  Gleghorne  v.  Gteghorne,  118  Pa. 
St.  383;  Hand  v.  Weidner,  151  Pa.  St. 
362. 

A  bill  alleged  that  the  first  of  three 
notes  was  paid.  The  answer  denied 
that  it  was  paid,  and  alleged  that  it 
had  been  assigned.  The  denial  of 
payment  was  responsive  and  evidence. 
The  allegation  as  to  the  assignment 
was  new  matter  and  had  to  be  sus- 
tained by  proof.  Rodd  v.  Durbridge, 
53  Miss.  694. 

Where  a  bill  alleged  that  the  re- 
lease of  a  bond  conditioned  for  the 
support  of  the  orator  was  obtained  by 
the  defendant  for  a  grossly  inadequate 
consideration,  and  the  answer  denied 
the  inadequacy  and  set  forth  the  pre- 
vious arrangement  which  led  to  the 
execution  of  the  bond,  the  main- 
tenance of  the  orator  from  that  time 
to  the  cancelling  of  the  bond,  and  the 
amount  paid  for  the  release,  the  court 
was  inclined  to  think  that  the  answer 
was  responsive  and  was  evidence. 
Mann  v.  Betterly,  21  Vt.  326. 

Answer  Besponsive  where  Substance  of 
Bill  Denied. — Where  the  substance  of  a 
bill  is  denied,  this  being  what  is  re- 
quired in  an  answer,  the  answer  will 
be  responsive.  Thus,  if  a  contract  be 
set  forth  and  the  defendant  be  called 
on  to  answer  it,  a  denial  that  it  exists 
modo  et  forma  would  not  be  good  ac- 
cording to  chancery  practice,  for  this 
is  subject  to  the  implication  that  it  ex- 
isted in  some  other  form.  To  avoid 
this,  the  defendant  should  state  how 
it  existed  and  wherein  it  had  no  ex- 
istence. Pusey  z/.  Wright,  31  Pa.  St. 
395;  Bell  V.  Farmers'  D.-N.  Bank,  131 
Pa.  St.  318. 

Statements  of  Party  under  Oath. — The 
statements  of  a  party  under  oath,  upon 
the  taking  of  an  account,  cannot  have 
the  character  or  effect  of  matter  in  an 
answer  responsive  to  a  bill,  except 
perhaps  so  far  as  they  are  answers  to 
the  interrogatories  of  the  other  party, 
or  explanations  of  such  answers.  Hol- 
lister  V.  Barkley,  11  N.  H.  501. 

7 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 

defendant  is  material  to  complainant's  case  or  is  a  circumstance 
from  which  a  material  fact  may  be  inferred,  the  answer  in  such 
case  is  responsive  to  the  bill  and  is  evidence  in  the  cause.* 

Answer  to  Premises  of  Bill. — If  the  respondent  answers  in  relation 
to  the  premises  of  the  bill  what  the  complainant  could  have  re- 
quired him  to  answer  by  an  interrogatory,  the  answer  must 
necessarily  be  regarded  as  responsive  to  the  bill.'-* 

Test. — It  is  considered  a  test  of  responsiveness  whether,  as  a 
witness  upon  cross-examination,  the  defendant  could  be  cross- 
examined  as  to  the  matter  which  he  states  in  anticipation  of  his 
defense  on  a  trial  at  law.^ 

Setting  Forth  All  the  Facts. — A  responsive  denial  of  the  averments 
of  the  bill  is  not  made  any  less  so  by  setting  forth  all  the  facts, 
though  some  new  matter  may  be  incidentally  introduced  thereby.* 

/.  What    is    Not    Responsive.— An   answer  which  afifirm- 


1.  Schwarz  v.  Wendell, Walk.  (Mich.) 
267. 

How  Far  Responsive. — An  answer  is 
only  so  far  responsive  as  it  answers  to 
a  material  statement  or  charge  in  the 
bill  as  to  which  a  disclosure  is  sought; 
and  which  is  a  subject  of  parol  proof 
but  no  further.  Neale  v.  Hagthrop,  3 
Bland  (Md.)  567. 

Material  Facts. — The  plaintiff  in  his 
bill  against  a  corporation  and  its  stock- 
holders denying  his  right  alleged  that 
he  was  an  original  subscriber  for 
stock  in  the  corporation;  that  he  ten- 
dered the  company  the  amount  due 
on  his  stock,  which  was  refused  and 
his  right  as  stockholder  denied.  The 
answer  admitted  his  subscription  for 
said  stock,  but  alleged  that  it  was  ac- 
companied with  an  agreement  that  the 
subscription  was  wholly  for  the  use 
of  one  of  the  defendant  stockholders. 
It  was  held  that  the  allegation  in  the 
answer  was  not  subsequent  matter  al- 
leged in  avoidance,  but  a  material 
portion  of  the  facts  in  the  case,  and 
that  the  answer  was  responsive  to  the 
bill.    Rowley's  Appeal,  115  Pa.  St.  150. 

Answer  Averring  Dormant  Partnership. 
— Where  a  bill  charges  a  partnership, 
an  answer  that  the  partnership  is  dor- 
mant and  unknown  to  the  defendants 
is  responsive  to  the  charge  and  need 
not  be  sustained  by  proof.  Cammack 
V.  Johnson,  2  N.  J.  Eq.  163. 

As  to  Consideration  of  Mortgage. — 
Upon-a  bill  to  set  aside  a  mortgage  as 
fraudulent,  the  answers  as  to  the  con- 
sideration are  responsive  and  there- 
fore evidence.  Walthall  v.  Rives,  34 
Ala.  91. 


Averring  Title. — Where  an  interroga- 
tory in  the  bill  calls  on  the  defendant 
to  show  by  what  pretended  claim  he 
refuses  to  deliver  possession  of  the 
property,  the  answer  setting  forth  the 
defendant's  title  is  responsive  and  is 
evidence  for  him.  Smith  v.  Atwood, 
14  Ga.  402. 

2.  Dunham  v.  Jackson,  6  Wend.  (N. 
Y.)  30. 

3.  Eaton's  Appeal,  66  Pa.  St, 
483- 

"  It  appears  to  me  that  the  true  test 
of  the  inquiry  upon  the  force  of  an  an- 
swer is  to  suppose  the  case  was  upon, 
a  trial  before  a  jury.  The  propriety 
of  a  particular  question  addressed  to 
a  witness  is  to  be  determined  by  its 
relevancy  to  the  issue  by  the  fact 
whether  the  witness  can  be  compelled 
to  answer  it,  and  by  the  fact  whether 
the  answer  will  furnish  legal  testi- 
mony. Now,  bring  the  present  in- 
terrogatory to  the  trial  of  these  de- 
cisions. The  issue  is  whether  the 
mortgage  was  not  fraudulent  and  to 
defeat  the  judgment.  The  reply  being 
in  the  negative,  a  question,  what  was 
the  object  in  giving  it,  is  plainly  rele- 
vant. The  witness  could  certainly  be 
compelled  to  answer  it,  and  upon  an 
issue  of  fraud  the  reply  of  a  witness 
present  when  it  was  executed  would 
be  legal  evidence,  and  I  look  upon  the 
answer,  therefore,  as  evidence  and 
tlie  matters  averred,"  Assistant  Vice- 
Chancellor  in  Dunham  v.  Gates,  i 
Hoffm.  Ch.  (N.  Y.)  189. 

4.  Seybert  v.  Robinson,  13  Pa.  Co. 
Ct.  Rep.  198. 


)i8 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 

atively  asserts  a  right  in  opposition  to  the  complainant's  demand, 
or  insists  upon  a  distinct  fact  in  avoidance,  is  not  responsive  to 
the  bill.i 

Facts  in  Answer  Distinct  from  Those  in  Bill. — So  where  the  facts  averred 
in  the  answer  are  distinct  from  those  charged  in  the  bill,  even  if 
part  of  same  transaction,  they  will  not  be  deemed  responsive.'-* 


1.  Stevens  v.  Post,  12  N.  J.  Eq.  408; 
Parkes  v.  Gorton,  3  R.  I.  27. 

Asserting  a  Right  Not  Responsive. — In 
seeking  atfirmatively  to  assert  a  right, 
the  enforcement  of  which  is  insisted 
upon  as  a  condition  precedent  or  con- 
current with  the  relief  asked  for  by 
the  complainant,  the  answer  alleges  a 
distinct  fact  in  no  wise  responsive  to 
the  bill  and  which  must  be  established 
by  evidence.  Ingersoll  v.  Stiger,  46 
N.  J.  Eq.  511,  citing  Roberts  v.  Bir- 
gess,  20  N.  J.  Eq.  139;  Fey  v.  Fey,  27 
N.  J.  Eq.  213;  Brown  v.  Kahnweiler, 
28  N.  J.  Eq.  311. 

What  is  Matter  in  Avoidance. — Matter 
in  avoidance  is  something  subsequent 
to  and  distinct  from  or  dehors  the  fact 
admitted;  but  if  the  admission  and 
avoidance  constitute  one  single  fact  or 
t-ransaction,  the  answer  is  evidence  of 
both.  Reid  v.  McCallister,  49  Fed. 
Rep.  16;  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  (N.  Y.)87. 

Answers  Not  Responsive  Illustrated. — 
If  a  bill  alleges  that  the  defendant 
falsely  and  fraudulently  represented 
that  he  was  able  to  make  a  title,  and 
the  defendant,  without  denying  the 
charge,  asserts  his  ability  to  make  the 
title,  his  answer  is  not  responsive  and 
the  burden  of  proof  is  upon  him. 
Wellborn  v.  Tiller,  10  Ala.  306. 

Where  the  bill  set  out  the  making 
of  a  contract,  alleged  its  loss,  and 
treated  it  as  a  contract  in  force,  it  was 
held  that  this  did  not  permit  that  an 
averment  of  its  cancellation  by  the  re- 
spondents, in  their  answer,  should  be 
considered  as  evidence.  Sheldon  v. 
Sheldon,  3  Wis.  699. 

Where  a  bill  alleges  the  confession 
of  a  judgment  by  one  defendant  to  an- 
other to  have  been  made  fo  the 
purpose  of  hindering,  delaying,  and 
defrauding  the  creditors  of  the  former, 
but  makes  no  change  and  asks  no  dis- 
covery touching  the  consideration  of 
the  judgment,  an  allegation  in  the  an- 
swer that  the  judgment  was  confessed 
for  a  pre-existing,  bona-fide  debt  is  not 
responsive  to  the  bill.  Ware  v.  Jordan, 
21  Ala.  837. 


91 


Where  a  bill  alleged  that  a  note  was 
placed  in  the  hands  of  the  defendant 
to  collect  without  investing  him  with 
any  interest  in  it,  and  the  defendant 
answered  that  the  note  was  left  with 
him  to  collect  and  pay  himself  debts 
which  the  plaintiff  owed  him  and  to 
secure  subsequent  advances  which  he 
agreed  to  make  for  the  complainant, 
it  was  held  that  the  answer  was  not 
responsive.  Dunn  v.  Dunn,  8  Ala. 
784. 

Where  a  bill  alleged  that  the  holder 
of  a  note  knew  at  the  time  it  was  as- 
signed to  him  that  it  was  made  upon 
a  gaming  consideration  and  called 
upon  him  to  state  under  what  cir- 
cumstances it  was  assigned,  an  answer 
that  before  the  note  was  assigned  the 
complainant  informed  the  defendant 
it  was  good,  and  he  had  no  set-offs 
against  it,  was  held  not  to  be  respon- 
sive. Manning  v.  Manning,  8  Ala. 
138. 

Where  the  allegations  of  a  bill  are 
that  the  parties  entered  into  a  written 
agreement  and  that  the  defendant 
violated  the  same,  and  defendant  an- 
swers that  she  has  the  right  to  do  so 
by  virtue  of  a  parol  agreement  entered 
into  at  the  same  time,  such  answer  is 
not  responsive,  and  the  burden  of 
proving  the  parol  agreement  is  upon 
the  defendant.  Kenny's  Appeal  (Pa., 
1888),  12  Atl.  Rep.  589. 

2.   Parkes  v.  Gorton,  3  R.  I.   27. 

Answer  Neither  Admitting  Nor  Denying 
Allegations. — An  answer  neither  admit- 
ting nor  denying  an  alleged  agree- 
ment, but  averring  that  the  plaintiff 
had  done  nothing  by  himself  or  at- 
torney to  induce  the  defendants  not  to 
make  their  defense  at  law,  is  not  re- 
sponsive to  the  bill.  Pelham  v.  More- 
land,  II  Ark.  442. 

Answer  Alleging  Settlement. — Where 
a  bill  brought  to  procure  settlement  of 
a  partnership  account  did  not  allege 
any  settlement,  but  the  answer  set 
forth  a  full  accounting  and  settlement, 
it  was  held  that  this  was  not  respon- 
sive to  the  bill  and  could  not  be  con- 
sidered as  evidence,  but  that,  coming 

9 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Statement  Not  Called  For. — And  it  seems  that  a  statement  of  the  an- 
swer expressly  waived  or  not  called  for  is  not  responsive  and 
therefore  not  evidence.*  Nor  will  it  be  so  if  the  whole  allegation 
in  the  answer  might  have  been  left  out.* 

Answer  Not  Stating  All  Material  Facts.  — If  the  answer  does  not  state 
all  the  material  facts,  it  will  be  held  not  to  be  responsive.^ 

2.  Answer  Containing  New  Matter.— As  before  stated,  the  an- 
swer, when  responsive  to  the  allegation  of  the  bill,  is  evidence  for 
defendant.  But  if  the  answer  is  not  responsive,  or  sets  up  affirma- 
tive allegations  of  new  matter  not  stated  or  inquired  of  in  the  bill 
in  opposition  to  or  in  avoidance  of  complainant's  demand,  and  is 
replied  to,  the  answer  is  of  no  avail  in  respect  to  such  allegations, 
and  the  defendant  is  bound  to  establish  them  by  evidence  aliunde.'*^ 


in  by  way  of  defense,  it  must  be  re- 
garded in  the  nature  of  a  plea.  Spauld- 
ing  V.  Holmes,  25  Vt.  491. 

Claim  of  Homestead  in  Foreclosure  Suit. 
— In  a  suit  to  foreclose  a  mortgage  not 
acknowledged  as  required  to  alienate 
a  homestead,  a  claim  of  the  homestead 
exemption  in  the  answer  is  not  respon- 
sive to  the  bill  and  cannot  be  proved 
by  the  answer  itself  without  other 
testimony.     Goodloe  v.  Dean,  81  Ala. 

479- 

1.  Jones  V.  Belt,  2  Gill  (Md.)  106. 

2.  Eaton's  Appeal,  66  Pa.  St.  483. 

"  If  the  whole  subject-matter  of  the 
statements  or  allegations  in  the  an- 
swer might  have  been  left  out,  then 
the  allegations  in  the  answer  upon 
that  subject  are  in  no  sense  responsive 
to  the  bill,  the  bill  requiring  no  state- 
ment upon  that  point;  but  if  the  omis- 
sion of  some  statement  upon  that  sub- 
ject would  furnish  just  ground  of 
exception  to  the  answer,  then  the 
statement  to  the  extent  to  which  it  is 
required  and  whatever  its  character, 
whether  affirmative  or  negative,  is  but 
a  response  to  the  inquisition  of  the 
plaintiff."  Parker,  C.J.,  in  Bellows  v. 
Stone,  18  N.  H.  475. 

3.  Neale  v.  Hagthrop,  3  Bland  (Md.) 
567.  In  this  case  the  bill  called  for 
the  production  of  evidence  which,  from 
the  nature  of  the  plaintiff's  case,  he 
had  a  right  to  claim  and  which  might 
be  necessary  and  useful  to  him  in 
other  cases.  It  was  held  that  the  an- 
swer merely  asserting  the  fact,  with- 
out saying  anything  of  the  evidence, 
of  its  existence  or  the  means  of  obtain- 
ing it,  was  not  responsive. 

4.  Alabama. — Forest  v.  Robinson,  2 
Ala.  215;  Buchanan  v.  Buchanan,  72 
Ala.  55;  Brandon  v.  Cabiness,  10  Ala. 


155;  Royall  V.  McKenzie,  25  Ala.  363; 
Keifferz/.  Barney,  31  Ala.  192;  Hanson 
V.  Patterson,  17  Ala.  738;  McGowen  v. 
Young,  2  Stew.  &  P.  (Ala.)  160;  Walker 
V.  Palmer,  24  Ala.  358  ;  Walker  v. 
Miller,  11  Ala.  1067;  Gordon  v.  Bell, 
50  Ala.  213;  Lucas  v.  Darien  Bank,  2 
Stew.  (Ala.)  280;  Dunn  v.  Dunn,  8  Ala. 
784;  Huntsville  Branch  Bank  v.  Mar- 
shall, 4  Ala.  60;  Barton  v.  Barton,  75 
Ala.  400;  Frazer  v.  Lee,  42  Ala.  25; 
Webb  V.  Webb,  29  Ala.  588;  Powell  v. 
Powell,  10  Ala.  900. 

Arkansas. — Stillwell  v.  Badgett,  22 
Ark.  163;  Shields  v.  Trammell,  19  Ark. 
51;  Pelham  v.  Floyd,  9  Ark.  530;  Pat- 
ton  V.  Ashley,  8  Ark.  290;  Walker  v. 
Scott,  13  Ark.  644:  Byers  v.  Fowler,  12 
Ark.  286,  54  Am.  Dec.  287;  Roberts  v. 
Totten,  13  Ark.  609;  Pelham  v.  More- 
land,  II  Ark.  442;  Scott  V.  Henry,  13 
Ark.  112;  Wheat  v.  Moss,  16  Ark.  243; 
Whiting  V.  Beebe,  12  Ark.  588;  Mag- 
niss  V.  Arnold,  31  Ark.  103. 

Connecticut. — Marion  v.  Faxon,  20 
Conn.  486. 

Delaivare. — Merriken  v.  Godwin,  2 
Del.  Ch.  236. 

Florida. — Simpson  v.  Barnard,  5  Fla. 
528. 

Kentucky. — Thurstall  v.  McClelland, 
3  Ky.  528;  Vance  v.  Vance,  5  T.  B. 
Mon.  (Ky.)  521;  Prior  v.  Richards,  4 
Bibb  (Ky.)  356;  Lampton  v.  Lampton, 
6  T.  B.  Mon.  (Ky.)  620;  Carter  v. 
Leeper,  5  Dana  (Ky.)  263;  At  wood  v. 
Harrison,  5  J.  J.  Marsh.  (Ky.)  329  ; 
Todd  V.  Sterrett,  6  J.  J.  Marsh.  (Ky.) 
425;  Lyon  V.  Respass,  i  Litt.  (Ky.)  133; 
Chinowith  v.  Williamson,  2  Bibb  (Ky.) 
38;  Ballinger  v.  Worley,  i  Bibb  (Ky.) 
195  ;  Reading  v.  Ford,  i  Bibb  (Ky.) 
338. 

Georgia, — Cartledge  v.  Cutliff,  29  Ga. 


920 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


niustratioiiB.— Thus  where  the  answer  alleges  payment  of  a  de- 
mand sought  to  be  enforced  by  bill,  the  answer  is  of  no  effect  as 


758;  Neal  V.  Patten,  40  Ga.  363;  Lee  v. 
Baldwin,  10  Ga.  208.  But  see  Laughlin 
V.  Greene,  13  Ga.  359. 

Illinois. — Cooper  v.  Tiler,  46  111.  462; 
Chambers  v.  Warren,  13  111.  318;  Rob- 
erts V.  Stigleman,  78  111.  120;  O'Brian 
V.  Fry,  82  IIJ.  274  ;  Lynn  v.  Lynn,  10 
111.  602;  Walton  V.  Walton,  70  111.  142; 
Cole  V.  Shetterly,  13  111.  App. 420;  Cum- 
mins V.  Cummins,  15  111.  33;  Brown  v. 
"W^elch,  18  111.  343,  68  Am.  Dec.  549; 
Mahoney  v.  Mahoney,  65  111.  406; 
Harding  v.  Hawkins,  141  111.  572; 
Stark  V.  Hillibert,  19  111.  343. 

Indiana. — Clark  v.  Spears,  7  Blackf. 
(Ind.)  96;  Pierce  v.  Gates,  7  Blackf. 
(Ind.)  162  ;  Green  v.  Vardiman,  2 
Blackf.  (Ind.)  324;  Wasson  v.  Gould,  3 
Blackf.  (Ind.)  18. 

Iowa. — Gilbert  v.  Mosier,  11  Iowa 
498;  Schaffner  v.  Grutzmacher,  6  Iowa 
137. 

Maine. — Buck  v.  Swazey,  35  Me.  41, 
56  Am.  Dec.  681;  Bradley  v.  Webb,  53 
Me.  462;  O'Brien  v.  Elliot,  15  Me.  125, 
32  Am.  Dec.  137;  Gould  v.  Williamson, 
21  Me.  273;  Peaks  v.  McAvey  (Me., 
1886),  7  Atl.  Rep.  270;  Gilmore  v.  Pat- 
terson, 36  Me.  544. 

Massachusetts. — New  England  Bank 
V.  Lewis,  8  Pick.  (Mass.)  113;  Leach  v. 
Fobes,  II  Gray  (Mass.)  509,  71  Am. 
Dec.  732. 

Maryland. — Ringgold  v.  Ringgold,  I 
Har.  &  J.  (Md.)  29,  18  Am.  Dec.  250; 
Maccubbin  v,  Cromwell,  7  Gill  &  J. 
(Md.)  157;  Alexander  v.  Ghiselin,  5 
Gill  (Md.)  138;  Hagthorp  v.  Hook,  i 
Gill  &  J.  (Md.)  272;  Fitzhugh  v.  Mc 
Pherson,  3  Gill  (Md.)  408;  Gardiner  v. 
Hardey,  12  Gill  &  J.  (Md.)365;  Cecils/. 
Cecil,  19  Md.  72,  81  Am.  Dec.  626  ; 
Salmon  v.  Clagett,  3  Bland  (Md.)  162; 
McNeal  v.  Glenn.  4  Md.  87;  Jones  v. 
Belt,  2  Gill  (Md.)  106. 

Mississippi. — Mitchell  v.  Tishomingo 
Saving  Inst.,  53  Miss.  613;  Williams  z/. 
Cammack,  27  Miss.  209,  61  Am.  Dec. 
508  ;  Dease  v.  Moody,  31  Miss.  617; 
Brooks  V.  Gillis,  12  Smed.  &  M.  (Miss.) 
538  ;  Planters*  Bank  v.  Stockman, 
Freem.  Ch.  (Miss.)  502  ;  Wofford  v. 
Ashcraft,  47  Miss.  645;  Parmele  v. 
McGinty,  52  Miss.  483;  Park  v.  Bam- 
berger, 52  Miss.  569;  Miller  v.  Lamar, 
43  Miss.  383;  Liddell  v.  Sims,  9  Smed. 
&  M.  (Miss.)  596;  Planters'  Bank  v. 
Courtney,  i  Smed.  &  M.  Ch.  (Miss.) 
40;  Greealeaf  v.   Highland,   i  Walk. 


(Miss.)  375;  Jack  v.  State,  14  Miss. 
494. 

Michigan. — Hart  v.  Carpenter,  36 
Mich.  402;  Schwarz  v.  Wendell,  Walk. 
(Mich.)  267;  Hunt  v.  Thorn,  2  Mich. 
213  ;  Atty.  Gen'l  v.  Oakland  County 
Bank,  Walk.  (Mich.)  90;  Millerd  v, 
Ramsdell,  Harr.  Ch.  (Mich.)  373;  Van 
Dyke  v.  Davis,  2  Mich.  144;  Newlove 
V.  Callaghan,  86  Mich.  301. 

New  Jersey. — Hutchinson  v.  Tindall, 

3  N.  J.  Eq.  357;  Beckhaus  v.  Ladner 
(N.  J.),  21  Atl.  Rep.  724;  Lovett  v. 
Demarest,  5  N.  J.  Eq.  113;  Roberts  v. 
Birgess,  20  N.  J.  Eq.  139;  Dickey  v. 
Allen,  2  N.  J.  Eq.  40;  Winans  v.  Wi- 
nans,  19  N.  J.  Eq.  220;  Fisler  v.  Porch, 
10  N.  J.  Eq.  243;  Voorhees  2/.Voorhees, 
18  N.  J.  Eq.  223;  Miller  v.  Wack,  i  N. 
J.  Eq.  204;  Neville  v.  Demeritt,  2  N.  J. 
Eq.  321;  Bray  v.  Hartough,  4  N.  J.  Eq. 
46;  Vanderhoof  v.  Clayton,  6  N.  J.  Eq. 
192;  Stevens  v.  Post,  12  N.  J.  Eq.  408; 
Miller  v.  Gregory,  16  N.  J.  Eq.  274; 
Huffman  v.  Hummer,  17  N.  J.  Eq.  263; 
Van  Dyke  v.  Van  Dyke,  26  N.  J.  Eq. 
180;  Ingersoll  v.  Stiger,  46  N.  J.  Eq. 
511;  Brown  v.  Kahweiler,  28  N.J.  Eq. 
311  ;  Morris  Canal,  etc.,  Co.  v,  Jersey 
City,  12  N.  J.  Eq.  228;  Green  v.  Pallas, 
12  N.  J.  Eq.  267;  Butler  z/.  Society,  etc., 
12  N.  J,  Eq.  264  ;  Fey  v.  Fey,  27  N.  J. 
Eq.  213. 

North  Carolina. — Woodall  v.  Prevatt, 

1  Busb.  Eq.  (N.  Car.)  199;  Jones  v. 
Jones,  I  Ired.  Eq.  (N.  Car.)  332;  John- 
son V.  Person,  i  Dev.  Eq.  (N.  Car.) 
368;  Salter  v.  Spier,  i  Tayl.  (N.  Car.) 
318;  Lyerly  v.  Wheeler,  3  Ired.  Eq.  (N. 
Car.)  599;  Fleming  v.  Murph,  6  Jo.  Eq. 
(N.  Car.)  59- 

New  York. — Simpson  v.  Hart,  14 
Johns.  (N.  Y.)  63;  Wakeman  v.  Grover, 

4  Paige  (N.  Y.)  23;  Hart  v.  Ten  Eyck, 

2  Johns.  Ch.  (N.  Y.)  89;  Atwater  v. 
Fowler,  i  Edw.  Ch.  (N.  Y.)  417;  Green 
V.  Hart,  I  Johns.  (N.  Y.)  4S0;  Dunham 
V.  Jackson,  6  Wend.  (N.  Y.)  30;  Bush 
V.  Livingston,  2  Cai.  Cas.  (N.  Y.)66, 
2  Am.  Dec.  316;  Minturn  v.  Seymour, 
4  Johns.  Ch.  (N.  Y.)499;  Anderson  v. 
Roberts,  18  Johns.  (N.  Y.)  543,  9  Am. 
Dec.  235. 

New  Hampshire. — Bellows  v.  Stone, 
18  N.  H.465;  Miles  V.  Miles,  32  N.  H. 
147,  64  Am.  Dec.  362;  Busby  v.  Little- 
field,  33  N.  H.  76;  Rogers  v.  Mitchell, 
41  N.  H.  154. 

Ohio. — Harris    v.    Carlisle,  7  Ohio 


921 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


evidence  of  such  alleged  payment  which  must  be  established  by 
independent  proof.'      Usury  set  up  by  answer  as  a  defense  must 


(Part  II)  I20  ;  Methodist  Episcopal 
Church  V.  Wood,  5  Ohio  2S3. 

Petinsylvania. — Baker  v.  Williamson, 
4  Pa.  St.  467;  Pusey  v.  Wright,  31  Pa. 
St.  387;  Coleman  v.  Ross,  46  Pa.  St.  180; 
Vollmer's  Appeal,  61  Pa.  St.  118;  Ken- 
ney's  Appeal  (Pa.,  1888),  12  Atl.  Rep. 
589;  Luburg's  Appeal  (Pa.,  1889),  17 
Atl.  Rep.  245;  Com.  v.  CuUen,  13  Pa. 
St.  143,  53  Am.  Dec.  450. 

South  Carolina. — Reeves  v.  Tucker,  5 
Rich.  Eq.  (S.  Car.)  150  ;  Gordon  v. 
Saunders,  2  McCord  Eq.  (S.  Car.)  156; 
Cloud  V.  Calhoun,  2  Rich.  Eq.  (S.  Car.) 
358;  Dyre  v.  Sturges,  3  Desaus.  Eq. 
(S.  Car.)  553;  Walker  z/.  Berry,  8  Rich. 
(S.  Car.)  33;  Ison  v.  Ison,  5  Rich.  Eq. 
(S.  Car.)  15. 

Rhode  Island. — Ives  v.  Hazard,  4  R. 
I.  14,  67  Am.  Dec.  500. 

Tennessee— '^o\i&  v.  Cawood,  i 
Heisk.  (Tenn.)  597;  Alexander  v.  Wal- 
lace, 10  Yerg.  (Tenn.)  105;  Cocke  v. 
Trotter,  10  Yerg.  (Tenn.)  213;  Wallen 
V.  Hufif,  5  Humph.  (Tenn.)  91;  Beech 
V.  Haynes,  i  Tenn.  Ch.  569;  Gass  v. 
Simpson,  4  Coldw.  (Tenn.)  2S8;  Napier 
V.  Elam,  6  Yerg.  (Tenn.)  108;  Davis  v. 
Clayton,  5  Humph.  (Tenn.)  446;  Rol- 
lings V.  Cate,  I  Heisk.  (Tenn.)  97; 
Barker  v.  McAuley,  4  Heisk.  (Tenn.) 
424 ;  Dodson  v.  Dodson,  6  Heisk. 
(Tenn.)  no;  Gass  v.  Arnold,  6  Baxt. 
(Tenn.) 329;  Humphreys  County  v.  Mc- 
Adoo,  7  Heisk.  (Tenn.)  586. 

Texas. — Jouett  v.  Jouett,  3  Tex.  150; 
Chassaign  v.  Helzel,  3  Tex.  57. 

Vermont. — Allen  v.  Mower,  17  Vt.  61 ; 
Mott  z/.  Harrington,  12  Vt.  199;  Pierson 
V.  Clayes,  15  Vt.  93;  Wells  v.  Houston, 
37  Vt.  245;  McDaniels  v.  Barnum,  5  Vt. 
279;  McDonald  v.  McDonald,  16  Vt. 
630;  Sanborn  v.  Kittredge,  20  Vt.  632, 
50  Am.  Dec.  58;  Cannon  v.  Norton,  14 
Vt.  178;  Lane  v.  Marshall,  15  Vt.  85; 
Adams  v.  Adams,  22  Vt.  50;  Spaulding 
V.  Holmes,  25  Vt.  491. 

Virginia. — Purcellz/.  Purcell,  4  Hen. 
&  M.  (Va.)  511;  Beckwith  v.  Butler,  i 
Wash.  (Va.)  224;  Kerr  v.  Love,  i  Wash. 
(Va.)  172;  Paynes  v.  Coles,  i  Munf. 
(Va.)  373;  Leas  v.  Eidson,  g  Gratt. 
(Va.)  277;  Lewis  v.  Mason,  84  Va.  731; 
Vathir  v.  Zane,  6  Gratt.  (Va.)  246. 

Wisconsin, — Parish  v.  Gear,  i  Pin. 
(Wis.)  261  ;  Garlick  v.  M'Arthur,  6 
Wis.  450;  Sheldon  v.  Sheldon,  3  Wis. 
699;  Remington  v.  Willard,  15  Wis. 
583;  Smith  V.  Potter,  3  Wis.  432;  Wal- 


ton V.  Cody,  I  Wis.  420;  Williams  v. 
Starr,  5  Wis.  534. 

West  Virginia. — Jones  v.  Cunning- 
ham, 7  W.  Va.  707;  Fluharty  v.  Beatty, 
4  W.  Va.  525. 

United  States. — Hughes  v.  Blake,  6 
Wheat.  (U.  S.)  464;  Clements  v.  Moore, 
6  Wall.  (U.  S.)  315;  Seitz'  v.  Mitchell, 
94  U.  S.  580;  Tobin  v.  Walkinshaw,  i 
McAll  (U.  S.)  26;  Randall  v.  Phillips, 
3  Mason  (U.  S.)  37S;  Flagg  v.  Mann,  2 
Sumn.  (U.  S.)  487;  Reid  v.  McCallister, 
49  Fed.  Rep.  16;  Clarke  v.  White,  12 
Pet.  (U.  S.)  190;  U.  S.  Bank  v.  Bever- 
ley, I  How.  (U.  S.)  134;  Gaines  v. 
Hennen,  24  How.  (U.  S.)  559;  McCoy 
V.  Rhodes,  11  How.  (U.  S.)  141;  Howe 
V.  Williams.  2  Cliff.  (U.  S.)  261;  U.  S. 
V.  Parrott,  i  McAll  (U.  S.)  271;  Robin- 
son V.  Cathcart,  3  Cranch  (C.  C.)  379; 
Tilghman  v.  Tilghman,  Baldw.  (U.  S.) 
464. 

England. — Thompson  v.  Lambe,  7 
Ves.  587;  Boardman  v.  Jackson,  2  B. 
&  B.  382;  Ormond  v.  Hutchinson,  13 
Ves.  47. 

1.  Defendant  in  summary  process, 
served  with  interrogatories  to  answer 
"  whether  he  had  purchased  the  goods 
charged  in  the  account  sued  on,  on 
credit,  and  at  the  prices  charged,"  an- 
swered that  he  had,  but  had  paid  the 
account.  Held,  that  the  plaintiff  was 
entitled  to  a  decree,  the  defendant's 
answer  as  to  payment  not  being  evi- 
dence for  him.  Walker  v.  Berry,  8 
Rich.  (S.  Car.)  33. 

If  a  bill  charge  that  defendant  exe- 
cuted a  bond  and  the  answer  sets  up 
payment,  that  allegation  must  be 
proven.  Nichols  v.  Daniels,  Walk. 
(Miss.)  224. 

Where  a  bill  was  brought  to  procure 
a  settlement  of  a  partnership  account, 
and  the  answer,  admitting  the  partner- 
ship, averred  a  settlement  of  the  part- 
nership accounts,  held,  that  such 
averment  was  by  way  of  defense  and 
in  the  nature  of  a  plea,  and  was  not 
responsive,  and  so  was  not  evidence, 
but  must  be  proved  by  evidence 
aliunde.  Spaulding  v.  Holmes,  25  Vt. 
491. 

Where  an  answer  alleges  payment 
and  set-off  to  the  plaintiff's  demand, 
proof  thereof  should  be  required, 
especially  where  the  answer  is  in  no 
part  taken  for  confessed.  Hickmaa 
V.  Painter,  11  W.  Va.  386. 


922 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


be  proved.*  And  an  answer  alleging  cancellation  or  agreement  to 
cancel  the  instrument  in  suit  sets  up  new  matter  which  must  be 
proved.* 

Qualifications  of  Rnle.— This  rule  is  in  some  jurisdictions,  at  least, 
qualified  to  the  extent  that  if  the  facts  alleged  in  avoidance  or 
discharge  are  responsive  to  a  direct  charge  or  interrogatory  in  the 
bill  the  answer  is  evidence  of  such  fact.'     So,  also,  it  seems  that, 


Where  plaintiff's  claim  as  set  forth 
in  the  bill  rests  upon  a  written  con- 
tract and  the  right  of  action  is  not 
barred  by  lapse  of  time,  the  admis- 
sion of  the  contract  in  the  answer,  and 
the  allegation  of  payment  or  of  any 
other  matter  merely  in  discharge,  are 
to  be  treated  as  distinct,  and  the  an- 
swer is  not  evidence  of  the  latter,  but 
must  be  proved  otherwise.  Adams  v. 
Adams,  22  Vt.  50. 

Under  a  Bill  for  Settlement  and  Account 
of  an  assignment  for  the  benefit  of 
creditors,  where  the  trustee  alleges  in 
his  answer  that  the  assignor,  with  full 
knowledge  of  all  the  facts,  assented 
to  a  settlement  of  a  debt  by  receiving 
lands  in  payment,  this  is  matter  in 
avoidance  and  requires  evidence 
aliunde  to  sustain  it.  Royal  v.  Mc- 
Kenzie,  25  Ala.  363. 

A  Bill  for  the  Settlement  of  an  Intestate's 
Estate  sought  to  charge  the  defendant 
with  a  stallion  as  an  advancement;  the 
defendant's  answer  admitted  the  gift, 
and  alleged  that  he  had  paid  his  father 
for  it.  Held,  that  the  defendant's  an- 
swer, being  in  avoidance,  was  not  evi- 
dence for  him.  Ison  v.  Ison,  5  Rich. 
Eq.  (S.  Car.)  15. 

1.  To  a  bill  of  foreclosure,  the  an- 
swer of  the  defendant  setting  forth 
usury  in  the  mortgage  as  a  defense  is 
not  to  be  taken  as  evidence  for  him, 
unless  complainant  asks  for  a  dis- 
closure on  that  subject,  but  it  is  only 
equivalent  to  a  plea  of  the  statute  of 
usury.  McDaniels  v.  Barnum,  5  Vt. 
279.  '  . 

Where  complainant,  in  his  bill,  in- 
quired as  to  the  consideration  of  a  note, 
but  asked  nothing  as  to  usury,  and 
defendant  in  his  answer  alleged  usury, 
complainant's  note  was  held  prima- 
facie  evidence  of  a  full  and  adequate 
consideration,  and  the  answer  was 
held  not  to  be  evidence  of  the  usury 
which  ought  to  be  proved.  Green  v. 
Hart,  I  Johns.  (N.  Y.)  480. 

2.  Where  an  answer  acknowledges 
an  assignment  set  up  in  the  bill,  but 
alleges  that  it  has  been  cancelled,  the 

92 


answer  is  not  evidence  of  the  cancella- 
tion, but  it  must  be  proved.  Wasson 
V.  Gould,  3  Blackf.  (Ind.)  18. 

Where  defendant  in  a  bill  to  fore- 
close a  mortgage  answer  under  oath, 
admitting  the  execution  of  the  mort- 
gage, but  alleging  that  it  was  given  in 
lieu  of  another  mortgage,  that  com- 
plainant agreed  to  cancel  and  return 
to  defendant,  which  he  failed  to  do, 
and  praying  that  he  may  be  compelled 
to  so  cancel  and  return  it  before  the 
relief  sought  is  granted,  the  answer  is 
evidence  only  so  far  as  it  is  responsive 
to  the  bill,  and  the  burden  is  upon  de- 
fendant to  establish  the  alleged  agree- 
ment which  is  new  matter  by  othar 
evidence.  Ingersoll  v.  Stiger,  46  N.  J. 
Eq.  511. 

Discharge  of  Lien  Sought  to  be  En- 
forced.— On  a  bill  to  enforce  a  vendor's 
lien,  it  appeared  by  the  answer  that 
the  original  notes  given  for  the  pur- 
chase-money had  been  taken  up,  and 
new  ones  given  in  satisfaction  and  dis- 
charge of  the  vendor's  lien.  Held,  that 
although  the  answer  was  only  evi- 
dence of  the  complainant  connecting 
the  present  notes  with  the  deed  under 
which  the  lien  was  claimed,  the  part  of 
the  answer  alleging  a  discharge  of  the 
lien  was  not  evidence.  Planters'  Bank 
V.  Courtney,  i  Smed.  &  M.  Ch.  (Miss.) 
40. 

3.  Shownz/.  McMackin,QLea(Tenn.) 
601,  42  Am.  Rep.  680;  Beech  v.  Haynes, 

1  Tenn.  Ch.  569:  Hopkins  z*.  Spurlock, 

2  Heisk.  (Tenn.)  152;  Alexander  v. 
Wallace,  10  Yerg.  (Tenn.)  105;  Walter 
V.  McNabb,  i  Heisk.  (Tenn.) 709;  Gass 
V.  Simpson,  4Coldw.  (Tenn.)  288;  Pugh 
V.  Pugh,  9  Ind.  132;  Green  v.  Vardi- 
man,  2  Blackf.  (Ind.)  324;  Nash  v. 
Hall,  4  Ind.  449;  Smith  v.  Clark,  4 
Paige  (N.  Y.)  373;  Woodcock  v.  Ben- 
net,  I  Cow.  (N.  Y.)  744;  Simpson  v. 
Hart,  14  Johns.  (N.  Y.)  63;  Lyons  v. 
Miller,  6  Gratt.  (Va.)  427,  52  Am.  Dec. 
129;  Fant  V.  Miller,  17  Gratt.  (Va.) 
187. 

In  Alabama  it  has  been  held  that  the 
answer  of  a  defenda^nt  admitting  the 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Eridence. 


where  the  answer  admits  facts  which  charge  the  defendant  and  in 
addition  setsupmatter  which  discharges  him,  the  latter  is  evidence 
for  defendant  if  the  charge  and  discharge  arise  out  of  one  trans- 
action.^  The  early  decisions  even  went  so  far  as  to  hold  that  a 
discharge  in  the  same  sentence  with  the  charge  would  be  evidence 
when  it  would  not  have  been  if  stated  separately,  on  the  ground 
that  the  whole  context  must  be  read.^  This  doctrine  no  longer 
obtains;  and  if  the  matter  in  avoidance  has  been  interwoven  into 
the  sentence  containing  responsive  admissions,  it  will  be  con- 
siderea  as  stricken  out.^ 

3.  Hearing  on  Bill  and  Answer. — Where  a  suit  in  equity  is  set 
down  for  hearing  on  bill  and  answer  alone,  the  general  rule  is  that 
the  answer  is  to  be  considered  as  true  in  all  its  allegations, 
whether  responsive  or  not,  on  the  ground  that  complainant's  fail- 
ure to  put  in  issue  by  replication  the  facts  alleged  in  the  answer 
would  preclude  defendant  from  proving  them.* 


indebtedness  originally  charged  in  the 
bill.butallegingpayment,  if  responsive 
to  the  allegations  and  interrogatories, 
is  at  least  prima-facie  evidence  for  the 
party  making  it,  if  not  absolute  proof 
of  the  facts  stated,  so  as  to  require 
the  usual  countervailing^  proof  in  cases 
necessary  to  outweigh  an  answer  in 
chancery.  King  v.  Payan,  i8  Ark. 
583.  See  also  Wheat  v.  Moss,  16  Ark. 
241. 

1.  Cooper  V.  Tappan,  g  Wis.  364; 
Green  v.  Vardiman,  2  Blackf.  (Ind.) 
325;  Beech  v.  Haynes,  i  Tenn.  Ch. 
569;  Robinson  v.  Scotney,  19  Ves.  582; 
Ormond  v.  Hutchinson,  13  Ves,  47. 
See  also  Neal  v.  Robinson,  8  Humph. 
(Tenn.)  435;  Bartlett  v.  Gillard,  3 
Russ.  15;  Thompson  z^.  Lambe,  7  Ves. 
588. 

In  Green  v.  Vardiman,  2  Blackf. 
(Ind.)  330,  the  court  said:  "  Where  an 
answer  is  confined  to  such  facts  as  are 
necessarily  required  by  the  bill  and 
those  that  are  necessarily  connected 
with  them  forming  a  part  of  the  same 
transaction,  the  answer  is  to  be  taken 
as  true  when  it  discharges  as  well  as 
where  it  charges  defendant." 

In   Beech  v.   Haynes,   i  Tenn.   Ch. 

570,  the  court  said  "  A  qualification 
of  the  general  rule  is  that  when  the 
transaction  is  a  continuous  one  and 
the  matters  of  charge  and  discharge 
occur  at  the  same  time,  the  whole 
statement  must  be  taken  together. 
See  also  Tighlman  v.  Tighlman, 
Baldw.  (U.  S.)464. 

2.  Beech  v.    Haynes,    i    Tenn.   Ch. 

571,  «V?w^  Ridgeway  v.  Darwin,  7  Ves. 
404;  Thompson  v,  Lambe.  7  Ves.  404. 

924 


3.  Beech  v.  Haynes,  i  Tenn.  Ch. 
571,  citing  McCoy  v.  Rhodes,  11  How. 
(U.  S.)  131;  Baker  v.  Williamson,  4  Pa. 
St.  467. 

4.  Alabama. — Lampley  v.  Weed,  27 
Ala.  621;  Lowry  z/.  Armstrong,  3  Stew. 
&  P.  (Ala.)  297;  Cherry  v.  Belcher,  5 
Stew.  &  P.  (Ala.)  134;  Pauling  v.  Stur- 
gis,  3  Stew.  &  P.  (Ala.)  95. 

Arkansas. — Hannah  v.  Carrington, 
18  Ark.  85. 

Florida. — Carr  v,  Thomas,  18  Fla. 
736;  White  V.  Walker,  5  Fla.  478; 
Simpson  v.  Barnard,  5  Fla.  528;  Ste- 
phens V.  Orman,  10  Fla.  9. 

District  of  Columbia.  —  Birdsall  v. 
Welch,  6  D.  C.  316. 

Georgia. — Baldwin  v.  Lee,  7  Ga.  186. 

Illinois. — Prettyman  v.  Barnard,  37 
111.  105;  Derby  v.  Gage,  38  111.  27; 
Trout  t/.  Emmons,  29  111.  433;  Buntain 
V.  Wood,  29  111.  504;  Mason  v.  Mc- 
Girr,  28  111.  322;  De  Wolf  v.  Long,  7 
111.  679;  Fordyce  v.  Shriver,  115  111. 
530;  Cook  County  v.  Great  Western 
R.  Co.,  119  111.  218;  Cassell  v.  Ross, 
33  111.  244,  85  Am.  Dec.  270;  Knapp  v. 
Gass,  63  111.  492;  Kitchell  v.  Burgwin, 
21  111.  40;  Paine  v.  Frazier,  5  III.  55. 

Where  no  replication  to  a  sworn 
answer  is  filed,  and  defendant  treats 
the  cause  as  at  issue,  and  joins  in  tak- 
ing the  depositions  of  witnesses,  and 
consents  to  set  down  the  cause  for 
hearing  on  the  bill,  answer,  exhibits, 
and  depositions,  he  cannot  then,  on 
error,  invoke  the  statute  in  his  favor, 
which  provides  that,  in  default  of  fil- 
ing a  replication,  the  cause  may  be 
set  for  hearing  upon  i'  ^  bill  and 
answer,    in   which    case    t.ae    answer 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Even  though  Eeplication  be  Filed,  if  the  cause  IS  set  down  for  hearing 


shall  be  taken  as  true;  and  no  evi- 
dence shall  be  received  unless  it  may 
be  matter  of  record  to  which  the 
answer  refers.  Marple  v.  Scott,  41 
III.  50.  See  also  Corbus  v.  Teed,  69 
111.  206. 

When  new  answers  are  filed  after 
replication,  without  leave  or  order  of 
the  court,  and  the  cause  is  heard  with- 
out any  replication  to  the  new  answers, 
(.hey  wi'A  not  be  taken  as  true,  but  will 
be  disregarded.  Roberts  v.  Stigle- 
man.  78  111.  120. 

Indiana. — Hale  v.  Plummer,  6  Ind. 
121. 

Iowa. — Childs  v.  Horr,  i  Iowa  432; 
Westfall  V.  Lee,  7  Iowa  12;  Jones  v. 
Jones,  13  Iowa  276. 

Kentucky. — Scott  v.  Clarkson,  i 
Bibb  (Ky.)  277;  Scott  v.  Cook,  4  T. 
B.  Mon.  (Ky.)  280;  Myers  v.  Baker, 
Hardin  (Ky.)  553- 

Maine. — Dascomb  v.  Marston,  80 
Me.  223. 

Maryland. — Eversole  v.  Maull,  50 
Md.  96;  Warren  v.  Twilley,  10  Md.  39; 
Mickle  V.  Cross,  10  Md.  352;  Estep  v. 
Watkins,  i  Bland  (Md.)  488;  Salmon 
V.  Clagett,  3  Bland  (Md.)  141;  Contee 
V.  Dawson,  2  Bland  (Md.)  264;  Ware 
V.  Richardson,  3  Md.  505;  McKim  v. 
Odom,  3  Bland  (Md.)  407;  Mason  v. 
Martin,  4  Md.  124. 

Massachusetts. — Copeland  v.  Crane,  9 
Pick.  (Mass.)  73;  Tainter  v.  Clarke,  5 
Allen  (Mass.)  66;  Perkins  v.  Nichols, 
II  Allen  (Mass.)  542. 

New  Hampshire. — Rogers  v.  Mitch- 
ell, 41  N.  H.  154. 

Mississippi. — Russell  v.  Moffitt,  6 
How.  (Miss.)  303. 

New  York. — Atkinson  v.  Manks,  i 
Cow.  (N.  Y.)  703;  Green  v.  Hart,  i 
Johns.  (N.  Y.)  580;  Dale  v.  M'Evers,  2 
Cow.  (N.  Y.)  118;  Brinckerhoff  v. 
Brown,  7  Johns.  Ch.(N.  Y.)  217;  Hart 
V.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  88. 

North  Carolina. — White  v.  Green,  i 
Ired.  Eq.  (N.  Car.)  45. 

Ohio. — Gwin  v.  Sedley,  5  Ohio  St. 
96;  Richards  z/.  Friedly,  Wright  (Ohio) 

753- 

Pennsylvania. — Naglee's  Estate,  52 
Pa.  St.  154;  Russell's  Appeal,  34  Pa. 
St.  258;  Thomas  v.  Ellmaker,  i  Pars. 
Eq.  Cas.  (Pa.)  98;  Conrad's  Estate, 
36  Leg.  Int.  (Pa.)  84;  Randolph's  Ap- 
peal, 66  Pa.  St.  178;  Hengst's  Appeal, 
24  Pa.  St.  413;  Mazet  v.  Pittsburg,  137 
Pa.  St.  548. 

Michigan. — Huyck  v.  Bailey  (Mich., 


1894),  58  N.  W.  Rep.  1002;  Ruhlig  v. 
Wiegert,  49  Mich.  399;  Durfee  v.  Mc- 
Clurg,  6  Mich.  223;  Davenport  v. 
Auditor  Gen'l,  70  Mich.  192. 

New  Jersey. — N.  J.  Ch.  Act,  §  38; 
McCully  V.  Peel,  42  N.  J.  Eq.  493; 
Reed  v.  Reed.  16  N.  J.  Eq.  248;  Gaskill 
V.  Sine,  13  N.  J.  Eq.  130;  Cammann  z-. 
Traphagen,  i  N.  J.  Eq.  28;  Taylor  v. 
Thomas,  5  N.  J.  Eq.  331;  Allen  v. 
Cole,  9  N.  J.  Eq.  286;  Fowler  v.  Roe, 
II  N.  J.  Eq.367;  Force  v.  Dutcher,  17 
N.  J.  Eq.  165;  Graham  v.  Berryman, 
19  5f.  J.  Eq.  29,  574;  Winslow  v.  Hud- 
son, 21  N.  J.  Eq.  172;  Hofif  V.  Burd,  17 
N.  J.  Eq.  201;  Booraem  v.  Wells,  19 
N.  J.  Eq.  87;  Morris,  etc.,  R.  Co.  v. 
Blair,  9  N.  J.  Eq.  635;  Thomas  v.  De- 
Baum,  14  N.  J.  Eq.  37;  Belford  v. 
Crane,  16  N.  J.  Eq.  265.  84  Am.  Dec. 
155;  Vanderveer  v.  Holcomb,  17  N.  J. 
Eq.  547;  Bunker  v.  Anderson,  32  N. 
J.  Eq.  35;  Doremus  v.  Cameron,  49  N. 
J.  Eq.  I. 

Vermont. — Doolittle  v.  Gookin,  10 
Vt.  265;  Slason  v.  Wright.  14  Vt.  218; 
Wright  V.  Bates,  13  Vt.  341;  Gates  v. 
Adams,  24  Vt.  70. 

Virginia. — Jones  v.  Mason,  5  Rand. 
(Va.)  577,  16  Am.  Dec.  761;  Kennedy 
V.  Baylor,  i  Wash.  (Va.)  162;  Pickett 
V.  Chilton,  5  Munf.  (Va.)  467,  Findlay 
V.  Smith,  6  Munf.  (Va.)  142,  8  Am. 
Dec.  733;  Blanton  v.  Brackett,  5  Call 
(Va.)  232. 

West  Virginia. — Copeland  z/.McCue, 
5  W.  Va.  264;  Cleggett  v.  Kittle,  6  W. 
Va.  452;  Bierne  v.  Ray,  37  W.  Va.  571; 
Snyder  v.  Martin,  17  W.  Va.  276; 
Martin  z/.  Rellehan,  3  W.  Va.  480. 

Wisconsin. — Walton  v.  Cody,  i  Wis. 
420. 

United  States.— V.  S.  v.  Scott,  3 
Woods  (U.  S.)  334;  Woodruff  v.  Du- 
buque, etc.,  R.  Co.,  30  Fed.  Rep.  gi; 
U.  S.  V.  Trans-Missouri  Freight 
Assoc,  58  Fed.  Rep.  58,  7  C.  C.  A. 
15;  Peirce  v.  West,  i  Pet.  (C.  C.)  355; 
Getting  v.  Burch,  9  Cranch  (U.  S.) 
372;  Leeds  v.  Marine  Ins.  Co.,  2 
Wheat.  (U.  S.)  380.  Contra,  Gunnell  v. 
Bird,  xo  Wall.  (U.  S.)  304,  in  which  it 
was  held  that  an  allegation  in  a  bill 
evidently  impertinent  to  the  bill  cannot 
be  used  as  evidence  for  defendant 
even  though  no  replication  be  filed. 

England. — Barker  v.  Wyld,  i  Vern. 
140;  Grosvenor  v.  Cartwright,  2  Ch. 
Cas.  21;  Wrottesley  v.  Bendish,  3  P. 
Wms.  237,  n.;  Wright  ».  Nutt,  3  Bro. 
C.  C.  339. 


925 


Answers  as      ANS  WEES  J  A'  EQUITY  PLEADING.         Evidence. 

on  bill  and  answer,  the  answer  must  be  taken  as  true  in  al'  vts 
parts,  notwithstanding  the  replication.* 

statutory  Change  of  Eule. — By  statutory  enactment  in  some  jurisdic- 
tions, the  general  rule  as  above  stated  has  been  altered,  and  the 
answer  will  not  be  considered  true  when  heard  on  bill  and  answer 
alone.* 

4.  Hearing  on  Bill,  Answer,  and  Replication. — If  a  cause  be  set 
down  for  hearing  on  bill,  answer,  and  replication,  without  proofs, 
the  answer  will  be  taken  as  true  only  so  far  as  it  is  responsive  to 
the  allegations  of  the  bill.  If  it  set  up  matters  by  way  of  defense 
or  avoidance  of  complainant's  demand,  such  matters  must  be 
proved  or  they  will  not  be  considered.^ 


1.  Moore  v.  Hylton,  i  Dev.  Eq. 
(N.  Car.)  433. 

2.  Thus  in  Alabama  when  the  cause 
is  heard  on  bill  and  answer  without 
testimony,  the  answer  must  be  taken 
to  be  true  "so  far  as  it  is  responsive 
to  the  allegations  of  the  bill."  except 
in  those  cases  where  the  complainant 
has  waived  the  oath  of  the  defendant 
to  the  answer.  Code  Ala.  1886,  ^  3445; 
Bates  V.  Murphy,  2  Stew.  &  P.  (Ala.) 
165;  Keiffer  v.  Barney,  31  Ala.  192; 
Frazer  v.  Lee,  42  Ala.  25;  Marks  v. 
Cowles,  61  Ala.  309;  Wynn  v.  Rosette, 
66  Ala.  517;  Green  v.  Casey,  70  Ala. 
417;  Buchanan  v.  Buchanan,  72  Ala. 
56;  Foxworth  V.  White,  72  Ala.  231. 

When  a  cause  is  heard  upon  the  bill 
and  exhibit  to  the  bill,  the  answer  and 
exhibits  to  the  answer  of  one  of  the 
defendants,  and  a  decree  pro  confesso 
against  the  other  defendant,  and  the 
complainant  has  waived  the  oath  of 
the  defendants  to  the  answer,  and 
there  is  no  testimony  taken  by  any  of 
the  parties,  "and  the  answer  sub- 
mitted on  the  hearing  is  a  responsive 
denial  of  all  the  grounds  of  equity 
alleged  in  the  bill,"  such  an  answer 
must  prevail  against  the  bill.  Latham 
V.  Staples,  46  Ala.  462. 

Hearing  on  Bill  and  Answer  by  Con- 
sent.— Facts  stated  in  an  answer  as  a 
defense  to  the  bill,  which  are  not  re- 
sponsive to  it,  will  not  be  taken  as  true, 
unless  the  cause  is  heard  on  bill  and 
answer,  by  consent.  Forrest  v.  Rob- 
inson, 2  Ala.  215. 

The  defendant  having  answered  the 
bill,  but  no  testimony  being  taken,  the 
parties  agreed  in  writing  that  the  com- 
plainants were  heirs  as  described  in 
the  bill,  and  to  submit  the  cause  to  the 
chancellor,  which  was  done.  Held,  that 
this  was  a  hearing  on  bill  and  answer  by 

92^ 


consent,  and  that  the  answer  must  be 
taken  as  true  in  all  respects.  White 
V.  Florence  Bridge  Co.,  4  Ala.  464. 

Cause  Set  for  Hearing  on  Complain- 
ant's Motion. — Facts  stated  in  an  an- 
swer which  are  not  responsive  to  the 
bill  will  not  be  taken  as  true  on  a 
hearing  on  bill  and  answer,  unless  the 
cause  is  set  for  a  hearing  on  bill  and 
answer  upon  complainant's  motion 
without  any  indication  of  an  intention 
to  contest  the  facts.  McGowen  v. 
Young,  2  Stew.  &  P.  (Ala.)  160;  Lucas 
V.  Bank  of  Darien,  2  Stew.  (Ala.)  280. 

In  Kentucky  an  answer  in  chancery, 
when  not  responsive  to  the  bill,  is  not 
to  be  taken  as  true,  because  no  repli- 
cation is  filed  to  it,  since  the  passage 
of  the  act  of  assembly  dispensing  with 
replications.  1815.  Wells  v.  Query, 
Litt.  Sel.  Cas.  (Ky.)  210. 

In  Mississippi  the  necessity  of  filing 
replications  has  been  done  away  with 
by  statute,  Ann.  Code  1892,  §  540;  and 
where  a  cause  is  brought  to  a  hearing 
on  bill  and  answer,  without  replication, 
this  is  not  ground  for  taking  the  an- 
swer as  true  to  its  full  extent,  unless 
it  appears  to  have  been  set  down  for 
hearing  at  the  instance  of  the  com- 
plainant. Carman  v.  Watson,  i  How. 
(Miss.)  333. 

3.  Voorhees  v.  Voorhees,  18  N.  J. 
Eq.  223;  Wilkinson  v.  Bauerle.  41  N. 
J.  Eq.  635;  Cooper  v.  Tappan,  9  Wis. 
361;  Coulson  V.  Coulson,  5  Wis.  79; 
Walton  V.  Cody,  1  Wis.  420;  Parish  v. 
Gear,  i  Pin.  (Wis.)  261;  Farmers',  etc.. 
Bank  v.  Griffith,  2  Wis.  443;  Smith 
V.  Patton,  12  W.  Va.  541;  Reece  v. 
Darby,  5  111.  160;  Edwards  v.  Beaird,  i 
111.  70;  Winkler  v.  Winkler,  40  111.  183, 
Cummins  v.  Cummins,  15  111.  33;  Nag- 
lee's  Estate,  52  Pa.  St.  154;  Patton  v. 
Brunswick  (Fla..  1887),  2  So.  Rep.  366; 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


5.  Admissions  in  Answer — a.  In  General — conclusive.— Where  a 
fact  is  alleged  in  a  bill  and  admitted  in  the  answer,  the  admission 
is  conclusive.*     The  facts  admitted  are  not  in  issue,  and  so  need 


Sne'ed  v.  Town,  9  Ark.  535;  U.  S.  v. 
Ferguson,  54  Fed.  Rep.  2S;  Bartlett  z/. 
Gillard,  3  Russ.  149;  Freeman  v. 
Tatham,  5  Hare  329. 

Illustrations  of  Kule. — In  a  proceeding 
against  a  testamentary  guardian  for  an 
account,  he  answered  admitting  some 
assets,  and  then  stated  and  set  up  an 
account  for  maintenance,  education, 
and  expenses  exceeding  the  assets. 
The  cause  was  heard  on  bill,  answer 
and  replication,  and  exhibits,  without 
any  proofs.  Held,  error  to  dismiss  the 
bill,  since  the  answer  was  not  evidence 
of  the  matters  set  up  in  discharge. 
Cummins  v.  Cummins,  15  111.  33. 

Where  a  suit  in  equity  is  heard  on 
bill,  answer,  and  replication,  and  the 
answer  denies  the  material  allegations 
of  the  bill,  the  answer  will  be  taken 
as  true  and  the  bill  dismissed.  U.  S. 
V.  Ferguson,  54  Fed.  Rep.  28;  Patton 
V.  Brunswick  (Fla.,  1887)  2  So.  Rep. 
366. 

Where  a  new  defendant  is  brought  in 
by  supplemental  bill  after  issue  joined 
and  after  the  proofs  are  taken,  and  he 
answered  both  the  original  and  supple- 
mental bills,  and  complainant  goes  to 
hearing  without  further  proof,  the 
proofs  previously  taken  cannot  be  used 
against  the  answer  to  the  supplemental 
bill,  and  such  answer  must  be  taken  to 
be  true.  Hopkins  v.  McLaren,  4  Cow. 
(N.  Y.)667. 

Dismissal  of  Bill. — Where  a  cause  is 
heard  on  bill,  answer,  and  replication 
without  proofs,  the  bill  should  be  dis- 
missed unless  there  is  enough  admitted 
in  the  answer  to  sustain  it,  because 
everything  in  the  answer  responsive  to 
the  bill  is  to  be  taken  as  true  unless  it 
defeats  and  destroys  itself.  Cooper  v. 
Tappan,  9  Wis.  361. 

When  Answer  Deemed  Beplied  to. — 
Where  a  case  was  submitted  by  agree- 
ment, as  upon  bill,  answer,  and  gen- 
eral replication,  though  no  general 
replication  be  in  fact  filed,  yet  it 
should  be  heard  and  decided  accord- 
ing to  the  terms  of  the  agreement. 
The  answer  is  considered  as  replied 
to.  Glenn  v.  Hebb,  12  Gill  &  J.  (Md.) 
271. 

1.   Home  Ins.,  etc.,  Co.  v.  Myer,  93 
111.  271;  Weider  v.  Clark,  27  111.  251. 
When  the  answer  admits  a  fact  and 


is  responsive  to  the  bill,  the  answer 
must  be  disproved  by  the  complainant, 
if  he  would  avoid  the  effect  of  the  ad- 
mission; but  if  it  be  necessary  for  the 
defense  to  avoid  it.  and  the  answer 
sets  up  new  matter  in  avoidance,  such 
new  matter  must  be  proved  aliunde. 
Harris  v.  Carlisle,  7  Ohio,  pt.  2,  144: 
Brown  v.  Cutler,  8  Ohio  142. 

If  an  answer  positively  admits  a  fact 
alleged  in  the  bill,  it  cannot  be  dis- 
proved by  the  evidence  of  a  witness. 
Toney  v.  Moore,  4  Stew.  &  P.  (Ala.) 

347- 

Answer  of  Insurance  Company. — The 
rule  that  an  admission  in  defendant's 
answer  is  conclusive  applied  to  the 
answer  of  an  insurance  company  to  a 
bill  to  reform  a  policy.  Home  Ins., 
etc.,  Co.  V.  Myer,  93  111.  271. 

Admission  Showing  Pight  to  Account. — 
An  admission  of  facts,  showing  the 
plaintiff's  right  to  an  account,  will 
prevail  against  a  responsive  denial  of 
indebtedness.  Koons  v..  Bute,  2  Pbila. 
(Pa.)  170. 

Admissions  Unavailing  where  Bill  is 
Without  Merit. — Where  an  answer  ad- 
mits the  allegations  of  the  bill,  a  decree 
for  the  complainant  may  be  reversed 
and  the  bill  dismissed,  upon  appeal, 
notwithstanding  the  admissions,  if 
the  bill  itself  shows  the  complainant 
was  not  entitled  to  a  decree.  In  such 
case  the  bill  is  not  aided  by  the  an- 
swer, nor  are  the  defects  in  the  case 
cured  by  the  decree.  Belew  v.  Jones, 
56  Miss.  346. 

All  Admissions  Evidence  Against  De- 
fendants.— Where  a  case  is  heard  on 
bill,  answer, and  replication,  only  those 
parts  of  the  answer  which  are  re- 
sponsive to  the  bill  can  be  evidence  in 
favor  of  defendants,  but  all  its  admis- 
sions can  be  used  as  evidence  against 
them.  Att'y  Gen'l  v.  Steward,  21  N. 
J.  Eq.  340. 

An  answer  in  chancery  admitting 
the  correctness  of  a  copy  of  a  deed 
made  by  another  person  and  to  which 
there  was  no  subscribing  witness  is 
evidence  both  of  the  contents  and  ex- 
ecution or  the  deed  against  the  person 
making  such  an  admission.  Adams 
V.  Shelby,  10  Ala.  478. 

Complainant  Entitled  to  Benefit  of  Ad- 
mission.— Upon    a   bill   to   subject    to 


927 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


not  be  proved.*     And  the  admissions  cannot  be  questioned  or 
denied  by  the  proofs.* 


payment  of  the  husband's  debts  prop- 
erty alleged  to  have  been  fraudulently 
conveyed  to  the  wife,  the  complainant 
is  entitled  to  the  benefit  of  an  admis- 
sion in  the  answer,  tending  to  estab- 
lish fraud,  although  in  the  face  of  the 
general  denial.  If  she  sets  up,  as  the 
means  of  purchase,  a  sale  of  other 
property,  such  sale  must  be  shown  to 
be  valid  and  bona  fide,  although  the 
manner  of  acquisition  was  not  attacked 
in  the  bill.  Yost  v.  Hudiburg,  2  Lea 
(Tenn.)627. 

On  the  issue  whether  an  alteration 
was  made  in  the  note  sued  on  after 
delivery  without  defendant's  consent, 
his  answer,  admitting  execution  of  the 
note  as  set  forth  in  the  bill  and  set- 
ting up  usury  in  the  stipulation  which 
had  been  added,  is  competent  evi- 
dence and  with  complainant's  testi- 
mony outweighs  that  of  defendant. 
McNail  V.  Welch,  26  111.  App.  482. 

Answer  Renouncing  Benefit  of  Statute. 
— If  the  defendant  admits,  in  his  an- 
swer, the  parol  agreement,  without  in- 
sisting on  the  statute,  the  court  will 
decree  a  specific  performance,  upon 
the  ground  that  the  defendant  has 
thereby  renounced  the  benefit  of  the 
statute.     Small  v.  Owings,  i  Md.  Ch. 

Admissions  in  Answer  Different  from 
Allegations  in  Bill. — Where  the  answer 
admits  a  written  contract  which  differs 
from  that  set  out  in  the  bill,  the  plain- 
tiff cannot  take  advantage  of  this  ad- 
mission without  amending  his  bill. 
Buck  V.  Dowley,  16  Gray  (Mass.)  555. 

Answer  Must  be  Taken  as  a  Whole. — 
The  answer  of  a  defendant  is  but  an 
admission  or  confession;  and  if  the 
complainant  introduces  the  whole  as 
evidence,  it  must  be  taken  as  a  whole, 
as  well  its  denials  as  its  admissions. 
Crawford  v.  Kirksey,  50  Ala.  590. 

2.  Pike  County  z/.  GriflSn,  etc.,  Plank 
Road  Co.,  15  Ga.  39;  Imboden  v.  Eto- 
wah, etc.,  Mining  Co.,  70  Ga.  87; 
Pugh  V.  Fairmount  Gold,  etc.,  Min. 
Co.,  112  U.  S.  238;  Fergus  v.  Fink- 
ham,  38  111.  407.  See  also  Pelham  v. 
Floyd,  9  Ark.  530. 

Admissions  in  Answer  Need  Not  be 
Proved. — Where  the  answers  of  de- 
fendants to  a  bill  to  foreclose  a  mort- 
gage admit  the  execution  and  assign- 
ment of  the  mortgage  which  is  de- 
stroyed, they  cannot  be  heard  to  com- 


plain that  the  contents  of  the  mort- 
gage and  assignment  are  not  sufficient- 
ly proved.  Chickering  v.  Fullerton, 
90  111.  520. 

It  is  not  required  of  a  complainant 
that  he  should  introduce  evidence  to 
prove  that  which  is  admitted  or  stated 
in  the  answer,  even  if  the  answer  is 
not  sworn  to;  being  so  stated,  it  is  an 
admission  of  record.  And  in  a  case 
where  an  answer  to  a  bill  brought  to  set 
aside  a  conveyance  from  a  husband  to 
his  wife  set  up  certain  considerations 
therefor,  it  was  held  that  if  these 
considerations  were  not  sufficient  in 
law  to  support  the  considerations 
passed  as  a  matter  of  fact,  then  it  suf- 
ficiently appeared  from  the  record,  in 
the  absence  of  all  evidence  to  the  con- 
trary, that  the  deed  was  made  without 
any  valid  consideration.  Miller  v. 
Payne,  4  111.  App.  112. 

Interpleader  Suit. — In  an  interpleader 
suit,  where  it  appears  by  the  answer 
of  each  defendant  that  he  claimed  the 
fund  in  dispute  from  the  complainant, 
no  other  evidence  of  that  need  be  pro- 
duced to  entitle  the  complainant  to  a 
decree.  Balchen  v.  Crawford,  i  Sandf. 
Ch.  (N.  Y.)38o. 

1.  Lippincott  v.  Ridgway,  ii  N.  J. 
Eq.  527;  Evans  v.  Hoffman,  5  N.  J.  Eq. 
354;  Van  Hook  v.  Somerville  Mfg. 
Co.,  5  N.  J.  Eq.  633,  45  Am.  Dec.  401; 
Knowles  v.  Knowles,  86  111.  i;  Welder 
V.  Clark,  27  111.  251;  Robinson  v. 
Philadelphia,  etc.,  R.  Co.,  28  Fed.  Rep. 

577- 

Evidence  Varying  from  Admission  In- 
admissible.— If  a  defendant  in  his  an- 
swer admit  that  a  slave  claimed  by 
him  as  a  gift  was  always  in  posses- 
sion of  the  donor,  he  cannot  be  al- 
lowed to  give  evidence  that  he,  the 
donee,  had  the  possession,  for  such 
evidence  varies  from  the  admission. 
Shirley  v.  Long,  6  Rand.  (Va.)  764. 

Admission  Not  Precluding  Inquiry. — 
Where  a  bill  alleged  that  a  deed  was 
given  merely  to  secure  a  debt,  and  the 
answers  admitted  that  the  grantors 
made  a  certain  deed  in  writing,  of 
such  date  and  of  such  purport  and  ef- 
fect as  in  the  bill  mentioned  and  set 
forth,  held,  not  to  be  such  an  admis- 
sion of  the  nature  and  effect  of  the 
deed  as  to  preclude  all  inquiry  on  the 
subject.  Brown  v.  Balen,  33  N.  J.  Eq. 
469. 


928 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Belief  from  Improvident  Admissions. — If  an  admission  has  been  made 
in  an  answer  improvidently  and  by  mistake,  the  court  will  relieve 
the  party  making  it  from  its  effect  by  an  order  directing  so  much 
of  the  answer  as  contains  the  admission  to  be  treated  as  no  part 
of  the  record.  But  a  mere  retraction  of  such  admission,  in  a 
supplemental  answer,  will  not  avail  to  relieve  the  party  from  its 
effect.* 

What  Admitted. — Nothing  is  regarded  as  admitted  by  an  answer  in 
chancery  unless  it  is  expressly  admitted.*     Thus  an  admission  of 


1.  Maher  v.  Bull,  39  111.  53i-  See, 
however,  HoUister  v.  Barkley,  11  N. 
H.  501. 

2.  Morris  v.  Morris,  5  Mich.  171; 
Morris  v.  Hoyt,  ii  Mich.  9;  Young  v. 
McKee,  13  Mich.  552;  Hardwick  v. 
Bassett,  25  Mich.  149. 

Rule  to  Be  Interpreted  Sensibly. — If 
the  answer  to  a  bill  of  complaint  is  so 
framed  as  by  its  omissions  or  othe- 
wise  to  admit  by  implication  an  alle- 
gation contained  in  the  bill,  even  if 
said  answer  is  not  upon  oath,  it 
should  relieve  complainants  from  the 
burden  of  proof.  The  rule  that  noth- 
ing is  to  ^  -  admitted  unless  expressly 
admitted  is  to  be  interpreted  in  the 
light  of  common  sense,  and  not  given 
a  mere  arbitrary  force.  Shook  v. 
Proctor,  27  Mich.  377. 

Admissions  Mast  Be  Fall  and  TJneqaiv- 
ocal. — The  admissions  of  a  party  in  a 
bill  or  answer  in  chancery,  to  be  con- 
clusive on  the  party,  must  be  full  and 
unequivocal.  They  must  not  be  in- 
ferred from  other  admissions,  unless 
the  express  admissions  are  so  closely 
connected  with  those  to  be  inferred 
that  to  disprove  the  latter  would  dis- 
prove the  former.  Schwarz  i'.  "Sears, 
Walk.  (Mich.)  19. 

Sufficiency  of  Assets  Not  Admitted. — 
Where  an  executrix  alleges,  in  her  an- 
swer, that  she  has  received  the  assets 
of  her  testator,  as  shown  by  her  re- 
turn to  the  orphans'  court,  which  she 
is  prepared,  .when  required,  to  pro- 
duce, this  is  not  an  admission  of  the 
sufficiency  of  assets;  and  where  such 
sufficiency  was  a  material  allegation  in 
the  bill,  which  the  complainant  failed 
to  prove,  the  cause  was  remanded. 
Dugan  V.  Gittings,  3  Gill  (Md.)  138, 
43  Am.  Dec.  306. 

Facts  Neither  Admitted  Nor  Denied.  — 
Independently  of  our  statute,  when- 
ever the  facts  are  charged  in  a  bill  in 
equity  as  being  within  the  personal 
knowledge  of  the  respondent,  he  must 

I  Encyc.  PI.  &  Pr. — 59.  529 


explicitly  admit  or  deny  them;  and  if 
he  fail  to  do  so,  they  will  be  taken  as 
admitted.  But  if  the  allegations  of 
the  bill  are  not  of  that  character,  his 
failure  to  deny  them  is  ground  only  of 
exception  to  his  answer,  and  will  not 
justify  the  complainant  in  treating 
them  as  admitted.  Mead  v.  Day,  54 
Miss.  58. 

Sufficient  Admission. — Where  the  bill 
alleges  that  the  judgments  on  which 
the  suit  is  founded  were  regularly  en- 
rolled, and  the  answer,  while  it  styles 
it  an  alleged  and  pretended  enroll- 
ment, intends  to  assail  it  only  for  as- 
sumed invalidities  in  the  judgments, 
the  enrollment  is  sufficiently  admitted 
and  need  not  be  proved.  Taylor  v. 
Webb,  54  Miss.  36. 

Where  a  bill  avers  that  a  pre-emp- 
tion claim  was  cancelled  by  the  proper 
department,  and  contains  a  copy  of  a 
letter  from  the  assistant-secretary, 
notifying  the  claimant  of  the  order  of 
cancellation,  the  averment  of  the  bill 
is  admitted  by  an  answer  which  no- 
where denies  it,  but  avers  that  "the 
claim  was  never  legally  cancelled,"  and 
"that  if  such  cancellation  was  made, 
it  was  not  only  without  suffi -lent  au- 
thority, but  on  insufficient  proof." 
Holmes  v.  State  (Ala.,  1893),  14  So. 
Rep.  51. 

Where  the  nominal  plaintiff  in  a 
judgment  at  law  is  joined  with  the  de- 
fendant therein  as  a  party  to  a  bill  in 
equity  by  the  real  owner  of  the  judg- 
ment, the  admission  of  the  nominal 
plaintiff  in  his  answer  is  sufficient  to 
establish  the  ownership  of  the  judg- 
ment.    Nix  V.  Winter,  35  Ala.  229. 

Where  a  bill  in  chancery  charged 
that  the  defendant,  as  trustee,  having 
become  the  owner  of  the  debt  secured, 
became  the  purchaser  at  his  own  sale, 
through  a  relative,  and  the  answer, 
after  denying  any  collusion,  generally 
between  the  defendant  and  the  imme- 
diate purchaser  at  Che  sale,  admitted 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 


an  allegation  in  a  bill  cannot  be  implied  from  the  insufficiency  of 
the  answer  to  it.* 

Evasive  Answer. — But  an  evasive  and  qualifying  answer  has  been 
held  to  amount  to  an  admission.* 

Fact  in  Issue. —  An  admission  will  not  avail  the  complainant, 
unless  put  in  issue  by  the  bill.^ 

Decree. — A  decree  may  be  based  entirely  on  the  admissions  of 
the  answer  without  other  proof.'* 

b.  Failure  to  Answer  Fully.— The  general  trend  of  authority 
is  to  the  effect  that  the  mere  failure  of  defendant  to  deny  by  his 
answer  all  the  allegations  of  the  bill  will  not  operate  as  an  admis- 
sion of  such  allegations  as  are  not  denied,  and  that  complainant 
is  nevertheless  bound  to  prove  them.*  ' 


that  such  purchaser,  soon  after  the 
sale,  conveyed  the  property  to  the  de- 
fendant, and  did  not  set  forth  that  the 
purchaser  actually  paid  for  the  prop- 
erty at  or  subsequently  to  the  sale,  or 
that  defendant  paid  him  anything  for 
the  conveyance,  held,  that  the  an- 
swer was  a  virtual  admission  that  the 
defendant  was,  in  fact,  a  purchaser  at 
his  own  sale.  Higgins  v.  Curtiss,  82  111. 
28. 

On  a  bill  to  correct  an  alleged  mis- 
take in  a  lease,  an  averment  in  an- 
swer that,  if  applied  to  defendant, 
"  would  have  corrected  any  mistake 
in  said  lease,"  was  held  not  to  amount 
to  an  admission  of  the  specified  mis- 
take and  an  offer  to  correct  it.  Rob- 
bins  V.  Battle  House  Co.,  74  Ala.  499. 

Where  an  assignee  of  an  insurance 
policy,  claiming  it  under  general  as- 
signment, and  also  under  special  as- 
signment indorsed  thereon,  files  a  bill, 
making  the  policy  a  part  thereof,  and 
seeks  to  recover,  after  loss,  against  the 
insurance  company,  his  title  to  the 
policy  is  sufficiently  made  out,  if  the 
company's  answer,  in  its  tenor,  though 
not  expressly,  concede  the  assignment 
to  him;  and  it  is  not  necessary  for  him 
to  produce  the  general  assignment,  or 
other  proof  of  assignment.  Lewis  v. 
Knoxville  Fire  Ins.  Co.,  85  Tenn.  117. 

1.  White  V.  Wiggins,  32  Ala.  424; 
Savage  v.  Benham,  17  Ala.  119;  Park- 
man  V.  Welch,  19  Pick.  (Mass.)  231. 

2.  Price  v.  Boswell,  3  B.  Mon.  (Ky.) 
17.  But  see  Gamble  v.  Johnson,  9  Mo. 
605,  where  it  was  hed  Ithat  omissions 
and  evasions  in  an  answer,  though  cal- 
culated to  weaken  the  force  of  the  an- 
swer, were  not  admissions. 

Evasive  Answer  to  Charge  of  Usury. — 
An  answer  to  a  charge  of  usury,  which 

9 


is  evasive  and  suspicious,  and  resorts 
to  the  usual  device,  that  "he  does 
not  recollect,"  etc.,  is  to  be  construed 
into  an  admission.  Lewis  v.  Outton, 
3  B.  Mon.  (Ky.)459. 

3.  Hoff  V.  Burd,  17  N.  J.  Eq.  204. 
the  court  remarking  that  if  an  admis- 
sion be  not  put  in  issue  by  the  bill,  ad- 
vantage could  be  taken  of  it  only  by 
amending  the  bill.  See  also  Small  v. 
Owings,  I  Md.  Ch.  363. 

4.  Cavender  v.  Cavender,  114  U.  S. 
471;  Reynolds  v.  Crawfordsville  Bank, 
112  U.  S.  405;  Brinckerhoff  v.  Brown,  7 
Johns.  Ch.  (N.  Y.)  217;  Grosvenor  v. 
Cartwright,  2  Ch.  Cas.  21;  Perkins  v. 
Nichols,  II  Allen  (Mass.)  542;  Kerrz/. 
Love,  I  Wash.  (Va.)  172;  Padfield  v. 
Padfield,  64  111.  166. 

Decree  upon  Admissions.  —  A  decree 
setting  aside  a  conveyance  as  fraudu- 
lent may  be  made  upon  admissions  in 
the  answer,  if  of  sufficient  weight,  not- 
withstanding the  answer  denies  fraud. 
Tappan  v.  Evans,  11  N.  H.  324. 

5.  Hardy  v.  Heard,  15  Ark.  195; 
Blakeney  v.  Ferguson,  14  Ark.  641; 
Bonnell  v.  Roane,  20  Ark.  114;  Young 
V.  Grundy,  6  Cranch  (U.  S.)  751; 
Brooks  V.  Byam,  i  Story  (U.  S.)  296; 
Brown  v.  Pierce,  7  Wall.  (U.  S.)  211; 
Webbf.  Powers,  2  Woodb.  &  M.  (U. 
S.)  479;  De  Wolf  V.  Long,  7  111.  679; 
Dooley  v.  Stipp,  26  111.  86;  Thorn  v. 
Adams,  59  111.  223;  Morgan  z'.  Herrick, 
21  111.481;  Cushman  v.  Bonfield  (111. 
Sup.),  28  N.  E.  Rep.  937;  Trenchard 
V.  Warner,  18  111.  144;  Nelson  v.  Pine- 
gar,  30  111.  473;  Kitchell  V.  Burgwin, 
21  111.  44;  Holdridge  v.  Bailey,  5 
111.  124;  VVilson  V.  Kinney,  14  II  .  27; 
Stacey  v.  Randall,  17  111.  470;  Coch- 
ran V.  Evans,  i  Har.  &  J.  (Md.) 
202;  Warfield  v.  Gambrill,  i  Gill  &  J. 

30 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Qualification  of  Eule.-^But  in  some  jurisdictions  a  well-established 
qualification  obtains,  namely,  that  if  material  facts  are  stated  in 

(Md.)  503;  Joice  v.  Taylor,  6  Gill  &  J. 
(Md.)  54,  25  Am.  Dec.  325;  Dugan  v. 
Gittings,  3  Gill  (Md.)  164,  43  Am. 
Dec.  30<5;  McDowell  v.  Goldsmith, 
2  Md.  Ch.  387;  Briesch  v.  McCau- 
ley,  7  Gill  (Md.)  196;  Warner  v. 
Dove,  33  Md.  579;  Eyler  v.  Crabbs, 
2  Md.  154;  Dilly  v.  Barnard,  8 
Gill  &  J.  (Md.)  170;  Keighler  v. 
Savage  Mfg.  Co.,  12  Md.  413,  71  Am. 
Dec.  600;  West  v.  Williams,  i  Md.  Ch. 
360;  Hopkins  v.  Stump,  2  Har.  &  J. 
<Md.)  301,  note;  Rider  v.  Riely,  22  Md. 
543;  Pharis  v.  Leachman,  20  Ala.  662; 
Keaton  v.  McGwier,  24  Ga.  217;  Brock- 
way  V.  Copp,  3  Paige  (N.  Y.)  539; 
Tiel  V.  Roberts,  3  Hayw.  (Tenn.)  140; 
Wilson  V.  Carver,  4  Hayw.  (Tenn.) 90; 
Phillips  V.  Overton,  4  Hayw.  (Tenn.) 
292;  Hoyal  V.  Bryson,  6  Heisk.  (Tenn.) 
142;  Frazer  v.  Sypert,  2  Heisk.  (Tenn.) 
340;  Hill  V.  Walker,  6  Coldw.  (Tenn.) 
424,  98  Am.  Dec.  465;  Smith  v.  St. 
Louis  Mut.  L.  Ins.  Co.,  2  Tenn.  Ch. 
6c3;  Lunn  v.  Johnson,  3  Ired.  Eq.  (N. 
Car.)  70;  Moffat  v.  McDowall,  i  Mc 
Cord  Eq.  (S.  Car.)  434;  Cropper  v. 
Burton,  5  Leigh  (Va.)  425;  Coleman  v. 
Lynes,  4Rand.  (Va.)  454,  {distinguish- 
ing Page  V.  Winston,  2  Munf.  (Va.) 
298;  Scott  z-.  Gibbon,  5  Munf.  (Va.) 86); 
Fleming  v.  Kenney,  4  J.  J.  Marsh. 
(Ky.)  155;  Gamble  v.  Johnson,  9  Mo. 
605;  Oakey  v.  Rabb,  Freem.  Ch.  (Miss.) 
'546;  Bagshaw  v.  Batson,  I  Dick.  113; 
Hood  V.  Pym,  4  Sim.  loi. 

Where  an  answer  omits  to  notice 
some  allegations  of  the  bill  and  replies 
to  others,  the  allegations  which  are  not 
noticed  are  not  considered  as  admitted. 
"  But  a  much  broader  doctrine  was 
contended  for,  and  one  which  seems 
to  be  pregnant  with  mischief,  and  cal- 
culated to  entrap  incautious  defend- 
ants. It  was  insisted  that  all  the  alle- 
gations of  the  bill,  not  expressly  de- 
nied by  the  answer,  must  be  considered 
as  admitted  by  the  defendant  to 
be  true;  and  the  counsel  put  it 
on  this  ground.  A  total  failure 
to  answer  admits  the  whole  bill 
to  be  true;  ergo,  a  partial  failure  to 
answer  admits  the  part  unanswered  to 
be  true.  But  in  the  case  of  a  total 
failure  the  party  is  in  contempt;  and 
3jet  such  steps  are  taken  as  are  cal- 
culated to  warn  him  of  the  effects  of 
contumacy.  Whereas,  when  he  an- 
swers, and  no  exception  is  taken  to  his 


answer  as  insufficient,  he  has  no  no- 
tice that  hereafter,  at  the  hearing,  cer- 
tain facts  will  be  relied  on  as  proved 
because  he  has  not  expressly  noticed 
and  negatived  them  in  his  answer." 
Coleman  v.  Lyne,  4  Rand  (Va.)  454. 

Illustrations. — Complainant  in  his  bill 
alleged  that  he  had  tendered  to  the 
holder  of  the  land  the  amount  de- 
manded by  him,  and  that  he  offered  to 
credit  his  judgment  with  the  whole 
amount  due  thereon.  The  holder  of 
the  land  admits  in  his  answer,  the 
tender  as  alleged  in  the  bill,  but  makes 
no  response  to  the  allegation  that  the 
plaintiff  had  offered  to  credit  his 
debtor  with  the  entire  amount  of  his 
judgment;  and  there  is  no  proof  as  to 
his  offer  to  credit  the  judgment  with 
any  amount.  Held,  that  the  allega- 
tion in  the  bill,  not  responded  to  in  the 
answer,  must  be  established  by  proof, 
otherwise  it  wilhuot  be  taken  as  true. 
Hill  V.  Walker,  6  Coldw.  (Tenn.)  424, 
98  Am.  Dec.  465. 

Allegations  not  Responded  to  Treated 
as  in  Issue. — Allegations  in  a  bill,  to 
which  the  defendant  does  not  respond, 
will  be  treated  by  the  court  as  in  issue, 
and  a  decree  will  be  rendered  according 
to  the  proof;  but  allegations  to  which 
there  is  no  response,  and  not  sustained 
by  proof,  are  to  be  disregarded.  Gart- 
man  v.  Jones,  24  Miss.  234. 

Answer  not  Full  Entitled  to  Little 
Weight  as  Evidence.  —  Where  a  cred- 
itor's bill  seeks  to  have  a  deed  of  trust, 
executed  by  a  debtor  for  the  security 
of  a  portion  of  his  creditors,  declared 
a  general  assignment,  an  answer  by 
the  preferred  creditors  which  denies 
that  the  deed  is  a  general  assignment, 
or  that  it  conveys  all  the  grantor's 
property,  but  which  is  silent  as  to  any 
other  property  then  owned  by  him,  is 
entitled  to  but  little  weightas  evidence. 
Longmire  v.  Goode,  38  Ala.  577. 

Contra.  —  Neale  v.  Hagthorp,  3 
Bland  (Md.)  569.  {citing  Brown  v.  Pit- 
man, Gilb.  Eq.  Rep.  75;  Abergavenny 
V.  Abergavenny,  2  Eq.  Ca.  Abr.  17); 
Robinson  v.  Townshend,  3  Gill  &  J. 
(Md.)  413;  Trapnall  v.  Hill,  31  Ark. 
346. 

Material  and  controlling  facts  clearly 
and  fully  averred  by  bill  and  not  de- 
nied by  answer  must  be  taken  as  con. 
fessed.  Lee  v.  Stiger,  30  N.  J.  Eq; 
610;  Jones  z-.  Knauss,3i  N.  J.  Eo.  6o9| 


931 


Answers  as      ANSWEIiS  IN  EQUITY  PLEADING.         Evidence. 


the  bill  which  are  necessarily  within  defendant's  knowledge,  he 
must  explicitly  deny  or  admit  them,  and  that  if  he  fails  to  do  so 
they  will  be  taken  as  admitted.*  Even  in  these  jurisdictions,  if 
such  facts  are  not  within  defendant's  knowledge  or  cannot  fairly 
be  presumed  to  be  within  his  knowledge,  complainant  will  not  be 
justified  in  treating  them  as  admitted.* 

6.  Overcoming  Answers — a.  By  Witnesses  and  Circumstances. 
— The  rule  in  equity  is  that  the  responsive  denial  of  an  answer 
must  be  overcome  by  two  witnesses,  or  by  evidence  equivalent 
thereto.*     And  the  overwhelming  weight  of  authority  is  that  this 


Pinnell  v.  Boyd,  33  N.  J.  Eq.  190.  See 
also  Mickle  v.  Maxfield,  42  Mich.  304. 

Thus  where  a  bill  alleged  that  the 
grantee  in  a  deed  second  in  date  took 
his  conveyance  with  an  express  agree- 
ment to  assume  payment  of  the  judg- 
ment in  question,  and  that  allegation 
is  not  denied  in  the  answer,  it  must  be 
taken  as  admitted  against  him  and  the 
premises  conveyed  to  such  grantee 
held  primarily  liable  for  the  payment 
of  such  judgment.  Sanborn  v.  Adair, 
29  N.  J.  Eq.  338. 

Kule  in  Mississippi. — In  Mississippi 
the  general  rule  has  been  changed'by 
statute,  Am.  Code,  §  433;  and  if  the  an- 
swer fail  to  deny  a  material  allegation, 
such  allegation  will  be  taken  at  the 
hearing  as  admitted.  McAllister  v. 
Clopton,  51  Miss.  257.  See  also  Col- 
bert V.  Henley,  64  Miss.  374. 

1.  Kirkman  v.  Vanlier,  7  Ala.  217; 
Clark  V.  Jones,  41  Ala.  349;  Grady  v. 
Robinson,  28  Ala.  289;  Thorington  v. 
Carson,  i  Port.  (Ala.)  257;  Lyon  v. 
Boiling,  14  Ala.  754;  Smilie  v.  Siler, 
35  Ala.  88;  Mobile  Bank  v.  Planters', 
etc.,  Bank,  8  Ala.  772;  Moore z/.  Lock- 
ett,  2  Bibb  (Ky.),  69,  4  Am.  Dec.  683; 
Mitchell  V.  Maupin,  3  T.  B.  Men.  (Ky.) 
185;  Kennedy  v.  Meredith,  3  Bibb 
(Ky.)  465;  Cowan  v.  Price,  i  Bibb 
(Ky.)  173;  Mosely  v.  Garrett,  i  J.  J. 
Marsh.  (Ky.)  212;  Pierson  v.  Meaux, 
3  A.  K.  Marsh.  (Ky.)  4;  Mead  v.  Day, 
54  Miss.  58;  McAllister  v.  Clopton,  51 
Miss.  257;  Ross  V.  Shurtleff,  55  Vt. 
177.  See  Chancery  Rules  of  Vermont, 
1886. 

Illustrations. — Where  judgment  cred- 
itors, who  have  exhausted  their  legal 
remedies,  file  a  bill  in  equity  to  reach 
equitable  assets  of  their  debtor,  the 
issue  and  returns  of  executions  on 
their  judgments,  as  alleged,  is  a  matter 
which  is  presumed  to  be  within  the 
debtor's  knowledge;  consequently  his 
failure  to  either  admit  or  deny,  in  his 


answer,  the  allegations  of  the  bill  as 
to  the  matter,  is  an  admission  of  their 
truth;  and  the  issue  and  return  of  the 
executions,  as  alleged,  being  thus  es- 
tablished as  against  him,  his  co-de- 
fendant, in  whom  is  vested  the  legal 
title  to  the  land  sought  to  be  con- 
demned, and  whose  prior  lien  is  al- 
lowed by  the  decree,  cannot  insist  on 
other  proof  of  those  facts.  Clark  v. 
Jones,  41  Ala.  349. 

Under  a  bill  filed  by  the  husband  as 
administrator  of  his  deceased  wife, 
against  her  surviving  brothers,  the 
failure  of  the  defendants  to  deny  in 
their  answers  an  allegation  of  the  bill 
as  to  the  time  of  the  marriage  between 
complainant  and  his  said  wife,  or  to 
express  their  information  or  belief  as 
to  its  truth  or  falsity,  is  an  implied  ad- 
mission of  its  truth,  where  it  appears 
that  all  the  parties  resided  in  the 
State;  that  the  wife  prior  to  her  mar- 
riage lived  on  the  same  plantation 
with  two  of  the  defendants,  and  that 
her  marriage  was  known  to  all  of  them 
before  her  death.  Smilie  v.  Siler,  35 
Ala.  88. 

2.  Mobile  Bank  v.  Planters',  etc.. 
Bank,  8  Ala.  772;  Thorington  v.  Car- 
son, I  Port.  (Ala.)  257;  Kennedy  v. 
Meredith,  3  Bibb  (Ky.)465;  Cowan  z/. 
Price,  I  Bibb  (Ky.)  173;  Moore  v. 
Lockett,  2  Bibb  (Ky.)  69,  4  Am.  Dec. 
683;  Owings  V.  Patterson,  i  A.  K. 
Marsh.  (Ky.)  325;  Mead  v.  Day,  54 
Miss.  58. 

Illustrations. — Thus  where  the  exe- 
cution of  specific  articles  is  averred 
against  parties  who  cannot  be  pre- 
sumed to  be  privy  to  the  time  and 
mode  of  their  execution,  the  execution 
of  such  articles,  though  not  denied  in 
the  answer,  must  be  proved.  Thoring- 
ton V.  Carson,  i  Port.  (Ala.)  257. 

3.  Vandegrift  v.  Herbert,  18  N.  J. 
Eq.  466;  Force  v.  Dutcher,  18  N.  J. 
Eq.  401;  Bird  v.  Styles,  18  N.   J.   Eq. 


93- 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


equivalent  evidence  must  be  one  witness  and  corroborating  cir- 
cumstances.* 


297;  Central  R.  Co.  v.  Hetfield,  i3  N. 
J.  Eq.  323;  Commercial  Bank  t*.  Reck- 
less, 5  N.  J.  Eq.  650;  Brown  v.  Bulk- 
ley,  14  N.  J.  Eq.  294;  DeHart  v.  Baird, 
19  N.  J.  Eq.  4*3;  Zane  v.  Cawley,  21 
N.  J.  Eq.  130;  Stearns  v.  Stearns,  23 
N.  J.  Eq.  167;  Abbot  v.  Case,  26  N.  J. 
Eq.  187;  Frink  v.  Adams,  36  N.  J.  Eq. 
485;  Clason  V.  Morris,  10  Johns.  (N. 
Y.)  542;  Patterson  v.  Scott,  142  111. 
138;  Marple  v.  Scott,  41  111.  50; 
Wheeler  v.  Ryon,  i  Ct.  of  App.  (D. 
C.)  142;  Field  V.  Holland,  6  Cranch 
(U.  S.)  8;  Lehigh  Valley  R.  Co.  v. 
Mellon,  104  U.  S.  112;  Mortimer  v. 
Orchard,  2  Ves.  Jr.  243.  See  Pilling 
V.  Armitage,  12  Ves.  Jr.  78;  Price  v. 
Lytton,  3  Russ.  206. 

1.  Alabama. — Fenno  v,  Sayre,  3  Ala. 
458;  Bank  of   Huntsville   v.  Marshall, 

4  Ala.  60;  Cummings  v.   McCullough, 

5  Ala.  324;  Manning  ,v.  Manning,  8 
Ala.  138;  McMekin  v.  Bobo,  12  Ala. 
268;  May  V.  Barnard,  20  Ala.  200; 
Bryan  v.  Cowart,  21  Ala.  92;  Beene  v. 
Randall,  23  Ala.  514;  Garrett  v.  Gar- 
rett, 29  Ala.  439;  Marshall  v.  Howell, 
46  Ala.  318;  Marshall  v.  Croom,  52 
Ala.  554;  Camp  v.  Simon,  34  Ala.  126; 
Bryan  v.  Bryan,  34  Ala.  516;  Easter- 
wood  V.  Linton,  36  Ala.  175;  Tomp- 
kins V.  Nichols,  53  Ala.  197;  Turner 
V.  Flinn,  67  Ala.  529;  Smith  v.  Rogers, 
I  Stew.  &  P.  (Ala.)  317;  Lucas  v. 
Bank  of  Darien,  2  Stew.  (Ala.)  280; 
McGowen  v.  Young,  2  Stew.  &  P. 
(Ala.)  160. 

Arkansas. — Cummings  v.  Harrell,  6 
Ark.  308;  Turner  v.  Miller,  6  Ark. 
463;  Menifee  v.  Menifee,  8  Ark.  10; 
Aiken  v.  Harrington,  12  Ark.  391; 
Jordan  i/.  Fenno,  13  Ark.  593;  Dyer  v. 
Bean,  15  Ark.  519;  Dunn  v.  Graham, 
17  Ark.  60;  Byrd  v.  Belding,  18  Ark. 
118;  Spence  v.  Dodd,  19  Ark.  166; 
Hill  V.  Bush,  19  Ark.  522. 

Delaware. — McDowell  v.  Wilming- 
ton Bank,  i  Harr.  (Del.)  369;  Picker- 
ing V.  Day,  2  Del.  Ch.  333;  Davidson 
V.  Wilson,  3  Del.  Ch.  307;  Horsey  v. 
Stockley,  4  Del.  Ch.  536;  Brooks  v. 
Silver,  5  Del.  Ch.  7;  Small  v.  Collins, 

6  Houst.  (Del.)  273;  Stockley  v.  Hor- 
sey, 4  Houst.  (Del.)  603. 

Florida.— Vihile  v.  Walker,  5  Fla. 
478;  Stephens  v.  Orman,  10  Fla.  9; 
Foster  v.  Ambler,  24  Fla.  519. 

Georgia. — Eastman  v.  McAlpin,  I 
Ga.  157;  Gait  v,  Jackson,   9  Ga.   151; 


Williams  v.  Philpot,  19  Ga.  567;  Har- 
ris V.  Collins,  75  Ga,  97. 

Illinois. — Swift  v.  School  Trustees, 
14  111.  493;  Stouffer  V.  Machen,  16  IW. 
553;  Phelps  V.  White,  18  111.  41;  Wyn- 
koop  V.  Cowing,  21  111.  570;  Panton  z/. 
Tefft,  22  111.  367;  Gregg  v.  Renfrews, 
24  111.  620;  Myers  v.  Kinzie,  26  111.  36; 
Trout  V.  Emmons,  29  111.  433;  Buntain 
V.  Wood,  29  111.  504;  Dunlap  v.  Wil- 
son, 32  111.  517;  Barton  v.  Moss,  32 
111.  50;  Martin  v.  Eversal,  36  lii.  222; 
Wightman.z/.  Hart,  37  111.  123;  Marple 
V.  Scott,  41  111.  50;  Willdey  v.  Webster, 
42  111.  108;  Blow  V.  Gage,  44  111.  208; 
Russell  V.  Russell,  54  111.  250;  Fish  v. 
Stubbings,  65  111.  492;  Stevenson  v. 
Mathers,  67  111.  123;  O'Brian  v.  Fry, 
82  111.  274;  Mey  V.  Gulliman,  105  111. 
272;  Martin  v.  Dryden,  6  111.  187; 
Rector  z/.  Rector,  8  111.  105;  Richescn 
V.  Richeson,  8  111.  App.  204. 

Indiana.  —  Jenison  v.  Graves,  2 
Blackf.  (Ind.)  440;  Coles  v.  Raymond, 

5  Blackf.  (Ind.)  435;  Green  v.  Vardi- 
man,  2  Blackf.  (Ind.)  324;  McCormick 
V.  Malin,  5  Blackf.  (Ind.)  509;  Pierce 
V.  Gates,  7  Blackf.  (Ind.)  162;  Achey 
V.  Stephens,  8  Ind.  411;  Calkins  v. 
Evans,  5  Ind.  441. 

Iowa. — Pierce  v.  Wilson,  2  Iowa  20; 
Clark  V.  Langworthy,  3  Iowa  563; 
Davis  V.  Stevens,  3  Iowa  158;  Bacon 
V.  Lee,  4  Iowa  490;  State  v.  Tilghman, 

6  Iowa  496;  White  v.  Hampton,  10 
Iowa  238;  Culbertson  v.  Luckey,  13 
Iowa  12. 

This  rule  does  not  obtain,  however, 
under  the  present  code  practice.  Smith 
T.  Phelps,  32  Iowa  537;  Graves  v. 
Alden,  13  Iowa  573. 

Kentucky. — Hudson  v.  Cheatham,  5 
J.  J.  Marsh.  (Ky.)  50;  Patrick  z'.  Lang- 
ston,  5  J.  J.  Marsh.  (Ky.)  653;  McCrum 
V.  Preston,  5  J.  J.  Marsh.  (Ky.)  332; 
Mason  v.  Peck,  7  J.  J.  Marsh.  (Ky.) 
300;  Sullivan  v.  Bates,  i  Litt.  (Ky.) 
41;  Pringle  v.  Samuel,  i  Litt.  (Ky.)43, 
3  Am,  Dec.  214;  Patterson  z'.  Hobbs,  i 
Litt.  (Ky.)  274;  Littell  v.  M'lver,  i 
Bibb  (Ky.)  203;  Lee  v.  Vaughn,  i 
Bibb  (Ky.)  235;  Bright  v.  Haggin, 
Hardin  (Ky.)  546;  Myers  v.  Baker,  i 
Hardin  (Ky.)  553;  Bibb  v.  Smith,  i 
Dana  (Ky.)  580;  Vance  v.  Vance,  5  T. 
B.  Mon.  (Ky.)  521. 

Maine. — Gould  v.  Williamson,  21 
Me.  273;  Appleton  v.  Horton,  25  Me. 
23. 


933 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Thus,  the  allegations  of  a  bill  charging  a  parol  agreement  ta 
which  there  was  no  witness,  being  positively  denied  by  the  an- 

Maryland. — Glenn  v.  Grover,  3  Md. 
229;  West  V.  Flannagan,  4  Md.  36; 
Feigley  v.  Feigley,  7  Md.  537,  61  Am. 
Dec.  375;  Brooks  v.  Thomas,  8  Md. 
367;  Gelston  v.  Rullman,  15  Md.  260; 
Rider  v.  Rieley  22  Md.  540;  Turner  z'. 
Knell.  24  Md.  55;  Neale  v.  Hagthrop, 
3  Bland  (Md.)  551;  Ing  v.  Brown,  3 
Md.  Ch.  521;  Beatty  v.  Davis,  9  Gill 
(Md.)  211 ;  Hagthorp  v.  Hook,  i  Gill 
&  J.  (Md.)  2S0;  Roberts  v.  Salisbury, 
3  Gill  &  J.  (Md.)  425;  Hopkins  v. 
Stump,  2  Har.  &  J.  (Md.)30i;  Watkins 
V.  Stockett,  6  Har.  &  J.  (Md.)  435. 

Mississippi. — Lee  v.  Montgomery, 
Walk.  (Miss.)  109;  Johnson  v.  Crip- 
pen,  62  Miss.  597;  M'Gehee  v.  White, 
31  Miss.  41. 

Missouri. — Laberge  v.  Chauoin,  2 
Mo.  179;  Bartlett  v.  Glasscock,  4  Mo. 
62;  Roundtree  v.  Gordon,  8  Mo.  19; 
Gamble  v.  Johnston,  9  Mo.  605;  Mar- 
tin V.  Greene,  10  Mo.  652;  Hewes  v. 
Musick,  13  Mo.  395;  French  v.  Camp- 
bell-, 13  Mo.  285;  Johnson  v.  McGruder, 
15  Mo.  365. 

New  Hampshire. — Page  v.  Page,  8  N. 
H.  187;  Hollister  v.  Barkley,  11  N. 
H.  501;  Lawton  v.  Kittredge,  30  N.  H. 
500;  Warren  v.  Swett,  31  N.  H.  332; 
Miles  V.  Miles,  32  N.  H.  147,  64  Am. 
Dec.  362;  Dodge  v.  Dodge,  33  N.  H. 
487;  Busby  V.  Littlefield,  33  N.  H.  76; 
Johnson  v.  Richardson,  38  N.  H.  353. 

Neiv  Jersey. — Chance  v.  Teeple,  4  N. 
J.  Eq.  173;  Brown  z/.  Bulkley,  14  N.J. 
Eq.  294;  Bird  v.  Styles,  18  N.  J.  Eq. 
297;  Calkins  v.  Landis,  21  N.  J.  Eq. 
133;  Bent  V.  Smith,  22  N.  J.  Eq.  560; 
Wilson  V.  Cobb,  28  N.  J.  Eq.  I77- 

Ne-v  York. — Atkinson  v.  Manks,  i 
Cow.  (N.  Y.)  703;  Smith  v.  Brush,  i 
Johns.  Ch.  (N.  Y.)  459;  Mason  v. 
Roosevelt,  5  Johns.  Ch.  (N.  Y.)  534; 
Swift  V.  Dean,  6  Johns.  (N.  Y.)  523; 
Clason  V.  Morris,  10  Johns.  (N.  Y.) 
524;  Stafford  v.  Bryan,  i  Paige  (N.  Y.) 
239;  Dunham  v.  Jackson,  6  Wend.  (N. 
Y.)  29;  Cushman  v.  Shepard,  4  Barb. 
(N.  Y.)  113;  Sturtevant  v.  Waterbury, 
I   Edw.  Ch.  (N.  Y.)  442. 

North  Carolina. — Alley  v.  Ledbetter, 
I  Dev.  Eq.  (N.  Car.)  453;  Martin  v. 
Browning,  2  Hawks.  (N.  Car.)  644; 
Bruce  v.  Child,  4  Hawks.  (N.  Car.) 
372;  Lewis  V.  Owen,  i  Ired.  Eq.  (N. 
Car.)  290;  Averitt  v.  Fov,  2  Ired.  Eq. 
(N.  Car.)  224;  Hill  v.  Williams,  6 
Jones.  Eq.  (N.  Car.)  242. 


Pennsylvania.  —  Baker  v.  William- 
son, 4  Pa.  St.  468;  Horton's  Appeal, 
13  Pa.  St.  67;  Eberly  v.  Groff,  21  Pa. 
St.  251;  Greenlee  v.  Greenlee,  22  Pa. 
St.  225;  Paul  V.  Carver,  24  Pa.  St.  207, 
64  Am.  Dec.  649;  Pusey  v.  Wright,  31 
Pa.  St.  3S7;  Slemner's  Appeal,  58  Pa. 
St.  155,  98  Am.  Dec.  248;  Campbell  z/. 
Patterson,  95  Pa.  St.  447;  Hassler  v. 
Bitting,  40  Pa.  St.  68;  Nulton's  Ap- 
peal, 103  Pa.  St.  286;  Rowley's  Ap- 
peal, 115  Pa.  St.  150;  Painter  v.  Hard- 
ing, 3  Phila.  (Pa.)  449;  Reed's  Appeal 
(Pa.,  1886),  7  Atl.  Rep.  174;  Sylvius z/. 
Kosek,  117  Pa.  St.  67,  2  Am.  St.  Rep. 
645. 

South  Carolina. — Martin  v.  Sale,  r 
Bailey  Eq.  (S.  Car.)  i;  Slawson  v. 
Johnson,  Bailey  Eq.  (S.  Car.)  463; 
Sams  V.  Mathews,  i  Desaus.  (S.  Car.) 
134;  McDowell  V.  Teasdale,  i  Desaus. 
(S.  Car.)  459;  Denton  v.  McKenzie,  i 
Desaus.  (S.  Car.)  2S9,  i  Am.  Dec.  664; 
Neilson  v.  Dickenson,  i  Desaus.  (S. 
Car.)  133;  Dyre  v.  Sturges,  3  Desaus. 
(S.  Car.)  553;  Clark  v.  Bailey,  2  Strobh. 
Eq.  (S.  Car.)  143;  Moffat  v.  M'Dowall, 

1  McCord  Eq.  (S.  Car.)  434;  McCaw  z/. 
Blewit,  2  McCord  Eq.  (S.  Car.)  90. 

Tennessee.  —  Beech  v.  Haynes,  r 
Tenn.  Ch.  569;  Van  Wyck  v.  Norvell, 

2  Humph.  (Tenn.)  192;  Baker  r'.  Bar- 
field,  4  Humph.  (Tenn.)  514;  Raines 
V.  Jones,  4  Humph.  (Tenn.)  490;  Tra- 
bue  V.  Turner,  10  Heisk.  (Tenn.)  447; 
English  V.  King,  10  Heisk.  (Tenn.) 
666;  Tansel  v.  Pepin,  5  Yerg.  (Tenn.) 
452;  Gray  v.  Farris,  7  Yerg.  (Tenn.) 
155;  Spurlock  V.  Fulks,  i  Swan  (Tenn.) 
289;  Pearce  v.  Suggs,  85  Tenn.  724; 
Williamson  v.  Williams,  11  Lea  (Tenn.) 
365;  Copeland  v.  Murphy,  2  Coldw. 
(Tenn.)  64. 

Vermont. — Pierson  v.  Catlin,  3  Vt, 
372. 

Virginia. — Pryor  v.  Adams,  i  Call 
(Va.)  382,  I  Am.  Dec.  533;  Chapman 
V.  Turner,  i  Call  (Va.)  280,  i  Am.  Dec. 
514;  Maupin  v.  Whiting,  i  Call  (Va.) 
224;  Buckz^.  Copland,  2  Call  (Va.)  218; 
Bullock  V.  Goodall,  3  Call  (Va.)  49; 
Love  V.  Braxton,  5  Call  (Va.)  537; 
Wise  V.  Lamb,  9  Gratt.  (Va.)  294; 
Smith  V.  Betty,  11  Gratt.  (Va.)  752; 
Fant  V.  Miller,  17  Gratt.  (Va.)  207; 
Auditor  v.  Johnson,  i  Hen.  &  M.  (Va.) 
536;  Beatty  v.  Thompson,  2  Hen.  & 
M.  (Va.)  395;  Beatty  v.  Smith,  2  Hen. 
&  M.   (Va.)  395;  Heffner  v.  Miller,  2 


934 


Answers  as       ANSWEHS  IN  EQUITY  PLEADING.         Eviderce. 


swer,  and  there  being  no  proof    thereof    except  vague  declara- 
tions, testified  to  by  witnesses,  after  the  lapse  of   a  number  of 

England. — Pemby  v.  Mathers,  i  Bro, 
C.  C.  52;  Walton  v.  Hobbs,  2  Atk.  19; 
Janson  v.  Rany,  2  Atk.  140;  Evans  v. 
Bicknell,  6  Ves.  Jr.  174;  Cooth  v.  Jack- 
son, 6  Ves.  Jr.  40;  East  India  Co.  v. 
Donald,  9  Ves.  Jr.  275;  Cooke  z/.  Clay- 
worth,  18  Ves.  Jr.  17;  Savage  v. 
Brocksopp,  iS  Ves.  Jr.  335. 

Responsive  Answer  Equal  to  One  Wit- 
ness.— A  responsive  answer  under  oath 
is  equal  to  the  testimony  of  one  wit- 
ness in  conflict  with  it,  unless  one  or 
the  other  is  unreasonable  or  evasive. 
Jacks  V.  Nichols,  5  N.  Y.  178.  See 
also  McLane  v.  Johnson,  59  Vt.  239. 

Equivalent  to  Disposition. — A  de- 
fendant's answer  to  plain  interroga- 
tories has  the  force  of  a  deposition. 
Short  V.  Tinsley,  i  Mete.  (Ky.)  397, 
71  Am.  Dec.  482. 

In  a  suit  by  the  next  of  kin  of  a 
testator,  claiming  certain  property  as 
not  included  in  the  residuary  bequest, 
the  answer  of  the  administrator  cum 
test,  an.,  admitting  the  facts  charged 
in  the  bill,  was  allowed  the  effect  of  a 
deposition  only.  Reeves  v.  Reeves,  i 
Dev.  Eq.  (N.  Car.)  390. 

Answer  Treated  as  Affidavit. — An  an- 
swer to  a  judgment  creditor's  bill, 
used  in  opposition  to  a  motion  for  the 
appointment  of  a  receiver  before  the 
time  for  replying  has  expired,  can  only 
be  treated  as  an  affidavit.  Rankin  v. 
Rothschild,  78  Mich.  10.  See  also 
Shreve  v.  Black,  4  N.  J.  Eq.  177. 

Full  Proof. — Sworn  answers  respon- 
sive to  the  bill  must  be  overcome  by 
full  proof.  Taintor  v.  Keys,  43  111. 
332;  Wynkoop  v.  Cowing,  21  111.  570; 
See  also  Bragg  v.  Geddes,  93  111.  39  ; 
Cissna  v.  Walters,  100  111.  623.  Audit- 
or V.  Johnson,  i  Hen.  &  M.  (Va.)  542  ; 
Barton  v.  Rushton,  4  Desaus.  (S.  Car.) 
373;  Darling  v.  Hurst,  39  Mich.  765; 
Clark  V.  Oakley,  4  Ark.  236;  Day  v. 
Potter,  9  Paige  (N.  Y.)  645;  Campbell 
V.  Brackenbridge,  8  Blackf.  (Ind.)47i; 
Wilson  v.  Dplarack,  3  Ohio  291. 

Charge  Repeated  in  Bill  Taken  Fro  Con- 
fesso. — When  a  charge  in  a  bill  is  once 
denied  by  answer,  it  must  be  proved, 
though  it  is  repeated  in  an  amended 
bill  that  is  taken  for  confessed.  Green- 
wade    V.    Greenwade,     3    Dana   (Ky. ) 

495- 

Proof  Need  Not  be  Direct  and  Positive. 
— Though  the  proof  to  overcome  an 
answer  in  chancery  must  be  equivalent 
to  the  testimony  of  two  credible  wit* 


Munf.  (Va.)  43;  Roberts  v.  Kelly,  2 
Patt.  &  H.  (Va.)  396;  Thornton  v. 
Gordon,  2  Rob.  (Va.)  719;  Jones  v. 
Mason,  5  Rand.  (Va.)  577,  16  Am.  Dec. 
761;  Hoomes  v.  Smock,  i  Wash.  (Va.) 
389;  Kennedy  v.  Baylor,  i  Wash.  (Va.) 
162. 

West  Virginia — Statutory  Provision. 
— "  When  a  defendant  in  equity  shall, 
in  his  answer,  deny  any  material  alle- 
gation of  the  bill,  the  effect  of  such 
denial  shall  only  be  to  put  the  plaintiff 
on  satisfactory  proof  of  the  truth  of 
such  allegation,  and  any  evidence 
which  satisfies  the  court  or  jury  of  the 
truth  thereof  shall  be  sufficient  to  es- 
tablish the  same."  Code  West  Vir- 
ginia (1887),  ch.  125,  sec.  59.  See  also 
Lowry  v.  Buffington,  6  W.  Va.  249; 
Browii  V.  Knapp,  7  W.  Va.  678;  Nich- 
ols V.  Nichols,  8  W.  Va.  174;  Jarrett  v. 
Jarrett,  li  W.  Va.  584;  Pithole  Creek, 
etc.,  Co.  V.  Rittenhouse,  12  W.  Va. 
313;  Neely  v.  Jones,  16  W.  Va.  625; 
Core  V.  Bell,  20  W.  Va.  i6g. 

Wisconsin. — Smith  v.  Potter,  3  Wis. 
432.     ■ 

District  of  Colutnbia. — Rick  v.  Neitzy, 
I  Mackey  (D.  C.)  21. 

United  States. — Seitz  v.  Mitchell,  94 
U.  S.  580;  Vigel  V.  Hopp,  104  U.  S. 
441;  Morrison  v.  Durr,  122  U.  S.  518; 
Southern  Development  Co.  v.  Silva, 
125  U.  S.  247;  Carpenter  z/.  Providence, 
etc.,  Ins.  Co.,  4  How.  (U.  S.)  185; 
Hughes  V.  Blake,  6  Wheat.  (U.  S.) 
453,  I  Mason  (U.  S.)  515;  Parker  v. 
Phettleplace.  I  Wall.  (U.  S.)684;  Tobev 
V.  Leonard,  2  Wall.  (U.  S.)423,  2  Cliff. 
(U.  S.)  51;  Voorhees  v.  Bonesteel,  16 
Wall.  (U.  S.)  16;  Clark  v.  Hackett,  i 
Cliff.  (U.   S.)  269;  Delano  v.  Winsor, 

1  Cliff.  (U.  S.)  501:  Badger  v.  Badger, 

2  Cliff.  (U.  S.)  146;  Parker  v.  Phettle- 
place, 2  Cliff.  (U.  S.)  79;  Scammon  v. 
Cole,  3  Cliff.  (U.  S.)  473;  Gilman  v. 
Libbey,  4  Cliff.  (U.  S.)  447;  Daniel  v. 
Mitchell,  I  Story  (U.  S.)  188;  Hough 
V.  Richardson,  3  Story  (U.  S.)  659; 
Gould  V.  Gould,  3  Story  \U.  S.)  516; 
Gushing  v.  Smith,  3  Story  (U.  S.)  556; 
Morgan  v.  Tipton,  3  McLean  (U.  S.) 
339;  Towne  v.  Smith,  i  Woodb.  &  M. 
(U.  S.)  115;  West  V.  Randall,  2  Mason 
(U.  S  )  205;  McNeil  v.  Magee,  5  Ma- 
son (U.  S.)  244;  Slessinger  z'.  Bucking- 
bam,  8  Sawy.  (U.  S.)  469,  17  Fed. 
Rep.  454;,  Union  Bank  v.  Geary,  5  Pet. 
(U.  S.)  99;  Walcott  V.  Watson,  53  Fed. 
Rep.  429. 


935 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


years  after  they  were  made,  such  proof  is  not  sufficient  to  over- 
turn the  denial  of  the  answer  as  to  the  existence  of  such  agree- 

nied  that  there  was  a  mistake.  Manatt 
V.  Starr,  72  Iowa  677. 

Stale  Claim. — Where  a  principal  wit- 
ness has  promoted  a  stale  claim  (eleven 
years  old)  and  his  hostility  to  the  de- 
fendant is  apparent,  his  testimony 
will  be  far  outweighed  by  an  answer 
fairly  responsive  to  the  bill.  Plet  v. 
Bouchaud,  4  Edw.  Ch.  (N.  Y.)  30. 

Suspicious  Case. — An  answer  in  equity, 
responsive  to  the  bill,' and  positively 
denying  the  facts  charged,  is  entitled 
to  so  great  weight  that, when  confirmeti 
by  testimony,  even  of  a  kind  not  the 
most  satisfactory,  it  will  countervail  a 
case  which  on  its  face  is  a  suspicious 
one.  Parker  v.  Phetteplace,  i  Wall. 
(U.  S.)684. 

Facts  Not  Irreconcilable  with  Answer. 
—  Positive  answers  responsive  to  the 
bill  are  not  outweighed  by  proof  of  facts 
which  are  not  irreconcilable  with  the 
truth  of  the  answers  and  the  fairness 
of  the  matters  they  state,  especially 
when  each  material  fact  is  related  only 
by  a  single  witness.  Huntsville 
Branch  Bank    v.  Marshall,  4  Ala.  60. 

Evidence  Not  in  Conflict  with  Answer. 
— The  evidence  of  a  single  witness 
will  sustain  an  allegation  of  a  bill 
against  the  denial  of  an  answer,  when 
the  answer,  taken  in  a  literal,  restricted 
sense,  may  be  true,  although  the  evi- 
dence establishes  the  allegation  in 
substance,  though  not  in  form,  and  is, 
therefore,  not  in  direct  conflict  v^ith 
the  strict  literal  import  of  the  answer. 
Amos   V.  Heatherby,  7  Dana  (Ky.)  45. 

Technical  Phrases,  etc. — Sworn  an- 
swers to  a  bill  in  chancery  cannot  be 
overcome  by  resort  to  technical 
phrases  or  words  in  letters  used  by 
unprofessional  persons.  Wynkoop  v. 
Cowing,  21  111.  570. 

Answer  to  Garnishment  at  Law. — An 
answer  to  a  garnishment  at  law  is  not 
sufficient  to  overcome  the  positive 
denials  of  the  garnishee's  answer  in 
chancery,  when  responsive  to  the  bill, 
which  is  filed  by  another  person  than 
the  plaintiff  in  the  action  at  law. 
Holley  V.  Wilkinson,  31  Ala.  196. 

Not  Showing  Invalidity  of  Deed. — 
When  a  defendant  by  his  answer  as- 
serts that  a  deed  set  out  by  the  com- 
plainant was  not  recorded  or  proved, 
as  prescribed  by  the  law  of  the  state 
where  executed,  without  showing  that 
for  these  reasons  it  was  invalid  there. 


nesses,  yet  it  need  not  be  direct  and 
positive.     Farley   v.    Bryant,    32    Me. 

474- 

Uncertain  Admissions. — Proof  of  in- 
definite and  uncertain  admissions  will 
not  overcome  the  positive  denials  of 
an  answer.  Conner  v.  Tuck,  11  Ala. 
794;  Garrett  v.  Garrett,  29  Ala.  439. 

Evidence  Unsatisfactory. — Relief  will 
not  be  granted  upon  a  bill  where  the 
answer  denies  the  allegation  of  the 
bill,  if  the  evidence  is  loose  and  un- 
satisfactory. Selby  V.  Geines,  12  111. 
69. 

Evidence  of  Loose  Conversations  or  Con- 
jectures.— If  the  answer  deny  imposi- 
tion, and  be  supported  by  a  commis- 
sioner's report,  and  acknowledgments 
by  the  plaintiff,  it  will  not  be  set  aside 
by  evidence  of  loose  conversations  of 
parties,  and  conjectures  of  witnesses. 
Harris  v.  Magee,  3  Call  (Va.)  502. 

Suit  upon  Lost  Bond — Proof  Requisite. 
— In  a  suit  in  equity  to  recover  upon  a 
lost  bond,  when  the  answer  denies 
that  there  was  a  bond,  the  same  de- 
gree of  proof  is  requisite  which  a 
court  of  law  would  call  for,  to  be  laid 
before  the  jury  upon  7ion  est  fadufti 
pleaded  to  a  declaration  on  a  lost  bond. 
Morrison  v.  Meacham,  4  Ired.  Eq.  (N. 
Car.)  381. 

Proof  of  General  Derangement. — An 
averment  in  the  answer  responsive  to 
the  bill  that  the  party  was  sane  at  the 
time  an  act  was  performed  is  evidence 
of  that  fact,  against  which  proof  of 
general  derangement  will  not  avail. 
Achey  v.  Stephens,  8  Ind.  411. 

Answers  Not  Within  Rule. — A  formal 
answer,  putting  in  issue  the  allega- 
tions of  the  bill,  is  not  within  the  rule 
requiring  proof  of  the  allegations  by 
two  witnesses,  Reynolds  v.  Pharr,  9 
Ala.  560. 

Execution  of  Note. — The  fact  of  the 
execution  of  a  note  has  nothing  pecul- 
iar about  it  to  save  it  from  the  opera- 
tion of  the  general  rule  in  equity  that 
the  answer  when  responsive  to  the 
bill  can  be  overcome  only  by  two  wit- 
nesses, or  one  witness  aided  by  cor- 
roborating circumstances.  Low  v.  Ar- 
grove,  30  Ga.  129. 

Answer  Denying  Mistake. — Plaintiff 
sought  the  reformation  of  a  mortgage 
on  the  ground  of  mistake;  held,  that 
relief  was  not  to  be  refused  merely 
because  defendant  in  his  answer  de- 


93^ 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 

ment.     But  inadequacy  of  price  was  held  a  corroborating  circum 
stance  to  sustain  such  allegation  where  it  had  been  proved  by  one 
witness,  and,  with  other  corroborating  circumstances,  would  then 
have  been  sufficient  to  cause  the  oath  of  the  witness  to  counter- 
vail the  denials  of  the  answer.* 

Dismissal  of  Bill. — Whatever  may  be  the  impressions  of  the  court 


no  consequence  flows  from  the  asser- 
tion,     Catterlin    v.    Hardy,   lo    Ala. 

511- 

Statement  of  Complainant  on  Informa- 
tion.— Where  the  complainant,  in  his 
bill,  swore  that  he  was  informed  that 
there  was  usury  in  the  transaction 
impeached,  and  that  the  defendant  de- 
nied the  charge,  and  the  complainant 
proved  it  by  one  witness,  held,  that 
this  was  not  sufficient;  that  the  state- 
ment of  the  complainant,  made  on  in- 
formation, amounted  to  nothing,  and 
therefore  there  was  only  one  witness 
against  the  defendant's  oath.  Car- 
rick  V.  Prater,  lo  Humph.  (Tenn.) 
270. 

Defendant  Enjoined. — A  bill  in  chan- 
cery having  been  filed  by  E.  against 
A.  to  set  aside  the  judgment,  execu- 
tion, and  sale,  as  fraudulent,  on  the 
ground  that  the  judgment  was  entered 
without  any  warrant  or  authority 
from  B.,  partner  to  A.,  it  was  held 
that,  the  allegations  of  the  bill  being 
denied  by  the  answer,  and  there  being 
but  one  witness  to  support  the  bill, 
the  judgment  could  not  be  set  aside, 
but  that  A.  appearing  to  be  the  only 
person  interested  in  the  judgment  and 
having  received  property  with  which 
to  pay  a  debt  due  to  C,  he  ought  to 
be  enjoined  from  proceeding  under 
the  judgment  or  from  bringing  any 
action  of  ejectment  in  his  own  name 
or  the  name  of  C.  until  he  fully  ac- 
counted for  the  disposition  of  the  pro- 
perty he  had  received.  Swift  v.  Dean, 
6  Johns.  (N.  Y.)  523. 

Additional  Testimony. — After  the  final 
hearing  of  a  cause,  and  the  reversal 
of  the  chancellor's  decree  on  error, 
leave  to  take  additional  testimony  to 
contradict  the  answer  should  not  be 
granted  to  the  complainant  because 
he  was  informed  by  his  solicitor  that 
such  proof  was  unnecessary.  Lainer 
V.  Hill,  30  Ala.  III. 

Husband  and  Wife — Ejectment. —  The 
testimony  of  a  husband  and  wife  is 
deemed  but  that  of  a  single  witness, 
in  opposition  to  a  responsive  answer; 
and   the   same   rule  is  applied  to  an 


equitable  ejectment  at  law.  Sower  v. 
Weaver.  7S  Pa.  St.  443. 

Defendants  Not  Beqaired  to  Prove  Be- 
sponsive  Answer. — Where  it  was  urged 
that  the  defendant  to  a  bill  in  equity 
should  be  required  to  offer  proof  in 
support  of  some  of  the  statements  of 
the  answer,  though  responsive  to  the 
bill,  because  such  proof  was  within 
his  reach,  whilst  it  was  inaccessible  to 
the  complainant's — held,  that  the  rule, 
that  the  answer,  when  responsive  to 
the  averments  of  the  bill,  shall  be 
taken  as  true,  unless  discredited  by 
two  witnesses,  or  one  witness  with 
pregnant  circumstances,  is  not  subject 
to  the  modification  which  the  introduc- 
tion of  such  a  principle  would  involve. 
Thompson  v.  Diffenderfer,  i  Md.  Ch. 
489. 

Answer  Not  Overcome. — The  com  plain- 
ant  pledged  certain  stock  to  a  bank  as 
collateral  for  a  loan.  The  debt  not 
being  paid,  the  stock  was  sold.  The 
complainant  alleged  that  the  sale  was 
made  without  notice  to  him,  and  with- 
out opportunity  on  his  part  to  redeem. 
His  allegations  were  sustained  by  his 
own  evidence,  which  was  contradicted 
by  one  of  the  bank  officers.  The  an- 
swer was  responsive  and  denied  the 
allegations  of  the  bill.  Held,  that  the 
bill  should  be  dismissed,  as  complain- 
ant did  not  overcome  the  force  of  the 
allegations  of  the  answer.  Havward 
V.  Eliot  Bank,  4  Cliff.  (U.  S.)  294. 

Written  Contract,  Complete,  Not  Im- 
peached by  Answer. — A  written  contract 
that  is  complete  in  itself  being  set  up 
in  a  bill  in  equity  and  produced  in 
proof,  it  was  held  that  it  was  not  im- 
peached by  an  averment  in  the  sworn 
answer  that  it  constituted  but  part  of 
the  entire  contract  of  which  the  resi- 
due was  reduced  to  writing  and  in 
complainant's  possession,  nor  by  con- 
tradictory and  unsatisfactory  parol 
proofs  of  an  agreement  not  supple- 
mentary to  the  writing  produced  and 
proved.  Rogers  v.  Odell,  36  Mich, 
411. 

1.  Brittin  v.  Handy,  20  Ark.  381,  73 
Am.  Dec.  497. 


937 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 

as  to  the  merits  of  the  case,  if  the  answer  is  only  contradicted 
by  one  witness,  the  bill  must  be  dismissed.* 

Two  Defendants  Denying  Same  Fact. — It  is  said  that,  according  to  the 
sense  and  spirit  of  this  rule,  if  there  are  two  defendants,  each 
denying  the  same  fact,  it  requires  four  witnesses  to  countervail 
their  answers.* 

When  Answer  Overthrown. — As  a  consequence  of  the  aforesaid  rule, 
where  there  is  the  testimony  of  two  witnesses,^  or  of  one  witness 
with  corroborating  circumstances  opposing  it,  the  answer  will  be 
overthrown."* 


1.  Counts  V.  Clarke,  3  Rich.  Eq.  (S. 
Car.)  418. 

Directing  Issue. — No  issue  should  be 
directed  if  the  answer  is  not  over- 
thrown by  two  witnesses  or  by  one 
with  circumstances.  Carter  v.  Carter, 
82  Va.  624;  Beverley  v.  Walden,  20 
Gratt.  (Va.)  149;  Audenreid  v.  Walker, 
33  Leg.  Int.  (Pa.)  82;  Barclay's  Ap- 
peal, 38  Leg.  Int.  (Pa.)  440.  See  also 
Pryor  v.  Adams,  i  Call  (Va.)  382,  i 
Am.  Dec.  533. 

2.  Phillips  V.  Thompson,  i  Johns. 
Ch.  (N.  Y.)  132,  referring  to  Mortimer 
V.  Orchard,  2  Ves.  Jr.  243. 

Testimony  of  Two  Defendants. — Where 
a  responsive  answer  is  denied  by  two 
witnesses,  but  is  sustained  by  the  tes- 
timony of  the  defendant  answering 
and  another  defendant,  they  all  being 
equally  credible,  the  answer  cannot  be 
considered  overcome.  Hurd  v.  Asch- 
ermen,  117  111.  501. 

3.  Martin  v.  Eversal,  36  111.  222; 
Morrison  v.  Stewart,  24  111.  24;  Dodge 
V.  Griswold,  12  N.  H.  573. 

It  Is  Enough  to  Satisfy  the  Bale  of 
chancery,  that  the  testimony  of  two 
witnesses  is  required  to  overturn  the 
denial  of  the  answer;  that  two  wit- 
nesses should  testify  to  a  fact  or 
facts  to  be  established,  whether  their 
knowledge  of  such  fact  or  facts  be  ac- 
quired at  the  same  time  or  at  different 
times.  Bogart  v.  McClung,  11  Heisk. 
(Tenn.)  105,  27  Am.  Rep.  737. 

Admissions  of  Defendant. — The  state- 
ments of  two  witnesses  as  to  alleged 
admissions  of  the  defendant  will  not 
prevail  against  the  positive  denial  of 
an  answer  unless  it  appears  that  the 
admissions  were  deliberately  made 
and  repeated.  Petty  v.  Taylor,  5 
Dana.(Kv.)  598.  See  Hope  v.  Evans,  i 
Smed.  &'M.  Ch.  (Miss.)  195. 

Defendant's  sworn  answer  in  equity 
may  be  rebutted  by  the  evidence  of 
three  witnesses  swearing  to  the   ad- 


missions of  the  defendant  contrary  to 
his  statements  in  his  answer,  though 
such  admissions  be  made  at  different 
times  and  under  different  circum- 
stances. Gillett  V.  Robbins,  12  Wis. 
319- 

Examination  of  Defendant  Before  Mas- 
ter.— The  examination  of  a  defendant 
under  oath  before  a  master,  with  ref- 
erence to  the  appointment  of  a  re- 
ceiver, may  be  used  by  the  adverse 
party  at  the  hearing,  to  contradict  the 
answer;  and  it  makes  no  difference  in 
this  particular  whether  the  questions 
put  on  such  examination  were  proper 
or  not.  Gihon  v.  Albert,  7  Paige  (N. 
Y.)278. 

Proof  by  Subscribing  Witnesses. — If  a 
bill  alleges  the  execution  of  a  writing, 
and  the  answer  denies  it,  proof  of  the 
execution  of  the  writing  by  the  sub- 
scribing witness  is  sufficient  to  coun- 
tervail the  denial.  Thomason  v. 
Smithson,  7  Port.  (Ala.)  144. 

Chancellor  Judge  of  Evidence — Deci- 
sion Final.— It  is  for  the  chancellor  to 
judge  of  the  weight  of  the  evidence: 
and  his  decision  against  the  evidence 
to  contradict  the  answer  will  not  be 
interfered  with,  especially  where  the 
same  facts  are  sworn  to  by  two  de- 
fendants in  their  several  answers. 
Magwood  V.  Lubbock,  Bailev  Eq.  (S. 
Car.)  382. 

4.  Martin  v.  Sale,  Bailey  Eq.  (S. 
Car.)  i;  Rowe  v.  Cockrell,  Bailey  Eq. 
(S.  Car.)  126;  Johnson  v.  Slawson, 
Bailey  Eq.  (S.  Car.)  463;  Wilkins  v. 
Woodfin,  5  Munf.  (Va.)  183;  Bullock 
V.  Goodall,  3  Call.  (Va.)  44;  Chance  v. 
Teeple,  4  N.  J.  Eq.  173;  Keeney  v. 
Carillo,  2  N.  Mex.  480;  Tobey  v.  Leon- 
ards, 2  Wall.  -(U.  S.)  423.  (In  this 
case,  seven  witnesses  having  testified 
contrary  to  the  answer,  the  answer 
was  disregarded.)  See  also  Union 
Bank  v.  Geary,  5  Pet.  (U.  S.) 
99r 


938 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


Witnesses. — But  the  witnesses  must  be  competent  and  credible, 
and  their  testimony  must  be  as  positive  as  the  allegations  in  the 
answer.* 

Corroborating  Circumstances. — And  in  order  to  overthrow  the  answer, 
the  circumstances  in  connection  with  the  testimony  of  one  wit- 
ness must  be  sufficient  to  give  a  clear  preponderance  against  the 
answer.*     Thus  the  fact   that  a  liability  as  surety  for  the  grantor 

1.   Pickering  v.  Day,  3  Houst.  (.Del.)     each  other,  unless,  from  the  circum- 


474,  95  Am.  Dec.  2gi. 

And  they  must  have  had  ample  op- 
portunities of  knowing  the  facts  to 
which  they  testify.  Bryan  v.  Cowart, 
21  Ala.  92. 

Case  Continued  for  Further  Testimony. 
— When  it  appears  that  better  evi- 
dence can  be  produced,  the  chancellor 
will  continue  the  case,  with  leave  to 
take  further  testimony.  Washburn  t/. 
Holmes,  Wright  (Ohio)  67. 

Complainant  as  Witness. — Where  two 
complainants  are,  by  statute,  made 
competent  witnesses  for  themselves, 
the  question  of  credibility  is  left  to  be 
judged  of  as  affected  by  their  interest. 
Their  oaths  are  not  legally  entitled  to 
be  considered  as  destroying  the  effect 
of  the  answer,  unless  they  seem  to 
the  court  to  be  entitled  to  the  weight 
of  the  oaths  of  two  credible  witnesses; 
and  in  considering  their  weight,  the 
fact  of  the  interest  of  these  witnesses, 
as  parties  to  the  suit,  must  be  taken 
into  consideration,  while  the  effect 
given  to  a  responsive  answer  is  arbi- 
trarily fixed,  without  reference  to  the 
interest  of  the  defendant.  Vandegrift 
V.  Herbert.  18  N.  J.  Eq.  468. 

When  the  only  witness  for  the  com- 
plainant is  himself,  his  testimony,  in 
order  to  meet  the  positive  and  abso- 
lute denial  of  the  defendant,  should 
be  vigorous,  strong,  and  clear.  Rick 
V.  Neitzy,  i  Mackey  (D.  C.)  21. 

Defendant  as  a  Witness. — The  de- 
fendant's testimony  as  a  witness  in  his 
own  behalf  adds  no  weight  to  his  an- 
swer as  evidence,  and  it  may  still  be 
overcome  by  the  testimony  of  two  wit- 
nesses or  equivalent  evidence.  Cat- 
lett  V.  Dougherty,  114-111.  568. 

Answer  Conflicting  with  Defendant's 
Testimony. — If  the  defendant.'s  testi- 
mony is  in  conflict  with  his  answer, 
the  latter  will  not  prevail.  Spencer's 
Appeal,  80  Pa.  St.  317. 

Answer  in  Conflict  with  Defendant's 
Witness.— If  the  answer  of  a  defendant 
responsive  to  the  bill  and  the  testi- 
mony of  a  witness  called  by  the  de- 
fendant   are    in  conflict,  they  balance 


stances  of  the  case  as  detailed,  the 
unreasonable  or  evasive  statements  of 
the  one  give  a  preponderance  to  those 
of  the  other.  Jacks  v.  Nichols,  5  N. 
Y.  178. 

2.   Dunham  v.  Taylor,  29  Ga.  166. 

Strong  Circumstances. — In  French  v. 
Campbell,  13  Mo.  485,  it  was  held 
there  must  be  a  preponderance  rf 
strong  circumstances. 

In  Maddox  v.  Sullivan,  2  Rich.  Eo. 
(S.  Car.)  4,  it  was  said  that  the  circum- 
stances, it  seems,  must  be  such  that, 
standing  alone,  a  reasonable  conclu- 
sion as  to  the  truth  of  the  fact  might 
be  deduced  from  them.  See  also 
Beene  v.  Randall,  23  Ala.  514. 

One  Strong  Circumstance. — The  testi- 
mony of  one  witness,  supported  by  one 
strongly  corroborating  circumstance, 
was  held  sufficient  to  overcome  the 
weight  of  the  answer.  Brittin  v.  Crab- 
tree,  20  Ark.  309. 

Charge  of  Court. — The  court  charged 
that  the  sworn  answer  could  be  over- 
come by  one  witness  only  when  there 
were  strotrg  corroborating  circum- 
stances. Held,  that  the  word  "strong" 
should  have  been  omitted,  as  it  is 
enough  if  the  circumstances  give  a 
clear  preponderance  against  the  an- 
swer.    Durham  v.  Taylor,  29  Ga.  166. 

Modification  of  Rule. — Although  the 
general  rule  is,  that  the  answer,  re- 
sponsive to  the  bill,  is  evidence  of  the 
facts  therein  asserted,  and  cannot  be 
overcome  by  the  testimony  of  one  wit- 
ness, yet,  when  the  orator  seeks  to 
charge  a  banking  corporation  with  no- 
tice of  a  trust,  and  the  corporation 
answers  by  one  of  its  officers,  fully 
denying  such  notice,  and  the  orator 
introduces  the  deposition  of  another 
officer  of  the  corporation,  showing 
such  notice  to  him,  some  modification 
of  the  general  rule  is  required,  in- 
asmuch as  notice  given  to  one  officer 
may  not  have  been  communicated  to 
another  officer,  and  therefore  the  an- 
swer and  testimony  would  not  neces- 
sarily conflict  with  each  other.  Por- 
ter V.  Rutland  Bank,  19  Vt.  410. 


939 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


was  incurred  on  the  same  day  that  an  absolute  deed  was  deh'vered 
was  held  not  such  a  corroborating  circumstance  to  show  that  the 
conveyance  was  a  mortgage  as  would  make  the  oath  of  one  wit- 
ness overcome  the  denial  in  a  sworn  answer.* 

Bill  Sworn  to. — Where  the  bill  as  well  as  the  answer  is  sworn  to, 
the  rule  requiring  two  witnesses,  etc.,  does  not  apply,  and,  there- 
fore, in  such  case,  one  witness  will  be  sufficient  to  overthrow  the 


answer.* 

1.  Gelston  v.  Rullman,  15  Md.  260. 

Corroborating  Circamstances  Illus- 
trated.—  Where  a  bill  alleged  that  a 
note  was  made  payable  to  C.  for  the 
benefit  of  the  complainant,  under  a 
contract  to  the  effect  expressed  in  the 
note,  and  the  answer  denied  the  alle- 
gation, it  was  held  that  the  denial  was 
countervailed  by  the  production  of  the 
note  and  the  positive  testimony  of  one 
witness.  Eldridge  v.  Turner,  11  Ala. 
1049. 

The  declaration  of  a  testator  that  he 
never  intended  to  give  A.  (who  in  the 
absence  of  a  will  would  have  succeeded 
to  his  property)  anything,  that  he  was 
dissipated  and  worthless,  together 
with  an  extreme  dislike  to  A.  and  a 
solicitude  to  execute  his  will,  and  its 
actual  execution,  a  few  days  before  his 
death,  in  favor  of  his  grandchildren, 
were  held  to  be  such  circumstances  as, 
with  the  positive  swearing  of  one  wit- 
ness, were  sufficient  to  outweigh  the 
answer  of  A.  denying  all  knowledge 
of  the  will.  Brown  v.  Brown,  10  Yerg. 
(Tenn.)  84. 

The  issue  in  this  case  being  whether 
the.  feme  covert  defendant  executed  the 
promissory  note  which  was  sought  to 
be  charged  upon  her  separate  estate, 
and  which  purported  to  be  signed  by 
her  jointly  with  her  husband,  one  wit- 
ness expressing  the  conviction  that  her 
signature  was  genuine,  while  four 
other  witnesses  testified  that  the 
handwriting,  though  closely  resem- 
bling the  defendant's,  was  not  hers, 
and  the  evidence  showing  that  when 
the  note  was  handed  to  the  husband, 
and  he  was  required  to  procure  his 
wife's  signature,  he  went  with  it  to- 
wards the  room  occupied  by  himself 
and  wife,  and  returned  with  her  name 
signed  to  it — /leld,  that  the  evidence 
was  not  sufficient  to  overcome  the 
sworn  denial  of  the  answer.  Starke  v. 
Blackwell,  36  Ala.  154. 

An  answer  under  oath  was  filed  to  a 
bill  to  redeem,  denying  the  transaction 
to  be  a  mortgage.     Held,  that  the  testi- 


mony of  a  single  witness,  that  the 
money  was  advanced  by  the  grantee 
in  the  deed  to  relieve  the  grantor  in  his 
embarrassments,  taken  in  connection 
with  the  facts  that  the  bond  to  recon- 
vey  was  executed  at  the  same  time 
that  the  deed  was  passed,  and  that  it 
stipulated  that  the  grantee  should  not 
pay  rent,  the  grantor  not  paying  inter- 
est on  the  sum  advanced,  was  suffi- 
cient to  overcome  the  sworn  answer, 
and  establish  a  mortgage.  Preschba- 
ker  V.  Feaman,  32  111.  475. 

An  averment  in  an  answer  in  equity 
that  plaintiff  is  not  the  real  owner  of 
corporation  stock  subscribed  in  his 
name  is  overcome,  even  under  the 
strictest  rules  of  equity  practice,  by 
plaintiff's  denial,  corroborated  by  de- 
fendant's affidavit  annexed  to  the 
charter  of  the  corporation,  in  pursu- 
ance of  the  requirements  of  law,  show- 
ing plaintiff  to  be  a  subscriber  and 
director.  Rowley's  Appeal,  115  Pa. 
St.  150. 

In  a  suit  for  the  foreclosure  of  a 
mortgage,  the  recital  in  the  mortgage 
deed  of  the  existence  and  contents  of 
the  note  which  it  was  given  to  secure 
was  held  not  sufficient  to  overcome  a 
sworn  denial,  in  the  answer,  of  the 
existence  of  such  note.  O'Bannon  v. 
Myer,  36  Ala.  551,  76  Am.  Dec.  335. 

To  a  bill  in  equity  to  avoid  a  settle- 
ment for  rents  collected  by  defendant 
as  agent,  on  the  ground  of  false  repre- 
sentations by  defendant  that  he  had 
not  collected  any  rents  from  certain 
property,  defendant  answered  under 
oath,  as  required  by  the  bill,  denying 
fully  and  specifically  any  false  repre- 
sentations. Held,  that  such  answer 
was  not  overcome  by  the  testimony  of 
plaintiff's  solicitor,  corroborated  only 
by  a  letter  by  him  sent  to  defendant, 
which  defendant  did  not  answer,  it 
apparently  requiring  no  answer. 
Peeler  v.  Lathrop,  48  Fed.  Rep., 780. 

2.  Searcy  v.  Pannell,  Cooke  (Tenn.) 
no. 

Injunction  Bills. — In  cases  of  injunc- 


940 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence.. 


b.  By  Circumstances  Alone. — It  has  been  held  in  some  cases 
that  circumstances,  standing  alone,  without  the  aid  of  the  positive 
testimony  of  a  witness,  may  be  sufficient  to  overcome  an  answer.* 


tions,  where  the  bill  must  be  sworn  to, 
the  rule  that  an  answer  responsive  to 
the  bill  and  denying  the  allegations 
must  be  taken  as  true  unless  contra- 
dicted by  two  positive  witnesses,  or  by 
one  witness  and  corroborating  circum- 
stances, does  not  apply;  in  such  case 
one  witness  is  sufficient.  Searcy  v. 
Pannell,  Cooke  (Tenn.)  no. 

Bill  Sworn  to  By  Only  One  of  Two  Com- 
plainants.— Where  two  complainants 
sign  a  bill  in  equity,  but  only  one  of 
them  swears  to  its  contents,  and  the 
respondent  answers  its  allegations  di- 
rectly, under  oath,  the  court  will  make 
no  decree  for  the  complainants  with- 
out another  witness,  or  corroborating 
circumstances,  to  overbear  the  respon- 
dent's answer.  Horton's  Appeal,  13 
Pa.  St.  67. 

1.  Long  V.  White,  5  J.  J.  Marsh. 
(Ky.)  226;  White  v.  Crew,  16  Ga.  416; 
Robinson  v.  Harden,  26  Ga.  344;  Com- 
mercial Bank  v.  Reckless,  5  N.  J.  Eq. 
650;  Jones  V.  Abraham,  75  Va.  466; 
Bowdin  v.  Johnson,  107  U.  S.  251.  In 
this  case  the  omission  of  the  defendant 
to  testify  for  himself  was  given  great 
weight.  See  also  Morris  v.  White,  36 
N.  J.  Eq.  324;  Field  v.  Wilbur,  49  Vt. 
157  ;    Deimel   v.   Brown,    35   111.    App. 

303- 
Presumption  Arising  from  Receipt. — 

The  answer  of  one  of  two  guardians  to 
a  bill  by  his  wards,  that  the  other  guar- 
dian rec«ived  money  as  administrator, 
is  not  sufficient  to  rebut  the  presump- 
tion arising  from  a  receipt  for  the 
money,  signed  by  them  both  jointly  as 
guardians.  Monell  v.  Monell,  5  Johns. 
Ch.  (N.  Y.)  283,  9  Am.  Dec.  298. 

Presumption  Arising  &om  Cancellation 
of  Mortgage. — The  answer  of  a  defend- 
ant, on  oath,  that  a  mortgage  under 
which  he  claims  has  been  fraudulently 
cancelled,  is  not  evidence  to  repel  the 
presumption  of  satisfaction  arising 
from  its  cancellation.  Miller  z/.  Wack, 
I  N.  J.  Eq.  204. 

from  Possession  of  Mortgage. — 

The  answer  of  a  mortgagor  to  a  bill  of 
foreclosure,  denying  the  delivery  of 
the  mortgage,  is  not  in  itself  sufficient 
to  overcome  the  presumption  of  deliv- 
ery arising  from  the  possession  of  the 
mortgage,  duly  executed,  acknowl- 
edged,   and    recorded.       Commercial 


Bank    v.    Reckless,    5    N.   J.  Eq.    650; 
Long  V.  Kinkel,  36  N.  J.  Eq.  359. 

Deed  Not  Overthrown  by  Uncorroborated 
Answer. — An  answer  alleging  the  re- 
citals in  a  deed  to  be  false  and  fraudu- 
lent, but  uncorroborated  by  evidence 
of  fraud  or  mistake,  will  not  suffice  to 
overcome  the  express  language  of  the 
deed.  Forrest  v.  Frazier,  2  Md.  Ch. 
147. 

What  is  Sufficient  Evidence. — A  sworn 
answer,  responsive  to  the  bill,  stands 
as  the  deposition  of  one  witness,  and 
is  subject  to  the  same  proper  criticism 
as  is  other  evidence — as  that  it  is  the 
testimony  of  an  interested  witness,  or, 
perhaps,  that  it  is  evasive  or  equivo- 
cating. Any  evidence  in  the  cause,  no 
matter  what,  that  is  sufficient  to  out- 
weigh the  answer  satisfies  the  rule,  as 
commonly  expressed,  that  such  answer  1 
"  must  be  overcome  by  the  testimony 
of  two  witnesses,  or  at  least  by  one 
witness  and  attendant  circumstances." 
All  that  the  orator  is  bound  to  do  is  to 
meet  and  overcome  the  answer  by  com- 
petent proof.  This  proof  may  require 
one  or  twenty  witnesses  ;  it  may  be 
made  without  any.  Veile  v.  Blodgett, 
49  Vt.  270. 

Season  of  Eule. — "The  general  rule 
that  either  two  witnesses  or  one  wit- 
ness, with  probable  circumstances, 
will  be  required  to  outweigh  an  an- 
swer asserting  a  fact  responsively  to  a 
bill,  is  admitted.  The  reason  upon 
which  the  rule  stands  is  this:  the  plain- 
tiff calls  upon  the  defendant  to  answer 
an  allegation  he  makes,  and  thereby 
admits  the  answer  to  be  evidence.  If 
it  is  testimony,  it  is  equal  to  the  testi- 
mony of  any  other  witness;  and  as  the 
plaintiff  cannot  prevail  if  the  balance 
of  proof  is  not  in  his  favor,  he  must 
have  circumstances  in  addition  to  his 
single  witness  in  order  to  turn  the  bal- 
ance. But  certainly  there  maybe  evi- 
dence arising  from  circumstances 
stronger  than  the  testimony  of  any 
single  witness."  Marshall,  Ch.J.,  in 
Clark  V.  Van  Riemsdyk,  9  Cranch  (U. 
S.)  160. 

Maryland. — In  Maryland  it  has  been 
expressly  ruled  that  "pregnant  cir- 
cumstances" standing  alone  are  insuf- 
ficient to  overthrow  an  answer.  Rob- 
erts   V.   Salisbury,  3   Gill  &  J.   (Md.) 


941 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 

Cases  of  Fraud. — Circumstances  are  said  to  be  sometimes  more  con- 
vincing than  direct  testimony,  and,  in  the  development  of  fraud, 
to  furnish  almost  the  only  source  to  be  relied  upon.* 

c.  Answer  Inconsistent  or  Contradictory. — The  rule  which 
makes  responsive  answers  evidence  for  defendant  ex  necessitate 
applies  only  to  fair  answers  and  not  to  those  which  upon  their 
face  are  incredible.*  An  answer  may  be  within  itself  so  incon- 
sistent and  contradictory  as  to  deprive  it  of  all  efficac}'.' 

d.  Impeaching  Credibility  of  Defendant. — The  admis- 
sion of  extrinsic  evidence  to  discredit  an  answer  in  chancery  by 
impeaching  the  credibility  of  the  defendant  is  not  allowed.  It 
would  be  a  subversion  of  the  established  rule  requiring  two  wit- 
nesses, or  one  witness  with  corroborating  circumstances,  to  over- 
come an  answer.^ 


425;  Glenn  v.  Grover,  3  Md.  229;  Ing 
V.  Brown,  3  Md.  Ch.  521. 

1.  Gould  V.  Williamson,  21  Me.  273; 
Farley  v.  Bryant,  32  Me.  474.  See 
Wheat  V.  Moss,  16  Ark.  243. 

The  denial  of  fraud  in  an  answer 
under  oath  is  not  conclusive  on  the 
court  if  the  facts  and  circumstances  of 
the  case  are  such  as  irrresistibly  to  lead 
the  mind  to  a  different  conclusion. 
How  V.  Camp,  Walk.  (Mich.)  427; 
Morris,  etc.,  R.  Co.  v.  Blair,  9  N.  J. 
Eq.  635. 

2.  Stevens  v.  Post,  12  N.  J.  Eq.  408. 

3.  Brown  v.  Bulkley,  14  N.  J.  Eq. 
294;  Dunham  v.  Gates,  Hoffm.  Ch. 
(N.  Y.)  1S5.  See  Morris  v.  White,  36 
N.  J.  Eq.  324. 

"The  answer  itself  may  be  so  ob- 
viously contradictory,  inconsistent,  and 
incredible;  may  contain  within  itself 
such  circumstances,  as  will  alone  suf- 
■fice  to  deprive  it  of  all  efficacy  and 
vitality.  The  rule  (two  witnesses,  etc.) 
obviously,  ex  necessitate,  applies  only 
to  a  fair  and  untainted  answer,  not  to 
an  answer  in  itself  inconsistent,  con- 
tradictory, and  incredible."  Greene, 
Ch.  J.,  in  Commercial  Bank  v.  Reck- 
less, 5  N.  J.  Eq.  650. 

A  denial  by  the  answer  of  the  exist- 
ence of  fraud  will  not  avail  to  dis- 
prove it,  where  the  answer  admits 
facts  from  which  fraud  follows  as  a 
natural  and  legal,  if  not  a  necessary 
and  unavoidable,  conclusion.  Sayre  v. 
Fredericks,  16  N.  J.  Eq.  205;  Hoboken 
Sav.   Bank    v.  Becham,   33  N.  J.    Eq. 

53- 

One  Witness  SuflBcient. — Where  the 
answer  positively  denies  a  fact  charged 
in  the  bill,  but  proceeds  to  give  a  cir- 
cumstantial account  of  the  transaction 


inconsistent  with  the  truth  of  the  de- 
nial, a  single  witness,  without  cor- 
roborating circumstances,  is  sufficient 
to  prove  the  facts  charged.  Barraque 
V.  Siter,  9  Ark.  545. 

No  Oral  Testimony  Necessary. — Where 
two  papers  were  exhibited  in  the 
cause,  admitted  in  the  defendant's  an- 
swer, and  declared  by  the  court  to 
be  the  agreement  of  the  parties,  they 
are  sufficient  to  control  the  answer 
denying  the  agreement,  without  the 
aid  of  any  oral  testimony  in  their  sup- 
port. Jones  V.  Belt,  2  Gill  (Md.)  106. 
See  also  Trump  v.  Baltzell,  3  Md.  295. 

Admissions  Received  Without  Explana- 
tions.— Where  an  answer,  though  re- 
sponsive to  the  charges  of  the  bill,  is 
contradictory  in  itself,  or  absurd  in  its 
explanation  of  the  admissions  of  the 
defendant,  and  is  disproved  by  one 
witness,  the  court  may  take  the  ad- 
missions in  the  answer  without  the 
explanations.  Brown  v.  Brown,  10 
Yerg.  (Tenn.)  84. 

Improbability  of  Allegations.  —  The 
inherent  improbability  of  the  allega- 
tions of  an  answer  to  a  bill  in  equity  is 
insufficient  of  itself  to  overcome  its 
responsive  character,  and  the  com- 
plainant miust  establish  his  case  by 
other  evidence.  Hartley's  Appeal,  13 
W.  N.  Cas.  (Pa.)  407.  40  Pa.  L.  J.  326, 
103  Pa.  St.  23. 

4.  Brown  v.  Bulkley,  14  N.  J.  Eq. 
294;  Clark  V.  Bailey,  2  Strobh.  Eq. 
(S.  Car.)  143;  Butler  z/.  Catling,  i  Root 
(Conn.)  310. 

Contra.  Miller  v.  Tollison,  "Harp. 
Eq.  (S.  Car.)  145,  14  Am.  Dec.  712, 
held  that  evidence  to  impeach  the 
credibility  of  the  answering  defendant 
was  admissible.      But  see  the  opinion 


942 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.        Evidence. 


e.  Answer  Contradicted  on  Material  Point. — Where  an 
answer  is  disproved  or  contradicted  on  one  or  more  material 
points,  it  loses  its  weight  as  evidence,  and  stands  only  as  a  plead- 
ing necessary  to  form  the  issue.* 

7.  Answer  Not  Direct  and  Positive — a.  In  General. — The  rule 
that  a  fact  denied  by  answer  can  only  be  established  by  the  testi- 
mony of  more  than  one  witness  is  inapplicable  if  the  answer  does 
not  contain  a  direct  and  positive  denial  of  such  fact.* 


in  this  case  reviewed  and  criticised  in 
Brown  v.  Bulkley,  14  N.  J.  Eq.  315. 

No  Proof  to  Contradict  Answer. — A., 
having  failed  to  prove,  in  a  trial  at 
law,  that  B.  was  an  agent  of  C, 
brought  his  bill  in  equity  to  be  relieved 
against  the  judgment  obtained  by  C, 
C.  having  denied  the  agency.  Held, 
that  A.  cjuld  not  go  into  proof  to  con- 
tradict C.'s  answer.  Lemon  z'.  Cherry, 
I  Bibb  (Ky.)  253. 

Effect  of  Evidence  Tending  to  Discredit 
Answer. — A  plaintiff  cannot  destroy 
the  weight  of  the  whole  answer  by 
proving  that  the  defendant  is  unwor- 
thy of  credit,  nor  can  he  incidentally 
do  so  by  proving  that  the  answer  is 
false  in  one  respect  or  several  respects, 
the  only  effect  of  such  proof  being  to 
destroy  the  weight  of  the  answer,  to 
the  extent  to  which  it  is  disproved  by 
that  amount  of  evidence  which  is  re- 
quired by  the  rule  in  chancerv.  Fant 
V.  Miller,  17  Gratt.  (Va.)  187." 

Discrediting  Testimony  by  Introduction 
of  Independent  Evidence. — "  It  is  true 
that,  after  reading  the  answer  to  the 
jury,  the  appellants  were  not  at  liberty 
to  discredit  it  by  impeaching  the  gen- 
eral reputation  of  the  appellee  for 
truth,  for  the  reason  that  a  party  is  not 
permit-ted  to  show  that  his  own  wit- 
ness is  unworthy  of  belief;  but  he  may 
always  controvert  the  correctness  of 
the  statements  made  by  his  own  wit- 
ness by  the  introduction  of  other 
evidence,  and  in  that  way  discredit 
his  testimony.  An  answer  to  a  bill  of 
discovery  is  entitled  to  no  higher  con- 
sideration than  the  answers  of  a  party's 
own  witnesses  upon  the  stand,  and 
may  be  controverted  in  the  same  way." 
Trumbull,  J.,  in  Chambers  v.  Warren, 
13  111.  322,  citing  Nourse  v.  Gregory, 
3  Litt.  (Ky.)  379;  McNutt  v.  Dare,  8 
Blackf.  (Ind.)  35;  Williams  v.  Wann, 
8  Blackf.  -(Ind.)  477;  March  v.  Davi- 
son, 9  Paige  (N.  Y.)  580.  And  approved 
in  Curtiss  v.  Martin,  20  111.  574;  Wil- 
liams V.  Jayne,  55  111.  181. 

1.    Prout    V.    Roberts,   32  Ala.   427; 

943 


Pharis  v.  Leachman,  20  Ala.  662;  Gunn 
V.  Brantley,  21  Ala.  633;  Countz  v. 
Geiger,  i  Call  (Va.)  191;  Fay  v.  Oat- 
ley,  6  Wis.  42;  Gamble  v.  Johnson,  9 
Mo.  605. 

Falsum  in  Uno,  Falsum  in  Omnibus. — 
Where  an  answer  is  contradicted  in 
any  one  or  more  important  particulars 
by  sufficient  evidence,  that  is,  by  two 
witnesses,  or  by  one  witness  with 
corroborating  circumstances,  it  is  de- 
prived in  all  other  respects  of  that 
weight  which  is  allowed  to  answers  by 
the  rules  of  a  court  of  equity;  for, 
being  falsified  in  one  thing,  no  con- 
fidence can  be  placed  in  it  as  to  others, 
according  to  the  ma.'nim  falsum  in  uno, 
falsum  in  omnibus.  Roundtree  v. 
Gordon,  8  Mo.  25. 

One  Witness  Sufficient. — Where  the  an- 
swer is  discredited  on  other  points, 
one  witness  will  prevail  against  it. 
Young  V.  Hopkins,  6  T.  B.  Men.  (Ky.) 

23- 

Entitled  Only  to  Diminished  Credit. — An 
answer,  as  evidence,  ought,  like  every 
other  species  of  evidence,  to  be  liable 
to  be  impeached  and  overthrown.  But, 
if  impeached  in  material  parts  by  the 
proofs  in  the  case,  it  is  entitled  to  only 
diminished  credit.  Forsyth  v.  Clark, 
3  Wend.  (N.  Y.)  637.  See  Fant  v. 
Miller,  17  Gratt.  (Va.)  187. 

2.  Wetmore  v.  White,  2  Cai.  Cas. 
(N.  Y.)  87,  2  Am.  Dec.  323,  Bellows  v. 
Stone,  18  N.  H.  465;  Rogers  v.  French, 
19  Ga.  316;  Whittington  v.  Roberts,  4 
T.  B.  Mon.(Ky.)i73;  Bobe  z^.  Stickney, 
36  Ala.  4S2;  Ressler  v.  Witmer,  i  Pa. 
St.  174;  Remington  v.  Willard,  15  Wis. 
583;  McLard  v.  Linnville,  10  Humph. 
(Tenn.)  163;  McGuffie  v.  Planters' 
Bank,  Freem.  Ch.  (Miss.)  383;  Rector 
V.  Rector,  8  111.  105;  Toulnie  v.  Clark, 
64  Miss.  471;  Atkinson  v.  Foster,  134 
111.  472;  Barraque  v.  Siter,  9  Ark.  546; 
Copeland  v.  Crane,  9  Pick.  (Mass.)  73; 
Farnam  v.  Brooks,  9  Pick.  (Mass.) 
212;  Veile  V.  Blodgett,  49  Vt.  270; 
Harrison  v.  Gardner,  2  Madd.  455. 

Illustrations.  —  Sworn  averments  in 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.         Evldencei 


b.  Evasive  Answers. — If  facts  alleged  in  the  bill  are  denied' 
equivocally  or  evasively,  one  credible  witness  who  swears  postively 
will  be  sufficient  to  establish  them.* 

c.  Answers  on  Information  and  Belief. — If  an  answer 
states  the  facts  on  information  and  belief  instead  of  positively 
upon  defendant's  own  knowledge,  even  though  it  be  responsive, 
the  general  rule  as  to  the  effect  of  responsive  answers  as  evidence 


the  answer  to  a  creditor's  bill,  which 
sets  up  the  confession  by  defendant  of 
a  judgment  on  a  note,  that  the  note, 
"  as  defendant  is  advised,"  was  paid 
before  the  judgment  was  confessed; 
that  "  on  an  accounting  "  between  the 
parties  "it  will  appear  that  there  is 
nothing  due  from  defendant  on  said 
note  or  judgment;"  and  that  defend- 
ant is  not  indebted  in  any  amount  on 
said  note  "because  he  says  "  that  said 
note  had  been  fully  paid  by  a  third 
person,  "as  will  be  shown  on  an 
accounting"  between  such  third  per- 
son and  the  payee, — are  not  direct  and 
positive  denials  of  an  allegation  in  the 
bill  that  the  judgment  remains  unpaid, 
and  hence  they  need  not  be  overcome 
by  the  evidence  of  two  witnesses,  or  its 
equivalent.  Atkinson  v.  Foster,  134 
111.  472. 

A  statement,  in  an  answer,  to  the 
effect  that  "respondent  does  not  ad- 
mit the  statement  of  moneys  paid,  as 
charged  in  the  bill,  to  be  correct,  but 
avers  that  the  aggregate  of  said  pay- 
ments but  little  (if  any)  exceeded  the 
amount  of  principal  and  interest  due 
on  the  first  of  said  notes."  does  not  so 
negative  the  payments  claimed  in  the 
bill  as  to  require  the  testimony  of  two 
witnesses,  or  of  one  witness  with  cor- 
roborating circumstances,  to  overturn 
it.     Bobe  V.  Stikney,  36  Ala.  482. 

Where  complainants  allege  that  a 
certain  pier  and  its  appurtenances  are 
essential  to  the  enjoyment  of  their 
canal,  and  the  answer  alleges  that  they 
are  useful  but  not  essential,  such 
denial  is  not  so  direct  and  positive  as 
to  entitle  the  answer  to  outweigh  the 
allegation  of  the  bill.  Morris  Canal, 
etc.,  Co.  V.  Jersey  City,   11   N.   J.  Eq. 

'3-  .    .  . 

In  a  suit  in  equity  to  open  a  settle- 
ment of  accounts,  where  the  suit  was 
barred  unless  there  was  a  sufficient 
acknowledgment  or  promise  to  take  it 
out  of  the  statute,  one  witness  testi- 
fied that  the  witness  said:  "  I  am  will- 
ing to  pay  all  errors  and  interest  on 
them,  and  you  are  authorized  to  say 


as  much."  In  his  answer  the  defend- 
ant denied  "  that  he  ever  made  such 
a  promise  as  he  is  falsely  stated  in  the 
bill  to  have  made,  within  two  years  last 


past. 


He  might  have  stated  that 


if  any  important,  palpable  errors,  of  a 
nature  to  affect  the  character  of  said 
settlement,  should  be  found,  they 
ought  and  should  be  corrected;  but 
that  unimportant  differences  between 
an  exact  account  and  the  abstract  used 
should  aot  be  permitted  by  the  defend- 
ant, at  this  period,  to  operate  on  or 
affect  such  settlement."  He  denied 
that  any  admission,  of  other  or  differ- 
ent meaning  from  this,  was  ever  made 
by  him.  Held,  that  this  was  not  such 
a  direct,  positive,  and  unequivocal 
denial  of  the  acknowledgment  that  it 
required  two  witnesses  to  overcome 
the  answer  at  this  point.  Farnam  v. 
Brooks,  9  Pick.  (Mass.)  212. 

1.  Slater  v.  Maxwell,  6  Wall.  (U.  S.) 
268;  Phillips  V.  Richardson,  4  J.  J. 
Marsh.  (Ky.)  212;  Combs  v.  Boswell, 
I  Dana  (Ky.).475;  Lawrence  v.  Law- 
rence, 4  Bibb  (Ky.)  358.  See  also 
Rembert  v.  Brown,  17  Ala.  667. 

Evasive  Answer  Merely  a  Pleading. — 
An  answer  filed  in  response  to  a  call 
for  an  answer  under  oath,  where  eva- 
sive and  responsive  to  the  interroga- 
tory, is  to  be  treated  only  as  a  plead- 
ing, and  not  as  evidence.  Deimel  v. 
Brown,  35  111.  App.  303. 

Evasive  Answer  of  Little  Force. — A 
grossly  evasive  answer  cannot  have 
the  force  of  one  that  shows  apparent 
good  faith.  Fairbairn  v.  Middlemiss, 
47  Mich.  372. 

Partial  Evasiveness  Does  Not  Vitiate 
Entire  Answer. — Where,  in  the  defend- 
ant's answer,  there  is  a  general  denial, 
which  is  clear  and  distinct,  any  am- 
biguity or  apparent  evasion  in  a  par- 
ticular part  will  not  vitiate  or  destroy 
other  parts.  The  whole  answer  is  to 
be  taken  together,  and  if  any  particu- 
lar part  is  ambiguous,  it  ought  to  be 
so  construed  as  to  comport  with  the 
general  denial.  Clason  v.  Morris,  10. 
Johns.  (N.  Y.)  524. 


94 1 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


is  inapplicable,  and  at  most  the  answer  can  only  be  regarded  as  a 
pleading  putting  in  issue  the  allegations  of  the  bill  and  putting 
the  complainant  to  proof.*     In  such  case  a  single  witness  in  sup- 


1.  Alabama. — Newman  v.  James,  12 
Ala.  29;  Paulding  v.  Watson,  21  Ala. 
279;  Waters  v.  Creagh,  4  Stew.  &  P. 
(Ala.)  410;  Pearce  v.  Nix,  34  Ala.  183. 

Arkansas.  —  Watson  v.  Palmer,  5 
Ark.  501;  Fairhurst  v.  Lewis,  23  Ark. 
435;  biscoe  V.  Coulter,  18  Ark.  423; 
Wheat  V.  Moss,  16  Ark.  250;  Barraque 
V.  Siter,  9  Ark.   545;  Burr  v.   Burton, 

18  Ark.  228. 

District  of  Columbia. — Miller  v.  Dis- 
trict of  Columbia,  5  Mackey  (D.  C.) 
291;  Noyes  v.  Inland,  etc.,  Coasting 
Co.,  4McArth.  (D.  C.)  i. 

Indiana.  —  State  v.  Holloway,  8 
Blackf.  (Ind.)45. 

Illinois. — Cunningham  v.  Ferry,  74 
111.  426. 

Georgia. — Rogers  v.  French,  19  Ga. 

316- 

Maryland.  —  Philadelphia  Trust, 
etc.,  Co.  V.  Scott,  45  Md.  451;  Drury 
V.  Conners,  6  Har.  &  J.  (Md.)  289  ; 
Dugan  V.  Gittings,  3  Gill  (Md.)  138,  43 
Am.  Dec.  306;  Dorsey  v.  Gassaway,  2 
Har.  &  J.  (Md.)402. 

Massachusetts. — Copeland  v.  Crane, 
9  Pick.  (Mass.)  73;  Parkman  z/.  Welch, 

19  Pick.  (Mass.)  231;  Buttrick  v.  Hol- 
den,  13  Met.  (Mass.)  355. 

Mississippi. — Carpenter  v.  Edwards, 
64  Miss.  595;  Snell  v.  Fewell,  64  Miss. 
655;  Toulme  v.  Clarke,  64  Miss.  471; 
McGuffie  V.  Planters'  Bank,  Freem.  Ch. 
(Miss.)  383;  Hanover  Nat.  Bank  v. 
Klein,  64  Miss.  150,  60  Am.  Rep.  47. 

New  York. — Hutchinson  v.  Smith,  7 
Paige  (N.  Y.)  26;  Town  v.  Needham, 
3  Paige  (N.  Y.)  546;  Dunham  v.  Gates, 
Hoffm.  Ch.  (N.  Y.)  185. 

Rhode  Island. — Atlantic,  etc.,  Ins. 
Co.  V.  Wilson,  5  R.  I.  479. 

Tennessee. — McKissick  v.  Martin,  12 
Heisk.  (Tenn.)  311;  Wilkins  v.  May,  3 
Head  (Tenn.)  173  ;  McLard  v.  Linn- 
ville,  ID  Humph.  (Tenn.)  163. 

Vermont. — Veile  v.  Blodgett,  49  Vt. 
270;  Loomis  V.  Fay,  24  Vt.  240;  Wooley 
V.  Chamberlain,  24  Vt.  270. 

Wisconsin. — Remington  v.  Willard, 
15  Wis.  583. 

United  States. — Berry  v.  Sawyer,  19 
Fed.  Rep.  286;  Allen  v.  O'Donald,  28 
Fed.  Rep.  17;  Slater  v.  Maxwell,  6 
Wall.  (U.  S.)  268;  Robinson  v.  Man- 
dell,  3  Cliff.  (U.  S.)  169. 

England. — Hughes  v.  Garner,  2  Y.  & 
C.  127. 


Illustrations.  —  In  a  proceeding  to 
avoid  a  deed  on  the  ground  that  it 
was  never  delivered  to  the  grantee, 
but  was  fraudulently  taken  from  his 
possession,  when  the  defendants, 
heirs  of  the  grantee,  have  no  personal 
knowledge  of  the  delivery  of  the  deed, 
and  can  only  answer  as  to  their  infor- 
mation and  belief,  and  the  answer 
contains  no  positive  denial  of  the  fact 
which  is  distinctly  alleged  in  this  bill, 
it  is  not  evidence  in  defendant's 
favor  upon  that  point,  and  complain- 
ant is  not  required  to  increase  the 
weight  of  his  evidence  to  overcome  it. 
Benson  v.  Woolverton,  15  N.  J.  Eq.  158. 

Where  an  answer  to  a  bill  to  fore- 
close a  mortgage  set  up  a  mortgage 
made  but  not  recorded  prior  to  that  of 
plaintiff,  and  alleged  upon  information 
and  belief  that  the  plaintiff  had  notice 
of  the  existence  of  defendant's  mort- 
gage at  the  time  he  took  his,  the  an- 
swer was  held  not  to  be  evidence  for 
defendant,  because  not  positive  in 
form.  Remington  v.  Willard,  15  Wis. 
583. 

Two  foreclosure  suits  pending  in 
the  same  court  were  consolidated  by 
consent  of  counsel,  and  it  was  agreed 
that  the  second  bill  should  be  taken 
as  an  answer  and  cross-bill  to  the 
first.  The  complainant  in  the  first  bill 
admitted  the  validity  of  the  other's 
mortgage,  while  the  latter  alleged  on 
information  and  belief  that  the  for- 
mer's mortgage  was  intended  to  hin- 
der and  delay  creditors,  and  that  the 
debts  secured  by  it  were  fictitious. 
Held,  that  it  was  incumbent  on  the 
first  complainant  as  against  the  sec- 
ond to  prove  the  existence  and  bona 
fides  of  the  debt  which  constituted  the 
consideration  of  his  mortgage.  De 
Vendal  v.  Malone,  25  Ala.  272. 

Answer  on  Information  and  Belief  Not 
Aided  by  Codefendant's  Answer  on  Knowl- 
edge.— Two  defendants  united  in  an 
answer.  The  one,  an  assignor,  met 
the  allegations  of  the  bill  on  his  own 
knowledge,  and  the  other,  an  assignee, 
on  information  and  belief.  The  an- 
swer of  the  latter  does  not  fall  within 
the  rule  requiring  two  witnesses  to 
prevail  against  it;  nor  can  it  be  aided 
by  the  answer  of  the  other.  Dunham 
V.  Gates,  Hoffm.  Ch.  (N.  Y.)  185. 

Where  a  material  allegation  of  the 


I  Encyc.  PI.  &  Pr.— 60. 


945 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 


port  of  such  allegations  will  be  sufficient  to  authorize  a  decree  for 
complainant.* 

Answers  on  Opinion  and  Belief. — An  answer  which  negatives  a  posi- 
tive allegation  by  way  of  opinion  and  belief  may  be  overbalanced 
by  proof  less  stringent  and  conclusive  than  if  the  defendant's 
denial  had  been  made  upon  his  own  knowledge.* 

Answers  on  Knowledge  and  Belief. — A  denial  according  to  the  best 
of  defendant's  knowledge  and  belief,  or,  in  other  words,  saying 
he  has  no  recollection  of  facts  alleged,  merely  throws  the  proof 
upon  the  other  party,  and  a  single  witness  is  suf^cient  to  estab- 
lish the  fact.* 


bill  is  denied,  on  information  and  be- 
lief merely,  by  all  the  defendants  ex- 
cept one,  as  to  whom  an  answer  made 
under  oath  was  waived,  and  by  whom 
the  allegation  is  denied  from  knowl- 
edge, it  is  not  incumbent  on  the 
plaintiff  to  establish  the  fact  by  two 
witnesses,  or  by  one  witness  with  cor- 
roborating circumstances.  Pearce  v. 
Nix,  34  Ala.  183. 

Answer  on  Information  and  Belief  Not 
Aided  by  Ex  Parte  Affidavit. — An  answer 
on  information  and  belief  has  no 
probative  force  to  negative  the  testi- 
mony of  one  or  more  witnesses  in 
support  of  the  bill.  Nor  can  such  an 
answer  be  aided  by  the  ex  parte  affi- 
davit of  a  deceased  witness.  Miller 
V.  District  of  Columbia,  5  Mackey  (D. 
C.)  291. 

An  Averment  of  Belief  from  Informa- 
tion Keceived,  even  if  responsive  to  the 
bill,  is  not  evidence.  Luburg's  Ap- 
peal, 23  W.  N.  C.  (Pa.)  454. 

An  Answer  to  a  Bill,  from  Information, 
Hearsay,  or  Belief  (except,  perhaps, 
when  the  facts  answered  by  a  defend- 
ant on  information  are  against  his 
interest,  and  he  states,  additionally, 
that  he  believes  them  to  be  true)  is 
not  responsive  to  a  bill  so  as  to  make 
it  evidence  in  the  case.  Arline  v. 
Miller,  22  Ga.  330. 

In  Mississippi  a  denial  in  an  answer 
upon  information  is  a  denial  other- 
wise than  by  the  general  traverse, 
within  the  meaning  of  Ann.  Code 
1892,  §  533,  providing  that  allegations 
of  fact  alleged  in  the  bill  and  not 
denied  by  the  answer  otherwise  than 
by  the  general  traverse  may  be  taken 
at  the  hearing  as  admitted,  and  is  suf- 
ficient to  prevent  facts  averred  in  the 
bill  from  being  taken  at  the  hearing 
as  admitted.  Carpenter  v.  Edwards, 
64  Miss.  595. 

1.  Fairhurst  v.  Lewis,  22  Ark.  435; 


Biscoe  V.  Coulter,  18  Ark.  423;  Wat- 
son V.  Palmer,  5  Ark.  501;  Atlantic, 
etc.,  Ins.  Co.  v.  Wilson,  5  R.  I.  479; 
Pearce  v.  Nix,  34  Ala.  183;  Newman 
V.  James,  12  Ala.  29;  Waters  v.  Creagh, 
4  Stew.  &  P.  (Ala.)  410;  Paulding  v. 
Watson,  21  Ala.  279;  State  v.  Hollo- 
way,  8  Blackf.  (Ind.)  45;  Dunham  v. 
Gates,  Hoffm.  Ch.  (N.  Y.)  185;  Town 
V.  Needham,  3  Paige  (N.  Y.)  546; 
Slater  v.  Maxwell,  6  Wall.  (U.  S.)  268; 
Toulme  v.  Clarke,  64  Miss.  471. 

2.  Givens  v.  Tidmore,  8  Ala.  745. 

3.  Knickerbacker  v.  Harris,  i  Paige 
(N.  Y.)  209;  Town  V.  Needham,  3 
Paige  (N.  Y.)  546. 

Where  thebill  allegesthatanoriginal 
paper, acopyof  which  is  appended  toan 
exhibit  to  the  bill,  is  in  the  defendant's 
possession,  and  specially  interrogates 
him  as  to  the  correctness  of  the  alleged 
copy,  and  requires  him  to  point  out 
the  differences  (if  any)  between  it  and 
the  original;  and  the  defendant  speci- 
fies in  his  answer  two  particulars  in 
which  the  alleged  copy  differs  from 
the  original,  and  avers  that  there  are 
other  differences  which  he  cannot 
recollect,  this  does  not  impose  upon 
the  complainant  the  onus  of  proving 
the  correctness  of  the  alleged  copy. 
Hartwell  v.  Whitman,  36  Ala.  712. 

Contra. — A  policy  of  insurance  con- 
tained a  stipulation  that  if  the  as- 
sured then  had,  or  thereafter  should 
have,  any  other  insurance  upon  the 
same  property,  notice  thereof  should 
be  given  to  the  insurance  company, 
and  the  same  be  indorsed  upon  the 
policy,  or  otherwise  acknowledged  by 
the  company,  in  default  of  which  the 
policy  should  cease.  A  loss  of  the 
property  accruing,  the  assured  filed  a 
bill  against  the  company,  alleging 
notice  of  a  subsequent  insurance  upon 
the  same  property  to  the  defendant^ 
and  praying  that  the  company  mighj 


946 


Answers  as      ANSWERS  IN  EQUITY  PLEADING,        Evidence. 


Answer  Denjring  Knowledge,  Information,  and  Belief. — An  answer  that  de- 
fendant has  no  knowledge,  information,  and  beHef  concerning  the 
allegation  of  the  bill  leave  such  allegations  to  be  proven  by  com- 
plainant, but  such  answer  is  not  equivalent  as  evidence  to  a  denial 
of  the  facts  alleged.* 

Answer  Showing  Lack  of  Personal  Knowledge. — Where  a  defendant  in 
his  answer  swears  positively  to  facts  as  to  which  the  answer  shows 
he  could  have  no  personal  knowledge,  evidence  equivalent  to  two 
witnesses  is  not  necessary  to  overcome  the  answers  in  relation  to 
such  facts.* 

Answer  of  Defendant  Who  Has  No  Personal  Knowledge. — The  answer  of  a 
defendant  who  has  no  personal  knowledge  of  the  facts  he  alleges 
is  not  evidence  though  responsive  to  the  bill,  and  the  only  effect 
of  such  an  answer  is  to  make  an  issue  and  put  complainant  to  the 
proof  of  his  allegations.  In  such  case  the  testimony  of  one  wit- 
ness for  complainant  will  warrant  a  decree  in  his  favor.* 

d.  Answers  on  Hearsay. — Where  the  answer  states  facts 
acquired  through  hearsay  merely,  it  is  not  evidence.* 

e.  Answer  Alleging  Ignorance. — And  the  same  is  the  case 
where  defendant  by  his  answer  professes  complete  ignorance  of 
the  facts  stated  in  the  bill.* 

be  compelled  to  indorse  the  notice 
upon  the  policy,  or  otherwise  acknowl- 
edge it  in  writing.  The  answer  of  the 
company,  sworn  to  by  the  then  presi- 
dent, denied  the  notice,  to  the  best  of 
his  knowledge  and  belief.  Held,  that 
the  answer  being  responsive  to  the 
bill,  and  denying  the  allegation  under 
oath,  the  general  rule  applied,  and 
that  the  allegation  of  the  bill  must  be 
proved  by  two  witnesses,  or  one  wit- 
ness and  other  evidence.  Carpenter 
V.  Providence  Washington  Ins.  Co.,  4 
How.  (U.  S.)  185. 

1.  The  Holladay  Case,  27  Fed.  Rep. 
830. 

2.  Fryrear  v.  Lawrence,  10  111.  325; 
Garron  v.  Carpenter,  i  Port.  (Ala.) 
359;  Lawrence  v.  Lawrence,  21  N.  J. 
Eq.  317. 

3.  United  States. — Dutilh  v.  Cour- 
sault,  5  Cranch  (C.  C.)  349. 

Kentucky. — Harlan  v.  Wingate,  2  J. 
J.  Marsh.  (Ky.)  138;  Combs  v.  Bos- 
well,  I  Dana  (Ky.)  473;  Williamson  z/. 
McConnell,  4  Dana  (Ky.)  454. 

Arkansas.  —  Watson  v.  Palmer,  5 
Ark.  501;  Wheat  v.  Moss,  16  Ark.  250; 
Barraque  v.  Siter,  9  Ark.  550;  Biscoe 
V.  Coulter,  18  Ark.  423;  Burr  v.  Burton, 
18  Ark.  228. 

Alabama. — Gibbs  v.  Frost,  4  Ala.  721 ; 
Garrow  v.  Carpenter,  i  Port.  (Ala.) 
359;  Waters  v.  Creagh,  4  Stew.  &  P. 
(Ala.)  410. 


Illinois. — Deimel  v.  Brown,  136  111. 
586. 

Virginia. — Tabb  v.  Cabell,  17  Gratt. 
(Va.)  160. 

New  Jersey. — Lawrence  v.  Lawrence, 
21  N.  J.  Eq.  317;  Kinna  v.  Smith,  3  N. 
J.  Eq.  14. 

Indiana. — Townsend  v,  Mcintosh,  14 
Ind.  57. 

Vermont. — Loomis  v.  Fay,  24  Vt. 
240;  Wooley  V.  Chamberlain,  24  Vt. 
270. 

Delaware. — Lattomus  v.  Garman,  3 
Del.  Ch.  232. 

Maryland. — Pennington  v.  Gittings, 

2  Gill  &  J.  (Md.)  215;  Drury  z/.  Con- 
ner, 6  Har.  &  J.  (Md.)  288. 

Thus,  where  A.  brought  his  bill  to 
enjoin  a  judgment  recovered  against 
him  by  default,  averring  that  from 
sickness  he  had  been  unable  to  attend 
the  trial  at  law,  and  the  answer  de- 
nied the  fact  and  put  A.  to  the  proof, 
it  was  held  that  the  testimony  of  one 
witness  was  sufficient  to  establish  the 
charge,  as  the  defendant  could  have 
no  personal  knowledge  of  the  fact. 
Watson  V.  Palmer,  5  Ark.  501. 

4.  Stevens  v.  Post,  12  N.  J.  Eq.  408; 
Doub  V.  Barnes,  i  Md.  Ch.  130. 

6.  Couthway  v.  Berghaus,  25  Ala. 
393;  Drury  v.  Conner,  6  Har.  &  J. 
(Md.)  288;  Harlan  v.  Wingate,  2  J.  J. 
Marsh.  (Ky.)  138;  Neale  v.  Hagthrop, 

3  Bland  (Md.)  578  {citing  Hagthorp  v. 


947 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidince. 


8.  Unsworn  Answer. — Where  an  answer  without  oath  is  filed,  it 
is  not  evidence  in  favor  of  defendant  for  any  purpose.*     But,  on 


Hook,  I  Gill  &  J.  (Md.)  273;  Potter  v. 
Potter,  I  Ves.  274;  Amhurst  v.  King, 
I  Cond.  Ch.  Rep.  407);  Harrison  v.  An- 
napolis, etc.,  R.  Co.,  50  Md.  513; 
Philadelphia  Trust,  etc.,  Co.  v,  Scott, 
45  Md.  453;  Williamson  v.  McConnell, 
4  Dana  (Ky.)  454;  Young  z/.  Hopkins, 
16  T.  B.  Mon.  (Ky.)  18;  Brown  v. 
Pierce,  7  Wall.  (U.  S.)  212. 

In  Neale  v.  Hagthrop,  3  Bland  (Md.) 
551,  the  court  said:  "Where  an  an- 
swer in  the  body  of  it  purports  to  be 
an  answer  to  the  whole  bill,  but  the 
respondent  declares  that  he  is  entirely 
ignorant  of  the  matters  contained  in 
the  bill,  and  leaves  the  plaintiff  to 
make  out  the  best  case  he  can,  or  any 
language  to  that  effect,  and  the  plain- 
tiff files  a  general  replication,  all  the 
allegations  of  the  bill  are  thus  denied 
and  put  in  issue,  and  consequently  all 
of  them  must  be  proved  at  the  hearing 
against  a  defendant  who  had  thus  an- 
swered." 

Illustration. — Where  a  bill  is  filed  by 
a  married  woman  against  her  trustee 
and  certain  judgment  creditors  of  her 
husband,  seeking  the  reformation  of 
a  deed  on  the  ground  of  mistake,  an 
injunction  of  the  judgment,  and  the 
appointment  of  another  trustee;  and 
decrees  proconfesso  are  entered  against 
all  the  defendants  except  the  trustee, 
who  avers  his  ignorance  of  the  alleged 
mistake,  the  clear  and  direct  testi- 
mony of  one  witness  is  sufficient  to 
authorize  the  reformation  of  the  deed. 
Godwin  v.  Yonge,  22  Ala.  553. 

1.  Alabama. — Guthrie  v.  Quinn,  43 
Ala.  561;  Lockhart  v.  Troy,  48  Ala. 
579;  Marshall  v.  Croom,  52  Ala.  554; 
GriflSn  v.  State  Bank,  17  Ala.  258; 
Wilkinson  v.  Bradley,  54  Ala.  677; 
Zelnicker  v.  Brigham,  74  Ala,  598; 
Watts  V.  Eufaula  Nat.  Bank,  76  Ala. 
474;  White  V.  Wiggins,  32  Ala.  424; 
Rainey  v.  Rainey,  35  Ala.  282;  Keiffer 
V.  Barney,  31  Ala.  192;  Frazer  v.  Lee, 
42  Ala.  25, 

Georgia. — Vanderzer  v.  McMillan,  28 
Ga.  339. 

Illinois. — Wallwork  v.  Derby,  40  111. 
527;  Hopkins  v.  Granger,  52  111.  504; 
Willenborg  v.  Murphy,  36  111.  344; 
Moore  v.  Hunter,  6  111.  317;  Adlard  v. 
Adlard,  65  111.  217;  Chambers  v.  Rowe, 
36  111.  171;  Jones  V.  Neely,  72  111.  449; 
Ferguson  v.  Sutphen,  8  111.  572. 

Indiana. — Peck    v.    Hunter,  7   Ind. 


295;  Larsh  v.  Brown,  3  Ind.  234;  Moore 
V.  McClintock,  6  Ind.  209. 

Iowa. — Armstrong  v.  Scott,  3  Greene 
(Iowa)433;  White  z/.  Hampton,  10  Iowa 
238. 

Maine.— (Z\2>.y  v.  Towle,  78  Me.  86. 

Maryland. — Stockett  v.  HoUiday,  9 
Md.  480;  Taggart  v.  Boldin,  10  Md. 
104;  Dorn  V.  Bayer,  16  Md.  144. 

Massachusetts. — Gerrish  v.  Towne,  3 
Gray  (Mass.)  82. 

Michigan. — Morris  z^.  Hoyt,  II  Mich, 
g;  Adair  v.  Cummin,  48  Mich.  375. 

New  Hampshire. — Winsor  v.  Bailey, 
55  N.  H.  223;  Ayer  v.  Messer,  59  N. 
H.  279;  Hall  V.  Congdon,  55  N.  H.  105; 
Wilson  V.  Towle,  36  N.  H.  129. 

NcTv Jersey. — Hyer  v.  Little,  20  N.  J. 
Eq.  443;  Walker  v.  Hill.  21  N.  J..  Eq. 
191;  Stevens  v.  Post,  12  N.  J.  Eq.  408; 
Sweet  V.  Parker,  22  N.  J.  Eq.  452. 

New  York. — Bartlett  v.  Gale,  4  Paige 
(N.  Y.)  503;  Fulton  Bank  v.  Beach,  2 
Paige  (N.  Y.)  307;  Fishell  v.  Bell, 
Clarke  Ch.  (N.  Y.)  37;  Miller  v.  Avery, 
2  Barb.  Ch.  (N.  Y.)  582;  Hatch  v. 
Eustaphieve,   Clarke  Ch.  (N.  Y.)  63. 

Ohio. — Miami  Exporting  Co.  v.  U.  S, 
Bank,  Wright  (Ohio)  249. 

Tennessee. — Lindsley  v.  James,  3 
Coldw.  (Tenn.)  477;  Murray  v.  John- 
son, I  Head  (Tenn.)353;  Van  Wyck  v. 
Norvel,  2  Humph.  (Tenn.)  196;  Dun- 
lap  V.  Haynes,  4  Heisk.  (Tenn.)  476. 

Wisconsin. — Smith  v.  Potter,  3  Wis. 
432;  Flint  V.  Jones,  5  Wis.  424. 

United  States. — Union  Bank  z/.  Geary, 

5  Pet.  (U.  S.)  99;  Patterson  v.  Gaines, 

6  How.  (U.  S.)  550. 

Answer  Sworn  before  Party  Unauthor- 
ized to  Administer  Oath. — A  paper 
writing,  purporting  to  be  the  answer 
of  a  defendant,  filed  after  his  death, 
and  certified  as  sworn  to  by  him,  but 
the  person  so  certifying  not  appearing 
in  the  certificate,  nor  by  evidence,  to 
have  been  a  magistrate  of  any  kind, 
is  not  the  answer  of  the  party,  nor 
evidence  in  the  cause.  Sitlingtons  v. 
Brown,  7  Leigh.  (Va.)  271. 

An  answer,  though  responsive  on 
the  point  in  controversy,  sworn  to  be- 
fore an  officer  in  another  state,  not 
authorized  by  the  statutes  of  this 
state  or  the  rules  of  this  court  to  take 
such  oaths,  has  no  weight  as  evi- 
dence; it  must  be  treated  as  a  plead- 
ing only.  Freytag  v.  Hoeland,  23  N, 
J.  Eq.  36. 


948 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


the  other  hand,  the  admissions  and  allegations  which  tend  to  sup- 
port the  case  made  by  the  bill  are  evidence  against  him.*  An  an- 
swer filed  without  being  sworn  to  may  nevertheless  be  treated  as  a 
valid  answer  by  the  complainant,  and  in  such  a  case  will  have  the 
same  effect  as  evidence  in  favor  of  the  defendant  as  if  sworn  to.' 

9.  Answer  Where  Oath  is  "Waived. — It  may  be  stated  as  a  well- 
settled  rule  that,  in  the  absence  of  statutory  regulation  or  rule  of 
court,  a  mere  waiver  in  the  bill  by  complainant  of  the  requirement 
that  defendant  shall  make  oath  to  his  answer  will  not  deprive  him 
of  the  right  to  make  oath  thereto  if  he  sees  fit,  and  thereby 
make  his  answer  evidence  in  his  favor.* 

statutory  Changes  of  Eule. — In  many  jurisdictions,  however,  this  rule 
has  been  modified  or  abolished  altogether  by  statutes  and  rules 
of  court.*     But  even  in  jurisdictions  where  a  waiver  of  oath  by 


Answer  Not  Evidence  Unless  Duly 
Sworn. — A  paper  purporting  to  be  an 
answer  to  a  bill  of  discovery,  and  to 
have  been  sworn  to  before  a  magis 
trate  in  another  state,  is  not  admis- 
sible in  evidence  as  such,  without 
proof  of  its  having  been  filed  as  such, 
of  the  signature  of  the  party,  and  of 
the  attestation  of  the  officer.  Dough- 
ton  V.  Tillay,  4  Blackf.  (Ind.)  433. 

1.  Curling  v.  Townshend,  ig  Ves. 
628;  Bartlett  v.  Gale,  4  Paige  (N.  Y.) 
503;  Durfee  v.  McClurg,  6  Mich  223; 
Morris  v.  Hoyt,  11  Mich,  q;  Sims  v. 
Ferrill,  45  Ga.  585;  Smith  v.  Potter,  3 
Wis.  432;  Hyer  v.  Little,  20  N.  J.  Eq. 
443  ;  Symmes  v.  Strong, 28  N.J.Eq.  131. 

But  no  part  of  an  unsworn  answer, 
which  has  been  withdrawn  by  consent 
of  the  court  upon  the  ground  that  it 
was  written  by  the  solicitor  and  did 
not  state  the  facts  of  the  case,  can 
be  read  as  evidence  against  the  de- 
fendant on  the  hearing  of  the  case. 
Hurst  V.  Jones,  10  Lea  (Tenn.)  8. 

2.  Fulton  Bank  v.  Beach,  2  Paige 
(N.  Y.)307. 

3.  Jewett  V.  Cunard,  3  Woodb.  & 
W.  (U.  S.)  277;  Clements  v.  Moore,  6 
Wall.  (U.  S.)  299;  Conley  v.  Nailor, 
118  U.  S.  127;  Amory  v.  Lawrence,  3 
Cliff.  (U.  S.)  523;  Woodruff  r'.  Dubuque, 
etc.,  R.  Co.,  30  Fed.  Rep.  91;  Vander- 
z&xv.  McMillan,  28  Ga.  339:  Armstrong 
V.  Scott,  3  Greene  (Iowa)  434;  White 
V.  Hampton,  9  Iowa  182,  10  Iowa  238; 
Brown  v.  Bulkley,  14  N.  J.  Eq.  294. 

Laches  in  Swearing  to  Answer. — Where 
petitioners  did  not  call  for  an  answer 
under  oath,  and  defendants  made  an- 
swer, which  remained  on  file  but  not 
sworn  to  for  a  year — held,  that  defend- 
ants, havi.ig  so  long  omitted  to  make 


oath  to  their  answer,  could  not,  by  in- 
corporating a  little  new  matter,  under 
a  special  leave  given  to  file  an  amended 
answer  in  the  nature  of  a  plea,  into 
their  old  answer,  and  making  affidavit 
to  it,  give  the  force  of  a  sworn  an- 
swer to  the  original  one.  De  France 
V.  Howard,  4  Iowa  524. 

4.  Alabama. — Thus,  in  Alabama, 
where  the  bill  is  filed  for  any  other  pur- 
pose than  discovery  only,  plaintiff  may 
waive  oath,  and  in  such  case  the  an- 
swer is  entitled  to  no  more  weight  as 
evidence  from  the  bill.  Civil  Code 
1886,  §  3422.  See  also  Guthrie  v. 
Quinn,  43  Ala.  561;  Latham  z'.  Staples, 
46  Ala.  462;  Lockhart  v.  Troy,  48  Ala. 
579;  Marshall  v.  Croom,  52  Ala.  554; 
Mosser  v.  Mosser,  29  Ala.  313;  Griffin 
V.  State  Bank,  17  Ala.  258;  Wilkinson 
V.  Bradley,  54  Ala.  677;  Zelnicker  v. 
Brigham,  74  Ala.  598;  Watts  z/.  Eufaula 
Nat.  Bank,  76  Ala.  474. 

Illinois. — Where  a  bill  shall  be  filed 
for  any  purpose  other  than  discovery 
only,  complainant  may  waive  oath, 
and  the  answer  may  be  made  without 
oath,  and  shall  have  no  greater  effect 
as  evidence  than  the  bill.  Rev.  Sts. 
1893,  p.  219,  g  20.  Moore  v.  Hunter,  6 
111.  317;  Adlard  v.  Adlard,  65  111.  212; 
Willenborg  v.  Murphy,  36  111.  344; 
Harris  v.  Reece,  10  111.  212;  Wallwork 
V.  Derby,  40  111.  527;  Tracy  z/.  Rogers, 
69  111.  662;  Hopkins  v.  Granger,  52 
111.  504;  Ferguson  v.  Sutphen,  8  111. 
547;  Willis  V.  Henderson,  5  111.  13; 
Chambers  v.  Rowe,  36  111.  171. 

Where  answer  under  oath  is  not 
waived  in  suit  to  set  aside  a  gambling 
contract,  a  sworn  answer  is  evidence. 
Patterson  v.  Scott,  37  111.  App.  520, 
affirmed  142  111.  138. 


949 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


bill  destroys  the  effect  of  the  answer  as  evidence,  a  defendant 
cannot  be  deprived  of  the  benefit  of  his  answer  under  oath  as 


Georgia. — If  complainant  waives  an 
answer  under  oath,  the  answer  filed 
is  not  evidence.  It  may  be  used,  how- 
ever, as  an  admission  of  record,  and 
complainant  is  not  bound  to  prove  any 
fact  admitted.  But  when  so  used  the 
admission  must  be  taken,  together 
with  any  qualifications  or  explanations 
accompanying  it.  Woodward  v.  Gates, 
38  Ga.  205. 

Maine. — All  answers  shall  be  signed 
by  respondent  and  sworn  to  by  him  if 
complainant  in  his  bill  asks  for  an- 
swer upon  oath.  Otherwise  it  may  be 
signed  by  respondent,  his  agent  or  at- 
torney; but  in  such  case  it  has  no 
effect  as  evidence,  except  to  cast  the 
burden  of  proof  upon  plaintiff.  Rev. 
Sts.  c.  77,  §15.  See  also  Clay  z/.  Towle, 
78  Me.  86;  Peaks  v.  McAvey  (Me., 
1886)  7  Atl.  Rep.  270. 

Indiana. — Acts  1847,  p.  60,  provid- 
ing that  where  the  \>\\\  prays  for  an- 
swer without  oath,  answer  shall  oper- 
ate only  as  a  denial  of  the  allegations 
and  charges  in  the  bill,  and  in  such 
case  complainant  shall  not  be  required 
to  substantiate  such  charges  and  alle- 
gations by  more  than  one  witness. 
Under  this  statute  an  answer  put  into 
a  bill  requiring  answer  without  oath 
is  not  evidence  for  defendant.  Larsh 
V.  Brown,  3  Ind.  234;  Moore  v.  Mc- 
Clintock,  6  Ind.  209;  Peck  v.  Hunter, 
7  Ind.  295. 

Maryland. — Chancery  Rule  146  pro- 
vides that  it  shall  not  be  necessary  for 
any  defendant  to  make  oath  to  his  an- 
swer unless  required  by  the  plaintiff, 
nor  shall  any  answer,  whether  sworn 
to  or  not,  be  evidence  against  the 
plaintiff  at  the  hearing  of  the  cause, 
unless  the  plaintiff  shall  read  such  an- 
swer as  evidence  against  the  defend- 
ant making  the  same;  but  this  section 
shall  not  apply  to  motions  to  dissolve 
an  injunction  or  to  discharge  a  re- 
ceiver. See  also  Winchester  v.  Balti- 
more, etc.,  R.  Co.,  4  Md.  231;  Stockett 
V.  Holliday,  9  Md.  486;  Warren  v. 
Twilley,  10  Md.  39;  Taggart  z/.  Boldin, 
ID  Md.  114;  Mickle  v.  Cross,  10  Md. 
360;  Hamilton  v.  Whitridge,  11  Md. 
144,  69  Am.  Dec.  184;  Gelston  v.  Rull- 
man,  15  Md.  267;  Mahaney  v.  Lazier, 
16  Md.  69;  Rich  V.  Levy,  16  Md.  74; 
Dorn  V.  Bayer,  16  Md.  145;  Dorsey  v. 
Hagerstown  Bank,  17  Md.  412;  Colvin 
V.    Warford,    17    Md.    433;    State    v. 


Northern  Cent.  R.  Co.,  18  Md.  194; 
Hubbard  v.  Mobray,  20  Md.  165;  Hus- 
ton V.  Ditto,  20  Md.  306;  Watson  v. 
Watson,  58  Md.  442;  Diffenbach  v. 
Vogeler,  61  Md.  378. 

Massachusetts. — When  a  bill  shall  be 
filed  other  than  for  discovery  only, 
complainant  may  waive  the  necessity 
of  an  oath  to  the  answer,  and  the  an- 
swer may  be  made  without  oath  and 
shall  have  no  other  or  greater  effect  as 
evidence  than  the  bill.  Rule  5,  Ch. 
Pr. ,  24  Pick.  (Mass.)  411.  See  also 
Babcock  v.  Smith,  22  Pick.  (Mass.)  61; 
Bingham  v.  Yeomans,  10  Cush.  (Mass.) 
58. 

Michigan. — When  a  bill  shall  be  filed 
in  chancery  other  than  for  discovery, 
complainant  may  waive  the  answer 
being  made  on  oath,  in  which  case  the 
answer  shall  have  no  other  or  greater 
force  as  evidence  than  the  bill.  How. 
Sts.  of  Mich.  §  6621.  See  also  Morris 
V.  Hoyt,  II  Mich.  9;  Van  Inwagen  v. 
Van  Inwagen,  86  Mich.  333;  Roberts 
V.  Miles,  12  Mich.  297. 

Mississippi. — In  Mississippi,  if  the 
rule  be  waived,  the  answer,  whether 
sworn  to  or  not,  shall  not  be  evidence 
for  defendant.   Ann.  Code  1892,  §  534. 

New  Hampshire. — In  New  Hampshire, 
Rule  9  of  Chancery  Practice  provides 
that  answers,  unless  required  by  bill  to 
be  under  oath,  need  not  be  sworn  to, 
in  which  case  they  will  be  regarded 
only  as  pleadings.  If  the  bill  does  not 
call  for  a  sworn  answer,  the  answer, 
though  under  oath,  is  pleading  and 
not  evidence.  See  Ayer  v.  Messer,  59 
N.  H.  279;  Hall  V.  Congdon,  55  N.  H. 
105;  Winsor  v.  Bailey,  55  N.  H.  223; 
Wilson  V.  Towle,  36  N.  H.  129. 

New  Jersey. — In  New  Jersey  com- 
plainant may  pray  for  defendant's  an- 
swer without  oath.  The  answer  need 
not  be  sworn  to,  and  the  allegation 
therein,  whether  responsive  to  the  bill 
or  not,  shall  not  be  evidence  except  on 
motion  to  grant  or  dissolve  an  injunc- 
tion. Ch.  Acts  N.  J.  (Ridley  Comp.) 
21,  ^5  23.  See  also  Stevens  v.  Post,  12 
N.  J.  Eq.  408;  Hyer  v.  Little,  20  N.  J. 
Eq.  443;  Sweet  v.  Parker,  22  N.  J.  Eq. 
453;  Walker  v.  Hill,  21  N.  J.  Eq.  igi. 

New  York. — In  New  York,  under  the 
old  chancery  practice,  2  Rev.  Sts.  175, 
§  44,  authorized  complainant  to  waive 
the  necessity  of  an  answer  on  oath 
from    defendant,   and    in   construing 


950 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evideuce. 


evidence  by  a  waiver  of  oath  in  an  amended  bill  filed  subse- 
quently to  the  answer,  and  substantially  the  same  as  the  original 
bill  wherein  an  answer  under  oath  was  not  waived.* 

10.  Answer  of  Codefendant — a.  As  EVIDENCE  AGAINST  CODE- 
FENDANT. — Generally  the  answer  of  one  defendant  is  not  evidence 
against  his  codefendant,  for  the  obvious  reason  that  the  defendant 
against  whom  the  answer  is  proposed  to  be  used  as  evidence 
would  be  deprived  of  the  benefit  of  a  cross-examination.* 


this  statute  it  has  been  held  that 
where  oath  to  answer  has  been  so 
waived,  the  answer  is  not  evidence  for 
defendant  for  any  purpose.  Bartlett 
V.  Gale,  4  Paige  (N.  Y.)  503.  See  also 
Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.) 
582;  Fishell  V.  Bell,  Clarke  Ch.  (N.Y.) 
37;  Hatch  V.  Eustaphieve,  Clarke  Ch. 
(N.  Y.)  63. 

Tennessee. — In  Tennessee  plaintiff 
may  waive  answer  under  oath,  and 
the  answer  will  not  be  entitled  to  more 
weight  in  evidence  than  the  bill.  M. 
&  V.  Code  of  Tenn.  §  5060;  Ch.  Rule  6; 
Lindsley  z/.James,3Coldw.  (Tenn.)  477; 
Murray  v.  Johnson,  i  Head  (Tenn.) 
353;  Van  Wyck  v.  Norvell,  2  Humph. 
(Tenn.)  196. 

United  States. — By  amendment  to 
41st  Eq.  Rule,  if  the  complainant 
waive  answer  under  oath,  or  shall  only 
require  an  answer  under  oath  with  re- 
gard to  certain  specified  interroga- 
tories, the  answer,  though  under  oath, 
except  such  part  as  shall  be  directly 
responsive  to  such  interrogatories, 
shall  not  be  evidence  unless  the  cause 
be  set  down  for  hearing  on  bill  and  an- 
swer only,  but  may  nevertheless  be 
used  as  an  affidavit  with  the  same 
effect  as  heretofore  on  a  motion  to 
grant  or  dissolve  an  injunction,  or  any 
other  incidental  motion  in  the  cause; 
but  this  shall  not  prevent  a  defend- 
ant from  becoming  a  witness  in  his 
now  behalf  under  Act  of  Congress 
1864,  ^  3.  See  also  Conley  v.  Nailor, 
118  U.  S.  127;  U.  S.  V.  Workingmen's 
Amalgamated  Council,  54  Fed.  Rep. 
994;  Dravo  v.  Fabel,  132  U.  S.  487; 
Treadwell  v.  Lennig,  50  Fed.  Rep.  872. 

Virginia. — The  provisions  of  the  Vir- 
ginia Statute  (Code  Va.  1887,  §  3281) 
are  the  same  as  amendment  to  41st  Eq. 
Rule  (U.  S.),  supra.  See  also  Pettit  v. 
Jennings,  2  Rob.  (Va.)  676;  Jones  v. 
Abraham,  75  Va.  466. 

1.  Throckmorton  v.  Throckmorton, 
86  Va.  76S;  Walker  v.  Campbell,  5  Lea 
(Tenn.)  354;  Burras  v.  Looker,  4  Paige 
(N    Y.)  227;  Bingham  v.  Yeomans,  10 


Gush.  (Mass.)  58;  Wylder  v.  Crane,  53 
III.  490. 

Illustration. — Where  the  original  bill 
required  an  answer  under  oath,  which 
was  filed,  and  afterwards  the  com- 
plainant filed  an  amended  bill,  setting 
up  new  matter  and  dispensing  with  a 
sworn  answer — held,  that  such  waiver 
would  not  affect  the  answer  under  oath 
already  filed,  and  extended  only  to 
the  new  matter  set  up  in  the  amended 
bill.  Jefferson  v.  Kennard,  77  111.  246. 

2.  Alabama. —  Chambliss  v.  Smith, 
30  Ala.  366;  May  v.  Barnard,  20  Ala. 
200;  Julian  V.  Reynolds,  8  Ala.  680; 
Moore  v.  Hubbard,  4  Ala.  187;  Taylor 
V.  Roberts,  3  Ala.  83;  Singleton  v. 
Gayle,  8  Port.  (Ala.)  270;  Collier  v. 
Chapman,  2  Stew.  (Ala.)  163;  Cocker- 
ham  V.  Davis,  5  Port.  (Ala.)  220; 
Damer  Land,  etc.,  Co.  v.  Stonewall 
Ins.  Co.,  77  Ala.  184. 

Arkansas. —  Whiting  v.  Beebe,  12 
Ark.  421;  Barraque  v.  Siter,  9  Ark. 
545;  Dunn  V.  Graham,  17  Ark.  60; 
Blakeney  v.  Ferguson,  14  Ark.  640; 
Folsom  V.  Fowler,  15  Ark.  282; 

Delaware. — Pleasanton  v.  Raughley, 
3  Del.  Ch.  124. 

Georgia. — Adkins  v.  Paul,  32  Ga.  2ig; 
Allen  V.  Holden,  32  Ga.  418;  Morris 
'V.  Foote,  2  Ga.  Dec.  119;  Ligon  v. 
Rogers,  12  Ga.  281 ;  Clayton  v.  Thomp- 
son, 13  Ga.  206;  Carithers  v.  Jarrell, 
20  Ga.  843;  Hickson  v.  Bryan,  75  Ga. 
392- 

Illinois. — Martin  v.  Dryden,  6  III. 
187;  Rector  v.  Rector,  8  III.  105;  Rust 
V.  Mansfield,  25  III.  336. 

Indiana. — Thomasson  v.  Tucker,  2 
Blackf.  (Ind.)  172;  M'Clure  v.  M'Cor- 
mick,  5  Blackf.  (Ind.)  129. 

Ip%va. — Jones  v.  Jones,  13  Iowa  276; 
Williamson  v.  Haycock,  11  Iowa  40; 
Mobley  v.  Dubuque  Gas  Light,  etc., 
Co.,  II  Iowa  71. 

Kentucky. —  Daniel  v.  Ballard,  2 
Dana  (Ky. )  296;  Moseley  v.  Arm- 
strong, 3  T.  B.  Mon.  (Ky.)287;  Harri- 
son V.  Johnson,  3  Litt.  (Ky.)  286;  Har- 
rison V.    Edwards,  3    Litt.   (Ky.)  340; 


951 


Answers  as      A NS WERS  IN  EQUITY  FLEA D ING.         Evidence. 


Nominal  Defendant. — So  also  the  answer  of  one  nominally  a  defend- 
ant though  substantially  a  complainant,  and  who  has  the  same 


Timberlake  v.  Cobbs,  2  J.  J.  Marsh. 
(Ky.)  136;  Winters  v.  January,  Litt. 
Sel.  Cas.  (Ky.)  13;  Turner  v.  Holman,  5 
T.  B.  Mon.  (Ky.)4ii;  Jones  v.  Bullock, 
3  Bibb  (Ky.)  467;  Hardin  v.  Baird, 
Litt.  Sel.  Cas.  (Ky.)  340;  Fanning 
V.  Pritchett,  6  T.  B.  Mon.  (Ky.) 
79:  Blight  V.  Bank,  6  T.  B.  Mon,(Ky.) 
192,  17  Am.  Dec.  136;  White  v.  Robin- 
son, I  A.  K.  Marsh.  (Ky.)  569;  Hunt 
V.  Stephenson,  i  A.  K.  Marsh.  (Ky.) 
570;  Davis  V.  Harrison,  2  J.  J.  Marsh. 
(Ky.)  189;  Graham  v.  Sublett,  6  J.  J. 
Marsh.  (Kv.)  44;  Bartlett  v.  Marshall, 
2  Bibb  (Ky'.)467. 

Maine. — Rundlet  v.  Jordan,  3  Me. 
47;  Robinson  v.  Sampson,  23  Me.  388; 
Felch  V.  Hooper,  20  Me.  159;  Gilmore 
V.  Patterson,  36  Me.  544. 

Maryland. — Winn  v.  Albert,  2  Md. 
Ch.  169;  Hayward  v.  Carroll,  4  Har. 
&  J.  (Md.)  518;  Stewart  v.  Stone,  3 
Gill  &  J.  (Md.)  510;  "Calwell  v.  Bover, 
8  Gill  &  J.  (Md.)  136;  Jones  z/.  Har- 
wood,  10  Gill  &  J.  (Md.)404;  McKimz/. 
Thompson,  i  Bland  (Md.)  150; 
Briesch  v.  McCauley,  7  Gill  (Md.) 
189;  Lingan  v.  Henderson,  i  Bland 
(Md.)  236;  Glenn  v.  Grover,  3  Md.  212; 
Powled  V.  Dilley,  9  Gill  (Md.)  222; 
Bevans  v.  Sullivan,  4  Gill  (Md.)  383; 
Reese  v.  Reese,  41  Md.  554;  Glenn  v. 
Baker,  i  Md.  Ch.  73. 

Massachusetts. — Mills  v.  Gore,  20 
Pick.  (Mass.)  34;  Chapin  v.  Coleman, 
II  Pick.  (Mass.)  331. 

Mississippi. — Holloway  v.  Moore,  4 
Smed.  &  M.  (Miss.)  594;  Salmon  v. 
Smith,  58  Miss.  399;  Hanover  Nat. 
Bank  v.  Klein,  64  Miss.  141,  60  Am. 
Rep.  47. 

North  Carolina. — Ellis  v.  Amason,  2 
Dev.  Eq.  (N.  Car.)  273. 

New  York. — Webb  v.  Pell,  3  Paige 
(N.  Y.)  368;  DeForest  v.  Parsons,  2 
Hall  (N.  Y.)  130;  Phoenix  v.  Ingra- 
ham,  5  Johns.  (N.  Y.)  412;  Grant  v. 
Bissett,  I  Cai.  Cas.  (N.  Y.)  112;  Grant 
V.  U.  S.  Bank,  i  Cai.  Cas.  (N.  Y.) 
112;  Dykers  v.  Wilder,  3  Edvv.  Ch. 
(N.  Y.)  496;  Beekman  v.  Gibbs,  8 
Paige  (N.  Y.)  511;  Judd  v.  Seaver,  8 
Paige  (N.  Y.)  548. 

New  Jersey. — Vanderveer  v.  Hol- 
comb,  17  N.  J.  E^q.  547;  Hoff  v.  Burd, 
17  N.  J.  Eq.  201.  See  also  McElroy  v. 
Ludlum,  32  N.  J.  Eq.  828. 

Pennsylvania. — Eckman  v.  Eckman, 
55  Pa.  St.  269. 


Tennessee. — Davis  v.  Clayton,  5 
Humph.  (Tenn.)  446;  Wells  v.  Strat- 
ton,  I  Tenn.  Ch.  328;  McDaniel  v. 
Goodall,  2  Coldw.  (Tenn.)  391;  Turner 
V.  Collier  4  Heisk.  (Tenn.)  89. 

Vermont. — Cannon  v.  Norton,  14  Vt. 
17S;  Conner  v.  Chase,  15  Vt.  764; 
Blodgett  V.  Hobart,  18  Vt.  414;  Porter 
V.  Rutland  Bank,  19  Vt.  410. 

Virginia. — Dade  v.  Madison,  5 
Leigh  (Va.)40i;  Hoomes  v.  Smock,  i 
Wash.  (Va.)  389;  Pettit  v.  Jennings,  2 
Rob.  (Va.)  676. 

United  States. — Clark  v.  Reimsdyk, 
9  Cranch  (U.  S.)  153;  Field  v.  Hol- 
land, 6  Crarich  (U.  S.)  8;  Van  Reims- 
dyk V.  Kane,  i  Gall.  (U.  S.)  386;  Dex- 
ter V.  Arnold,  3  Sumn.  (U.  S.)  152; 
Lenoxx'.  Notrebe,  Hempst.  (U.  S.)  251; 
Leeds  v.  Marine  Ins.  Co.,  2  Wheat. 
(U.  S.)  380;  W^est  V.  Randall,  2  Mason 
(U.  S.)  205. 

England. — Green  v.  Pledger,  3  Hare 
165;  Anonymous,  i  P.  Wms.  301;  Jones 
V.  Tuberville,  2  Ves.  Jr.  11;  Morse  v. 
Royal,  12  Ves.  355;  Parker  v.  Morrell, 
12  Jur.  253;  Hoare  v.  Johnstone,  2 
Keen  553;  Wych  v.  Meal,  3  P.  Wms. 
311;  Wrottesley  v.  Bendish,  3  P.  Wms. 
235;  Leigh  V.  Ward,  2  Vent.  72; 
Chervet  v.  Jones,  6  Madd.  166. 

Illustrations  and  Applications  of  Bale. 
— The  answer  of  the  assignor  and 
obligee  of  a  bond  that  it  w^as  founded 
on  a  gaming  consideration  is  not  evi- 
dence against  the  assignee.  Pettit  v. 
Jennings,  2  Rob.  (Va.)  6.76. 

In  a  suit  to  foreclose  a  mortgage  the 
answer  of  a  junior  mortgagee  is  not 
evidence  of  the  existence  of  such 
junior  mortgage  as  against  a  defend- 
ant who  has  suffered  the  bill  to  be 
taken  as  confessed.  Beekman  v. 
Gibbs,  8  Paige  (N.  Y.)  511. 

In  a  suit  by  a  wife  to  compel  the 
appropriation  to  her  benefit  of  bank 
stock  alleged  to  have  been  purchased 
with  funds  in  the  hands  of  her  hus- 
band as  her  trustee,  but  which  had 
always  stood  in  the  name  of  her  hus- 
band, the  husband  was  made  a  defend- 
ant to  the  suit.  Held,  that  his  answer 
that  the  property  was  purchased  with 
the  trust  funds  was  not  evidence 
against  his  codefendants  to  charge 
them  with  notice  of  trust.  Porter  v. 
The  Bank  of  Rutland,  19  Vt.  410. 

A.  and  others  of  the  first  part,  B.  of 
the  second  part,  and  C.  of  the  third 


952 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.        Evidence. 

interest  and  object,  is  not  evidence  against  a  codefendant.  It  is 
not  in  the  power  of  the  plaintiff,  in  such  a  case,  to  avail  himself 
of  the  answer  of  a  party  who  is,  in  reality,  though  not  in  form,  a 
plaintiff.* 

Harmless  Error. — It  seems,  though,  that  the  erroneous  admission 
of  the  answer  of  one  defendant  as  evidence  against  another  is  no 
ground  for  the  reversal  of  a  decree,  where  the  rights  of  the  latter 
could  not  have  been  predjudiced  thereby.* 


part  entered  into  a  partnership  for  the 
purchase  and  sale  of  land.  A.  filed  a 
bill  in  his  own  name  against  B.  and  C. 
for  an  account  and  settlement  of  the 
partnership,  alleging  that  he  had  pur- 
chased the  interest  of  his  associates 
and  making  them  defendants.  B.  and 
C.  denied  all  knowledge  of  the  pur- 
chase, and  required  proof.  Held,  that 
the  answer  of  such  associates  cannot 
be  read  in  evidence  against  B.  and  C. 
to  prove  the  right  of  A.  to  sue  in  his 
own  name.  Moore  v.  Hubbard,  4  Ala. 
187. 

The  answer  of  an  administrator  in 
a  suit  against  him  and  others  is  not 
evidence  of  correctness  of  an  item  in 
his  account  in  a  hearing  before  a  spe- 
cial register  as  against  his  codefend- 
ants  who  are  interested  as  to  such  item 
adversely.  Pearson  z*.  Darrington,  32 
Ala.  227. 

A.  executed  several  notes  for  the  ac- 
commodation of  B.,  who  assigned  them 
to  C.  as  security  for  an  alleged  usuri- 
ous loan.  A.  brought  suit  to  enjoin 
judgment  which  C.  had  obtained  on  the 
notes.  Held,  that  B.  was  not  a  com- 
petent witness  for  A.,  and  that  the  an- 
swer for  B.,  who  was  a  defendant,  was 
not  evidence  against  C,  and  that  they 
could  have  no  decree  against  B.  until 
he  had  paid  the  amount  of  the  judg- 
ments. Moselev  v.  Armstrong,  3  T. 
B.  Mon.  (Ky.)  287. 

Fraudulent  Combination,  Absence  of. 
— The  answer  of  one  defendant,  a  co- 
partner with  complainant  in  the  prin- 
cipal matter  of  litigation,  is  not  evi- 
dence against  a  codefendant  where  it 
is  not  alleged  or  proved  that  defend- 
ants were  fraudulently  combined  so 
as  to  create  a  unity  of  interest  between 
them.  Winters  v.  January.  Litt.  Sel. 
Cas.  (Ky.)  13. 

Answer  of  One  Partner  as  Evidence 
Against  Another. — In  an  action  between 
partners  to  settle  partnership  accounts 
in'er  j^.the  answer  of  one  partner  can- 
not be  used  to  charge  another.  Chapin 

953 


V.  Coleman,  11  Pick.  (Mass.)  331;  Be- 
vans  V.  Sullivan,  4  Gill  (Md.)  383. 

Husband  and  Wife  Codefendants.  — 
Where  husband  and  wife  file  a  joint  an- 
swer, such  answer  cannot  be  read  in 
evidence  against  the  wife  where  the 
subject-matter  relates  to  her  estate  of 
inheritance.  Lewis  v.  Yale,  4  Fla. 
418.  Contra,  Dyett  v.  North  American 
Coal  Co.,  20  Wend.  (N.  Y.)  570,  32  Am. 
Dec.  598. 

Principal  and  Agent  as  Codefendants. — 
Where  principal  and  agent  are  de- 
fendants in  a  bill,  the  admissions  in 
the  answer  of  theagent  cannot  be  taken 
as  evidence  against  the  principal. 
Clark  V.  Van.  Riemsdyk,  9  Cranch.(U. 
S.)  153;  Leeds  v.  Marine  Ins.  Co.,  2 
Wheat.  (U.  S.)  380.  Contra,  Rector 
V.  Rector,  8  111.  105. 

Failure  of  One  Defendant  to  Answer. — 
The  answer  of  one  defendant  is  no 
evidence  against  his  codefendant,  and 
hence  the  failure  of  one  defendant  to 
answer  cannot  be  used  as  evidence 
against  his  codefendant  Timberlake  v. 
Cobbs,  2  J.  J.  Marsh.  (Ky.)  136;  Blight 
V.  Banks,  6  T.  B.  Mon.  (Ky.)  192,  17 
Am.  Dec.  136;  Harrison  v.  Johnson, 
3  Litt.  (Ky.)  286;  Dickinson  v.  Chesa- 
peake, etc.,  R.  Co.,  7  W.  Va.  390;  Hol- 
loway  V.  Moore,  4  Smed.  &  M.  (Miss.) 
594.  See  also  Jordan  v.  Brunough,  11 
Ark.  702. 

1.  Field  V.  Holland,  6  Cranch  (U. 
S.)  8. 

2.  Thus  the  Supreme  Court  on  ap- 
peal will  not  reverse  the  decree  of  the 
lower  court  for  error  in  refusing  to  ex- 
clude from  consideration  the  answer 
of  one  defendant  as  evidence  against 
his  codefendant,  when  the  other 
evidence  in  the  cause  is  sufficient  to 
substantiate  the  decree.  Barraque  v. 
Siter,  9  Ark,  545. 

So  also  it  has  been  held  that  the  an- 
swer of  one  defendant  cannot  be  used 
as  evidence  against  the  others  in  stat- 
ing an  account  before  the  master,  but 
if  the  other  answers, and  proofs  in  the 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 


Qualifications  of  Rule. — The  general  rule  is  subject  to  the  qualifica- 
tion that  the  answer  of  one  defendant  may  be  used  as  evidence 
against  a  codefendant  where  they  are  privies  in  estate,  where  the 
latter  claims  through  the  former,  where  their  interests  are  joint, 
and  where  there  is  a  fraudulent  combination  between  them.*  So 
also  the  rule  is  not  applicable  where  one  defendant  in  his  own 
answer  refers  to  that  of  his  codefendant  for  further  information.* 
And  it  has  been  held  that  in  cases  where  the  rights  of  the  com- 
plainant as  against  one  defendant  are  only  prevented  from  being 
complete  by  some  question  between  the  complainant  and  a  sec- 
ond defendant,  the  complainant  should  be  permitted  to  read  the 
answer  of  such  second  defendant  for  the  purpose  of  completing 
his  claim  against  the  first. ^ 

b.  As  Evidence  for  Codefendant. — It  has  been  laid  down 
as  a  general  rule  in  equity  practice  that  the  answer  of  one  defend- 
ant cannot  be  read  as  evidence  for  his  codefendant.* 


cause  show  a  greater  balance  against 
them  than  the  account  as  stated  on  the 
basis  furnished  by  the  answer,  it  is 
error  without  injury.  Halstead  v. 
Shepard,  23  Ala.  558. 

1.  Alabama. — Julian  v.  Reynolds,  8 
Ala.  680. 

Arkansas. — Dunn  v.  Graham,  17 
Ark.  60;  Barraque  v.  Siter,  9  Ark. 
545;  Whiting  V.  Beebe,  12  Ark.  421; 
Blakeney  v.  Ferguson,  14  Ark.  640. 

Georgia. — Morris  v.  Foote,  2  Ga. 
Dec.  119;  Adkins  v.  Paul,  32  Ga.  219; 
Allen  V.  Holden,  32  Ga.  418;  Hickson 
V.  Bryan,  75  Ga.  392. 

Illinois. — Rector  v.  Rector,  8  111. 
105;  Rust  V.  Mansfield,  25  111.  336; 
Pensonneau  v.  Pulliam,  47  111.  58. 

Indiana. — Townsend  v.  Mcintosh, 
14  Ind.  57. 

Iowa. — Williamson  v.  Haycock,  11 
Iowa  40;  Morbley  v.  Dubuque  Gas 
Light,  etc.,  Co.,  11  Iowa  71. 

Kentucky. — Winters  v.  January,  Litt. 
Sel.  Cas.  (Ky.)  13. 

Maine. — Gilmore  v.  Patterson,  36 
Me.  544. 

Maryland. — Lingan  v.  Henderson,  i 
Bland  (Md.)  267;  Powles  v.  Dilley,  9 
Gill  (Md.)  222;  Williams  v.  Hodgson, 
2  Har.  &  J.  (Md.)  477,  3  Am.  Dec.  563. 

Massachusetts. — Chapin  v.  Coleman, 
II  Pick.  (Mass.)  331. 

Mississippi. — Fitch  v.  Stamps,  6 
How.  (Miss.)  487. 

New  York. — Judd  v.  Seaver,  8  Paige 
(N.  Y.)  548;  Dunham  v.  Gates,  3 
Barb.  Ch.  (N.  Y.)  196;  Christie  v. 
Bishop,  I  Barb.  Ch.  (N.  Y.)  105. 

North  Carolina. — Griffin  v.  Pleas- 
ant, I  Ired.  Eq.  (N.  Car.)  152. 


Pennsylvania. — Eckman  v.  Eckman, 
55  Pa.  St.  269. 

United  States. — Field  v.  Holland,  6 
Cranch  (U.  S.)  8;  Osborn  v.  U.  S. 
Bank,  9  Wheat.  (U.  S.)  738;  Clark  z/. 
Van  Riemsdyk,  9  Cranch  (U.  S.)  156. 

Illustration. — The  admissions  of  one 
copartner  with  reference  to  the  legiti- 
mate business  of  other  copartners  are 
deemed  to  be  the  admissions  of  each 
and  all  of  its  members,  even  when 
found  in  an  answer  to  the  bill  under 
consideration  by  the  court.  Gilmore 
V.  Patterson,  36  Me.  544, 

Contra. — The  answer  of  one  defend- 
ant in  chancery  is  not  evidence 
against  a  codefendant,  claiming  title 
under  the  former,  because  the  party 
against  whom  the  answer  is  proposed 
to  be  read  would  be  deprived  of  the 
benefit  of  a  cross-examination.  Winn 
V.  Albert,  2  Md.  Ch.  169;  Harwood  v. 
Jones,  10  Gill  &  J.  (Md.)  404. 

Where  two  defendants  who  are 
neither  partners  nor  privies  are 
charged  to  be  jointly  combined  in  the 
perpetration  of  a  fraud,  the  answer  of 
one  cannot  be  read  as  evidence 
against  the  other.  May  v.  Barnard, 
20  Ala.  200. 

2.  Chase  v.  Manhardt,  i  Bland  (Md.) 
333;  Anonymous,  i  P.  Wms.  391; 
Blakeney  v.  Ferguson,  14  Ark.  640. 

3.  Whiting  v.  Beebe,  12  Ark.  421. 

4.  Chambliss  v.  Smith,  30  Ala.  366; 
May  V.  Barnard,  20  Ala.  200;  Julian 
V.  Reynolds,  8  Ala.  680;  Moore  v. 
Hubbard,  4  Ala.  187;  Taylor  v.  Rob- 
erts, 3  Ala.  83;  Singleton  v.  Gayle,  8 
Port.  (Ala.)  270;  Collier  v.  Chapman, 
2  Stew.  (Ala.)  163;  Gilmore  v.  Patter- 


954 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 

Qualification  of  Eule. — But  this  rule  is  subject  to  the  qualification 
that  the  answer,  when  responsive  to  the  bill,  is  admissible  in  favor 
of  a  codefendant.* 

11,  Answer  of  Infants. — The  answer  of  an  infant  defendant  by 
his  guardian  is  not  evidence  against  him;  material  allegations  in 
the  bill  must  be  proved  by  other  means.*     It  may,  however,  be 


son,  36  Me.  544;  Blodgett  v.  Hobart, 
18  Vt.  414;  Cannon  v.  Norton,  14  Vt. 
178;  Lenox  v.  Notrebe,  Hempst.  (U. 
S.)  251;  Carithers  v.  Jarrell,  20  Ga. 
843;  Davis  V.  Clayton,  5  Humph. 
(Tenn.)  446;  Salmon  v.  Smith,  58 
Miss.  399. 

Separate  Answer  of  Defendant  as  to 
Whom  Bill  has  been  Dismissed  is  not 
evidence  for  a  codefendant.  Larkin's 
Appeal,  38  Pa.  St.,  457. 

Answer  Referring  to  Answer  of  Code- 
fendant Not  Filed. — The  answer  of  a  de- 
fendant that  he  has  seen  the  answer 
of  another  defendant  in  the  cause, 
and  that  the  same  is  true,  cannot 
avail  to  make  such  answer  evidence 
for  himself  when  the  answer  referred 
to  was  not  then  filed  and  there  is 
nothing  to  identify  it  with  that  after- 
ward filed  by  such  codefendant.  Carr 
V.  Weld,  ig  N.  J.  Eq.  319. 

1.  Mills  V.  Gore,  20  Pick.  (Mass.)  28; 
Morris  v.  Nixon,  i  How.  (U.  S.)  119; 
Miles  V.  Miles,  32  N.  H.  147,  64  Am. 
Dec.  362;  Powles  v.  Dilley,  9  Gill 
(Md.)  222;  Pleasanton  v.  Raughley,  3 
Del.  Ch.  124. 

Illustrations. — Though  the  answer  of 
one  defendant  be  not  evidence  against 
a  codefendant,  yet,  where  it  is  respon- 
sive to  the  bill,  it  may  be  evidence  in 
his  favor,  and  more  especially  so 
where  such  codefendant,  being  a  mere 
depositary  of  a  chattel  claimed  by 
both  parties,  defends  himself  under 
the  title  of  the  other  defendant.  Mills 
V.  Gore,  20  Pick.  (Mass.)  28. 

A  bill  charged  fraud  and  collusion 
between  the  vendor  and  vendee  in  the 
sale  of  property,  made  them  both  de- 
fendants, and  sought  discovery  and 
relief  against  them.  Held,  that  the 
answer  of  the  vendor  was  as  against 
the  complainant  evidence  for  the  ven- 
dee so  far  as  it  was  responsive  to  the 
allegations  in  the  bill.  Ligon  v.  Rog- 
ers, 12  Ga.  281. 

Though  it  is  in  general  true  that  the 
answer  of  one  defendant  is  not  evi- 
dence for  another,  yet  the  answer  of 
one  defendant  may  contain  an  admis- 
sion that  will  be  evidence  for  another. 


as  an  admission  that  another  defend- 
ant has  paid  the  answering  defendant 
a  debt  due  from  that  other  defendant 
and  the  plaintiff.  Carithers  v.  Jar- 
rell, 20  Ga.  842. 

Answer  as  Evidence  for  Codefendant 
Failing  to  Answer. — If  a  joint  defend- 
ant answers  a  bill  and  removes  the 
equity  set  up  against  himself  and  the 
other  defendant  who  does  not  answer, 
no  decree  can  be  rendered  against  the 
defendant  failing  to  answer.  McDan- 
iel  V.  Goodall,  2  Coldw.  (Tenn.)  391. 

Answer  Not  Excluded  Because  Evidence 
for  Codefendant. — Where  a  complainant 
calls  upon  defendant  to  answer  he 
makes  the  latter  a  witness,  and  his 
answer  cannot  be  excluded  because  it 
may  operate  in  favor  or  a  codefend- 
ant. Powles  V.  Dilley,  9  Gill  (Md.) 
222. 

Answer  of  Trustee  as  Evidence  for  Ces- 
tui Que  Trust. — A  bill  was  filed  against 
a  feme  covert  (the  owner  of  a  separate 
estate),  her  husband,  and  the  trustee, 
to  subject  her  separate  estate  to  the 
satisfaction  of  a  note  executed  in 
common  form  by  the  feme  covert  and 
her  husband  for  the  payment  of 
money.  The  trustee  answered  the 
bill  and  denied  the  equity  thereof. 
The  husband  and  wife  did  not  an- 
swer, and  there  was  an  order  that  the 
bill  be  taken  pro  confesso  as  to  them. 
Held,  that  the  answer  of  the  trustee 
removed  the  equity  as  to  the  wife. 
Cherry  v.  Clements,  10  Humph. 
(Tenn'.)  552. 

2.  Harris  v.  Harris,  6  Gill  &  J. 
(Md.)iii;  Kent  z/.  Taneyhill,  6  Gill  & 
J.  (Md.)  i;  Stewarts.  Duvall,  7  Gill  & 
J.  (Md.)  179;  Benson  v.  Wright,  4  Md. 
Ch.  278;  Stephenson  v.  Stephenson,  6 
Paige  (N.  Y.)  353;  Alexandria  Bank  v. 
Patton,  I  Rob.  (Va.)  528;  Cochran  v. 
McDowell,  15  111.  10;  Stinson  v. 
Pickering,  71  Me.  167. 

Answer  Mere  Pleading. — The  answer 
of  an  infant  by  his  guardian  is  a  plead- 
ing merely,  and  not  evidence.  Bulk- 
ley  V.  Van  Wyck,  5   Paige  (N.  Y.)  536. 

Bill  Must  be  Proved. — "  The  answer 
of  a  guardian  ad  litem,  admitting  the 


955 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 


evidence  in    his  favor.*     Nor  has  the  answer  of   an   adult  co- 
defendant  any  effect  against  an  infant.* 

12.  Answer  of  Corporation  Aggregate. — The  answer  of  a  corpora- 
tion aggregate  under  its  corporate  seal  has  the  same  force  and 
effect  as  evidence,  as  the  answer  of  an  individual  not  under  oath 
would  have  in  a  like  case  and  no  other  or  greater.  The  effect  of 
such  answer  is  to  create  an  issue  which,  before  decree  can  be  pro- 
nounced for  complainant,  must  be  decided  on  testimony  of  at 
least  one  witness  or  corroborating  circumstances  in  support  of  the 
bill.3 


truth  of  the  charges  in  the  bill,  cannot 
affect  the  infant's  rights,  but  with  re- 
spect to  him  all  the  allegations  must 
be  proved  with  the  same  strictness  as 
if  the  answer  had  interposed  a  direct 
and  positive  denial  of  their  truth;  nor 
can  a  default  or  a  decree  pro  confesso 
be  entered  against  an  infant.  Breese, 
J,,  in  Chaffin  v.  Kimball,  23  111.  33, 
citing  McClay  v.  Norris,  9  111.  370; 
Cochran  v.  McDowell,  15  111.  10; 
Greenough  v.  Taylor,  17  111.  602;  Tut- 
tle  V.  Garrett,  16  111.  354;  Hitt  v. 
Ormsbee,  12  111.  166;  Masterson  v. 
Wiswould,  18  111.  48;  Reavisz/.  Fielden, 
18  III.  77. 

Answer  of  Executor. — Where  infant 
children,  by  their  father,  file  their  bill, 
alleging  his  inability  to  support  them, 
and  praying  income  from  their  estates 
for  that  purpose,  the  fact  of  their 
father's  ability  will  be  inquired  into 
and  determined  by  the  court;  admis- 
sions by  the  answer  of  the  executor  are 
not  sufficient.  Tompkins  v.  Tompkins, 
18  N.  J.  Eq.  303. 

No  Decree  on  Admissions. — No  decree 
can  be  made  against  infants  on  ad- 
missions in  the  answer  of  their  guard- 
ian ad  litem.  Wright  v.  Miller,  i 
Sandf.  Ch.  (N.  Y.)  103;  James  v. 
James,  4  Paige  (N.  Y.)  115. 

Answer  of  Complainant  to  Cross-Bill. — 
The  answer  of  a  complainant  to  the 
cross-bill  of  adult  defendants  is  not 
evidence  against  infant's  defendants 
who  appear  by  guardian  ad  litem. 
Campbell  v.  Campbell,  i  Ind.  220. 

West  Virginia  —  Taking  Answer  as 
True. — Sec.  36,  ch.  125  of  the  Code,  so 
far  as  it  relates  to  taking  material  al- 
legations of  a  bill,  or  material  allega- 
tions of  new  matter  in  an  answer  con- 
stituting a  claim  for  affirmative  relief, 
as  true,  should  not  be  applied  strictly, 
if  at  all,  to  the  answers  of  infant  de- 
fendants by  guardian  ad  litem.  Laidley 
V.  Kline,  8  W.  Va.  219. 


1.  Carnall  v.  Wilson,  14  Ark.  482. 
Proof  Necessary — Decree. — The  answer 

of  infant  defendants,  calling  upon  the 
complainants  to  prove  the  bill,  only 
puts  them  to  the  proof  of  what  is 
charged,  and  entitles  them  only  to  a 
decree  on  the  case  made  in  the  bill, 
when  proved.  Robinson  v.  Towns- 
hend,  3  Gill  &.  J.  (Md.)4i3. 

2.  Watson  v.  Godwin,  4  Md.  Ch.  25. 

3.  Maryland,  etc..  Coal,  etc.,  Co.  v. 
Wingert,  8  Gill  (Md.)  170;  Bouldin  v. 
Mayor,  15  Md.  18;  Farmers',  etc.. 
Bank  v.  Nelson,  12  Md.  49;  Whalen 
V,  Delashmutt,  59  Md.  250;  Haight  v. 
Proprietors  Morris'  Aqueduct,  4 
Wash.  (U.  S.)  601;  Union  Bank  v. 
Geary,  5  Pet.  (U.  S.)  112;  Baltimore, 
etc.,  R.  Co.  V.  Wheeling,  13  Gratt. 
(Va.)  40;  State  Bank  v.  Ellis,  30  Ala. 
478;  Van  Wyck  v.  Norvell,  2  Humph. 
(Tenn.)  192;  McLard  v.  Linnville,  10 
Humph.  (Tenn.)  163;  Lindsley  v. 
James,  3  Coldw.  (Tenn.)  487;  Wood- 
fork  V.  Union  Bank.  3  Coldw.  (Tenn.) 
497;  Smith  V.  St.  Louis  Mut.  L.  Ins. 
Co.,  2  Tenn.  Ch.  600;  Lovett  v.  Steam 
Saw  Mill  Assoc,  6  Paige  (N.  Y.)  58; 
Fulton  Bank  v.  New  York,  etc..  Canal 
Co.,  I  Paige  (N.  Y.)  311. 

The  answer  of  a  corporation  with- 
out oath  where  complainant  does  not 
require  it  to  be  sworn  to  or  supported 
by  the  sworn  answers  of  the  officers 
of  the  corporation  cannot  be  said  to 
answer  the  double  purpose  of  a  plead- 
ing to  put  the  material  matters  of  the 
bill  in  issue,  and  of  an  examination  of 
the  defendant  for  the  purpose  of  ob- 
taining his  evidence  in  support  of  the 
complainant's  allegations;  and  it  is 
for  the  latter  purpose  alone  that  the 
complainant  makes  a  witness  of  his  ad- 
versary in  the  cause.  Such  answer  is 
a  mere  pleading  to  put  in  issue  the 
matter  of  the  bill.  Lovett  v.  Steam 
Saw  Mill  Assoc,  6  Paige  (N.  Y.)  59. 

Contra. — The  answer  of  a  corporation 


956 


Answers  as       ANS  WERS  IN  EQUITY  PLEADING.  Evidence. 

13.  Answer  of  Party  Interested  or  Incompetent. — An  answer  is  not 
to  be  discredited,  or  any  presumption  indulged  against  it,  on  ac- 
count of  its  being  the  answer  of  a  party  interested.'  Nor  because 
the  defendant  is  incompetent  as  a  witness  in  ordinary  cases.* 

14.  Answers  in  Injunction  Proceedings.— On  the  hearing  of  a  mo- 
tion to  dissolve  an  injunction,  the  allegations  of  the  answer,  so 
far  as  the  same  are  responsive  to  the  allegations  of  the  bill,  must 
be  taken  as  true,  and  if  they  deny  the  averments  of  the  bill  upon 
which  the  equity  of  the  injunction  rests,  the  latter  must  be  dis- 
solved.^ 


if  responsivethoughmadeby  acorpora- 
tion  aggregate  under  the  seal  without 
oath,  is  competent  evidence  and  can- 
not be  overturned  by  the  testimony  of 
one  witness  alone.   Salmon  z>.  Clagett, 

3  Bland  (Md.)  165.  See  also  Carpenter 
V.  Providence  Washington  Ins.  Co.,  4 
How.  (U.  S.)2i8. 

Answer  Sworn  to  by  Officer. — The  fact 
that  such  answer  is  sworn  to  by  the 
cashier  who  is  no  party  to  the  pro- 
ceeding cannot  alter  the  rule.  Van 
Wyck  V.  Norvell,  2  Humph.  (Tenn.) 
192. 

1.  Clason  V.  Morris,  10  Johns.  (N. 
Y.)  524;  Petrie  v.  Wright,  6  Smed.  & 
M.  (Miss.)  647. 

2.  The  effect  of  an  answer  responsive 
to  a  bill  does  not  depend  upon  re- 
spondent's competency  as  a  witness. 
Saffold  V.  Home  (Miss.,  1894),  15  So. 
Rep.  639.  See  also  Hartley  v.  Mat- 
thews, 96  Ala.  224;  Dexter  v.  Oh- 
lander,  95  Ala.  467;  Patterson  v. 
Scott,  142  111.  138;  Harding  v.  Haw- 
kins, 141   111.  572. 

"  It  is  no  objection  to  the  validity 
and  efficacy  of  an  answer,  that  the  de- 
fendant is  infamous  or  a  negro,  and, 
as  such,  an  incompetent  witness  in 
ordinary  cases;  his  answer  must,  not- 
withstanding, have  full  credit  allowed 
to  it,  since  the  plaintiff,  by  calling 
him  into  court,  has  given  him  a  com- 
petency to  this  extent  for  the  purpose 
of  defending  himself  and  protecting 
his  property."  Bland,  C,  in  Salmon 
V.  Clagett,  3  Bland  (Md.)  165,  citing 
Davis's  Case,  2  Salk.  461,  5  Mod.  74; 
Omichund  v.  Barker,  i  Atk.  50;  Bow- 
yer  v.  McEvoy,  i  B.  &  B.  562. 

3.  Colvin  V.  Warford,  17  Md.  433; 
Webster  v.  Hardisty,  28  Md.  593; 
Dougherty  v.  Piet,  52  Md.  425;  Wood 
V.  Patterson,  4  Md.  Ch.  335;  Harris  v. 
Sangston,  4  Md.  Ch.  394;  Huston  v. 
Huston,  20  Md.  306;  Cronise  v.  Clark, 

4  Md.  Ch.  403;  Alexander  v.  Ghiselin, 


5  Gill  (Md.)  138;  Briesch  v.  McCauley, 
7  Gill  (Md.)  189:  Chase  v.  Manhardt,  I 
Bland  (Md.)  333;  Salmon  v.  Clagett, 
3  Bland  (Md.)  125,  distinguished  in  Belt 
V.  Blackburn,  28  Md.  241;  Voshell  z/. 
Hynson,  26  Md.  83;  Att'y-Gen'l  v. 
Oakland  County  Bank.  Walk.  (Mich.) 
90;  West  V.  Rouse,  14  Ga.  715;  Moore 
V.  Ferrell.  i  Ga.  7;  U.  S.  v.  Parrott,  I 
McAll.  (U.  S.)  271;  Dillingham  v. 
Roberts,  77  Me.  284;  Harris  v.  Reece, 
ID  111.  212;  Fowler  v.  Roe,  3  Stock. 
(N.  J.)  367;  Jones  v.  McKenzie,  6 
Jones  Eq.  (N.  Car.)  203;  Rembert  v. 
Brown,  17  Ala.  667. 

No  Case  for  Injunction. — An  easement 
in  water  was  granted  for  the  use  of 
machinery  then  in  use;  a  bill  to  en- 
join the  use  of  the  easement  alleged  a 
change  in  machinery,  which  the  an- 
swer, to  which  oath  was'  waived, 
denied;  no  proofs  were  heard.  Held, 
that  the  answer  met  the  bill,  and  was 
of  equal  weight,  and,  therefore,  in  the 
absence  of  evidence,  no  case  for  an 
injunction  was  made.  Mandeville  v. 
Comstock,  9  Mich.  536. 

Injunction  in  Limine. — Where  a  bill 
brought  to  cancel  a  mortgage  alleged 
payment  of  the  same,  the  burden  of 
proof  is  on  complainants  and  if  it  be 
denied  in  a  sworn  answer  made  on 
knowledge,  the  allegation  of  payment 
will  not  sustain  an  injunction  in  limine 
restraining  legal  proceedings  by  a  pur- 
chaser under  the  mortgage.  Hartley 
V.  Matthews,  95  Ala.  224. 

Answer  of  Corporate  Body. — The  an- 
swer in  chancery  of  a  corporate  body, 
under  its  common  seal,  denying  the 
equity  of  the  bill,  is  sufficient  to  war- 
rant the  denial  of  an  injunction,  or  to 
dissolve  it  if  granted.  Haight  v. 
Morris  Aqueduct,  4  Wash.  (U.  S.)  601. 

The  answer  of  a  corporation,  under 
its  seal,  is  something  more  than  plead- 
ing, and  where  it  negatives  the  bill, 
warrants  the  dissolution  of  an  injunc- 


957 


Answers  as      ANS  WERS  IN  EQUITY  PLEA  DING.         Evidence. 

When  Dissolved. — As  a  general  rule,  if  the  answer  to  a  bill  of  in- 
junction fully,  fairly,  plainly,  distinctly,  and  positively  denies  the 
material  allegations  in  the  bill,  and  no  proof  is  taken  to  sustain 
the  bill,  the  court  ought,  on  the  coming  in  of  the  answer,  to  dis- 
solve the  injunction.* 

Answer  Not  Eesponsive. — If  the  answer  is  not  responsive  to  the  bill 
and  sets  up  new  matter  in  avoidance,  the  injunction  will  not  be 
dissolved.* 

Allegations  Unanswered. — Neither  will  the  injunction  be  dissolved 


t  on.  (Collier,  C.J.,  dissenting,  was  in- 
clined to  think  that  an  attestation 
under  the  common  seal  was  essential 
to  the  authenticity  of  the  answer, 
where  a  discovery  was  not  specially 
sought  from  the  officers,  agents,  etc., 
of  the  corporation;  but  when  an  an- 
swer is  thus  authenticated,  the  presi- 
dent, etc.,  may  verify  it  by  his  own 
oath,  and  then,  if  responsive,  it  will 
be  entitled  to  the  force  of  evidence. 
Hogan  V.  Bank,  lo  Ala.  485. 

When  a  Charge  is  Not  Fully  Answered, 
yet  if  the  complainant  do  not  show  him- 
self entitled  to  claim  the  equity  grow- 
ing out  of  that  transaction,  it  will  not 
stand  in  the  way  of  dissolving  an  in- 
junction. Quackenbush  v.  Van  Riper, 
I  N.  J.  Eq.  476. 

Answer  Not  Positive. — An  answer 
which  does  not  deny  the  averments  in 
which  the  equity  .of  the  bill  consists, 
but  states  "  that  respondent  does  not 
believe,  and  cannot  admit  that  the  said 
attorney  made  any  such  arrangements 
or  contract  set  forth  in  the  bill,"  is  not 
sufficient  to  dissolve  an  injunction. 
Kent  V.  Richards,  3  Md.  Ch.  392. 

Answer  on  Information  and  Belief  is 
likewise  insufficient  to  dissolve  injunc- 
tion. Irick  V.  Black,  17  N.  J.  Eq. 
189. 

Evasive  Answer. — An  answer  in  which 
the  denial  is  made  in  such  form  as  to 
leave  it  in  doubt  whether  the  denial 
is  of  the  fact  alleged,  or  only  of  the 
facts  in  the  form  and  manner  and  at 
the  time  alleged  in  the  bill,  is  evasive, 
and  will  not  avail  to  dissolve  an  in- 
junction. McMahon  v.  O'Donnell,  20 
N.  J.  Eq.  306. 

Answer  Founded  on  Hearsay. — An  in- 
junction can  only  be  dissolved  by  pos- 
itive contradictory  averments  in  the 
answer,  and  an  answer  founded  upon 
hearsay  is  not  sufficient  to  remove  the 
complainant's  equity,  though  resting 
upon  information  derived  from  others, 
it  denies  the  facts  out  of  which  that 


equity  arose.  Doub  v.  Barnes,  i  Md. 
Ch.  127. 

Answer  to  Be  Kead. — On  a  motion  for 
an  injunction  made  or  submitted  after 
filing  of  answer,  the  answer  is  to  be 
read;  and  where  the  answer  swears 
away  the  equity  of  the  bill,  the  injunc- 
tion should  be  refused:  If  granted, 
should  be  dissolved.  Lynn  v.  Mount 
Savage  Iron  Co.,  34  Md.  603;  Bell  v. 
Purvis,  15  Md.  22;  Hallz/.  McPherson, 
3  Bland  (Md.)  539. 

Usury. — A  bill  was  filed  praying  an 
injunction  on  the  ground  of  usury. 
The  allegations  of  usury  were  denied 
in  the  answer,  and  no  proof  was  of- 
fered, though  the  answer  raised  suspi- 
cions. Held,  that  such  bill  must  be 
dismissed.  Sneed  v.  Smith,  i  Patt.  & 
H.  (Va.)46. 

Answer  Not  Under  Oath. — An  injunc- 
tion should  not  be  dissolved,  and  a 
bill  dismissed,  upon  the  filing  of  an 
answer,  not  under  oath;  or  without 
evidence  of  the  truth  of  the  facts 
alleged  in  the  answer.  Gray  v. 
M'Cance,  11  111.  325. 

1.  Shonk  V.  Knight,  12  W.  Va.  667; 
Moore  v.  Farrell,  i  Ga.  7;  Parkinson 
r. Trousdale,  4  111. 367;  Cox  z'.Douglass, 
20  W.  Va.  175. 

When  Eule  should  be  Followed — Excep- 
tion.— There  are  some  exceptions  to 
this  general  rule,  but  it  ought  to  be 
followed  when  great  injury  would  re- 
sult to  the  defendant  if  the  injunction 
was  continued  till  the  hearing,  and  no 
serious  loss  would  be  sustained  by  the 
plaintiff  if  it  were  dissolved,  even  if 
the  cause  was  or  should  be  decided  in 
his  favor  on  the  hearing.  Shonk  v. 
Knight,  12  W.  Va.  667. 

2.  Att'y  Gen'l  v.  Oakland  County 
Bank,  Walk.  (Mich.)  90;  Ferriday  v. 
Selcer,  Freem.  Ch.  (Miss.)  258;  Moore 
V.  Ferrell,  i  Ga.  7;  W^ooten  v.  Smith, 
27  Ga.  216;  State  v.  Northern  Cent. 
R.  Co.,  18  Md.  193;  Hutchins  v.  Hope 
7  Gill  (Md.)  123. 


958 


Answers  as      ANSWERS  IN  EQUITY  PLEADING.         Evidence. 


where  any  material  allegation  constituting  the  equity  of  the  bill 
remains  unanswered.* 

15.  Answers  as  Evidence  in  other  Causes—^.  Suits  in  Equity — 
As  Evidence  Against  Defendant. — An  answer  in  equity  is  admissible 
evidence  against  defendant,  in  a  subsequent  suit  in  equity  to 
which  he  is  a  party,  even  though  the  parties  to  the  two  suits  are 
not  the  same.* 

Answer  Not  an  Estoppel. — But  the  answer  of  defendant  in  one  cause 
can  only  be  used  and  regarded  as  evidence,  and  not  as  an  estoppel 
in  a  subsequent  cause.^ 

As  Evidence  For  Defendant.— So  also  it  seems  that  such  answer  is  evi- 
dence for  defendant  in  a  subsequent  suit  in  equity,  and  if  com- 
plainant, after  sworn  answers  are  filed,  dismisses  his  bill  and  files 
another  setting  up  substantially  the  same  grounds  for  relief  but 
waiving  answer  under  oath,  such  answers  filed  in  the  prior  suit  will 
remain  evidence,  and  complainant  can  have  no  decree  under  the 
second  bill  until  such  sworn  answers  are  overcome  by  a  pre- 
ponderance of  other  proof.* 


1.  Wooten  V.  Smith,  27  Ga.  216; 
State  z*.  Northern  Cent.  R.  Co.,  18  Md. 
193;  Salmon  v.  Clagett,  3  Bland  (Md.) 
125,  distinguished  \n  Belt  v.  Blackburn, 
28  Md.  241. 

Injunction  Continued  till  Final  Hearing. 
— When  motion  to  dissolve  is  heard  on 
bill  and  answer,  so  much  of  the  bill  as 
is  not  denied  by  answer  is  taken  for 
true,  and  if  any  one  of  its  material 
allegations  remains  unanswered,  in- 
junction will  be  continued  till  the  final 
hearing;  because  in  such  a  case,  the 
equity  upon  which  injunction  issued 
is  not  sworn  away.  Brown  v.  Stewart, 
I  Md.  Ch.  87.  See  also  Jones  v.  Ed- 
wards  4  Jones  Eq.  (N.  Car.)  257. 

2.  Royall  v.  McKenzie,  25  Ala.  363; 
Mims  V.  Mims,  3  J.  J.  Marsh  (Ky.)  no. 

Answer  of  Defendant  as  Evidence  for 
his  Bepresentatives. — The  answer  of  de- 
fendant to  a  bill  in  equity  is  not  legal 
evidence  for  his  representatives  in  a 
new  suit  against  them  relative  to  the 
same" cause  of  action.  Drury  i'.  Con- 
ner, 6  Har.  &  J.  (Md.)  2SS. 

Answer  a  Part  of  Deposition. — Where  a 
witness,  in  his  deposition,  referred  to 
an  answer  in  chancery  made  by  him 
in  another  case,  and  made  a  certified 
copy  of  the  answer  a  part  of  his  depo- 
sition—  held,  that  the  certified  copy 
would  not  be  read  as  a  part  of  his  de- 
position. Hamilton  Supreme  Court, 
1844;     Knox  V.  Strader,  2  W.  L.  J.  69. 

Answer  to  Bill  of  Review  as  Evidence  in 
Original  Suit. — Where  a  bill  of  review 
has  been  dismissed,  on  the  ground 
that  it  ought  not  to  have  been  allowed. 


the  decree  not  being  final,  the  com- 
plainant in  that  bill  (being  defendant 
to  the  original  suit)  is  not  authorized, 
in  his  subsequent  defense,  to  make 
use  of  the  answer  to  the  bill  of  review. 
Ellzey  V.  Lane,  4  Munf.  (Va.)  66. 

Answer  Made  but  Not  Filed  as  Evidence 
in  Another  Suit. — A.  having  filed  a  bill 
to  compel  B.  to  convey  lands  alleged 
to  have  been  purchased  by  him  in 
trust,  B.  prepared  his  answer,  made 
oath  to  it,  and  was  about  to  file  it, 
when  the  bill  was  dismissed.  After 
B.'s  death  another  bill  was  filed,  for 
the  same  purpose  by  the  same  parties, 
against  the  heirs  and  representatives 
of  B.  Held,  that  since  it  appeared 
that  many  of  the  transactions  must 
have  been  known  exclusively  to  B. 
and  unknown  to  his  heirs,  they  should 
be  permitted  to  make  the  answer  thus 
prepared  by  him  a  part  of  their  answer 
and  evidence  in  their  favor.  Culbert- 
son  V.  Matson,  11  Mo.  493.  See  also 
Matson  v.  Melchor,  42  Mich.  477. 

Answer  to  Cross-bill  which  has  been 
Dismissed  cannot  be  read  in  evidence 
in  complainant's  favor.  Saffold  v. 
Home  (Miss.,  1894),  15  So.  Rep.  639. 

When  Complainant  may  Read  Answer 
to  Cross-bill. — A  complainant  cannot 
read  in  evidence  his  own  answer  to  a 
bill  of  discovery  in  a  cross-suit,  unless 
the  defendant  first  produce  it.  Phillips 
V.  Thompson,  i  Johns.  Ch.  (N.  Y.)  131; 
Montgomery  Branch  Bank  v.  Parker, 
5  Ala.  731. 

3.  Young  V.  Mackall,  4  Md.  362. 

4.  Mey  v.  Gulliman,  105  111.  272. 


959 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 

b.  Actions  at  Law — As  Evidence  Against  Defendant. — An  answer 
is  also  admissible  against  defendant  in  an  action  at  law  sub- 
sequently instituted,*  though  the  parties  to  the  two  causes  are  not 
the  same.* 


1.  Clarke  v.  Robinson,  5  B.  Mon. 
(Ky.)  55;  Rees  z/.  Lawless,  4  Litt(Ky.) 
219;  Roberts  v.  Tennell,  3  T.  B. 
Mon.  (Ky.)  249;  Mims  v.  Mims,  3  J.  J. 
Marsh.  (Ky.)  no;  McNutt  v.  Dare,  8 
Blackf.  (Ind.)  35;  Randall  v.  Parra- 
more,  i  Fla.  458;  Saltmarsh  v.  Bower, 
23  Ala.  230;  Crocker  v.  Clements,  23 
Ala.  296;  Cox  V.  Cox,  2  Port.  (Ala.) 
533;  Gordon  v.  Green,  10  Ga.  534; 
Fant  V.  Miller,  17  Gratt.  (Va.)  187; 
Daniel  v.  Johnson,  29  Ga.  207;  Sower- 
wein  V.  Jones,  7  Gill  &  J.  (Md.)  541; 
Kiddie  v.  Debrutz,  i  Hayw.  (N.  Car.) 
420. 

Illustrations. — Where  a  defendant  in 
an  action  of  assumpsit  against  him, 
in  Virginia,  filed  a  bill  of  discovery 
against  the  plaintiff,  who  answered, 
and  the  defendant  read  the  bill  and 
answer  to  the  jury,  held,  that  the 
contents  of  the  answer  might  be  con- 
sidered by  the  jury,  so  far  as  they 
credited  them,  as  evidence  of  the 
plaintiff's  right  to  recover.  Sower- 
wein  V.  Jones,  7  Gill  &  J.  (Md.)  335. 

In  replevin  for  a  horse  distrained 
for  rent,  an  answer  by  defendant  in  a 
suit  in  chancery  between  the  same 
parties  is  competent  evidence  against 
him,  and  much  more  ought  it  to  be  so 
wl)ere  it  is  made  in  a  solemn  proced- 
ure in  a  court  of  justice  under  the 
sanction  of  an  oath.  Roberts  v.  Ten- 
nell, 3  T.  B.  Mon.  (Ky.)  249. 

The  answer  to  a  bill  in  chancery, 
filed  by  the  party  making  a  remainder 
by  parol  in  trust,  against  the  trustee, 
which  clearly  admits  the  nature  and 
objects  of  the  trust,  was  held  to  be  ad- 
missible, to  sustain  the  remainder  in 
an  action  of  assumpsit  by  the  cestui 
que  trust,  against  the  trustee,  for  the 
trust  fund.     Gordon  v.  Green,  10  Ga. 

534. 

An  answer  in  chancery  by  a  de- 
fendant in  ejectment,  in  a  chancery 
case  on  the  same  subject,  is  admissible 
as  proof  of  his  declarations.  Earl  v. 
Shoulder,  6  Ohio  409;  Bermon  v. 
Woodbridge,  2  Doug.  788. 

The  distinction  between  an  answer  as 
evidence  in  the  cause  in  equity  in 
which  it  is  made  and  when  offered  as  ev- 
idence in  a  common-law  action,  is  that 
in  the  first  it  is  evidence  only  so  far  as 

960 


it  is  responsive,  but  in  the  latter  the 
whole  of  it  is  evidence  ;  and  it  is  for 
the  jury  to  give  each  portion  what- 
ever weight  it  may  deserve.  Salt- 
marsh  V.  Bower,  22  Ala.  230. 

Contra. — In  Georgia  it  has  been  held 
that  a  defendant  cannot  use  his  an- 
swer for  himself  in  another  cause 
further  than  he  could  in  the  original 
cause,  and  not  in  either  unless  it  ap- 
pears to  be  responsive  to  the  bill. 
Daniel  v.  Johnson,  29  Ga.  207. 

Answer  as  Evidence  Against  Complain- 
ant.— In  ejectment  by  L.  against  R.,  an 
answer  in  a  chancery  suit  brought  by 
L.  against  C.  to  obtain  a  conveyance 
of  the  land  in  suit,  to  which  land  L. 
obtained  title  by  purchase  after  answer 
in  the  chancery  suit  was  filed,  is  com- 
petent evidence  against  L.,  so  far  as  it 
contains  any  admissions  or  confessions 
which  are  competent  to  prove  any  ma- 
terial fact  in  controversy.  Rees  v. 
Lawless,  4  Litt.  (Ky.)  219. 

Answer  to  Bill  of  Discovery. — A  party 
cannot  read  as  evidence  for  himself, 
in  an  action  at  law,  his  own  answer  to  a 
bill  of  discovery;  but  where  he  pro- 
posed reading  bill  and  answer,  and 
the  defendant  said,  "You  may  read 
the  bill,"  and  he  then  read  both  bill 
and  answer — held,  that  the  verdict 
will  not  be  set  aside  upon  this  ground, 
especially  where  the  reading  of  the 
bill  and  answer  could,  not  have  varied 
the  result.  Thompson  v.  French,  10 
Yerg.  (Tenn.)  453. 

A  party  cannot  use  his  answer  to  a 
bill  of  discovery  as  evidence  in  his  fa- 
vor, in  an  action  at  law,  unless  it  is 
introduced  by  his  adversary;  and  the 
same  rule  applies  to  answers  to  inter- 
rogatories propounded  by  one  party 
to  the  other,  under  the  act  of  1837. 
Montgomery  Branch  Bank  v.  Parker,  5 
Ala.  731. 

Further  Answer. — When  a  bill  in 
equity  and  answer  are  introduced  as 
evidence,  the  court  have  no  power,  on 
motion,  to  order  the  defendant  in  equi- 
ty to  answer  further,  in  order  that 
such  answer  may  be  used  as  evidence 
in  the  cause.  Lowney  v.  Perham,  20 
Me.  235. 

2.  Kiddie  v.  Debrutz,  i  Hayw.  (N. 
Car.)  420.     Thus  the  answer  of  a  de- 


Answers  as       AX SWERS  IN  EQUITY  PLEADING.  Evidence. 


Hearsay  Admissions- — Where,  however,  the  answer  contains  admis- 
sions stated  merely  on  hearsay,  it  is  not  evidence  against  the 
defendant  in  a  subsequent  suit  at  law.* 

As  Evidence  for  Defendant. — When  offered  in  evidence  the  whole 
answer  must  be  taken  together,  so  far  as  it  is  pertinent  to  the 
issue,  whether  its  allegations  are  strictly  responsive,  or  set  up 
aflfirmative  matter  in  avoidance.* 

Weight  as  Evidence. — The  truth  of  the  answer  should  be  weighed, 
like  other  evidence,  subject  to  be  overcome  by  the  nature  of  its 
statements  and  by  other  proof.* 

16,  Answers  as  Evidence  in  Issues  Sent  to  Jury.  —  Where  issues 
in  an  equity  court  are  sent  down  to  be  tried  by  a  jury,the  answer 
of  the  defendant  cannot  be  read  as  evidence  unless  it  is  so 
directed  in  the  order  of  the  trial.* 

Defendant  is  not  entitled  as  a  matter  of  right  to  have  his  an- 
swer read  as  evidence  on  the  trial  of  such  issue,  the  question  of 
whether  or  not  it  should  be  so  read  being  dependent  on  the  par- 
ticular facts  and  circumstances  of  the  case.* 


fendant  in  equity  is  competent  evi- 
dence against  him,  thdugh  the  plain- 
tiff at  law  was  not  a  party  to  the  suit 
in  equity.  Hunter  v.  Jones,  6  Rand. 
(Va.)  541- 

1.  Roe  V.  Ferris,  2  B.  &  P.  548.  See 
also  Stephens  v.  Vroman,  16  N.  Y. 
381.  But  it  has  been  held,  that  if 
the  answer  contains  matters  stated  as 
a  fact,  the  admissions  are  competent 
evidence  against  defendant  though  it 
appears  to  have  been  made  upon  in- 
formation. Shaddock  v.  Clifton,  22 
Wis.  115,  94  Am.  Dec.  588. 

2.  Croclier  v.  Clements,  23  Ala.  296; 
McNutt  V.  Dare,  8  Blackf.  (Ind.)  35: 
Saltmarsh  v.  Bower,  22  Ala.  230;  Fant 
V.  Miller,  17  Gratt.  (Va.)  187;  Roberts 
z/.  Tennell,3T.  B.  Mon.  (K3'.)247;  But- 
terworth  v.  Bailey,  15  Ves.  358;  Or- 
mond  V.  Hutchinson,  13  Ves.  47;  Earl 
of  Bath  V.  Bathersea.  5  Mod.  9. 

3.  Allen  z/.  McNew, 3  Humph. (Tenn.) 
46. 

4.  Kinsey  z/.  Grimes,  7  Blackf.  (Ind.) 
290  ;  Jackson  v.  Harris,  63  N.  Car. 
261;  Sturtevant  v.  Waterbury,  i  Edw. 
Ch.  (N.  Y.)442;  Glynn  v.  Bank  of  Eng- 
land, 2  Ves.  38;  Arnot  v.  Biscoe,  i  Ves. 
95;  Ibbotson  V.  Rhodes,  2Vern.  554. 

Illustration. — Thus  on  the  trial  of 
a'n  issue  from  chancery  to  try  the  title 
to  a  copyright,  the  bill  and  answer 
cannot  be  read  to  the  jury  unless  it  is 
so  ordered  by  the  court  of  chancery 
when  the  issue  is  ordered.  King  v. 
Force,  2  Cranch  (C.  C.)  208. 

6.  Sturtevant  v.  Waterbury,  i  Edw. 

I  Encyc.  PI.  &  Pr.— Oi.  y6 


Ch.  (N.  Y.)  443  ;  Cartwright  v.  God- 
frey, Murph.  (N.  Car.)  422  ;  Ibbotson 
V.  Rhodes,  i  Eq.  Cas.  Abr.  229  ;  Only 
V.  Walker,  3  Atk.  408;  Milton  v.  Edge- 
worth,  5  Bro.  P.  C.  313. 

In  Sturtevant  v.  W^aterbury,  i  Edw. 
Ch.  (N.  Y.)  343,  it  is  said:  "  In  the 
present  case  the  court  directed  an  issue 
upon  a  question  of  fraud  presented, 
not  upon  the  answer  and  the  testimony 
of  one  witness  merely,  but  depending 
upon  a  variety  of  facts  and  circum- 
stances disclosed  by  the  pleadings  and 
testimony  of  several  witnesses  exam- 
ined on  both  sides,  and  all  of  such 
leave  the  question  involved  in  doubt 
and  of  difficult  determination.  In 
such  cases,  if  it  is  not  a  matter  of 
right  in  the  defendant  to  have  his 
answer  read  to  the  jury  (and  I  am 
strictly  inclined  to  think  it  is  not,  since 
the  issue  is  directed,  not  by  his  desire, 
but  upon,  the  volition  of  the  court 
itself),  it  is  certainly  a  matter  of  dis- 
cretion with  the  court  to  give  him  the 
benefit  of  the  evidence  before  the  jury 
as  fully  as  it  exists  here,  and  to  the 
same  extent  to  which  he  would  be  en- 
titled if  the  ciuse  was  to  be  decided 
without  such  trial." 

Illustrations. — In  Ibbotsonw.  Rhodes, 
I  Eq.  Cas.  Abr.  229,  the  answer  de- 
nied notice  of  the  plaintiff's  trial,  but 
which  notice  the  plaintiff  proved  by 
one  witness.  There  was  oath  against 
oath,  and  issue  was  awarded;  but  as  it 
would  have  been  a  matter  of  course 
for  the  jury  to  find  for  plaintiff  if  the 
I 


Answers  as       ANSWERS  IN  EQUITY  PLEADING.  Evidence. 

Effect  as  Evidence.— When  SO  read  it  has  not  the  same  weight  as  it 
has  on  a  hearing  before  the  chancellor.  The  jury  have  the  right 
to  view  it  with  the  suspicion  which  attends  the  testimony  of  an 
interested  witness,  and  to  give  it  such  credit  only  as  they  may 
think  it  entitled  to.* 


cause  had  been  submitted  upon  the 
testimony  of  this  witness  alone,  and 
as  the  court  would  then  be  called  upon 
to  decree  according  to  the  verdict, 
which  would  in  effect  have  been  a  de- 
cree upon  the  evidence  of  one  witness 
against  the  positive  denial  of  the  an- 
swer, the  court  directed  the  answer 
to  be  read  at  the  trial,  not  as  conclu- 
sive evidence,  but  so  that  the  defend- 
ant might  have  the  benefit  of  his  oath, 
and  the  jury  give  to  it  such  weight  as 
they  should  think  proper. 

In  Kincheloe  v.  Kincheloe,  ii  Leigh 
(Va.)  409,  it  is  said:  "  In  a  suit  in 
chancery  the  object  of  which  is  to  con- 
test the  validity  of  a  will  on  an  issue 
devisavit  vel  non,  under  the  Act  of  As- 
sembly, I  do  not  think  that  the  answer 
of  the  defendant  becomes  of  necessity 
evidence  in  the  cause  on  the  question 
as  to  the  validity  of  the  will  where  no 
appeal  is  made  to  the  conscience  of 
the  defendant,  where  no  discovery 
is  sought  from  him  as  to  facts  within 
his  particular  knowledge,  but  he  is 
called  on  to  answer  merely  as  a  step 
or  pa  t  of    the  proceedings  through 

96 


which  it  is  necessary  to  pass  for  ob- 
taining a  trial  before  jury.  In  such  a 
case  it  would  be  unjust  to  make  the 
answer  evidence  as  to  the  validity  of 
the  will;  *  *  *  but  in  the  case  before 
us,  an  appeal  is  directly  made  to  the 
conscience  of  the  defendant  by  various 
searching  interrogatories  which  he  is 
called  on  to  answer  specially.  Being 
thus  called  on  and  required  to  give 
evidence  which  might  have  operated 
against  him,  he  ought  on  the  question 
of  chancery  practice  to  be  entitled  to 
its  benefit  when  it  operates  in  his 
favor." 

Where  an  answer  is  replied  to,  and  its 
allegations  are  disproved  by  more  than 
one  witness,  it  should  not  be  read  in 
evidence  on  the  trial  of  an  issue  of 
fact  in  the  cause.  Cartwright  v.  God- 
frey, I  Murph.  (N.  Car.)  422. 

1.  Kinsey  v.  Grimes,  7  Blackf.  (Ind.) 
290;  Sturtevant  v.  Waterbury,  i  Edw. 
Ch.  (N.  Y.)  442;  Giynn  v.  Bank  of 
England,  2  Ves.  38;  Hunter  v.  Wallace, 
I  Overt.  (Tenn.)  239.  See  also 
Humphreys  v.  Blevins,  i  Overt. 
(Tenn.)  178. 


APPEAL    BONDS    AND   UNDERTAKINGS. 

By  William  P.  Aiken. 

I.  Definition,  964. 

II.    PUEELY   STATUTOEY,  965. 

III.  Statittoey  Requieements  Mandatoey,  965. 

IV.  Oedees  of  Couet,  967. 
V.  By  Whom  Given,  967. 

VI.  Appellants  Exempted,  968. 
VII  To  Whom  Payable,  970. 
VIII.  On  Sepaeate  Appeals,  972. 
IX.  Execution  of  Bond,  973. 

1.  Sealing,  973. 

2.  Signature,  973. 

3.  Execution  by  Agent,  976. 

X.  Deliveey,  977. 
XL  Contents  and  Sufficiency,  977. 

1.  Amount,  977. 

2.  Description  of  Judgtnent,  981. 

3.  Gondii ioti  of  Bond,  983. 

xn.  Time  foe  Filing  Secueity,  985. 

1.  Generally,  g%i,. 

2.  Notice  of  Appeal,  ()%<). 

3.  Date  of  Filing,  989. 

4.  Official  Misconduct,  990. 

Xm  Amendment,  990. 

1 .  When  Bond  is  Void,  990. 

2.  When  Unnecessary,  991. 

3.  Power  to  Amend,  993. 

4.  Gonstruction  of  Statutes,  994. 

5.  Motion  to  Amend,  997. 

a.  Where  Made,  997. 

b.  Time  of  Motion,  997. 

6.  Gommon-Law  Bond,  998. 

XIV.  Appeals  in  Fosma  Faupeeis,  999. 
XV.  Waivee  of  Defects  by  Appellee,  ioool 
XVI.  Motion  to  Dismiss,  1002. 
963 


Definiticn.  APPEAL    BONDS.  Definition. 

XVII  The  Sqeeties,  1002. 

1.  Qualification,  1002. 

2.  Sureties  on  Bond  in  Suit,  1004. 

3.  Number  of  Sureties,  1004, 

4.  Exception  to  Sureties,  1005. 

XVIII  Approval  of  Bond,  1007. 

1.  Generally,  1007. 

2.  How  Made,  1008. 

3.  HoTV  Shown,  10x39. 

4.  Effect,  1009. 

5.  Rezneiu  of  Approval,  loio. 

XIX.   CONSTEUCTION   Or   CONTEACT,  loii. 

1.  Generally,  loi  i. 

2.  When  Liability  Accrues,  1013. 

3.  Joint  Bond,  1014. 

4.  Measure  of  Liability,  1015. 

5.  Discharge  of  Sureties,  1 01 6. 

6.  Change  of  Issues,  1017. 

XX.  Remedies  of  Obligee,  ioi8. 
XXI.  Estoppel  of  Sureties,  1019. 
XXII.  Successive  Appeals,  1020. 

XXIII.  Subrogation,  1020. 

XXIV.  Record  on  Appeal,  1021. 

I  Definition. — An  appeal  bond  is  a  voluntary  obligation 
entered  into  by  the  appellant  and  his  sureties,  as  obligors,  and  the 
appellees,  as  obligees,  conditioned  that  the  obligors  shall  prose- 
cute the  appeal  with  effect  or  answer  to  the  liability  created  by 
the  bond.* 

1.  Ring  V.  Mississippi  River  Bridge  tiff  in  error  to  prosecute  the  writ  with 
Co.,  57  Mo.  498;  Staley  v.  Howard,  7  effect,  and,  if  judgment  was  affirmed,  to 
Mo.  App.  377;  Sauer  v.  Griffin,  67  Mo.  satisfy  and  pay  the  debt  and  damages 
654;  Cook  V.  King, 7  111.  App.  549;  Boyd  or  costs  awarded.  2  Tidd  Pr.  1156. 
V.  Boyd,  2  Nott  &  M.  (S.  Car.)  126;  Distinction  in  Securities. — An  appeal 
Hodge  V.  Hodgdon,  8  Cush.  (Mass.)  (^om(/ is  a  specialty  under  seal;  an  «;/- 
294;  Hinkle  v.  Holmes,  85  Ind.  405;  dertaking  on  appeal  is  an  unsealed 
Ross  V.  Swiggett,  16  Ind.  433;  Mason  promise  in  writing  ;  a  recognizance  on 
V.  Smith,  II  Lea  (Tenn.)  67;  White-  appeal  is  a  statutory  obligation  en- 
head  V.  Thorp,  22  Iowa  425;  Erickson  tered  of  record  binding  the  appellant 
V.  Elder,  34  Minn.  370;  Matlock  v.  to  do  some  act,  such  as  to  appear  in 
State  Bank,  7  Yerg.  (Tenn.)  91.  court,  to  pay  the  debt,  etc.     Anderson 

"  It  is  an  obligation  conditional  for  Diet,  of  Law,  862. 

the    prosecution   of   the   appeal    with  Character   of    Contract.  —  Where    the 

effect,  and  if  the  appeal  is  prosecuted  statute  requires   the  obligors    to    per- 

with  effect   and   the  case  is    reversed  form   the  judgment  as  affirmed,   it  is 

for  error  in   law,  the    conditions    are  a  contract  for  the  payment  of  money 

avoided  and  the  liability  ceases."   Ring  if  the  judgment  as  affirmed  isarrcrey 

V.    Mississippi    River    Bridge  Co.,    57  judgment.       Myers    v.    Shoreman,    co 

111.  498.  111.  80;  Reitan  v.  Goebel,  35  Minn.  .^84. 

Bail  in  Error. — Bail  in  error  at  com-  It  is  a  security  for  the  performance  of 

mon  law  was  an  obligation  of  the  plain-  the  judgment  as  affirmed,  not  an  un- 

964 


Purely  Statutory. 


APPEAL   BONDS. 


Statutory  Requirements. 


II.  PUEELY  Statutory. — The  purpose  of  an  appeal  bond  is  to 
protect  the  appellee  from  vexatious  litigation  and  the  expenses 
of  appeal.^  At  common  law  no  bail  in  error  was  required  of  the 
party  prosecuting  a  writ  of  error,  and  under  modern  practice  the 
requirement  that  the  appellant  shall  furnish  security  on  appeal  is 
purely  statutory.^  Where  not  authorized  by  statute  no  court 
or  judge  has  power  to  demand  it.-"* 

III.  Statutory  Requirements  Mandatory.— Under  their  general 
authority  to  regulate  appellate  procedure  legislatures  may  require 


dertaking  in  a  fixed  sum  as  liquidated 
damages  for  delay.  Cook  v.  King,  7 
111.  App.  549. 

1.  Santom  v.  Ballard,  133  Mass. 
464;  Folsom  V.  Cornell,  150  Mass. 
14. 

2.  Kilbee  v.  Myrick,  12  Fla.  416; 
Bauknight  v.  Sloan,  17  Fla.  287; 
Archer  v.  Hart,  5  Fla.  234;  Smith  v. 
Curtis,  19  Fla.  786;  Florida  Orange 
Hedge  Fence  Co.  v.  Branham,  27 
Fla.  526;  Burgess  v.  O'Donoghue,  90 
Mo.  299;  Crawford  v.  Greenleaf,  48 
Mo.  App.  591;  In  r^Claasen,  140  U.  S. 
200;  Swann  v.  Home,  54  Miss.  337; 
Winters  v.  Claitor,  54  Miss.  341. 

3.  Bonnett  v.  Townsend  (Supreme 
Ct.),  17  N.  Y.  Supp.  566;  Republic  of 
Honduras  v.  Soto,  112  N.  Y.  310. 

Hence  it  was  held  that  where  there 
was  no  statute  authorizing  the  court 
to  require  a  new  undertaking  on  ap- 
peal on  the  insolvency  or  death  of  the 
sureties  on  the  original  undertaking, 
the  appellate  court  had  no  authority 
to  demand  it.  Bonnett  v.  Townsend 
(Supreme  Ct.),  17  N.  Y.  Supp.  566; 
Crawford  v.  Greenleaf,  48  Mo.  App. 
592;  Paddock-Hawley  Iron  Co.  v. 
Graham,  48  Mo.  App.  63S. 

And  where  exacted  of  the  appellant 
by  a  court,  without  statutory  authori- 
ty, it  is  void.  People  v.  Cabannes, 
20  Gal.  525. 

In  Florida  it  has  been  held  that  un- 
der technical  chancery  practice  a  chan- 
cellor has  power  to  require  the  appel- 
lant to  give  security  to  the  appellee 
for  the  costs  of  the  appeal.  Robinson 
V.  Roberts,  16  Fla.  156. 

Supersedeas  Bond. — Where  a  bond  is 
required  only  to  effect  a  stay  of  pro- 
ceedings on  the  judgment  pending  an 
appeal,  the  failure  to  give  the  bond 
does  not  effect  the  validity  of  the  ap- 
peal. Bauknight  v.  Sloan,  17  Fla. 
2S1;  Kilbee  v.  Myrick,  12  Fla.  416; 
Winters  v.  Hughes,  3  Utah  438;  Beach 
V.   Southworth,   6   Barb.   (N.  Y.)  173; 


Emerson  v.  Burney,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)  32;  Nicholson  v. 
Dunham,  i  Code  Rep.  (N.  Y.)  119; 
Halsey  v.  Flint,  15  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  367;  Davis  v.  Duffie, 
8  Bosw.  (N.  Y.)69i;  Niles  v.  Batter- 
shall,  26  How,  Pr.  (N.  Y.  Super. 
Ct.)  93:  O'Neil  V.  Martin,  i  E.  D. 
Smith  (N.  Y.)  404;  Ten  Broeck  v. 
Hudson  River  R.  Co.,  7  How.  Pr.  (N. 
Y.  Supreme  Ct.)  137;  Ritter  v.  Kreke- 
ler,  44  How.  Pr.  (N.  Y.  Super.  Ct.) 
445;  Parsons  v.  Suydam,  4  Abb.  Pr. 
(N.  Y.  C.  PI.)  134;  Reynolds  v.  Free- 
man, 4  Sandf.  (N.  Y.)  702;  Allen  v. 
Johnson,  2  Sandf.(N.  Y).  629;  Cook  v. 
Pomeroy,  10  How.  Pr.  (N.  Y.  Supreme 
Ct.)  103. 

Construction  of  Statutes. — A  statute 
requiring  security  on  appeal  from 
judgments  at  law  does  not  extend  to 
appeals  from  chancery  unless  express- 
ly so  stated.  Robinson  v.  Roberts, 
16  Fla.  156. 

A  bond  must  be  given  on  appeal 
taken  in  a  special  proceeding,  where 
the  law  provides  that  it  shall  be  taken 
similarly  as  an  appeal  from  a  decision 
by  a  court  of  general  jurisdiction,  and 
a  bond  is  there  required.  Matter  of 
Beckwith,  15  Hun  (N.  Y.)  327. 

A  statute  requiring  an  appellant  to 
give  a  bond  upon  appeal  from  a  judg- 
ment after  a  "  trial  at  law  on  the  mer- 
its" was  held  not  to  apply  to  judgments 
obtained  by  "default  for  not  plead- 
ing." Davies  v.  Skidmore,  5  Hill  (N. 
Y.)  501. 

A  Code  provision  requiring  an  un- 
dertaking to  be  given  on  appeal  from 
a  judgment  does  not  include  appeals 
from  orders  unless  expressly  so  stated. 
Emerson  v.  Burney,  6  How.  Pr.  (N. 
Y.  Supreme  Ct.)  32. 

The  requirement  of  a  bond  on  ap- 
peal from  a  judgment  directing  the 
3ale  or  delivery  of  real  property  in- 
cludes a  judgment  of  foreclosure. 
Gerald  v.  Gerald,  30  S.  Car.  348. 


96: 


Statutory  Bequirements 


APPEAL   BONDS. 


Mandatory. 


appeal  bonds  of  the  appellant  in  either  civil  or  criminal  cases.* 
The  general  principle  that  acts  required  by  statute  to  perfect  an 
appeal  are  jurisdictional,  and  must  be  strictly  complied  with  to 
vest  the  appellate  court  with  power  to  entertain  the  appeal,  applies 
to  statutes  requiring  appeal  bonds.*  Neither  the  appellate  nor 
the  trial  court  can  dispense  with  the  statutory  security'  or  accept 


1.  In  re  Liquors  of  McSoIey,  15  R.  I. 
610;  Littlefield  v.  Peckham,  i  R.  I. 
500;  Jones  V.  Robbins,  8  Gray  (Mass.) 
329;  Hapgood  V.  Doherty,  8  Gray 
(Mass.)  373;  Com.  v.  Whitney,  108 
Mass.  5;  Flint  River  Steamboat  Co.  v. 
Foster,  5  Ga.  194;  Lincoln  v.  Smith, 
27  Vt.  328;  Beers  v.  Beers,  4  Conn. 
535,  10  Am.  Dec.  186;  Biddle  v.  Com., 
13  S.  &  R.  (Pa.)  405. 

Trial  by  Jury. — The  legislative  re- 
quirements of  a  recognizance  on  ap- 
peal in  a  criminal  case,  to  secure  a 
trial  by  jury  before  a  higher  tribunal, 
is  not  unconstitutional  as  violating  the 
right  of  trial  by  jury  where  the  condi- 
tions required  are  reasonable.  /«  re 
Liquors  of  McSoley,  15  R.  L  608. 

2.  Indian-. — Martin  v.  Kennard,  3 
Blackf.  (Ind.)  430;  Silver  v.  Govenor, 
4  Blackf.  (Ind.)  15;  Spader  v.  Frost,  4 
Blackf.  (Ind.)  190;  Sherry  v.  Fores- 
man,  6  Blackf.  (Ind.)  56;  Olds  v.  State, 
6  Blackf.  (Ind.)  91;  State  v.  Lynch, 
6  Blackf.  (Ind.)  395;  State  v.  Inman,  7 
Blackf.  (Ind.)  225;  Marshall  v.  State, 
8  Blackf.  (Ind.)  162;  Parker  v.  Hen- 
derson, I  Ind.  62;  Ellis  V.  State,  2 
Ind.  262;  Skelton  v.  Bliss,  7  Ind.  77; 
Butler  V.  Wadley,  15  Ind.  502;  Myers 
V.  State,  19  Ind.  127;  Macey  v.  Tit- 
combe,  19  Ind.  135;  Byers  v.  State,  20 
Ind.  47;  Caffrey  v.  Dudgeon,  38  Ind. 
512. 

North  Carolina  — Orr  v.  McBryde,  3 
Murph.  (N.  Car.)  235;  Forsyth  v. 
M'Cormick,  2  Law  Repos.  (N.  Car.) 
472;  Lytle  V.  Lytle,  90  N.  Car.  649; 
Smith  V.  Abrams,  90  N.  Car.  21;  Roys- 
ter  V.  Burwall,  90  N.  Car.  24;  Anthony 
V.  Carter,  91  N.  Car.  229;  McMillan  v. 
Nye,  90  N.  Car.  12;  Harshaw  v.  Mc- 
Dowell, 89  N.  Car.  181;  Gruber  v. 
Washington,  etc.,  R.  Co.,  92  N.  Car. 
i;  McCauless  v.  Reynolds,  91  N.  Car. 
244;  Turner  v.  Quinn,  91  N.  Car.  92; 
In  re  Berry,  107  N.  Car.  326. 

Missouri. — Lengle  v.  Smith,  48  Mo. 
276;  Filley  v.  Walls,  4  Mo.  271;  Slater 
V.  Steamboat  Convoy,  10  Mo.  513; 
Adams  v.  Wilson,  10  Mo.  341;  Hayton 
V,  Hope,  3  Mo.  53;  Cochran  v.  Bird,  2 
Mo.   141;  Byrne  v.  Thompson,  i   Mo. 


443;  Green  v.  Castello,   35   Mo.   App. 
127. 

Massachtisetts. — Santom  v.  Ballard, 
133  Mass.  464;  Keene  v.  White,  136 
Mass.  23;  Wheeler  Mfg.  Co.  v.  Bur- 
lingham,  137  Mass.  581;  Com.  z/. Park- 
er, 140  Mass.  439;  Putnam  v.  Boyer, 
140  Mass.  235. 

Louisiana. — Dubreuil  v.  Dubreuil,  5 
Martin  (La.)  82;  Davis  v.  Curtis,  3 
Martin  N.  S.  (La.)  142;  State  v.  Heu- 
chert,  42  La.  Ann.  270. 

New  York. — Jones  z/.  Decker,  14  Abb. 
Pr.  (N.  Y.  Supreme  Ct.)  391;  Blood  v. 
Wilder,  6  How.  Pr.  (N.  Y.  Supreme 
Ct.)446. 

Maine.  —  Dolloff  v.  Hartwell,  38 
Me.  54;  Jordan  v.  McKenny,  45  Me. 
306. 

Kentucky. — Clinton  v.  Phillipi,  7  T. 
B.  Mon.  (Ky.)  118;  Wickliffe  v.  Clay,  i 
Dana  (Ky.)  585. 

Other  States. — Bell  v.  Wheeler,  3  S. 
Car.  104;  Com.  v.  Jackson,  i  Leigh 
(Va.)  485;  Benedict  v.  Bray,  2  Cal.  251, 
56  Am.  Dec.  332;  Law  v.  Nelson,  14 
Colo.  409;  Sutherland  v.  Putnam  (Ari- 
zona, i89o),24Pac.  Rep.  320.  See  Com- 
mon-la w^  Bond,  XIII.,  6,  infra. 

Original  Jurisdiction. — The  necessity 
of  a  bond  is  not  dispensed  with  be- 
cause the  appellate  tribunal  had  orig- 
inal jurisdiction  over  the  case  ap- 
pealed. Green  v.  Castello,  35  Mo. 
App.  127. 

Recognizance. — Where  a  recognizance 
is  required  no  appeal  is  operative  un- 
til such  recognizance  be  duly  given. 
Hayton  v.  Hope,  3  Mo.  53. 

3.  Architectural  Iron  Works  Co.  v. 
Brooklyn,  85  N.  Y.  652;  Staub  v.  Will- 
iams, I  Lea  (Tenn.)  36;  State  v.  Wat- 
son, 33  Tex.  338;  State  v.  Ivy,  33 
Tex.  646. 

But  where  an  appellant  failed  to  file 
security,  relying  on  an  order  of  the 
trial  court  dispensing  with  it,  and  it 
appeared  that  the  appeal  was  taken  in 
good  faith,  the  neglect  was  deemed 
excusable,  and  the  appellant  was  al- 
lowed to  supply  the  undertaking. 
Architectural  Iron  Works  Co.  v. 
Brooklyn,  85  N.  Y.  652. 


966 


Orders  of  Court. 


APPEAL  BONDS. 


By  Whom  Given. 


a  security  of  a  different  character  from  that  named  in  the  stat- 
ute.* And  it  follows  that  where  no  bond  is  given  as  prescribed 
by  the  statute  the  appeal  must  be  dismissed  or  stricken  from 
the  docket  unless  the  requirement  is  deemed  waived  by  the 
appellee.*-* 

IV.  Obdebs  of  Cotibt. — Where  the  statute  authorizes  the  court 
granting  an  appeal  to  require  an  appeal  bond  to  be  given,  the 
terms  of  the  order  must,  like  those  of  a  statute,  be  substantially 
followed.* 

V.  By  Whom  Given. — An  appeal  bond  must  be  given  in  the  name 
of  a  party  to  the  suit  or  his  legal  representatives.*     All  co-parties 


1.  Erbon  v.  Chowan  County,  98  N. 
Car.  75;  Allen  v.  Walnut  Hills,  etc.. 
Turnpike  Co.,  12  Cine.  L.  Bull.  (Ohio) 
168;  King  V.  McCann,  25  Ala.  471; 
Laturner  v.  State,  9  Tex.  451;  Bacon 
V.  State,  10  Tex.  98:  Corbin  v.  Las- 
well,  48  Mo.  App.  626;  State  v.  Thomp- 
son, 49  Mo.  189;  St.  Louis  Dairy  Co. 
V.  Sauer,  16  Mo.  App.  4;  Nurse  v. 
Porter,  18  N.  H.  57;  Steamboat  Lake 
of  the  Woods  v.  Shaw,  2  Greene 
(Iowa)  91;  Cuddelback  v.  Parks,  2 
Greene  (Iowa)  148. 

Certified  Check. — The  court  cannot 
therefore  accept  a  certified  check  as  a 
legal  substitute  for  an  undertaking, 
although  it  be  for  the  same  amount. 
Allen  v.  Walnut  Hills,  etc..  Turnpike 
Co.,  12  Cine.  L.  Bull.  (Ohio)  168;  Mc- 
Intyre  v.  Strong,  48  N.  Y.  Super.  Ct. 
299. 

Becognizance    and    Bond. — Where    a 


undertaking  shall  be  in  writing  is 
mandatory.  Harshaw  v.  McDowell, 
89  N.  Car.  181. 

Unnecessary  Bond. — Where  the  stat- 
ute requires  only  a  simple  acknowl- 
edgment in  writing  an  appeal  bond 
formally  approved  by  the  trial  justice 
is  a  valid  although  unnecessary  sub- 
stitute. Williams  v.  McConico,  27  Ala. 
572;  Satterwhite  v.  State,  28  Ala.  65; 
Riddle  v.  Hanna,  25  Ala.  484. 

2.  State  V.  Stout,  28  Tex.  327;  State 
V.  Paschal,  22  Tex.  584:  State  v.  Fath- 
eree,  23  Tex.  202;  Dugganw.  Noell,  30 
Tex.  451;  Golden  v.  State,  32  Tex.  737; 
McLornez'.  Russell,  29  Tex.  127;  Lang- 
ley  V.  Warner,  i  N.  Y.  606;  Kelsey  v. 
Campbell,  38  Barb.  (N.  Y.)  238;  Dresser 
V.  Brooks,  5  How.  Pr.  (N.  Y.  Ct.  of 
App.)  75;  Mays  v.  King,  28  Ala.  690; 
King  V.  McCann,  25  Ala.  471;  Ten 
Brook  V.  Maxwell,    5    Ind.  App.  353; 


recognizance  is  required  by  the  stat-     Law  v.  Nelson,  14  Colo.  409;  Thomp- 


ute  an  appeal  bond  is  insufficient,  al- 
though it  otherwise  complies  with  the 
statutory  conditions.  Laturner  v. 
State,  9  Tex.  451;  Bacon  v.  State,  10 
Tex.  98. 

Even  the  Actual  Payment  of  Costs  has 
been  held  an  insufficient  substitute  for 
the  appeal  bond  required  only  to  se- 
cure them.  King  v.  McCann,  25  Ala. 
471. 

Where  Form  is  Disregarded. — An  un- 
dertaking in  lieu  of  the  statutory  bond 
required  is  valid  and  effectual  to  per- 
fect the  appeal  where  the  statute  re- 
quires the  appellate  court  to  regard 
the  substance  of  the  obligation  rather 
than   the  form.     Wilson  v.  Morrell,  5 


son  V.  Thompson,  24  Wis.  515;  French 
V.  Snell,37  Me.  100;  Rinehardt  v.  Vail, 
103  Ind.  159;  Webb  v.  Simpson,  105 
Ind.  327.    See  also  Waiver,  XV.,  infra 

As  to  filing  new  bond,  see  Amend- 
ment, XIII. ,  infra. 

3.  Beall  v.  Hileman  (111.,  1886),  2 
West.  Rep.  899;  Carson  v.  Merle,  4 
111.  168;  Ryder  v.  Stevenson,  4  111. 
539;  Watson  V.  Thrall,  8  111.  69;  John- 
son V.  Barber,  9  111.  11;  Niagara  v. 
Martin,  42  111.  106. 

Conditions. — Where  the  conditions  to 
be  embraced  in  the  bond  are  not  pre- 
scribed by  the  statute,  the  order  must 
prescribe  them  or  it  is  ineffectual;  and 
in  such  a  case  the  failure  to  file  such 


Wash.  654.     Or  where    no   particular     a  bond  is   not  ground  for    dismissal. 


form  of  allegation  is  required,  and  the 
undertaking  complies  otherwise  with 
its  requiremants.  Conklin  v.  Dutcher, 
5  How.  Pr.  (N.  Y.  Supreme  Ct.) 
388. 

But   a   statutory   direction   that  an 


Pollock  V.  People,  i  Colo.  83. 

4.  Savannah,  etc.,  R.  Co.  v.  Clark, 
23  Fla.  308;  Armson  v.  Forsyth,  40 
111.  49;  Partridge  v.  Snyder,  78  111. 
519;  Appanovce  v.  Kuefl,  2  111.  App. 
583;   Gardner  v.   Chambersburgh     19 


967 


Appellants  Exempted. 


APPEAL   BONDS. 


Appellants  Exempted. 


united  in  interest  and  appealing  niust  be  joined  therein.*  Parties 
allowed  to  come  in  and  join  in  the  appeal  must  also  unite  in  the 
appeal  bond,  or  they  do  not  become  parties.^  Where  one  party 
to  a  joint  judgment  appeals  in  the  name  of  all,  the  appeal  bond 
need  not  recite  the  fact  if  it  shows  that  the  whole  cause  is  brought 
up.^  Separate  parties  who  are  aggrieved  by  the  same  judgment 
may  join  in  the  appeal  bond  on  appeal  therefrom.* 

Oflacial  Capacity. — An  appellant  should  give  the  appeal  bond  in 
the  capacity  in  which  he  appeals.*  Where  appealing  in  an  ofificial 
or  representative  capacity  the  bond  may  be  given  in  that  capacity 
without  subjecting  him  to  personal  liability.® 

VI.  Appellants  Exempted.— No  appeal  bond  is  required  of  the 
state  as  appellant,  since  it  is  not  within  the  contemplation  of  the 
statute.''  Public  corporations,  executors,  and  administrators  are 
generally  expressly  exempted  by  statute.® 


111.  99;  M'Alister  v.  Serice,  7  Yerg. 
(Tenn.)  277. 

In  Name  of  Town. — On  an  appeal  by 
a  town  the  bond  should  be  signed  in 
the  name  of  the  town  by  the  proper 
official.    Armson  v.  Forsyth,  40  111.  49. 

Party  in  Interest. — Where  the  real 
appellant  is  the  party  in  interest  the 
appeal  bond  must  be  given  in  the 
name  of  the  nominal  party  to  the  rec- 
ord.    Armson  v.  Forsyth,  40  111.  49. 

Bond  in  Name  of  Stranger. — A  bond 
given  in  the  name  of  a  stranger  to  the 
record,  or  in  the  name  of  persons  not 
parties  to  the  order  granting  the  ap- 
peal, does  not  perfect  it.  Propeller 
Niagara  v.  Martin,  42  111.  106. 

1.  Carson  v.  Merle,  4  111.  168;  Wat- 
son V.  Thrall,  8  111.  69;  Johnson  v. 
Barber,  9  111.  i;  Ryder  v.  Stevenson,  4 
111-  539;  Wittenborg  v.  Murphy,  40 
111.  46;  Hileman  v.  Beale,  115  111.  355; 
Frank  v.  Thomas,  35  111.  App.  547; 
Propeller  Niagara  v.  Martin,  42  111. 
106;  Dingier  v.  Strawn,  36  111.  App. 
564;  Price  V.  Thomas,  4  Md.  514. 

2.  Dunbar  v.  Creditors,  2  La.  Ann. 
727. 

3.  Deslonde  v.  Carter,  28  Ala.  541; 
Savage  v.  Walsh,  24  Ala.  293. 

4.  Schlieder  z/.  Martinez,  38  La.  Ann. 
847. 

Where  a  single  party  is  entitled  to 
appeal  upon  the  refusal  of  the  rest, 
his  appeal  bond  alone  is  good.  Weeks 
V.  Sego,  9  Ga.  204. 

5.  Smith  V.  Dennison,  94  111.  582; 
Beardsley  v.  Hill,  61  111.  354;  Craw- 
ord  V.  Alexander,  14  La.  Ann.  719. 

6.  Smith  V.  Dennison,  94  111.  582; 
Beardsley  v.  Hill,  61  111.  354.  Unless 
the  appeal  also  concerns   his  individ- 


ual rights,  in  which  case  he  must  give 
also  his  individual  bond.  Crawford  v. 
Alexander,  14  La.  Ann.  719. 

Where  the  condition  of  the  appeal 
bond  recites  the  representative  capac- 
ity of  the  obligor,  and  his  official  desig- 
nation is  added  to  his  signature,  it  can- 
not be  considered  his  personal  bond. 
Beardsley  v.  Hill,  61  111.  354. 

Sufficiency  of  Bond. — Where  an  indi- 
vidual brings  writ  in  an  official  capac- 
ity for  an  organization,  a  bond  fur- 
nished by  him  as  such  official  is  suffi- 
cient to  perfect  an  appeal.  St.  Pat- 
rick's Church  V.  Consumers'  Ice  Co., 
44  La.  Ann.  1021. 

Conditions  of  Such  Bond. — The  condi- 
tion of  a  bond  given  by  an  administra- 
tor in  his  capacity  as  such  is  properly 
conditioned  to  pay  the  decree  in  the 
due  course  of  administration.  Smith 
V.  Dennison,  94  111.  582. 

7.  People  V.  Clingan,  5  Cal.  389; 
Holmes  v.  Mattoon,  iii  111.  28,  53  Am. 
Rep.  602. 

8.  Statutes  exempting  political  cor- 
porations from  the  requirement  of 
giving  an  appeal  bond  do  not  violate 
constitutional  provisions  forbidding 
special  legislation.  McClay  v.  Lin- 
coln, 32  Neb.  412;  Holmes  v.  Mattoon, 
III  111.  28,  53  Am.  Rep. 602:  Chester  f. 
Wilson,  15  111.  App.  239;  Hanover  Tp. 
Drainage  Dist.  v.  Kelsey,  120  111.  483. 

In  Holmes  v.  Mattoon,  iii  111.  28, 
53  Am.  Rep.  602,  it  was  said:  "  It  is 
believed  that  in  no  government  in  an- 
cient or  modern  times  has  it  been  re- 
quired to  give  bond  for  the  payment 
of  costs  of  litigation  before  bringing 
suit  or  on  appeal  or  on  error.  *  *  * 
This  being  true  of  the  state  govern- 


968 


Appellants  Exempted. 


APPEAL   BONDS. 


Appellants  Exempted. 


Construction  of  Exemptions. — Statutory  exemptions  will  not  be  ex- 
tended by  implication  beyond  the  specified  cases,  as  they  are 
exceptions  to  the  general  policy  of  the  law  in  protecting  appel- 
lees.* 


ment,  it  is  necessarily  true  of  all  its 
officers,  agents,  and  instrumentalities 
while  employed  in  seeking  the  rights 
of  the  government  in  courts  of  justice. 
Hence  officers  suing  for  or  defending 
the  rights  of  the  state  are  acting  for 
and  in  the  stead  of  the  state,  and  to 
that  extent  not  only  may  but  should 
be  permitted  to  do  so  on  the  same 
terms  and  for  the  same  reasons  that  the 
state  is  permitted  to  sue  for  or  defend 
its  rights.  Again,  municipalities  such 
as  counties,  cities,  villages,  towns, 
school  districts,  and,  in  the  language 
of  the  act,  '  all  other  municipal  corpo- 
rations,' and  the  corporations  of  all 
charitable,  educational,  penal,  or  re- 
formatory institutions  under  the  pat- 
ronage and  control  of  the  state,  and 
all  public  officers  when  suing  or 
defending  in  their  official  capacity  for 
the  benefit  of  the  public,  are  the  in- 
struments of  the  state  to  carry  out  its 
powers  for  the  public  welfare;  and  in 
exercising  their  powers  and  enforcing 
public  rights  they  act  as  agents,  and 
may  have  extended  to  them  the  same 
exemptions  in  suits  as  belong  to  the 
state." 

Towns. — A  town  as  a  municipal  cor- 
poration is  within  the  terms  of  a  stat- 
ute exempting  incorporated  "cities" 
from  the  requirement  of  filing  appeal 
bonds.     Elma  v.  Carney,  4  Wash.  418. 

A  township  drainage  district  is  a 
municipal  corporation  within  the  in- 
tent of  such  a  statute.  Hanover  Tp. 
Drainage  Dist.  v.  Kelsey,  120  111.  482. 

Officials. — Public  officials  appealing 
in  behalf  of  political  corporations  ex- 
empted by  law  need  not  furnish  an 
appeal  bond.  Merchants'  Mut.  Ins.  Co. 
V.  Assessors,  40  La.  Ann.  371;  States'. 
New  Orleans,  34  La.  Ann.  467;  Smith 
V.  New  Orleans,  43  La.  Ann.  726 ; 
People  V.  Marion  County,  10  Cal.  344; 
Warden  v.  Mendocino  County,  32  Cal. 

655- 

Trustees. — Statutes  exempting  per- 
sons acting  in  a  trust  capacity — as  ad- 
ministrators and  executors — apply  to 
appeals  affecting  the  interests  of  the 
trust  estate  only.  Hudson  v.  Gray,  158 
Miss.  589;  Haliman  v.  Dibrell,  51  Miss. 
96;  Hunter  v.  Thurmon,  25  Miss.  463; 
Biddle  v.  Phipps,  2  Ohio  Cir.  Ct.  Rep. 


61;  McCay  v.  Devers,  9  Ga.  184;  Mer- 
chants' Bank  v.  Rawls,  21  Ga.  289; 
Irving  V.  Melton,  27  Ga.  330. 

But  where  such  trustee  appeals  to 
protect  his  own  individual  interests, 
or  to  protect  his  sureties  on  an  ad- 
ministration bond,  he  must  give  an 
appeal  bond  like  any  other  appellant. 
Haliman  v.  Dibrell,  51  Miss.  96;  Hun- 
ter V.  Thurmon,  25  Miss.  463;  Taylor 
V.  McCullom,  5  Cine.  L.  Bull.  (Ohio) 
414;  Hudson  V.  Gray,  58  Miss.  589. 
Or  where  the  appeal  affects  both  his 
private  and  his  representative  inter- 
ests, as  an  appeal  by  the  committee  of 
a  lunatic  from  a  judgment  against 
him  on  accounting.  Butler  v.  Jarvis, 
117  N.  Y.  115. 

Married  Women. — Statutes  exempting 
married  women  from  the  obligation  of 
giving  an  appeal  bond  apply  although 
the  appeal  affects  her  separate  prop- 
erty alone.  Armstrong  v.  Nelson,  57 
Ala.  556;  Ware  v.  McDonald,  62  Ala. 
81;  Coleman  v.  Smith,  52  Ala.  259. 

Substituted  Appellant.  —  Where,  on 
the  death  of  the  appellant  to  the  rec- 
ord, the  administrator  has  been  sub- 
stituted, he  cannot  be  required  to  fur- 
nish additional  security  in  place  of  an 
insolvent  surety  where  statutes  exempt 
trustees.  Lattimer  v.  Ware,  2  Kelly 
(Ga.)  272. 

An  appeal  by  an  administrator  from 
a  decree  revoking  his  letters  of  ad- 
ministration is  not  a  proceeding  had 
upon  the  estate  of  which  he  is  execu- 
tor within  the  meaning  of  a  Code  pro- 
vision that  no  bond  need  be  given  in 
such  cases.  In  re  Danielson,  88  Cal. 
480. 

1.  State  V.  Judge,  18  La.  444;  Von 
Schmidt  v.  Widber  (Cal.,  1893),  32  Pac. 
Rep.  532;  Crismon  v.  Bingham,  etc., 
R.  Co.,  3  Utah  249. 

County  Official. — A  statute  exempting 
state  officials  will  not  be  extended  by 
implication  to  county  officers.  Von 
Schmidt  v.  Widber  (Cal.,  1893),  32  Pac. 
Rep.  532. 

Tax  Collector. — A  collector  of  taxes 
is  not  a  trustee  of  taxes  collected 
within  the  meaning  of  a  statute  ex- 
empting trustees  from  giving  appeal 
bond.  Crismon  v.  Bingham,  etc.,  R. 
Co.,  3  Utah  249. 


969 


To  Whom  Payable. 


APPEAL   BONDS. 


To  Whom  Payable. 


VII.  To  Whom  Payable. — An  appeal  bond  must  be  made  pay- 
able to  the  person  designated  in  the  statute,  and  where  no  person 
is  designated,  to  the  appellee.*  Where  no  obligee  is  named,  or 
one  is  named  other  than  the  statute  requires,  the  appeal  bond  is 
void,  and  the  appeal  will  be  dismissed  on  motion,*  unless  the 
appellate  court  has  power  to  allow  a  new  bond  to  be  filed.** 


Joinder  of  Unnecessary  Appellants. — 
Where  persons  exempted  by  statute 
appeal,  the  joinder  of  parties  as  ap- 
pellants who  have  no  substantial  in- 
terest in  the  appeal  does  not  make  a 
bond  essential  to  perfect  it.  Ruch  v. 
Biery,  no  Ind.  444. 

Decree  for  Money. — A  statute  requir- 
ing an  appeal  bond  only  where  the 
judgment  or  decree  is  for  the  payment 
of  money  must  be  complied  with  al- 
though different  relief  be  included  in 
the  same  decree.  Flynn  v.  Des  Moines, 
etc.,  R.  Co.,  62  Iowa  521. 

Appeal  by  Ward. — A  statute  requir- 
ing an  appeal  bond  on  appeal  from 
probate  does  not  include  the  appeal 
by  a  ward  from  a  decree  dismissing  a 
petition  for  removal  of  her  guardian. 
Atwood  V.  Warwick,  17  R.  I.  537. 

Appellant  Non  Compos  Mentis. — A 
person  appealing  from  a  decision  ad- 
judging him  non  cotupos  mentis  is  not 
required  to  give  an  appeal  bond,  al- 
though the  statute  makes  no  exemp- 
tion in  his  favor,  since,  if  the  judg- 
ment is  affirmed,  it  will  in  effect  de- 
clare him  to  have  been  incompetent  to 
enter  into  the  bond.  M'Donald  v. 
Morton,  i  Mass.  543. 

Surviving  Partners. — A  surviving 
partner  administering  on  partnership 
effects  has  all  the  rights  and  liabilities 
of  a  general  administrator,  and  is 
exempted  from  giving  an  appeal  bond 
where  a  statute  exempts  the  adminis- 
trator. In  re  Partnership  Estate  of 
Bruening,  etc.,  v.  Oberschelp,  42  Mo. 
278. 

Baising  Question  of  Exemption.  — 
The  proper  mode  of  raising  the  ques- 
tion whether  the  trial  court  erred  in 
requiring  security  for  costs  under  a 
statute  making  exemptions  is  by  man- 
damus to  compel  the  granting  of  the 
appeal  without  bond,  and  not  by  as- 
signment of  error.  Johnson  v.  Ward, 
82  Ala.  487;  Roberts  v.  Taylor,  64  Ala. 

549- 

Discretionary  Power. — Where  a  court 
has  discretionary  power  to  dispense 
with  security  on  appeals  by  executors 
it  is  sufficient  if  the  judgment  is  an- 


swerable out  of  the  assets  of  the  estate. 
It  is  not  required  that  it  should  have 
been  rendered  against  the  executor  in 
his  representative  capacity.  Kirsch  v. 
Derby,  93  Cal.  574. 

1.  Garrett  v.  Shore,  15  R.  I.  538; 
Phelps  V.  Call,  7  Ired.  (N.  Car.)  262; 
Price  V.  Halsed,  3  Mo.  461;  Smith  v. 
Montreil,  26  Mo.  578;  Bigler  v.  Wal- 
ler, 12  Wall.  (U.  S.)  142;  Hill  V.  Chi- 
cago, etc.,  R.  Co.  129  U.  S.  170;  White 
V.  Moerlidge,  7  Ohio  Cir.  Ct.  Rep.  348; 
Johnston  v.  Letson  (Arizona,  1892),  29 
Pac.  Rep.  893;  Reilly  v.  Atchinson 
(Arizona,  1893),  32  Pac.  Rep.  262. 

Infant  Appellee. — Where  the  appellee 
is  an  infant  suing  by  his  next  friend, 
the  appeal  bond  must  be  given  to  him, 
and  the  next  friend  need  not  be  named 
therein.  Cooper  v.  Maclin,  25  Ala. 
299.  "  The  next  friend  is  not,  strictly 
speaking,  a  party  to  the  cause.  The 
infants  sue  by  him,  and  his  name  is 
placed  upon  the  record  in  order  that 
the  court  may  have  some  person  be- 
fore it  who  is  responsible  for  the 
costs  and  conduct  of  the  cause." 
Cooper  V.  Maclin,  25  Ala.  299. 

2.  Reilly  z/.  Atchinson  (Arizona,  1893), 
32  Pac.  Rep.  262;  Johnston  v,  Letson 
(Arizona,  1892),  29  Pac.  Rep.  893;  Gar- 
rett V.  Shore,  15  R.  I.  538;  Phelps  v. 
Call,  7  Ired.  (N.  Car.)  262;  Harper  v. 
Archer,  4  Smed.  &  M.  (Miss.)  99,  43 
Am.  Dec.  472;  Alexander  v.  Smith, 
4  Smed.  &  M.  (Miss.)  258. 

A  Bond  Payable  to  a  Stranger  to  the 
record  is  void  unless  the  statute 
names  him  as  payee.  Garrett  v. 
Shore,  15  R.  I.  538;  Davenport  v. 
Fletcher,  16  How.  (U.  S.)  142;  Smyth 
V.  Strader,  12  How.  (U.  S.)  327. 

3.  Corey  v.  Lugar,  62  Ind.  60;  Big- 
ler V.  Waller,  12  Wall.  (U.  S.)  149; 
The  Dos  Hermanos,  10  Wheat.  (U.  S.) 
306;  Brobst  V.  Brobst,  2  Wall.  (U.  S.) 

97. 

The  court  cannot  without  express 
statutory  authority  supply  the  name 
of  the  appellee  by  construction  where 
the  maker  of  the  bond  has  omitted  it. 
Garrett  v.  Shore,  15  R.  I.  538;  unless 
the  bond  is  made  payable  by  the  stat- 


970 


"20  Whom  Payable. 


APPEAL  BONDS. 


To  Whom  Payable. 


Joint  Obligees.— All  the  parties  to  the  appeal  interested  to  maintain 
the  judgment  should  be  made  joint  obligees.* 


ute  to  an  official  payee.  Nugent  v. 
McCaffrey,  33  La.  Ann.  271;  Schlieder 
V.  Martinez,  38  La.  Ann.  847. 

Payable  to  State. — An  appeal  bond 
payable  to  the  state  and  not  to  the  ap- 
pellee is  void  and  unamendable, 
Price  V.  Halsed,  3  Mo.  461;  or  to  the 
court  instead  of  appellee,  White  v. 
Moerlidge,  7  Ohio  Cir.  Ct.  Rep.  348. 

Where  suit  is  brought  in  the  name  of 
the  state  on  relation  of  a  private  indi- 
vidual it  may  be  made  payable  either 
to  the  relator  or  the  state.  Spalding 
V.  People,  2  How.  (U.  S.)  66. 

In  Tax  Suits  the  appeal  bond  should 
be  made  payable  to  the  municipality, 
where  it  brings  the  suit,  not  to  the 
people  or  for  the  use  of  the  people. 
Nashville  v.  Weiser,  54  111.  245;  Grif- 
fin V.  Belleville,  50  111.  422. 

Assignor. — The  assignor  of  an  as- 
signed judgment  appealed  from  is  still 
the  "adverse  party"  of  the  statute, 
but  the  assignee  may  have  recourse 
thereon.  May  v.  Kellar,  i  Mo.  App. 
381. 

Action  on  Official  Bond. — Where  the 
bond  is  given  to  an  official  instead  of 
to  the  appellee,  the  appellate  court 
cannot,  on  affirmation  of  the  judg- 
ment appealed  from,  render  judgment 
directly  against  the  sureties;  an  in- 
dependent action  should  be  brought 
on  the  bond.     State  v.  Montgomery, 

*1  A.    .A  1 3.       '2.*2.^ 

1.  Bi'glerz-.  Waller,  12  Wall.  (U.  S.) 
142;  Hill  V.  Chicago,  etc.,  R.  Co.,  129 
U.  S.  170;  Zeigler  v.  Hunter,  16  La. 
Ann.  165;  Cotton  v.  Sterling,  19  La. 
Ann.  137;  Michael  v.  Babin,  19  La. 
Ann.  197;  Hickman  v.  Bailey,  9  La. 
Ann.  485;  Bacchus  v.  Moreau,  4  La. 
Ann.  313;  Lebeau  v.  Trudeau,  10  La. 
Ann.  164;  Conery  v.  Webb,  12  La.  Ann. 
282;  Williams  v.  Courtney,  8  La.  Ann. 
63;  Nouret  v.  Armant,  12  La.  Ann,  71; 
Dow  V.  Hardy,  13  La.  Ann.  441;  Ma- 
ples V.  Reed,  15  La.  Ann.  496;  Bronson 
V.  Balch,  19  La.  Ann.  39;  Knox  v.  Du- 
plantier,  20  La.  Ann.  328;  Newson  v. 
Creswell,  10  La.  Ann.  232;  Hamilton 
V.  Phillipi,  II  La.  Ann.  675;  Long  v. 
Barnes,  13  La.  Ann.  392;  Cummings 
V.  Irwin,  14  La.  Ann.  315;  Scrivinerz'. 
Maxey,  6  Martin,  N.  S.  (La.)  317;  Jen- 
kins V.  Bonds,  3  La.  Ann.  339;  Percy 
V.  Millandon,  6  La.  586;  Anderson  v. 
Cade,  ID  La.  269;  Lynch  v.  Brewer,  16 
La.    247;    Brigham    v.    Taylor,   2    La. 

97 


Ann.  906,  ID  La.  Ann.  232;  Dunlap  v. 
Price,  10  La.  Ann.  155,  11  La.  Ann.  409, 
II  La.  Ann.  674;  Beer  v.  Creditors,  12 
La.  Ann.  774,  12  La.  Ann.  71;  Mc- 
Crindell's  Succession,  13  La.  Ann. 
231;  Armstrong  v.  Creditors,  8  La. 
Ann.  367;  Simmons  v.  Creditors,  12 
La.  Ann.  765. 

Who  is  Adverse  Party. — An  adverse 
party  within  the  meaning  of  a  statute 
requiring  an  appeal  bond  to  be  given  to 
such  is  one  having  an  interest  conflict- 
ing with  the  reversal  or  modification 
of  the  decision  appealed  from.  Thomp- 
son V.  Ellsworth,  I  Barb.  Ch.  (N.  Y.) 
624. 

Parties  below  having  no  substantial 
interest  in  maintaining  the  judgment 
need  not  be  made  payees.  Rachel  v. 
Rachel,  11  La.  Ann.  687. 

Separate  Adverse  Parties. — Where 
the  interests  of  adverse  parties  are 
distinct  and  conflicting  a  separate  bond 
should  be  given  to  each.  Thompson 
V.  Ellsworth,  I   Barb.  Ch.  (N.  Y.)  624. 

The  names  of  those  for  whose  use 
the  writ  is  instituted  need  not  be 
named.  Bank  of  Tennessee  v.  Mc- 
Kee,  2  La.  Ann.  461. 

An  appeal  bond  payable  only  to 
some  of  the  appellees  is  substantially 
defective,  and  will  authorize  the  dis- 
missal of  the  appeal.  Chandler  v. 
Lappington,  36  Tex.  272. 

So  where  a  judgment  was  rendered 
in  favor  of  M.  L.  &  Co.,  and  an  appeal 
bond  was  given  to  H.  L.  Co.,  it  was 
held  fatally  defective.  Lynch  v.  Brew- 
er, 16  La.  247. 

But  the  validity  of  an  appeal  is  not 
destroyed  because  the  bond,  besides 
being  given  to  obligees  as  to  whom 
the  suit  was  dismissed  below,  is  also 
given  to  a  party  against  whom  a  de- 
cree was  rendered  below.  Hill  v. 
Chicago,  etc.,  R.  Co.,  129  U.  S.  170. 

Intervenors. — Where  an  appeal  bond 
is  given  by  intervenors  it  must  run 
to  both  plaintiffs  and  defendants. 
Greenwade  v.  Smith,  57  Tex.  195. 

"Appellee." — A  statute  requiring  an 
appeal  bond  to  be  given  to  the  "  appel- 
lee "  intends  all  joint  appellees.  Young 
V.  Russell,  60  Tex.  684;  Brown  v.  Le- 
vine,  6  Port.  (Ala.)  414. 

Sufficient  Eeference. — All  the  joint 
appellees  need  not  be  mentioned  by 
name  "  if  the  appeal  bond  so  refers  to 
them  as  to  make  them  parties  thereto 


On  Separate  Appeals. 


APPEAL   BONDS. 


On  Separate  Appeals. 


VIII.  On  Separate  Appeals.— Where  distinct  appeals  are  taken 
from  separate  judgments  and  orders,  a  separate  obligation,  condi- 
tioned as  the  statute  requires,  must  accompany  each  appeal.* 
Where  separate  decisions  are  consolidated  and  brought  up  on  a 
single  appeal,  one  appeal  bond  is  sufficient.* 


and  identify  them  with  certainty." 
Bacchus  V.  Moreau,  4  La.  Ann.  313; 
Lebeau  v.  Trudeau,  10  La.  Ann.  164; 
Williams  v.  Courtney,  8  La.  Ann.  63; 
Blanc  V.  Cousin,  8  La.  Ann.  71; 
Hickman  v.  Bailey,  9  La.  Ann.  485; 
Smith  V.  Montreil,  26  Mo.  578;  as  a 
bond  payable  to  appellees,  "  et  al," 
Bacchus  V.  Moreau,  4  La.  Ann.  313. 

1.  Sharon  v.  Sharon,  68  Cal.  327; 
Horn  V.  Volcano  Water  Co. ,  18  Cal.  141 ; 
Bornheimer  v.  Baldwin,  38  Cal.  671; 
Berniaud  v.  Beecher,  74  Cal.  617;  Cor- 
coran V.  Desmond,  71  Cal.  100;  Home, 
etc.,  Assoc.  V.  Wilkins,  71  Cal.  626; 
McCormick  v.  Belvin,  96  Cal.  182; 
Cronin  v.  Bear  Creek  Gold  Min.  Co., 
2  Idaho  I146;  Eddy  v.  Van  Ness,  2 
Idaho  93;  Mathison  v.  Leland,  2  Idaho 
712;  Schermerhorn  v.  Anderson,  i 
N.  Y.  430. 

Specific  Reference. — Where  one  un- 
dertaking is  erroneously  given  to  cov€;r 
two  distinct  appeals,  it  will  be  void  as 
to  both  unless  it  can  be  determined 
from  the  context  to  which  of  the  two 
appeals  it  refers.  Mathison  v.  Leland, 
I  Idaho  712;  Eddy  v.  Van  Ness,  2  Idaho 
93;  Cronin  v.  Bear  Creek  Gold  Min. 
Co.,  2  Idaho  1146;  Corcoran  v.  Des- 
mond, 71  Cal.  100;  Home,  etc.,  Assoc. 
V.  Wilkins,  71  Cal.  626;  McCormick  v. 
Belvin,  96  Cal.  182.  And  in  such  a  case 
the  appellant  cannot  be  allowed  to  file 
new  undertakings,  as  this  would  be  in 
effect  to  take  a  new  appeal  after  the 
expiration  of  the  statutory  period. 
Hastings  v.  Halleck,  10  Cal.  31; 
Home,  etc.,  Assoc,  v.  Wilkins,  71  Cal. 
626. 

Undertaking. — But  several  undertak- 
ings may  be  embraced  in  the  same  in- 
strument, so  as  to  cover  distinct  ap- 
peals in  the  same  case  by  the  same 
parties.     Sharon    v.    Sharon,   68    Cal. 

327- 

Judgment  for  Distinct  Sums. — One 
undertaking  or  appeal  bond  in  the 
statutory  amount  is  sufficient  to  per- 
fect an  appeal  from  a  judgment,  al- 
though two  distinct  sums  are  adjudged 
due  to  different  defendants  therein. 
Smith  V.  Lynes,  2  N.  Y.  569. 

Distinct  Orders.  —  One  undertaking 
will  not  suffice  to  perfect  an  appeal  from 

97 


two  different  orders,  although  one  or- 
der be  unappealable.  The  undertak- 
ing in  such  case  may  be  amended  on 
terms  by  striking  out  so  much  as  re- 
lates to  the  non-appealable  order. 
Schermerhorn  v.  Anderson,  i  N.  Y. 
430;  Corcoran  v.  Desmond,  71  Cal. 
100. 

An  appeal  bond  given  by  one  party 
appellant  does  not  bind  the  obligors  in 
appeals  taken  by  other  parties  in  the 
same  case.  Sturgis  v.  Rogers,  26  Md. 
I. 

2.  Clark's  Succession,  50  La.  Ann. 
801;  Elder  v.  New  Orleans,  31  La, 
Ann.  500;  Edgecomb  v.  His  Creditors, 
19  Nev.  151;  Cooper  v.  Maddan,  6  Ala. 
432;  Gregory!'.  Dodge,  3  Paige  (N.Y.) 
90. 

Where  One  Obligation  is  Sufficient. — 
In  Edgecomb  v.  His  Creditors,  19 
Nev.  151,  one  undertaking  was  held 
sufficient  on  one  appeal  from  several 
orders,  all  relating  to  the  question 
whether  certain  property  was  exempt 
from  execution. 

And  where  one  order  substantially 
embraced  a  prior  order  made  in  the 
same  cause  and  entered  on  the  same 
day,  one  appeal  bond  was  held  suf- 
ficient. Gregory  v.  Dodge,  3  Paige 
(N.  Y.)90. 

And  where  several  judgments  were 
rendered  against  the  same  parties, 
and  they  were  all  removed  by  the 
same  proceeding,  held,  that  the  trial 
court  might  direct  one  appeal  bond  to 
cover  all.  Cooper  v.  Maddan,  6  Ala. 
432. 

Where  a  judgment  is  rendered 
against  the  surety  and  principal  on  an 
injunction  bond  ordering  them  to  pay 
a  certain  sum  in  solido,  they  may  unite 
and  give  one  appeal  bond.  Elder  v. 
New  Orleans,  31  La.  Ann.  500. 

California. — In  California  one  under- 
taking may  be  given  to  cover  an  ap- 
peal taken  from  a  judgment  and  an 
order  denying  a  new  trial  in  the  same 
cause  embraced  in  the  same  transcript 
and  notice  of  appeal.  But  the  under- 
taking must  expressly  recite  that  the 
appeal  is  taken  from  the  order  as  well 
as  from  the  judgment,  or  the  appeal 
from  the  order  will  be  dismissed,  un- 


Execution  of  Bond. 


APPEAL   BONDS. 


Sealing — Signature 


On  Second  Appeal. — Where  the  first  appeal  is  di'smi.ssed  or  falls  for 
want  of  prosecution  the  appeal  bond  falls  with  it,i  and  on  a  sec- 
ond appeal  a  new  bond  must  be  given  to  perfect  it.*-* 

IX.  Execution  of  Bond— 1.  Sealing.— Where  an  appeal  bond  is 
required  the  instrument  given  must  have  the  essential  requisites 
of  a  bond.^  Where  bonds  are  required  to  be  sealed,  and  it  is 
without  a  seal  or  its  legal  equivalent,  it  is  defective  as  a  statutory 
obligation.^ 

2.  Signature. — The  obligation  of  the  appellant  to  perform  the 
judgment  rendered  on  appeal  results  from  the  judgment  itself,*  and 
an  appeal  bond  is  accordingly  valid  without  his  signature,*  unless 


less  the  respondent  has  waived  the 
defect  or  is  estopped  from  objecting. 
Forni  v.  Yoell,  95  Cal.  442;  People  v. 
Center,  61  Cal.  191;  Page  v.  Page,  77 
Cal.  83;  Corcoran  v.  Desmond,  71  Cal. 
100;  Home,  etc.,  Assoc,  v.  Wilkins,  71 
Cal.  626;  Duffy  v.  Greenebaum,  72  Cal. 
157;  Berniaud  v.  Beecher,  74  Cal.  617; 
Wood  V.  Pendola,  77  Cal.  82;  Schurtz 
V.  Romer,  81  Cal.  245;  Crew  v.  Diller, 
86  Cal.  555;  Pacific  Paving  Co.  v.  Bol- 
ton, 89  Cal.  155;  Sharon  v.  Sharon,  67 
Cal.  185;  Williams  v.  Dennison,  86  Cal. 
430;  Chester  v.  Bakerlield  Town  Hall 
Assoc,  64  Cal.  42;  Webb  v.  Trescony, 
76  Cal.  621;  Lee  Chenk  v.  Quan  Wo 
Chong,  81  Cal.  224. 

1.  Lavigne  v.  May,  2  Martin,  N.  S. 
(La.)628;  Kelsey  z-.  Campbell,  38  Barb. 
(N.  Y.)  238. 

2.  Lavigne  v.  May,  2  Martin,  N.  S. 
(La.)628;  Kelsevz'.  Campbell,  38  Barb. 
(N.  Y.)  238. 

3.  State  V.  Thompson,  49  Mo.  189. 

4.  Corbin  v.  Laswell,  48  Mo.  App. 
626;  State  V.  Thompson,  49  Mo.  189: 
St.  Louis  Dairy  Co.  v.  Sauer,  16  Mo. 
App.  4;  State  V.  Thompson,  49  Mo. 
189;  Cuddelback  v.  Parks,  2  Greene 
(Iowa)  148. 

Becognizance  and  Undertaking. — Seal- 
ing is  not  essential  to  a  recognizance, 
Cuddelback  v.  Parks,  2  Greene  (Iowa) 
148;  or  to  an  undertaking,  Fisher  v. 
Trevor,  7  Cine.  L.  Bull.  (Ohio)  322. 

Texas. — In  Texas  no  seal  or  scroll  is 
required  to  validate  an  appeal  bond, 
as  its  essentials  are  referred  to  the 
civil  law  in  force  in  Texas  prior  to  its 
statehood.  Boney  v.  Waterhouse,  35 
Tex.  180;  Foster  v.  Champlin,  29  Tex. 
22;  Russell  V.  McCampbell,  27  Tex.  31. 

6.  Richardson  v.  Terrel,  9  Martin 
(La.)  34. 

6.  North  American  Coal  Co.  v. 
Dyatt,  4  Paige  (N.  Y.)  274;  Florida 
Orange  Hedge  Fence  Co.  v,  Branham, 


27  Fla.  526;  Anonymous,  Hard.  (Ky.) 
156;  Harrison  v.  Bank  of  Ky.,  3  J.  J. 
Marsh.  (Ky.)  375;  Shelton  v.  Wade,  4 
Tex.  148;  Lindsay  v.  Price,  33  Tex. 
280;  Thorn  7/.  Savage,  i  Blackf.  (Ind.) 
51;  Richardson  z/.  Terrel,  9  Martin  (La.) 
34;  Doane  v.  Farrow,  10  Martin  (La.) 
74;  Mon  V.  Gariner,  6  La.  324;  Wells 
V.  Lamothe,  10  La.  410;  Fisk  v.  Friend, 
3  Rob.  (La.)  264;  Marshall  v.  More- 
house, 14  La.  Ann.  701;  Williams  v. 
Hood,  II  La.  Ann.  113;  Vallance  v. 
Sawyer,  4  Me.  62;  Walker  r/.Williams, 
88  N.  Car.  7;  McMinn  v.  Patton,  92  N. 
Car.  371;  Drouilhat  v.  Rawner,  13  Ore- 
gon 493;  Geller  v.  Puchta,  i  Ohio  Cir. 
Ct.  Rep.  30;  Johnson  v.  Johnson,  31 
Ohio  St.  131;  Coil  V.  Davis,  Wright 
(Ohio)  164;  Pasley  v.  McConnell,  38 
La.  Ann.  470;  Clark  v.  Strong,  14  Neb. 
229;  Eaton  V.  Nash  (Tex.  App. ,1890),  16 
S.  W.  Rep.  788;  Railsbackz/.  Greve,  58 
Ind.  72;  Hinklez/.  Holmes.  85  Ind.  405; 
Keene  v.  Deardon,  8  East  298;  Pettee 
V.  Flewellen,  2  Ga.  237;  Bellinger  v. 
Gardiner,  12  How.  Pr.  (N.  Y.  Super. 
Ct.)  381;  Shaw  V.  Tobias,  3  N.  Y.  188; 
Thompson  v.  Blanchard,  3  N.  Y.  335; 
Curtis  V.  Richards,  9 Cal.  33;  Gregory 
V.  Levy,  12  Barb.  (N.  Y.)  612. 

Massachusetts. — In  Massachusetts  by 
statute  an  appeal  bond  executed  by 
one  other  than  a  party  is  sufficient  if 
good  reason  is  shown  why  it  is  so  exe- 
cuted and  it  is  duly  approved.  Welles- 
ley  V.  Washburn,  156  Mass.  359. 

Undertaking. — An  undertaking  is  an 
original  and  independent  contract  on 
the  part  of  the  sureties  to  which  the 
signature  of  the  principal  is  not  essen- 
tial. Sacramento  v.  Dunlap,  14  Cal. 
423;  Curtis  V.  Richards,  9  Cal.  38; 
Tissot  V.  Darling,  9  Cal.  278. 

It  follows  that  if  an  appeal  bond  is 
executed  on  behalf  of  all  the  joint 
appellants  by  a  portion  of  them,  it  is 
good  when  properly  executed  by  sure- 


973 


Ezecntion  of  Bond. 


APPEAL   BONDS. 


Signature. 


the  statute  expressly  requires  "execution  by"  the  appellant.* 

Joint  Appellants. — Where  the  bond  must  be  executed  by  the  appel- 
lant,  all  the  joint  appellants  having  an  appealable  interest  must 
sign.'-* 

Signature  of  Sureties. — The  bond  must  be  properly  signed  and  exe- 
cuted by  the  sureties,  or  it  is  void.^  It  is  not  sufficient  that  their 
names  appear  in  the  body  of  the  bond  without  their  signature."* 
But  where  they  sign  with  the  intent  of  assuming  suretyship,  the 
validity  of  the  bond  is  not  affected  by  the  circumstance  that  their 
names  do  not  appear  in  the  body.' 


ties.  Warner  v.  Whittaker,  5  Mich. 
241;  Deslonde  v.  Carter,  28  Ala.  541; 
Savage  v.  Walsh,  24  Ala.  293;  Florida 
Orange  Hedge  Fence  Co.  v.  Bran- 
ham,  27  Fla.  526. 

1.  Matter  of  King's  Will,  2  Edw. 
Ch.  (N.  Y.)  428;  Ex  p.  Brooks,  7  Cow. 
(N.  Y.)428;  Curtis  z/.  Richards,  9  Cal. 
33;  Scarborough  v.  State  (Tex.  Crim. 
App. ,  1892),  20  S.W.  Rep.  384;  Dahl  v. 
Tibbats,  5  Wash.  259;  Nichols  v.  St. 
Louis  County, iMo. 357;  State z'. Austin, 
35  Minn.  51;  Bean  v.  Parker,  17  Mass. 
591;  Wood  V.  Washburn,  2  Pick. 
(Mass.)  24;  Russell  v.  Annable,  109 
Mass.  72;  Bunn  v.  Jetmore,  70  Mo. 
228;  Hall  V.  Parker,  37  Mich.  570,  26 
Am.  Rep.  540;  Richardson  v.  Craig 
I  Duer  (N.  Y.)  666;  Republic  of 
Mexico  V.  De  Arrangois,  11  How. 
Pr.  (N.  Y.  Super.  Ct.)  6;  Newton 
V.  Haggerman,  i  Browne  (Pa.) 
95;  Day  V.  Pickett,  4  Munf.  (Va.)  4; 
Rootes  V.  HoUiday,  4  Munf.  (Va.)  323; 
Hardaway  v.  Rider,  i  Smed.  &  M. 
(Miss.)  657. 

In  such  cases  it  is  held  that  the  lia- 
bility of  the  sureties  rests  upon  the 
consideration  existing  between  the 
principal  and  the  obligee,  and  that 
the  principal  must  sign  in  order  that 
the  consideration  may  appear  on  the 
face  of  the  instrument.  Ex  p.  Brooks, 
7  Cow.  (N.  Y.)428. 

By  Married  Woman. — Where  a  mar- 
ried woman  takes  an  appeal  from  a 
judgment  rendered  against  her  and 
her  husband,  she  may  execute  the 
appeal  bond  in  her  own  name  without 
joining  her  husband,  but  it  w^ill  not 
vitiate  the  bond  if  he  joins  in  it;  sig- 
nature by  the  husband  alone  is  not 
sufficient.  Childress  v.  Taylor,  33 
Ala.  185;  Wood  V.  Noll,  5  La.  Ann. 
179;  Allen  V.  Landreth,  7  La  Ann.  650; 
Day  V.  Gordon,  9  La.  Ann,  183;  De 
Gruy  V.  Aiken,  43  La  Ann.  798. 

Joint  Appellants. — Where  the  signa- 


ture of  the  appellant  is  not  required, 
signature  by  some  of  the  joint  appel- 
lants does  not  invalidate  the  bond  or 
alter  its  legal  effect.  McClellan  v. 
Pyeatt,  49  Fed.  Rep.  259;  Murrell  v. 
Murrell,  33  La.  Ann.  1233. 

By  Partnership. — Signature  by  a  part- 
nership as  appellant  instead  of  by  the 
individual  members  of  the  firm  is  a 
fatal  defect  unless  all  proceedings  were 
brought  in  that  name  without  objec- 
tion. Burchard  v.  Covins,  77  Tex. 
365;    Hedger   v.   Armistead,   60   Tex. 

277- 

2.  Hileman  v.  Beale,  115  111.  355; 
Carson  v.  Merle,  4  111.  168;  Ryder  v. 
Stevenson,  4  111.  539;  Watson  v.  Thrall, 
8  111.  69;  Johnson  v.  Barber,  9  111.  1; 
Frank  v.  Thomas,  35  111.  App.  547  ; 
Andre  v.  Jones,  i  Colo.  489;  Cody  v. 
Filley,  4  Colo.  342;  Gordon  v.  Robert- 
son, 26  Ga.  410;  Singler  v.  Strawn,  36 
111.  App.  563. 

In  Colorado  it  is  held  that  an  appeal 
bond  executed  only  by  a  portion  of  the 
joint  appellants  is  not  amendable. 
Andre  v.  Jones,  i  Colo.  489. 

In  United  States  Practice  an  appeal 
bond  signed  by  only  a  portion  of  the 
joint  appellants  is  good  where  duly 
approved  by  the  trial  judge.  Brockett 
V.  Brockett,  2  How.  (U.  S.)  238;  Wash- 
ington, etc.,  R.  Co.  V.  Bradley,  7 
Wall.  (U.  S.)  578;  U.  S.  V.  Tilden,  10 
Ben.  (U.  S.)  12;  Rutherford  v.  Penn- 
sylvania Mut.  L.  Ins.  Co.,  I  McCrary 
(U.  S.)  128. 

The  Objection  may  be  Waived  by  the 
appellee,  as  where  no  motion  to  dis- 
miss the  appeal  on  that  ground  is  sea- 
sonably made.  Frank  v.  Thomas,  35 
111.  App.  547. 

3.  Ford  V.   Albright,  31  Ohio  St.  33. 

4.  Ford  V.   Albright,  31  Ohio  St.  33. 
6.   Briant   v.    Hebert,    30  La.   Ann. 

1129;  Union  Bethel  M.  E.  Church  v. 
Sheriff,  33  La.  Ann.  1461;  Coyle  v, 
Creevy,    34  La.    Ann.   539;  Vignie   v. 


974 


Execntion  of  Bond. 


APPEAL   BONDS. 


Signature. 


Place  of  Signature. — The  place  where  the  obh'gors  sign  is  imma- 
terial if  the  character  in  which  they  sign,  and  an  intention  to  au- 
thorize the  instrument,  are  apparent.^ 

On  Approval. — Sureties  are  not  required  to  sign  an  appeal  bond 
in  the  presence  of  the  ofificial  designated  by  statute  to  approve  it;* 
it  is  sufficient  if  the  bond  be  presented  to  him  properly  signed.' 
But  where  he  deems  proper  he  may  require  the  genuineness  of  the 
signatures  to  be  proved."* 

Execution  in  Blank. — An  appeal  bond  may  be  executed  in  blank,* 
and  the  filling  up  of  such  blanks  pursuant  to  an  express  or  im- 
plied authority  is  an  immaterial  alteration,®  and  is  binding  on 
the  sureties.' 


Brady,  35  La.  Ann.  560;  Kendall  v. 
Gleason,  152  Mass.  457;  Danker  v.  No- 
wood,  119  Mass.  146;  Ahrend  v.  Odi- 
orne,  125  Mass.  50;  Guez  v.  Dupuis, 
152  Mass.  454;  Cooke  v.  Crawford,  i 
Tex.  9;  Baldridge  v.  Penland,  68  Tex. 
441;  Brown  v.  Jessup,  19  Oregon,  288; 
Dore  V.  Covey,  13  Cal.  502;  Exp. 
Fulton,  7  Cow.  (N.  Y.)  484;  Scott  v. 
Whipple,  5  Me.  336. 

1.  Baldridge  v.  Penland,  68  Tex. 
441;  Taylor  z/.  State,  16  Tex.  App.  515; 
Alexander  v.  Boyle,  20  Tex.  560;  Ful- 
shear  r*.  Randon,  18  Tex.  275;  Prince 
V.  Thompson,  21  Tex.  480;  Gage 
County  V.  Fulton,  16  Neb.  5. 

Signature  Above  Condition. — Conse- 
quently the  signature  of  the  obligors 
need  not  be  below  the  condition  of 
the  bond;  a  signature  beneath  the 
penalty  clause  validates  the  whole 
bond  where  the  intention  to  authorize 
it  is  apparent.  Gage  County  v.  Fulton, 
16  Neb.  6. 

Name  Not  Appearing  in  Bond. — A  per- 
son signing  an  instrument  between 
other  parties,  where  the  law  or  the  in- 
tention of  the  parties  contemplates 
sureties  to  be  given,  will  be  presumed 
to  have  signed  as  such  surety  al- 
though his  name  does  not  appear  in 
the  body  of  the  bond.  Coyle  z'.  Creevy, 
34  La.  Ann.  541. 

2.  State  V.  Clark,  24  Neb.  320. 

3.  State  V.  Clark,  24  Neb.  320. 

4.  State  V.  Clark,  24  Neb.  320. 
Signature    Evidence    of    Appeal. — In 

Mulanphy  v.  Murray,  12  Martin  (La.) 
429,  it  was  held  that  the  signature  of 
the  defendant  at  the  foot  of  an  appeal 
bond  was  evidence  that  he  appealed. 

Signature  by  Mark. — Signature  of  a 
surety  by  a  simple  cross-mark  is  good, 
and  he  is  a  competent  witness  to  prove 
the  signature  to  be  his.  State  v.  Byrd, 
93  N.  Car.  624. 


Record. — It  must  appear  by  the  rec- 
ord that  the  sureties  signed  the  ap- 
peal bond ;  the  bill  of  exceptions  is  not 
sufficient.  Hydraulic  Press  Brick  Co. 
V.  Zeppenfeld,  9  Mo.  App.  595. 

5.  Smith  V.  Crocker,  5  Mass.  537; 
Scott  V.  Whipple,  5  Me.  337;  Carlton 
V.  Bailey,  7  N.  H.  230;  Cooke  v.  Craw- 
ford, I  Tex.  9;  Ex  p.  Fulton,  7  Cow. 
(N.  Y.)  484;  Parker  v.  Bradley,  2  Hill 
(N.  Y.)  584;  Wiley  v.  Moore,  17  S.  &  R. 
(Pa.)  438;  Duncan  v.  Hodges,  4  Mc- 
Cord  (S.  Car.)  239,  15  Am.  Dec.  734; 
Stone  V.  Wilson,  4  McCord  (S.  Car.) 
203;  Bank  of  Commonwealth  z/.  Curry, 
2  Dana  (Ky.)  142. 

6.  Hunt  V.  Adams,  6  Mass.  522; 
Whitsett  V.  Womack,  8  Ala,  466; 
Iredell  v.  Barbee,  9  Ired.  (N.  Car.)  250. 

7.  Smith  V.  Crocker,  5  Mass.  537; 
Hunt  z/.  Adams,  6  Mass.  522;  Granite 
R.  Co.  V.  Bacon,  15  Pick.  (Mass.)  239; 
Humphreys  v.  Crane,  5  Cal.  173;  Bar- 
rett V.  Thorndike,  i  Me.  73;  Hale  v. 
Russ,  I  Me.  334;  Kershow  v.  Cox,  3 
Esp.  24. 

Estoppel. — Where  a  surety  signs  a 
bond  in  blank  he  is  estopped  from 
setting  up  as  a  defense  that  a  different 
bond  was  to  be  made  than  that  filled 
out.     Willis  V.  Rivers,  80  Ga.  556. 

Bevocation.  —  Sureties  may  revoke 
such  authority  before  the  execution  of 
the  bond.  Williams  v.  Hart,  17  Ala. 
107;  Gibbs  V.  Frost,  4  Ala.  729. 

Batification  of  Signature. — Signature 
of  the  surety's  name  does  not  bind 
him,  but  he  may  ratify  such  authority 
expressly  or  impliedly.  Winham  v. 
Crutcher,  10  Lea  (Tenn.)  610;  Coles  z/. 
Anderson,  8  Humph.  (Tenn.)  491. 

Implied  Authority. — Authority  to  fill 
out  the  blanks  may  be  implied  from 
circumstances  as  well  as  from  words, 
on  the  signature  of  the  bond  by  sure- 
ties.    The   request   of    the   appellant 


975 


Execution  of  Bond. 


APPEAL   BONDS. 


Execution  by  Agent. 


3.  Execution  by  Agent. — An  attorney  or  agent  may  execute  an 
appeal  bond  in  the  name  of  his  principal.'  But  he  must  be  au- 
thorized by  a  .special  power  of  attorney  under  .seal  ;*  the  general 
authority  to  prosecute  the  suit  is  not  sufficient.^  The  power  of 
attorney  should  properly  be  filed  with  the  appeal  bond,'*  but 
where  the  record  does  not  show  the  contrary,  it  will  be  presumed 
that  the  agent's  authority  was  shown  on  approval  of  the  bond 
before  the  proper  official.** 


in  the  presence  of  the  clerk  held  to 
imply  authority  in  the  clerk  to  fill  up 
a  blank.     Gibbs  v.  Frost,  4  Ala.  729. 

Batification  by  Silence. — Silence  by  a 
surety  after  knowledge  that  another 
may  be  injured  by  his  failure  to  dis- 
affirm his  signature  may  amount  to 
his  ratification.  Winham  v.  Crutcher, 
10  Lea  (Tenn.)  610. 

Erasure. — Erasure  of  surety's  name 
on  the  appeal  bond  before  the  prin- 
cipal has  signed  invalidates  the  bond. 
Smith  V.  Boykin,  61  Miss.   no. 

Affidavit. — Where  the  affidavit  of 
justification  of  a  surety  attached  to  an 
undertaking   on    appeal    began    thus  : 

" ,    being    duly    sworn,"    but    the 

surety's  name  was  properly  signed 
thereto,  it  was  held  sufficient.  Brown 
V.  Jessup,  19  Oregon  288. 

By  Corporation. — After  a  decree  of 
forfeiture  has  been  rendered  against  a 
corporation,  it  will  be  presumed  that 
the  statute  contemplated  the  continued 
existence  of  such  corporation  for  the 
purpose  of  executing  an  appeal  bond 
on  appeal  against  such  decree.  Texas 
Trunk  R.  Co.  v.  Jackson,  85  Tex.  605; 
Texas  Trunk  R.  Co.  v.  State,  83  Tex. 
i;  East  Line,  etc.,  R.  Co.  v.  State,  75 
Tex.  434. 

Becognizance  on  Appeal  — The  pre- 
vailing rule  is  that  an  appellant  need 
not  personally  enter  into  a  recogni- 
zance on  appeal,  but  that  if  it  be  en- 
tered into  by  his  sureties  or  attorneys 
it  will  be  sufficient.  Vallance  v.  Saw- 
yer, 4  Me.  65;  Goodtitle  v.  Bennington, 
■Barnes  75;  Lushington  v.  Doe,  Barnes 
78;  Barnes  v.  Bulwar,  Carth.  121; 
Keene  t/.  Deardon,  8  East  298;  Dixon 
V.  Dixon,  2  B.  &  P.  443;  Adams  v. 
Robinson,  i  Pick.  (Mass.)  462. 

In  Texas  it  is  held  in  criminal  cases 
that  the  appellant  must  personally 
enter  into  the  recognizance  on  appeal. 
Chaney  v.  State,  23  Tex.  23;  Terrill  v. 
State,  29  Tex.  489. 

When  Executed. — An  appeal  bond  ex- 
ecuted after  the  death  of  the  appellee 
is  void.  Dial  v.  Rector,  12  Tex.  99. 
The  facts  maybe  tried  upon  affidavits 


to  the  appellate  court.     Dial  v.  Rector, 
12  Tex.  99. 

1.  Wood  V.  Wayne  Circuit  Judges, 
48  Mich.  647;  Schneck  v.  Hagar,  24 
Minn.  339;  Schofield  v.  Felt,  10  Colo. 
146;  Western  Union  Tel.  Co.  v.  Gra- 
ham, I  Colo.  183;  Murray  v.  Peckham, 
15  R.  I.  297;  Clark  v.  Courser,  29  N. 
H.  170;  Ex  p.  Holbrook,  5  Cow.  (N. 
Y.)  35- 

By  Corporations. — Execution  of  an  ap- 
peal bond  for  a  corporation  by  an  at- 
torney in  fact  appointed  pursuant  to 
a  resolution  of  the  executive  commit- 
tee is  sufficient.  Western  Union  Tel. 
Co.  V.  Graham,  i  Colo.  183. 

2.  Schofield  v.  Felt,  10  Colo.  146; 
Murray  v.  Peckham,  15  R.  I.  297;  An- 
drews V.  Beane,  15  R.  I.  451. 

In  the  case  of  other  appeal  securi- 
ties the  attorney  must  be  authorized 
by  an  instrument  of  equal  legal  rank 
with  the  security  required.  Schofield 
V.  Felt,  10  Colo.  146. 

Where  the  security  is  executed  with- 
out a  proper  authority  from  the  prin- 
cipal, it  is  void  against  his  objection. 
Andrews  v.  Beane,  15  R.  I.  451.  And 
a  statute  validating  such  a  bond 
without  the  consent  of  the  obligor  is 
unconstitutional  and  void.  Andrews 
V.  Beane,  15  R.  I.  451. 

Agent's  Name. — The  appeal  bond  is 
ineffectual  when  given  in  the  agent's 
own  name.  Savannah,  etc.,  R.  Co.  v, 
Clark,  23  Fla.  308;  or  where  signed 
"A.  B.,  agent  for  C.  D.,  appellant." 
It  should  be  signed  "  C.  D.,  appel- 
lant, by  A.  B.,  his  attorney,  or  agent." 
Savannah,  etc.,  R.  Co.  v.  Clark,  23 
Fla.  308. 

3.  Murray  v.  Peckham,  15  R.  I.  297; 
Clark  V.  Courser,  29  N.  H.  170;  Ex  p. 
Holbrook,  5  Cow.  (N.  Y.)  35. 

Becognizance  on  Appeal. — In  Massa- 
chusetts at  attorney  of  record  is  held 
impliedly  authorized  to  enter  into  a 
recognizance  on  appeal  in  the  name  of 
his  client.  Adams  v.  Robinson,  18 
Mass.  461. 

4.  Schofield  v.  Felt,  10 Colo.  146. 

5.  Carmichael   v.   West   Felician  R. 


976 


Delivery. 


APPEAL   BONDS. 


Contents  and  Sufficiency. 


Subsequent  Eatification. — Where  executed  without  authority  it 
will  be  deemed  ratified  by  a  general  appearance  of  the  principal 
and  a  pr6ceeding  to  hearing  without  objection.* 

X.  Delivery. — An  appeal  bond  is  not  binding  until  delivered  to 
the  appellee,  his  attorney  or  agent  ;*  a  delivery  to  the  clerk  of  the 
court  is  not  sufficient.' 

XL  Contents  and  Sufficiency — 1.  Amount. — statutory  Directions 
as  to  the  amount  in  which  the  appeal  bond  shall  be  given  are 
mandatory.*    Where  given  in  a  larger  amount  than  the  statute  re- 


Co.,  2  How.  (Miss.)  817;  Robertson  v. 
Johnson,  40  Miss.  500;  Sullivan  v. 
Lowder,  11  Me.  426;  Illinois  Cent.  R. 
Co.  V.  Johnson,  40  111.  35;  Union  Gold 
Min.  Co.  V.  Bank,  2  Colo.  227;  Delisle 
V.  Gaines,  4  Martin  (La.)  671;  Single- 
ton V.  Smith,  4  La.  432;  Poydras  v. 
Patin,  5  La.  128;  Jackson  v.  Harsly, 
27  Fla.  205. 

General  Presumption. — On  appeal,  an 
appeal  bond  will  be  presumed  to  have 
been  executed  by  the  parties  whose 
names  are  signed  to  it,  and  it  can  be 
attacked  in  the  appellate  court  only 
for  error  manifest  on  its  face.  Car- 
michael  v.  West  Feliciana  R.  Co.,  2 
How.  (Miss.)  817. 

1.  Campbell  v.  Pope,  96  Mo.  468; 
Boorman  v.  Freeman,  12  111.  165;  Bur- 
ton V.  Collin,  3  Mo.  315. 

Or  where  ratified  by  a  subsequent 
ratification  under  seal.  Boorman  v. 
Freeman,  12  111.  165. 

Execution  in  Name  of  Partnership. — 
A  bond  signed  by  one  party  in  the 
name  of  the  partnership  will  bind  all 
the  partners  consenting  to  the  agree- 
ment. Kasson  v.  Brocker,  47  Wis.  79; 
Wilson  V.  Hunter,  14  Wis.  683;  Water- 
man V.  Button,  6  Wis.  265;  Cady  v. 
Shepherd,  ii  Pick.  (Mass.)  405;  Gram 
V.  Seton,  I  Hall  (N.Y.)  262. 

Presumption. — And  where  such  a 
bond  is  approved  by  the  proper  official 
it  will,  in  the  absence  of  proof  to  the 
contrary,  be  presumed  to  be  so  exe- 
cuted as  to  bind  all  the  partners. 
Kasson  v.  Brocker,  47  Wis.  79. 

Where  a  proceeding  is  bi-ought  or  a 
claim  is  presented  in  the  name  of  a 
partnership  without  objection,  an  ap- 
peal bond  may  properly  be  given  in 
the  same  name.  Kasson  v.  Brocker, 
47  Wis.  79. 

2.  Harris  v.  Register,  70  Md.  109; 
Covert  V.  Shirk,  58  Ind.  264;  James 
V.  Woods,  65  Miss.  528. 

8.   Harris  v.  Register,  70  Md.  109. 
As  an  appeal  bond  does  not  take  ef- 


fect until  delivery,  its  signature  and 
sealing  prior  to  the  rendition  of  judg- 
ment appealed  from  do  not  affect  its  va- 
lidity where  it  is  not  delivered  until 
the  judgment  is  rendered.  James  v. 
Woods,  65  Miss.  528;  Chateaugay  Ore, 
etc.,  Co  V.  Blake,  35  Fed.  Rep.  804; 
Covert  V.  Shirk,  58  Ind.  264. 

What  Constitutes  Delivery. — An  ap- 
peal bond  is  delivered  by  filing  the 
original  with  the  clerk  and  serving  a 
copy  on  the  appellee.  Where  service 
is  required  by  statute  it  is  essential  to 
perfect  the  appeal.  Cushman  v.  Mar- 
tine,  13  How.  Pr.  (N.  Y.  Super.  Ct.) 
402;  New  York  Cent.  Ins.  Co.  v.  Na- 
tional  P.  Ins.  Co.,  10  How.  Pr.  (N.  Y. 
Ct.  of  App.)344;  Maxwell  v.  Wessels, 
7  Wis.  103;  Eaton  v.  Manitowoc  Co., 
42  Wis.  317. 

Proof  of  Delivery. — The  execution  of 
an  appeal  bond,  delivery  of  it  to  the 
clerk,  and  filing  it  among  the  papers 
with  an  affidavit,  if  required,  is  a  suf- 
ficient proof  of  delivery.  Dora  v. 
Covey,  13  Cal.  502. 

Voluntary  Bond. — The  delivery  to  and 
filing  with  the  clerk  of  an  appeal  bond 
which  does  not  comply  with  the  stat- 
ute is  not  a  good  delivery  as  a  volun- 
tary bond  to  the  appellee  without  some 
act  expressing  the  appellee's  accept- 
ance and  his  ratification  of  the  clerk 
as  his  agent  to  receive  it.  Reilly  v. 
Atchinson  (Arizona,  1893),  32  Pac. 
Rep.  262. 

Acknowledgment. — Unless  a  statute, 
or  a  judge  in  the  exercise  of  a  discre- 
tionary power,  so  requires,  an  appeal 
bond  need  not  be  acknowledged  and 
proved.  Wilson  v.  Allen,  3  How.  Pr. 
(N.  Y.  Supreme  Ct.)  369. 

4.  Kaiser  v.  Dallas  (Tex.  Crim.  App., 
1893),  21  S.  W.  Rep.  767;  Scott  V.  Mil- 
ton, 26  Fla.  52;  Brown  v.  Keirns,  13 
111.  296 ;  Brennan  v.  Academy  of 
Christian  Brothers,  85  ill.  509;  State 
V.  McKinmore,  8  Oregon  207;  Shannon 
V.  Spencer,  i  Blackf.  (Ind.)  120;  Landa 


I  Encyc.  PI.  &  Pr.— 62. 


977 


Contents  and  Sufficiency.         APPEAL    BONDS. 


Amount. 


quires  the  bond  is  valid,  because  the  appellee  obtains  the  protection 
contemplated  by  the  statute.*     Where  given  in  a  smaller  amount 


V.  Heermann,  85  Tex.  i ;  Talbot  v.  Mor- 
ton, 5  Litt.  (Ky.)  326;  Wickliffe  v.  Clay, 
I  Dana  (Ky.)  589;  Allen  v.  Sudduth,  i 
J.  j.  Marsh.  (Ky.)  15. 

A  court  has  no  power  to  dispense 
with  any  portion  of  the  security  re- 
quired by  statute.  Wice  v.  Commer- 
cial Ins.  Co.,  7  Daly  (N.  Y.)  258. 

Amount  of  Different  Bonds  Cannot  be 
Cumulated. — The  amount  of  one  appeal 
bond  cannot  be  added  to  that  of  an- 
other bond — such  as  an  injunction 
bond  given  at  the  inception  of  the 
suit — to  make  the  required  statutory 
amount.  Grounx  v.  Abat,  7  La.  36; 
State  V.  King,  40  La.  Ann.  841. 

Louisiana. — Where  it  does  not  other- 
wise appear  whether  an'appeal  is  sus- 
pensive or  devolutive,  the  amount  of 
the  bond  determines.  McKown  v. 
Mathes,  19  La.  542;  Grounx  v.  Abat,  7 
La.  36. 

In  Fixed  Sum. — A  bond  in  a  fixed 
sum  where  the  statute  requires  it  to 
be  conditioned  for  payment  of  the 
judgment,  damages,  and  costs  is  illegal 
unless  these  items  are  capable  of  exact 
computation  and  the  amount  of  the 
bond  agrees  therewith.  State  v.  Mc- 
Kinmore,  8  Oregon  207. 

Deposit  of  Money. — Where  statutes 
permit  the  deposit  of  a  sum  of  money 
as  a  substitute  for  an  appeal  bond,  the 
deposit  of  a  sum  less  than  the  amount 
required  in  the  bond  is  irregular,  but 
may  be  amended.  Lane  v.  Humbert 
(C.  PI.),  9  N.  Y.  Supp.  744. 

Certificate  of  Deposit.— A  certificate  of 
deposit  may  be  accepted  by  the  clerk 
in  place  of  cash  where  a  deposit  is 
permitted  as  security.  Alt  v.  Cali- 
fornia Fig  Syrup  Co.,  18  Nev.  423. 

The  Cash  Deposited  in  the  inferior  ap- 
pellate court  must  remain  there  until 
the  final  determination  of  the  appeal. 
Parsons  v.  Travis,  2  Duer  (N.  Y.)659; 
Mclntyre  v.  Strong,  48  N.  Y.  Super. 
Ct.  299. 

It  is  subject  only  to  the  decision  of 
the  appeal,  and  upon  reversal  of  the 
judgment  the  fund  is  released  from 
liens  except  those  created  by  judgment 
or  assignment.  Jordan  v.  Volkening, 
14  Hun  (N.  Y.)  118. 

Payment  in  Gold. — A  stipulation  in 
the  appeal  bond  that  sureties  will  pay 
in  gold  coin  is  not  a  substantial  varia- 
tion from  the  statute.  State  v.  Cali- 
fornia Min.  Co.,  13  Nev.  203. 


Reduction  of  Amount. — An  appellant 
who  deposits  a  less  amount  than  the 
statute  requires  has  no  standing  in 
the  appellate  court  to  move  for  a  re- 
duction of  the  amount.  Jesup  v.  Car- 
negie, 45  N.  Y.  Super.  Ct.  310. 

He  will  not  be  permitted  to  with- 
draw the  cash  and  to  substitute  an 
undertaking  so  as  to  subject  the  ap- 
pellee to  the  expense  of  investigating 
the  sureties.  Wiebold  v.  Rauer,  95 
Cal.  418. 

In  Suits  Affecting  Real  Property. — Ap- 
peal bonds  given  generally  to  cover 
costs  and  to  perform  the  judgment  do 
not  embrace  mesne  profits  in  an  action 
affecting  real  property  unless  the  stat- 
ute expressly  so  provides.  Opp  v. 
Ten  Eyck,  99  Ind.  345;  Hays  v.  Wil- 
stach,  loi  Ind.  100;  Shenk  v.  Shaeffer, 
8  Lane.  L.  Rev.  (Pa.)  49.  It  is  other- 
wise if  it  includes  damages  sustained 
by  reason  of  the  appeal.  Cahall  v. 
Citizens'  Mut.   Bldg.   Assoc,   74  Ala. 

539- 

Unsecured  Judgment.  —  Where  the 
amount  may  be  fixed  by  the  judge  or 
must  be  given  to  secure  the  amount 
of  the  decree,  it  must  be  for  the  entire 
amount  of  the  unsecured  judgment 
rendered.  Richardson  v.  Richardson, 
82  Mich.  307;  Catlett  v.  Brodie,  9 
Wheat.  (U.  S.)  553;  Roberts  v.  Cooper, 
19  How.  (U.  S.)  373;  Providence  Rub- 
ber Co.  V.  Goodyear,  6  Wall.  (U.  S.) 
153  ;  French  v.  Shoemaker,  12  Wall. 
(U.  S.)  86;  Jerome  v.  McCarter,  21 
Wall.  (U.  S.)  17;  Exp.  French,  100  U. 
S.  i;  Wayne  County  v.  Kennicott,  103 
U.  S.  554;  Kountze  v.  Opiaha  Hotel 
Co.,  107  U.  S.  381. 

In  Michigan  it  is  held  that,  where 
the  judgment  or  decree  is  secured 
wholly  or  partially  by  a  mortgage  or 
by  a  fund  in  court,  the  amount  of  the 
appeal  bond  need  in  the  one  case  be 
only  for  damages  and  costs,  and  in 
the  other  only  for  the  unsecured 
amount  plus  damages  and  costs. 
Richardson  v.  Richardson,  82  Mich. 
307;  Michie  v.  Ellair,  60  Mich.  73; 
Kennedy  v.  Nims,  52  Mich.  153;  Pros- 
ser  V.  Whitney,  46  Mich.  407;  Daly  v. 
Litchfield,  11  Mich.  497;  Kephart  v. 
Farmers',  etc.,  Bank,  4  Mich.  602. 

1.  Larger  Amount  than  Required. — 
The  general  rule  is  that  the  appellee 
cannot  object  on  the  ground  that  the 
bond  is  for  a  larger  amount  than  the 


978 


Contents  and  Sufficiency.         APPEAL    BONDS. 


Amount. 


he  is  entitled  to  a  dismissal  of  the  appeal  unless  the  bond  is  prop- 
erly amended.^ 

Amount  of  Judgment. — Where  the  amount  for  which  judgment  was 
rendered  determines  the  amount  of  the  appeal  bond,  interest  on 
the  original  claim  up  to  the  time  of  the  rendition  of  the  judgment 
below  must  be  included  as  a  part  thereof.* 

Costs.— And  where  the  judgment  to  be  rendered  on  appeal  can 
in  no  event  be  for  more  than  costs,  a  bond  in  that  amount  is 
ordinarily  sufficient  unless  the  statute  fixes  a  sum  named.* 


statute  requires.  Davis  v.  Curtis,  3 
Martin,  N.  S.  (La.)  142;  Levesque  v. 
Anderson,  6  Mar:in,  N.  S.  (La.)  294; 
Dore  V.  Covey,  13  Cal.  509;  Ives  v. 
Finch,  22  Conn.  loi;  Clinton  v.  Phil- 
lips, 7  T.  B.  Mon.  (Ky.)  119. 

In  Ohio  the  contrary  has  been  held. 
Coil  V.  Davis,  Wright  (Ohio)  164  ; 
Franklin  Bank  v.  Bartlett,  Wright 
(Ohio)  741;  Pray  v.  Oliver,  5  Ohio  326. 
1.  Amount  Less  than  Required. — Smith 
V.  Vanhille,  10  La.  252;  Duperron  v. 
Van  Wickle,  l  Rob.  (La.)  324  ;  Brown 
V.  Keirns,  13  111.  296 ;  Brennan  v. 
Academy  of  Christian  Brothers,  85  111. 
509;  Shannon  v.  Spencer,  i  Blackf. 
(Ind.)  120. 

Paying  Money  into  Court. — The  ap- 
pellant cannot  remedy  his  bond  by  the 
voluntary  deposit  with  the  clerk  of 
the  amount  required  to  complete  the 
bond.     Smith  v.  Vanhille,  10  La.  252. 

Description  of  Amount. — A  bond  de- 
scribing a  judgment  as  for  principal, 

interest,  and  "costs"  does  not  vary 
substantially    from    a    judgment    for 

principal,    interest,    and     "attorney's 

fees,"  where  the  sums  are  identical. 

Landa  v.  Heermann,  85  Tex.  i. 

2.  Paland  z/rChicagO,  etc.,  R.  Co.,  42 

La.  Ann.  293;  Ross  v.  Pargoud,  2  La. 

85;  Brown  v.  Brown,  9  La.  Ann.  310; 

Jorda  V.  Judge,  29  La.  Ann.  776. 

But  not  interest  accruing  since  the 

rendition  of  the  judgment.     Paland  v. 

Chicago,  etc.,  R.  Co.,  42  La.  Ann.  290. 
Costs. — And    in    Louisiana   costs    as 

taxed  are  not  included  in  the  "  amount 

of   judgment."     Ross   v.    Pargoud,    2 

La.  86. 

A   bond   in   double   the  amount   of 

costs  is  sufficient  to  comply  with  the 

statute  requiring  it  to  be  in  double  the 

amount  of  judgment  and  costs,  where 

the  judgment   rendered  is  for  costs. 

Ross  V.  Williams,  78  Tex.  371;  Owens 

V.    Levy,    i    Tex.    App.   Civ.    Cas.    § 

409. 

Damages. — Where   a    percentage    is 

added  to  the  judgment  as  "  damages," 


the  appeal  bond  must  provide  for  the 
judgment  plus  the  "damages"  so 
given.  Roman  v.  Peters,  i  Rob.  (La.) 
522. 

The  word  "  damages  "  in  an  appeal 
bond  or  undertaking  binding  the  ap- 
pellant to  pay  all  costs  and  damages 
which  may  be  awarded  against  him 
on  appeal  does  v.z'.  include  damages 
already  adjudged  or  which  may  there- 
after be  recovered  against  the  appel- 
lant in  the  court  .from  which  the  ap- 
peal is  taken.  Post  v.  Doremus,  60 
N.  Y.  371. 

3.  Chenault  v.  Chenault,  5  Sneed 
(Tenn.)  252;  Watkins  v.  Clifton  Hill 
Land  Co.,  91  Ttenn.  683;  Gibson  v. 
Widener,  85  Teun.  16;  Younger  v. 
Younger,  90  Tenii.  25;  Kinsey  v.  Stan- 
ton, 6  Baxt.  (Tenfl.)  92;  Staub  v.  Will- 
iams, I  Lea(TennO  123;  Rogers  z/.  New- 
man, 5  Lea  (Tenn.)  255;  Moore  v. 
Alston  (Tex.,  1890),  15  S.  W.  Rep.  47; 
Ross  V.  Williams,  78  Tex.  371;  State  v. 
Lazarus,  36  La.  Ann.  189;  State  v. 
Rightor,  44  La.  Ann.  564;  Hart  v. 
Lazarus,  34  La.  Ann.  1210;  State  v. 
King,  40  La.  Ann.  841;  State  v.  Judge, 
39  La.  Ann.  1042;  Heath  v.  Vaught,  16 
La.  515;  Blanchin  v.  Steamer  Fashion, 
10  La.  Ann.  345;  Edwards'  Succession, 
34  La.  Ann.  216;  Pasley  v.  McConnell, 
38  La.  Ann.  470;  State  v.  Judge,  22 
La.  Ann.  178;  State  v.  Judge,  27  La. 
Ann.  685;  States.  Judge,  30  La.  Ann. 
314;  Goh's  Succession,  37  La.  Ann. 
428. 

"What  Costs  Included. — A  bond  re- 
quired by  statute  to  cover  costs 
generally  includes  costs  of  the  court 
from  which  the  appeal  is  taken,  as 
well  as  those  awarded  on  appeal. 
Prosser  v.  Whitney,  46  Mich.  405;  Ray 
V.  Shehee,  34  La.  Ann.  1106;  unless  ex- 
pressly limited  to  those  arising  in  the 
appellate  court.  Michie  v.  Ellair,  60 
Mich.  73;  Robinson  v.  Masterson,  136 
Mass.  560. 

In  Indiana  costs  are  held  to  include 
those  only  which  are  incurred  by  the 


979 


Contents  and  Sufficiency.         APPEAL    BONDS. 


Amonnt. 


When  Discretionary. — Where  the  statute  requires  a  bond,  but  does 
not  define  the  amount  in  which  it  shall  be  given  or  otherwise  de- 
termine the  liability  of  the  obligors,  it  is  within  the  discretion  of 
the  trial  court  to  fix  the  amount.*     The  discretion  so  exercised  is 


appellee  and  for  which  he  is  liable. 
Goodwin  v.  Smith,  68  Ind.  301. 

In  such  cases  an  appeal  bond  is  suf- 
ficient where  the  penalty  is  large 
enough  to  cover  the  appellate  costs; 
but  the  appellate  court  will  take  judi- 
cial notice  of  their  amount,  and  if  the 
bond  is  insufficient  the  appeal  will  be 
dismissed  on  motion.  Walker  v. 
Hunter,  34  Ala.  204;  Satterwhite  v. 
State,  28  Ala.  65;  Williams  v.  Mc- 
Conico,  27  Ala.  572;  Barnett  v.  State, 
34  Ala.  260. 

In  Texas  it  is  held  that,  where  a  bond 
must  be  given  for  the  amount  of  the 
judgment  and  "costs,"  the  costs  in- 
clude those  only  which  have  accrued 
up  to  the  time  the  appeal  was  taken. 
Costs  subsequently  arising  should  not 
be  included.  Drum  v.  Ft.  Worth,  25 
Tex.  App.  664. 

The  agreement  in  an  appeal  bond  to 
satisfy  and  perform  a  judgment  on  af- 
firmance or  dismissal  embraces  costs 
as  well  as  the  debt  and  interest. 
Stephens  v.  Miller,  80  Ky.  47. 

Attorney's  Fees. — Costs  do  not  in- 
clude attorney's  fees  unless  expressly 
so  required  by  statute  or  so  stated  in 
the  bond.     Noll  v.  Smith,  68  Ind.  188. 

Damages  on  Injunction. — An  appeal 
bond,  given  on  appeal  from  a  decision 
granting  or  dissolving  an  injunction, 
conditioned  to  pay  all  damages  caused 
by  suing  out  the  injunction  does  not 
cover  damages  caused  by  the  continu- 
ance of  the  injunction  by  the  appeal. 
Mix  V.  Singleton,  86  111.   194. 

Several  Appeals. — Where  an  under- 
taking or  appeal  bond  covers  several 
appeals,  its  amount  must  be  propor- 
tionately increased  for  each  appeal. 
People  V.  Center,  9  Pac.  Coast  Law  J. 
(Cal.)  764;  Webb  v.  Trescony,  76  Cal. 
621. 

California. — Where,  as  in  California, 
one  obligation  is  sufficient  to  cover  an 
appeal  from  a  judgment  and  an  order 
awarding  a  new  trial  in  the  same  case, 
the  amount  required  on  a  single  appeal 
is  sufficient.  See  VIII.  On  Separate 
Appeals,  supra. 

One  Bond  Sufficient. — Where  an  appeal 
bond  for  costs  only  is  required  in  each 
case,  one  bond  for  costs  may  cover  an 
appeal  from  a  final  and  an  interlocu- 


tory judgment  in  the  same  case.  Peo- 
ple's Brewing  Co.  v.  Boebinger,  40  La. 
Ann.  277. 

CumnlatiTe  Bond. — On  appeal  from  an 
intermediate  appellate  tribunal  to  the 
Supreme  Court  the  appeal  bond  need 
only  cover  costs,  provided  the  obliga- 
tion of  the  bond  given  in  the  original 
appeal  holds  good.  McCall  v.  Moss, 
100  111.  461;  Ennor  v.  Galena,  etc.,  R. 
Co.,  104  111.  103. 

1.  Koch's  Estate,  4  Rawle  (Pa.)  268; 
Com.  V.  Judges,  10  Pa.  St.  37;  Chew's 
Appeal,  9  W.  &  S.  (Pa.)  151. 

Compliance  Bequired. — Strict  compli- 
ance with  the  order  fixing  the  amount 
is  essential  to  enable  the  appellant  to 
prosecute  an  appeal  against  the  objec- 
tion of  the  appellee,  otherwise  the  ap- 
peal may  be  dismissed  on  his  motion. 
Hawkins  v.  Bell,  6  La.  Ann.  561;  Glaze 
V.  Russell,  5  Martin,  N.  S.  (La.)  237; 
Smith  V.  Vanhille,  10  La.  252;  Rightor 
V.  Phelps,  I  Rob.  (La.)  325;  Slater  v. 
Commercial,  etc..  Bank,  12  Rob.  (La.) 
187;  Ross  V.  Pargoud,  2  La.  86;  Beas- 
ley  V.  Allen,  9  Rob.  (La.)  39;  Emerson  v. 
Fox,  3  La.  181 ;  Lowenstein  v.  Fudicker, 
43  La.  Ann.  886;  State  v.  Meacham,  6 
Ohio  Cir.  Ct.  Rep.  31;  Com.  v.  Wistar, 
142  Pa.  St.  373. 

"Court,"  Not  Judge. — Where  the 
statute  designates  the  court  to  fix  the 
amount  of  the  bond  or  the  time  of  filing, 
it  cannot  be  fixed  by  the  judge.  Gruner 
V.  Moore,  6  Colo.  529;  Wolfley  v.  Leb- 
anon Min.  Co.,  3  Colo.  64. 

By  Clerk  of  Court.— The  clerk  of  the 
court  has  no  power  to  fix  the  penalty 
unless  the  statute  expressly  author- 
izes him.  Ennis's  Estate,  2  Del.  (Pa.) 
523- 

No  Motion  Bequired. — A  motion  by 
either  party  is  not  essential  to  the  ac- 
tion of  the  court  in  fixing  the  amount; 
the  court  must  determine  it  if  none  is 
made.   Hubble  v.  Renick,  i  Ohio  St.  171. 

Prior  Execution. — Where  the  statute 
requires  the  amount  of  an  undertaking 
to  be  fixed  by  a  justice  it  is  not  in- 
validated by  an  execution  prior  to  fixa- 
tion of  the  sum.  Scherer  v.  Hopkins 
(C.  PL),  16  N.  Y.  Supp.  863. 

Louisiana. — In  Louisiana,  when  the 
prayer  and  order  are  for  a  suspensive 
appeal,  and  the  amount  of  the  bond  fur- 


980 


Contents  and  Sofficiency.  APPEAL    BONDS.        Bescription  of  Judgment. 


not  an  arbitrary  but  a  judicial  discretion,*  and  the  amount  fixed 
must  have  reasonable  regard  to  the  peculiar  circumstances  of  each 
case.     The  action  of  the  court  or  judge  is  reviewable,* 

Effect  of  Giving  New  Bond. — Where  a  new  appeal  bond  is  required 
to  be  given  by  the  court  in  a  larger  amount  than  the  orig- 
inal appeal  bond,  the  liability  on  the  original  bond  is  discharged 
thereby.^  The  effect  of  the  new  bond  is  retroactive,  and  em- 
braces all  acts  named  in  the  bond  from  the  time  of  taking  the 
appeal.* 

2.  Description  of  Judgment. — An  appeal  bond  must  sufificiently 
describe  the  judgment  appealed  from  to  identify  it  with  cer- 
tainty.*    Where  it  entirely  fails  to  specify  it  or  does  not  contain 

381;  Scott 


nished  in  compliance  with  the  order  is 
insufficient  to  sustain  it,  or  if  the  bond 
is  not  filedwithin  the  time  required  to 
perfect  such  appeal,  but  is  required 
within  the  year  given  for  a  devolutive 
appeal,  the  appeal  will  be  sustained  as 
the  latter  appeal.  Brode  v.  Fireman's 
Ins.  Co.,  8  Rob.  (La.)  38. 

Order. — The  amount  must  be  stated 
in  the  order  granting  the  appeal,  or  the 
order  is  defective.  Wolfley  v.  Leba- 
non Min.  Co.,  3  Colo.  64;  Duperron  v. 
Van  Wickle,  i  Rob.  (La.)  324;  Surget  v. 
Stanton,  10  La.  Ann.  318;  Rachel  v. 
Rachel,  11  La.  Ann.  687. 

The  court  may  be  compelled  to  fix  the 
amount  by  mandamus  when  it  fails  or 
declines  to  act.  State  v.  Judge,  41  La. 
Ann.  1 140. 

In  Louisiana  a  mandamus  "vi'tX^  not  is- 
sue for  that  purpose  after  the  time  for 
taking  a  suspensive  appeal  has  elapsed. 
State  V.  Judge,  41  La.  Ann.  1140. 

Time  to  Act. — The  court  cannot 
change  or  amend  the  order  after  the 
record  of  the  case  has  been  transferred 
to  the  appellate  court,  as  the  jurisdic- 
tion over  it  is  lost  thereby.  Holbrook 
V,  Holbrook,  32  La.  Ann.  13;  Chew's 
Appeal,  9W.  &  S.  (Pa.)  151;  Com.  v. 
Wistar,  142  Pa.  St.  373. 

1.  Hart  V.  Lazarus,  34  La.  Ann. 
1 2  ID. 

2.  Hart  v.  Lazarus,  34  La.  Ann. 
1210;  Demarest  v.  Beirne,  36  La.  Ann. 
751;  Beard  v.  Russ,  32  La.  Ann.  304; 
Lucas  V.  Fallen,  40  Mo.  App.  551; 
Richardson  v.  Richardson,  82  Mich. 
307;  Catlett  V.  Brodie,  gWheat.  (U.  S.) 
554;  Roberts  v.  Cooper,  19  How.  (U.S.) 
373;  Providence  Rubber  Co.  v.  Good- 
year, 6  Wall.  (U.  S.)  153;  French  v. 
Shoemaker,  12  Wall.  (U.S.)  86;  Jerome 
V.  McCarter,  21  Wall.  (U.  S.)  17;  Ex  p. 
French,  100  U.  S.  i;  Wayne  County  v. 
Kennicott,  103  U.  S.   554;    Kountze   v. 


Omaha  Hotel  Co.,  107  U.  S. 
V.  Milton,  26  Fla.  52. 

The  trial  court  or  judge  should  con- 
sider the  fact  that  the  judgment  is  not 
a  money  judgment,  or  that  the  fund  in 
dispute  is  in  the  custody  of  the  court, 
in  fixing  the  amount.  State  v.  Dillon, 
98  Mo.  90.  And  where  the  bond  given 
affords  ample  security,  a  new  appeal 
bond  for  an  additional  amount  cannot 
be  required.  Reed  v.  Leffingwell,  30 
Mo.  543;  State  v.  Lavalley,  9  Mo.   834. 

Security  Less  than  Amount  of  Decision. 
— Fixing  the  appeal  security  at  a  less 
sum  than  the  whole  amount  of  the  de- 
cision appealed  from  will  generally 
constitute  an  abuse  of  discretion. 
Demarest  v.  Beirne,  36  La.  Ann.  751; 
Catlett  V.  Brodie,  9  Wheat.  (U.  S.) 
554;  Ex  p.  French,  100  U.  S.  i ;  Kountze 
V.  Omaha  Hotel  Co.,  107  U.  S.  381; 
Scott  V.  Milton,  26  Fla.   52. 

The  Order  of  the  Court  is  Amendable, 
and  further  security  may  be  required. 
Demarest  v.  Beirne,  36  La.  Ann.  751. 
Contra,   Brasch    v.    Dick,    14  Ohio  St. 

557- 

3.  Poppers  v.  International  Bank, 
10  111.  App.  531,  affiryned  105  111.  491. 

4.  International  Bank  v.  Poppers, 
105  111.  491. 

5.  Texas. — Williams  v.  Sims  (Tex. 
App.,  1890)  16  S.  W.  Rep.  786;  Warren 
V.  Marberry,  85  Tex.  193;  Edwards  v. 
Allen  (Tex.  App.,  1891),  19  S.  W.  Rep. 
1074;  Herndon  v.  Bremond,  17  Tex. 
334;  Christian  v.  Crawford,  60  Tex.  45; 
O'Hara's  Estate,  60  Tex.  179;  South- 
ern Pac.  R.  Co.  V.  Stanley,  76  Tex.  419; 
Dutton  V.  Norton,  i  Tex.  App.  (Civ. 
Cas.)  §  358;  Nelson  v.  Baird,  i  Tex. 
App.  (Civ.  Cas.)  §  1236;  Mills  v. 
Hackett,  i  Tex.  App.  (Civ.  Cas.)  §846; 
Parsons  v.  Crawford,  2  Tex.  App. 
(Civ.  Cas.)  §669;  Austin  z/.  McMahan; 
2  Tex.  App.  (Civ.   Cas.)  §  429;   Laird 


Contents  and  Sufficiency.         APPEAL    BONDS.        Description  of  Judgment. 


terms  of  identification  sufficient  to  correct  misrecitals  of  dates,  etc., 
it  is  void.*     On  appeal  from  an  amended  judgment  nunc  pro  tunc 


V.  Frieberg,  2  Tex.  App.  (Civ.  Cas.) 
§  III ;  Moses  v.  Clements,  3  Tex.  App. 
(Civ.  Cas.)  §171. . 

Louisiana. — Walker's  Succession,  32 
La.  Ann.  525;  People's  Brewing  Co.  v. 
Boebinger,  40  La.  Ann.  277. 

Kansas. — Chicago,  etc.,  R.  Co.  v. 
Brunson,  43  Kan.  371;  Shuster  v. 
Overturf,  42  Kan.  668;  Kansas  City, 
etc.,  R.  Co.  V.  Hurst,  42  Kan.  462. 

New  York. — Dunseith  v.  Linke,  10 
Daly  (N.  Y.)  363;  Dinkel  v.  Wehle,  13 
Abb.  N.  Cas.  (N.  Y.  C.  PI.)  478;  Mc- 
Elroy  V.  Mumford,  128  N.  Y.  303. 

North  Carolina. — Bowen  v.  Fox,  98 
N.  Car.  396;  Lackey  v.  Pearson,  loi  N. 
Car.  657. 

Florida. — McMichael  v.  Eckman,  26 
Fla.  43;  Savannah,  etc.,  R.  Co.  v. 
Clark,  23  Fla.  308. 

Arizona. — Sutherland  v.  Putnam  (Ar- 
izona, 1890),  24  Pac.  Rep.  320. 

Massachusetts. — Putnam  v.  Beyer, 
140  Mass.  235. 

Wisconsin. — Johnston  v.  King,  83 
Wis.  8. 

Ohio.— QoW  V.  Davis,  Wright  (Ohio) 
164. 

Delaware.  —  Miller  v.  Holding,  5 
Del.  494. 

Statement  of  Amount. — The  amount 
of  the  judgment  appealed  from  need 
not  be  stated  in  the  binding  part  of 
the  undertaking  if  elsewhere  stated  in 
the  appeal  bond.  Dunseith  v.  Linke, 
ID  Daly  (N.  Y.)  363. 

Sufficient  Description.  —  An  appeal 
bond  correctly  describes  the  judgment 
appealed  from  when  it  states  the  style 
and  number  of  the  suit,  the  court 
wherein  rendered,  the  date  of  its  ren- 
dition, the  amount  for  which  it  was 
rendered,  and  against  whom  it  was 
rendered.  Williams  v.  Sims  (Tex. 
App.,  1890),  16  S.  W.  Rep.  786;  John- 
ston z/.  King,  83  Wis.  8. 

Omission  of  Becital.  —  But  the  omis- 
sion of  any  recital  which  does  not 
destroy  the  identity  of  the  judgment 
is  not  fatal  to  the  validity  of  the  bond, 
because  its  omission  creates  no  vari- 
ance or  repugnance.  Satterwhite  v. 
State,  28  Ala.  65;  Meredith  v.  Richard- 
son, ID  Ala.  828;  People  v.  Orleans,  2 
Wend.  (N.  Y.)  292.  Thus,  while  the 
date  of  a  judgment  should  be  correctly 
described  in  the  appeal  bond  (Shuster 
V.  Overturf,  42  Kan.  670;  Dinkel  v. 
Wehle    13  Abb.  N.  Cas.  (N.  Y.  C.  PI.) 

98 


478;  Lemon  v.  Stephenson,  40  111. 
45;  Dietrich  v.  Rumsey,  40  111.  50), 
yet  the  omission  or  misstatement  of 
the  date  is  not  fatal  to  the  validity 
where  the  judgment  may  be  identified 
with  certainty  from  the  remaining  de- 
scription of  the  bond,  Warren  v. 
Marberry,  85  Tex.  193;  Southern  Pac. 
R.  Co.  V.  Stanley,  76  Tex.  419;  Ed- 
wards V.  Allen  (Tex.  App.,  1891),  17  S. 
W.  Rep.  1074;  Forbes  v.  Porter,  23  Fla. 
47;  Dinkel  v.  Wehle,  13  Abb.  N.  Cas. 
(N.  Y.  C.  PI.)  478;  Swasey  v.  Adair, 
83  Cal.  136;  or  that  the  amount  for 
which  the  judgment  is  rendered  is 
omitted,  or  a  portion  of  the  parties 
thereto  omitted  in  the  description, 
Witten  V.  Caspary  (Tex.,  1890),  15  S. 
W.  Rep.  47;  Warren  v.  Marberry,  iSs 
Tex.  193;  Christian  v.  Crawford,  60 
Tex.  45;  Herndon  z*.  Bremond,  17  Tex. 
334.  In  other  cases  it  is  held  that  a 
description  in  the  appeal  bond  of  the 
judgment  as  rendered  against  a  por- 
tion only  of  the  appellees  is  fatally 
defective.  Pittman  v.  Myrick,  16  Fla. 
403;  Satterwhite  v.  State,  28  Ala.  65; 
Dumas  v.  Hunter,  28  Ala.  688;  Mc- 
Garrah  v.  Burney,  4  Tex.  287;  Willen- 
berg  V.  Murphy,  40  111.  46.  Where  a 
judgment  described  in  the  appeal  bond 
as  for  S2184.40  was  actually  rendered 
for  $24,000,  the  appeal  was  dismissed. 
Lockhart  v.  Lytle,  36  Tex.  188.  A 
failure  to  recite  in  the  judgment  the 
days  when  respective  sums  mentioned 
in  it  are  required  to  be  paid  may  be 
supplied  by  reference  to  the  record. 
Satterwhite  v.  State,  28  Ala.  65;  Thur- 
man  v.  Blankenship,  etc.,  Co.,  79  Tex. 
171. 

1.  Williams  v.  State,  26  Ala.  85; 
Dumas  v.  Hunter,  28  Ala.  688;  Bur- 
dine  V.  Mustin,  33  Ala.  634;  O'Hara's 
Estate,  60  Tex.  179. 

Description  of  Offense  in  Criminal  Ap- 
peal.— Where  statutes  require  the  re- 
cognizance in  a  criminal  appeal  to  state 
the  offense  of  which  the  prisoner  was 
convicted,  it  must  set  out  all  the  essen- 
tial elements  of  the  crime  unless  it  is 
an  offense  eo  nomine,  when  it  will  be 
sufficient  to  recite  it  by  that  name. 
Johnson  v.  State  (Tex.  Crim.  App., 
1893),  21  S.  W.  Rep.  371;  Morgan  v. 
State  (Tex.  Crim.  App.,  1893),  21  S. 
W.  Rep.  260;  Flemming  v.  State  (Tex. 
Crim.  App.,  1893),  22  S.  W.  Rep.  1038; 
Shackelford  v.  State  (Tex.  Crim.  App.. 


Contents  and  Sufficiency. 


APPEAL  BONDS. 


Condition  of  Bond. 


the  bond  should  recite  the  amended  judgment.* 

Undertaking. — The  judgment  must  be  recited  in  full  in  an  under- 
taking on  appeal  so  that  it  may  appear  that  sureties  have  justi- 
fied in  the  correct  amount.* 

3.  Condition  of  Bond. — The  condition  o^  the  appeal  bond  must 
be  as  broad  as  the  statute,  and  must  include  all  the  essential  stip- 
ulations   required    by   it.*      Where   a    stipulation    in    the  bond 


1893),  22  S.  W.  Rep.  26;  Mullinix  v. 
State  (Tex.  Crim.  App.,  1893),  22  S. 
W.  Rep.  407;  Reed  v.  State  (Tex.  Crim. 
App.,  1893),  22  S.  W.  Rep.  969;  Parker 
V.  State  (Tex  Crim.  App.,  1892),  20S.W. 
Rep.  707;  Garza  v.  State  (Tex.  Crim. 
App.,  1893),  22  S.  W.  Rep.  139;  Dag- 
gett V.  State  (Tex.  Crim.  App.,  1893), 
21  S.  W.  Rep.  360;  Donahoe  v.  State 
(Tex.  Crim.  App.,  1893),  21  S.  W.  Rep. 
372;  Alderete  v.  State  (Tex.  Crim. 
App.,  1893),  22  S.  W.  Rep.  17;  Koritz 
V.  State,  27  Tex.  App.  53;  Witten  v. 
Caspary  (Tex.,  1890),  15  S.  W.  Rep. 
47;  McLaren  v.  State,  3  Tex.  App.  680; 
Killingsworth  v.  State,  7  Tex.  App. 
28;  Waterman  v.  State,  8  Tex.  App. 
671;  Morris  z'.  State,  4  Tex.  App.   554. 

Jurisdictional. — Description  of  the 
essential  elements  of  the  offense  is, 
where  required  by  statute,  jurisdic- 
tional. Johnson  v.  State  (Tex.  Crim. 
App.,  1893),  21  S.  W.  Rep.  371. 

Description  of  Court. — Where  the  stat- 
ute requires  compliance  with  a  form 
prescribed  it  must  be  substantially 
followed;  and  a  misnomer  of  the  court 
to  which  the  appeal  is  taken,  or  failure 
to  name  it  entirely,  is  a  fatal  defect. 
Cummings  v.  State,  31  Tex.  Crim. 
App.  406;  Neubauer  v.  State,  31  Tex. 
Crim.  App.  513;  Kaiser  r/.  Dallas  (Tex. 
Crim.  App.,  1893),  21  S.  W.  Rep.  767; 
Garza  v.  State  (Tex.  Crim.  App., 
1893),  22  S.  W.  Rep.  139;  Douglass  v. 
State  (Tex.  Crim.  App.,  1893),  22  S. 
W.  Rep.  43. 

1.  Dumas  v.  Hunter,  30  Ala.  188. 

2.  Fay  v.  Lynch,  5  Month.  L.  Bull. 
(N.  Y.)  57- 

3.  Texas. — Robinson  v.  Brinson,  20 
Tex.  438;  Little  v.  State,  26  Tex.  no; 
Stroud  V.  State,  33  Tex.  650;  Pridgen 
V.  Walker,  37  Tex.  410;  Figures  v. 
Dunklin,  68  Tex.  644;  Hicks  v.  Oli- 
ver, 71  Tex.  776;  Munzesheimer  v. 
Wickham,  74  Tex.  638;  Southern  Pac. 
R.  Co.  V.  Stanley,  76  Tex.  418. 

Tennessee. — Polk  v.  Plummer,  2 
Humph.  (Tenn.)  500;  Mattock  v.  Bank, 
7  Yerg.  (Tenn.)  95;   Alberton  v.  Mc- 


Gee,  7  Yerg.   (Tenn.)    106;    Jones   v. 
Parsons,  2  Yerg.  (Tenn.)  321. 

Louisiana. — State  v.  Kink,  40  La. 
Ann.  841;  Russ  v.  Creditors,  45  La. 
Ann.  442. 

Other  States.— ^3.\\z.xd.  v.  Noaks,  i 
Ark.  133;  Stephens  v.  People,  13  111. 
131;  Bowie  V.  Hagan,  5  How.  (Miss.) 
13;  Strange  v.  Ellis,  i  Mo.  412;  Lang- 
ley  V.  Warner,  i  N.  Y.  606. 

The  liability  of  the  principal  and 
sureties  on  the  appeal  bond  must  be 
made  dependent  on  all  the  contingen- 
cies named  in  the  statute.  An  omis- 
sion of  any  one  is  a  fatal  defect  on  ob- 
jection. Calhoun's  Succession,  35  La. 
Ann.  363. 

Obligation  Must  Be  Defined. — So  a 
bond  which  does  not  define  the  ob- 
ligation, but  merely  states  that  prin- 
cipal and  sureties  are  "  firmly  bound," 
is  void.  Munzesheimer  v.  Wickham, 
74  Tex.  638. 

Substantial  Compliance. — Where  the 
condition  substantially  complies  with 
the  statute  the  bond  is  valid  although 
its  language  varies  therefrom.  Robin- 
son V.  Brinson,  20  Tex.  438;  Southern 
Pac.  R.  Co.  V.  Stanley,  76  Tex.  418. 

Thus  the  term  "  award  "  used  in  the 
condition  of  a  bond  is  a  sufficient  sub- 
stitute for  the  word  "  judgment." 
Richards  v.  Griffin,  5  Ala.  195. 

Condition. — Where  the  statute  re- 
quires literal  compliance  with  a  pre- 
scribed form,  a  bond  conditioned  more 
onerously  than  the  statute  requires  is 
void.  Scarborough  v.  State  (Tex. 
Crim.  App.,  1892),  20  S.  W.  Rep.  584. 
Or  where  the  condition  varies  in  any 
essential  particular  from  the  statutory 
requirement.  Drinkwine  v.  Eau 
Claire,  83  Wis.  428. 

Illustrations  of  Sufficiency. — An  ap- 
peal bond  required  by  statute  to  se- 
cure damages  and  costs  must  be  con- 
ditioned to  pay  both  or  it  is  invalid  as 
a  statutory  bond.  Langley  v.  Warner, 
I  N.  Y.  606. 

Where  the  condition  of  an  appeal 
bond  was   simply  to  "prosecute    the 


983 


Contents  and  Sufficiency. 


APPEAL  BONDS. 


Condition  of  Bond. 


required    by  the   statute    governing  the  subject  is  omitted,  the 
appeal   may   be   dismissed    for   that    reason    on    motion    of   the 


appeal,"  and  not  to  "prosecute  the  ap- 
peal with  effect,"  it  was  held  void. 
Jones  V.  Parsons,  2  Yerg.  (Tenn.)  321; 
Albertson  v.  M'Gee,  7  Yerg.  (Tenn.) 
106;  Matlock  V.  Bank,  7  Yerg.  (Tenn.) 
95;  Polk  V.  Plummer,  2  Humph. 
(Tenn.)  500;  Figures  v.  Dunklin,  68 
Tex.  645. 

A  bond  conditioned  to  pay  the 
"  judgment  "  rendered  against  the 
appellant  is  void  pro  tanto  on  appeal 
from  an  order  awarding  a  new  trial, 
since  no  amount  will  be  awarded  on 
the  decision  thereon,  and  the  prece- 
dent event  upon  which  the  appellant's 
liability  depends  can  never  occur. 
Post  V.  Dorerrtus,  60  N.  Y.  371. 

A  stipulation  "  to  pay  such  sum  of 
money  as  shall  be  finally  adjudged 
against  the  said  defendants  "  is  not  a 
sufficient  compliance  with  a  statute  re- 
quiring the  obligors  to  bind  them- 
selves to  pay  the  debt  or  damages  and 
costs  in  case  the  judgment  shall  be  af- 
firmed on  appeal.  Ballard  v.  Noaks,  i 
Ark.  133. 

A  condition  that  the  appellant  "will 
pay  all  damages  and  costs  which  may 
be  awarded  against  defendants  on  ap- 
peal," omitting  the  words  "  or  on 
a  dismissal  thereof,"  is  defective,  but 
amendable.  Woodman  v.  Calkins,  12 
Mont.  456,  In  New  York  such  a  bond 
has  been  construed  to  include  dismis- 
sal as  well  as  affirmance.  Staples  v. 
Gokey,  34  Hun  (N.  Y.)  289. 

A  condition  of  an  appeal  bond  bind- 
ing the  obligors  to  pay  costs  only  in 
case  of  affirmance  of  the  judgment  is 
not  a  compliance  with  the  statute  re- 
quiring it  to  secure  the  costs  on  appeal, 
since  such  a  bond  cannot  be  enforced 
for  costs  awarded  on  dismissal.  Hin- 
son  V.  Preslor,  27  Ala.  643. 

A  bond  conditioned  to  "  prosecute 
an  appeal  to  effect  or  pay  "  is  a  suffi- 
cient compliance  with  the  statute  re- 
quiring it  to  be  conditioned  "  to  prose- 
cute an  appeal  to  effect  and  pay." 
Robinson  v.  Brinson,  20  Tex.  438; 
Southern  Pac.  R.  Co.  v.  Stanley,  76 
Tex.  418. 

Construction  of  Conditions. — Where 
the  word  damages  is  used  generally  in 
the  condition  of  an  appeal  bond  condi- 
tioned to  pay  "  intervening  damages 
and  costs  "  it  includes  no  additional 
item  except  interest.  Bartholomew  v. 
Chapin,    10   Met.  (Mass.)  i;   Swan  v. 


Picquet,  4  Pick.  (Mass.)  465 ;  Burgess  v. 
Doble,i49  Mass.  256;  Kountzez/.  Omaha 
Hotel  Co.,  107  U.  S.  378;  McWilliams  v. 
Morgan,  70  111.  62;  Mason  v.  Smith,  11 
Lea  (Tenn.)  67;  Blair  ».  Kilpatrick,  40 
Ind.  312.  It  does  not  include  rent  or 
other  items  of  damage  to  real  estate 
incurred  pending  the  appeal  deciding 
its  ownership.  Kountze  v.  Omaha 
Hotel  Co.,  107  U.  S.  378. 

In  Alabama  it  is  held  that  a  bond 
conditioned  for  the  payment  of  "  all 
costs  and  such  damages  as  appellee 
may  sustain  by  reason  of  the  appeal  " 
includes  value  and  use  of  the  real  es- 
tate pending  an  appeal  from  a  judg- 
ment affecting  the  possession  thereto. 
Cahall  V.  Citizens'  Mut.  Ben.  Assoc, 
74  Ala.  539.  And  where  damages  for 
rents  and  profits  are  recovered  in  the 
suit  in  the  trial  court,  they  may  be 
recovered  in  an  action  on  a  bond  con- 
ditioned for  the  payment  of  the  judg- 
ment and  damages.  Burgess  v.  Do- 
ble,  149  Mass.  256;  Kountze  v.  Omaha 
Hotel  Co.,  107  U.  S.  378. 

In  Davis  v.  Alden,  2  Gray  (Mass.) 
309,  it  was  held  that  a  recognizance 
conditioned  by  law  for  the  payment  of 
"  all  damages  and  loss  which  the  plain- 
tiff may  sustain  by  reason  of  the  with- 
holding of  the  possession  of  the  de- 
manded premises,  and  by  reason  of 
any  injury  done  to  the  premises  dur- 
ing such  withholding,"  made  the  ap- 
pellant liable  for  all  waste,  actual  and 
permissive,  and  for  all  losses  which 
may  have  happened  from  negligence 
and  careless  management  on  the  part 
of  the  tenant. 

When  Costs  Only  Becoverable. — A  con- 
dition to  prosecute  the  appeal  with 
effect  and  pay  all  costs  that  may  be  ad- 
judged against  the  appellant  will  sus- 
tain only  a  recovery  of  costs  upon  dis- 
missal of  the  appeal.  Com.  v.  Wistar, 
142  Pa.  St.  373. 

A  bond  conditioned  to  secure  "all 
costs  "  means  the  costs  of  the  appellee. 
Morris  v.  Morris,  92  N.  Car.  142. 

The  omission  of  the  words  "  pay  to  " 
in  the  obligation  of  an  appeal  bond 
held  not  to  invalidate  it.  Billings  v. 
Roadhouse,  5  Cal.  71. 

Prosecution  with  Effect. — The  words 
"prosecution  with  effect  "  in  the  con- 
dition of  an  appeal  bond  mean  "  with 
success."  Trent  v.  Rhomberg,  66  Tex. 
254;  Robinson  v.  Brinson,  20  Tex.  439; 


984 


Time  for  Filing  Swurity.         APPEAL    BONDS. 


Generally. 


appellee;*  or  he  may  waive  the  defect  and  enforce  the  bond  as 
valid.*  No  court  oi  judge  can  alter  the  conditions  named  in  the 
statute  •?  but  where  a  more  onerous  condition  than  the  statute 
demands  is  embraced  in  the  bond  it  will  be  rejected  as  surplusage, 
and  the  bond  held  valid.* 

XII.  Time    fob    Filing    Sectjkity— 1.   Generally. — The   appeal 
security  must  be  filed  within  the  time  designated  by  the  statute.* 


Bailey  v.  Goodjohn,  64  Tex.  546;  Per- 
reau  v.  Bevan,  5  B.  &  C.  284,  12  E.  C. 
L.  230;  Legate  v.  Marr,  8  Blackf.  (Ind.) 
404;  Karthaus  v.  Owings,  6  Har.  &  J. 
(Md.)  134;  Champomier  v.  Washing- 
ton, 2  La.  Ann.  1013;  Gould  v.  Warner, 
3  Wend.  (N.  Y.)  54;  Marott  v.  Young, 
33  N.  J.  L.  336. 

Contra. — Hobart  v.  Hilliard,  11  Pick. 
(Mass.)  143,  is  to  the  effect  that  filing 
a  transcript  in  the  appellate  tribunal 
is  a  sufficient  compliance  with  such  a 
condition. 

An  appeal  bond  conditioned  only  for 
"due  prosecution  of  appeal"  binds 
sureties  to  pay  appellee  damages  and 
costs.  Evans  v.  Hardwick,  i  J.  J. 
Marsh  (Ky.)  436;  Moore  v.  Gorin, 
2  Litt.  (Ky.)  186. 

Reference  to  Amoont. — Where  an  un- 
dertaking in  its  recitals  states  the 
amount  of  the  judgment  appealed 
from,  and  in  its  binding  part  distinctly 
refers  to  such  judgment,  its  legal  effect 
is  the  same  as  though  the  amount  of 
the  judgment  had  been  inserted  in  the 
binding  part  of  the  undertaking.  Dun- 
seith  V.  Linke,  10  Daly  (N.  Y.)  365. 

Intention  of  Parties. — Parties  will  be 
presumed  to  have  intended  every  pro- 
vision of  the  condition  to  be  valid. 
SheflBer  v.  Nadelhoffer,'i33  111.  555. 

The  inclusion  of  words  implied  by 
law  does  not  affect  its  validity.  Swann 
V.  Home,  54  Miss.  337. 

Judgment.— The  condition  of  an  ap- 
peal bond  to  pay  the  judgment  ren- 
dered means  the  final  judgment.  Roth- 
gerber  v.  Wonderly,  66  111.  390. 

Defenses. — It  is  no  defense  in  a  suit 
on  a  bond  for  breach  of  one  condition 
that  the  other  has  been  performed. 
Trent  v.  Rhomberg,  66  Tex.  254;  Ho- 
bart V.  Hilliard,  11  Pick.  (Mass.)  143. 

1.  Rawle  7/.  Feltus,  33  La.  Ann.  421; 
Calhoun's  Succession,  35  La.  Ann.  363. 

2.  Young  V.  Mason,  8  111.  55;  Trip- 
ler  V.  Gray,  7  Yerg.  (Tenn.)  16;  Nichol 
V.  McCombs,  2  Yerg.  (Tenn.)  83;  Smith 
V.  Erwin,  5  Yerg.  (Tenn.)  296;  Ghol- 
son  V.  Brown,  4  Yerg.  (Tenn.)  496  ; 
Banks  v.  Brown,  4  Yerg.  (Tenn.)  200; 


Mabry  v.  Tarver,  i  Humph.  (Tenn.) 
97;  Morse  z/. .  Hodson,  5  Mass.  314; 
Bowie  V.  Hagan,  5  How.  (Miss.)  13; 
unless  the  statute  expressly  provides 
that  a  variation  shall  avoid  the  bond, 
Morse  v.  Hodson,  5  Mass.  314.  See 
Common-Law  Bond,  XIII,  6,  infra. 

3.  State  V.  King,  40  La.  Ann.  841; 
French  v.  Snell,  37  Me.  100;  Owen  v. 
Daniels,  21  Me.  180 ;  Harrington  v. 
Brown,  7  Pick.  (Mass.)  232. 

4.  Where  the  bond  is  otherwise  in 
conformity  to  the  statute.  Landa  v. 
Heermann,  85  Tex.  i;  Janes  v.  Lang- 
ham,  29  Tex.  413;  Tomlin  v.  Green, 
39  111.  225.  But  see  Scarborough  v. 
State  (Tex.  Crim.  App.,  1892),  20  S.  W. 
Rep.  584,  where  it  was  held  that  if 
the  statute  requires  literal  compliance 
with  a  prescribed  form,  a  bond  con- 
ditioned more  onerously  than  the  stat- 
ute requires  is  void. 

So  the  addition  of  the  requirement 
that  appellant  "  shall  pay  for  use  and 
detention  of  the  property"  involved 
to  the  statutory  requirement  of  "  costs 
and  damages  "  was  held  void.  Kountze 
V.  Omaha  Hotel  Co.,  107  U.  S.  378. 

6.  California. — Wood  v.  Pendola,  77 
Cal.  82;  Coker  v.  Colusa  County,  58 
Cal.  178;  Wood  V.  Monterey  County, 
67  Cal.  115;  Berniaud  v.  Beecher,  74 
Cal.  617;  Home,  etc.,  Assoc,  v.  Wilkins, 
71  Cal.  626;  Schurtz  v.  Romer,  81  Cal. 
246;  McKeen  v.  Naughton,  88  Cal. 
462;  Pacific  Paving  Co.  v.  Bolton,  89 
Cal.  154;  McCracken  v.  Los  Angeles 
County,  86  Cal.  74;  Shaw  v.  Randall, 
15  Cal.  386;  Elliott  z/.  Chapman,  15  Cal. 
383;  Lowell  V.  Lowell,  55  Cal.  318; 
Reed  v.  Kimball,  52  Cal.  325. 

Alabama. — Carey  v.  McDougald,  25 
Ala.  109;  Moore  v.  McGuire,  26  Ala. 
461;  Hinson  v.  Preslor,  27  Ala.  643; 
Mayo  V.  King,  28  Ala.  690;  Thompson 
V.  Lea,  28  Ala.  459;  King  v.  McCann, 
25  Ala.  471;  Mayo  v.  King,  28  Ala. 
690. 

North  Carolina. — Bowen  v.  Fox,  99 
N.  Car.  129;  Graves  v.  Hines,  106  N. 
Car.  323;  Sever  v.  McLaughlin,  82  N. 
Car.  332;  Hutchinson. z'.  Rumfelt,  82 


985 


Time  for  Filing  Security.        APPEAL   BONDS. 


Oenerally, 


Where  the  statute  names  no  time  it  may  be  fixed  by  order  of  the 


N.  Car.  426;  Boyden  v.  Williams,  92 
N.  Car.  546;  McCanless  v.  Reynolds, 
90  N.  Car.  648;  Applewhite  v.  Fort,  85 
N.  Car.  596. 

Missouri. — Moore  v.  Damon,  4  Mo. 
App.  Ill;  Green  v.  Castello,  35  Mo. 
App.  127;  Corbin  v.  Laswell,  48  Mo. 
App.  626. 

Oregon. — Strang  v.  Keith,  i  Oregon 
312;  Canyon  Road  Co.  v.  Laurence,  3 
Oregon  519;  Northern  Pac.  Terminal 
Co.  V.  Lowenberg,  11  Oregon  286; 
Cross  V.  Chichester,  4  Oregon  114; 
Odell  V.  Gotfrey,  13  Oregon  466. 

United  States. — Durousseau  z'.  U.  S., 

6  Cranch  (U.  S.)  312;  Marbury  v.  Madi- 
son, I  Cranch  (U.  S.)  175;  Stafford  v. 
Union  Bank,  16  How.  (U.  S.)  135; 
Silsby  V.  Foote,  20  How.  (U.  S.)  290. 

Florida. — Gordon  v.  Camp,  2  Fla.  23; 
Curry  v.  Marvin,  2  Fla.  411;  Union 
Bank  v.  McBride,  2  Fla.  7. 

Michigan. — Weed  v.  Lyon,  Walker 
(Mich.)  77;  Moore  v.  Ellis,  18  Mich.  77; 
Covell  V.  Mosely,  15  Mich.  514. 

Louisiana. — Reed  v.  Creditors,  37  La. 
Ann.   907;  Wood  v.  Wall,  5  La.  Ann. 

179-  .... 

Mississippi. — Hardaway  v.  Biles,  i 
Smed.  &  M.  (Miss.)  657;  Boone  v.  Poin- 
dexler,  12  Smed  &.  M.  (Miss.)  640. 

Ohio. — Burke  v.  Jackson,  22  Ohio  St. 
268;  Mygate  v.  Ingham,  Wright  (Ohio) 
176. 

Tennessee. — Wooten  v.  Daniel,  16  Lea 
(Tenn.)  156;  Willson  v.  Edwards,  5 
Coldw.  (Tenn.)  238. 

Indiana. — Ex  p.   Sweeney,  131  Ind.  • 
81;    State   V.    U.    S.,   8   Blackf.  (Ind.) 
252. 

Colorado. — Law  v.  Nelson,  14  Colo. 
409. 

Idaho. — Brown  v.  Ilanley,  2  Idaho 
950. 

Kentuiky. — Clinton  v.  Phillipi,  7  B. 
Mon.  (Ky.)  118. 

Texas. — McLana  v.  Russell,  29  Tex. 
127. 

Iowa.  — Steamboat  "Lake  of  the 
Woods "  V.  Shaw,  2  Greene  (Iowa) 
91. 

Illinois. — Young  v.  Mason,  8  111.  55; 
Kenny  v.  Jones,  37  111.  App.  615;  Et- 
telson  V.  Jacobs,  40  111.  App.  427. 

Massachusetts. — Com.  v.  Dunham,  22 
Pick.  (Mass.)  11. 

Utah. — Cook  z/.  Oregon,  etc.,  R.  Co., 

7  Utah  416. 

Arizona.  —  Sutherland  v.  Putnam 
(Arizona,  1891),  24  Pac.  Rep.  320. 


Nebraska.— yizYiAvA&y  v.  Chapman, 
37  Neb.  378. 

New  York. — Langley  v.  Warner,  i 
N.  Y.  606;  Skidmore  v.  Davies.  10  Paige 
(N.Y.)3i6. 

Virginia. — Yarborough  v.  Deshazo,  7 
Gratt.  (Va.)  374. 

Maine. — French  v.  Snell,  37  Me.  100. 

Wisconsin. — Thompson  v.  Thomp- 
son. 24  Wis,  515. 

Montana. — Pardee  w.  Murray,  4  Mont. 
35- 

Recognizance. — So  a  recognizance  on 
appeal  must  be  taken  and  filed  within 
the  time  named  in  the  statute,  or  the 
appeal  cannot  be  sustained.  Knight 
V.  Bean,  18  Me.  219. 

Substituted  Security. — Where  money 
may  be  deposited  in  lieu  of  an  under- 
taking the  deposit  must  be  made  within 
the  time  for  filing  the  undertaking. 
Stratton  v.  Graham,  68  Cal.  168. 

Amendment. — An  appeal  bond  cannot 
be  amended  after  it  has  been  filed, 
without  the  leave  of  the  court.  Dugas 
V.  Truxillo,  14  La.  Ann.  201.  See 
Amendment,  XIII,  infra. 

Construction  of  Statute. — Where  by 
statute  the  appeal  is  avoided  for  any 
purpose  unless  the  appeal  bond  is  filed 
or  waived  within  the  time  defined,  the 
court  acquires  no  jurisdiction  to  hear 
the  appeal  or  amend  the  bond  unless 
the  statute  is  complied  with. 

California. — Perkins  v.  Cooper,  87 
Cal.  243;  Boyd  v.  Burrel,  60  Cal.  281; 
Bragi  v.  Howes,  63  Cal.  384;  Holcomb 
Sawyer,  51  Cal.  417;  Brown  v.  Green, 
65  Cal.  222;  Stratton  v.  Graham,  68  Cal. 
168;  Little  V.  Jacks,  68  Cal.  344;  Duffy 
V,  Greenebaum,  72  Cal.  159;  In  re  Sker- 
rett,  80  Cal.  63;  Schurtz  v.  Romer,  81 
Cal.  245;  Reed  v.  Kimball,  52  Cal.  325; 
Shaw  V.  Randall,  15  Cal.  385;  Berniaud 
V.  Beecher,  74  Cal.  618;  Horn  v.  Vol- 
cano Water  Co.,  18  Cal.  143;  Wood  v. 
Pendola,  77  Cal.  82. 

New  York. — Langley  v.  Warren,  i 
N.  Y.  606;  Kelseyz'.  Campbell,  38  Barb. 
(N.  Y.)  238;  Dresser  v.  Brooks,  5  How. 
Pr.  (N.  Y.  Ct.  of  App.)  75;  Cowdin  v. 
Teal,  67  N.  Y.  582;  Architectural  Iron 
Works  Co.  V.  Brooklyn,  85  N.  Y.  652; 
Raymond  v.  Richmond,  76  N.  Y.  106; 
Matter  of  Dumesnil,  47  N.  Y.  677; 
Benedict  Mfg.  Co.  v.  Thayer,  82  N.  Y. 
610;  Musgrave  v.  Sherwood,  76  N.  Y. 
194;  Wetting  V.  Moltz,  45  N.  Y.  Super. 
Ct.  392;  Ferris  v.  Tannebaum  (C.  Pl.)^ 
39  N.  Y.  St.  Rep.  73. 


986 


Time  for  FiUng  Security.        APPEAL    BONDS. 


Generally. 


trial  court.*  Compliance  with  the  order  is  not  essential  to  the 
jurisdiction  of  the  appellate  court,  and  it  may  allow  a  new  bond 
to  be  filed  after  the  expiration  of  the  time  stated  ;*  although  it  is 
ground  for  dismissal  of  the  appeal  on  proper  objection  by  the 
appellee.' 

are  presumed  to  have  contemplated  the 
liability  subsequently  arising.  James 
V.  Wood,  65  Miss.  531;  Byers  v.  Cook, 
13  Oregon  297  ;  Weiss  v.  Jackson 
County,  8  Oregon  529;  Poppleton  v. 
Nelson,  10  Oregon  437. 

Contra. — The  contrary  was  held  in 
Wilson  V.  Haleman,  2  Ohio  253,  and 
the  appeal  dismissed  for  lack  of  juris- 
diction where  the  bond  was  filed  before 
rendition  of  judgment. 

Where  a  statute  expressly  provided 
that  a  trial  court  might  grant  an  ap- 
peal "  after  affidavit  and  bond  have 
been  filed  and  approved,"  held,  that  the 
filing  and  approval  prior  to  the  grant- 
ing of  the  appeal  were  jurisdictional, 
and  that  where  the  trial  court  granted 
an  appeal  without  such  bond,  the  ap- 
peal would  be  dismissed.  Green  v. 
Castello,  35  Mo.  App.  133;  Corbin  v. 
Laswell,  48  Mo.  App.  626;  Filley  v. 
Walls,  4  Mo.  271;  Townsend  v.  Finley, 
3  Mo.  28S;  Jamison  v.  Yates,  7  Mo.  571. 

Order  of  Adjoarnment. — Where  an  ap- 
peal bond  must  be  filed  within  a  certain 
time  after  final  adjournment  of  the 
term,  the  final  order  of  adjournment 
must  appear  in  the  transcript  to  show 
that  the  bond  has  been  filed  in  time. 
Burr  V.  Lewis,  6  Tex.  76. 

1.  Lusk  V.  Kershow,  17  Colo.  481. 

2.  So,  under  the  practice  of  the  Su- 
preme Court  of  the  United  States  and 
Illinois,  an  appeal  bond  is  not  essential 
to  the  jurisdiction  where  an  appeal  has 
been  allowed  and  transcript  duly  filed. 
A  mere  failure  to  execute  the  bond  with- 
in due  time  may  be  ground  for  dismissal 
of  the  appeal,  but  the  court  may  pro- 
ceed to  a  determination  of  the  appeal 
where  the  defect  is  waived.  Edman- 
son  V.  Bloomshire,  7  Wall.  (U.  S.)  306; 
Richardson  v.  Green,  130  U.  S.  104; 
Evans  v.  State  Bank,  134  U.  S.  330; 
Ettelson  v.  Jacobs,  40  111.  App.  427; 
Kingsbury  v.  Buckner,  134  U.  S.  682; 
Owen  V.  McKethe,  10  111.  79;  Price 
V.  Pittsburgh,  etc.,  R.  Co.,  40  111.  44; 
Wormley  v.  Wormley,  96  111.  129;  Car- 
son V.  Merle,  4  111.  168. 

3.  Ex  p.  Milwaukee  R.  Co.,  5 
Wall.  (U.  S.)i88;  Edmanson  w.  Bloom- 
shire, 7  Wall.  (U.  S.)  311;  Seymour  v. 
Freer,  5   Wall.  (U.  S.)  822;  The  Dos 


Utah. — Cook  v.  Oregon  Short  Line, 
etc.,  R.  Co.,  7  Utah  416;  People  v.  Fen- 
nel, 4  Utah  112;  People  v.  Gough,  2 
Utah  69. 

Michigan.  —  Franks  v.  Smith,  45 
Mich.  326;  Craig  v,  Seitz,  63  Mich.  727. 

When  Waiver  Made. — Under  such  a 
statute  an  order  of  court  or  an  express 
stipulation  of  counsel  dispensing  with 
securty  must  be  made  within  the  time 
for  filing  the  undertaking  or  it  is  in- 
valid. Newman  v.  Maldonado  (Cal., 
1892),  30  Pac.  Rep.  833;  In  re  Skerrett, 
80  Cal.  63;  Perkins  v.  Cooper,  87  Cal. 
241.  But  it  need  not  be  filed  within  that 
time.  Newman  v.  Maldonado  (Cal., 
1892),  30  Pac.  Rep.  833. 

After  the  right  of  appeal  has  been 
lost  by  the  expiration  of  the  time  in 
which  to  take  an  appeal  the  undertak- 
ing cannot  be  waived.  In  re  Skerrett, 
80  Cal.  62;  Wait  v.  Van  Allen,  22  N.  Y. 
319;  Clapp  V.  Hawley,  97  N.  Y.  610. 

Under  such  statutes  a  motion  to  dis- 
miss the  appeal,  on  the  ground  that 
the  undertaking  is  substantially  defec- 
tive, is  not  proper.  The  undertaking 
being  ineffectual,  no  return  could 
properly  be  made,  as  the  cause  is  not 
properly  on  the  calendar  and  there  is 
no  appeal  to  dismiss.  The  proper  mo- 
tion is  to  strike  the  cause  from  the 
calendar.  Raymond  v.  Richmond,  76 
N.    Y.    106;   Reed  v.   Kimball,  52  Cal. 

325- 

Appeal  Granted  in  Term. — Where  an 
appeal  may  be  taken  either  in  term  or 
by  notice  of  appeal,  and  is  granted  in 
term  upon  order  further  requiring  an 
appeal  bond  to  be  filed  within  a  stated 
time,  the  filing  of  the  bond  is  an  essen- 
tial step  in  perfecting  the  term  appeal; 
and  where  not  filed  within  the  required 
time  the  term  appeal  falls,  but  a  new 
appeal  may  be  taken  on  notice.  Exp. 
Sweeny,  131  Ind.  81;  Holloran  v.  Mid- 
land R.  Co.,  129  Ind.  274;  June  v. 
Payne,  107  Ind.  307;  Goodwin  v.  Fox, 
120  U.  S.  775;  Webber  v.  Brieger,  i 
Colo.  App.  92. 

After  Bendition  of  Judgment. — The 
fact  that  the  appeal  bond  is  executed 
and  given  before  the  judgment  ap- 
pealed from  is  rendered  will  not  war- 
rant dismissal,  as  the  obligors  thereto 


987 


Time  for  FiUng  Security.         APPEAL    BONDS. 


Generally. 


-No    court    or  judge  has  power  to    extend  the  time 
the  statute  ;*  but  where   fixed   at   discretion  it  may 


Extension, 
named  in 
also  be  extended  at  discretion.* 


Hermanos,  lo  Wheat.  (U.  S.)  306;  Da- 
vidson V.  Lanier,  4  Wall.  (U.  S.)  454; 
O'Reilly  v.  Edrington,  96  U.  S.  726; 
Brobst  V.  Brobst,  2  Wall.  (U.  S.)  96; 
Brown  v.  McConnell,  124  U.  S.  491  ; 
Hewitt  T'.  Filbert,  116  U.  S.  142;  Provi- 
dence Washington  Ins.  Co.  v.  Wager, 
37  Ftd.  Rep.  61. 

Unless  the  appellant  shows  good 
ground  for  his  motion  the  court  will  not 
grant  the  order.  Ettelson  v.  Jacobs,  40 
111.  App.  427;  Davis  V.  Davis,  27  Neb. 
859;  Bubb  V.  Cain,  37  Kan.  692;  Duffy  v. 
Greenbaum,  72  Cal.  157;  Wooten  v. 
Daniel,  16  Lea  (Tenn.)  156;  Pennington 
V.  McNally,  11  Colo.  557;  Harrison  v. 
Hoff,  102  N.  Car.  25. 

The  court  may  allow  a  new  bond  to 
be  filed  at  any  time  while  the  appeal 
survives.  Ex  p.  Milwaukee  R.  Co.,  5 
Wall.  (U.  S.)  188;  Edmanson  v.  Bloom- 
shire,  7  Wall.  (U.  S.)  311;  Seymour  v. 
Freer,  5  Wall.  (U.  S.)  822. 

But  where  the  appeal  has  lapsed 
from  failure  to  file  a  transcript  within 
the  time  required,  it  cannot  be  revived 
by  filing  an  appeal  bond  thereafter. 
The  Dos  Hermanos,  10  Wheat.  (U.  S.) 
306;  Edmanson  z/.  Bloomshire,  7  Wall. 
(U.  S.)  311. 

Computation  of  Time. — The  first  day 
upon  which  the  appeal  bond  may  be 
filed  or  the  order  is  made  is  excluded. 
Ewing  V.  Bailey,  5  111.  420;  Brainard  v. 
Norton,  14  111.  App.  643;  Carson  v. 
Merle,  4  111.  168;  Bushong  v.  Graham, 
4  Ohio  Cir.  Ct.  Rep.  138;  Hax  v. 
Leis,  I  Colo.  171.  And  the  last  day  is 
included,  unless  it  is  Sunday  and  ex- 
pressly excluded  by  statute.  Brainard 
V.  Norton,  14  111.  App.  643. 

Presumption  —  The  entry  on  the 
judge's  docket,  "appeal  allowed,"  is 
evidence  that  the  appeal  bond  is  filed 
in  time,  as  a  public  official  is  presumed 
to  do  his  duty.  Carroll  v.  Jacksonville, 
2  111.  App.  4S1. 

Texas. — In  Texas  it  is  held  that  a  stat- 
ute requiring  a  bond  to  be  filed  within  a 
certain  period  after  judgment  is  com- 
plied with  by  filing  it  within  the  defined 
time  after  the  denial  of  a  motion  for 
new  trial.  Williams  v.  Sims  (Tex.  App., 
1890),  16  S.  W.  Rep.  786;  West  w.  White 
(Tex.  App.,  1890),  16  S.  W.  Rep.  788. 

Time  — Meaning  of  Term  ' '  Rising  of 
Court." — Where  the  statute  requires  an 


appeal  bond  to  be  filed  within  a  certain 
period  after  the  "  rising  of  the  court," 
final  adjournment  for  the  term  is 
meant.  Morgan  v.  Stittigan,  10  West 
L.  J.  (Ohio)  74. 

Order  Dispensing  with  Security. — ■ 
Where  statutes  allow  the  trial  court  l- 
dispense  with  security  in  special  cases 
by  making  an  order  to  that  effect,  the 
order  should  be  made  within  the  time 
allow^ed  for  filing  the  appeal  bond,  and 
that  fact  must  be  recited  on  its  face. 
In  re  Skerrett,  80  Cal.  62. 

Petition. — In  Acker  v.  Alexandria, 
etc.,  R.  Co.,  84  Va.  648,  it  was  held  that 
the  days  during  which  the  court  held 
the  petition  for  appeal  and  the  record, 
before  granting  the  appeal,  should  be 
excluded  in  estimating  the  time  within 
which  an  appeal  bond  must  be  filed. 

Louisiana. — An  appeal  bond  may  be 
filed  in  a  devolutive  appeal  any  time 
before  the  return  day.  Glover  v. 
Taylor,  38  La.  Ann.  634. 

1.  Elliott  V.  Chapman,  15  Cal.  383; 
Gordons'.  Wansey,  19 Cal.  82;  Aram  v. 
Shallenberger,  42  Cal.  277;  Reed  v. 
Kimball,  52  Cal.  325;  McCracken  v. 
Los  Angeles  County  86  Cal.  74;  Kenny 
V.  Jones,  37  111.  App.  615;  Davis  v. 
Wilson,  85  Tenn.  385.  Unless  statutes 
expressly  authorize  it.  McCracken  v. 
Los  Angeles  County,  86  Cal.  74. 

2.  Pennington  v.  McNally,  11  Colo. 
558;  McFarland  v.  McFarland  ,  4  111. 
App.  157;  Borden  v.  Houston,  2  Tex. 
594. 

The  order  fixing  and  extending  the 
time  must  be  made  during  the  term  at 
which  judgment  is  rendered,  unless  au- 
thorized otherwise  by  statute.  Pen- 
nington V.  McNally,  11  Colo.  558; 
Owen  V.  Going,  7  Colo.  85;  McFarland 
V.  McFarland,  4  111.  App.  157;  Borden 
V.  Houston,  2  Tex.  594;  Layman  v. 
Graybill,  14  Ind.  166  ;  JEx  p.  Casey, 
18  Fed.  Rep.  86. 

On  Notice. — The  adverse  party  must 
have  notice  of  the  application  to  extend 
the  time,  but  where  the  record  is  silent 
it  will  be  presumed  to  have  been  duly 
given.  Pennington  v.  McNally,  11 
Colo.  559;  Martin  v.  Force,  3  Colo. 
199;  Gomer  v.  Chaffe,  5  Colo.  383J 
Hughes  V.  Cummings,  7  Colo.  138. 

Further  Security. — In  Robare  v.  Ken- 
dall, 22  Neb.  677,  it  was  held  that,  where 


988 


Time  for  Filing  Security.        APPEAL    BONDS. 


Date  of  Filing: 


2.  Notice  of  Appeal. — Where  required  by  statute  to  be  filed  after 
the  notice  of  appeal  the  bond  is  invalid  if  filed  before.*  But  if 
filed  the  same  day  it  will  be  presumed  to  have  been  filed  after.'-* 
Unless  the  statute  prescribes  the  order  of  filing  it  may  be  filed 
either  before  or  after  if  within  the  statutory  time.' 

3.  Date  of  Filing. — The  date  of  an  appeal  bond  or  undertaking 
does  not  affect  its  validity.*  It  takes  effect  when  approved  and 
actually  filed."*  The  recitals  of  the  record  as  to  date  of  filing 
prevail  over  the  date  of  the  bond,  where  they  conflict.®  Where 
nothing  to  the  contrary  appears  the  appeal  bond  will  be  pre- 
sumed to  have  been  filed  on  the  day  it  was  justified  ;''  but  appellant 
may  show  as  a  fact  that  it  was  seasonably  filed,  when  not  incon- 
sistent with  the  record.* 


an  order  requiring  a  further  undertak- 
ing had  been  granted  by  the  court, 
and  not  complied  with,  the  court  might 
again  extend  the  time,  or  allow  appel- 
lant to  show  the  original  security  suffi- 
cient. 

1.  Brown  v.  Hanley,  2  Idaho  950; 
Cook  V.  Oregon,  etc.,  R.  Co.,  7  Utah 
416;  Carpentier  v.  Williamson,  24  Cal. 
6og;  Buckholder  v.  Byers,  10  Cal.  481; 
Darling  v.  More,  19  Cal.  81;  Little  v. 
Jacks,  68  Cal.  343;  Weiss  v.  Jackson 
County,  8  Oregon  529;  Poppleton 
V.  Nelson,  10  Oregon  437;  Dahl  v. 
Tibbals,  5  Wash.  261.  So,  where  the 
statute  requires  an  undertaking  to  be 
served  and  filed  with  the  notice  of 
appeal,  the  undertaking  is  not  good 
where  filed  and  served  at  another 
time.  New  York  Cent.  Ins.  Co.  v. 
National  Pro.  Ins.  Co.,  10  How.  Pr. 
(N.  Y.  Ct.  of  App.)  344. 

Such  statutes  do  not  require  that  the 
bond  should  be  filed  within  the  time  for 
"taking  an  appeal."  If  filed  within 
the  statutory  time  after  service  of  no- 
tice it  is  sufficient.  Lowell  v.  Lowell, 
55  Cal.  318. 

Date. — The  fact  that  the  appeal  bond 
is  dated  anterior  to  the  notice  of  ap- 
peal after  which  it  is  required  to  be 
filed  will  not  invalidate  the  appeal 
where  it  is  actually  filed  thereafter  or 
on  the  same  day  with  the  notice  of  ap- 
peal. Dahl  V.  Tibbals,  5  Wash.  261; 
Poppleton  V.  Nelson,  10  Oregon  437. 

Notice  Before  Undertaking. — So  on  ap- 
peal to  the  Supreme  Court  of  Cali- 
fornia  it  was  held  that  the  filing  of  the 
notice  must  precede  the  filing  of  the 
undertaking;  otherwise  there  is  noth- 
ing on  which  to  base  the  undertaking. 
Buckholder  v.  Byers,  10  Cal.  481; 
Hastings  v.  Halleck,  10  Cal.  31;  Frank- 


lin V.  Renier,  8  Cal.  340;  Whipley  v.. 
Mills,  9  Cal.  641. 

New  York. — Under  the  practice  of 
New  York  a  notice  of  appeal  to  the 
court  of  appeals  may  be  served  before 
any  undertaking  has  been  executed, 
and  the  undertaking  may  be  given  at 
any  time  before  the  expiration  of  the 
time  for  appealing;  but  the  notice  of 
appeal  does  not  become  effectual  for 
any  purpose  until  the  undertaking  has 
been  given.  Raymond  v.  Richmond, 
76  N.  Y.  106. 

2.  Poppleton  v.  Nelson,  10  Oregon 
437;  Hastings  v.  Halleck,  10  Cal.  31. 

Filing  New  Undertaking. — Where  the 
undertaking  is  filed  before  notice  of 
appeal  is  given  it  may  be  remedied  by 
filing  a  new  undertaking  on  affidavit 
showing  reasonable  excuse  for  the  mis- 
take ;  but  simply  refiling  is  not  enough. 
Hawthorne  v.  East  Portland,  12  Ore- 
gon 210;  Weiss  V.  Jackson  County,  & 
Oregon  529. 

3.  Emerson  v.  Atwater,  5  Mich.  34; 
Dutertre  v.  San  Francisco,  84  Cal.  535; 
Coker  v.  Colusa  County,  58  Cal.  177; 
Columbet  v.  Pacheco,  46  Cal.  651. 

Notice  of  Filing. — Service  of  notice 
of  appeal  operates  as  a  notice  of  the 
filing  of  the  appeal  bond.  Columbet 
V.  Pacheco,  46  Cal.  650. 

4.  Pray  v.  Wasdell,  146  Mass.  327; 
Dahl  V.  Tibbals,  5  Wash.  261. 

6.  Pray  v.  Wasdell,  146  Mass.  327; 
Dahl  V.  Tibbals,  5  Wash.  261. 

6.  Miller  v.  Shea,  150  Mass.  283; 
Hoagland  v.  Schnorr,   17  Ohio  St.  30. 

7.  Boyden  v.  Williams,  92  N.  Car. 
546;  Harmon  v.  Herndon,  99  N.  Car. 

477- 

8.  Harmon  v.  Herndon,  99  N.  Car. 
477;  Bowen  v.  Fox,  98  N.  Car.  396; 
Carroll  v.  Jacksonville,  2  111.  App.  481. 


989 


Amendment. 


APPEAL   BONDS. 


When  Bond  is  Void. 


4.  Official  Misconduct. — Where  the  appellant  complies  in  good 
faith  with  all  the  law  requires  of  him,  but  the  misconduct  or  neg- 
ligence of  an  official  prevents  due  filing  of  the  bond,  the  omission 
will  be  excused  and  the  bond  allowed  to  be  filed  nunc  pro  tjinc.^ 

XIII.  Amendment — 1.  When  Bond  is  Void. — When  the  defects 
of  an  appeal  bond  render  it  void,  the  appellate  court  acquires 
no  jurisdiction,  even  to  allow  an  amendment.*  Where  irregular 
merely,  it  will  vest  jurisdiction  to  amend,  or  to  hear  the  appeal  as 
against  the  appellant.^ 

Effect  of  Lack  of  Jurisdiction.— Where  the  trial  court  has  no  jurisdic- 
tion of  the  person  of  the  appellant  in  the  suit  in  which  the  appeal 


The  date  of  an  appeal  bond  is  no 
part  of  it,  and  where  essential  the  day 
of  execution  may  be  shown  by  parol. 
Littell  V.  Bradford,  8  Blackf.  (Ind.) 
185. 

It  is  not  necessary  to  specify  the  day 
of  the  month  in  the  date  of  the  bond. 
Shaughnessey  f.  Lewis,  130  Mass.  355; 
Guez  V.  Dupuis,  152  Mass.  454. 

Appeal  bonds  will  be  held  to  have 
been  completed  at  their  date  where 
there  is  nothing  to  establish  another 
time.  Allen  v.  Rhodebaugh,  Wright 
(Ohio)  322. 

Erroneous  Indorsement. — Where  an 
appeal  bond  is  actually  approved  and 
filed  in  time,  a  subsequent  erroneous 
date  of  approval  indorsed  by  clerical 
mistake  is  an  immaterial  error.  King 
V.  Ingham  Circuit  Judge,  69  Mich. 
84. 

1.  Little  V.  Smith,  5  111.  400;  Ewing 
V.  Bailey,  5  111.  420;  Beardsley  v.  Hill, 
61  111.  354;  Robinson  v.  Mhoon,  68  Miss. 
712;  Mullerz/.  Humphreys  (Tex.  App., 
1889),  14  S.  W.  Rep.  1068;  Henderson 
V.  Trousdale,  10  La.  Ann.  548;  Ingram 
V.  Flasket,  3  Blackf.  (Ind.)  450;  State 
V.  Leigh,  45  Kan.  523;  Hooks  v. 
Stamper,  18  Ga.  471. 

2.  Santom  v.  Ballard,  133  Mass.  464; 
Jacobs  V.  Narrow,  21  Neb.  233;  Scot- 
ten  V.  Divelbisa,  46  Ind.  302;  McVey 
V.  Heavenridge,  30  Ind.  100;  Pacific 
Paving  Co.  v.  Bolton,  89  Cal.  154; 
Hardaway  z/."  Biles,  i  Smed.  &  M. 
(Miss.)  658;  Porter  v.  Grisham,  3  How. 
(Miss.)  76. 

So  where  the  appeal  bond  or  under- 
taking is  void  because  it  fails  to  refer 
properly  to  the  appeal,  it  will  not  sup- 
port a  motion  for  leave  to  file  a  new 
one.  Pacific  Paving  Co.  v.  Bolton,  8g 
Cal.  154. 

3.  Riley  v.  Mitchell,  38  Minn.  13  ; 
Woodman  v.  Calkins,  12  Mont.  456; 
Stapleton  v.  Pease,  2  Mont.  508;  Pierse 


V.  Miles,  5  Mont.  549;  Territory  v. 
Milroy,  7  Mont.  559;  Acker  z/.  Alexan- 
dria, etc.,  R.  Co.,  84  Va.  650;  Saterlee 
V.  Stevens,  11  Ohio  420;  Fairbank  v. 
Streeter,  41  111.  App.  436;  Murphy  z>. 
Consolidated  Tank  Line  Co.,  32  111. 
App.  613;  Knowles  v.  Wayne  City,  31 
111.  App.  475;  Com.  V.  Watts,  84  Ky. 
537;  Mahlman  v.  Williams  (Ky.,  1889), 
12  S.  W.  Rep.  335;  Willis  v.  Rivers,  80 
Ga.  556;  De  Gruy  v.  Aiken,  43  La. 
Ann.  798;  Wilson  v.  Bennett,  132  Ind, 
210;  Southern  Pac.  R.  Co.  v.  Stanley, 
76  Tex.  418;  Warren  v.  Marberry,  85 
Tex.  193;  Putnam  v.  Boyer,  140  Mass. 
237;  Santom  v.  Ballard,  133  Mass.  464; 
Keene  z/.  White,  136  Mass.  23;  Wheeler, 
etc.,  Mfg.  Co.  V.  Burlingham,  137 
Mass.  581;  McCracken  v.  Los  Angeles 
County,  86  Cal.   74;  Coulter  v.  Stack, 

7  Cal.  244;  Cunningham  v.  Hopkins,  8 
Cal.  33;  Rath  v.  Hamilton,  15  Cal.  31; 
Gray  v.  Amador  County,  61  Cal.  337; 
Coker  v.  Colusa  County,  58  Cal.  177; 
Schurtz  V.  Romer,  81  Cal.  246;  Smith 
V.  Biscailuz,  83  Cal.  344;  Forbes  v. 
Porter,  23  Fla.  47;  Ridabock  v.  Levy, 

8  Paige  (N.  Y.)  197;  Littell  v.  Brad- 
ford, 8  Blackf.  (Ind.)  185. 

Approval. — Or  where  the  bond  was 
not  officially  approved.  Putnam  v. 
Boyer,  140  Mass.  237. 

Failure  to  Name  Sureties. — A  failure 
to  name  the  sureties  on  the  bond  at 
the  time  of  praying  the  appeal  does 
not  invalidate  the  bond.  Wilson  v. 
Bennett,  132  Ind.  210. 

What  Sufficient  to  Test  Jurisdiction. — 
Any  binding  obligation  duly  filed  to 
pay  damages  or  costs  on  appeal  in  any 
contingency  will,  unless  the  statute 
expressly  makes  a  defective  bond 
void,  confer  jurisdiction  on  the  appel- 
late court  to  allow  amendment.  Wood- 
man V.  Calkins,  12  Mont.  456;  Clinton 
V.  Phillips,  7  T.  B.  Mon.  (Ky.)  118; 
Saterlee  v.  Stevens,  11  Ohio  420. 


990 


Amendment. 


APPEAL  BONDS. 


When  Unnecessary. 


is  taken,  the  appeal  bond  therein  is  wholly  void.*  But  lack  of 
jurisdiction  over  the  subject-matter  in  either  the  appellate  or  the 
trial  court  does  not  avoid  the  bond.*  By  entering  into  the  bond 
the  appellant  is  estopped  from  denying  jurisdiction  of  the  court 
where  suit  is  brought  upon  the  bond  for  costs  by  the  appellee.* 

2.  When  Unnecessary. — An  appeal  bond  or  undertaking  is  suffi- 
cient where  it  substantially  complies  with  the  statute,  although  it 
varies  from  its  language.*     It  is  sufficient  if  its  legal  effect  be  to 


1.  Robertson  v.  Smith,  129  Ind.  422; 
Caffrey  v.  Dudgeon,  38  Ind.  512;  Olds 
V.  State,  6  Blackf.  (Ind.)  91;  State  v. 
Younts,  8g  Ind.  313;  Ham  v.  Greve,  41 
Ind.  531;  Deardorff  v.  Ulmer,  34  Ind. 
353;  State  V.  McLaughlin,  77  Ind.  335; 
Sherry  v.  Foresman,  6  Blackf.  (Ind.) 
56;  Eddy  V.  Beal,  34  Ind.  159;  Byers 
V.  State,  20  Ind.  47;  Memmler  v.  Rob- 
erts, 81  Ga.  659;  Tarb(ill  v.-  Gray,  4 
Gray  (Mass.)  444  ;  Bridge  v.  Ford,  4 
Mass.  641;  Green  v.  Haskell,  24  Me. 
180. 

The  appellant  is  not  estopped  to 
raise  the  objection  of  want  of  jurisdic- 
tion in  the  suit  to  enforce  the  obli- 
gation of  the  bond.  Robertson  v. 
Smith,  129  Ind.  422. 

2.  Robertson  v.  Smith,  129  Ind.  422; 
Adams  v.  Olive,  57  Ala.  249;  Steven- 
son V.  Miller,  2  Litl.  (Ky.)  310;  Hanna 
V.  McKenzie,  5  B.  Mon.  (Ky.)  314, 
43  Am.  Dec.  122;  Hoy  v.  Rogers,  4  T. 
B.  Mon.  (Ky.)  225;  Cumberland  Coal, 
etc.,  Co.  V.  Hoffman  Steam  Coal  Co., 
39  Barb.  (N.  Y.)  16. 

3.  Robertson  v.  Smith,  129  Ind.  422; 
Cumberland  Coal,  etc.,  Co.  v.  Hoff- 
man Steam  Coal  Co.,  39  Barb.  (N.  Y.) 
16;  Carver  v.  Carver,  77  Ind.  498;  Cun- 
ningham V.  Jacobs,  120  Ind.  306;  Har- 
baugh  V.  Albertson,  102  Ind.  69  ; 
Stevenson  v.  Miller,  2  Litt.  (Ky.)  310; 
Hoy  V.  Rogers,  4  T.  B.  Mon.  (Ky.) 
225;  Hanna  v.  McKenzie,  5  B.  Mon. 
(Ky.)  314,  43  Am.  Dec.  122;  Adams  v. 
Olive,  57  Ala.  249. 

Contra. — In  other  cases  it  is  held 
that,  where  the  appeal  is  void  because 
not  taken  in  time  or  for  any  other 
cause,  the  appeal  bond  is  void  as  inci- 
dental thereto.  Garnet  v.  Rodgers, 
52  Mo.  145;  Smith  v.  St.  Louis,  etc., 
R.  Co.,  53  Mo.  338;  Hessey  v.  Heit- 
kamp,9Mo.  App.  36;  Kinserz/.  Shands, 
52  Mo.  326;  Smith  v.  St.  Louis,  etc., 
R.  Co.,  53  Mo.  33S;  Brown  v.  Missouri 
Pac.  R.  Co.,  85  Mo.  123;  Lamonte  v. 
Montebello,  21  111.  App.  186;  Brounty 
V.  Daniels,  23  Neb.  165;  Memmler  v. 
Roberts,  81  Ga.  359. 


Where  a  motion  to  set  aside  a  de- 
fault is  required  before  an  appeal  can 
be  taken  from  a  judgment,  the  appeal 
bond  is  void  where  no  such  motion  is 
made.  Brown  v.  Missouri  Pac.  R. 
Co.,  85  Mo.  123. 

A  judgment  against  sureties  on  such 
a  bond  is  erroneous.  Smith  v.  St. 
Louis,  etc.,  R.  Co.,  53  Mo.  33S. 

4.  Knight  v.  People,  11  Colo.  308; 
Russell  V.  Monson,  33  Conn.  506. 

Alabama. — Williams  v.  State,  26  Ala. 
85;  Modawell  v.  Holmes,  40  Ala.  391; 
Satterwhite  v.  State,  28  Ala.  65;  Light- 
foot  V.  Strahan,  7  Ala.  444;  Windham 
V.  Coats,  8  Ala.  2S5;  Whitsett  v. 
Womack,  8  Ala.  466;  Ex  p.  Weis- 
singer,  7  Ala.  710;  Sanders  v.  Rives, 
3  Stew.  (Ala.)  109. 

Texas. — Southern  Pac.  R.  Co.  v. 
Stanley,  76  Tex.  418;  Batsel  v.  Blaine 
(Tex.  App.,  1891),  15  S.  W.  Rep.  283; 
Halbertz/.  Alford(Tex.,  1891),  16  S.  W. 
Rep.  814;  Elkins  v.  State,  26  Tex.  App. 
220;  Cavanaugh  v.  Fort  Worth,  26  Tex. 
App.  85;  Pace  V.  Webb,  79  Tex.  314; 
Figures  v.  Dunklin,  68  Tex.  645 ;  Zidek 
V.  State  (Tex.  Crim.  App.,  1893),  22  S. 
W.  Rep.  143;  Jordan  v.  Moore,  65  Tex. 
363;  Halbert  v.  Alford  (Tex.,  1891),  16 
S.  W.  Rep.  814. 

Minnesota.  —  Anderson  v.  Meeker 
County,  46  Minn.  237;  Riley  v. 
Mitchell,  38  Minn.  9. 

North  Carolina.  —  Walker  v.  Will- 
iams, 88  N.  Car. 7;  Chamblee  v.  Baker, 
95  N.  Car.  98;  McMinn  v.  Patton,  92 
N.  Car.  371;  Bennehan  v.  Webb,  6 
Ired.  (N.  Car.)  250;  Iredell  v.  Barbee, 
9  Ired.  (N.  Car.)  250;  Gully  z/.  Gully,  i 
Hawks.  (N.  Car.)  20. 

Ohio. — Bentley  v.  Dorcas,  11  Ohio 
St.  398;  Gardener  v.  Woodyear,  i  Ohio 
170;  Creighton  v.  Harden,  icOhio  St. 

579- 

Massachusetts. — Kendall  v.  Gleason, 
152  Mass.  457;  Com.  v.  Richards,  17 
Pick.  (Mass.)  295;  Com.  v.  Dunham, 
22  Pick.  (Mass.)  11;  Guez  v.  Dupuis, 
152  Mass.  454;  Wellesley  v.  Washburn, 
156  Mass.  359. 


991 


Amendment. 


APPEAL   BONDS. 


When  Unnecessary. 


secure  to  the  appellee  all  the  rights  contemplated  by  the  statute 
requiring  the  bond,*  and  in  such  cases  it  need  not  be  amended. 


Kentucky, — Stockton  v.  Turner,  7  J. 
J.  Marsh.  (Ky.).  192;  Moore  v.  Gorin, 
2  Litt.  (Ky.)'  186;  Feemster  v.  An- 
derson, 6  T.  B.  Mon.  (Ky.)  537;  Cobb 
V.  Beaty,  3  T.  B.  Mon.  (Ky.)  391. 

Illinois. — Hennies  v.  People,  70  111. 
100;  Schill  V.  Reisdorf,  88  111.  411: 
Waldo  V.  Averett,  2  111.  487;  Gillilan  v. 
Gray,  13  111.  705;  Mason  v.  Johnson, 
24  111.  159. 

Georgia. — Seymore  v.  Howard,  15 
Ga.  no;  Scott  v.  Turpin,  30  Ga.  964; 
Hogg  V.  Mobley,  8  Ga.  256. 

Louisiana. — DeGruy  v.  Aiken,  43  La. 
Ann,  798;  Glover  v.  Taylor,  38  La. 
Ann.  634;  Littleton  v.  Pratt,  10  La. 
Ann.  487. 

California. — Billings  v.  Roadhouse, 
5  Gal.  71;  Zoller  v.  McDonald,  23  Gal. 
136;  Williams  v.  Dennison,  86  Gal.  430. 

Missouri. — Strange  v.  Ellis,  i  Mo. 
412;  State  V.  Thompson,  81  Mo.  163. 

New  York. — Teall  v.  Van  Wyck,  10 
Barb.  (N.  Y.)  379;  Foster  v.  Foster,  7 
Paige  (N.  Y.)  48. 

United  States. — Gay  v.  Parpart,  loi 
U.  S.  391;  Kountze  v.  Omaha  Hotel 
Co.,  107  U.  S.  396. 

Mississippi. — Coleman  v.  Rowe,  4 
Smed.  &  M.  (Miss.)  747;  Conger  v. 
Rob'n  on,  4  Smed.  &  M.  (Miss.)  210; 
Swan  V.  Home,  54  Miss.  337. 

Indiana. — Canal-Boat  Standard  v. 
Bond,  8  Ind.  270;  Carmichael  v.  Hol- 
lovvay,  9  Ind.  519. 

Other  States. — Miller  v.  Holding,  5 
Del.  494;  Mathew  v.  Morrison,  13  R. 
I.  309;  Whitehead  v.  Thorp,  22  Iowa 
425;  Stapleton  v.  Pease,  2  Mont.  508. 

An  appeal  bond  sufficient  to  hold 
all  the  parties  thereto  liable  upon  all 
the  contingencies  and  under  all  the 
conditions  named  in  the  statute  is  a 
substantial  compliance  with  the  stat- 
ute. Bentley  v.  Dorcas,  11  Ohio  St. 
398;  Creighton  v.  Harden,  10  Ohio  St. 

579- 

Variations  in  Language. — Variations 
in  language  in  the  appeal  bond  cannot 
be  carried  to  the  extent  of  giving  it  an 
effect  contrary  to  the  intents  of  the 
statute.  .Kountze  v.  Omaha  Hotel  Co., 
107  U.  S.  395. 

Surplusage. — If  the  bond  embraces 
all  the  statutory  requirements,  the 
addition  of  matters  not  authorized 
thereby  may  be  considered  surplus- 
age, and  rejected  unless  so  connected 
with  the  remainder  that  they  cannot 


be  elided.  Mathews  v.  Morrison,  13 
R.  I.  307;  Williams  v.  Dennison,  86 
Cal.  430;  Guez  v.  Dupuis,  152  Mass. 
454;  Jordan  v  Moore,  65  Tex.  363; 
Landa  v.  Heermann,  85  Tex.  i; 
Kountze  v.  Omaha  Hotel  Co.,  107 
U.  S.  391. 

"  Intends  to  Appeal." — A  recital  in  an 
appeal  bond  or  undertaking  that  a 
party  "intends  to  appeal,"  instead  of 
"does  appeal,"  does  not  avoid  its 
effect  where  otherwise  regular.  For- 
rest V.  Havens,  38  N.  Y.  470. 

1.  Riley  v.  Mitchell,  38  Minn.  11; 
Kasson  f.  Brocker,  47  W^is.  79;  Creigh- 
ton V.  Harden,  10  Ohio  St.  579;  Bent- 
ley  V.  Dorcas,  11  Ohio  St.  398;  Gard- 
neer  v.  Woodyear,  i  Ohio  170;  Gay  v. 
Parpart,  loi  U.  S.  391;  Kountze  v. 
Omaha  Hotel  Co.,  107  U.  S.  396;  Saun- 
ders V.  Rives,  3  Stew.  (Ala.)  109;  Field 
V.  Schricher,  14  Iowa  124;  Kendall  v. 
Gleason,  152  Mass.  457;  Shaughnessey 
V.  Lewis,  130  Mass.  355;  Shaw  v.  Mc- 
Intier,  5  Allen  (Mass.)  423;  Martin  v. 
Campbell,  120  Mass.  126;  Pray  w.  Was- 
dell,  146  Mass.  328;  Doolittle  v.  Din- 
inny,  31  N.  Y.  350;  Smith  v.  Norval,  2 
Code  Rep.  (N.  Y.)  14;  Foster  v.  Foster, 
7  Paige  (N.  Y.)  50;  Coleman  v.  Rowe,  4 
Smed.  &  M.  (Miss.)  747;  Waters  v. 
Riley,  2  Har.  &  G.  (Md.)  305,  18  Am. 
Dec.  302;  Cobb  v.  Beaty,  3  T.  B.  Mon. 
(Ky.)  391;  Kirby  v.  Collins,  5  Wash. 
682. 

Condition  as  to  Costs. — As  when  the 
condition  of  the  bond  was  to  pay  all 
costs  which  should  be  taxed  against  the 
appellants  in  the  event  of  their  failure 
on  appeal,  instead  of  to  pay  such  costs 
in  the  event  of  their  failure  to  obtain  a 
reversal  of  the  decision  appealed  from. 
Foster  v.  Foster,  7  Paige  (N.  Y.).49. 

Directory  Provisions  of  Statute. — Non- 
compliance with  directory  provisions  of 
the  statute  does  not  vitiate  an  appeal 
bond  if  the  appellee  make  ;  no  objection 
on  that  ground.  Dore  v.  Covey,  13  Cal. 
503;  Van  Dusen  v.  Hay  ward,  17  Wend. 
(N.  Y.)  67;  Ives  V.  Finch,  22  Conn.  loi; 
Clinton  v.  Phillips,  7  T.  B.  Mon.  (Ky). 
119. 

What  Provisions  Directory. — In  Dore 
V.  Covey,  13  Cal.  503,  requirements  that 
residence  of  the  sureties  with  their  oc- 
cupations should  be  stated  in  the  under- 
taking, and  that  the  penalty  should  be 
in  double  the  amount  of  the  judgment, 
were  held  directory. 


992 


Amendment. 


APPEAL  BONDS. 


Power  to  Amend. 


3.  Power  to  Amend. — Appellate  courts  cannot  allow  a  substan- 
tially defective  appeal  bond  to  be  amended  without  statutory 
authority.*  But  such  statutory  authority  may  be  imphed  from  a 
general  authority  to  amend  appellate  proceedings.* 


Strict  Compliance  with  Substantial  Re- 
quirements.— The  substantial  require- 
ments of  the  statute  or  order  must 
be  strictly  complied  with.  Chambers 
V.  Miller,  7  Tex.  75;  Payne  v.  State, 
30  Tex.  397;  Bennett  v.  State,- 30 
Tex.  446;  Hasty  v.  State,  32  Tex.  97; 
Burch  V.  Bastrop,  38  Tex.  80;  Lockart, 
V.  Lytle,  36  Tex.  189;  Dosst'.  Griswold, 
I  Tex.  99;  State  v.  Judge,  16  La.  Ann. 
371;  Jordan  v.  McKenny,  45  Me.  306; 
State  V.  Boies,  41  Me.  346;  Bowie  v. 
Hogan,  5  How.  (Miss.)  13;  Crawfordf. 
^tna   L.    Ins.  Co.,   12  Heisk.   (Tenn.) 

154- 

Kecognizance. — Where  the  statute  re- 
quires separate  recognizance  from  the 
principal  and  his  sureties,  a  joint  re- 
cognizance is  not  sufficient.  Stroud  v. 
State,  33  Tex.  650. 

Where  the  obligation  of  the  sureties 
covers  but  one-half  the  amount  of  the 
recognizance,  it  is  fatally  defective. 
Adams  v.  State,  34  Tex.  526. 

A  recognizance  on  appeal  reciting 
that  defendant  shall  "appear  from 
day  to  day,  and  from  term  to  term,  and 
abide  the  decision  of  the  Supreme 
Court,  and  not  depart  without  leave," 
is  defective  as  stating  no  court  at 
which  he  is  bound  to  appear.  Maxwell 
V.  State,  38  Tex.  171. 

A  recognizance  should  state  the  time, 
place,  offense,  and  court  in  which  the 
party  is  required  to  appear.  Adler  v. 
State,  31  Tex.  61;  Breeding  v.  State,  31 
Tex.  94;  Hicklin  v.  State,  31  Tex.  492. 

A  recognizance  must  bind  the  appel- 
lant to  abide  the  judgment  of  the  court 
to  which  the  appeal  is  taken.  A  re- 
cognizance binding  the  defendant  to 
"  abide  the  judgment  of  the  State  of 
Texas  "  was  held  fatally  defective,  and 
the  appeal  was  dismissed  on  motion. 
Douglass  V.  State  (Tex.  Crim.  App., 
1893),  22  S.  W.  Rep.  43;  Cummings  v. 
State,  31  Tex.  Crim.  App.  406.  So  one 
which  describes  the  appellate  court  as 
the  "  Court  of  Appeals,"  instead  of 
"  Court  of  Criminal  Appeals."  Garza 
V.  State  (Tex.  Crim.  App.,  1893),  22  S. 
W.  Rep.  139. 

Voluntary  Bond. — An  appeal  bond,  al- 
though a  statutory  obligation,  is  a  vol- 
untary, not  an  official,  bond,  unless 
given  to  a  public  officer;  and  where  it 


substantially  conforms  to  the  statutory 
requirements  it  will  not  be  construed 
with  the  stringency  applicable  to 
official  bonds.  Forrest  v.  Havens,  3& 
N.  Y.  470. 

1.  Ramsey  z/.  Childs,  34  Hun  (N.  Y.) 
329.  Wilson  V.  Allen,  3  How.  Pr.  (N. 
Y.  Supreme  Ct.)  369;  Langley  v.  War- 
ner, 3  How.  Pr.  (N.  Y.  Ct.  of  App.)  363; 
Crawford  v.  Alexander,  14  La.  Ann. 
719;  Pittman  v.  Myrick,  16  Fla.  403; 
Walsh  V.  People,  12  111.  77;  Swafford  v. 
People,  2  111.  2S9;  Beebe  v.  Young,  13 
Mich.  222  ;  Cuddleback  v.  Parks,  2 
Greene  (Iowa)  148;  Ex.  p.  Chryslin,  4 
Cow.  (N.  Y.)  80. 

Filing  Bond  a  "Proceeding."  —  In 
O'Dea  V.  Washington  County,  3  Neb. 
122,  it  was  held  that  filing  an  appeal 
bond  was  a  "proceeding"  on  appeal 
within  the  meaning  of  the  statute  of 
correction. 

Criminal  Cases. — The  same  require- 
ment of  statutory  authority  applies  to 
criminal  cases.  Swafford  v.  People,  2 
111.  289;  Walsh  V.  People,  12  111.  77. 

2.  Wilson  V.  Allen,  3  How.  Pr.  (N.  Y. 
Supreme  Ct.)  369;  Shelton  v.  Wade,  4 
Tex.  148. 

Effect  of  Curative  Statutes. — Indiana. 
— Parties  are  deemed  to  have  entered 
into  an  appeal  bond  with  reference  to 
existing  statutes  of  amendment,  and 
their  intent  will  be  interpreted  in  the 
light  of  their  requirements.  State  v. 
Britton,  102  Ind.  216;  State  v.  Berg, 
50  Ind.  496. 

A  curative  statute  providing  that  no 
appeal  bond  shall  be  void  for  defects 
of  form  or  sustance,  but  that  such  de- 
fects shall  be  deemed  amended  in  con- 
formity with  the  statute,  binds  the 
principal  and  sureties  in  the  amount 
and  under  the  conditions  prescribed  by 
the  statute,  whatever  the  defects  of 
form  or  substance.  Ward  v.  Buell,  18 
Ind.  104,  81  Am.  Dec.  349;  Cook 
V.  State.  13  Ind.  154;  Sturgis  v. 
Rogers,  26  Ind.  i;  Huddson  v.  Arm- 
strong, 70  Ind.  99;  Opp.  V.  Ten  Eyck, 
99  Ind.  345;  Black  v.  State,  58 
Ind.  589;  Fuller  v.  Wright,  59  Ind. 
333;  Gavisk  v.  McKeever,  37  Ind.  484; 
Corey  v.  Lugar,  62  Ind.  60;  Dunn  v. 
Crocker,  22  Ind.  324;  Moore  v.  Jack- 
son, 35  Ind.  360;    Boden  v.   Dill,  58 


I  Encyc.  PI.  &  Pr.— 63. 


993 


Amendment. 


APPEAL  BONDS. 


Power  to  Amend. 


Discretion  of  Court. — Unless  the  statute  mandatorily  requires  the 
allowance  of  amendment  in  the  mode  specified,  it  is  a  matter  of 
discretion.* 

4.  Construction  of  Statutes. — Statutes  allowing  amendment  are 
liberally  construed  as  remedial.*  Where  it  appears  that  the 
appeal  is  taken  in  good  faith  the  appellant  will  generally  be  al- 
lowed toamend  an  insufficient,  or  file  a  new,  bond  on  seasonable 
application. 


Ind.  273;  Bugle  v.  Myers,  59  Ind.  73, 
overruling  Moline  v.  McClain,  3  Ind. 
532;  Epstein  v.  Greer,  85  Ind.  372. 

Their  effect  is  to  legalize  bonds  oth- 
erwise fatally  defective,  and  to  make 
them  by  force  of  the  statute  such  an 
instrument  as  the  statute  requires. 
Railsback  v.  Greve,  58  Ind.  72;  Miller 
V.  McAllister,  59  Ind.  491;  Turner  z/. 
State,  66  Ind.  210;  Graham  v.  State, 
66  Ind.  386;  State  v.  Wyant,  67  Ind.  25; 
Miller  z/.  O'Reilly,  84  Ind.  168;  State  z/. 
Britton,  102  Ind.  214;  Yeakle  v.  Wint- 
ers, 60  Ind.  554;  Smock  v.  Harrison,  74 
Ind.  348;  Jones  v.  Droneberger,  23  Ind. 
74;  Ward  V.  Buell,  18  Ind.  104,  81  Am. 
Dec.  349;  Easter  v.  Acklemire,  81  Ind. 
163;  Phillipi  Christian  Church  v.  Har- 
baugh,  64  Ind.  240;  Bugle  v.  Myers,  59 
Ind.  73;  Koeniger  v.  Creed,  58  Ind. 
554;  Corey  v.  Lugar,  62  Ind.  60;  Ful- 
ler V.  Wright,  59  Ind.  333;  Gavisk  v. 
McKeever,  37  Ind.  484. 

Omission  to  Name  Penalty. — An  omis- 
sion to  name  a  penalty  does  not  there- 
fore invalidate  a  bond  where  the  stat- 
ute prescribes  its  amount.  State  v. 
Britton,  102  Ind.  216. 

Omission  of  Proper  Condition. — In  Opp 
V.  Ten  Eyck,  99  Ind.  345,  it  was  held 
that,  where  a  statute  provided  that  an 
appeal  bond  should  be  conditioned,  in 
an  action  for  recovery  of  real  estate  to 
satisfy  all  damages  for  mesne  profits 
pending  the  appeal,  an  omission,  to  so 
condition  the  bond  does  not  affect  the 
validity  of  the  bond  or  release  the  ap- 
pellant from  the  statutory  require- 
ment. 

Limitation  on  Effect  of  Curative  Statute. 
— In  Sturgis  v.  Rogers,  26  Ind.  i,  it  was 
held  that  no  interpretation  of  a  statute 
would  be  givenvvhose  effect  would  be 
to  create  a  new  and  different  contract 
and  bind  parties  to  perform  it  unless 
the  statute  would  not  possibly  admit 
any  other  interpretation. 

1.  Shelton  v.  Wade,  4  Tex.  148; 
Crain  v.  Bailey,  2  111.  322;  Griffin  v. 
Belleville,  50  III.  422;  Harlan  v.  Scott, 
3   111.   66;   Zuckerman   v.  Howes,    146 


111.  59;  Martin  v.  Hunter,  i  Wheat. 
(U.  S.)  304;  Seward  v.  Corneau,  102 
U.  S.  161;  Hardt  v.  Schulting,  59  How. 
Pr.  (N.  Y.  Supreme  Ct.)  353;  Parker 
V.  McCunn,  9  N.  Y.  Wkly.  Dig.  245; 
Thomas  v.  Alton,  5  Mo.  534. 

Under  a  statutory  power  to  amend, 
errors  in  matters  of  substance  occur- 
ring through  inadvertence  or  mistake 
of  law  may  be  corrected.  Potter  v. 
Baker,  4  Paige  (N.  Y.)  292. 

2.  Gaddis  v.  Palmer,  60  Miss.  758; 
Germania    Bldg.,    etc.,    Co.    v.    Kern, 

4  Ohio  Cir.  Ct.  Rep.  35;  Reformed 
Presbyterian  Church  v.  Nelson,  35 
Ohio  St.  638;  Johnson  v.  Johnson,  31 
Ohio  St.  131;  Watts  v.  Shewell,  31 
Ohio  St.  331;  Hays  v.  Rush,  5  Cine. 
L.  Bull.  (Ohio)  328;  Thomas  v.  Alton, 

5  Mo.  534;  Hawthorne  v.  East  Port- 
land, 12  Oregon  210;  Architectural 
Iron  Works  Co.  v.  Brooklyn,  85  N.  Y. 
652;  Hoyer  v.  Mascoutah,  59  111.  137; 
Fink  V.  Disbrow,  69  111.  76;  Carroll  v. 
Jacksonville,  2  111.  App.  481;  Hinman 
V.  Kitterman,  40  111.  253;  Dedman  v. 
Barber,  2   111.  254;  Hubbard  v.  Freer, 

2  111.  469;  Waldo  V.  Averett,  2  111.  487; 
Rider  v.  Bagley,  47  111.  365;  Patty  v. 
Winchester,  20  111.  261;  Stilley  v.  King, 

3  111.  App.  338. 

3.  California, — Howard  v.  Harman,  5 
Cal.  78;  Billings  v.  Roadhouse,  5  Cal. 
71;  Coulter  V.  Stark,  7  Cal.  244;  Coker 
V.  Colusa  County,  58  Cal.  177;  Rabe  v. 
Hamilton,  15  Cal.  31;  Gray  v.  Amador 
County,  61  Cal.  337;  Cunningham  v. 
Hopkins,  8  Cal.  33;  McCracken  v.  Los 
Angeles  County,  86  Cal.  76. 

Illinois. — Weist  v.  People,  39  111.  507; 
Carroll  f.  Jacksonville,  2  111.  App.  481; 
Stuckey  v.  Churchman,  2  111.  App.  584; 
Appanooce  v.  Kneff,  2  111.  App.  583; 
Partridge  v.  Snyder,  78  111.  519;  Wear 
V.  Killeen,  38  111.  259;  Patty  v.  Win- 
chester, 20  111.  261;  South  Range  v. 
Starbird,  13  111.  49;  Hubbard  v.  Freer, 
2  111.  467;  Bragg  V.  Fessenden,  11  111. 
544;  Pacific  Express  Co.  v.  Hauptman, 
II  111.  App.  367. 

IVisconsin. — Russell    v.    Bartlett,    9 


994 


Amendment. 


APPEAL  BONDS. 


Power  to  Amend. 


Keview  of  Order  Allowing  or   Befusing  Amendment. — An   order   of   COurt 
granting  or  refusing  a  party  desiring  to  appeal  leave  to  amend  an 


Wis.  556;  Falk  v.  Goldberg,  45  Wis.  94; 
Gibank  v.  Stephenson,  30  Wis.  155; 
Branger  v.  Buttrick,  30  Wis.  153; 
Grant  v.  Connecticut  Mut.  L.  Ins.  Co., 

28  Wis.  387;  Paris  v.  Eager,  15  Wis. 
532;  Helden  v.  Helden,  9  Wis.  557; 
Gilbank  v.  Stephenson,  30  Wis.  155.  • 

Indiana. — State  z/.  Wyant,  67  Ind.  25; 
Murphy  v.  Steele,  51  Ind.  81;  Humble 
V.  Williams,  4  Blackf.  (Ind.)  473;  Mc- 
Call  V.  Trevor,  4  Blackf.  (Ind.)  496; 
State  V.  Berg,  50  Ind.  496;  Meehan  v. 
Wiles,  93  Ind.  52;  Yeakle  v.  Winters, 
60  Ind.  554;  Stevenson  v.  State,  71  Ind. 
52;  Graham  v.  State,  66  Ind.  386;  Rails- 
back  V.  Greve,  58  Ind.  72;  Miller  v. 
O'Reilly,  84  Ind.  168;  Gavisk  v.  Mc- 
Keever,  37  Ind.  484;  Clift  v.  Brown, 
95  Ind.  53. 

Ohio. — Irwin  v.  Bank  of  Bellefon- 
taine,  6  Ohio  St.  86;  Johnson  v.  John- 
son, 31  Ohio  St.  132;  Reformed  Pres- 
byterian Church  V.  Nelson,  35  Ohio 
St.  638;  Germania  Bldg.,  etc.,  Co.  v. 
Kern,  4  Ohio  Cir.  Ct.  Rep.  35. 

Montana. — Territory  z/.  Bell,  5  Mont. 
562;  Territory  v.  Milroy,  7  Mont.  559; 
Woodman  v.  Calkins,  12  Mont.  456; 
Stapletonz*.  Pease,  2  Mont.  508;  Pierse 
V.  Niles,  5  Mont.  549. 

Pennsylvania. — Kerr  v.  Martin,  122 
Pa.  St.  436;  Means  v.  Tront,  16  S.  &  R. 
(Pa.)  349;  Koenig  v.  Bauer,  57  Pa.  St. 
168;  Mcllhaney  v.  Holland,  iii  Pa.  St. 
634. 

New  York. — Ten  Eick  z'.  Simpson,  11 
Paige  (N.  Y.)  177;  Architectural  Iron 
Works  Co.  V.  Brooklyn,  85  N.  Y.  652; 
O'Sullivan  v.  Connors,  22  Hun  (N.  Y.) 
137. 

Iowa. — Brock  V.  Manatt,  i  Iowa  128; 
Hammitt  v.  Coffin,  3  Greene  (Iowa) 
205;  Mitchell   V.  Goflf,  18  Iowa  424. 

Oregon. — Hawthorne  v.  East  Port- 
land, 12  Oregon  210;  DeLashmutt  v. 
Sellvvood,  10  Oregon  319;  State  v.  Mc- 
Kinsmore,  8  Oregon  207. 

Tennessee. — Snyder  v.  Summers,  I 
Lea  (Tenn.)  482;  Andrews  v.  Page,  2 
Heisk.  (Tenn.)  641;  Morris  ?/.  Smith,  11 
Humph.  (Tenn.)  134. 

Nebraska.  —  Jacobs  v.  Morrow,  21 
Neb.  233;  Bazzo  v.  Wallace,  16  Neb. 
293;  Clark  V.  Strong,  14  Neb.  229. 

Texas. — George  v.  Lutz,  35  Te.x.  694; 
Shelton  v.  Wade,  4  Tex.  148. 

United  States. — O'Reilly  v.  Edring- 
ton,  96  U.  S.  724;  Furguson  v.  Dent, 

29  Fed.  Rep.  i. 


Arkansas. — Morrison  v.  State,  40 
Ark.  448. 

Minnesota.  —  Riley  v.  Mitchell,  38 
Minn.  13. 

Washington.  —  Kirby  v.  Collins,  5 
Wash.  682. 

Void  Bond. — A  bond  which  is  void 
cannot  be  amended,  as  the  court  ac- 
quires no  jurisdiction  over  the  appeal 
to  act  on  the  application.  Riley  v. 
Mitchell,  38  Minn.  13. 

Time. — Nor  can  a  bond  be  amended 
which  was  not  filed  within  the  statu- 
tory period,  as  the  allowance  of  the 
amendment  would  be  in  effect  to  allow 
a  new  appeal  after  the  time  for  appeal- 
ing had  expired.  Jacobs  z/.  Morrow,  21 
Neb.  233. 

Correction  by  Clerk. — The  clerk  has 
no  power  to  correct  irregularities  in  a 
bond  of  his  own  motion.  Livingston 
V.  White,  2  La.  Ann.  902. 

Amendable  Defects.  —  Omission  of 
some  of  the  conditions  required  by 
statute  is  an  amendable  defect.  John- 
son V.  Johnson,  31  Ohio  St.  131. 

Defective  Conditions. — So,  where  the 
appeal  bond  was  conditioned  that 
"said  appellant  will  pay  all  damages 
and  costs  which  may  be  awarded 
against  defendants  on  appeal,"  and 
omitted  the  words  required  by  stat- 
ute, "  or  on  a  dismissal  thereof,"  held 
amendable.  Woodman  v.  Calkins,  12 
Mont.  456. 

Acknowledgment.  —  The  failure  to 
acknowledge  an  appeal  bond  before  a 
proper  officer  may  be  cured  by  the 
allowance  of  a  new  acknowledgment 
to  the  bond  filed.  Ridabock  v.  Levy,  8 
Paige  (N.  Y.)  197. 

Statutory  Amount. — A  bond  deficient 
in  not  being  for  the  statutory  amount  is 
amendable.  Long  v.  Smith,  39  Tex. 
164;   King  V.  Hopkins,  42  Tex.  48. 

Naming  Only  One  Surety. — Where  an 
appeal  bond  is  deficient  in  naming  only 
one  surety  where  two  are  required,  it  is 
amendable.  Hays  v.  Rush,  5  Cine.  L. 
Bull.  (Ohio) 328;  Landaz'.  Heerman.Ss 
Tex.  i;  King  v.  Hopkins,  42  Tex.'  48. 

Name  of  Court. — The  failure  to  name 
the  court  to  which  the  appeal  is  taken 
is  amendable.  George  v.  Lutz,  35  Tex. 
694. 

Official  Negligence. — Where  the  bond 
is  defective  from  official  negligence  the 
parties  should,  where  any  power  of 
amendment  exists,  be  allowed  to  exe- 


995 


Amendment. 


APPEAL  BONDS. 


Power  to  Amende 


appeal  bond  is  reviewable  on   appeal  as   affecting  a  substantial 
right.* 

Eight  of  Appellee. — The  appellee  is  strictly  entitled  to  the  very- 
bond  prescribed  by  statute.*  He  may  compel  the  correction  of 
clerical  and  formal  errors  by  a  proper  motion,  although  they  are 
not  sufficient  to  authorize  the  appellate  court  to  dismiss  the 
appeal.*     And  where  the  defects  are  substantial,  his  motion  to 


cute  a  new  bond.  Adams  v.  Settles,  2 
Duv.  (Ky.)  76;  Bates  v.  Courtney,  i 
Dana  (Ky.)  145;  Ford  v.  Com.,  3  Dana 
(Ky.)  46;  Watters  v.  Patrick'  i  Bush 
(Ky.)  223;  Mamier  z/.  Lindsey,  3  Bush 
(Ky.)  94- 

Defects  in  Amended  Bond.  —  Where 
the  bond  filed  on  the  amendment  is 
also  defective  from  carelessness,  the 
court  will  allow  no  further  amendment, 
and  will  dismiss  the  appeal.  Smith  v. 
Keenam,  14  Mo.  530. 

Technical  Errors. — The  court  will  not 
exercise  its  power  to  allow  a  technical 
error  in  an  appeal  bond  to  be  corrected 
where  the  object  of  the  appeal  is  to 
take  advantage  of  a  technical  error  of 
the  appellee.  Ridabock  v.  Levy,  8 
Paige  (N.  Y.)  197. 

Alternative  Obligees. — A  bond  given 
on  appeal  from  a  decision  in  the  Sur- 
rogate's Court  to  the  Supreme  Court  to 
the  people  or  the  respondent  in  the 
alternative  is  defective,  but  is  amend- 
able on  a  motion  to  dismiss.  Marvin 
V.  Marvin,  11  Abb.  Pr.  N.  S.  (N.  Y.  Ct. 
of  App.)  100. 

Consent  of  Sureties.  —  An  appellant 
cannot  be  allowed  to  amend  an  appeal 
security  changing  the  liability  of  the 
sureties  without  their  consent.  Lang- 
ley  V.  Warner,  i  N.  Y.  606;  Ramsey  v. 
Childs,  34  Hun  (N.  Y.)  329. 

Recognizance. — The  statutory  recog- 
nizance required  on  appeal  in  a  crim- 
inal case  is  jurisdictional,  and  where 
defective  cannot  be  amended.  Hol- 
man  v.  State,  10  Tex.  558. 

Rules  of  Court. — Where  the  amount 
of  an  appeal  bond  and  the  manner  of 
approving  it  are  regulated  by  rules  of 
court,  the  court  may  dispense  with  the 
strict  letter  of  the  rule  and  permit  a 
new  bond  to  be  filed  and  approved  on 
payment  of  costs.  Eldridge  i/.  Howell, 
4  Paige  (N.  Y.)  459- 

Filing  No  Bond.  —  Where  no  bond 
whatever  has  been  filed,  the  appellate 
court  has  no  power  to  allow  a  new  bond 
to  be  filed  after  expiration  of  the  time 
to  appeal,  as  this  would  be  in  effect  to 
allow  a  new  appeal  after  the  statute 


had  run.  Nelson  v.  Tenny,  113  N.  Y. 
616;  Covell  V.  Mosely,  15  Mich.  514; 
unless  an  express  statute  allows  the 
appellate  court  to  supply  any  omission 
or  deficiency  in  perfecting  the  appeal. 
State  V.  Coahoma  County,  64  Miss. 
358;  Briggs  V.  Swales,  29  How  Pr. 
(N.  Y.  Supreme  Ct.)  201. 

Where  Statute  Directory. — Where  the 
statutory  provision  requiring  the  trial 
judge  to  take  a  bond  is  directory 
and  not  mandatory,  he  may  allow  ap- 
pellant to  file  new  bond  under  such 
conditions  as  he  shall  impose.  Martin 
V.  Hunter,  i  Wheat.  (U.  S.)  304;  Sew- 
ard V.  Corneau,  102  U.  S.  161. 

1.  Ramsey  v.  Childs,  34  Hun  (N.  Y.) 
329;  O'Sullivan  v.  Connors,  22  Hun 
(N.  Y.)  137;  Hardt  v.  Schulting,  59 
How.  Pr.  (N.  Y.  Supreme  Ct.)  353; 
Zuckerman  v.  Hawes,  146  111.  59. 

Abuse  of  Discretion.  —  It  is  not  an 
abuse  of  discretion  to  allow  a  new 
undertaking  to  be  filed  mine  pro  tunc 
where  the  justification  of  the  sureties 
on  the  prior  undertaking  had  been 
inadvertently  adjourned  "  out  of 
court."  Hardt  v.  Schulting,  59  How. 
Pr.  (N.  Y.  Supreme  Ct.)  353. 

Where  the  appellant  is  ruled  to  give 
an  appeal  bond  and  proffers  sureties 
which  he  deems  sufficient,  it  will  be 
considered  an  abuse  of  discretion  to 
refuse  permission  to  substitute  other 
sureties  if  those  proffered  prove  insuffi- 
cient.  Zuckerman  z'.  Hawes,  146  111.  59. 

2.  Chateaugay  Ore,  etc.,  Co.  v. 
Blake,  35  Fed.  Rep.  804;  Putnam  v. 
Boyer,  140  Mass.  237;  Acker  v.  Alex- 
andria, etc.,  R.  Co.,  84  Va.  650. 

3.  Chateaugay  Ore,  etc.,  Co.  v. 
Blake,  35  Fed.  Rep.  804;  Acker  v.  Alex- 
andria, etc.,  R.  Co.,  84  Va.  650;  James 
V.  Roberts,  78  Tex.  670;  Richardson  «'. 
Richardson,  83  Mich.  653;  Corey  v. 
Lugar,  62  Ind.  60. 

Where  there  is  any  doubt  of  the 
bond  offered  furnishing  the  full  pro- 
tection contemplated  by  the  statute,  it 
is  the  duty  of  the  court  to  require  a 
new  one  to  be  filed.  Kirby  v.  Collins», 
5  Wash.  682. 


996 


Amendment. 


APPEAL  BONDS, 


Motion  to  Amend. 


dismiss  must  be  granted  unless  a  proper  amendment  is  made,* 

5.  Motion  to  Amend — a.  Where  Made. — The  motion  to  amend 
must  be  made  in  the  court  to  which  the  appeal  is  taken,*  as  it  is 
incident  to  the  appeal,  which  has  passed  out  of  the  jurisdiction 
of  the  trial  court  by  filing  the  bond.^ 

b.  Time  of  Motion. — The  motion  for  leave  to  amend  should 
properly  be  made  before  the  motion  of  the  appellee  to  dismiss 
for   the   irregularity    comes   on    for   hearing."*     The   application 


The   Test  Whether  Recovery  May   Be 

Had  on  the  bond  actually  given  is  not 
final.  The  appellee  is  entitled  to  an 
entirely  regular  bond.  James  v.  Rob- 
erts, 78  Tex.  670;  Richardson  v.  Rich- 
ardson, 83  Mich.  653;  Corey  w.Lugar, 
62  Ind.  60.  But  a  bond  upon  which 
recovery  may  be  had  in  the  statutory 
amount  will  support  the  appeal  and 
justify  denial  of  a  motion  to  dismiss. 
Pleasants  v.  Botts,  5  Martin,  N.  S.  (La.) 
128. 

Trivial  Errors. — In  many  cases  it  is 
held  that  trivial  and  harmless  errors 
may  be  disregarded  by  the  appellate 
court  and  will  not  sustain  a  motion  to 
dismiss  or  to  compel  the  appellant  to 
amend.  Carmichael  v.  Holloway,  9 
Ind.  519;  McCall  v.  Trevor,  4  Blackf. 
(Ind.)  496;  McCrory  z/.  Anderson,  103 
Ind.  12;  Taylor  v.  State,  16  Tex.  App. 
514;  Kinsborough  v.  Pitts,  63  Ga.  496; 
Holly  V.  Perry,  94  N.  Car.  30;  Asch  v. 
Wiley,  16  Neb.  41. 

Defective  Acknowledgment. — Where 
only  a  simple  acknowledgment  for 
costs  is  required,  if  the  security  is  suf- 
ficient for  the  costs  of  the  appeal,  it 
will  not  be  invalidated  by  a  failure  to 
name  all  the  appellants  in  the  acknowl- 
edgment of  the  sureties.  Crump  v. 
Wallace,  27  Ala.  280. 

Unnecessary  Details.  —  A  condition 
substantially  conforming  to  the  stat- 
ute is  not  invalidated  by  a  long  recital 
of  unnecessary  details  and  irrelevant 
facts.     Ex  p.  Weissinger,  7. Ala.  710. 

Surplusage. — The  following  of  the 
statement  of  damages  and  costs  in  the 
appeal  bond  by  the  word  "and" — 
no  further  sum  being  mentioned — held 
immaterial.   Guezz/.  Dupuis,  152  Mass. 

454- 

1.  Putnam  v.  Boyer,  140  Mass.   237. 

2.  O'Sullivan  v.  Connors,  22  Hun 
(N.  Y.)  137;  Falk  V.  Goldberg,  45  Wis. 
94  ;  Pulte  V.  Wayne  Circuit  Judge,  47 
Mich.  646;  Parker  v.  Murray,  109 
N.  Y.  646. 

3.  O'Sullivan  v.  Connors,  22  Hun 
(N.  Y.)  137. 


Motion  by  Snrety. — The  motion  to 
amend  the  undertaking  may  be  prop- 
erly made  by  a  surety  thereto.  O'Sul- 
livan V.  Connors,  22  Hun  (N.  Y.)  137. 

Amendment  of  Bond  in  Lower  Coart. — 
But  an  appellate  court  has  no  discre- 
tionary power  except  by  statute  to 
allow  amendments  to  bonds  filed  to 
eftect  an  appeal  to  an  inferior  tribunal. 
Gillilan  v.  Gray,  13  111.  705. 

4.  Cross  V.  Chichester,  4  Oregon 
114;  State  V.  McKinsmore,  8  Oregon 
207;  Robeson  v.  Lewis,  64  N.  Car.  738. 

Practice. — The  motion  should  be  on 
notice  to  the  adverse  party,  and  the 
applicant  should  set  up  the  facts  upon 
which  he  bases  his  application  for  re- 
lief by  aflSdavit.  Rauschauft  v.  Car- 
penter, 63  Ind.  359. 

Where  statutes  do  not  mandatorily 
require  amendment  appellant  should 
show  a  good  excuse  and  a  diligent  en- 
deavor to  comply  with  the  statute. 
De  Lashmutt  v.  Sellwood,  10  Oregon 
51;  State  V.  McKinsmore,  8  Oregon 
207. 

Where  the  appellant  has  been 
guilty  of  gross  negligence  the  mo- 
tion will  be  denied.  Parker  v. 
McCunn,  9  N.  Y.  Wkly.  Dig. 
245.  But  where  an  appeal  has  been 
taken  in  good  faith  it  is  error  to  re- 
fuse leave  to  amend  a  defective  ap- 
peal bond  where  leave  is  seasonably 
asked.  Territory  v.  Milroy,  7  Mont. 
560;  Pierse  v.  Miles,  5  Mont.  549; 
Cunningham  v.  Hopkins,  8  Colo.  33. 

Order. — Where  under  a  statute  par- 
ties are  permitted  to  file  a  new  bond 
through  which  the  rights  of  parties 
adversely  interested  but  to  whom  the 
former  bond  was  not  made,  may  be 
affected,  the  order  allowing  the  filing 
should  require  notice  to  be  given  to 
such  parties.  First  Nat.  Bank  v.  Pres- 
ton Nat.  Bank,  85  Tex.  560. 

The  court  may  attach  to  the  order 
granting  leave  to  amend  a  further  or- 
der of  dismissal  in  case  the  terms  of 
amendment  are  not  complied  with. 
Robare  v.  Kendall,  22  Neb.  680. 


997 


Amendment. 


APPEAL  BONDS. 


Common-law  Bond, 


should  Strictly  be  accompanied  by  the  tender  of  a  proper  bond, 
duly  executed,  with  sufficient  surety;*  but  an  offer  to  file  a 
proper  bond  within  the  time  ordered  by  the  court  is  ordinarily 
sufficient,'*  and  if  a  proper  bond  be  actually  tendered  and  filed 
before  the  motion  to  dismiss  is  granted  the  court  will  ordinarily 
deny  it.^ 

6.  Common-law  Bond. — An  appeal  bond  is  not  necessarily  void 
because  invalid  as  a  statutory  obligation."*     Where  it  contains  the 


1.  Richardson  v.  Howk,  45  Ind.  451; 
Scotten  V.  Divelbiss,  46  Ind.  301. 

2.  Adams  v.  Law,  16  How.  (U.  S.) 
148;  Anson  v.  Blue  Ridge  R.  Co., 
23  How.  (U.   S.)  i;    Brobst  v.  Brobst, 

2  Wall.  (U.  S.)  96;  Catlett  v.  Brodie,  9 
Wheat.  (U.  S.)  555;  Deen  v.  Hemp- 
hill, Hempst.  (U.  S.)  154;  Seymour 
V.  Freer,  5  Wall.  (U.  S.)  822;  The  Dos 
Hermanos,  10  Wheat.  (U.  S.)  311; 
Swasey  v.  Adair,  83  Cal.  136;  Murphy 
V.  Consolidated  Tank  Line  Co.,  32  111. 
App.  614;  Thomas  v.  Georgia  R. ,  etc., 
Co.,  38  Ga.  222. 

3.  Missouri. — State  v.  Thompson,  81 
Mo.  163;  Bagley  v.  Kelly,  38  Mo.  App. 
623;  Jones  V.  Davis,  4  Mo.  28;  Will- 
iams V.  Watson,  34  Mo.  95;  Hamilton 
V.  Jeffries,  15  Mo.  617;  sec.  3053  Rev. 
Sts.  Mo.  1879. 

United  States. — Davidson  v.  Lanier, 
4  Wall.  (U.  S.)  447;  Edmondson; 
V.  Bloomshire,  7  Wall.  (U.  S.)  306 
Shepherd  v.  Pepper,  133  U.  S.  626; 
Brobst  V.  Brobst,  2  Wall.  (U.  S.) 
96. 

New  York. — Potter  v.  Baker,  4  Paige 
(N.  Y.)  290;  Van  Slyke  v.  Schmeck,  10 
Paige  (N.  Y.)  301. 

Wisconsin. — Russell  v.  Bartlett,  9 
Wis.   556;  Helden   v.   Helden,   9  Wis. 

557- 

Other  States. — Beebe  v.  Young,  13 
Mich.   221;  O'Dea  v.  Washington  Co., 

3  Neb.  122;  State  v.  Richards,  77  Ind. 

lOI. 

In  Murphy  v.  Steele,  51  Ind.  81,  it 
was  held  erroneous  to  grant  a  motion 
to  dismiss  an  appeal  where  the  appel- 
lant filed  a  good  and  sufficient  bond 
pending  the  motion  to  dismiss;  and  to 
the  same  effect,  see  Cunningham  v. 
Hopkins,  8  Cal.  33. 

Discretion  of  Court  in  Fixing  Time. — 
The  court  granting  the  motion  to 
amend  may,  by  an  exercise  of  reason- 
able discretion,  fix  the  time  within 
which  to  amend.  Weist  v.  People,  39 
III.  507;  Stilleyz'.  King,  3  111.  .^pp.  338. 

Allowing  Bond  to  be  Filed  after  Dis- 
missal Discretionary. — Where  the  appeal 


has  been  dismissed  for  insufficiency  it 
is  discretionary  with  the  court  to  set 
aside  the  dismissal  and  allow  a  new 
appeal  bond  to  be  filed.  Smith  v. 
Davis,  89  111.  203. 

In  Colorado  and  Illinois. — The  court 
will  not  dismiss  an  appeal  on  motion 
for  an  insufficient  appeal  bond  al- 
though the  appellant  does  not  ask 
leave  to  file  a  new  one;  but  a  rule 
will  be  made  making  the  dismissal 
absolute  on  the  appellant's  failure  to 
file  a  new  or  amended  bond  within  a 
reasonable  time  named  in  the  rule. 
Schofield  V.  Felt,  10  Colo.  146;  Wearz/. 
Killeen,  38  111.  259. 

And  in  Georgia  it  is  held  that  an  ap- 
peal should  not  be  dismissed  for  in- 
sufficient surety  until  the  appellant 
has  been  required  to  give  other  secu- 
rity or  show  cause  why  the  appeal 
should  not  be  dismissed.  Thomas  v. 
Georgia  R.,  etc.,  Co.,  38  Ga.  222. 

4.  Pray  v.  Wasdell,  146  Mass.  327; 
Meserve  v.  Clark,  115  111.  580;  Mix  v. 
People,  86  111.  329;  George  v.  Bischoff, 
68  111.  236;  Field  v.  Schricher,  14  Iowa 
119;  Park  V.  State,  4  Ga.  329. 

Consideration.  —  The  expenses  in- 
curred by  appellee  in  defending  the 
appeal  on  the  faith  of  the  bond  afford 
a  sufficient  consideration  to  sustain  it 
as  a  valid  contract.  Meserve  v.  Clark, 
115  111.  580;  George  v.  Bischoff,  68  111. 
236 ;  Reilly  v.  Atchinson  (Arizona, 
1893),  32  Pac.  Rep.  262;  Seacord  v. 
Morgan,  17  How.  Pr.  (N.  Y.  Supreme 
Ct.)  394. 

The  effect  given  by  the  statute  to 
an  appeal  bond  or  undertaking  is  a 
sufficient  consideration  therefor.  Post 
V.  Doremus,  60  N.  Y.  371. 

But  where  containing  obligations 
in  excess  of  the  requirement  of  statute, 
and  not  based  on  any  order  of  court 
or  independent  considerations  ex- 
pressed therein  or  shown  to  exist  by 
parol,  it  is  void  as  a  nudum  pactum. 
Post  V.  Doremus,  60  N.  Y.  371' 
Thompson  v.  Blanchard,  3  N.  Y.  335, 
Doolittle   V.  Dininny,   31    N.    Y.    350; 


998 


Appeals  in  Forma  Pauperis.    APPEAL    BONDS.    Appeals  in  Forma  Pauperis. 


essential  elements  of  a  good  contract  it  will  bind  the  obligors,* 
unless  the  statute  declares  that  none  other  than  the  statutory 
appeal  bond  shall  be  given'-*  or  the  bond  contravenes  public  pol- 
icy.3  In  other  cases  the  appellee  niay  ratify  an  appeal  bond  sub- 
stantially varying  from  the  statute  by  enforcing  it  as  a  common- 
law  contract  for  his  benefit.* 

XIV.  Appeals  in  Foema  Pauperis.— The  fact  that  appellant  is  a 
pauper  does  not  of  itself  relieve  him  from  the  necessity  of  giving 
an  appeal  bond.*  There  must  be  express  statutory  authority 
for  an  appeal  in  forma  pauperis.^ 

Requisites  of  Affidavit. — To  avail  himself  of  an  appeal  in  forma 
pauperis  the  appellant  must  file  an  affidavit  in  strict  conformity 
to  the  statute.'     The  affidavit   must   set  out  all  the  facts  making 


Seaman  v.  McReynolds,  50  How.  Pr. 
(N.  Y.  Super.  Ct.)425. 

Where  a  legitimate  statutory  pur- 
pose appears  to  have  been  intended,  it 
will  not  be  presumed  that  the  parties 
voluntarily  made  a  common-law  bond. 
Mathews  v.  Morrison,  13  R.  I.  309. 

Where  an  appeal  bond  is  given,  not 
in  pursuance  of  an  agreement  between 
the  parties,  but  to  secure  a  statutory 
privilege  which  is  not  gained  by  it, 
it  is  void  as  without  consideration. 
Powers  V.  Chabot,  93  Cal.  266;  Powers 
V.  Crane,  67  Cal.  65. 

Variance  from  Statute. — The  fact  that 
none  of  the  conditions  are  directed 
by  the  court  or  statute  does  not  affect 
its  validity  as  a  common-law  obliga- 
tion.    Mix  V.  People,  86  111.  329. 

1.  Meserve  v.  Clark,  115  111.  580  ; 
George  v.  Bischoff,  68  111.  236;  Smith  v. 
Whitaker,  11  111.  417;  Pritchett  v.  Peo- 
ple, 6  111.  525;  Higgins  v.  Parker,  48  111. 
445;  Courson  v.  Browning,  78  111.  208; 
Fournier  z'.Faggott,  4  111.  347;  Younge/. 
Mason,  8  111.  55;  Turner  v.  Armstrong, 
9  111.  App.  24;  Miner  v.  Rodgers,  65 
Mich.  225;  Healey  v.  Newton,  96  Mich. 
228;  Goodwin  v.  Bunzl,  102  N.  Y.  224; 
Cook  V.  Freudenthal,  80  N.  Y.  202; 
Decker  v.  Judson,  16  N.  Y.  439;  Nunn 
V.  Goodlet,  10  Ark.  89;  Dennard  v. 
State,  2Ga.  137;  Farnham  v.  Morrison, 
2  Ld.  Raym.  1138;  Johnson  v.  Lasere, 
2  Ld.  Raym.  145S;  Edgecomb  v.  Dee, 
Vaughan  102;  Saterlee  v.  Stevens,  11 
Ohio  420;  Pray  v.  Wasdell,  146  Mass. 
327;  Morse  v.  Hodson,  5  Mass.  314; 
Sweetser  v.  Hay,  2  Gray  (Mass.)  49; 
Bank  of  Brighton  v.  Smith,  5  Allen 
(Mass.)  413;  Conant  v.  Newton,  126 
Mass.  105;  U.  S.  V.  Linn,  15  Pet.  (U. 
S.)  290;  Cunningham  v.  Jacobs,  120 
Ind.  306;  Sheppard  v.  Collins,  12  Iowa 


570;  Williams  v.  Coleman,  49  Mo.  325; 
Barnes  v.  Webster,  16  Mo.  258,  57 
Am.  Dec.  252;  Baker  v.  Washington 
County,  53  Ind.  497  ;  Whitsett  v. 
Womack,  8  Ala.  475;  Sewall  v.  Frank- 
lin, 2  Port.  (Ala.)  493. 

2.  Sheppard  v.  Collins,  12  Iowa  573; 
Pray  v.  Wasdell,  146  Mass.  327;  Reitan 
V.  Goebel,  35  Minn.  384;  Sturgis  v. 
Rogers,  26  Ind.  i;  Whitsett  v.  Wo- 
mack, 8  Ala.  476. 

3.  Pray  v.  Wasdell,  146  Mass.  327. 
It  has  been  held  that  where  statutes 

expressly  provide  that  bonds  taken  in 
a  manner  different  from  that  therein 
prescribed  shall  be  void,  the  prohibi- 
tion does  not  invalidate  bonds  valid  ai 
common  law  unless  taken  under  color 
of  office  or  under  pretence  of  author- 
ity. Sheppard  v.  Collins,  12  Iowa 
574;  Burrall  v.  Acker,  23  Wend.  (N. 
Y.)  606. 

4.  Bartlett's  Appeal,  82  Me.  210  ; 
Tuck  V.  Moses,  54  Me.  115;  Holbrook 
V.  Klenert,  113  Mass.  268. 

5.  Whittaker  v.  Kershaw,  44  Ch. 
Div.  296;  Green  v.  Castello,  35  Mo. 
App.  127;  Butler  v.  Jarvis,  117  N.  Y. 
115:  Halloran  v.  Texas,  etc.,  R.  Co., 
40  Tex.  465. 

6.  Fite  V.  Black,  85  Ga.  413. 

7.  Holmes  v.  Mclntyre,  61  Tex.  9; 
Perry  v.  Scott,  68  Tex.  208;  Golightly 
V.  Irvine  (Tex.  App.,  1890),  15  S.  W. 
Rep.  48;  Perry  v.  Scott,  68  Tex.  208; 
State  V.  Duncan,  107  N.  Car.  818;  Gib- 
bons V.  McComb,  3  Ga.  252;  Hearnez'. 
Prendergast,  61  Tex.  627;  Halloran  v. 
Texas,  etc.,  R.  Co.,  40  Tex.  465. 

Who  May  Take  Affidavit. — And  so  an 
affidavit  on  appeal  in  forma  pauperis 
cannot  be  taken  before  any  other  than 
the  designated  officer.  Davis  v.  Dyer, 
5  Sneed  (Tenn.)  679. 


999 


Waiver  of  Defects 


APPEAL   BONDS. 


by  Appellee. 


a  case  within  the  statute,*  and  must  identify  the  judgment  with 
like  certainty  required  of  an  appeal  bond.*  It  must  be  made  by 
the  appellant  himself. 

XV.  Waiver  of  Defects  by  Appellee. — The  general  rule,  that  all 
technical  steps  in  appellate  procedure  pertaining  merely  to  bringing 
up  the  case  may  be  waived,  applies  to  the  statutory  requirements 
of  appeal  bonds.'  They  are  ordinarily  held  intended  purely  for 
the  appellee's  benefit,*  consequently  he  may  waive  all  security 
whatever.* 


1.  Elder  v.  Whithead,  25  Ga.  262; 
State  V.  Duncan,  107  N.  Car.  818;  Go- 
lightly  V.  Irvine  (Tex.  App.,  1890), 
15  S.  W.  Rep.  48. 

Allegations. — So  where  the  statute 
requires  that  an  appellant  in  forrna 
pauperis  shall  have  certain  qualifica- 
tions, the  allegation,  in  the  affidavit, 
of  each  such  qualification  is  jurisdic- 
tional, and  the  appeal  will  be  dis- 
missed on  motion  where  any  one  of 
them  is  wanting.  Golightly  z.'.  Irvine, 
(Tex.  App.,  1890),  15  S.  W.  Rep.  48; 
State  V.  Shoulders,  in  N.  Car.  637; 
State  V.  Wylde,  no  N.  Car.  500;  State 
V.  Tow,  103  N.  Car.  350;  State  v. 
Divine,  69  N.  Car.  390;  State  v.  Mor- 
gan, 77  N.  Car.  510;  State  v.  Moore, 
93  N.  Car.  500;  State  v.  Payne,  93  N. 
Car.  612;  State  v.  Jones,  93  N.  Car. 
617;  State  V.  Duncan,  107  N.  Car.  818. 

An  affidavit  on  appeal  in  forttia  pau- 
peris that  appellant  is  "  unable  to  pay 
the  costs  "  is  an  insufficient  compliance 
with  a  statute  requiring  him  to  make 
oath  that  he  "is  unable  to  pay  the 
costs  of  appeal  or  give  security  there- 
for." Golightly  V.  Irvine  (Tex.  App., 
1890),  15  S.  W.  Rep.  48. 

An  affidavit  alleging  that  appellant 
is  "unable  to  give  security,"  without 
alleging  that  it  is  because  of  his  pov- 
erty, is  insufficient.  Gibbons  v.  Mc- 
Comb,  3  Ga.  252. 

2.  Perry  v.  Scott,  68  Tex.  208; 
Holmes  v.  Mclntyre,  61  Tex.  g. 

Time  for  Filing. — As  the  affidavit 
takes  the  place  of  an  appeal  bond,  the 
court  has  no  power  to  allow  an  exten- 
sion of  the  time  within  which  it  may 
be  filed  without  express  authority. 
Stell  V.  Barham,  85  N.  Car.  88;  Leach 
V.  Jones,  86  N.  Car.  404;  State  v. 
Moore,  93  N.  Car.  500;  Warren  v. 
Harvey,  92  N.  Car.  137;  State  v.  War- 
ren, 100  N.  Car.  489. 

Amendment  to  Show  Appeal  in  Forma 
Pauperis. — Where  a  motion  is  made  to 
dismiss  an  appeal  for  lack  of  suf- 
ficient  security,    it  may  be   amended 

1000 


where  the  appellant  can  on  sufficient 
affidavit  show  the  necessary  qualifica- 
tion to  an  appeal  in  forma  pauperis. 
Burkhalter  v.  Bullock,  18  Ga.  371; 
Sample  v.  Cary,  19  Ga.  573. 

Not  Traversable. — The  affidavit  on  ap- 
appeal  in  forma  pauperis  is  not  trav- 
ersable.     Hines  v.  Rosser,  27  Ga.  85. 

A  Municipal  Corporation  may  enter  an 
appeal  in  forma  pauperis.  Savannah 
V.  Brown,  64  Ga.  229. 

Joint  Appeal  by  Husband  and  Wife. — 
In  McPhatridge  v.  Gregg,  4  Coldw. 
(Tenn.)  324,  it  was  held  that  where 
husband  and  wife  are  joint  parties  it 
is  necessary  only  for  the  husband  to 
take  the  oath  of  poverty  on  joint  ap- 
appeal  in  fortna  pauperis. 

3.  Thompson  v.  Lea,  28  Ala.  454; 
Martin  v.  Higgins,  23  Ala.  775;  Moore 
V.  Fiquett,  19  Ala.  318;  Merrill  v. 
Jones,  8  Port.  (Ala.)  554;  Wyatt  v. 
Judge,  7  Port.  (Ala.)  37;  Ives  v.  Finch, 
22  Conn.  loi;  State  v.  State,  12  Pet.  (U. 
S.)  720;  Bostwick  V.  Perkins,  4  Ga.  50; 
Holbrook  v.  Klenert,  113  Mass.  268; 
Tuck  V.  Moses,  54  Me.  115;  Greely  f. 
Currier,  39  Me.  516;  Hall  v.  Monroe, 
73  Me.  123. 

4.  Dore  v.  Covey,  13  Cal.  508;  Wild- 
man  V.  Rider,  23  Conn.  175;  Jones  v. 
Droneberger,  23  Ind.  74. 

Costs  of  Court— But  where  the  appeal 
bond  covers  costs  of  court  it  cannot  in 
any  event  be  waived.  Cape  Fear,  etc., 
Nav.  Co.  V.  Costen,  63  N.  Car.  264. 

5.  Jester  v.  Hopper,  13  Ark.  43; 
Wilson  V.  Dean,  10  Ark.  308;  Thomp- 
son V.  Lea,  28  Ala.  454;  Ross  v.  Ted- 
der, 10  Ga.  426;  Howard  v.  Harman, 
5  Cal.  79;  Coulters.  Stark,  7  Cal.  245; 
Forni  v.  Yodell,  95  Cal.  442;  Newman 
V,  Maldonado  (Cal.,  1892),  30  Pac.  Rep. 
833;  Billings  V.  Roadhouse,  5  Cal.  71; 
Pedrick  v.  Post,  85  Ind.  255;  West  z/. 
Cavins,  74  Ind.  265. 

Contra. — In  Massachusetts  and  Indi- 
ana it  is  held  that  the  provision  of  law 
requiring  an  appeal  bond  is  not 
wholly    intended    for    the    appellee's 


"Waiver  of  Defects 


APPEAL  BONDS. 


by  Appellee. 


What  Amounts  to  Waiver.— A  general  appearance,  as  by  joinder  in 
error  in  an  or  agreement  to  submit  the  cause  on  briefs  or  oral 
arguments,  is  a  sufficient  waiver.* 


benefit,  but  partly  on  the  ground  of 
public  policy,  to  discourage  frivolous 
and  vexatious  litigation.  Parties  can- 
not therefore  waive  all  appeal  security, 
since  it  would  be  equivalent  to  confer- 
ring jurisdiction  by  consent.  Santom 
V.  Ballard,  133  Mass.  464;  Folsom  v. 
Cornell,  150  Mass.  121  ;  Henderson 
-z/.  Benson,  141  Mass.  218;  Putnam  v. 
Boyer,  140  Mass.  235;  Ten  Brook  v. 
Maxwell,  5  Ind.  App.  353. 

Nor  in  Massachusetts  can  the  require- 
ment of  the  law  that  a  bond  shall  have 
a  surety  be  waived.  Henderson  v. 
Benson,  141  Mass.  219.  And  the 
objection  may  be  taken  any  time  be- 
fore judgment  is  rendered  on  appeal, 
as  it  goes  to  the  jurisdiction.  Hender- 
son V.  Benson,  141  Mass.  219;  Santom 
V.  Ballard,  133  Mass.  464;  Keene  v. 
White,  136  Mass.  23;  Wheeler  Mfg. 
Co.  V.  Burlingham,  137  Mass.  581. 
But  other  defects  may  be  waived. 
Folsom  V.  Cornell,  150  Mass.  120; 
Wheeler  Mfg.  Co.  v.  Burlingham,  137 
Mass.  581. 

Special  Proceeding.  —  Where,  in  a 
special  proceeding,  the  statute  makes 
the  right  of  the  appellate  tribunal  not 
strictly  judicial  in  its  character  de- 
pend on  certain  acts,  they  must  be 
strictly  complied  with.  State  v.  Fitch, 
30  Minn.  532. 

As,  where  an  appeal  was  taken  to  a 
justice  of  the  peace  from  the  denial  by 
county  commissioners  of  a  petition  to 
lay  out  a  highway,  it  was  held  that 
the  appeal  bond  with  sureties  as  re- 
quired by  statute  could  not  be  waived. 
State  V.  Fitch,  30  Minn.  532;  Riley  v. 
Mitchell,  38  Minn.  13. 

1.  Thompson  v.  Lea,  28  Ala.  453; 
Kirkpatrick  v.  Cooper,  8g  Me.  210; 
Cothren  v.  Connaughton,  24  Wis.  134; 
Blake  v.  Lyon  Mfg.  Co.,  75  N.  Y.  611: 
Yancey  v.  Greenlee,  90  N.  Car.  317; 
Dillingham  v.  Skein,  Hempst.  (U.  S.) 
181;  Hillz/.  Burk,62N.  Y.  iii;  Teall  e-. 
Van  Wyck,  10  Barb.  (N.  Y.)  376;  Acker 
■V.  Alexandria,  etc.,  R.  Co.,  84  Va.  650; 
Chicago,  etc.,  R.  Co.  v.  Abilene  Town 
Site  Co.,  42  Kan.  104;  Critchell  v. 
Brown.  72  Ind.  539;  Burdine  v.  Mustin, 
33  Ala.  634;  Myers  v.  Segars,  41  Ala. 
385;  Carter  v.  Thompson,  41  Ala. 
375;  Magruder  v.  Campbell,  40  Ala. 
611;    Alexander    v.    Nelson,    42    Ala. 


462;  Bryan  v.  Berry,  8  Cal.  130;  Win- 
ona Paper  Co.  v.  First  Nat.  Bank,  33 
111.  App.  630;  Martin  v.   Hochstadter, 

27  111.    App.     166;     Evans    v.    Pigg, 

28  Tex.  586;  Wheeler  Mfg.  Co.  v.  Bur- 
lingham, 137  Mass.  581;  Simonds  v. 
Parker,  i  Met.  (Mass.)  508;  Kittridge 
V.  Bancroft,  i  Met.  (Mass.)  514;  Clark 
V.  Connecticut  R.  Co.,  6  Gray  (Mass.) 
363;  O'Loughlin  v.  Bird,  128  Mass. 
600;  Norris  v.  Munroe,  128  Mass.  386; 
Gruber  v.  Washington,  etc.,  R.  Co., 
92  N.  Car.  i;  Hancock  v.  Bramlett, 
85  N.  Car.  393;  Harshaw  f .  McDowell, 
89  N.  Car.  181;  McMillan  v.  Nye,  90  N. 
Car.  II.  Unless  the  case  be  such  that 
the  Supreme  Court  cannot  take  juris- 
diction of  the  appeal.  Johnston  v. 
Fort,  30  Ala.  78;  Parish  v.  Galloway, 
34  Ala.  163;  Mabry  v.  Dickens,  31  Ala. 

243- 

Special  Appearance. — But  an  appear- 
ance for  the  special  purpose  of  object- 
ing to  the  jurisdiction  constitutes  no 
waiver.      Bubb  v.  Cain,  37  Kan.  692. 

Acceptance. — The  acceptance  and  ap- 
proval of  an  appeal  bond  by  appellee 
is  a  waiver  of  any  defects  therein.  So, 
where  the  appellee  consents  to  a  dif- 
ferent form  of  security  than  that  des- 
ignated by  the  court  or  statute,  he  can- 
not object  that  it  is  insufficient.  Jones 
V.  Potter,  89  N.  Car.  220;  Greenlee  v. 
McCalvey,  92  N.  Car.  530;  Buchanan 
V.  Mulligan,  125  Ind.  334;  Norris  v, 
Munroe,  128  Mass.  3S6. 

Statements  of  the  Case. — A  statement 
in  the  case  on  appeal  settled  by  the 
judge,  that  "  bond  was  given  "  or 
"  filed  "  or  "approved,"  is  construed  as 
indicating  a  tender  and  acceptance  of 
the  bond  in  open  court  by  the  appellee 
and  a  waiver  of  all  objections  thereto. 
Hancock  v.  Bramlett,  85  N.  Car.  393; 
Gruber  v.  Washington,  etc.,  R.  Co., 
92  N.  Car.  i;  Harshaw  v.  McDowell, 
89  N.  Car.  181;  Singer  Mfg.  Co.  v. 
Barrett,  94  N.  Car.  219. 

Objections  Must  Be  Timely. — It  is  a 
general  rule,  applicable  to  all  objec- 
tions to  appellate  proceedings  on  ac- 
count of  errors  in  the  technical  mode 
of  bringing  up  the  case,  that  they 
should  be  made  at  the  earliest  possi- 
ble moment.  Thus,  where  the  appel- 
lee failed  to  object  to  deficiencies  in 
the  appeal   bond  until  a  whole  term 


Uotion  to  Dismiss. 


APPEAL   BONDS. 


The  Sureties^ 


XVI.  Motion  to  Dismiss. — An  appellant  is  estopped  from  moving- 
for  dismissal  on  the  ground  of  defects  in  his  own  appeal  bond. 
Where  moved  for  by  the  appellee,  the  defects  complained  of  must 
be  specifically  pointed  out  in  the  motion  or  they  will  be  deemed 
waived.* 

XVII.  The  Sureties — 1.  Qualifications— a  Necessary  Party  to  the 
appellate  proceeding  cannot  act  as  surety  on  an  appeal  bond 
iriven  therein.* 


had  intervened,  his  objection  was  held 
too  late.  Wallace  v.  Corbitt,  4lred.  (N. 
Car.)  45;  Arrington  z/.  Smith,  4  Ired. 
(N.  Car.)  59;  McDowell  v.  Bradley,  8 
Ired.  (N.  Car.) 92;  Robinson  v.  Bryan, 
12  Ired.  (N.  Car.)  183;  McMillan  v. 
Davis,  7  Jones  (N.  Car.)  218;  Council 
V.  Monroe,  7  Jones  (N.  Car.)  396; 
March  v.  Griffith,  8  Jones  (N.  Car.)  264; 
Howze  V,  Green,  Phil.  Eq.  (N.  Car.) 
250;  Hutchinson  v.  Rumfelt,  82  N. 
Car.  425;  Jenkins  v.  Cockerbaum,  i 
Ired.  (N.  Car.)  309;  Torrence  v.  Gra- 
ham, I  Dev.  &  B.  (N.  Car.)  284. 

1.  Scranton  v.  Bell,  35  Tex.  413; 
Jester  v.  Hopper,  13  Ark.  48;  Healy  v. 
Seward,  5  Wash.  319;  Cason  v.  Laney, 
82  Tex.  317;  Casey  v.  Peebles,  13  Neb. 
9;  Bazzo  V.  Wallace,  16  Neb.  290. 

Behearing. — Where  an  appeal  has 
been  dismissed  for  failure  to  prosecute, 
and  a  motion  to  reinstate  is  opposed  on 
account  of  defects  in  the  appeal  bond, 
it  is  too  late  to  offer  to  file  a  new  bond 
on  petition  for  rehearing.  Tevis  v. 
O'Connell,  21  Cal.  512. 

Retainer. — Where  on  appeal  the 
plaintiff's  attorney  served  a  general 
notice  of  retainer  on  the  appellant 
under  the  mistaken  notion  that  an  un- 
dertaking had  been  filed,  it  was  held, 
on  motion  to  dismiss,  that  the  retainer 
might  be  withdrawn  and  cancelled, 
and  that  appellee,  having  relied  upon 
the  waiver,  might  be  permitted  to  file 
an  undertaking  without  costs  to  either 
party.  Schaffer  7-.  Jones  (Buffalo 
Super.  Ct.),  20  N.  Y.  Supp.  531. 

Bond  to  be  Filed. — In  Cunningham 
V.  Hopkins,  8  Cal.  34,  the  refusal  of  a 
County  Court  to  permit  a  bond  to  be 
filed  in  that  court  on  appeal  from  a 
judgment  of  a  justice  of  peace  was 
held  sufficient  ground  to  reverse  the 
judgment. 

Estoppel  in  Suit  on  Bond. — A  defect 
which  would  warrant  a  dismissal  of 
the  appeal  if  properly  objected  to  con- 
stitutes no  defensein  a  suit  on  the  bond 
to  enforce  the  obligation,  since  the  ap- 
pellant and  his  sureties  are  estopped 
from  raising  it.  Trueblood  v.  Knox,  73 


Ind.  310;  Deardorflf  v.  Ulmer,  34  Ind. 
353;  Cunningham  v.  Jacobs,  120  Ind. 
306;  Peellez/.  State,  118  Ind.  512;  Sam- 
mons  V.  Newman,  27  Ind.  508;  Har- 
baugh  V.  Albertson,  102  Ind.  69;  Gray 
V.  State,  78  Ind.  68,  41  Am.  Rep.  545; 
Bugle  V.  Myers,  59  Ind.  73;  Lucas  v. 
Shepherd,  16  Ind.  368;  Carver  v.  Car- 
ver,77  Ind.  498;  Stevenson  v.  Miller,  2 
Litt.  (Ky.)  306. 

2.  Hudson  v.  Gray,  58  Miss.  591  r 
Barrow  v.  Clack,  45  La.  Ann.  478; 
State  V.  New  Orleans,  2  Rob.  (La.) 
449;  Lafon  V.  Lafon,  2  Martin,  N.  S. 
(La.)  571;  Syme  v.  Badger,  91  N.  Car. 
272;  Labadie  v.  Dean,  47  Tex.  go; 
Nichols  V.  MacLean,  98  N.  Y.  458; 
Grimwood  v.  Wilson,  31  Hun  (N.  Y.) 
216;  Morse  v.  Hasbrouck,  63  How. 
Pr.  (N.  Y.  Supreme  Ct.)84. 

Representative  Party. — A  party  sued 
in  a  representative  capacity  cannot  be 
surety  on  his  own  bond  in  a  private 
capacity.  State  v.  New  Orleans,  2 
Rob.  (La.)449;  Lafon  v.  Lafon,  Martin 
N.  S.  (La.)  571. 

Official. — A  clerk  of  court  is  compe- 
tent surety  on  bond  taken  in  his  own 
court.  Russell  v.  Sprigg,  10  La.  423. 
The  official  designated  to  approve  the 
bond  cannot  become  surety  thereon. 
Jourdan  v.  Chandler,  37  Tex.  55. 

Party  Not  Materially  Interested. — 
Where  it  appears  by  the  record  that 
a-party  is  not  materially  interested  in 
the  result  of  the  appeal,  his  suretyship 
is  valid.  Syme  v.  Badger,  91  N.  Car. 
272.  And  see  Leffel  v.  Obenchain,  go 
Ind.  50. 

A  Husband  is  a  competent  surety  for 
a  wife  sued  on  a  debt  for  which  she  is 
alone  liable,  although  a  nominal  party. 
Shiff  t'.  Wilson,  3  Martin,  N.  S.  (La.i  91. 

Party  as  Agent  for  Real  Appellant. — 
A  litigant  who  is  a  party  to  the  suit 
only  in  his  capacity  as  agent  for  the 
real  appellant  is  a  competent  surety. 
Montan  v.  Whitley,  12  La.  Ann.  175. 

A  Partnership  Firm  may  become  sure- 
ties on  an  appeal  bond.  Boney  v. 
Waterhouse,  35  Tex.  178.  But  a  part- 
ner has   no  authority  to  sign   a  firm- 


Contract  of  Suretyship. 


APPEAL  BONDS. 


Qaalifications. 


\ 


Statutory  Qualifications. — A  surety  should  be  a  citizen  of  the  state 
where  the  suit  is  brought,  and  should  possess  the  qualifications 
required  by  statute.^ 

The  Acceptance  of  a  Surety  as  pecuniarily  sufficient  rests  in  the  rea- 
sonable discretion  of  the  court  pr  officer  designated  to  approve 
the  bond.* 


name  as  surety,  and  unless  specially 
authorized  by  the  firm  the  signature 
does  not  bind  them.  Charman  v. 
Warner,  i  Oregon  339. 

Effect  of  Disqualification  of  Surety. — 
The  disqualification  of  a  surety  does 
not  wholly  nullify  the  bond.  It  con- 
fers jurisdiction  for  the  purpose  of 
amendment,  or  it  may  be  waived  by 
appellee.  McClelland  v.  Allison,  3  Kan. 
155.  And  in  Texas  it  is  held  that  the 
fact  that  a  party  to  the  action  signed 
the  bond  as  a  surety  is  not  a  sufficient 
ground  for  dismissing  the  appeal,  the 
bond  having  been  approved  by  th6 
court  below.  Voss  v.  Feurmann  (Tex. 
Civ.  App.,  1893),  23  S.  W.  Rep.  936. 

Surety  Companies. — Where  a  surety 
company  has  unquestionable  power  by 
its  charter  to  act  as  surety  on  bonds,  it 
may  in  the  discretion  of  the  approving 
power  be  accepted  as  surety  on  an  ap- 
peal bond.  Black  v.  Black.  53  Fed.  Rep. 
985;  Cramerz'.  Tittle,  72  Cal.  12;  Hurd 
V.  Hannibal,  etc.,  R.  Co.,  33  Hun  (N. 
Y.)  109;  Earle  v.  Earle,  49  N.  Y.  Super. 
Ct.  57;  Travis  v.  Travis,  48  Hun.  (N. 
Y.)  343;  McGean  v.  McKellar,  67  How. 
Pr.  (N.  Y.)  273. 

Where  a  corporation  acts  as  sole 
surety  it  must,  when  excepted  to,  show 
bona-fide  surplus  assets  at  least  equal 
to  the  undertaking.  Fox  v.  Hale,  etc.. 
Silver  Min.  Co.,  97  Cal.  353. 

But  a  bond  with  such  surety  will  not 
be  approved  where  there  is  reason  to 
question  the  power  of  the  company  to 
bind  itself  by  such  an  obligation. 
Black  V.  Black,  53  Fed.  Rep.  985. 

Acceptance  of  Surety  Company.  —  A 
surety  company  capitalized  at  an 
amount  much  less  than  the  undertak- 
ing is  not  acceptable  as  a  surety,  al- 
though its  individual  stockholders  are 
liable  for  its  debt  and  are  amply  able 
to  discharge  any  liability  arising  on  the 
undertaking.  Fox  v.  Hale,  etc..  Sil- 
ver Min.  Co.,  97  Cal.  353. 

An  undertaking,  executed  by  a  for- 
eign surety  company,  and  signed  in  its 
behalf  by  its  second  vice-president  and 
assistant  secretary,  with  the  seal  of  the 
corporation  affixed,  will  not  be  de- 
clared   void,    as   not    being    properly 


signed,  where  there  is  nothing  to  show 
that  such  officers  were  not  authorized 
to  sign  and  deliver  it.  Gutzeil  v. 
Pennie,  95  Cal.  598. 

A  surety  company  sustaining  an  av- 
erage loss  of  \7.\  per  cent  of  the  premi- 
ums paid  in  was  accepted  as  sufficient, 
although  its  total  capital  was  but  5V  of 
the  amount  of  its  liabilities  on  bonds. 
Rosenwald  v.  Phoenix  Ins.  Co.  (Su- 
preme Ct.),  9  N.  Y.  Civ.  Pro.  Rep.  444. 

Such  corporation  need  not  show  the 
personal  qualification  of  sureties,  al- 
though it  must  justify  in  like  manner. 
Its  acceptance  is  discretionary  with  the 
judge.  Earle  v.  Earle,  49  N.  Y.  Super. 
Ct.  57- 

1.  Ulrich  V.  Farrington  Mfg.  Co.,  69 
Wis.  214;  Smith  v.  Chicago,  etc.,  R. 
Co.,  19  Wis.  89;  Bonesteel  v.  Orvis,  20 
Wis.  646;  Bonell  v.  Easterly,  30  Wis. 
553;  Barrow  v.  Clack,  45  La.  Ann.  478; 
Snedicor  v.  Barnett,  9  Ala.  434;  Bush- 
ong  z'.Graham,  4  Ohio  Cir.  Ct. Rep. 138. 

Need  Not  be  Besidents  of  County. — But 
not  of  county  where  venue  is  laid,  un- 
less statute  so  requires.  Bushong  v. 
Graham,  40  Ohio  Cir.  Ct.  Rep.  13S. 

Affidavit  of  Worth. — Where  surety 
must  make  affidavit  of  his  pecuniary 
condition  by  statute,  the  affidavit  must 
accompany  the  bond  to  validate  it. 
Bailey  v.  Rutjes,  91  N.  Car.  420;  State 
V.  Wagner,  91  N.  Car.  521;  Turner  v. 
Quinn,  91  N.  Car.  92;  Anthony  v.  Car- 
ter, gi  N.  Car.  229;  Bryson  v.  Lucas, 
85  N.  Car.  397;  Holcomb  v.  Teal,  4 
Oregon  352;  Alberson  v.  Mahaflfey,  6 
Oregon  412;  State  v.  McKinmore,  8 
Oregon  207;  Pencinse  v.  Burton,  9 
Oregon  178. 

Such  affidavit  must  be  made  by  the 
surety  in  person,  or  it  will  be  void. 
Morphew  v.  Tatem,  89  N.  Car.  183. 

Where  a  statutory  provision  requires 
an  undertaking  to  be  accompanied  by 
an  affidavit  of  sureties  that  they  are 
worth  an  amount  defined,  the  affidavits 
are  sufficient  although  they  exceed  the 
same.  Hill  v.  Burk,  62  N.  Y.  in;  Ex 
p.  Eastabrook,  5  Cow.  (N.  Y.)  27;  Gib- 
bons?'. Berhard,3  Bosw.  (N.  Y.)  635. 

2.  Williams  v.  Claflin,  103  U.  S.  753. 
See  XVII.  5.  Review  of  Approval,  infra^ 


1003 


Contract  of  Suretyship. 


APPEAL  BONDS. 


Number  of  Sureties. 


Pecuniary  Responsibility.— A  surety  is  sufficient  who  in  all  reasonable 
probability  will  be  pecuniarily  responsible  for  the  amount  of  the 
bond.* 

Attorney  as  Surety.— Where  duly  excepted  to,  an  attorney  was  not 
good  bail  in  error  at  common  law.*  Where  the  statute  expressly 
disqualifies  him  as  surety  a  bond  signed  by  him  is  fatally  defec- 
tive.^ But  the  disqualification  at  common  law  or  by  rule  of  court 
does  not  avoid  the  appeal  bond,'*  although  the  attorney  may  be 
liable  for  contempt  of  court  in  disobeying  the  rule.* 

2.  Sureties  on  Bond  in  Suit. — Where  a  judgment  is  rendered  on  a 
bond  against  a  principal  and  his  sureties  thereon,  the  sureties  be- 
come parties  to  the  judgment,  and  on  appeal  therefrom  they  can- 
not again  act  as  sureties  on  the  appeal  bond.®  It  is  otherwise 
where  the  judgment  is  rendered  only  against  the  principal.'' 

3.  Number  of  Sureties. — A  statute  requiring  "sureties"  on  an 
appeal  bond  impliedly  requires  more  than  one.*  Where  two 
sureties  are  required,  an  appeal  bond  with  one  only  is  defec- 
tive on  a  motion  to  dismiss  unless  the  defect  is  amended  or 
waived.® 


1.  Zuckerman  v.  Hawes,  146  111.  59; 
Rosenwald  v.  Phcenix  Ins.  Co.,  9  Civ. 
Pro.  Rep.  (N.  Y.  Supreme  Ct.)  444; 
Black  V.  Black,  53  Fed.  Rep.  985. 

A  surety  on  an  appeal  bond  cannot 
be  rejected  because  of  incumbrances 
on  his  real  property  when  his  resid- 
uary interest  in  it  is  so  large  as  to 
amply  secure  his  liability  on  the  bond 
Zuckerman  v.  Hawes,  146  111.  59. 

When  Surety  Incompetent. — A  surety 
is  not  competent  against  whom  execu- 
tions have  been  issued  and  returned 
unsatisfied.  Squier  v.  Stockton,  5  La. 
Ann.  741. 

Real  Estate. — A  surety  required  by 
statute  to  prove  his  solvency  must 
show  the  possession  of  real  estate. 
State  V.  Rightor,  36  La.  Ann.  711. 

2.  Studwell  V.  Palmer,  3  Paige  (N. 
Y.)  57. 

3.  Ohio,  etc.,  R.  Co.  v.  Hardy,  64 
Ind.  454. 

4.  Ohio,  etc.,  R.  Co.  v.  Hardy,  64 
Ind.  454;  State  z/.  Costello,  61  Conn. 
497;  Banter  v.  Levi,  i  Chit.  Rep.  713, 
18  E.  C.  L.  212;  Harper  v.  Tahourdin, 
6  M.  &  S.  3S3;  Shugar  v.  Muniford,  i 
Pa.  Dist.  Ct.  Rep.  324. 

But  it  was  not  ground  for  a  motion 
to  quash  the  writ  of  error.  Studwell 
V.  Palmer,  5  Paige  (N.  Y.)  57. 

5.  Ohio,  etc.,  R.  Co.  v.  Hardy,  64 
Ind.  454. 

Surety  as  Party. — A  surety  is  not  such 
a  party  to  the  suit  that  he  must  be 
consulted  in  regard  to  any  step  taken 


in  the  case  before  final  judgment. 
Bailey  v.  Rosenthal,  56  Mo.  385. 

6.  Davis  V.  McCampbell,  37  Ala. 
609;  Eufaula  Home  Ins.  Co.  v.  Plant, 
36  Ga.  623;  French  v.  Davidson,  32 
La.  Ann.  718;  Bowman  v.  Kaufman, 
30  La.  Ann.  1021. 

T.  Sampson  v.  Solinsky,  75  Tex.  664; 
Trammell  v.  Trammell,  15  Tex.  291; 
Saylor  v.  Marx,  56  Tex.  go;  Heiden- 
heimer  v.  Bledsoe,  i  Tex.  App.  317; 
Word  V.  Reither,  2  Tex.  App.  Civ.  Cas. 
§778;  Witten  V.  Caspary  (Tex.,  1890), 
15  S.  W.  Rep.  47;  Mehmert  v.  Diet- 
rich, 36  La.  Ann.  390;  Leeds  v.  Yeat- 
man,  12  La.  383;  Pasley  v.  McConnelL 
39  La.  Ann.  1097;  Greiner  v.  Prender- 
gast,  2  Rob.  (La.)  235;  Lee  v.  Lord, 
75  Wis.  35. 

Thus  sureties  on  a  bond  given  to 
secure  costs  of  a  suit  may  become 
sureties  on  an  appeal  bond  given  on 
appeal  from  a  judgment  rendered 
against  the  principal  therein.  Samp- 
son V.  Solinsky,  75  Tex.  664. 

8.  Harris  v.  Register,  70  Md.  log; 
Riley  v.  Mitchell,  38  Minn.  11;  Blake 
V.  Sherman,  12  Minn.  305;  State  v. 
Fitch,  30  Minn.  532;  Van  Wezel  v.  Van 
Wezel,  3  Paige  (N.  Y.)  38;  Hooper  v. 
Brinson,  10  Tex.  296. 

9.  Casey  v.  Peebles,  13  Neb.  7;  Tor- 
rent V.  Muskegon  Booming  Co.,  2 
Mich.  159;  Beebe  v.  Young,  13  Mich. 
221;  Bartlett's  Appeal,  82  Me.  210; 
Greeley  v.  Currier,  39  Me.  516;  Hall 
V.  Monroe,  73  Me.  123;  Tuck  v.  Moses, 


1004 


Contract  of  Suretyship. 


APPEAL   BONDS. 


Exception  to  Sureties.. 


4.  Exception  to  Sureties — Under  Code  Procedure. — Where  the  appellee 
deems  the  sureties  offered  insufficient  he  must  serve  notice  of 
exception  to  them  upon  the  appellant  within  the  time  required 
by  the  statute,  or  all  objections  are  deemed  waived. ^  The  sure- 
ties must  thereupon  justify  before  the  official  designated  by 
statute,  and  notice  of  justification,  as  the  statute  requires,  must  be 
served  upon  the  appellee.*     The   failure  of  the  sureties  on  an 


54  Me.  115;  Van  Wezel  v.  Van  Wezel, 
3  Paige  (N.  Y.)  38;  North  American 
Co.  V.  Dyett,  4  Paige  (N.  Y.)  38. 

A  bond  with  one  surety  is  amend- 
able. Riley  v.  Mitchell,  38  Minn.  11. 
See  XIII.  Amendment  and  XV.  Waiv- 
er, ante. 

Surety  Company. — Where  the  statute 
requires  "  sureties  "  a  surety  company 
is  not  sufficient  without  the  addition 
of  another  surety,  unless  the  statute 
expressly  so  provides.  White  v.  Rin- 
toul,  6  Civ.  Pro.  Rep.  (N.  Y.  Super. 
Ct.)  259;  Cramer  v.  Tittle,  72  Cal.  12; 
Hurd  V.  Hannibal,  etc.,  R.  Co.,  67 
How.  Pr.  (N.  Y.  Supreme  Ct.)  516; 
McGean  v.  MacKelter,  67  How.  Pr. 
(N.  Y.  Super  Ct.)  273. 

1.  Lewis  V.  Lewis,  4  Oregon  209; 
Culliford  V.  Gadd  (Super.  Ct.),  22 
N.  Y.  Supp.  539;  Hoffman  v.  Smith,  34 
Hun(N.  Y.)485. 

Perfecting  the  Appeal. — Where  the 
appellant  fails  to  except  to  the  sure- 
ties until  the  expiration  of  the  time 
defined  by  statute  for  taking  an  ex- 
ception to  their  sufficiency,  the  appeal 
becomes  perfected;  and  a  motion  to 
compel  the  sureties  thereafter  to  sub- 
mit to  examination  of  their  qualifica- 
tion will  be  denied.  Culliford  v.  Gadd 
(Super.  Ct.),  22  N.  Y.  Supp.  539;  State 
V.  Judge,  13  La.  574;  Callahan  v.  Port- 
land, etc.,  R.  Co.,  17  Oregon  556. 

Form. — An  objection  to  the  form 
merely  of  the  affidavit  attached  to  an 
undertaking  on  appeal  is  not  a  good 
objection  to  the  sufficiency  of  the  sure- 
ties obliging  them  to  justify.  Schacht 
V.  Odell,  52  Cal.  447. 

2.  Judson  V.  Bulen,  6  Dakota  70; 
Kelsey  v.  Campbell,  14  Abb.  Pr.  (N.  Y. 
Supreme  Ct.)  368;  Chamberlain  v. 
Dempsey,  22  How.  Pr.  (N.  Y.  Super. 
Ct.)  356;  Stark  v.  Barrett,  15  Cal.  361. 

Where  no  notice  of  justification  is 
given  to  the  appellee,  the  appeal  may 
be  dismissed  on  motion  unless  the  ap- 
pellant offers  a  new  bond.  Stack  v. 
Barrett,  15  Cal.  361;  Cummins  v.  Scott, 
23  Cal.  526. 

Parol  Notice. — Parol  notice  of  justifi- 


cation of  sureties  on  an  appeal  bond  is 
good  unless  written  notice  is  expressly 
required  by  statute.  Judson  v.  Bulen, 
6  Dakota  70. 

Duty  of  Officer  Taking  Justification. — 
An  officer  who  takes  justification  of 
sureties  should  examine  them  on  oath 
not  only  as  to  their  pecuniary  responsi- 
bility, but  also  as  to  their  residence  and 
other  qualifications  to  become  such 
sureties  according  to  law  and  the  prac- 
tice of  the  court;  or  he  may  require  an 
affidavit  of  such  qualifications.  Ten 
Eick  V.  Simpson,  11  Paige  (N.  Y.)  177. 

The  Affidavit  of  Justification  should  be 
annexed  to  and  filed  with  the»bond  to- 
enable  respondent  to  investigate  the 
sureties.  Van  Wezel  v.  Van  Wezel,  3. 
Paige  (N.  Y.)  38. 

Ascertaining  Sureties'  Competency. — 
Sureties,  in  the  absence  of  express  stat- 
utory provisions,  should  be  residents 
and  householders,  or  such  persons  as 
would  be  competent  special  bail  at  com- 
mon law.  Van  Wezel  v.  Van  Wezel,  3. 
Paige  (N.  Y.)  38.  They  should  be  re- 
quired to  justify  in  at  least  double  the 
amount  of  the  penalty  on  the  bond.  Van 
Wezel  V.  Van  Wezel,  3  Paige  (N.  Y.)  38. 

Statutory  Amount. — Where  the  stat- 
ute requires  each  surety  to  justify  in  a 
certain  amount,  it  is  not  sufficient  that 
both  together  justify  in  twice  the 
amount  required  for  each  ;  the  statute 
must  be  strictly  followed.  Anthony  v. 
Carter,  91  N.  Car.  229;  State  v.  Roper, 
94  N.  Car.  859. 

Approval  by  Clerk  or  Judge. — Where 
the  bond  is  duly  approved  the  sure- 
ties are  presumed  to  be  sufficient,  and 
cannot  be  compelled  to  justify  unless 
evidence  is  offered  by  appellee  tend- 
ing to  show  insecurity.  Petillon  v.  Gil- 
man,  86  111.  401. 

Judgment. — Where  the  surety  has  to 
justify  in  double  the  amount  of  the 
judgment  appealed  from,  the  amount 
of  the  judgment  must  be  inserted  in 
the  undertaking.  Harris  v.  Bennett,  3 
Code  Rep.  (N.  Y.)  23. 

Where  sureties  must  justify  in  twice 
the  amount  of  judgment,  it  is  not  suffi- 


1005 


Contract  of  Suretyship. 


APPEAL   BONDS. 


Exception  to  Sureties. 


appeal  bond  to  justify,  where  they  have  been  duly  excepted  to, 
does  not  discharge  them,^  unless  the  statute  expressly  provides 
that,  in  such  case,  the  bond  shall  be  void.* 


clent  that  they  justify  in  twice  the 
amount  of  the  pen?,lty  of  the  bond. 
Orr  V.  Orr.  5  Cine.  L.  Bull.  (Ohio)  711. 

Acceptance  of  Surety  for  Specified  Part. 
— In  New  Orleans  Ins.  Co.  v.  Albro 
Co.,  112  U.  S.  506,  it  was  held  within 
the  discretion  of  the  justice  of  the 
U.  S.  Cirsiuit  Court  to  accept  several 
sureties  for  specified  parts  of  the  entire 
amount  of  the  obligation.  To  the 
same  effect  Clark  v.  Clark,  7  Paige 
(N.  Y.)6q7. 

Burden  of  Proof. — The  burden  of  proof 
rests  on  the  appellant  to  show  the  suf- 
ficiency of  sureties.  State  v.  Judge,  35 
La.  Ann.  737. 

Presumption  from  Signature. — The  per- 
son before  whom  the  justification  is 
taken  is  presumed  to  have  the  official 
character  purported  by  his  signature  in 
the  jurat.  Chamblee  v.  Baker,  95  N. 
Car.  98. 

1.  Smith  V.  Nescatunga  Town  Co., 
36  Kan.  758;  St.  Louis,  etc.,  R.  Co.  v. 
"Wilder,  17  Kan.  239;  Schacht  v.  Odell, 
52  Cal.  448;  Hill  V.  Finnigan,  54  Cal. 
311;  Wittram  v.  Crommelin,  72  Cal.  89; 
Swasey  v.  Adair,  83  Cal.  136;  McSpe- 
don  V.  Bouton,  5  Daly  (N.  Y.)  30;  Hill 
V.  Burke,  62  N.  Y.  iii;  Kitching  v. 
Diehl,  40  Barb.  (N.  Y.)  433;  Decker  v. 
Anderson,  39  Barb.  (N.  Y.)  346;  Gib- 
bons V.  Berhard,  3  Bosw.  (N.  Y.)  635. 

Bond  Acting  as  Supersedeas. — Where 
an  appeal  bond  is  given  both  to  perfect 
the  appeal  and  to  act  as  a  supersedeas, 
the  appeal  will  not  be  dismissed  if  the 
sureties  justify  in  an  amount  sufficient 
for  the  former  purpose.  Dobbins  v. 
Dollarhide,  15  Cal.  374;  Hill  v.  Finni- 
gan, 54  Cal.  311;  Lower  v.  Knox,  10 
Cal.  480;  Mokelumne  Hill  Canal  Co.  v. 
Woodbury,  10  Cal.  188;  Stark  v.  Bar- 
rett, isCal.  361. 

At  Common  Law  notice  of  bail  in  error 
must  have  been  given  to  the  defendant 
in  error  or  his  attorney,  and  unless  ex- 
cepted to  within  twenty  days  the  bail 
was  deemed  allowed.     2  Tidd  Pr.  1156. 

Where  excepted  to  and  not  approved 
of  on  the  justification,  the  defendant  in 
error  might  at  any  time  within  twenty 
days  obtain  a  rule  for  better  bail.  2 
Tidd  Pr.  1157;  Van  Wezel  z'.  Van  Wezel, 
3  Paige  (N.  Y.)  38. 

The  mode  of  adding  and  justifying 
new  bail  in  error  is  the  same  as  on  the 
original  bail,  except   that  new  notice 


of  justification  was  not  required.  2 
Tidd  Pr.  1157. 

Bail  who  failed  to  justify  might  be 
stricken  out  of  the  bail-piece  by  order 
of  the  court;  for  unless  this  were  done 
they  might  be  proceeded  against. 
Gottwald  V.  Tuttle,  7  Daly  (N.  Y.)  107. 

Acceptance  of  Sureties  by  Appellee. — 
Where  the  appellee  accepts  the  sureties 
offered,  an  indorsement  of  their  justifi- 
cation on  the  undertaking  is  not  neces- 
sary. Gopsill  V.  Decker,  4  Hun  (N. 
Y.)  625. 

Effect  of  Failure  to  Justify. — Where  the 
sureties  do  not  justify  when  excepted 
to,  the  judge  may  hy  ex  parte  order  al- 
low the  appellant  to  furnish  additional 
sureties  within  such  time  as  may  be 
designated  in  the  order  or  allowed  by 
law.  The  proceedings  adopted  in  add- 
ing new  sureties  are  the  same  as  on  the 
original  sureties,  except  that  they  are 
required  to  justify  without  a  new  ex- 
ception. Chamberlain  v.  Dempsey,  22 
How.  Pr.  (N.  Y.  Super.  Ct.)  '359; 
Gregorys.  Gregory,  Barnes  74;  Lewis 
V.  Gadderrer,  5  B.  &  Aid.  704;  Rex  v. 
Essex,  5  T.  R.  633;  Jones  v.  Vestris,  3 
Bing.  N.  Cas.  677. 

2.  McCracken  v.  Los  Angeles  Coun- 
ty, 86  Cal.  74;  Roush  v.  Van  Hagen,  17 
Cal.  122;  Lower  v.  Knox,  10  Cal.  480; 
Manning  v.  Gould,  90  N.  Y.  476;  Gins- 
burg  V.  Kuntz  (Supreme  Ct.),  15  N.  Y. 
Supp.  237;  Gottwald  V.  Tuttle,  7  Daly 
(N.  Y.)  107;  Chamberlain  v.  Dempsev, 
13  Abb.  Pr.  (N.  Y.  Super.  Ct.)42i;  Ke'l- 
sey  V.  Campbell,  14  Abb.  Pr.  (N.  Y.  Su- 
preme Ct.)  368. 

Where,  as  in  New  York,  the  statute 
expressly  provides  that  the  effect  of 
the  failure  of  the  sureties  to  justify 
shall  be  the  same  as  if  no  undertaking 
had  been  given,  the  defect  cannot  be 
waived;  and  in  an  action  on  the  bond 
the  sureties  may  allege  their  failure 
as  a  defense.  Gottwald  v.  Tuttle,  7 
Daly(N.  Y.)  107;  Manning  v.  Gould,  90 
N.  Y.  476. 

And  the  defect  in  an  undertaking 
from  the  failure  of  the  sureties  to  jus- 
tify, when  duly  excepted  to,  cannot  be 
amended  by  withdrawing  the  notice  of 
exception  and  waiving  justification. 
Hoffman  v.  Smith,  34  Hun  (N.  Y.)485. 

In  California  the  failure  of  sureties  to 
justify  after  an  exception  has  been 
taken  to  their  sufficiency  does  not  ren- 


1006 


Approval  of  Bond. 


APPEAL  BONDS. 


Generally. 


Time. — The  time  fixed  by  statute  within  which  sureties  must 
justify  cannot  be  extended  without  express  statutory  authority.* 

XVIII.  Appeoval  of  Bond— 1.  Generally.— An  appeal  security  is 
valid  without  approval  by  a  court  or  judge,  unless  a  statute  so  re- 
quires.* Where  approval  is  required  the  statute  is  mandatory,  and 
the  appeal  bond  is  invalid  on  objection  where  unapproved.^    Such 


der  the  appeal  ineffectual.  It  merely 
operates  to  suspend  the  stay  of  pro- 
ceedings, and  does  not  discharge  the 
sureties  from  their  liability  on  the  un- 
dertaking. Schacht  V.  Odell,  52  Cal. 
448;  Hill  V.  Finnigan  54 Cal.  311;  Wit- 
tram  V.  Crommelin,  72  Cal.  89. 

1.  Roush  V.  Van  Hagen,  17  Cal.  122; 
McCracken  v.  Los  Angeles  County,  86 
Cal.  74;  Chemin  v.  East  Portland,  19 
Oregon  512. 

The  extension  of  the  time  to  justify 
does  not  extend  the  time  within  which 
other  acts  required  to  perfect  the  ap- 
peal must  be  done.  Wittram  v.  Crom- 
melin, 72  Cal.  89. 

The  Motion  to  Extend  must  be  made 
on  notice.  Wheeler  v.  Millar,  61  How. 
Pr.  (N.  Y.  Supreme  Ct.)  396. 

Adding  New  Sureties. — If  the  original 
sureties  fail  to  justify,  new  sureties 
cannot  be  added  as  a  matter  of  course 
unless  there  is  time  enough  remaining 
to  serve  notice  of  addition  of  new 
sureties  and  of  their  justifying. 
Chamberlain  v.  Dempsey,  22  How.  Pr. 
(N.  Y.  Super.  Ct.)  359- 

2.  Travis  v.  Travis,  48  Hun  (N.  Y.) 
343;  State  V.  Armstrong,  5  Wash.  123; 
Illinois  Cent.  R.  Co.  v.  Johnson,  40 
111.  35- 

An  unnecessary  approval  where  not 
required  by  statute  is  an  immaterial 
addition  to  the  bond.  Illinois  Cent. 
R.  Co.  V.  Johnson,  40  111.  35. 

Order  Requiring  Bond. — Where  an  or- 
der requiring  an  appeal  bond  names 
the  sureties,  penalty,  and  time  of 
filing,  the  bond  filed  in  compliance 
with  the  order  stands  approved  with- 
out further  action.  Illinois  Cent.  R. 
Co.  V.  Johnson,  40  111.  35. 

3.  Cockrill  v.  Owen,  10  Mo.  287; 
Sargent  v.  Sharp,  i  Mo.  601;  Julian  v. 
Rogers,  87  Mo.  229;  McCloskey  v. 
Indianapolis  Mfg.,  etc..  Union,  87 
Ind.  20;  Beach  v.  Southworth,  6  Barb. 
(N.  Y.)  173;  Van  Slyke  z/.  Schmeck,  10 
Paige  (N.  Y.)  302. 

Mandamus. — Where  the  official  desig- 
nated refuses  to  approve  a  bond  which 
satisfies  the  statute,  he  may  be  com- 
pelled to  do  so  by  mandamus.    Robin- 


son V.  Mhoon,  68  Miss.  712;  State  v. 
Clark,  24  Neb.  318. 

Certiorari. — Or  where  it  should  have 
been  approved  by  a  trial  justice,  the 
court  may  bring  the  papers  before  it 
by  certiorari  and  allow  the  bond  to 
be  filed  7iunc  pro  tunc.  Robinson  v. 
Mhoon,  68  Miss.  712. 

New  York. — In  New  York  an  ordi- 
nary undertaking  with  two  sureties 
need  not  be  approved,  but  the  respon- 
dent may  except  to  the  sureties,  and 
where  found  sufficient  the  judge  be- 
fore whom  the  justification  takes  place 
must  endorse  his  allowance  on  the  un- 
dertaking. Travis  v.  Travis,  48  Hun 
(N.  Y.)  343.  But  where  a  surety  com- 
pany is  offered  in  place  of  two  sureties 
it  must  be  approved  by  the  judge 
below.  Travis  v.  Travis,  48  Hun  (N.  Y.) 
343- 

In  Texas  the  approval  of  an  appeal 
bond  by  a  justice  of  the  peace  on  ap- 
peal therefrom  is  held  directory  and 
the  bond  valid  as  a  statutory  obliga- 
tion. Doughty  V.  State,  33  Tex.  i; 
Dyclres  V.  State,  24  Tex.  266;  Cundiff 
V.  State,  38  Tex.  641;  Taylor  v.  State, 
16  Tex.  App.  515. 

Waiver  by  Appellee. — As  the  statu- 
tory provision  for  approval  is  intended 
purely  for  the  appellee's  benefit  the 
failure  of  the  appellant  to  secure  ap- 
proval does  not  invalidate  the  bond 
as  a  common-law  obligation  where  the 
appellee  waives  the  defect.  Jones  v. 
Droneberger,  23  Ind.  74;  Easter  v. 
Acklemire,  81  Ind.  163;  Smock  v.  Har- 
rison. 74  Ind.  348;  Beach  v.  South- 
worth,  6  Barb.  (N.  Y.)  173. 

The  defect  may  be  waived.  Bu- 
chanan V.  Milligan,  125  Ind.  332. 

Approval  Out  of  Court. — Where  a 
judge  is  designated  to  approve 
the  bond,  it  is  generally  held 
that  the  approval  m'ust  be  made  in 
term.  Ormond  v.  Keith,  i  Colo.  81; 
Gruner  v.  Moore,  6  Colo.  529;  Larco  v. 
Casaneuava,  30  Cal.  664;  Alvord  v. 
Little,  16  Fla.  158;  Baars  v.  Creary, 
23  Fla.  61.  Unless  the  statute  or  the 
court  expressly  authorizes  him  to  act 
in  vacation.  Orman  v.  Keith,  i  Colo.  81. 


1007 


Approval  of  Bond. 


APPEAL   BONDS. 


How  Made. 


a  statute  vests  in  the  official  designated  to  approve  the  bond  a 
judicial,  not  a  ministerial,  power.*  It  cannot,  accordingly,  be 
delegated  to  any  other  authority  than  that  named  in  the  statute.* 
2.  How  Made. — The  approval  required  by  the  statute  need  not 
be  expressly  endorsed  on  the  bond.**  Where  the  bond  is  received 
and  filed  without  objection  by  the  official  designated  to  approve 
it,  his  approval  will  be  presumed.* 


The  defect  may  be  waived.  Williams 
V.  Coleman,  49  Mo.  325;  and  under 
United  States  practice  the  bond  is  valid 
if  approved  in  vacation.  Hudgins  v. 
Kemp,  18  How.  (U.  S.)  530. 

By  Deputy  Clerk. — A  deputy  clerk 
may  approve  a  bond  in  the  name  of 
the  clerk.  Harris  v.  Register,  70  Md. 
log. 

Jurisdiction  to  Approve  Vested  in  a 
Class. — Where  a  class  of  officers  is 
designated  or  authorized  to  approve 
a  bond,  the  officer  who  fixes  its  pen- 
alty does  not  thereby  acquire  sole 
jurisdiction  to  approve  it.  Emerson  v. 
Atwater,  5  Mich.  34. 

Where  Official  Acts  De  Facto. — Where 
an  appeal  bond  is  approved  by  one 
acting  under  color  of  authority,  but 
without  legal  right,  the  Supreme  Court 
may  allow  an  amendment.  McClin- 
tock  V.  Laing,  19  Mich.  300. 

1.  Abraham  v.  Huntington,  19  111.  403; 
Henderson  v.  Fitch,  19  111.  404;  Winston 
r/.  Rivers,  4 Stew.  &  P.  (Ala.) 279;  State 
V.  Dillon,  98  Mo.  90;  Blake  v.  Kimball, 
22  Vt.  632. 

2.  O'Reilly  v.  Edgrington,  96  U.  S. 
724;  National  Bank  v.  Omaha,  96 
U.  S.  737;  Haskins  v.  St.  Louis,  etc., 
R.  Co.,  log  U.  S.  106;  Eustis  v.  Holmes, 
48  Miss.  34;  Parker  v.  Willis,  27  Miss. 
766;  Pickett  V.  Pickett,  i  How.  (Miss.) 
267;  Averil  v.  Dickerson,  i  Blackf. 
(Ind.)  3;  Crumley  v.  Hickman,  92  Ind. 
388  ;  Jones  v.  Droneberger,  23  Ind. 
74;  Shepherd  z/.  Dodd,  15  Ind.  217;  Burk 
V.  Howard,  15  Ind.  219;  McVey  v. 
Heavenridge,  30  Ind.  100;  Scotten  v. 
Divelbiss,  46  Ind.  301;  McCloskey  v. 
Indianapolis  Mfg.,  etc..  Union,  87 
Ind.  20;  Buchanan  v  Milligan,  125 
Ind.  332;  Julian  v.  Rogers,  87  Mo.  229; 
Parker  v.  Hannibal,  etc.,  R.  Co.,  44 
Mo.  415;  Adariis  v.  Wilson,  10  Mo.  341; 
Putnam  v.  Boyer,  140  Mass.  235; 
Hardin  v.  Owings,  i  Bibb  (Ky.)  214; 
Knight  V.  People.  11  Colo.  308;  Harris 
V.  Register.  70  Md.  109;  Winona  Paper 
Co.  V.  First  Nat.  Bank,  33  111.  App. 
630;  Abraham  v.  Huntington,  19  111. 
403;  Bowlesville  Min.,  etc.,  Co.  v.  Pul- 


ling, 89  111.  58;  People  V.  Leaton,  121 
111.  668;  Rogers  v.  Paterson,  4  Paige 
(N.  Y.)450. 

So  where  power  to  take  an  appeal 
bond  is  vested  in  a  delegated  tribunal 
or  official,  it  cannot  be  delegated. 
McPhartridge  v.  Gregg,  4  Coldw. 
(Tenn.)  324  ;  Ex  p.  Ricks.  7  Heisk. 
(Tenn.)  364;  Bently  v.  Fowler,  8  Ark. 
375- 

By  Taking  a  Bond  in  Open  Court  in- 
stead of  before  the  judge  in  person  as 
required  by  statute  does  not  impair  its 
obligatory  force.  Com.  v.  Watts,  84 
Ky.  537- 

Commissioner  Having  Power  of  Judge. — 
And  in  Hemstead  v.  Cargill,  46  Minn. 
141,  It  was  held  that  where  a  statute 
directed  an  appeal  bond  to  be  approved 
by  a  district  judge,  an  approval  by  a 
court  commissioner  having  the  powers 
of  a  district  judge  at  chambers  was 
sufficient. 

3.  Sutton  V.  McCoy,  Wright  (Ohio) 
95  ;  Hanaw  v.  Bailey,  83  Mich.  24  ; 
Williams  v.  McConico,  25  Ala.  538. 

Statutory  Directions  requiring  a  writ- 
ten endorsement  are  construed  as  di- 
rectory merely.  Taylor  v.  State,  16 
Tex.  App.  514;  Asch  v.  Wiley,  16  Neb. 
41;  Woodburn  v.  Fleming,  i  Blackf. 
(Ind.)  4;  Miller  v.  O'Reilly,  84  Ind. 
168;  Jenkins  v.  Emery,  22  Wyoming 
58. 

Endorsement  Nunc  Pro  Tunc. — Where 
a  written  endorsement  is  deemed 
essential  it  may  be  supplied  nunc  pro 
tunc.  Muller  v.  Humphreys  (Tex., 
1889),  14  S.  W.  Rep.  1068. 

4.  Asch  V.  Wiley,  16  Neb.  41;  Wood- 
burn  V.  Fleming,  i  Blackf.  (Ind.)  4; 
McCloskey  v.  Indianapolis  Mfg.,  etc., 
Union,  87  Ind.  20;  Miller  v.  O'Reilly, 
84  Ind.  168;  Lacv  v.  Fairman,7  Blackf. 
(Ind.)  558;  Ohio',  etc.,  R.  Co.  v.  Hardy, 
64  Ind.  454;  Jenkins  v.  Emery,  2  Wy- 
oming 58;  Clapp  V.  Freeman,  16  R.  I. 
344;  Hanaw  v.  Bailey,  83  Mich. 
28;  Hancock  v.  Bramlett,  85  N.  Car. 
395;  Moring  v.  Little,  95  N.  Car.  87; 
Taylor  v.  State,  16  Tex.  App.  514; 
McLane  v.  Russell,  29  Tex.  128;  David- 


1008 


Approval  of  Bond. 


APPEAL  BONDS. 


How  Shown — Effect. 


3.  How  Shown. — The  approval,  or  the  acts  raising  a  presump- 
tion of  approval,  should  be  properly  shown  by  the  record  ;*  but 
the  actual  date  of  approval  may  always  be  shown  by  parol  evi- 
dence, although  it  contravenes  the  written  endorsement.* 

4.  Effect. — Unless  the  approval  of  an  appeal  bond  is  made  by 
a  court  it  passes  on  only  the  suflficiency  of  the  sureties  and  the 
amount  of  the  bond.^  Irregularities  in  the  form  of  the  bond  are 
not  waived  by  the  failure  of  the  appellee  to  object  on  the  ap- 
proval on  that  ground,  and  may  be  objected  to  for  the  first  time 
in  the  appellate  court.* 


son  V.  Lainer,  4  Wall.  (U.  S.)  453; 
Littleton  v.  Pratt,  10  La.  Ann.  487. 

Waiver  of  Approval. — Any  approval 
of  an  appeal  bond  may  be  waived. 
Easter  v.  Acklemire,  81  Ind.  163. 

Approval  a  Question  of  Fact. — Upon 
appeal  from  a  judgment  entered  upon 
such  a  bond,  the  question  whether  it 
was  approved  is  a  question  of  fact, 
not  of  law;  and  the  finding  of  the  trial 
court  that  it  was  in  fact  approved  will 
be  sustained  if  there  is  any  evidence 
in  the  record  tending  to  show  it.  Mc- 
Closkey  v.  Indianapolis  Mfg.,  etc., 
Union,  87  Ind.  20. 

1.  Woodburn  v.  Fleming,  i  Blackf. 
(Ind.)  4;  Humble  v.  Williams,  4 
Blackf.  (Ind.)  473;  Littell  v.  Brad- 
ford, 8  Blackf.  (Ind.)  185;  Frazer  v. 
Smith,  6  Blackf.  (Ind.)  210;  Miller  v. 
O'Reilly,  84  Ind.  168;  McCrory  v.  An- 
derson, 103  Ind.  12. 

Sufficient  Record. — So  where  the  rec- 
ord showed  that  an  appeal  was  taken 
in  open  court,  and  that  the  court  fixed 
the  amount  of  the  bond,  approved  the 
surety  named,  and  designated  the 
time  within  which  the  bond  should  be 
filed,  the  bond  was  held  sufficiently 
approved.  Hartlep  v.  Cole,  120  Ind. 
248.  Or  where  the  record  shows  that 
a  justice  of  the  peace  received  the 
appeal  bond  and  allowed  the  appeal. 
Jenkins  v.  Emery,  2  Wyoming  58. 

Entry  of  the  appeal  bond  upon  the 
docket  of  the  court  is  sufficient  ap- 
proval.    Asch  V.  Wiley,  16  Neb.  41. 

Waiver. — By  reciting  that  the  appel- 
lant "filed  a  bond  not  approved  or 
disapproved  by  the  court  because  no 
motion  was  made  by  either  party," 
approval  was  presumed  waived  by 
appellee.  Rawson  v.  Dampner,  143 
Mass.  76;  Bryson  v.  Lucas,  85  N.  Car. 

397- 

Transcript. — The  fact  that  the  clerk 
embodies  an  appeal  bond  in  the  tran- 
script is  presumptive  evidence  of  its 


approval  by  him.  Evans  v.  Pigg,  28 
Tex.  588;  Rodgers  v.  Ferguson,  32 
Tex.  533. 

Form. — An  indorsement,  "  I  approve 
of  this  bond  both  in  form  and  sub- 
stance," held,  an  approval  both  of 
the  sureties  and  of  the  penal  sum. 
Maynard  v.  Haskins,  8  Mich.  260. 

2.  Woodburn  v.  Fleming,  i  Blackf. 
(Ind.) 4;  Miller  v.  O'Reilly,  84  Ind.  168; 
McCloskey  v.  Indianapolis  Mfg.,  etc., 
Union,  87  Ind.  20;  McCrory  v.  Ander- 
son. 103  Ind.  12;  Simpson  v.  Minor,  i 
Blackf.  (Ind.)  229;  Robinson  v.  Chad- 
wick,  22  Ohio  St.  527;  Williams  v.  Mc- 
Conico,  25  Ala.  538. 

Certiorari  to  Compel  Certification  of 
True  Time. — Where  the  presumption  of 
a  different  date  is  sufficiently  shown 
by  parol,  a  special  certiorari  will  be 
awarded  on  motion  to  compel  the 
trial  judge  to  certify  the  true  time. 
Williams  v.  McConico,  25  Ala.  538. 

3.  People  V.  Leaton,  25  111.  App.  45; 
People  V.  Leaton,  121  111.  666;  Harris 
V.  Register,  70  Md.  log;  Jacobs  v. 
Morrow,  21  Neb.  233;  State  v.  Dillon, 
98  Mo.  90;  Blake  v.  Kimball,  22  Vt. 
632;  Potter  t/.  Grisham,  3  How.  (Miss.) 
76;  Scranton  z'.  Bell,  35  Tex.  415;  Hol- 
lis  V.  Border,  10  Tex.  277;  Shelton  v. 
Wade,  4  Tex.  148;  Fuerman  v.  Ruble 
(Tex.  App.,   1890),  16  S.  W.  Rep.  536. 

4.  Jacobs  V.  Morrow,  21  Neb.  233; 
Wheeler  v.  Kuhns,  9  Colo.  196;  M'Al- 
ister  V.  Scrice,  7  Yerg.  (Tenn.)  277. 

Approval  of  Irregular  Bond. — An  offi- 
cer or  court  is  not  authorized  to  ap- 
prove of  an  irregular  bond,  but  ap- 
proval thereof  is  sufficient  to  vest  the 
appellate  court  with  jurisdiction  to  al- 
low amendment  or  to  hear  the  appeal 
where  appellee  objects.  Jacobs  v. 
Morrow,  21  Neb.  233;  Wheeler  v. 
Kuhns,  9  Colo.  196;  Sharp  v.  Bedell, 
ID  111.  88;  Bragg  v.  Fessenden,  11  111. 
544;  Petillon  V.  Oilman,  86  111.  401. 

Approval  of  Form  of  Bond. — Where  aa 


I  Encyc.  PI.  &  Pr.— 64. 


1009 


Approval  of  Bond. 


APPEAL   BONDS. 


Eeview  of  Approval. 


5.  Review  of  Approval — objections.— The  appellee  must  make 
specific  objections  to  the  approval  of  the  sureties  by  the  trial 
courts  to  have  their  acceptance  reviewed.  And  objections  not 
duly  made  in  the  trial  court  to  the  sufficiency  of  the  sureties  are 
deemed  to  be  waived.* 

When  Eeviewable.— Whether  made  ex  parte  or  on  notice,  the  ap- 
proval by  the  trial  judge  is  ordinarily  conclusive,*  unless  fraud 
in  misrepresenting  the  pecuniary  condition  of  the  sureties,^  or  a 


official  is  designated  to  approve  the 
bond,  he  is  consequently  under  no  ob- 
ligation to  approve  of  its  form.  Peo- 
ple V.  Leaton,  25  111.  App.  45. 

On  the  other  hand,  an  approval  of 
the  form  and  manner  of  the  execution 
of  the  bond  is  not  sufficient  unless  the 
sufficiency  of  the  sureties  in  the  bond 
is  approved  of  also.  Eldridge  v. 
Howell,  4  Paige  (N.  Y.)  459. 

Execution. — Thus  an  approval  of  an 
appeal  bond  presupposes  its  due  execu- 
tion, but  does  not  preclude  the  parties 
named  therein  from  objecting  on  the 
ground  of  want  of  proper  execution. 
Ford  V.  Albright.  31  Ohio  St.  35. 

Approval  implies  that  there  is  no 
question  of  appellant's  identity;  so 
that  a  slight  change  in  spelling  in  the 
body  and  signature  of  the  bond  does 
not  vitiate  it.  Guez  v.  Dupuis,  152 
Mass.  456;  Gaines  v.  Stiles,  14  Pet. 
(U.  S.)  322;  Franklin  v.  Talmadge,  5 
Johns.  (N.  Y.)  84. 

Presumption  on  Approval — Costs. — It 
will  be  presumed  that  an  appeal  bond 
duly  approved  by  the  proper  officer 
conforms  to  his  estimates,  and  that 
where  a  sum  is  named  as  costs  there- 
in he  included  the  probable  costs  of 
the  appeal  subsequently  accruing. 
Drumz/.  Ft.  Worth,  25  Tex.  App.  664. 

The  appeal  will,  therefore,  not  be 
dismissed  because  costs  are  taxed  later 
at  a  figure  which  renders  the  amount 
of  the  bond  too  small.  Zidek  v.  State 
(Tex.  Crim.  App.,  1893),  22  S.  W.  Rep. 
143. 

Approval  as  Fixation  of  Penalty. — Ap- 
proval of  a  bond  in  a  certain  amount 
is  a  sufficient  fixation  of  the  penalty 
where  discretionary.  Dunseith  v. 
Linke,  10  Daly  (N.  Y.)  365. 

Presumption  of  Satisfaction  with  Sore- 
ties'  Solvency. — The  approval  by  the 
proper  officer  is  presumptive  proof  that 
lie  was  satisfied  that  the  sureties  were 
solvent.  Fuerman  v.  Ruble  (Tex. 
App.,  1890),  16  S.  W.  Rep,  536. 

Beteinding  Approval. — An  official  who 
has  once  approved  a  bond  has  no  pow- 


er to  rescind  his  action  subsequently. 
Miller  v.  O'Reilly,  84  Ind.  168. 

Signature  of  the  Sureties. — The  court 
cannot  demand  that  the  sureties  shall 
execute  the  bond  in  its  presence,  but 
it  may  demand  proof  of  the  genuine- 
ness of  their  signature.  State  v. 
Clark,  24  Neb.  318. 

1.  Bazzo  V.  Wallace,  16  Neb.  293; 
Johnston  v.  King,  83  Wis.  8;  Culliford 
V.  Gadd  (Super.  Ct.),  22  N.  Y.  Supp.  539; 
Poston  V.  Mhoon,  49  Miss.  620; 
Granger  v.  Parker,  142  Mass.  186; 
Beardsley  v.  Hill,  61  111.  354;  State  v. 
Judge,  17  La.  433;  State  v.  judge,  19 
La.  174;  Stanton  z/.  Parker,  2  Rob. (La.) 
550;  Ex  p.  Barrett,  4  La.  Ann.  236; 
Surget  V.  Stanton,  10  La.  Ann.  318; 
Tanner  v.  King,  10  La.  Ann.  485; 
Wood  V.  Harrell,  14  La.  Ann.  61; 
State  V.  Fourth  Dist.  Ct.,  20  La.  Ann. 

390- 

2.  Williams  v.  Claflin,  103  U.  S.  753; 
Florida  Cent.  Co.  v.  Schulte,  100  U. 
S.  644;  Mexican  Nat.  Const.  Co.  v. 
Rensens,  118  U.  S.  77;  Jerome  v.  Mc- 
Carter,  21  Wall.  (U.  S.)  17;  Martin  v. 
Hazard  Powder  Co.,  93  U.  S.  302; 
Ex  p.  French,  100  U.  S.  i;  Stafford  v. 
Union  Bank,  16  How.  (U.  S.)  135;  New 
Orleans  Ins.  Co.  v.  Albro  Co.,  112  U. 
S.  506;  Tampa  St.  R.,  etc.,  Co.  v. 
Tampa  Suburban  R.  Co.,  30  Fla.  410; 
State  V.  Le  Bourgeois,  45  La.  Ann. 
249;  Bradley  I*.  Gait,  5  Mackey(D.  C.) 
317;  Midland  R.  Co.  v.  Wilcox,  in 
Ind.  561;  Moore  v.  Olin,  6  Mich.  328. 

The  approval  of  the  sufficiency  of 
the  sureties  lies  ordinarily  in  the  discre- 
tion of  the  trial  court.  Delamater  v. 
Byrne,  57  How  Pr.  (N.  Y.  Supreme  Ct.) 
170. 

Approval  by  Appellate  Justice. — The  ap- 
proval of  the  sufficiency  of  an  amended 
bond  or  undertaking  by  a  justice  of 
the  appellate  court  is  conclusive. 
Schacht  V.  Odell,  52  Cal.  447;  Steven- 
son V.  Steinburg,  32  Cal.  373. 

S.  Tampa  St.  R.,  etc.,  Co.  v.  Tampa 
Suburban  R.  Co.,  30  Fla.  410;  Hays  v. 
Todd,  26  Fla.  214. 


Construction  of  Contract.        APPEAL   BONDS. 


Generally. 


material  change  therein  or  in  the  circumstances  of  the  case  or 
parties  or  in  the  pecuniary  condition  of  the  sureties  arising  since 
the  approval,  can  be  shown.* 

XIX.  CONSTEUCTION  OF  CONTEACT— 1.  Generally.— The  ordinary 
rule  that  a  contract  will,  where  possible,  be  so  construed  as  to 
carry  out  the  intention  of  the  parties,  applies  to  appeal  bonds.* 
The   contract   of  suretyship   on   appeal,    as    elsewhere,    will    be 


1.  Jerome  z/.  McCarter,  21  Wall.  (U. 
S.)  17;  Williams  v.  Claflin,  103  U.  S. 
753;  Midland  R.  Co.  v.  Wilcox,  iii 
Ind.  561;  Martin  v.  Hazard  Powder 
Co.,  93  U.  S.  302. 

Such  objections  may  be  made  for 
«he  first  time  in  the  appellate  court. 
Tampa  St.  R.,  etc.,  Co.  v.  Tampa 
Suburban  R.  Co.,  30  Fla.  410. 

Subsequent  Insolvency. — Where  a  sur- 
ety becomes  insolvent  subsequent 
to  the  approval  of  the  bond,  the  ap- 
pellate court  may  exercise  its  discre- 
tion in  requiring  a  new  surety  to  be 
given.  Mahon  v.  Noon,  gg  N.  Y.  625; 
Dering  v.  Metcale,  72  N.  Y.  613;  Bee- 
man  V.  Banta,  113  N.  Y.  615;  Ran- 
schaupt  V.  Carpenter,  63  Ind.  359; 
Booten  v.  Empire  State  Bank.  67  Ga. 
358;  Florida  Orange  Hedge  Fence  Co. 
V.  Branham,  32  Fla.  289. 

Where  it  is  satisfied  that  the  remain- 
ing surety  is  abundantly  sufficient  to 
answer  the  penalty  of  the  bond,  or 
where  the  judgment  is  otherwise  se- 
cured, the  appellate  court  will  not 
order  a  new  surety  to  be  given.  Ma- 
hon V.  Noon,  99  N.  Y.  625;  Dering  v. 
Metcale,  72  N.  Y.  613. 

Where  ordered,  a  reasonable  time 
must  be  given  for  the  appellant  to 
furnish  the  additional  surety.  Booten 
V.  Empire  State  Bank,  67  Ga.  358. 

In  Louisiana  a  trial  judge  may  order 
the  substitution  of  a  new  surety  al- 
though the  case  has  passed  to  the 
Supreme  Court.  Gray  v.  Lowe,  9  La. 
Ann.  478. 

2.  Smith  V.  Nescatunga  Town  Co., 
36  Kan.  758;  St.  Louis,  etc.,  R.  Co. 
V.  Wilder,  17  Kan.  239;  Dyer  v.  Brad- 
ley, 88  Cal.  590;  Swasey  v.  Adair,  83 
Cal.  136;  Swain  v.  Graves,  8  Cal.  551; 
People's  Brewing  Co.  v.  Boebinger,  40 
La.  Ann.  277;  Pasley  v.  McConnell,  40 
La.  Ann.  6og;  Blanchard  v.  Gloyd,  7 
Rob.  (La.)  542;  Baldridge  v.  Penland, 
68  Tex.  441;  Field  v.  Schricher,  14 
Iowa  119;  Acker  v.  Alexandria,  etc., 
R.  Co.,84Va.  648;  Matthews  v.  Mor- 
rison, 13  R.  I.  309;  Conner  v.  Paxson, 
I  Blackf.  (Ind.)  207;  Ward  v.  Buell,  18 


Ind.  104,  81  Am.  Dec.  349;  Ham  v. 
Greve,  41  Ind.  531;  Carver  z^.  Carver, 

115  Ind.  539;  U.  S.  V.  Drapier  (D.  C), 
18  Wash.  L.  J.  532;  People  v.  Oneida, 
I  Wend.  (N.  Y.)  28;  Yocum  v.  Barnes, 
8  B.  Mon.  (Ky.)  497;  Stockton  v. 
Turner,  7  J.  J.  Marsh.  (Ky.)  193;  Cooke 
V.  Graham,  3  Cranch  (U.  S.)  235;  But- 
ler V.  Wigge,  I  Saund.  65;  Whitsett  v. 
Womack,  8  Ala.  477;  Block  v.  Blum, 
33  111.  App.  643;  Hibbard  v.  McKind- 
ley,  28  111.  240;  Schill  v.  Reisdorf,  88 
111.  411. 

Implied  Condition. — By  the  execution 
of  the  appeal  bond  the  appellant  im- 
pliedly covenants  that  he  will  do  noth- 
ing pending  the  appeal  to  render  com- 
pliance with  the  condition  of  the 
appeal  bond  fruitless.    Jones  z/.  Fisher, 

116  111.  72. 

Entire  Contract. — An  undertaking  is 
an  entire  contract  although  contain- 
ing several  stipulations.  Dore  v. 
Covey,  13  Cal.  507. 

The  Words  "To  Abide"  a  judgment 
or  order  occurring  in  an  appeal  bond 
mean  to  "perform,"  "execute,"  or 
conform  to  such  judgment  or  order. 
Erickson  v.  Elder,  34  Minn.  370;  Mc- 
Minn  v.  Patton,  92  N.  Car.  371.  See 
ante,  article  Abiding  the  Event. 

Interpretation. — The  ordinary  canons 
of  interpretation  of  contracts  are  to  be 
applied  in  the  construction  of  appeal 
securities.  Shreffler  v.  NadelhofTer, 
133  111.  555;  Belloni  v.  Freeborn,  63 
N.  Y.  383 ;  Hamilton  v.  Van  Rens- 
selaer, 43  N.  Y.  244;  Locke  v.  Mc- 
Vean,  33  Mich.  473;  Kastner  v.  Win- 
stanley,  20  U.  C.  C.  P.  loi;  Field  v. 
Schricher,  14  Iowa  119. 

Thus  the  court  may  transpose  or 
reject  insensible  words  and  depart 
from  the  letter  of  the  text  to  effectu- 
ate the  intention  of  the  parties  where 
it  can  be  done  without  framing  a  new 
contract.  Matlock  v.  Bank,  7  Yerg. 
(Tenn.)  95;  Nichol  v.  McCombs,  2 
Yerg.  (Tenn.)  83;  Swain  v.  Graves,  8 
Cal.  551;  Blanchard  v.  Gloyd,  7  Rob. 
(La)  542;  Butler  v.  Wigge,  i  Saund.  65; 
Cooke  V.   Graham,  3    Cranch  (U.   S.) 


lOII 


Construction  of  Contract.        APPEAL    BONDS. 


Generally. 


Strictly  construed,*  but  the  principle  that  it  cannot  be  extended 


235;  Field  V.  Schricher,  14  Iowa 
119. 

In  People  v.  Oneida,  i  Wend.  (N. 
Y.)  2S,  the  words  in  the  condition,  "  to 
pay  the  said  judgment  and  costs  of  the 
appeal,"  were  transposed  so  as  to  read 
after  the  words,  "  In  case  judgment 
shall  be  given  against  the  said  appel- 
lant,"  instead  of  before,  as  the  bond 
stood. 

1.  Shreffler  v.  Nadelhoffer,  133  111. 
551;  Field  V.  Rawlings,  6  111.  581; 
Waters  v.  Simpson,  7  111.  570;  Rey- 
nolds V.  Hall,  2  111.  35;  People  v. 
Moon,  4  111.  123;  Governor  v.  Ridg- 
way,  12  111.  14;  Ryan  v.  Shawnee- 
town,  14  111.  20;  Chicago,  etc.,  R.  Co. 
V.  Higgins,  58  111.  128;  StuU  v.  Hance, 
62  111.  52;  People  V.  Tompkins,  74  111. 
482;  Cooper  V.  People,  85  111.  417; 
Mix  V.  Singleton,  86  111.  194;  Phillipi 
V.  Singer  Mfg.  Co.,  88  111.  305;  Dodg- 
son  V.  Henderson,  113  111.  360;  Trust- 
ees of  Schools  V.  Shirk,  119  111.  579; 
Burlington  Ins.  Co.  v.  Johnson,  120 
111.  622;  Vinyard  v.  Barnes,  124  111. 
346;  Smith  V.  Huesman,  30  Ohio  St. 
662;  Hall  V.  Williamson,  9  Ohio  St. 
23;  Myers  v.  Parker,  6  Ohio  St.  501; 
Lang  V.  Pike,  27  Ohio  St.  498;  State 
V.  Medary,  17  Ohio  St.  307;  Marsh  v. 
Byrnes,  7  Cine.  L.  Bull.  (Ohio)  345; 
Miller  v.  Stewart,  9  Wheat.  (U.  S.)  680; 
The  Ann  Caroline,  2  Wall.  (U.  S.)  549; 
The  Harriett,  i  W.  Rob.  192;  Nof- 
singer  v.  Hartnett,  84  Mo.  549;  Lud- 
low V.  Simond,  2  Cai.  (N.  Y.)  i. 

In  Mix  V.  Singleton,  86  111.  194,  it 
was  said:  "  The  measure  of  the  lia- 
bilities of  sureties  is  fixed  by  the  terms 
of  the  instrument  they  may  sign,  and 
we  do  not  understand  such  undertak- 
ing can  be  enlarged  or  varied  by  judi- 
cial construction." 

In  Miller  v.  Stewart,  9  Wheat.  (U. 
S.)  6S0,  it  was  said:  "  Nothing  can  be 
clearer,  both  upon  principle  and  au- 
thority, than  the  doctrine  that  the 
liability  of  a  surety  is  not  to  be  ex- 
tended by  implication  beyond  the 
ter  ns  of  his  contract." 

In  Jenkins  v.  Skillern,  5  Yerg. 
(Tenn.)  288,  it  was  held  accordingly 
that,  where  the  recital  of  a  judgment 
was  erroneous  in  amount,  the  surety 
could  not  be  held  beyond  it. 

And  where  the  bond  is  conditional 
for  the  payment  of  any  judgment 
against  the  appellant,  the  surety  is 
not  liable  where  the  judgment  is  ren- 


dered against  any  other  person.  Fried- 
man V.  Lemle,  38  La.  Ann.  654. 

Variance. — The  general  rule  is  that 
variance  in  an  essential  particular  be- 
tween the  record  and  the  appeal  bond 
is  fatal  to  the  validity,  Lemon  v. 
Stephenson,  40  111.  45  ;  Dietrich  v. 
Rumsey,  40  111.  50;  Willenborg  v. 
Murphy,  40  111.  46;  Williams  v.  State, 
26  Ala.  85;  Dumas  v.  Hunter,  28  Ala. 
688;  Burdine  v.  Mustin,  33  Ala.  634; 
unless  the  bond  itself  contains  data 
from  which  the  error  may  be  corrected 
beyond  ambiguity.  Lemon  v.  Steph- 
enson, 40  fU.  45;  Forbes  v.  Porter,  23 
Fla.  47;  Southern  Pac.  R.  Co.  v.  Stan- 
ley, 76  Tex.  418;  Satterwhite  v.  State, 
28  Ala.  99;  Weissenger  z/.  Crook,  7  Ala. 
710;  Flournoy  v.  Nims,  17  Ala.  36; 
People  V.  Munroe,  3  Wend.  (N.  Y.) 
426. 

And  simple  inaccuracies  will  not 
avoid  the  bond  where  the  terms  of  the 
contract  are  sufficiently  ascertained 
otherwise.  Mathews  v.  Morrison,  13 
R.  I.  309. 

Thus,  where  a  bond  is  executed  by 
three  appellants  and  in  the  condition 
they  are  referred  to  as  "the  above- 
named  plaintiff,"  held,  no  variance. 
Swain  v.  Graves,  8  Cal.  551. 

Variation  in  Names. — Substantial  va- 
riation in  the  names  between  obliga- 
tion and  condition  avoids  the  bond, 
Gillilan  v.  Gray,  13  III.  705  ;  unless 
the  context  of  the  bond  clearly 
shows  how  the  mistake  should  be 
rectified,  as  where  the  name  of  the 
appellee  is  inadvertently  used  for  the 
appellant's  in  the  condition.  Schill  v. 
Reisdorf,  88  111.  411;  Hibbard  v.  Mc- 
Kindley,  28  111.  240;  Black  v.  Blum, 
33  111.  App.  644;  Swain  v.  Graves,  8 
Cal.  549;  Morris  v.  Covington,  2  La. 
Ann.  259;  or  the  obligee  fails  to  object 
thereto,  Kendall  v.  Gleason,  152  Mass. 
457;  Jones  V.  Whitbread,  11  C.  B.  406. 

Beference  to  Becord. — Reference  may 
be  had  to  the  record  to  determine 
which  party  appeals,  where  the  appeal 
bond  does  not  so  state.  Chamblee  v. 
Baker,  95  N.  Car.  98. 

And  in  Surget  v.  Stanton,  10  La. 
Ann.  318,  it  was  held  that  where  the 
date  of  the  judgment  was  omitted  by 
mistake  in  the  bond,  the  petition  of  ap- 
peal might  be  referred  to  to  identify 
it. 

Erroneons  Description.  —  The  rule 
.falsa  demonstratio   non    nocet  properly 


Construction  of  Contract.         APPEAL    BONDS.         When  Liability  Accrues. 


by  implication  applies  only  where  its  terms  have  been  ascer- 
tained by  a  reasonable  construction  of  the  whole  instrument  by 
the  ordinary  canons  of  interpretation.* 

2,  When  Liability  Accrues— Final  Judgment.— As  a  general  rule  the 
rendition  and  entry  of  a  final  judgment  of  affirmance  on  ap- 
peal is  required  to  subject  the  sureties  to  liability  on  the  bond.* 


applies,  and  the  instrument  will  be 
legally  effective  if  sufficient  description 
remain  after  the  rejection  of  erroneous 
or  ambiguous  portions  to  identify  its 
objects.  Blanchard  v.  Gloyd,  7  Rob. 
(La.)  542. 

Oral  Statement  of  Parties  as  to  Intent. — 
But  oral  statements  of  the  parties  as 
to  the  intent  with  which  it  was  ex- 
ecuted are  ordinarily  inadmissible  to 
contradict  the  letter  of  the  bond.  Hy- 
draulic Press  Brick  Co.  v.  Neumeister, 
15  Mo.  App.  592. 

1.  McElroy  v.  Mumford,  128  N.  Y. 
207  ;  Crist  v.  Burlingame,  62  Barb. 
(N.  Y.)  351  ;  Scott  V.  Duncombe,  49 
Barb.  (N.  Y.)  73  ;  Mathews  v.  Morri- 
son, 13  R.  I.  309. 

Limitation  of  Rule. — The  rule  of 
strict  construction  is  limited  by  the 
controlling  principle  that  sureties  are 
presumed  to  know  the  nature  of  the 
obligation  and  to  intend  its  obvious 
purpose.  Crist  v.  Burlingame,  62 
Barb.  (N.  Y.)  351  ;  Mathews  v.  Morri- 
son, 13  R.  I.  309;  Llewellyn  v.  Jersey, 
II  M.  &  W.  183;  Adler  v.  Potter,  57 
Ala.  571. 

Thus  in  McElroy  v.  Mumford,  128 
N.  Y.  307,  it  was  held  that  a  judg- 
ment reciting  that  '"the  abovenamed 
respondent  recovered  a  judgment 
against"  the  appellant  "for  the  sum 
of  $122.97,  being  costs  of  affirmance 
and  interest  thereon  from  that  date," 
and  further  reciting  that  the  sureties 
named  undertook  that  appellant  would 
pay  costs  awarded  against  him  to  sum 
named,  and  in  case  of  affirmance  the 
amount  of  the  judgment  directed  to  be 
paid  thereby.  Held,  that  the  judg- 
ment named  for  $122.97  was  an  indi- 
visible part  of  the  entire  judgment  for 
$3659.06  defined  in  the  notice  of  ap- 
peal ;  that  the  purpose,  as  shown  by 
the  notice  of  appeal  and  stay  secured 
by  the  appeal  bond,  was  to  secure  the 
entire  amount  of  the  judgment;  and 
that  sureties  were  liable  accordingly 
on  affirmance  for  the  entire  judgment 
of  836^9.06  plus  the  $122.97  costs. 
McElroy  v.  Mumford,  12S  N.  Y.  307. 

2.  Wilson  z/.  Churchman,  6  La.  Ann. 


468;  Diamond  v.  Petit,  3  La.  Ann.  37; 
Holmes  v.  Steamer  Belle  Air,  5  La. 
Ann.  523;  Lowenstein,  v.  Fudicker,  43 
La.  Ann.  886;  Rawlings  v.  Barham,  12 
La.  Ann.  630;  Odell  i/.  Wootten,  38  Ga. 
224;  Staley  v.  Howard,  7  Mo.  App. 
377;  Railsback  v.  Greve,  58  Ind.  52; 
Gregory  v.  Stark,  4  111.  611;  Mix  v. 
People,  86  111.  329;  Wood  v.  Derrick- 
son,  I  Hilt.  (N.  Y.)  410;  Poppenhusen 
V.  Seeley,  41  Barb.  (N.  Y.)  450;  State 
V.  Meacham,  6  Ohio  Cir.  Ct.  Rep.  31; 
Com.  V.  Wistar,  142  Pa.  St.  373. 

It  does  not  arise,  therefore,  on  the 
mere  signing  or  entry  of  a  mere  order 
for  judgment.  Poppenhusen  v. 
Seeley,  41  Barb.  (N.  Y.)  450. 

Beturn  of  Execution  Against  Appellant. 
— Unless  statutes  so  require,  appellee 
need  not  exhaust  the  appellant's  prop- 
erty by  levy  and  return  of  execution 
before  proceeding  against  the  sureties. 
Their  liability  accrues  unless  the  judg- 
ment is  immediately  paid  by  the  ap- 
pellant, Gregory  v.  Stark,  4  111.  611; 
Staley  v.  Howard,  7  Mo.  App.  377; 
Poll  V.  Murr,  3  Cine.  L.  Bull.  (Ohio) 
1141;  Means  v.  Goodenow,  Tappan 
(Ohio)  255;  although  the  judgment 
rendered  against  appellant  expressly 
provides  that  execution  may  issue 
against  his  specific  property  if  not  paid 
as  ordered,  Staley  v.  Howard,  7  Mo. 
App.  377- 

Where  statutes  require  its  issuance 
and  lev^y,  no  liability  attaches  to  the 
sureties  until  the  execution  has  been 
duly  returned.  Champomier  v.  Worth- 
ington,  2  La.  Ann.  1013;  Chalaron  v. 
McFarlane,  9  La.  229;  Alley  v.  Haw- 
thorn, I  La.  Ann.  122;  Lynch  v.  Burr, 
ID  Rob.  (La.)  136;  Levois  v.  Thibo- 
daux,  13  La.  Ann.  264;  Cass  7a  Adams, 
3  Ohio  223;  Bank  of  Chillicothe  v. 
Pierce,  6  Ohio  535;  Mayo  v.  Williams, 
17  Ohio  244;  Garhorn  v.  Alexander,  4 
West.  L.  Mag.  (Ohio)  139. 

And  the  appellee  must  in  such  case 
enforce  every  right  he  may  have  by  lien 
against  the  debtor's  property.  Tur- 
ner V.  Parker,  10  Rob.  (La.)  151 ;  Flower 
V.  Dubois,  10  Rob.  (La.)  igi. 

And  fraud  by  appellee  in  failing  to 


1013 


Constraction  of  Contract. 


APPEAL  BONDS. 


Joint  Bond. 


An  Interlocutory  Judgment  remanding  the  cause  for  further  action  by 
the  trial  court  is  not  sufficient.* 

3.  Joint  Bond. — Where  a  joint  appeal  bond  is  given  by  several 
appellants,  the  undertaking  of  the  sureties  is  several  as  to  each  one 
of  the  principals,  and  such  sureties  are  liable  accordingly  although 
the  judgment  is  rendered  against  a  portion  only  on  appeal.* 


satisfy  the  judgment  out  of  appel- 
lant's property  is  a  good  defense  to  the 
surety.  Lafayette  F.  Ins.  Co.  v.  Rem- 
mers,  30  La.  Ann.  1347. 

A  return  nulla  bona  is  usually  all 
which  is  required  to  fix  the  liability  of 
the  surety.  Rawlings  v.  Barham,  12 
La.  Ann.  630. 

And  where  the  appellant  is  insol- 
vent the  appellee  may  proceed  without 
awaiting  the  liquidation.  Wells  v. 
Roach,  10  La.  Ann.  543. 

1.  Unless  it  be  merely  to  compute 
the  sum  due  to  appellee.  Wilson  v. 
Churchman,  6  La.  Ann.  468. 

Modified  Judgment. — An  appeal  bond 
conditioned  to  pay  such  judgment  as 
the  appellate  court  may  render  against 
the  appellant  makes  the  sureties  liable 
on  the  rendition  of  a  modified  or  cor- 
rected judgment  against  the  appellee. 
Sanders  v.  Rives,  3  Stew.  (Ala.)  109. 

Dismissal,  Abandonment,  or  Withdrawal 
of  the  Appeal  is  a  breach  of  the  con- 
dition of  the  appeal  bond  to  prosecute 
the  appeal  to  effect,  and  renders  the 
appellant  and  sureties  liable  thereon. 
Wilcox  V.  Daniels,  22  Mo.  493;  Hal- 
lam  V.  Stiles,  61  Wis.  270;  Helden  v. 
Helden,  9  Wis.  557;  Meserve  z/.  Clark, 
115  111.  580;  Trent  v.  Rhomberg,  66 
Tex.  249;  Keitzinger  v.  Reynolds,  11 
Ind.  245;  Champomier  w.  Washington, 
2  La.  Ann.  1013;  Pass  v.  Payne,  63 
Miss.  239;  Coon  v.  McCormack,  69 
Iowa  539;  Wood  V.  Thomas,  5  Blackf. 
(Ind.)  553;  Legate  v.  Marr,  8  Blackf. 
(Ind.)  404;  Davis  v.  Sturgis,  i  Ind. 
213;  Reeves  v.  Andrews,  7  Ind.  207; 
Blair  v.  Kilpatrick,  40  Ind.  312;  Gav- 
isk  V.  McKeever,  37  Ind.  484;  Stelle 
V.  Lovejoy,  125  111.  352. 

The  liability  of  the  sureties  likewise 
accrues  where,  by  statute,  dismissal 
is  equivalent  to  affirmance  of  the  judg- 
ment appealed  from,  or  where  the  ap- 
peal bond  is  conditioned  to  pay  costs 
and  damages  awarded  against  the 
appellant.  McSpedon  v.  Bouton,  5 
Daly  (N,.  Y.)  30. 

Or  where,  in  pursuance  of  a  statutory 
power,  the  appellee,  on  failure  of  the 
appellant    to    prosecute    the    appeal, 


files  the  appropriate  papers  and  ob- 
tains an  affirmance  of  the  judgment. 
Martin  v.  Campbell,  120  Mass.  129. 

Where  the  breach  of  the  bond  con- 
sists in  a  failure  to  prosecute  the  ap- 
peal with  eflfect,  the  appellant  is  liable 
for  nominal  damages,  although  the 
judgment  appealed  from  and  all  dam- 
ages and  costs  incidental  thereto  have 
been  paid.  George  v.  Bischoff,  68  111. 
236. 

Second  AppeaL — Where  the  appeal  is 
dismissed,  but  on  taking  second  ap- 
peal the  judgment  appealed  from  is 
reversed,  sureties  on  the  first  appeal 
bond  are  liable  only  for  costs  and  nom- 
inal damages.  Cook  v.  King,  7  111. 
App.  549;  Stelle  V.  Lovejoy,  125  111. 
352. 

Nature  of  the  Contract. — While  the 
contract  of  a  surety  is  contingent  in 
that  the  surety  only  undertakes  to  per- 
form that  part  of  the  judgment  which 
the  appellant  fails  to  perform  (Sauer 
V.  Griffin,  67  Mo.  654;  Brown  v.  Ayer, 
24  Ga.  288),  yet  the  liability  created 
thereby  raises  a  direct  obligation  to  the 
obligee  for  the  act  to  be  performed. 
Consequently  where  the  penalty  of  the 
bond  is  for  an  undetermined  amount, 
as  for  use  of  premises,  it  need  net  be 
adjusted  between  the  appellant  and 
appellee  by  action  or  otherwise  before 
suing  the  surety.  Wallerstern  v. 
American  Surety  Co.  (City  Ct.),  40  N. 
Y.  St.  Rep.  508. 

2.  Ives  V.  Hulce,  17  111.  App.  35; 
Warner  v.  Cameron,  64  Mich.  185; 
Seacord  v.  Morgan,  3  Keyes  (N.  Y.) 
636;  Burrall  v.  De  Groot,  i  Bosw.  (N. 
Y.)  637;  Johnstone  v.  Connor  (City 
Ct.),  10  N.  Y.  St.  Rep.  702;  Fritchie  v. 
Holden,  19  Civ.  Pro.  Rep.  (N.  Y.  Su- 
preme Ct.)  84;  Hood  V.  Mathis,  21 
Mo.  308. 

The  same  rule  obtains  where  the 
trial  on  appeal  is  de  novo.  Neff  v.  Ed- 
wards, 81  Ala.  247;  Mount  v.  Stuart, 
86  Ala.  366. 

The  affirmance  of  a  joint  judgment 
on  appeal  as  to  one  defendant,  and  re- 
versal with  or  without  award  of  new 
trial  as  to  another,  deprives  the  latter 


1014 


Conatruction  of  Contract.        APPEAL   BONDS. 


Measure  of  Liability. 


4.  Measure  of  Liability.— The  liability  of  the  sureties  on  an  appeal 
bond,  where  the  appeal  goes  against  the  principal,  is  fixed  by  the 
legal  import  of  its  condition  in  the  bond.*     Where  the  bond  is 


of  any  proprietary  rights  in  the  judg- 
ment, and  the  former  may  enforce  the 
appeal  security  alone.  Johnstone  v. 
Connor  (City  Ct.),  lo  N.  Y.  St.  Rep. 
702. 

Successful  Appellant. — A  successful 
appellant  is  released  from  all  liability 
on  the  bond  although  the  decision  is 
affirmed  as  to  a  co-appellant.  Warner 
V.  Cameron,  64  Mich.  185. 

The  Contract  of  Suretyship  Joint. — 
Unless  statutes  prescribe  otherwise 
the  contract  of  two  or  more  sureties 
on  the  same  appeal  security  is  joint 
only,  and  not  joint  and  several  or  sev- 
eral. Wood  V.  Fisk,  63  N.  Y.  249; 
Getty  V.  Binsse,  49  N.  Y.  385,  10  Am. 
Rep.  379;  Gross  v.  Bouton,  9  Daly(N. 
Y.)  25;  Pickersgill  v.  Lahens,  15  Wall. 
(U.  S.)  140;  U.  S.  V.  Price,  9  How.  (U. 
S.)  90. 

It  follows  that  the  discharge  of  one 
surety  discharges  all.  Gross  v.  Bou- 
ton, 9  Daly  (N.  Y.)  25. 

It  follows  also  that  on  the  death  of 
a  surety  his  estate  is  discharged  both 
at  law  and  in  equity  unless  statutes 
prescribe  otherwise.  Gross  v.  Bouton, 
9  Daly  (N.  Y.)  25. 

1.  Parham  v.  Cobb,  9  La.  Ann.  423; 
Lang  V.  Pike,  27  Ohio  St.  498;  Sharp  v. 
Bedell,  10  111.  93;  StuU  v.  Hance,  62 
111.  52;  Graeter  v.  DeWolf,  112  Ind.  4; 
Lafayette  v.  James,  92  Ind.  240;  Weed 
Sewing  Mach.  Co.  v.  Winchel,  107  Ind. 
260;  Ludlow  V.  Simonds,  2  Cai.  (N.  Y.) 
i;  McCluskey  v.  Cromwell,  11  N.  Y. 
593;  Noyes  v.  Granger,  51  Iowa  227; 
Home  Sav.  Bank  v.  Traube,  6  Mo. 
App.  221;  Pybus  V.  Gibbs,  38  Eng.  L. 
&  Eq.  57. 

As  the  liability  of  sureties  cannot 
be  extended  beyond  the  condition  of 
the  bond,  the  sureties  cannot  be  made 
liable  for  damages  not  included  there- 
in. Parham  v.  Cobb,  9  La.  Ann.  423. 
And  where  conditioned  only  to  pay 
costs  they  cannot  be  forced  to  pay  the 
original  judgment  if  affirmed.  La- 
Tourette  v.  Baird.  Minor  (Ala.)  325. 

Liability  of  Principal. — It  is  also  a 
general  rule  applicable  to  the  liability 
of  suretyship  that  up  to  the  amount  of 
the  bond  the  liability  of  sureties  is 
measured  by  that  of  the  principal,  and 
that  no  recovery  can  be  had  against 
them    unless   it   can    be   had    against 


him.  Parnell  v.  Hancock,  48  Cal.  452; 
Sharon  v.  Sharon,  84  Cal.  433;  Cole- 
man V.  Bean,  14  Abb.  Pr.  (N.  Y.  C. 
PI.)  38;  Onderdonk  v.  Voorhis,  2  Rcbt. 
(N.  Y.)  24.  And  in  an  action  on  the 
bond  sureties  may  avail  themselves  of 
any  defense  available  to  their  prin- 
cipal.    Sharon  v.  Sharon,  84  Cal.  433. 

Amount  of  Judgment. — So,  where  the 
bond  is  conditioned  to  pay  the  judg- 
ment and  costs,  the  extent  of  recovery 
is  ordinarily  the  judgment,  interest, 
and  costs  unless  the  bond  specially 
provides  otherwise,  Kilgour  i/.  Drain- 
age Com'rs,  III  111.  342;  Stellez/.  Love- 
joy,  125  111.  352;  Pitt  V.  Swearingen, 
76  111.  250;  Shunick  v.  Thompson,  25 
111.  App.  619. 

Attorneys'  Fees. — Sureties  are  not 
liable  for  attorneys'  fees.  Noll  v. 
Smith,  68  Ind.  168. 

Bents  and  Profits. — Nor  ordinarily  for 
rents  and  profits  pending  appeal  af- 
fecting real  estate  unless  the  statute 
so  declares.  Opp  v.  Ten  Eyck,  99 
Ind.  345;  Hays  v.  Wilstach,  loi  Ind. 
100;  Opp  V.  Ward,  125  Ind.  241; 
Stults  V.  Zahn,  117  Ind.  297. 

Judgment  In  Eem.— Where  a  judg- 
ment is  personal  against  some  of 
the  defendants,  and  in  rem  against 
others,  and  the  latter  appeal  and  give  a 
bond,  they  and  their  sureties  are  lia- 
ble on  affirmation  of  the  judgment  ap- 
pealed from  only  for  costs  and  dam- 
ages, and  not  to  pay  the  personal 
judgment.  Wilson  v.  Glenn,  77  Ind. 
585;  Hinkle  v.  Holmes,  85  Ind.  405; 
Scott  V.  Marchant,  88  Ind.  349. 

Judgment  of  Foreclosure. — Sureties  on 
an  appeal  bond  in  an  action  enforcing 
a  lien  on  real  estate  are  not  liable  for 
any  deficiency  arising  from  the  appli- 
cation of  the  proceeds  of  the  sale  to 
the  debt  unless  a  personal  judgment 
was  rendered  which  the  bond  was  con- 
ditioned to  pay.  Kennedy  v.  Nims, 
52  Mich.  153;  Kephart  r.  Farmers,  etc., 
Bank,  4  Mich.  602. 

Statutory  Amount. — Where  the  bond 
given  on  appeal  fails  to  mention  a  fixed 
sum,  it  is  held  in  Indiana  under  cura- 
tive statutes  supplying  omissions  of 
substance  that  the  amount  named  in  the 
statute  will  be  held  to  have  been  in  the 
contemplation  of  the  parties.  Graeter 
V.  DeWolf,  112  Ind.  i;  State  v.  Britton, 


•iot5 


Construction  of  Contract.        APPEAL    BONDS. 


Discharge  of  Saretiw. 


conditioned  in  a  fixed  sum  as  penalty  for  breach  of  its  obligation, 
a  surety  cannot  be  held  to  be  liable  for  an  amount  in  excess 
thereof,*  except  that  principal  and  sureties  are  liable  by  way  of 
damages  for  interest  on  the  sum  fixed  in  the  bond  and  for  costs 
of  suit  to  collect  it.* 

5.  Discharge  of  Sureties. — The  liability  of  the  sureties  being  con- 
tingent, any  legal  satisfaction  as  a  bar  of  the  judgment  appealed 
from  as  against  the  principal  discharges  the  sureties,'  as  reversal 


I02  Ind.  214;  Ward  v.  Buell,  18  Ind. 
104,  81  Am.  Dec.  349;  Sharpe  z'.  Hard- 
ing, 21  Ind.  334;  King  v.  Brewer,  19 
Ind.  267. 

The  approval  by  the  proper  official 
of  an  appeal  bond  for  an  amount  less 
than  the  statute  requires  limits  the 
liability  of  the  sureties  to  the  amount 
named,  Ward  v.  Buell,  18  Ind.  104, 
81  Am.  Dec.  349;  Sharp  v.  Bedell, 10  111. 
93;  unless  the  statute  not  merely  de- 
fines its  amount,  but  mandatorily  de- 
clares that  parties  to  appeal  bond  shall 
be  liable  in  the  amount  named,  in 
which  case  it  cannot  be  lessened  by 
agreement,  King  v.  Brewer,  19  Ind. 
267;  Opp  V.  Ten  Eyck,  99  Ind.  345. 

1.  United  States. — The  Wanata,  95  U. 
S.  605;  Ives  V.  Merchants'  Bank,  12 
How.  (U.  S.)  159;  U.  S.  V.  Ricketts,  2 
Cranch  (C.  C.)  164;  Bank  v.  Sprigg,  i 
McLean  (U.  S.)  178;  Lawrence  v.  U.  S., 
2  McLean  (U.  S.)  581;  Goldhawk  v. 
Duane,  2  Wash.  (U.  S.)  323;  Leggett 
V,  Humphreys,  21  How.  (U.  S.)  66; 
Bank  of  Mt.  Pleasant  v.  Spring,  i 
McLean  (U.  S.)  17S;  The  Union,  4 
Blatchf.  (U.  S.)  90;  Farrar  v.  U.  S.,  5 
Pet.  (U.  S.)  373;  The  Ann  Caroline,  2 
Wall.  (U.  S.)  538;  Godfrey  v.  Gilmar- 
tin,  2  Blatchf.  (U.  S.)  340;  Brown  v. 
Burrows,  2  Blatchf.  (U.  S.)  341;  Ses- 
sions V.  Pintard,  18  How.  (U.  S.)  106; 
The  Steamer  Wm.  H.  Webb  v.  Bar- 
ling, 14  Wall.  (U.  S.)  406;  Wallace  v. 
Wilder,  13  Fed.  Rep.  707. 

New  York. — Clark  v.  Bush,  3  Cow. 
(N.  Y.)  151;  Wood  V.  Fisk,  63  N.  Y. 
245;  Oshiel  V.  DeGraw,6  Cow.  (N.  Y.) 
63;  Fairliez/.  Lawson,5  Cow.(N.Y.)424. 

Indiana. — Graeter  v.  DeWolf,  112 
Ind.  i;  Weed  Sewing  Mach.  Co.  v. 
Winchel,  107  Ind.  260;  Sharpe  v.  Hard- 
ing, 21  Ind.  334;  King  v.  Brewer,  19 
Ind.  267;  Miller  v.  O'Reilly,  64  Ind.i68. 

Other  States.— TaXhot  v.  Morton,  5 
Litt.  (Ky.)  326;  Graham  v.  Swigert,  12 
B.  Mon.  (Ky.)  522;  Allen  v.  Grider,  24 
Ark.  271;  Many  z/.  Sizer,  6  Gray  (Mass.) 
141;  Unteriein  v.  McLane,  10  Mo.  343; 
Hendrick  v.  Cannon,  5  Tex.  24S. 


2.  The  Wanata,  95  U.  S.  605;  U.  S. 
V.  Arnold,  i  GaU.  (U.  S.)  348;  Ives  v. 
Merchants'  Bank,  12  How.  (U.  S.)  159; 
Crane  v.  Andrews,  10  Colo.  265;  Mar- 
shall V.  Winston, 43  Miss.  666;  Brainard 
V.  Jones,  18  N.  Y.  35;  Lyon  v.  Clark, 
8  N.  Y.  148;  Seaman  v.  McReynolds, 
50  How.  Pr.  (N.  Y.  Super.  Ct.)  421; 
Washington  County  Ins.  Co.  v.  Colton, 
26  Conn.  42;  Carter  v.  Thorn,  18  B. 
Mon.  (Ky.)  613;  Hughes  v.  Wickliffe, 
II  B.  Mon.  (Ky.)  202;  Baker  z/.  Morris, 
10  Leigh  (Va.)  294;  Harris  v.  Clap,  i 
Mass.  312,  2  Ain.  Dec.  27;  Pitts  v.  Til- 
den,  2  Mass.  118;  Hughes  v.  Hughes, 
54  Pa.  St.  240;  Rowlain  v.  McDowell,  i 
Bay  (S.  Car.)  490;  Smedes  v.  Hough- 
taling,  3  Cai.  (N.  Y.)  48;  Hale  v. 
Thomas,  i  Vern.  349;  Erickson  v.  El- 
der, 34  Minn.  371. 

The  interest  on  the  penalty  by  way 
of  damages  cannot,  together  with  the 
penalty,  exceed  principal  and  interest 
due  on  judgment  with  costs  of  suit. 
East  India  Co.  v.  Champion,  11  Bligh 
459;  Harris  v.  Clap,  i  Mass.  312,  2 
Am.  Dec.  27;  Brainard  v.  Jones,  18 
N.  Y.  35;  Hughes  v.  Wickliffe,  11  B. 
Mon.  (Ky.)  202. 

In  Leggett  v.  Humphreys,  21  How. 
(U.  S.)  66,  it  was  said:  "  The  principle 
which  limits  the  liability  of  the  surety 
by  the  penalty  of  this  bond  inheres 
intrinsically  in  the  character  of  his  en- 


gagement. 


The  undertaking  of 


the  surety  is  essentially  a  pledge  to 
make  good  this  misfeasance  or  non- 
feasance of  his  principal  to  an  amount 
coextensive  with  the  penalty  of  his 
bond." 

3.  This  follows  because  their  lia- 
bility is  contingent  upon  his.  Green 
V.  Raftes,  67  Ind.  49;  Cass  v.  Adams, 
3  Ohio  223;  Cook  V.  King,  7  111. 
App.  549;  First  Nat.  Bank  v. 
Rogers,  13  Minn.  407;  Ellis  v.  Fisher, 
10  La.  Ann.  479;  Herrick  v.  Swart- 
wout,  72  111.  340;  Stelle  v.  Lovejoy, 
125  111.  352;  Andrews  v.  Scotton,  2 
Bland  (Md.)  629. 

Execution  Against  Person. — The  issu- 

16 


Constrnction  of  Contract.         APPEAL   BONDS. 


Change  of  Issaes. 


on  appeal,*  or  payment  of  the  affirmed  judgment  by  appel- 
lant.* 

6.  Change  of  Issues. — As  a  general  rule,  any  material  change  in  the 
issues  on  appeal,  without  their  consent,  discharges  the  sureties.' 

Agreement  of  Parties. — And  they  are  discharged  by  any  agreement  of 
the  parties  by  which  the  obHgation  of  the  judgment  appealed 
from  is  varied  or  the  time  for  payment  is  suspended.* 


ance  of  an  execution  against  the 
person  of  the  appellant,  as  to  whom  a 
judgment  has  been  affirmed  on  appeal, 
and  his  arrest,  imprisonment,  and  dis- 
charge thereon,  do  not  release  the 
surety  on  the  undertaking.  Prusia  v. 
Brown,  45  Hun  (N.  Y.)  80. 

1.  Rothberger  v.  Wonderly,  66  111. 

390- 

2.  Stelle  V.  Lovejoy,  125  111.  352. 

Tender. — A  sufficient  tender  of  per- 
formance of  the  judgment  by  either 
principal  or  sureties  on  an  appeal 
bond  discharge  the  sureties  from  its 
obligations,  whether  accepted  or  not. 
Spurgeon  v.  Smitha,  114  Ind.  453; 
Post  V.  Losey,  iii  Ind.  75;  Mus- 
grave  v.  Glasgow  3  Ind.  31;  Wilson  v. 
McVey,  83  Ind.  108;  Sharp  v.  Miller, 
57  Cal.  415;  Solomon  v.  Reese,  34Cal. 
28;  Hayes  v.  Josephi,  26  Cal.  535; 
Joslyn  V.  Eastman,  46  Vt.  258;  Sears 
V.  Van  Dusen,  25  Mich.  351;  Hamp- 
shire Mfg.  Bank  v.  Pillings,  17  Pick. 
(Mass.)  87. 

3.  Post  V.  Shafer,  63  Mich.  85; 
Anderson  v.  Robinson,  38  Mich.  407; 
Taylor  v.  Dansby,  42  Mich.  82;  Evers 
V.  Sager,  28  Mich.  47;  Cross  v.  Eaton, 
48  Mich.  184;  Munn  v.  Haynes,  56 
Mich.  140;  Irwin  v.  Sanders,  5  Yerg. 
(Tenn.)  287;  Shimer  v.  Hightshue,  7 
Blackf.  (Ind.)  238;  Sage  v.  Strong,  40 
Wis.  575;  Willis  V.  Crooker,  i  Pick. 
(Mass.)  204;  Hubbellz/.  Bissell,  2  Allen 
(Mass.)  196;  Hill  V.  Hunnewell,  i 
Pick.  (Mass.)  192;  Danielson  v.  An- 
drews, I  Pick.  (Mass.)  156;  Bean  v. 
Parker,  17  Mass.  591;  Langley  v. 
Adams,  40  Me.  125;  Curry  v.  Barclay, 
3  Ala.  484;  Tarver  v.  Nance,  5  Ala. 
718;  or  where  the  name  of  one  of  the 
joint  plaintiffs  in  error  is  stricken  out 
of  the  writ  of  error   by  order  of  the 

court.  Tarver  v.  Nance,  5  Ala.  718. 

Enlargement  of  Claim. — Thus  on  ap- 
peal from  a  justice  of  the  peace  to  the 
Circuit  Court,  an  enlargement  of  the 
claim  without  the  sureties'  consent 
avoids  their  liability  on  a  bond  given 
to  secure  a  judgment  for  a  defined 
amount.     Sage  v.  Strong,  40  Wis.  575; 

10 


Willis  V.  Crooker,  i  Pick.  (Mass.)  204; 
Hill  V.  Hunnewell,  i  Pick.  (Mass.)  192; 
Danielson  v.  Andrews,  i  Pick.  (Mass.) 
156;  Hubbell  V.  Bissell  2  Allen 
(Mass.)i96;  Bean  v.  Parker,  17  Mass. 
591;  Langley  v.  Adams,  40  Me.  125; 
Irwin  V.  Sanders,  5  Yerg.  (Tenn.)  287. 
Otherwise  where  the  bond  is  to  secure 
any  judgment  which  may  be  rendered. 
Hare  v.  Marsh,  61  Wis.  437,  50  Am. 
Rep.  141;  Masser  v.  Strickland,  17  S. 
&  R.  (Pa.)  354,  17  Am.  Dec.  668. 

Statutory  Increase  of  Liability. — The 
sureties  to  an  undertaking  on  appeal 
are  presumed  to  contract  with  refer- 
ence to  the  power  of  the  legislature  to 
change  the  law  affecting  the  damages 
awarded  on  appeal,  and  they  are 
bound  by  any  statutory  increase 
therein  made  after  they  enter  into  the 
contract  and  while  the  appeal  is  unde- 
cided. Horner  v.  Lyman,  4  Keyes 
(N.  Y.)237- 

4.  ComegyST/.  Cox,  I  Stew.  (Ala.)262; 
Leonard  v.  Gibson,  6  111.  App.  503; 
Gardner  v.  Watson,  13  111.  347;  Win- 
gate  V.  Wilson,  53  Ind.  78;  Shimer  v. 
Hightshue,  7  Blackf.  (Ind.)  238;  John- 
son V.  Flint,  34  Ala.  673. 

Thus  an  agreement  without  the 
consent  of  sureties  that  judgment  of 
affirmance  shall  be  entered  for  a 
specified  amount  discharges  them, 
Johnson  v.  Flint,  34  Ala.  673;  or  an 
agreement  to  pay  a  sum  in  instal- 
ments in  satisfaction  of  a  judgment 
pending  an  appeal  without  their  con- 
sent, Leonard  v.  Gibson,  6  111.  App. 
503;  or  where  appellee, without  consent 
of  sureties,  takes  by  agreement  a  judg- 
ment against  a  portion  only  of  the  ap- 
pellants, Shimer  v.  Hightshue,  7 
Blackf.  (Ind.)  238;  or  suspends  exe- 
cution on  the  judgment  by  agree- 
ment with  appellant  without  consent  of 
sureties,  Wingate  v.  Wilson,  53   Ind. 

Amendment  Adding  New  Party. — But 
the  surety  is  not  discharged  by  an 
amendment  adding  a  new  party  in  a 
Circuit  Court  on  appeal  from  a  justice 
court.     Helt  v.  Whittier,  31  Ohio  St. 

17 


Remedies  of  Obligee. 


APPEAL  BONDS. 


Bemedies  of  Obligee. 


XX.  Remedies  of  Obligee.— As  appeal  bonds  have  all  the 
essentials  of  valid  contracts,  the  general  principle  that  statutory 
remedies  are  cumulative  and  not  exclusive  applies.*  Unless, 
therefore,  the  remedy  pointed  out  by  statute  is  expressly  manda- 
tory, the  obligee  may  resort  to  an  independent  action  on  the  con- 
tract against  the  obligors.* 

Ignorance  and  Fraud. — The  surety  cannot  plead  his  ignorance  of  the 
extent  of  his  contract,^  or  even  the  fraudulent  misrepresentations 
of  the  appellant  or  his  agents  in  inducing  its  creation.* 


475,  overruling  Lang  v.  Pike,  27  Ohio 
St.  498. 

Injunction  Bestraining  Collection  of 
Judgment. — The  obtaining  of  an  in- 
junction by  the  appellant  restraining 
the  collection  of  the  judgment  affirmed 
on  appeal,  without  consent  of  sure- 
ties, does  not  discharge  them.  Hodges 
V.  Gervin,  6  Ala.  478. 

Nonsuit  Set  Aside  by  Agreement. — 
In  Bailey  v.  Rosenthal,  56  Mo.  385,  it 
was  held  that  sureties  are  not  such 
parties  to  the  suit  as  to  require  their 
consultation  in  any  step  taken  prior 
to  final  judgment,  and  that  a  nonsuit 
might  be  set  aside  by  agreement  taken 
on  appeal  to  a  Circuit  Court  without 
their  discharge. 

1.  Trent  v.  Rhomberg,  66  Tex.  252; 
Lobdell  V.  Lake,  32  Conn.  16;  Candee 
V.  Hayward,  37  N.  Y.  653;  State  v. 
Boies,  41  Me.  344;  Mestling  v.  Hughes, 
89  111.  389;  Hester  z/.  Keith,  i  Ala.  316; 
Rowlet  V.  Eubank,  i  Bush  (Ky.)  477; 
Burroughs  v.  Lowder,  8  Mass.  372. 

2.  Trent  v.  Rhomberg,  66  Tex.  252; 
Lobdell  V.  Lake,  32  Conn.  16;  State  v. 
Boies,  41  Me.  345;  Legate  v.  Marr, 
8  Blackf.  (Ind.)  404;  Ellis  v.  Hull,  23 
Cal.  161;  Philbrick  v.  Buxton,  40  N.  H. 
384;  McConnell  v.  Swailes,  3  111.  571; 
Karthaus  v.  Owings,  6  Har.  &  J.  (Md.) 
138;  Hobart  v.  Hilliard,  11  Pick. 
(Mass.)  143;  Ashley  v.  Brasil,  i  Ark. 
144. 

A  law  providing  that  the  appellate 
court  may,  on  affirmance  of  the  judg- 
ment appealed  from,  render  judgment 
directly  against  sureties  on  the  appeal 
bond  is  constitutional.  Beall  v.  New 
Mexico,  16  Wall.  (U.  S.)  539- 

The  Statutory  Bemedy  cannot  be  re- 
sorted to  unless  the  appeal  bond  given 
complies  with  the  statutory  require- 
ments. Where  the  obligee  accepts  or 
waives  the  defects  in  an  appeal  bond 
invalid  as  a  statutory  obligation,  he 
must  bring  an  independent  action  on 
contract.      State   v.    Montgomery,    74 


Ala.  226;  Brown  v.  Levins,  6  Port. 
(Ala.)4i4;  Curry  v.  Barclay,  3  Ala.  484; 
Tarver  v.  Nance,  5  Ala.  712;  Hinson  v. 
Preslor,  27  Ala.  643. 

Deceased  Surety. — A  valid  judgment 
cannot  be  rendered  on  appeal  directly 
against  a  deceased  surety  on  the  bond; 
his  personal  representatives  should  be 
made  parties  before  the  termination  of 
the  cause  on  appeal,  otherwise  an  in- 
dependent suit  must  be  brought.  Nix 
V.  French,  10  Heisk.  (Tenn.)  377. 

3.  He  is  bound  to  know  the  measure 
of  his  liability  on  the  appeal  bond. 
Vail  V.  Reynolds,  51  Hun  (N.  Y.)  468; 
Western  New  York  L.  Ins.  Co.  v. 
Clinton,  66  N.  Y.  326;  Wallace  v.  Wil- 
der, 13  Fed.  Rep.  715;  Ladd  z/. Trustees, 
80  111.  223;  George  v.  Tate,  102  U.  S. 
564;  Dair  v.  U.  S.,  16  Wall.  (U.  S.)  i; 
McMinn  v.  Patton,  92  N.  Car.  371; 
Chalaron  v.  McFarlane,  9  La.  229; 
State  V.  Judge,  19  La.  174. 

4.  George  v.  Tate,  102  U.  S.  564; 
Dairz/.  U.  S.,  16  Wall.  (U.  S.)  i;  Wal- 
lace V.  Wilder,  13  Fed.  Rep.  715;  West- 
ern New  York  L.  Ins.  Co.  v.  Clinton, 
66  N.  Y.  326;  Ladd  v.  Trustees,  80 
111.  233;  unless  the  obligee  had  knowl- 
edge thereof  at  the  time.  Chalaron 
V.  McFarlane,  9  La.  229. 

Condition  Unperformed. — In  Netv  York, 
where  a  surety  signs  an  appeal  bond 
or  undertaking  on  the  condition  that 
another  person  shall  become  a  party 
to  it,  a  delivery  of  the  bond  in  viola- 
tion of  the  agreement  does  not  bind 
the  surety.  Grimwood  v.  Wilson,  31 
Hun  (N.  Y.)  215;  People  v.  Bostwick, 
32  N.  Y.  445;  Bookstaver  v.  Jayne,  60 
N.  Y.  150;  Benton  v.  Martin,  52  N.  Y. 
570. 

The  contrary  is  held  in  Indiana.  Al- 
len V.  Marney,  65  Ind.  398,  32  Am. 
Rep.  73.  See  Am.  &  Eng.  Ency.  Law, 
tit.  Bonds. 

Prior  AppeaL — So  the  fact  that  sure- 
ties were  ignorant  that  the  judgment 
appealed   from   had  already  been   af- 


1018 


Estoppel  of  Sureties. 


APPEAL  BONDS. 


Estoppel  of  Soreties. 


XXI.  Estoppel  of  Sueeties.— By  obtaining  the  benefit  of  an  ap- 
peal  the  appellant  and  his  sureties  are  estopped  from  questioning 
the  sufficiency  of  the  appeal  bond ;  *  and  the  recitals  contained 
therein  are  conclusive  in  a  suit  brought  against  them  on  the  bond.* 


firmed  on  a  prior  appeal  is  no  defense. 
McClure  v,  Colclough,  6  Ala.  492. 

1.  Pray  v.  Wardell,  146  Mass.  327; 
Fall  River  v.  Riley,  140  Mass.  488; 
Granger  z/.  Parker,  142  Mass.  186;  Gla- 
zier V.  Carpenter,  16  Gray  (Mass.)  385; 
Com.  V.  Sullivan,  11  Gray  (Mass.) 
203;  Williams  v.  Coleman,  49  Mo.  325; 
Livingston  v.  Hammer,  7  Bosw.  (N. 
Y.)67o;  Price  v.  Kennedy,  16  La.  Ann. 
78. 

2.  Gudtner  v.  Kilpatrick,  14  Neb. 
347;  Adams  v.  Thompson,  18  Neb. 
541;  Coon  V.  McCormack,  6g  Iowa 
539;  Trent  v.  Rhomberg,  66  Tex.  249; 
George  v.  Bischoff,  68  111.  236;  Arnott 
V.  Friel,  50  111.  174;  Blackburn  v. 
Bell,  91  111.  434;  Meserve  v.  Clark, 
115  111.  580;  Smith  V.  Whitaker,  il 
111.  417;  Mix  V.  People,  86  111.  329; 
Smith  V.  Lozano,  i  111.  App.  171; 
Bowen  v.  Reed,  34  Ind.  430;  Reeves 
V.  Andrews,  7  Ind.  207;  Wood  v. 
Thomas,  5  Blackf.  (Ind.)  553;  Legate 
V.  Marr,  8  Blackf.  (Ind.)  404;  Rock  v. 
Gordon,  6  Blackf.  (Ind.)  192;  Davis  v. 
Sturgis,  I  Ind.  213;  Blair  v.  Kilpatrick, 
40  Ind.  312;  Buchanan  v.  Milligan, 
125  Ind.  332;  Trueblood  v.  Knox,  73 
Ind.  310;  Carver  v.  Carver,  77  Ind. 
498;  Hartlep  v.  Cole,  120  Ind.  247; 
Robertson  v.  Smith,  129  Ind.  422;  Riley 
V.  Mitchell,  38  Minn.  9;  Barrett  Min. 
Co.  V.  Tappan,  2  Colo.  124;  Beeman  v. 
Banta,  113  N.  Y.  615;  Levi  v.  Dorn, 
28  How.  Pr.  (N.  Y.  Supreme  Ct.)  217; 
Biagi  V.  Howes,  63  Cal.  384;  Goodwin 
V.  Fox,  120  U.  S.  775. 

In  Hartlep  v.  Cole,  120  Ind.  250,  it 
was  said:  "  It  is  too  late  for  the  appel- 
lants,after  having  executed  the  replev- 
in bond  and  obtained  possession  of  the 
property  after  the  court  had  rendered 
judgment  awarding  the  property  to 
the  appellee,  and  after  a  failure  to 
comply  with  the  order  of  the  court  or 
pay  the  judgment,  to  set  up  as  a  de- 
fense to  the  action  that  the  statutory 
provisions  in  regard  to  the  execution 
of  the  bond  were  not  technically  com- 
plied with." 

Instances. — They  cannot  therefore 
contradict  the  existence  of  the  judg- 
ment recited  in  the  bond,  Arnott  v. 
Friel,   50  111.   174;  or   that  it  was  un- 


satisfied, Smith  V.  Lozano,  i  111.  App. 
171;  or  that  an  appeal  has  been 
taken,  Adams  v.  Thompson,  18  Neb. 
541- 

Jurisdictional  Defects. — The  doctrine 
of  estoppel  has  been  extended  to  cover 
defects  which  are  of  a  jurisdictional 
character,  as  where  the  appeal  bond 
has  not  been  filed  in  time,  Gudtner 
V.  Kilpatrick,  14  Neb.  347;  Adams  v. 
Thompson,  18  Neb.  541;  Easter  v. 
Acklemire,  81  Ind.  16;  Ham  v.  Greve, 
41  Ind.  531;  Jones  v.  Droneberger,  23 
Ind.  74;  Railsback  v.  Greve,  58  Ind. 
72;  Smock  V.  Harrison,  74  Ind.  348; 
State  V.  Britton,  102  Ind.  214;  Pep- 
per V.  State,  22  Ind.  399;  or  even 
where  the  appeal  is  void  because  none 
lies  in  the  particular  case,  Gudtner 
V.  Kilpatrick,  14  Neb.  347;  McCon- 
nell  V.  Swailes,  3  111.  571;  Sutherland 
V.  Phelps,  22  111.  91;  Clark  v.  Miles,  2 
Pinney  (Wis.)  432;  Love  v.  Rockwell, 
I  Wis.  382;  Stephens  v.  Miller,  80  Ky. 
47. 

The  giving  of  an  appeal  bond  es- 
tops the  appellant  to  deny  that  the 
appellate  court  has  jurisdiction  over 
his  person.  Bowen  v.  Reed,  34  Ind. 
430. 

But  the  doctrine  of  estoppel  pre- 
supposes that  the  obligation  was  vol- 
untarily entered  into.  See  Gudtner  v. 
Kilpatrick,  14  Neb.  347. 

Impeachment  of  Judgment. — The  judg- 
ment rendered  on  appeal  against  the 
principal  is  generally  held  res  adjudi- 
cata  as  to  the  sureties.  Way  v.  Lew- 
is, 115  Mass.  26;  Tracy  v.  Maloney, 
105  Mass.  90;  Heard  v.  Lodge,  20 
Pick.  (Mass.)  53,  32  Am.  Dec.  197; 
Cutter  z/.  Evans,  115  Mass.  27;  Tracy  w. 
Goodwin,  5  Allen  (Mass.)  409;  Hy- 
draulic Press  Brick  Co.  v.  Neumeis- 
ter,  15  Mo.  App.  592;  McCormick  v. 
Hubbell,  4  Mont.  87;  Krall  v.  Lib- 
bey,   53  Wis.  292. 

But  they  may  impeach  the  judgment 
of  affirmance  as  procured  by  fraud  or 
collusion.  Krall  v.  Libbey,  53  Wis. 
295;  Way  V.  Lewis,  115  Mass.  26;  Cut- 
ter V.  Evans,  115  Mass.  27;  Granger  v. 
Parker,  142  Mass.  1S6;  McCormick  v. 
Hubbell,  4  Mont.  87. 

But  they  cannot  impeach  the  origi- 


1019 


Successive  Appeals. 


APPEAL  BONDS. 


Subrogation. 


XXII.  Successive  Appeals. — Where  successive  appeals  are  taken 
in  the  same  case  with  different  sureties  and  different  bonds,  sureties 
on  the  prior  appeal  are  not  responsible  for  liability  on  subsequent 
appeal,^  unless  the  condition  of  the  bond  is  expressly  broad 
enough  to  include  it.* 

XXIII.  Subrogation. — The  doctrine  of  subrogation  applies  to 
sureties  on  an  appeal  bond.  They  may  pay  the  judgment  affirmed 
against  their  principal  and  be  subrogated  to  all  the  rights  and 
remedies  of  the  appellee.^ 


nal  judgment  when  not  parties  to  the 
trial  court's  action.  Krall  v.  Libbey, 
53  Wis.  295. 

1.  Hinckley  v.  Kreitz,  58  N.  Y.  586; 
Nofsinger  v.  Hartnett,  84  Mo.  549; 
Winston  v.  Rives,  4  Stew.  &  P.  (Ala.) 
269. 

So,  where  on  appeal  to  the  General 
Term  of  the  Supreme  Court  of  New 
York  the  undertaking  bound  the  ap- 
pellant to  pay  "  all  costs  and  damages 
incurred  which  may  be  awarded 
against  him  on  said  appeal,"  it  was 
held  that  the  sureties  were  not  bound 
for  the  costs  and  damages  on  further 
appeal  by  the  appellee  to  the  Court  of 
Appeals.  Hinckley  v.  Kreitz,  58  N.  Y. 
586. 

2.  Hinckley  v.  Kreitz,  58  N.  Y.  586; 
Tibbies  v.  O'Connor,  28  Barb.  (N.  Y.) 
538;  Bennett  v.  Brown,  20  N.  Y.  99; 
Ball  V.  Gardner,  21  Wend.  (N.  Y.)  270; 
Traver  v.  Nichols,  7  Wend.  (N.  Y.) 
434;  Smith  V.  Crouse,  24  Barb.  (N.  Y.) 
435;  Gardner  z'.  Barney,  24  How.  Pr. 
(N.  Y.  Supreme  Ct.)469;  Robinson  v. 
Plimpton,  25  N.  Y.  487;  Nofsinger  v. 
Hartnett,  84  Mo.  549;  Babbitt  v. 
Shields,  loi  U.  S.  7. 

Novation. — The  execution  of  a  new 
undertaking,  with  new  sureties  on 
further  appeal  to  a  higher  court  does 
not  act  as  a  novation  and  discharge 
the  old  set  of  sureties  from*  their 
liability  on  the  prior  appeal.  Mackel- 
lar  V.  Farrell  (Super.  Ct.),  29  N.  Y.  St. 
R^P-  357'.  Heebner  v.  Townsend,  8 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  234; 
Smith  V.  Crouse,  24  Barb.  (N.  Y.) 
433;  Letson  v.  Dodge,  61  Barb.  (N.  Y.) 
125;  Gardner  J/.  Barney,  24  How.  Pr. 
(N.  Y.  Supreme  Ct.)  467;  Richardson  v. 
Kropf,  47  How.  Pr.  (N.  Y.  C.  PI.)  286; 
Bennett  v.  Brown,  20  N.  Y.  99;  Robin- 
son V.  Plimpton,  25  N.  Y.  484;  Hum- 
merton  v.  Hay,  65  N.  Y.  380;  Church 
V.  Simmons,  83  N.  Y.  261;  Clute  v. 
Knies,  102  N.  Y.  377;  Shannon  v. 
Dodge,  18  Colo.  169;  Rockwell  v.  Lake 


County,  17  Colo.  118;  Ashby  v.  Sharp, 
I  Litt.  (Ky.)  156;  Evers  v.  Sager,  28 
Mich.  47;  Marquette  County  v.  Ward, 
50  Mich.  174;  State  v.  Bradshaw,  10 
Ired.  (N.  Car.)  229;  Howell  v.  Sevier, 
I  Lea  (Tenn.)  95;  Stump  v.  Roberts, 
Cooke  (Tenn.)  350;  Whiteside  v.  Hick- 
han,  2  Yerg.  (Tenn.)  358;  Duncan  v. 
M'Gee,  7  Yerg.  (Tenn.)  103. 

Where  a  judgment  of  reversal  by  an 
intermediate  appellate  tribunal  is  re- 
versed on  further  appeal  to  a  higher 
court,  all  the  sureties  on  the  under- 
taking given  to  secure  the  first  appeal 
are  discharged  by  the  first  reversal,  as 
that  judgment  is  obliterated  by  the 
final  decision,  and  the  further  appeal 
is, in  contemplation  of  lavs,  only  a  neces- 
sary step  to  secure  an  affirmance  in 
the  prior  appellate  court.  Hinckley 
V.  Kreitz,  58  N.  Y.  588;  Robinson  v. 
Plimpton,  25  N.  Y.  484;  Gardner  v. 
Barney,  24  How.  Pr.  (N.  Y.  Supreme 
Ct.)  467;    Smith  V.   Crouse,  24  Barb. 

(N.  Y.)433. 

Waste  — Where  the  terms  of  an  un- 
dertaking on  appeal  to  an  interme- 
diate appellate  court  render  the  appel- 
lant liable  for  any  waste  committed 
"during  his  possession  of  the  prem- 
ises," the  sureties  are  liable  for  waste 
committed  after  the  determination  of 
the  first  appeal  and  while  a  further 
appeal  is  pending  to  a  higher  court. 
Church  V.  Simmons,  83  N.  Y.  264. 

New  Trial  Ordered — Bond  for  Costs. — 
Where  a  judgment  is  reversed  by  an 
intermediate  appellate  court  and  new 
trial  ordered,  from  which  order  an  ap- 
peal is  taken,  an  undertaking  thereon 
need  only  cover  costs,  as  there  is  no 
judgment  existing  until  the  order 
granting  a  new  trial  is  reversed.  Sea- 
man V.  McReynolds,  50  How.  Pr. 
(N.  Y.  Super.  Ct.)425. 

8.  Hinckley  v.  Kreitz,  58  N.  Y.  590; 
Armstrong's  Appeal,  5  W.  &  S.  (Pa.) 
352;  Burns  v.  Huntington  Bank,  i  P. 
&  W     Pa.)  395;  Pott  V.  Nathams,  i  W. 


1020 


♦ 


Becord  on  Appeal. 


APPEAL  BONDS. 


Becord  on  Appeal. 


XXIV.  Record  on  Appeal.— Either  the  original  appeal  bond  or 
a  properly  certified  copy  should  be  sent  up  in  the  record  on 
appeal,  to  enable  the  appellate  court  to  judge  of  its  sufficiency, 
and  the  record  should  show  that  it  has  been  properly  filed.* 


&  S.  (Pa.)  155;  Schurtzel's  Appeal,  49 
Pa.  St.  23;  McCormick  v.  Irwin,  35  Pa. 
St.  hi;  Parsons  v.  Birddock,  2  Vern. 
608. 

They  may  resort  to  any  final  lien  or 
equity  to  which  the  appellee  might 
have  resorted;  and  of  these  two  sets  of 
sureties  on  appeal  bond,  the  first  set 
may  pay  the  judgment  and  enforce  the 
appeal  bond  against  the  second  sure- 
ties. Hinckley  v.  Kreitz,  58  N.  Y. 
590;  Peirce  v.  Higgins,  loi  Ind. 
178. 

The  equity  of  the  surety  in  the  prop- 
erty covered  by  the  judgment  lien  is 
superior  to  that  of  a  purchaser  who 
buys  after  the  execution  of  the  appeal 
bond.  Peirce  v.  Higgins,  loi  Ind. 
178.  In  this  case  the  court  said:  "The 
surety  in  the  appeal  bond  had  a  right 
to  assume  that  the  judgment  bound 
the  land,  and  that  if  he  was  ultimately 
compelled  to  pay  it,  he  would  be  sub- 
rogated to  the  rights  of  the  creditor 
and  could  seize  and  sell  the  land  upon 
which  the  judgment  lien  rested.  When 
the  appellant  purchased,  he  was  bound 
to  take  cognizance  of  the  legal  rights 
of  the  surety.  It  is  a  fundamental 
principle  that  a  party  who  has  full 
knowledge  of  the  facts  is  bound  to 
know  their  legal  consequences.  Trent- 
man  V.  Elridge,  98  Ind.  525;  Anderson 
V.  Hubble  93  Ind.  570;  47  Am.  Rep. 
394;  Dodge  V.  Pope,  93  Ind.  480,  vide 
p.  487;  Barnes  v.   McKay,  7  Ind.  301. 


The  essential  thing  in  such  cases  as 
this,  and  in  cases  of  a  kindred  char- 
acter, is  knowledge  of  the  facts,  for, 
when  this  exists,  knowledge  of  legal 
consequences  is  necessarily  implied." 

The  Execution  of  a  Bond  by  an  Ezecn- 
tor  or  Administrator  creates  no  relation 
of  privity  between  the  sureties  and  the 
decedent's  estate,  and  payment  by  the 
sureties  of  the  judgment  affirmed  vests 
in  them  no  right  of  action  against  the 
estate.  Maybury  v.  Grady,  67  Ala. 
*I47;  Pearson  v.  Dassington,  32  Ala. 
227. 

1.  Spencer  v.  Thompson,  24  Ala. 
512;  Nisbet  V.  Lawson,  i  Ga.  275; 
Felton  V.  Elliott,  66  N.  Car.  195; 
Mitchell  V.  Sloan,  69  N.  Car.  10;  Frank- 
lin V.  Reiner,  8  Cal.  340;  Stetson  v. 
Corinna,  44  Me.  29;  Leach  v.  People, 
118  111.  157.  See  Appeals,  Record  on 
Appeal. 

Certificate  of  Clerk. — Where  a  certi- 
ficate of  the  clerk,  that  "the  appeal 
has  been  obtained  and  bond  given," 
must  be  presented  by  the  appellee  on 
his  motion  to  dismiss  for  failure  to  file 
the  transcript  in  time,  it  will  not  be 
granted  where  made  upon  the  tran- 
script as  actually  filed  without  the  pro- 
duction of  the  certificate.  The  appel- 
lee must  furnish  the  evidence  required 
by  statute.  Kimball  Lumber  Co.  v. 
Ruge,  26  Fla.  59;  West  v.  Brashear, 
12  Pet.  (U.  S.)  loi;  Macomb  v.  Arm- 
stead,  10  Pet.  (U.  S.)  407. 


1021 


INDEX. 


ABATEMENT   OF  ACTIONS. 

See  cross  references,  i. 
ABATEMENT   IN    PLEADING. 

Generally.     General  denial  as  a  plea  in  abatement.     See  Denials. 

By   reason   of   the    pendency   of  another   suit.     See   Another  Suit 
Pending. 

Definition  of  pleas  in  abatement,  i. 

Ancient  distinction  still  exists,  2. 

Pleas    in   abatement    and   pleas   in   bar ;    distinction   recognized   in 
equity,  2. 

Must  give  plaintiff  a  better  writ,  2. 

Absence  of  interest  in  plaintiff,  2. 

Pleas  divided  into  two  general  classes,  2. 

Distinguished  from  pleas  in  bar,  2. 

Pleas  do  not  go  to  the  merits,  2. 

Plea  denying  corporate  existence,  2. 

Kinds  of  pleas  in  abatement,  3. 

Order  of  pleading  different  kinds,  3. 

Usual  pleas  to  the  disability  of  plaintiff,  3. 

Usual  pleas  to  the  action  of  the  writ,  3. 

Plea  for  want  of  proper  parties,  3. 

Most  go  to  the  merits  of  the  action,  3. 

How  pleas  are  considered  in  modern  practice,  3. 

Joinder  of  matter  in  abatement  and  matter  in  bar  in  code  answers. 

854-  . 
To  the  jurisdiction.     Pleas  in  abatement  to  the  jurisdiction,  3. 
Objection  must  be  taken  by  plea  or  demurrer,  4. 
When  no  court  has  jurisdiction,  3. 
Denial  of  jurisdiction  to  particular  court,  3. 
Service  on  corporation,  4. 
Service  defective,  4. 
Fraud  in  obtaining  jurisdiction,  4. 
False  return  of  process,  4. 
Too  late  after  mandate  to  lower  court,  4. 
Citizenship  of  parties  in  actions  in  federal  courts,  4. 
Federal  practice  distinguished  from  State  practice,  4. 
Amendment  of  pleading  in  court's  discretion,  5. 
Waiver  of  objection  to  jurisdiction,  5. 
Whether  too  late  after  determination  of  demur,  5. 
Question  of  jurisdiction  not  properly  raised.  Judgment  for  plaintiff ,  5. 
Raising  objection  by  motion,  5. 

Setting  up  objection  in  notice  of  defence  under  general  issue,  5. 
Statute  saving  objections  to  jurisdiction,  5. 
Affinity  of  justice  signing  writ,  5. 
Must  show  another  court  having  jurisdiction,  6. 

102.^ 


INDEX, 

ABATEMENT   IN    PLEADING. 
To  the  Jurisdiction — Continued. 

Must  exclude  every  contrary  inference  and  negative  exceptions,  6. 

Must  be  certain  to  every  intent,  6. 

Pleas  must  be  clear,  distinct  and  positive,  6. 

Showing  want  of  residence,  7. 

Not  sufficient  to  show  facts  making  jurisdiction  discretionary,  7. 

Plea  in  abatement  of  the  writ.     Necessity  for  showing  jurisdiction  in 
another  court,  7. 

Abuse  of  criminal  process,  8. 

Residence  of  defendants.     Rule  where  several  defendants,  8. 

Want  of  residence.     Stating  defendant's  place  of  residence,  8. 

Determination  of  jurisdiction.     At  what  time,  9. 

Plea  of  fraudulent  assignment,  9. 

Prayer  to  conclude  plea,  8. 
Infancy.     Plea  or  demurrer,  9. 

Waiver  of  objection  by  not  interposing  plea,  9. 
Coverture.     Objection  of  marriage  taken  by  plea  in  abatement  or  demurrer,  9. 

Necessary  allegations  in  plea  of  coverture,  9. 

Requirement  of  verification,  g. 

Plea  of  coverture  not  a  plea  of  non-joinder,  9. 
Capacity  to  sue.     Taking  objection  by  plea  in  abatement,  10. 

Admission  of  capacity  by  failure  to  raise  objection,  10. 

Waiver  of  objection  if  not  taken,  10. 

Requisites  of  the  plea.     Definitions  and  certainty,  10. 

Action  by  assignee  for  benefit  of  creditors,  10. 

Party  suing  in  representative  capacity,  10. 

Plaintiff  a  corporation,  10. 

Denial  of   incorporation,  10. 

Corporation  having  ceased  to  exist,  10. 

Denial  of  capacity  of  corporation,  10. 

Alien  enemy,  11. 

Intervenor  not  filing  bond,  11. 

Failure  of  corporation  to  file  articles,  11. 

Facts  causing  incapacity  of  corporation.     Business  wound  up,  II. 

Answer  of  guardian  ad  litem,  11. 

Denying  validity  of  appointment  of  receiver,  11. 
Real  party  in  interest.     How  objection  taken,  11. 

Objection  taken  by  answer  in  Kansas,  11. 

Requisites  of  such  pleas,  11. 

As  a  plea  in  bar,  12. 

Assignment  of  claim,  11. 

Attorney  to  have  damages,  12. 

Suit  not  authorized,  12. 

Suit  not  that  of  plaintiff,  la. 

Good  and  bad  pleas,  12. 

Member  of  trust  or  combination,  12. 
Misnomer.     At  common  law,  12. 

In  the  United  States,  12. 

Plea  in  abatement  under  notice,  12. 

Waiver  of  objection  not  taken,  13. 

Misnomer  of  corporation,  13. 

Misnomer  in  representative  capacity,  13. 

Application  of  rule  to  cases  of  default,  13. 

Application  of  rule  in  equity,  13. 
Misjoinder.     Method  of  raising  objection,  13. 

Taking  advantage  under  general  issue,  14. 

Taking  objection  by  answer  or  demurrer,  14. 

Plea  to  several  counts,  14. 

Time  for  objection,  14. 

Misjoinder  of  other  defendants,  14. 

Who  can  object,  14. 
Non-joinder.     Plea  or  demurrer,  14. 

1024 


INDEX. 

ABATEMENT   IN    PLEADING. 
Non-joinder — Continued. 

In  actions  for  torts,  i^. 
Objection  as  to  defendants,  15. 
Plaintiffs  in  actions  on  contract,  15. 
In  equity,  16. 

Non-joinder  of  plaintiff's  husband,  16. 
Libel  for  salvage,  16. 
Part  owners  of  chattel,  16. 
Executors  and  administrators,  16. 
Application  of  rule  to  partners,  16. 
Partners  as  plaintiffs,  16. 

Showing  partnership  under  general  denial,  16. 
Proving  knowledge  of  partnership,  16. 
Members  of  association,  17. 
Joint  contractors — Charge  to  jury,  17. 
Plea  good  if  only  part  of  claim  joint,  17. 
When  objection  is  raised  by  demurrer,  17. 
Taking  objection  on  appeal,  17. 
Taking  objection  at  any  stage  of  action,  17. 

Overruling  demurrer  does  not  prevent  plea  in  abatement  for  non- 
joinder, 17. 
Requisites  of  plea.     Names  of  parties,  17. 

Ordinary  language  sufficient,  18. 

Showing  parties  alive  and  within  jurisdiction,  18. 

Need  not  allege  positively,  18. 

Stating  place  of  abode,  or  age  of  parties,  18. 

Where  omitted  parties  are  executors,  18. 

Showing  interest  of  omitted  party,  18. 
Plea  of  no  partnership,  19. 
Tenant  in  common,  19. 
Claiming  under  different  titles,  19. 
As  a  separate  defense,  19. 

Negativing  matter  which  would  be  insufficient  in  replication,  19. 
Personal  discharge  of  co-promisor,  19. 
Discontinuance  as  to  one  of  two  defendants,  19. 
Privilege  and  non-tenure.     Objection  should  be  raised  by  plea  in  abatement, 

19- 
Defects  in  process  and  proceedings.     Taking  objection  by  plea  in  abatement. 

19. 
Irregularities  in  proceedings  which  are  not  jurisdictional,  20. 
Variance.     How  objection  raised,  20. 
Raising  objection  on  appeal,  20. 
Total  departure  from  writ  in  declaration,  20. 
Craving  oyer,  20. 
States  where  rules  as  to  variance  are  enforced  and   where  oyer  is 

allowed,  20. 
Plea  should  set  out  originals  and  make  provert  of  and  enroll  copies, 

20. 
Service,  etc.     Taking  advantage  of  defects,  20. 
Waiver  of  right  to  move  to  quash  writ,  21. 
Must  show  service  defective,  21. 
Exclusion  of  contrary  inferences,  21. 
Should  show  defendant  an  inhabitant,  21. 
Enable  plaintiff  to  make  better  service,  21. 
Service  on  agent  of  corporation,  21. 

Service  on  resident  of  state,  21.  , 

Showing  by  whom  writ  should  be  served,  21. 
False  return  of  sheriff,  21. 

Taking  advantage  of  defects  by  motion  or  writ  of  error,  21. 
No  authority  in  person  serving,  21. 
No  service  on  defendants  not  pleading,  22. 
Service  at  wrong  time,  22. 

I  Encyc.  PI.  &  Pr.— 65.  1025 


INDEX. 

ABATEMENT   IN    PLEADING. 
Service,  etc. — Contimied. 

Privilege  of  defendant  as  a  witness,  22. 
Plea  should  not  allege  and  rely  on  immaterial  matters,  22. 
Person  served  not  agent  of  corporation,  22. 
Service  by  officer  out  of  office,  22. 
Action  premature.     How  objection  raised,  22. 
Defence  on  the  merits,  22. 
Suit  before  statutory  time,  22. 
Cannot  limit  the  recovery,  22. 
Matter  demurrable  if  pleaded  in  bar,  23. 
Note  not  due  ;  pleading  in  bar,  23. 
Agreement  to  extend  time,  23. 
Another  action  pending.     Ground  for  plea  in  abatement,  23. 
Requisites  and  construction.     Pleas  strictly  construed,  23. 
Pleas  not  favored  by  the  court,  23. 
Correctness  of  form  is  matter  of  substance,  23. 
Must  answer  whole  case  and  contain  full  averments,  23. 
Bad  beginning  of  plea,  23. 
Actions  accruing,  23. 
Alteration  of  plea,  23. 
Pleading  without  proper  defence,  23. 
Plea  by  president  of  corporation,  23. 

Pleas  must  be  certain  and  leave  nothing  to  inference,  24. 
Anticipating  defences.     Attending  court  as  a  witness,  24, 
Submission  of  claim  under  statute,  24. 
Must  allege  assigment  bona  fide,  24. 
Facts  showing  opposing  title,  24. 
Non-residence  at  time  action  commenced,  24. 
Death  of  plaintiff  after  filing  declaration,  24. 
Justice  of  Peace  interested  in  the  matter,  24. 
Notification  to  holder  of  legal  title,  24. 
Must  anticipate  defences,  24. 

Ratification  by  agent's  act,  25. 

Application  of  rule  requiring,  25. 
Duplicity  is  fatal,  25. 

Several  distinct  pleas  bad,  25. 

Issues  on  two  distinct  matters,  25. 

Specifying  several  particulars,  25. 

Statute  allowing  several  pleas,  25. 
Must  give  better  writ,  25. 

Rules  as  to  requisites  for  pleas  in  abatement  not  obsolete    26. 
Common-law  rules  in  force  in  United  States,  26. 
Application  of  old  rules  in  West  Virginia,  Missouri,  Texas,  Minnesota, 

Connecticut,  and  Rhode  Island,  26. 
Must  give  better  writ.     No  authority  to  sue,  26. 

No  defect  shown,  26. 

Reason  of  no  jurisdiction,  26. 

No  action  at  all,  26. 

Setting  out  title,  26. 
Matter  affecting  co-defendant  only,  26. 
Co-defendant  not  served,  26. 
Must  have  proper  beginning  and  conclusion,  27. 
Amendments  not  allowed,  26. 
Prayer.     Importance  of  the  prayer,  27. 
Relief  prayer  for  determines,  27. 
Plea  is  bad  if  prayer  is  omitted  or  is  wrong,  27. 
If  matter  in  abatement  concludes  in  bar,  it  is  bad,  27. 
Indefinite  prayer,  27. 

Matter  in  bar  pleaded  in  form  as  abatement,  27. 
Form  of  prayer,  28. 
Where  plaintiff  demurs  to  plea,  28. 
Prayer  for  disability  of  plaintiff,  28. 

1026 


INDEX. 

ABATEMENT   IN    PLEADING. 
Prayer — Continued. 

Defective  service  on  trustee,  28.  v 

Prayer  for  affirmative  relief,  2S. 

Praying  judgment  of  the  declaration  only,  28. 

Where  suit  is  commenced  by  bill,  28. 

Abatement  in  part,  28. 

Several  defendants,  28. 

Prayer  in  abatement  of  attachment,  28. 
Signature.     Signature  by  counsel,  28. 
Affidavit.     Requirement  of  verification,  28. 

Statute  of  Anne,  29. 

Benevolent  association.     Misjoinder,  29. 

Rule  in  Connecticut  and  Rhode  Island,  29. 

Requirement  of.  may  be  waived  by  plaintiff,  29. 

Requisites  of  affidavit,  29. 

Effect  of  defective  affidavit,  29. 

Alleging  truth  in  substance  and  fact,  29. 

Affidavit  to  plea  of  non-joinder,  29. 

Should  be  coextensive  with  plea  and  leave  nothing  to  inference,  29. 

Error  in  addition,  29. 

Residence  of  co-contractor,  29. 

Variance  from  the  plea,  30. 

Entitling  affidavit  in  the  cause,  30. 

Stating  addition  of  the  defendant,  30. 

Made  by  third  party  or  attorney,  30. 

Sworn  to  before  defendant's  attorney,  30. 

Sworn  to  before  declaration  delivered,  30. 

Sworn  to  on  same  da^,  30, 
Judgment  and  trial.     Proper  judgment  where  defendant  succeeds,  30. 

Whether  plea  is  to  writ  or  declaration,  30. 

One  of  two  defendants,  30. 

Plaintiff  cannot  reply,  30. 

Where  the  plaintiff  succeeds,  30. 

Defendant's  right  to  plead  over,  30. 

Frivolous  plea,  30. 

Order  to  plead  over  instanter,  30. 

Trial  by  record,  30. 

Nol pros  if  plaintiff  does  not  reply,  31. 

Matter  pleaded /wij  darrein  continuance  ;  final  judgment,  31. 

Wrong  prayer  ;  judgment  final,  31. 

Final  by  statute  ;  Massachusetts,  31. 

Judgment  for  plaintiff  on  issue  of  fact,  31. 

Courts  of  United  States,  31. 

Statute  allowing  pleas  in  abatement  and  bar,  31. 

Plea  in  bar  after  judgment  against  defendant,  31. 

Demurrer  after  issue  found  against  plea,  31. 

Final  judgment  on  plea  in  review,  31. 

Trial  involving  question  of  records,  32. 

Attack  on  declaration  by  defendant  defeated  on  plea,  32. 

Bad  plea  ;  signing  judgment,  32. 

Burden  of  sustaining  plea,  32. 

Whole  plea  not  proved,  32. 

Trial  of  plea  involving  question  of  records,  32. 

Burden  of  proof  ;  right  to  office,  32. 

Trial    of    variance    between    writ    and     declaration.      Question  for 
court,  32. 

Trial  of  plea  of  another  action  pending,  32. 
Waiver  of  plea.     Right  to  plead. in  abatement  lost  or  waived,  32. 

By  pleading  to  the  merits,  32. 

Due  order  of  pleading,  33. 

Death  before  action  brought,  33. 

Subsequent  plea  to  the  merits,  33. 

1027 


INDEX. 

ABATEMENT   IN    PLEADING. 
Waiver  of  Plea — Continued. 

Right  reserved  to  appeal  waived,  33. 

Filing  affidavit  of  merits,  33. 

Going  to  trial  on  the  merits,  34. 

Pleading  over  after  demurrer,  34. 

Pleading  out  of  order,  34. 

Plea  in  bar  after  plea  in  abatement,  34. 

Withdrawing  plea  to  merits,  34. 

Power  of  court  to  allow  plea  in  abatement  after  plea  in  bar,  34. 

What  is  withdrawal  of  former  plea  in  bar,  34. 

Withdrawal  of  plea  in  bar.     Pleading  not  allowed  although  in  due 
time,  34. 

Exceptions  to  rule  that  matter  in  abatement  must  be  first  pleaded,  35. 

Where  pleas  in  abatement  and  pleas  in  bar  are  allowed  at  the  same 
time,  35. 

By  laches  or  agreement,  36. 

After  imparlance,  36. 

Proceeding  in  cause,  36. 

Plaintiff's  demurrer,  36. 

Ignorance  of  ground  of  abatement,  36. 

After  removal  of  cause  to  another  court,  36. 

By  demurring,  36. 
Puis  darrein  continuance.     Matters  arising  after  issue,  36. 

Supplemental  answer,  37. 

When  matter  should  be  pleaded,  37. 

Pleas  at  trial  and  after  verdict,  37. 

Waiver  of  other  pleas,  37. 

Certainty  of  such  pleas,  38. 

Judgment  on  such  pleas,  38. 
Replication,  etc.     Rules  applicable  to  plaintiff,  38. 

Defendant's  set-off  or  counter-claim,  38. 

Demurrer,  39. 

Defeating  plea  without  replication,  39. 

Waiver  of  defects  by  plaintiff,  39. 
In  equity.     Same  rule  as  at  law,  40. 

Definiteness  and  certainty  of  pleas,  40. 

Pendency  of  foreign  suit,  40. 

Objections  not  raised  or  waived,  40. 

Suit  prematurely  brought,  40. 

Stay  of  one  suit  where  two  are  pending,  40. 

Debt  not  due,  40. 

Insanity  of  plaintiff,  41. 

Proper  parties  not  brought  in,  41. 

Absence  of  interest  in  plaintiff,  41. 

Plaintiff's  standing  in  court,  41. 

Adequate  remedy  at  law,  41. 

Withdrawal  of  answer  to  file  plea,  41. 

Demurrer  ;  remedy  at  law,  41. 
ABBREVIATIONS. 

General  rule  as  to  abbreviations,  42. 

Of  what  courts  will  take  notice,  42. 

Within  judicial  knowledge,  43. 

Judicial  notice  of  official  character,  43. 

Initials  of  proper  names,  43. 

Proper  names.     Distinction  between  vowels  and  consonants,  43. 

Judgment  against  person  designated  by  initials,  44. 

Writ  against  defendant  described  by  initials,  44. 

Indictment  against  person  described  by  initials,  44. 
Bond  subscribed  without  using  full  name,  45. 
Affidavit  subscribed  by  use  of  initial,  45. 
Objection  waived  by  judgment,  45. 
Objection  cured  by  answer,  45. 

1028 


INDEX. 

ABBREVIATIONS— Cb«//««^^. 

Objection  cured  by  verdict,  45. 

Identification  of  party  to  suit,  45. 

Amendment  where  only  initial  is  used,  45. 

Publication  of  summons  describing  party  by  initial   45. 

Middle  initial  no  part  of  name,  45.* 

Judicial  notice  of  contraction  of  names,  46. 

Prefixes  and  suffixes  as  parts  of  names,  46. 

"  Mrs."  and  "  Mr."  as  parts  of  names,  46. 

Surnames  with  prefix,  47. 

Words  denoting  periods  of  time,  47. 

Amount  and  description,  47, 

In  tax  judgments,  48. 

In  deeds,  48. 

In  indictments  and  description  of  land,  48. 

Miscellaneous  words,  letters  and  symbols,  48. 
ABDUCTION. 

Definition,  50. 

Form  of  indictment  at  common  law,  50. 

Sufficiency  of  indictment  under  modern  practice,  51. 

Allegations  of  non-consent  of  parent,  51. 

Allegation  of  custody  from  which  female  was  taken    51. 

Allegation  of  age  of  female,  51. 

Charge  of  malice,  51. 

Allegations  as  to  intention,  51. 

For  the  purpose  of  prostitution,  51. 

Stating  that  taking  was  for  lucre,  52. 

Surplusage  in  indictment,  52. 

Joinder  of  counts,  52. 

Instruction  defining  different  kinds  of  abduction    52. 

Indictment  containing  distinct  offences,  52. 
ABIDING   THE    EVENT. 

Definition,  53. 

Agreement  to  perfect  reference,  53. 

Bond  in  ne  exeat,  53. 

In  arbitration  bonds,  53. 

Bond  to  appear  and  abide  order  of  court,  54. 

Abiding  equity  decision  in  partition  suit,  54. 

When  each  party  succeeds  in  part,  54. 

Word  "event"  means  result,  54. 

Order  for  new  trial,  54. 

Witness  interested  in  event,  54. 

Stipulations  and  agreements,  54. 

Power  of  attorney  to  stipulate  that  one  action  shall  abide  event  of 
another,  54. 

Power  of  specia   counsel,  54. 

Partition  suits  in  other  states,  54. 

Form  of  stipulation,  55. 

Defence  common  to  two  actions,  55. 

Power  of  attorney  to  bind  infant,  55. 

Meaning  of  words  in  stipulations,  55. 

Stipulation  in  different  forms,  55. 

Stipulation  in  actions  of  ejectment,  56. 

Stipulation  where  two  actions  on  covenant  were  consolidated,  56. 

Stipulation  as  to  decision  of  appellate  court,  56. 

Stipulation  as  to  repeal  of  statute  pending  action,  56. 

Stipulation  to  abide  by  "  issue,"  56. 

Amending  pleas  but  not  changing  issue  does  not  affect  stipulation,  56. 

Stipulation  to  "await,"  57. 

Married  woman  bound  by  stipulation,  57. 

Meaning  of  words  in  bonds  and  recognizances  in  criminal  cases,  57. 

Bonds  and  recognizances  in  civil  actions,  58. 

1029 


INDEX. 

ABIDING    THE    YN'E'<iT— Continued. 
Performance  of  judgment.  58. 
Continuous  appearance,  58. 
Compliance  with  order  or  decision  of  court,  58. 
Costs  to  abide  the  event,  59. 

Costs  to  prevailing  party,  59. 

Costs  on  final  disposition  of  litigation,  59. 

Costs  where  new  trial  is  granted,  59. 

Costs  to  appellant  or  respondent,  60. 

Costs  of  intermediate  appeal,  60. 

Statute  as  to  costs  controls,  60. 

Costs  where  there  is  a  test  action,  61. 
Funds  in  court  to  abide  event,  61. 
Funds  in  interpleader  proceedings,  61. 
ABORTION. 

Definition,  62. 

Form  of  indictment  following  statute,  62. 
Certainty  in  indictment,  63. 
Allegation  of  taking  medicine,  63. 
Indictment  showing  kind  of  wound,  63. 
Use  of  term  "womb"  in  indictment,  63. 
Description  of  person.     Omission  of  name,  63. 

Not  necessary  to  allege  that  offence  was  committed  on  a  "  woman   '  63. 
Allegation   that   offence    was    "maliciously    and   feloniously"   com- 
mitted, 63. 
Allegation  of  pregnancy,  63. 
Words  equivalent  to  pregnancy,  63. 
Omission  of  allegation  of  pregnancy,  63. 
Allegation  of  death,  63. 

Allegation  of  pregnancy  not  necessary  in  indictment  for  attempt,  63. 
Allegation  of  intent,  64. 

Inference  of  intent  from  other  allegations,  64. 
Allegation  of  intent  to  cause  miscarriage,  64. 
Omission  to  aver  intent,  64. 
Specifying  means;  naming  medicine,  64, 
Allegation  that  medicine  was  administered,  64. 
Finding  of  character  of  drug  by  jury,  64. 
Precedents  of  indictments,  64. 
Describing  instruments  used,  64. 
Exceptions  must  be  negatived,  64. 
Manner  of  negativing  exceptions,  65. 
Sufficient  and  insufficient  negative  allegations,  65. 
Charging  abortion  and  manslaughter  in  one  count,  65. 
Joinder  of  several  counts,  65. 

Specifying  different  means  in  different  counts,  65. 
Different  counts;  different  descriptions  of  same  offence,  65, 
ACCESSORIES. 

Generally.     Definition  of  accessories  before  and  after  the  fact,  66. 
Definition  of  principal  in  first  and  second  degree,  66. 
Principal  in  the  second  degree,  66. 

Principal  in  second  degree  charged  as  principal  in  first  degree,  67. 
Joinder  of  principal  in  second  degree  with  principal  in  first  degree,  67. 
Form  of  indictment  of  principals  in  second  degree,  67. 
Showing  presence  of  principal  in  second  degree,  67. 
Before  the  fact.     Must  be  indicted  as  such,  68. 
Form  of  indictment,  68. 
Two  counts,  68. 
Indicted  alone,  68. 

Necessary  averments  where  accessory  is  indicted  alone,  68 
Joinder  with  principal,  68. 
Principal  must  be  convicted,  68. 
Verdict  against  accessory,  69. 


INDEX. 

ACCESSORIES. 

Before  the  fact — Continued. 

Accessory  to  several  defendants,  69. 
After  the  fact.     Joinder  with  principal,  69. 

Averment  of  knowledge,  69.  . 

Allegations  of  manner,  6g. 

Surplusage  in  indictment,  69. 

Acquittal  of  principal,  69. 
Distinction  abolished.     General  doctrine,  69. 

Accessory  may  be  charged  as  principal,  70. 

May  be  treated  as  accessory,  70. 

Distinction  not  abrogated,  70. 

Punishment  the  same,  70. 

Accessory  after  fact  not  to  be  charged  as  principal,  72. 

Statute  does  not  affect  accessory  after  the  fact,  72. 

Indictment  as  accessory  and  conviction  as  principal,  71. 

Indictment  as  principal  and  conviction  as  accessory,  71. 

Treating  defendant  as  either  principal  or  accessory,  71. 

Evidence  must  show  principal  guilty,  71, 

Principal  need  not  be  first  convicted,  71. 

Separate  and  single  counts,  71. 

Charging  as  both  principal  and  accessory,  71. 

Statutory  allegation,  71. 

Name  of  principal,  71. 

Showing  that  principal  committed  offence,  71. 

Alleging  offence  when  accessory  treated  as  such,  70. 

When  necessary  to  set  out  aiding  and  abetting,  70. 

How  to  allege  offence  when  accessory  treated  as  principal,  70. 
ACCORD  AND  SATISFACTION. 

What  is  plea  of  accord  and  satisfaction,  73. 

May  be  pleaded  in  all  actions,  73. 

Plaintiff's  evidence  supplying  place  of  plea,  74. 

Sham  plea,  74. 

Directions  for  pleading,  74. 

Need  for  special  plea,  74. 

Must  be  specially  pleaded  under  the  codes,  74. 

Giving  evidence  under  general  issue,  74. 

Motion  to  dismiss  appeal,  75. 

Matter  held  an  accord  and  satisfaction,  75. 

Not  interfering  with  assignment,  75. 

Instruction  to  jury,  75. 

Fact  treated  as  an  issue,  75. 

Agreement  of  composition,  75. 

May  be  shown  in  appellate  court,  75. 

Pleaded  puis  darrein  continuance,  75. 

At  what  time  to  be  pleaded,  75. 

Form  of  plea  under  the  codes,  76. 
At  common  law,  76. 

Verification  of  the  plea,  76. 

Alluding  to  accord  and  satisfaction  in  testimony,  76. 

Court  may  require  plea  to  be  made  within  time  limited,  76. 

Lacking  averment  of  satisfaction,  77. 

Ambiguous  plea,  77. 

Time  of  delivery  of  property,  77. 

What  is  sufficient  allegation,  77. 

Immaterial  variance,  77. 

Equity  of  redemption,  77. 

Money  paid  in  goods,  etc.,  77. 

Amount  stated  under  videlicet,  77. 

Necessary  allegations  in  plea,  77. 

Allegation  of  value,  77. 

Allegation  of  acceptance,  77. 

No  presumption  of  acceptance,  78. 

IO31 


INDEX. 

ACCORD    AND   SATISFACTION— a»«/m«^^. 

Allegation  of  mistake,  7S. 

Replication  to  plea,  79. 

Affidavit  of  defence,  79. 

Executing  new  bond  to  new  partnership,  79. 

Courts  liberal  in  construction,  79. 

Release  of  equity  of  redemption,  79. 

Plea  as  a  mere  legal  conclusion,  80. 

Allegation  that  claim  was  "  satisfied  and  discharged,"  80 

To  whom  satisfaction  was  made,  80. 

Receipt  of  sum  on  account,  80.   • 

Insufficient  allegations,  80. 

Denying  conveyance  of  land,  etc.,  80. 

Reply  setting  up  facts  nullifying  plea,  80. 

Pleading  matter  with  nul  tiel  record  to  action  on  judgment,  81. 

Pleas  construed,  81. 

Execution  levied,  81. 

Matter  neither  accord  nor  satisfaction,  81. 

All  elements  must  be  embodied  in  plea,  81. 

Answering  all  counts  in  declaration,  81. 

Tender  accompanying  plea,  82. 

Satisfaction /r^ /aw/o,  82. 

Question  for  jury,  82. 

Applying  doctrine  of  estoppel  to  plea,  82. 

Admission  of  allegations  in  declaration,  82. 

Filing  supplemental  plea  to  accord  is  ratification,  82. 

Equity   will    not   assist   where   opportunity   has   been    had  to  plead 

accord,  82. 
ACCOUNTS  AND  ACCOUNTING. 

Common  law  action.     Generally  fallen  into  disuse,  84. 
When  it  lies;  privity,  84. 

For  a  tort,  84. 

Against  guardian  or  bailiff,  84. 

Against  joint  tenants  and  tenants  in  common,  84. 

Running  account  between  merchant  and  broker,  85. 

Part  owners  of  vessels,  85. 

Executors  and  administrators,  85. 

Partnership  affairs,  85. 
The  declaration  form,  85. 

Necessity  of  declaration,  85. 

Allegations  of  receipt,  85. 

Joinder  of  counts,  86. 

Different  counts  for  same  cause,  86. 

Prayer  for  judgment,  86. 
The  plea  ;  when  to  be  filed,  86. 

What  defendant  should  plead,  86. 

No  general  issue,  86. 

Plea  that  defendant  was  never  bailiff  or  receiver,  86. 

Plea  that  defendant  had  fully  accounted,  86. 

Plea  of  "  nothing  in  arrear,"  86. 

Plea  of  release,  86. 

Plea  of  statute  of  limitations,  86. 
Judgment  quod  computet,  86. 

Necessity  of,  87. 

Opening  judgment  of  quod  computet,  87. 
Proceedings  before  the  auditors,  87. 
Final  judgment;  upon  what  based;  form,  87. 

Writ  of  error  upon  final  judgment,  87. 

Execution  on  final  judgment,  87. 
Account  stated.     Definition,  87. 

Inserting  count  in  assumpsit,  87. 
Complaint  or  declaration,  88. 

1032 


INDEX. 

ACCOUNTS    AND    ACCOUNTING. 
Account  stated — Continued. 

Amendmeni  of  complaint,  88. 
Allegation  of  assent  to  settlement,  88. 

Failure  to  show  account  stated  but  showing  right  to  an  accounting,  88. 
Must  be  declared  on  as  such,  88. 
Answer  or  plea,  89. 
Denial  and  non-assumpsit,  89. 
Defence  that  action  is  premature,  89. 
Pleading  fraud  as  a  defence,  89. 
Defence  of  error  or  mistake,  89. 
Defence  must  be  pleaded,  89. 
Bill  of  particulars,  89. 
Allegations  of  breach,  89. 
Actions  on  accounts.     Particularity  in  complaint,  90. 
Filing  copy  of  account,  90. 
Itemized  account,  90. 
Statutory  provisions  as  to  pleading,  90. 
Pleading  by  copy,  90. 

When  pleading  by  copy  may  be  adopted,  90. 

What  constitutes  an  "  account,"  90. 

Account  annexed  must  be  specific,  91. 

Allegation  that  account  is  "due,"  gi. 

Remedies  for  defective  accounts,  91. 
Probated  accounts,  91. 

Meaning  of  "  account,"  91. 

Petition  or  declaration  on  probated  accounts,  92. 

Torts  not  subject  of  probated  account,  92. 

Declaration  must  state  that  account  is  probated,  92. 

How  issue  made  up,  92. 

The  affidavit,  92. 

Allegation  that  account  is  "due,"  92. 

Counter-affidavit,  93. 

New  affidavit,  93. 

Resting  case  on  defective  affidavit,  93. 

Supplemental  petition,  92. 

Failure  to  object,  93. 

What  defence  can  be  made,  93. 
Accounting  in  equity.     Equity  jurisdiction  in  cases  of  accounts,  93. 
Basis  and  extent  of  jurisdiction,  93. 
What  must  be  alleged  to  give  jurisdiction,  93. 
Concurrent  jurisdiction  of  law  and  equity,  94. 
Jurisdiction  in  cases  of  mutual  accounts,  94. 
Under  the  codes  of  procedure,  94. 
Injunction,  95. 

Test  of  equity  jurisdiction,  95. 
Jurisdiction  where  account  is  not  mutual,  95. 
Jurisdiction  where  accounts  are  complicated,  95. 
Jurisdiction  in  cases  of  fiduciary  relation,  96. 
Equity  jurisdiction.     When  plaintiff  will  be  relegated  to  his  remedy 

at  law,  96. 
Bill  or  complaint,  97. 

Petition  or  bill  must  be  definite  and  certain,  97. 
Bill  must  be  framed  on  definite  theory,  97. 
"*  Specification  of  items  in  bill  or  complaint,  97. 

Judgment  must  accord  with  complaint,  97. 
Plain  case  must  be  made  in  bill,  97. 
Bill  against  devisees,  98. 

Necessary  allegations  in  bill  or  complaint,  98. 
Unnecessary  allegations,  98. 
Averment  of  indebtedness,  98. 
Superfluous  averments,  98. 
Allegation  of  demand,  98. 

1033 


INDEX, 

ACCOUNTS    AND    ACCOUNTING. 
Accounting  In  Equity — Continued. 

Offer  in  bill  to  pay  balance  which  may  be  found  due,  98. 
Requisites  of  bill  in  case  of  ignorance  and  fraud,  98. 
Sufficiency  of  denials,  99. 
Cross-bill.     Necessity  for  filing,  99. 
Answer  of  the  defendant,  99. 
Prayer  in  the  bill  or  complaint,  99. 

Prayer  in  determining  duplicity,  99. 
Prayer  for  general  relief,  99. 
Prayer  for  dissolution  of  partnership,  gg. 
Prayer  governs  decree,  99. 
Prayer  for  discovery,  99. 
Plea  of  account  stated,  100. 
Manner  of  setting  out  account  in  answer,  100. 
Motion  by  plaintiff  to  have  inspection  of  documents  where  answer 

does  not  set  out  account,  100. 
Duty  of  defendant  to  set  out  account  in  answer,  100. 
Plea  of  stated  account;  amending  the  bill,  loi. 
Stated  account  given  by  answer,  loi. 
Plea  of  account  stated  supported  by  answer,  loi. 
Requisites  of  plea  of  account  stated,  loi. 
What  may  be  pleaded  as  a  stated  account,  loi. 
Decree  that  account  shall  be  taken,  102. 
Costs  discretionary,  102. 
Disposing  of  matters  in  bar  before   reference  on  account  stated  is 

ordered,  102. 
Setting  down  for  argument  a  plea  of  accounts  stated,  102. 
Reply  surcharging  and  falsifying  the  plea,  102. 
Plea  of  account  stated.     Under  the  codes,  102. 
Appellate  proceedings,  103. 
Dismissal  after  decree  for  account,  103. 
Interlocutory  decree  not  appealable,  103. 
Frame  and  scope  of  the  decree,  103. 
Court  may  take  account,  103. 
Proper  parties,  104. 

Parties  in  suit  for  partnership  account,  104. 
Reference  to  master  to  inquire  as  to  proper  parties,  104.  ^ 
Beneficiaries  as  proper  parties,  105. 
Assignees  as  proper  parties,  105. 

Stockholder's  suit,  corporation  as  necessary  party,  105. 
Waiver  of  parties.     Some  accounted  with,  106. 
Waiver  of  parties.     Method  of  waiver,  106. 
Unnecessary  parties,  106. 

Waiver  of  requirement  of  necessary  parties,  106. 
Plaintiff  taking  issue  by  reply,  107. 
Annexing  copy  of  account  to  answer,  107. 
Parties'  liability  to  account  severally,  107. 

Proceedings  to  impeach  an  account  ;  the  bill  or  complaint,  107. 
ACTIONS. 

See  Abatement. 

Joinder  of  actions.      See  JoiNDER  OF  ACTIONS. 

What  is  an  action.     Definition,  no. 

"Suit,"  "cause,"  and  "action,"  no. 

Suit  in  equity,  no.  " 

Legislative  meaning,  no. 

As  terms  used  in  private  contracts,  ni. 

Federal  removal  acts,  112. 

Probate  proceedings,  112. 

Petition  by  executor  or  administrator  to  sell  land,  112. 

Proceedings  against  executors  and  administrators,  112. 

Special  proceedings,  112. 

Street  and  highway  proceedings,  113. 

1034 


INDEX. 

ACTIONS. 

What  is  an  action— C(7«/?«;/<?(/. 

Partition  proceedings,  113, 

Certiorari,  prohibition  and  quo  warranto,  113. 

Proceedings  by  or  against  attorneys,  113. 

Attachment  proceedings,  113. 

Mandamus,  113. 

Condemnation  proceedings,  114. 

Proceedings  to  recover  dower,  114, 

Lunatics,  trustees  and  guardians,  114. 

Vacating,  setting  aside  and  impeaching  judgments,  114. 

Divorce  and  alimony  proceedings,  114. 

Habeas  corpus,  114. 

Drainage  proceedings,  114. 

Auditing  commissioner's  accounts,  115. 

Summary  proceedings  to  recover  land,  115. 

Arbitration  and  judgment,  115. 

Proceedings  on  transcript  of  a  justice's  judgment,  115. 

Compelling  heirs  to  perform  ancestor's  contract,  115. 

Proceedings  to  punish  referee,  115. 

Prosecuting  error,  115. 

Proceedings  for  contempt,  115. 

Order  declaring  banking  association  insolvent,  115. 

Impeaching  decree  for  fraud,  115. 

Proceedings  to  make  new  parties  to  judgments,  115. 

Refunding  tax,  115. 

Proceedings  to  charge  stockholders,  115. 

Supplementary  proceedings,  115. 

Forcible  entry  and  detainer,  116. 

Proceeding  to  recover  penalty,  166. 

Interpleader,  116. 

Vacating  assessment,  116. 

Damages  for  erection  of  mill,  116. 
What  is  cause  of  action.     Definition,  116. 

Combination  of  right  and  delict,  116. 

Delict  alone  as  cause  of  action,  117. 

Remedy  alone,  118. 

In  the  construction  of  statutes,  118. 
When  is  an  action  commenced.     General  rule,  119. 

Rules  in  various  states,  119-141. 
Abolition  of  forms  of  action.     Code  provisions,  141. 

Common  law  distinction  preserved  at  first,  142. 

Distinction  between  actions  at  law  and  suits  in  equity,  142. 

Code  construed  in  light  of  its  real  spirit,  143. 

Substantive  distinction  preserved,  144. 

Code  of  procedure  not  a  substantive  code,  144. 

No  new  causes  of  action  created,  145. 

Rights  independent  of  remedies,  145. 

Civil  action  as  substitute  for  all  former  proceedings,  145. 
Character  of  action.     How  determined  under  the  codes,  146. 

Allegations  of  complaint  to  determine  character,  146. 

Wholly  a  question  of  construction  of  complaint,  146. 

Prayer  for  relief  not  invoked,  146. 

When  prayer  may  be  consulted,  147. 

Form  of  summons,  147. 

Actions  ex  contractu  and  ex  delicto,  147. 

Whether  action  is  for  tort  or  on  the  contract,  147. 

Waiving  tort,  148. 

Alleging  that  defendant  undertook  and  promised,  148. 

Insertion  of  legal  conclusions,  148. 

Sale  of  property,  148. 

Converting  action  ex  delicto  into  one  ex  contractu,  148. 

Judgment  must  follow  pleadings,  148. 

1035 


INDEX. 

ACTIONS— Continued. 

Splitting  causes  of  action.     Single  cause  of  action  cannot  be  split,  14 
Foundation  of  rule  against  splitting,  149. 
Taking  judgment  by  mistake,  150. 
Rule  against,  not  a  technicality,  150. 
Exhausting  possibilities  of  suit,  150. 
Justice  of  rule  questioned,  150. 
Application  of  rule  in  equity,  150. 
What  constitutes  an  entire  cause  of  action,  150. 
Contracts  generally,  151. 
Money  lost  at  gaming,  151. 
Indemnity  bond,  151. 
Claim  for  board,  151. 
Taxes,  151. 
Accounting,  151. 
Attachment  bond,  151. 
Common  agent,  152. 
Separate  pieces  of  property,  152. 
Independent  stipulations  in  same  contract,  152. 
Breaches  of  several  covenants  in  same  instrument,  153. 
Goods  sold  at  one  time,  153. 
Separate  sales,  153. 
Sales  on  credit,  153. 
Cases  not  harmonious,  152. 
Parsons'  rules  for  determination,  152. 
Continuous  account  of  book  entries,  154. 
What  constitutes  an  account,  154. 
Credit  on  some  items  of  running  account,  154. 
Separate  accounts,  154. 
Suits  for  less  than  entire  account,  154. 
Claims  payable  in  instalments,  155. 
Assignment  of  different  instalments,  155. 
Divisible  contract,  155. 
Instalments  of  rent,  155. 
Separate  promissory  notes,  156. 
Judgments,  156. 
Separate  leases,  156. 
Creditor's  bill,  156. 
Error  in  entry  of  judgment,  156. 
Services  rendered,  157. 
*  Servant  wrongfully  discharged,  157. 

Instalment  of  servant's  wages,  157. 
Insurance  policies,  157. 

Several  persons  insured  by  same  policy,  157. 
Promise  to  pay  interest,  158. 
Instalments  of  interest  due,  158. 

Assignments  of  causes  of  action  arising  upon  contract,  158, 
Subrogation,  158. 

Assignment  of  part  of  entire  demand;  parties,  158. 
Collateral  securities,  158. 
Fraud,  158, 

Liens;  lien  for  debt,  158. 
Action  on  guaranty,  158. 
Torts,  159. 

Test  to  be  applied  in  cases  of  tort,  159. 
Single  tort  gives  only  one  cause  of  action.  159. 
Fraud  as  an  entirety,  160. 
Discrimination  by  carrier,  160. 
Same  transaction,  160. 

Creditor's  bill  against  several  charged  with  fraud,  160. 
Seizing  and  converting  chattels,  161. 
Distinct  frauds,  161. 

1036 


INDEX. 

ACTIONS. 

Splitting  causes  of  ?sX\KiX{— Continued. 

Trespass  on  land,  i6i. 

Acts  done  by  same  trespass  are  indivisible,  i6i. 
Assault  and  battery,  i6i. 
Trespassing  of  cattle,  i6i. 
Distinct  trespasses,  i6i. 
Replevin  and  trover,  i6i. 
Fraud  and  concealment  by  defendant,  162. 
Forcible  entry  and  detainer,  162. 
Waste,  162. 

Specific  performance,  162. 
Claims  with  reference  to  real  property,  162. 
Ejectment,  162. 

Slander,  malicious  prosecution,  false  imprisonment,  162. 
ADDITIONAL   ALLOWANCES    OF   COSTS. 

General  principles.     Costs  are  creation  of  statute,  211. 
Intendment  of  statute,  212. 
Discretion  of  courts,  212. 
Liberal  construction,  212. 
In  surrogates'  courts,  212. 
Provisions  of  code.     New  York  code  of  procedure,  212. 
Allowance  as  a  matter  of  right,  213. 
Discretion  of  court,  213. 
Allowance  to  plaintiff  only,  213. 
Recovery  of  judgment  necessary,  213. 
Partition  of  real  property,  213. 
Foreclosure  of  mortgages,  213. 
Attachment  cases,  213. 

Determination  of  claim  to  real  property,  213. 
Adjudication  upon  written  instrument,  213. 
No  order  necessary,  214. 

Where  action  is  settled  before  judgment,  214. 
In  case  of  new  trial,  214. 
Recovery  of  costs.  214, 
Allowance  additional  only,  214. 
Percentages  to  be  allowed  in  different  cases,  214. 
Discretibnary  allowances,  215. 

Where  defence  has  been  interposed,  215. 

What  amounts  to  a  defence,  215. 

Party  must  be  successful,  215. 

Difficult  and  extraordinary  cases,  215. 

Action  may  be  legal  or  equitable,  215. 

Foreclosure  proceedings,  215. 

Partition  suits,  215. 

$2000  the  limit,  215. 

Statutory  amount  cannot  be  exceeded,  215. 
The  application.     When  made,  216. 
At  the  trial,  216. 
After  tender,  216. 
After  trial,  216. 
After  judgment,  216. 
In  action  against  executors,  216. 
Judge  residing  in  another  district,  217. 
In  equity  cases,  217. 
To  what  court  made,  217. 
To  the  trial  court,  217. 
Necessity  for  formal  notice,  217. 
Costs  of  motion,  218. 
Where  the  trial  is  before  a  referee,  218. 

Affidavit,  218. 

Referee's  certificate,  218. 
Review  by  another  judge.  21 S. 

1037 


INDEX. 

ADDITIONAL   ALLOWANCES    OF    QO-S>1?,— Continued. 
Appeals.     Appeal  from  order  granting  or  refusing,  218. 
Appeal  to  general  term,  218. 

Exception  not  necessary,  219. 

General  term  remitting  case  back,  219. 
Appeal  to  court  of  appeals,  219. 

Jurisdiction  of  court  of  appeals,  219. 

What  the  court  of  appeals  will  review.     Merits,  219. 

Remitting  case  back,  219. 

Reviewing  discretion,  220. 
When  granted.     Recovery  of  ordinary  costs  essential,  220. 
Litigation  must  be  ended,  220. 
Case  never  brought  to  trial,  220. 

Dismissal  of  case  owing  to  plaintiff's  non-appearance,  220. 
Allowance  on  a  second  trial,  220. 
Right  is  perfect  when  verdict  is  rendered,  220. 
Injunction  suits,  221. 
Judgment  upon  demurrer,  221. 
Plaintiffs  submitting  to  nonsuit,  221. 
In  doubtful  cases,  221. 

Where  there  is  stipulation  as  to  costs,  221. 
Submission  upon  statement  of  facts,  221. 

Upon  agreed  cases,  399. 
Subject-matter  must  possess  pecuniary  value,  221. 
Illustrations  of  actions  where  subject-matter  has  no  pecuniary  value, 

222. 
Reference  to  determine  value,  222. 
Where  court  exercises  discretion,  222. 

Interpleader  action,  223. 

Stipulation  of  attorneys,  223. 

Action  for  construction  of  wills,  223. 

Partnership  action,  223. 

Right  to  have  determination  of  value,  223. 

Taking  judgment  for  want  of  affidavit  of  merits,  224. 

On  a  felonious  answer,  224. 

Issue  solely  between  defendants,  224, 

Defendant  making  tender,  224. 

Defendant  confessing  judgment,  224. 

Recovery  of  sum  much  less  than  claimed,  224. 

No  merits  disclosed,  224. 

Imposing  terms,  224. 

For  purpose  of  punishment,  224. 

Where  it  would  work  hardship,  224. 

Party  joined  at  his  own  request,  225. 

Recovery  on  technical  grounds,  225. 

Unnecessary  action,  225, 

Defendants  unnecessarily  severed,  225. 

Against  executors,  225. 

Plaintiff  suing  in  forma  pauperis,  225. 

Cases  neither  difficult  nor  extrcordinary,  225. 

Where  both  parties  failed,  225. 
Special  proceedings,  225. 

Feigned  issues,  225. 

Distribution  in  foreclosure  cases,  225. 

Mechanics'  liens,  225. 

Condemnation  proceedings,  225. 
Where  defendant  is  entitled,  226. 

When  refused  to  defendants,  226. 

On  death  of  plaintiff  after  verdict,  226. 

In  case  of  discontinuance,  226. 

Defendant  offering  to  allow  judgment,  226. 

On  counterclaim,  226. 

1038 


INDEX. 

ADDITIONAL   ALLOWANCES    OF   COSTS. 
When  ^XZ.v\&A— Continued. 

Difficult  and  extraordinary  cases  :  meaning  of  term,  226. 

Long  trial,  227. 

Amount  involved,  227 . 

Discretion  of  court,  227. 

No  general  rule,  227. 

Words  construed  in  their  ordinary  meaning,  227. 

Immaterial  considerations,  228. 

Joinder  of  several  causes  of  action,  228. 
On  discontinuance,  228. 

The  old  code.  228. 

To  plaintiff's  attorney,  228. 

Terms,  228. 

Before  trial,  228. 

Offer  to  allow  judgment,  229. 

Tender,  229. 

After  discontinuance,  229. 
Only  one  allowance,  229. 

Interlocutory  judgment.     Partition  suits,  229. 

Judgment  set  aside,  229. 

Interlocutory  judgment.     Partnership  suits,  229. 

Second  trial  of  ejectment  suit,  230. 
How  computed.     Basis  of  allowance,  230. 

Amount  of  claim  or  recovery  is  the  limit,  230. 

Subject  matter  in  action  relating  to  land,  230. 

Discretion  of  special  term,  230. 

Limit  in  foreclosure,  230. 

Disbursements  not  included,  230 

Limits  of  allowance,  230. 

Value  of  bank  stock,  231. 

Attachment  suit,  231. 

Proof  of  value  received,  231. 

In  action  for  royalties,  231. 

In  action  by  tax-payer,  231. 

Trade-marks,  231. 

Proper  basis  of  value,  232. 

Amount  recovered,  232. 

Amount  claimed,  232. 

Defendant's  allowance,  232. 

Amount  of  counterclaim,  233. 

Subject-matter  involved,  233. 

Personal  actions,  233. 

Real  property,  233. 

Counsel's  stipulation,  233. 
ADDRESS. 

Chancery  practice. 

What  is  address,  234. 
Form  of  address  of  bill, 34. 
Chancellor  as  a  party,  234. 
Residence  or  abode  of  complainant,  235. 
Remedy  for  failure  to  state  complainant's  address,  235 
Abode  of  infant  or  lunatic,  235. 
Code  practice.     Address  of  attorney,  236. 
Provisions  of  New  York  code,  236. 
Printed  address  of  attorney,  236. 

Failure  to  give  attorney's  address.     Amendment,  236. 
Written  address  of  notice  of  motion.  236. 
Compelling  attorney  to  disclose  his  address,  236. 
Attorney  charged  with  costs  for  failing  to  furnish  client's  address, 

237. 
ADJOURNMENTS. 

Generally.    Defined,  238. 

1039 


INDEX. 

ADJOURNMENTS. 

Generally — Continued. 

Adjournment  and  continuance  distinguished,  238. 

Additional  term,  special  term  and  adjourned  term,  238. 

Meaning  of  "  adjourn,"  238. 

Day  adjourned  to  is  first  day  of  term,  241. 
Power  to  adjourn.     Inherent  power,  239. 

Construction  of  statutes,  239. 

Assigning  reason  for  adjournment,  239. 
Length  of  adjournment,  239. 

Discretion  as  to  extent,  240. 

Long  adjournments  not  favored,  240. 

Statute  limiting  time.     Louisiana,  240. 

From  day  to  day.     Sunday,  240. 

"  Term  "  and  "  session,"  240. 
Who  may  order.     Judicial  power.     Ministerial  oflScers,  240. 

Statutory  provisions,  241. 

Sheriff,  or  clerk,  or  single  judge,  241. 

Court  beginning  session  at  time  or  place  other  than  that  prescribed, 
241. 

Adjournment  to  await  a  quorum,  241. 

Court  not  meeting  at  prescribed  time  and  place,  241. 

Absent  judge,  241. 

Provisions  of  statute  held  directory,  242. 

Substantial  compliance  with  statute,  242. 

Statute  liberally  construed,  242. 

Notice  of  adjournments,  242. 

Statutory  orders  of  adjournment  by  judges  in  court,  242. 

Cases  in  Georgia,  243. 

Telegraphic  order,  243. 

Sheriff  exceeding  his  authority,  243. 
Place  of  adjournment.     Statute  naming  place  as  mandatory,  243. 

Anywhere  within  limits  of  town,  243. 
Consequences  of  adjournment.     Distinction  between  adjournment  sine  die  and 
adjournment  to  a  day  certain,  243. 

Term  cannot  be  reopened  after  final  adjournment,  243. 

Adjourned  term  and  new  special  term,  244. 

Action  on  appeal  brought  at  adjourned  term,  244. 

Prolongation  of  terms  adjourned,  244. 

Power  of  court  to  meet  after  day  fixed,  245. 

Vacating  judgment  at  adjourned  term,  245. 

Presumption  as  to  whether  special  or  adjourned  term,  245. 

Failure  of  court  to  meet  on  adjourned  day,  245. 

Power  of  court  not  destroyed.  245. 

Duration  of  adjournment  matters  not,  245. 

Existence  of  court  during  adjournment,  245. 

Power  over  record  of  past  business,  245. 

Meeting  of  court  before  day  fixed,  245. 

Instructions,  etc.,  during  recess.  246. 

Power  of  criminal  defendant  to  waive  irregularity,  247. 
Justices'  courts,  247. 
Referees  and  arbitrators,  247. 

Supervision  of  court  of  referee's  action,  248. 

Court  interfering  with  discretion,  248. 
Quasi-judicial  officers.     Inherent  power,  248. 

Presumption  of  legality,  248. 

Unreasonable  and  irregular  adjournments,  248. 

Review  of  discretion,  248. 

Board  of  road  reviewers,  248. 

Board  of  school  inspectors,  248. 

Commissioners  for  taking  depositions,  248. 

Court  for  trial  in  election  case,  248. 

Town  meeting,  248. 

1040 


INDEX. 

ADJOURNMENTS. 

Quasi-judicial  officers — Continued. 
Town  board,  248. 
Board  of  commissioners,  248. 
Executive  council,  248. 
Commissioners  for  condemning  land,  248. 
ADMINISTRATORS. 

See  Executors  and  Administrators. 
ADMIRALTY. 

Taking  objection  of  the  pendency  of  another  suit.     See  ANOTHER  SuiT 

Pending. 
Definition  of  admiralty  practice,  251. 
Nature  of  admiralty  practice,  251. 
Admiralty  courts.     District  courts,  251. 
District  judge  sitting  alone,  251. 
Circuit  court  of  appeals  and  supreme  court,  252. 
Different  kinds  of  suits.     In  personam  and  in  rem,  252. 
Suit  in  personam,  252. 
Security  on  suit  in  personam,  252. 
Treating  in  rem  proceeding  as  one  in  personam,  252. 
Suit  in  rem,  253. 

Maritime  liens  as  basis  of  suit,  253. 
The  libel.     Suit  commenced  by  libel,  253. 
Preferable  form  of  suit,  253. 
Libel  of  review,  253. 
Libel  should  show  jurisdiction,  253. 
Notice  of  pendency  of  suit,  253. 
Time  of  filing  libel,  253. 
Filing  of  libel  in  clerk's  office,  254. 
Where  several  parties  are  interested,  253. 
Form  and  contents,  254. 

Stating  that  the  property  is  within  district,  254. 
Names,  occupations  and  residences  of  parties,  254. 
Technical  rules  of  common-law  pleading,  253. 
Penalty  under  passenger  act,  254. 
Libel  for  loss,  254. 
Suit  on  charter  party,  254. 
Owner  of  goods  injured  hy  collision,  254. 
Suit  by  non-resident,  254. 
Misjoinder  of  parties,  254. 
Identification  of  goods,  254. 
Alleging  tender,  254. 
Offence  created  by  statute,  254. 
Contrary  to  form  of  statute,  254. 
Grounds  for  demanding  penalty,  254. 
Collision  libel,  254,  255. 
Libel  for  salvage,  254. 
Libel  by  material  man,  255. 
Charging  defendant  as  common  carrier,  255. 
Cause  of  action  set  forth  in  distinct  articles,  255. 
Prayer  for  relief,  255. 

In  suit  for  possession,  255. 

For  sale  or  limitation  of  liability,  255. 
Verification,  255. 

By  attorney  or  agent,  255. 

Each  party  may  require  answer  under  oath,  255. 

Authority  of  attorney  to  verify,  255. 

Who  may  take  oath,  255. 
Failure  of  libellant  to  sign  process,  255. 
Interrogatories.     By  libellant,  255. 

Defendant  is  bound  to  answer,  256. 

Inspection  of  documents,  256. 
By  defendant,  256. 

I  Encyc.  PI.  &  Pr.— 66-  104 1 


INDEX. 

ADMIRALTY. 

Interrogatories — Continued. 

Penalty  for  failure  to  answer,  256. 
Amendments.     Matters  of  form,  256. 

Changing  nature  of  action,  256. 

Changing  entire  nature  of  claim,  256. 

Substitution  of  claimants,  256. 

Matters  of  substance,  256. 

Carrying  claim  back,  256. 

Supplemental  pleadings,  256. 

On  appeal,  256. 

Imposing  terms,  257. 
Libellant's  stipulations  for  costs.     Libellant  must  file,  257. 

What  stipulation  consists  of,  257. 

Amount  of  stipulation,  257. 

When  not  required,  257. 

W'aiver,  257. 
Joinder  of  rem  and  personam  proceedings.     Right  to  join,  257. 

Where  not  forbidden  by  rules.  258. 

Suits  on  charter  parties  and  freight  contracts,  258. 

Fifty-ninth  admiralty  rule,  258. 

One  suit  as  bar  to  another.  258. 

Staying  of  one  suit  until  hearing  of  another,  258. 
Foreign  attachment.     What  is  foreign  attachment,  258. 

Antiquity  of  practice,  259. 

Modern  practice,  259. 

Failure  to  find  goods  and  chattels.    Attaching  credits  and  effects,  259. 

Object  of  practice,  259. 

Non-residence.     Service  of  process,  259. 

Extent  of  marshal's  duty  to  make  search,  259. 

Necessity  of  non-residence,  259. 

Garnishment  of  credits  and  effects  in  hands  of  third  parties,  259. 
Marshal  need  not  lose  time  in  searching  for  goods,  260. 
Garnishment  process,  260. 
Disposal  and  ownership  of  property,  260. 

Defendant's  default.     Order  for  sale  of  goods,  260. 

How  defendant  may  obtain  release  of  goods,  260. 

Issue  as  to  ownership  of  credits  and  effects,  260. 

Where  garnishee  need  not  appear,  261. 

Garnishee  denying  that  defendant  is  owner,  261. 

Trial  of  issue  as  to  ownership,  261. 
Mesne  process.     Writ  issued  by  clerk,  261. 

Warrant  of  arrest,  261. 

Detention  of  vessel  on  untenable  claim,  261. 

Constructive  notice  of  pendency  of  suit,  261. 

Seizure  necessary  to  give  court  jurisdiction,  261. 

Duty  of  marshal,  261. 

Direction  to  marshal,  261. 

Signed  and  tested,  261. 

When  defendant  is  found  and  served,  262. 

Invalid  state  attachment,  262. 
Exempt  property.     Certain  property  non-seizable  in  rem,  262. 

Property  held  by  sheriff,  262. 

Property  in  hands  of  receiver,  262. 

Possession  by  receiver.     Contempt,  262. 

Property  in  hands  of  collector  of  port,  262. 

Government  property,  262. 

State  or  municipal  property,  263. 

Canal  boat  not  to  be  liable  for  wages,  263. 
Return  of  process.     Time  for  return,  263. 

Return  days,  263. 

Return  day.     Call  in  open  court,  263. 

In  possessory  suits,  263. 

1042 


INDEX, 

ADMIRALTY. 

Return  of  process — Continued. 

In  suits  in  personam,  263. 

In  suits  in  rem,  263. 

Return  as  to  attachment,  263. 

False  return,  263. 
Contents  of  return,  263. 

Alias  process,  263. 
Respondent's  duty  to  appear,  263. 
Failure  to  appear.     Default,  263. 
Default  of  defendant.     Hearing  ex  parte,  264. 
Respondent  need  not  wait  until  return  day,  264. 
Appearing  and  filing  claim  and  stipulations,  264. 
Respondent's  claim,  what  is,  264. 
Claim  by  master  in  behalf  of  owners,  264. 
Contents  of  respondent's  claim, 264. 
Respondent's  stipulations  for  costs,  264. 
Stipulations  for  release,  265. 

Vessel  never  in  custody,  265. 

Waiver  of  defects,  265. 

In  prize  cases,  265. 

Owner  of  cargo,  265. 

Goods  in  bonded  warehouse,  265. 

Taking  proceeds  from  registry,  265. 

Form  of  undertaking,  265. 

Ordinary  penal  bond,  265. 

Bonds  as  substitute  for  property,  266. 
Stipulation  for  value,  266. 

Amount  of,  266. 

Interest,  266. 

Condition  of  bond,  266. 

Waiver  and  appearance,  266. 

Claim  equal  to  or  greater  than  value  of  vessel,  267. 

Appraisal  of  vessel,  267. 

Bond  to  marshal.     Form,  267. 

Rights  and  liabilities  of  sureties,  267. 
''  Judgment  against  sureties,  267. 

Justification  of  sureties,  268. 

Increasing  and  reducing  security.     Discretion  of  court,  268. 

Reseizure  of  pioperty,  268. 
Sale  of  perishable  property,  268. 

Tender  by  respondent.     Imposing  costs  on  libellant,  268. 
Sale  on  return,  269. 

Publication  of  notice  of  sale,  269. 

Short  order  of  publication,  269. 
Exceptions  to  libel.     Peremptory  exceptions,  269. 
Must  state  the  insufficiency,  269. 
In  collision  cases,  270. 

Striking  exceptionable  matter  from  pleadings,  270, 
When  to  be  taken,  270. 
What  may  be  set  up,  270. 
Practice  to  unite  with  answer,  270. 
Dilatory  exception,  270. 
Amendment  of  libel,  270. 
Hearing  of  exception,  270. 

For  scandal,  surplusage  and  impertinence,  270. 
Petition  under  rule  59.     One  of  respondent's  pleadings,  270. 
In  collision  cases  where  only  one  respondent  is  sued,  270. 
Other  cases  than  collision,  271. 
Answer.     Time  of  filing,  271. 
Contents,  271, 

Requisites  and  sufficiencjj.  of,  271. 
Address  to  judge,  271. 

1043 


INDEX. 

ADMIRALTY. 

Answer — Continued. 

Setting  up  affirmative  defence,  271. 
Prayer  for  relief,  271. 
New  facts  alleged,  272. 
In  prize  cases,  272. 
As  evidence,  272. 
Objections  for  insufficiency,  272. 
Separate  answers,  272. 
Exceptions  and  verification,  272. 
Counterclaim  and  cross-libel.     Counterclaim  in  answer,  273. 
Filing  cross-libel,  272. 

Proceeding  independently  by  original  suit,  273. 
Setting  up  counterclaims  by  cross-libel,  273. 
When  necessary,  273. 
On  what  founded,  273. 
When  not  necessary,  273. 
Notice  of  filing,  273. 
Dismissal  of  libel,  273. 
Security  by  respondents,  273. 
Original  libel  stayed  until  second  given,  273. 
Issue.     When  cause  is  issued,  274. 
Note  of  issue,  274. 
Placing  cause  on  the  calendar,  274. 
Delay  in  bring  cause  to  hearing,  274. 
Trial.     Method  of  trial,  274. 

Commissioners  to  take  testimony,  274. 
Reason  for  reference,  274. 

Summing  up  and  submitting  cause,  274.  '     ' 

Witnesses  present  in  court,  274. 
Opening  cause  and  calling  witnesses,  274. 
Right  to  open  and  close,  274. 
Nonsuit,  none  in  admiralty,  274. 
In  collision  cases,  274. 
Judgment,  275. 

New  trial,  rehearing,  etc.,  274. 
Court  reserving  decision,  274. 
Interlocutory  decree  and  reference.     Determining  amount  of  damages,  275^ 
Order  of  reference,  275. 
What  is  interlocutory  decree,  275. 
Serving  copy,  275. 

Appearing  before  commissioners,  275. 
Proceeding  before  commissioners,  275. 
Commissioners'  report,  276. 
Exceptions  to  report,  276. 

Hearing  on  exceptions,  276. 
Confirming  report,  276. 

Confirmation  nisi  and  absolute,  276. 
Principles  upon  which  damages  are  assessed,  276.  '' 

Taxation  of  costs.     Taxation  by  the  clerk,  276. 
When  taxed,  276. 
Entering  costs  in  final  decree-  276. 
Final  decree.    What  is,  276. 
Proper  form,  277. 
Several  libellants,  277. 
Decree /r^  confesso,  277. 
Damages  for  personal  injuries,  277. 
Evidence  in  action  thereon,  283. 
Performance  by  stipulators,  277. 

When  damages  are  divided  between  two  vessels,  277, 

In  cases  of  cross-libels  for  collision,  277. 

Personal  judgment,  277. 

Decree  against  principal  and  sureties,  277. 

1044 


INDEX. 

ADMIRALTY. 

Final  decree— Continued. 

Act  of  February  13,  1893,  277. 
Summary  judgment  and  execution.     When  judgment  entered,  27S. 
Against  stipulators,  278. 

No  necessity  for  an  action,  278. 
Nature  of  execution,  278. 
Sale  of  property.     Duty  of  marshal,  278. 
Marshal's  bonds,  278. 
Distribution  of  proceeds,  278. 
Surplus  money,  278. 
Appeals.     When  allowed,  279. 
How  taken,  279. 
Notice  of  appeal,  279. 
Time  to  perfect,  279. 
Proper  appellants,  279. 
What  brought  up  for  review,  279. 
Appeal  bonds,  279. 

Bond  to  stay  execution,  279. 

Exceptions  to  the  bond,  281. 
Petition  of  appeal,  280. 
Assignment  of  errors,  280. 

Particularly  required,  280. 
The  citation,  280. 
Filing  papers,  281. 
The  apostles,  281. 

Certification  and  return,  281. 

Notice  and  appearance,  281. 
New  testimony,  281. 
Briefs,  282. 
Hearing,  282. 
Conflicting  evidence,  282. 
No  allowance  of  interest,  282. 
Decision.     Mandate,  282. 
Final  decree,  283. 
Appeal  to  the  supreme  court,  2S3. 

Prohibition,  mandamus  and  certiorari,  283. 

Copies  of  record,  283. 
Evidence.     Rules  prescribed  by  supreme  court,  283. 

Examination  of  witnesses  in  different  courts,  283. 

General  law  of  each  state,  284. 

Variance  between  pleading  and  proof,  284. 

Admission  in  answer,  284. 

Depositions  de  bene  esse.     Use  in  admiralty,  284. 

Place  of  examination,  284. 

Notice  of  examination,  284. 

Motion  to  suppress,  284. 

Opposing  side  unrepresented,  284. 

Reducing  deposition  to  writing,  285. 

Return  of  deposition,  285. 
Commission  to  take  testimony,  285. 

Interrogatories,  285. 

Return  of  interrogatories.     Duty  of  clerk,  285. 
Letters  rogatory,  285. 

Depositions  in  perpetuam  rei  memoriam,  286. 
Petitions  and  Motions.     Examples  of,  286. 
Applications  for  relief.     Notice,  286. 
Court  will  hear  evidence,  286. 
Bringing  motions  before  court  by,  286. 
Question  of  jurisdiction,  287. 
Discretion  of  court,  287. 
Accompanying  notice  with  affidavit,  287. 
Informality  of  motions,  287. 

104s 


INDEX, 

ADMIRALTY. 

Petitions  and  Motions — Continued. 

Motion  to  dismiss  libel,  287. 

Joinder  of  issue,  287. 

Giving  of  stipulation,  287. 
Limitation  of  actions.     No  statute  of  limitations,  287. 

Adopting  state  statutes,  287. 

Laches-stale  claims,  287. 

Discretion  of  court,  288. 
Intervention.     Right  to  intervene,  288. 

How  accomplished,  288. 

Requisites  of  petition,  288. 

Stipulation  for  costs,  288. 

Court  may  impose  terms,  288. 

Insurer,  288. 

Possessory  or  petitory  suit.     State  statute,  288. 

Lienor.     Suit  for  forfeiture,  288. 

Mortgagee,  288. 

In  suit  for  wages,  288. 

In  salvage  cases,  288. 

Bond  given  for  original  claim,  288. 

Where  bond  given  for  full  value,  288. 
Consolidation  of  suits.     Controversy  involving  same  facts,  289. 

Various  libels  for  same  cause,  289. 

Husband  and  wife's  suit  for  same  cause,  289. 

When  consolidation  granted,  289. 

State  practice,  when  followed,  289. 
Personal  injuries.     Nature  of  suit  in  admiralty,  289. 

Locus  of  tort  generally,  289. 

Contributory  negligence  as  bar,  289. 

Death  claims,  289. 

The  libellant,  200. 

Adopting  state  law,  290. 

Actions  in  rem  and  in  personam,  290. 
Death  of  party.     Making  representatives  parties  by  petition,  290. 

Personal  representatives  coming  in,  290. 

Stipulations  required  of  parties  coming  in,  290. 
Costs.     A  matter  of  discretion,  290. 

When  allowed,  290. 

On  appeals,  291. 

Docket  fee,  291. 

Amount  regulated  by  statute,  291. 

Clerk's  fees,  292. 

Marshal's  fees,  292. 

Commissioner's  and  witnesses'  fees,  292. 

Stenographer's  fees,  293. 

Printing  and  other  expenses,  293. 

Taxation  by  clerk,  review  by  judge,  292. 

Recovery  of  less  than  $500.  293. 

Several  libels  filed,  293. 

Dismissal  for  lack  of  jurisdiction,  293. 

Bill  a  part  of  decree,  293. 
Limitation  of  liability.     Statute  limiting  owner's  liability  to  interest  in  ves- 
sel, 294. 

Application  and  construction  of  statute,  294. 

Value  of  owner's  interest,  294. 

Validity  of  statute.     Exemptions,  294. 

Setting  up  provisions  of  statute,  294. 

Defendant's  answer,  294. 

Application  of  statute  to  British  corporation,  295. 

Proceedings  in  limitations  of  liability,  295, 

Rules  of  southern  and  eastern  districts  of  New  York,  295. 
Petition  or  libel  in  proceedings  to  limit  liability,  296. 

1046 


INDEX. 

ADMIRALTY.      . 

Limitation  of  Liability — Continued. 

Stipulations  in  libel  in  proceedings  to  limit  liability,  297. 

Turning  over  vessel  ;  interest,  297. 

Proceedings  under  the  libel  to  limit  liability,  297. 

Where  appraisal  is  asked,  297. 

Staying  proceedings,  298. 

Proof  of  claims,  298. 

Proof  of  claims  and  return  of  monition,  298. 

Court's  monition  to  marshal,  298. 

Copy  of  injunction  order,  298.  , 

Practice  before  commissioner,  298. 

Decree,  298. 

Reference  back  to  commissioner,  299. 

Costs,  299. 

Costs  paid  out  of  funds,  299. 
Prizes.     The  proceeding  generally,  299. 
Jurisdiction  of  district  courts,  300. 
Captor's  first  duty,  300. 
Prize  commissions,  300. 

Taking  possession  of  ship's  documents,  300. 
Duty  of  master,  300. 
Examinations  \n  preparatorio,  301. 

Return  of  answers,  301. 

Effect  of  captor's  neglect,  301. 
Filing  the  libel,  301. 
Nature  of  the  libel,  301. 
Proceedings  on  return  of  process,  302. 
No  answer  to  libel  required,  302. 
Decree  by  default,  302. 
Proceeding  where  claim  is  interposed,  302. 
Further  proofs,  302. 
Distribution  of  proceeds,  303. 
Costs  and  expenses,  303. 

Security  for  costs,  303. 
Restitution  on  rightful  seizure,  303. 
Unjustifiable  capture,  303. 
Recovery  and  award  of  damages,  303. 
Darpages  to  owner  where  seizure  unlawful,  303. 
Appeals  in  prize  causes,  304. 
Military  salvage  on  recaptures,  304. 
ADULTERY. 

Essential  allegations  in  indictment,  305. 

Allegations  conform  to  statute,  305. 

Using  words  "commit  adultery,"  305. 

Using  word  "adultery,"  306. 

Open  and  notorious,  allegation  of,  306. 

Surplusage  in  indictment,  306. 

Allegation  of  party  commencing  prosecution,  306. 

Allegations  of  time,  306. 

Showing  that  parties  lived  together,  306. 

Name  of  co-criminal,  306. 

Allegations  of  knowledge,  307. 

Allegations  of  marriage,  307. 

Alleging  that  parties  were  not  husband  and  wife,  307. 

Manner  of  making  averment,  307. 
Alleging  name  of  defendant's  wife,  307. 
Alleging  name  of  defendant's  husband,  307. 
Joinder  of  counts,  307. 
Joinder  of  defendants,  308. 
Indicting  parties  separately,  308. 
Instructions.     Habitual  carnal  intercourse,  308. 

Meaning  of  common  words,  308. 

1047 


INDEX. 

AFFIDAVITS. 

See  Affidavits  of  Merits. 

Use  of  affidavits  in  proceedings  to  obtain  alimony.     See  Alimony. 

Affidavits  in  attachment  proceedings.      See  Amendments    in  Attach- 
ment Proceedings. 

Affidavits  to  verify  pleas  in  abatement.     See  Abatement  in  Pleading. 

Affidavit  of  reality  in  agreed  cases.     See  Agreed  Case. 

Affidavits  in  suits  on  probated  accounts,  93. 
Generally.     Definition,  309. 

Compared  with  deposition,  309. 

Compared  with  oath,  310, 

Nature,  310. 

As  a  pleading,  310. 

As  a  complaint,  310. 

Formal  requisites,  311. 
Sufficiency.     True  test,  310. 

Language  of  statute,  310. 

Form  and  substance,  310. 

Perjury  assignable  though  formally  defective,  310. 
Title.     How  entitled,  311. 

Contents,  311. 

Court  and  cause,  311. 

Incorrectly  entitled.     Misjoinder,  311. 

Position  of  parties  reversed,  311. 

Abbreviation  of  title,  311. 

Title  in  the  body,  311. 

Court  on  appeal,  311. 

Attachment,  312. 

Mandamus  and  bail,  312. 

When  not  to  be  entitled.     Suit  already  begun,  312. 

Mistake  after  decree,  312. 

Title  altered,  312. 

Entitled  two  ways,  312. 

Reference  to  other  papers,  312. 

Criminal  information,  312. 

Replevin,  313. 

Title  not  surplusage,  313. 
Venue.     Stating  the  county,  313. 

Prima  facie  evidence  of  county,  313. 

City  and  county,  313. 

Form  of  venue,  313. 

Letters  "  ss",  313. 

Effect  of  absence  of  venue,  313,  314. 

Purpose  of  venue.     Jurisdiction  of  oflScer,  314. 

Jurisdiction  presumed,  314. 

Officer  of  local  jurisdiction,  314. 

Ofl^cer  beyond  jurisdiction,  314. 

Evidence  aliunde  of  venue,  315. 
Signature.     Necessity  for  affiant's  signature,  315. 

Statute  requiring,  315. 

Not  signed,  but  name  appearing,  315. 

Perjury  assignable  without  affiant's  signature,  315. 

Where  signed,  315. 

Prima  facie  sufficiency,  315. 

By  partnership,  316. 

By  agent,  316. 

Persons  incapable  of  signing,  316. 

Objection  too  late,  316. 
Jurat.     What  is,  316. 

Certificate  of  authenticity,  316. 

Form,  316. 

Particularity  not  required,  316. 

1048 


INDEX. 

AFFIDAVITS. 

Jurat —  Contin  ued. 

"  Before  me,"  316. 

Sworn  to  in  open  court,  316. 

Jurat  not  immediately  annexed,  316. 

Perjury,  316. 

Venue  of  jurat,  316. 

No  part  of  affidavit  proper,  316. 

Omission  of  name  from  jurat,  317. 

Service  of  copy,  317. 

Surplusage,  317. 

Sworn  or  affirmed,  317. 

Name  of  affiant,  317. 

Equivalent  words,  317. 

"  Then  personally  appeared,"  317. 

Jurat  on  the  back,  320. 
Authentication.     Necessity  for,  317. 

Official  title  of  officer,  318. 

In  judge's  hand-writing,  318. 

Initials,  318. 

Time  of  signing,  318. 

Neither  signed  nor  certified,  318. 

Blank  form,  318. 

Negligence  of  officer  in  attesting,  318. 

Proving  extrinsically,  318. 

Deputy  officer,  319. 

Abbreviation  of  title,  319. 

Expiration  of  officer's  commission,  319. 

Officer  signing  in  wrong  capacity,  319. 

Sufficiency  of  title.     Clerk,  319. 
■  Insufficient  title,  319. 

Judicial  notice  of  officer's  title,  319. 

Requirement  of  seal,  320. 
Date.     Not  essential,  320. 

Assigning  perjury  on  affidavit  not  dated,  320. 

Showing  mistake,  320. 
Substance.     When  affidavits  are  held  good,  320. 

Statements  should  be  positive,  321. 

Clerical  errors,  321. 

Interlineations  and  erasures,  321. 

Scandalous  matter,  321. 

Recitals,  321. 

Drawn  up  by  counsel,  321. 

Language  of  statute,  321. 

Attachment,  321. 

Conclusions  of  fact,  322. 

Opinions  and  conclusions  of  law,  322. 

Inconsistent  grounds  for  remedy,  322. 

Statements  in  the  alternative,  322. 

Statements  on  information  and  belief,  322. 

Inferences,  322. 
Parties.     Name  of  affiant,  323. 

Name  of  plaintiff,  323. 

Christian  names,  323. 

Partnership,  323. 
Language.     Immaterial  what  language,  323. 

Translation  of  foreign  language,  323. 
Oath.     Form,  324. 

No  particular  ceremony,  324. 

Recital  by  officer,  324. 

Insufficient  oaths,  324. 

Circumstances  must  show  that  there  was  an  oath  or  affirmation,  324. 
Who  may  make.     Competency  of  affiants,  325. 

1049 


INDEX, 

AFFIDAVITS. 

Who  may  make — Contimied. 
Interested  parties,  325. 
Parties  to  cause,  325. 
Jurors,  325. 
Printer,  325. 
Guardians,  325. 
Young  children,  325. 
Lunatics,  325. 
Felons,  325. 
Witnesses,  325. 
Atheists,  325. 
Wife,  325. 
Negroes,  325 
Partnership,  326. 
Corporations,  326. 

Legal  representatives,  326.  V 

Attorneys  for  parties,  326. 

Attorney's  clerk,  327.  , 

Affidavits  of  two  attorneys,  327. 

Attorneys  in  absence  of  plaintiff,  327. 

Attorney's  knowledge  of  facts,  327. 
Counsel  for  party,  327. 
Third  persons,  328. 
Agents,  327. 
Who  may  take.     Within  the  state,  328. 
General  authority,  328. 

Officer  authorized  to  administer  oaths,  328. 
Under  acts  of  Congress,  328. 
Notaries  public,  329. 
Justices  of  the  peace,  329. 
Clerks,  329. 
Judges,  329. 
Deputies,  330. 
Mayor,  330. 
Recorder  of  city,  330. 
Register  of  deeds,  330. 
Assistant  justice  of  ward  court,  330. 
Coroner,  330. 
Master  in  chancery,  330. 
State  senator,  330. 
Commissioners,  330. 
Attorneys,  330. 

Attorney  and  justice,  331. 

Attorney  and  notary,  331, 

Attorney's  clerk,  331. 

Attorneys  for  partner,  331. 
Foreign  affidavits,  331. 

Statutes  prescribing  rules,  332. 

Lord  Mayor, 332. 

Consuls,  332. 
Commissioners  to  take  affidavits  outside  of  state,  332. 
Counsel,  332. 
Solicitors,  332. 
Use  of  affidavits.     Initiating  legal  proceedings,  333. 
Supporting  or  opposing  motions,  333. 
Proving  service,  333. 
Furthering  stages  of  case,  333, 
To  supplement  record,  334. 
Showing  preliminary  proof,  334. 
Made  in  another  suit,  334. 
Before  a  justice,  334. 
Affidavit  by  club,  334. 


INDEX. 

AFFIDAVITS. 

Use  of  affidavits— C<7«/mK^</. 

Counter-affidavits,  334. 

Extra-judicial  affidavit,  334. 

Argument,  334. 

As  pleadings,  334. 

Explaining  circumstances,  335. 

As  evidence,  334. 

Admissions  against  affiant,  335. 
Weight  as  evidence,  335. 
When  ex  parte,  335. 

As  part  of  the  record,  336. 

Filing  the  affidavit,  336. 

Stale  affidavits,  336. 
Amendments.     Formal  defects,  336. 

Substantial  defects,  336. 

Absence  of  jurat,  337. 

Foreign  affidavit,  337. 

Official  title,  337. 

Signature  of  officer,  337. 

Statutes  providing  for,  337. 

Failure  to  amend  after  leave,  337. 

Filing  nunc  pro  tunc,  337. 

Reswearing,  337. 

Jurat  defective,  337. 
AFFIDAVITS    OF    MERITS    OR    DEFENCE. 
Generally.     Definition,  338. 

Requirement  of,  339. 

Uniformity  of  practice,  339. 

Constitutionality  of  rules  and  statutes  requiring,  339. 

When  required  to  prevent  inquests  or  judgments  bv  default,  341. 
To  prevent  inquests.     In  common-law  actions,  341. 

Actions  in  equity,  341. 

Defence  a  set-off,  341. 

Application  of  rule  to  plaintiffs,  341. 

Calling  case  in  its  order  on  the  calendar,  341. 

Verified  answer  equivalent,  342. 
On  overruling  demurrer.     Where  demurrer  is  withdrawn  or  confessed,  342, 

Where  demurrer  is  sustained  and  plaintiff  wishes  to  amend,  342., 

Sufficiency  of  affidavit,  342, 

Mississippi  rule,  342. 
In  actions  at  common  law.     Massachusetts  rule,  342. 

To  prevent  judgment  by  default,  342. 

In  cases  of  money  demands,  342. 
In  actions  on  money  demands.     Michigan  rule,  343. 

To  prevent  judgment  by  default,  343. 

Form  of  affidavit,  343. 
Actions  on  contracts.     Where  plaintiff  files  affidavit  of  amount  due,  343. 

Necessity  for  plaintiff's  affidavit  of  amount  due,  344. 

Motions,  demurrers  or  pleas  in  abatement,  345. 

Judgment  for  plaintiff  for  default,  345. 

Affidavit  filed  with  plea,  345. 

Plaintiff  pleading  over,  345. 

Conceding  part  of  plaintiff's  claim,  346. 

Sufficiency  of  affidavit  following  statute,  346. 

Affidavit  must  show  to  what  part  of  demand  it  applies,  346, 

Appeals  from  justice  courts,  346. 

Appeal  bonds,  346. 

Distress  warrants,  346. 
Actions  on  judgments.     Rule  in  District  of  Columbia,  347. 
Actions  of  assumpsit.     Pennsylvania  rule,  347. 

Action  accompanied  by  statement  of  plaintiff's  demand,  347. 

To  what  actions  applicable,  348. 

1051 


INDEX. 

AFFIDAVITS   OF  MERITS   OR   DEFENSE. 
Actions  of  assumpsit — Continued. 

Actions  against  corporations,  348. 

Proceedings  against  public  officers,  348. 

In  actions  of  foreign  attachment,  348. 

Actions  against  married  woman,  348. 

Appeals,  348. 

Actions  against  executors,  administrators  or  heirs,  349. 

Actions  against  infants,  349. 

Actions  on  judgments,  349. 

Actions  on  implied  contracts,  349. 

Actions  against  lunatics,  349. 

Actions  for  torts,  349. 

Plaintiff's  statement,  necessity  for,  349. 

Sufficiency  of,  350. 
Omission  of  affidavit;  judgment  by  default,  350. 
Plaintiff's  statement;  waiver  of  right  to,  350. 
Waiver  of  defects,  350. 
Admission  of  part  of  claim,  351. 
Sufficiency  of  affidavit,  how  tested,  351. 
Necessity  for  affidavit,  how  question  raised,  351. 
Sufficiency  of  affidavit.     Inferences,  351. 
Admissions  binding,  351. 
To  open  judgments  or  inquests.     Affidavit  universally  required,  352. 
Rule  in  equity,  353. 

Service  of  answer,  353. 

Answer  not  a  substitute,  353. 
Sufficiency  of  affidavit  at  law,  353. 
Necessity  for  stating  facts,  353. 
Verified  answer  taking  place  of  affidavit,  354. 
Serving  proposed  answer,  354. 
When  default  opened,  355. 
Technical  defense,  355. 
Irregular  default,  355. 
To  extend  time  to  answer  or  demur.     Affidavit  sometimes  required,  355. 
To  change  venue.     When  affidavit  required,  355,  356. 
On  motions  generally.    Dilatory  motions,  356. 

Motion  to  stay  proceedings  on  bail  bond,  356. 
To  set  aside  proceedings  for  irregularity,  356. 
To  obtain  stay  of  proceedings,  356. 
To  obtain  leave  to  answer,  356. 
To  resist  motion,  to  strike  out  plea  as  false,  356. 
To  obtain  a  continuance,  356. 

Where  complaint  has  not  been  filed  or  served,  357. 
At  what  time  made.     After  filing  or  serving  declaration  or  complaint,  357. 
On  or  before  joining  issue,  357. 
Before  trial.  357. 
Prematurely  made,  357. 
One  affidavit  usually  sufficient,  357. 

More  than  one  affidavit,  357. 

Filing  second,  abandonment  of  first,  358. 
By  whom  made.     Defendant,  358. 

Marriage  pending  action,  358. 

Corporations  defendant,  358. 
Real  party  in  interest,  358. 

Guarantor,  358. 

Stranger,  358. 
Several  defendants,  359. 

Maker  and  endorsers,  359. 

Submission  of  controversy,  359 

Sheriff  and  sureties,  359. 
Agents,  359. 

1052 


INDEX. 

AFFIDAVITS   OF  MERITS   OR   DEFENSE. 
By  whom  made — Continued. 

Attorney  or  attorney's  clerk,  359. 
Excuse  for  defendant's  failure  to  make,  360. 
Excuse  for  substituted  affidavit,  360. 
Contents.     Ordinary  form,  360. 

Every  part  of  usual  form  material,  360. 

Proper  form,  361. 

Alleging  "  statement  "  of  case,  361. 

Alleging  statement  of.  "  the  case,"  361. 

"  This  "  or  "  his  "  case,  361. 

"  Case  "  "  fully  and  fairly  "  stated,  361. 

Facts  to  his  knowledge,  361. 

•' His  defense,"  361. 

Facts  of  the  case,  361. 

No  statement  of  facts,  361. 

"  His  case  in  this  cause,"  361. 

Defendant's  defense,  361. 

Statement  to  defendant's  counsel,  362. 

"  Full  and  substantial  "  defense,  362. 

"  Good  and  lawful  "  defense,  362. 

"Good  cause  of  defense,"  362. 

Good  and  substantial  defense,  362. 

"Good  and  perfect"  defense,  363. 

"  Good  and  valid  "  defense,  363. 

Defense  upon  the  merits,  363. 

Good  and  meritorious  defense,  363. 

Defense  to  plaintiff's  claim,  363. 

Defense  in  the  action,  364. 

Advice  of  counsel,  364. 

Defendant  advised  by  his  counsel,  364. 

Attorney  or  counsel,  364. 

Advice  "after"  statement,  364. 

Name  of  counsel,  365. 

When  not  necessary  to  allege,  365. 

Defendant's  belief,  365. 

Belief,  upon  what  founded,  365. 

"  Believed,"  365. 

Belief  in  truth  of  advice,  365. 

"  As  he  is  advised  and  believes,"  365 
Where  facts  are  stated,  366. 
Illinois  rule,  367. 

Formal  defects,  367. 

Substantial  compliances,  367.      ^ 

Facts  constituting  defense,  367. 

Facts  not  provable,  367. 

Partial  defense,  368. 

Court  compelling  facts  to  be  stated,  368. 

Testing  sufficiency  of  affidavit,  368. 
Pennsylvania  rule,  368. 

Form.     Statement  of  facts,  368. 

Every  fact  necessary,  368. 

Conclusions  of  law,  369. 

Clear  statement,  369. 

Action  on  note,  360. 

Information  and  belief,  369. 

Written  instruments,  370. 

Partial  defense  ;  supplemental  affidavit,  370. 

Referring  to  paper  without  annexing  copy,  370. 
Sufficiency  for  co-defendants,  371. 
Affidavit  by  attorney,  agent  or  clerk,  371. 

1053 


INDEX. 

AFFIDAVITS   OF   MERITS   OR   DEFENSE. 
Contents — Continued. 

Made  by  managing  clerk,  372. 

To  obtain  change  of  venue,  373. 

Title,  jurat,  etc.,  374. 

Improper  title,  374. 

Caption,  374. 

Amendments,  375. 

Controverting  the  affidavit,  375. 

Service  of  and  filing  affidavits,  375. 

Counter-affidavits,  376. 

Contradicting  facts,  376. 
AFJ'IRMATION. 

Definition,  377. 

History.     English  statute  law,  377. 

American  statute  law,  378. 

Appeal  to  supreme  being,  377. 

Atheists,  378. 

Children,  379. 

Privilege  of  affirming,  379. 

Strict  construction  of  statutes,  379. 

Effect,  380. 

Form,  380. 

Form  varying  from  statute,  380. 

Presumption  as  to  regulations  of  statute  being  complied  with,  380. 

Rule  in  criminal  cases,  380. 

Witness  not  objecting  to  oath,  380. 

Irregularity.     Indictment  for  perjury,  381. 

Pretending  to  be  a  quaker,  381. 
AFFRAY. 

Definition,  382. 

The  indictment,  382. 

Form  of  indictment,  382. 

Alleging  an  affray,  372. 

Allegation  of  place,  383. 

Trial.     Both  must  be  convicted,  383. 
Including  assault  and  battery,  383. 

The  verdict,  383. 
AGREED  CASE. 

Definition,  385. 
Nature  of  agreed  case.     As  a  substitute  for  action.  385. 

As  commencement  of  a  suit,  385. 

Purpose  to  save  trial,  385. 

No  dispute  about  facts,  385. 

Signature,  385. 
Contents.     Facts  pertinent  to  particular  issue,  385. 

Facts  regarded  as  true,  385.  » 

All  material  facts,  385. 

Facts  and  not  evidence,  386. 

What  not  stated  regarded  as  not  existing,  386. 
Mode  of  stating. 

Subject-matter  of  controversy,  386. 
Like  a  special  verdict,  386. 

Equivalent  to  findings  by  court  or  special  verdict  of  jury   386, 

jury,  386. 

Must  be  no  ambiguity,  386. 
Judgment.     Judgment  must  be  provided  for,  387. 
Judgment  upon  an  agreed  case  as  a  bar,  387. 
Recovery  of  statutory  penalty,  387. 
Judgment  for  nominal  sum,  387. 
What  is  not  an  agreed  case.     Agreements  as  to  evidence,  3S7. 

1054 


INDEX. 

AGREED    CASE. 

What  is  not  an  agreed  case — Continued. 
Competency  of  evidence,  388. 
Contest  in  disputed  elections,  388. 
Nature  of  controversy,  388. 

Question  of  right  to  serve  process,  388. 
Pleas  in  abatement,  388. 
Mandamus  and  prohibition,  388. 
Subject  of  civil  action,  388. 
Enforcement  of  liens,  388. 
Injunctions,  388.. 
Affidavit  of  reality.     Affidavit  of  reality  jurisdictional,  388. 
By  whom  made,  389. 
By  same  attorney  for  both  parties,  389. 
Statement  as  to  affidavit  in  record,  389. 
The  stipulation.     Extent  of  control  by  parties,  389. 

Parties  cannot  give  jurisdiction  over  others,  389. 
Action  by  creditor  of  corporation,  389. 
Specified  points  of  law,  390. 
Right  to  except  reserved,  390. 

What  necessary  to  make  agreed  case  part  of  judgment-roll,  390. 
Judgment  of  respondent  ouster,  390. 
When  state  concluded,  390. 
Effect  as  an  estoppel,  390. 
Officer's  return,  390. 
Must  be  certain  in  terms,  391. 
Effect  as  a  waiver.  391. 
Legal  or  equitable  relief,  391. 
In  ejectment,  391. 

Technical  objections  as  to  form  of  action,  392. 
Reserving  objections  by  stipulation,  392. 
Controverting  facts  in  argument,  393. 
Abandonment  or  rescission,  393. 
Withdrawal  by  leave  of  court,  393. 
Function  of  court.     Only  questions  of  law,  393. 
No  power  to  draw  inference  of  fact,  393. 
Speculative  or  fictitious  questions,  394. 
Necessary  inferences,  394. 

Stipulation  that  court  may  draw  inferences  of  fact,  394. 
Amendment.     How  to  proceed  to  amend,  -ags. 

The  application  to  amend,  395. 

Power  to  amend,  395. 

Instances  of  allowing,  395. 
Submission  must  be  in  good  faith,  395. 
Discharge.     Some  misapprehension  must  be  shown,  396. 

When  each  party  has  claim  against  third  party,  396. 

When  injunction  the  only  relief,  396. 

When  facts  insufficiently  stated,  396. 

Power  to  discharge;  when  exercised,  396. 

Miscellaneous  instances  of  discharge,  397. 
Court  will  not  act  as  a  jury,  396. 
Case  must  contain  all  essential  facts,  397. 
Receiver's  powers  as  to  agreed  case,  397. 
Deducing  proper  legal  conclusions,  397. 
Cannot  go  outside  of  case,  397. 
When  case  will  be  declared  void,  397. 
Nature  of  relief  to  be  granted,  398. 
Not  necessary  to  make  findings,  398. 
Parties.     Persons  having  interest  affected,  398. 
Effect  of  defect  of  parties,  398. 
Dismissal  for  want  of  necessary  parties,  398. 
Attorney-general,  398. 

1055 


•  INDEX, 

AGREED    CASE. 

Parties — Continued. 

Executor  and  administrator,  399. 

Infants,  399. 

By  whom  case  must  be  signed,  399. 
Costs.     Agreed  case  as  an  action,  399. 

Trial  of  an  issue  of  law,  399. 

Control  by  stipulation,  399. 

Costs  taxable,  399. 

Extra  allowance,  221,  399,  400. 

Second  trial,  400. 

Where  case  is  dismissed,  400. 
Miscellaneous  points  of  practice.     In  Maine  and  New  Hampshire,  400. 

New  York  practice,  400. 

In  federal  courts,  401. 

When  agreed  case  is  lost,  400. 
Pleadings.     Relation  to  agreed  case,  401. 

Issue  as  made  up,  401. 

Amendment,  401. 

Efifect  of  filing  an  agreed  case  subsequent  to  pleadings,  402. 

Manner  of  alleging  facts,  402. 

Plea  in  abatement,  402. 

Form  of  action,  402. 

Questions  of  sufficiency,  402. 
Evidence  upon  subsequent  trial.     Use  in  evidence  upon  subsequent  trial,  402. 
Appeals.     Finality  of  judgment,  403. 

Whether  an  appeal  or  writ  of  error  lies,  403. 

Necessity  for  bill  of  exceptions,  403. 

Relation  of  appellate  to  inferior  court,  404. 

Effect  of  absence  of  bill  of  exceptions,  404. 

Motion  for  new  trial,  404. 

New  trial  upon  reversal,  405. 

Right  to  appeal  reserved  by  stipulation,  405. 

Point  not  raised  in  court  below,  405. 

Action  originating  before  magistrates,  405. 

No  appeal  until  after  judgment,  405. 

Agreed  case  as  part  of  record,  405. 
Statutory  provisions  in  the  various  states,  406. 
ALIENS. 

Capacity  to  sue.     Pleas  in  abatement,  ir. 
ALIMONY. 

As  an  independent  right.     Alimony  without  divorce,  408. 

Power  given  by  statute,  409. 

After  legislative  divorce,  409. 

Jurisdiction  of  chancery  courts,  409. 

Practice  and  procedure  similar  to  divorce  suits,  409. 

Temporary  alimony,  410. 

Relief  granted,  410. 

The  decree.     Separation,  410. 

Decree  for  specific  property,  410. 

Decree  upon  conditions,  410. 

Enforcing  decree,  411. 

Avoidance  of  decree,  411. 

Temporary  decree,  411. 

Decree  in  another  state,  411. 

Duration  of  payment,  411. 

Revision  or  amendment  of  decree,  411. 

Abatement  of  suit.     Death  of  party,  411. 

Supplicavit  for  security  of  peace,  412. 
Jurisdiction.     Divorce  courts,  412. 

Domicil  necessary  to  jurisdiction,  412. 

Appearance  of  defendant.     Constructive  service,  413- 

1056 


INDEX. 

ALIMONY. 

Jurisdiction — Continued. 

By  attorney,  413. 

Due  service  of  process,  413. 

Alimony  decree  in  personam,  413. 

Where  land  within  jurisdiction  of  court,  413. 

Defendant  domiciled  in  state,  413. 

Service  on  solicitor,  413. 

Temporary  alimony,  414. 

Fraud  on  jurisdiction,  414. 
After  dissolution  of  marriage.     Application  usually  denied,  414. 

Dissolution  by  death,  414. 

Jurisdiction  reserved  by  decree  or  by  statute,  414. 

Final  judgments,  settling  rights  of  parties,  414. 

Dismissal  of  application  without  prejudice,  415. 

Where  decree  was  ex  parte,  415. 

Divorce  a  vinculo,  415. 

Divorce  a  mensa  et  thoro,  415. 

Fraud  in  procuring  divorce,  416. 
Enforcing  decree  in  another  state,  416. 
Procedure  generally,  417. 

Ordinary  method  of  court  followed,  417. 
Pleadings.     Prayer  for  alimony,  417. 

Methods  of  praying  alimony,  418. 

Notice  of  application,  418. 
Temporary  alimony.     When  asked  and  granted,  419. 
Permanent  alimony.     When  to  be  prayed  for,  420. 
Divorce  and  alimony  separately  considered,  420. 
What  to  be  shown  to  warrant  alimony  pendente  lite,  421. 
Hearing  of  husband,  422. 
Parties,  423. 
How  wife  sues,  423. 
Temporary  alimony.     When  asked  and  granted,  418. 
Application  for,  418,  419. 

What  to  be  shown  to  warrant  alimony  pendente  lite,  421. 
Evidence.     Wife's  affidavit,  424. 

Affidavit  of  other  parties,  424. 
Husband's  answer  under  oath,  424. 
Affidavits  and  depositions,  424. 
VJiie's  prima  /acie  case,  425. 
Hearing  of  husband,  425. 
Oral  testimony,  425. 
Accessions  of  property,  425. 
General  admissions,  425. 
Divorce  in  another  state,  425. 
Burden  of  proof,  425. 
Reference  to  determine  facts,  426. 
No  hearsay  evidence,  426. 
Authority  to  sue,  426. 
Modification  of  decree,  426. 
Decision  on  affidavits,  426. 
Unaided  admissions,  426. 
Decree.     Allowance  in  instalments,  427. 
Sum  in  gross,  427. 
Ante-nuptial  agreement,  427. 
Specific  property,  427. 
Form,  427. 

Gross  sum  in  lieu  of  dower,  428. 
Sum  in  gross  payable  in  instalments,  428. 
Discretion  of  court,  428. 
Order  for  temporary  alimony,  428. 
Terms.     Reconciliation  of  parties,  429. 

I  Encvc.  PI.  &  Pr.— 67.  1057 


INDEX. 

ALIMONY. 

Decree — Continued. 

Award  during  joint  lives,  429. 

Condition  that  wife  remains  single,  429. 

When  allowance  commences,  429. 

Arrears  of  alimony,  430. 

Temporary  alimony  increased'or  diminished,  430. 

Permanent  alimony  increased  or  diminished,  430. 

Modification  of  decree,  430. 

Change  of  circumstances  of  parties,  431. 

Newly  discovered  evidence,  431. 

Application  for  modification,  432. 

Husband  unable  to  pay,  432. 

Allowance  inadequate,  432. 
Enforcing  decree.      By  what  tribunal,  432. 

Enforcing  decree  in  other  states,  433. 

Enforcing  decree  in  United  States  courts,  434. 

Methods  employed  to  enforce  decree,  434,  435,  436. 

Assumpsit  to  enforce  decree,  434. 

Scire  facias  to  enforce  decree,  434. 

Attachment  to  enforce  decree,  435. 

Fieri  facias  to  enforce  decree,  435. 

Execution  to  enforce  decree,  435. 

Taking  away  privileges  to  enforce  decree,  436. 

Dismissing  bill  to  enforce  decree,  436. 

Striking  out  answer  to  enforce  decree,  436. 

Sequestration  to  enforce  decree,  436. 

Attachment  for  contempt  to  enforce  decree,  437. 

Imprisonment  for  debt,  439. 
Attachment  for  contempt.     Enforcing  decree  by,  437. 
Criminal  nature  of  proceeding,  437. 
When  attachment  granted,  437. 
Refusal  to  pay  must  be  wilful,  438. 
Not  granted  where  there  is  no  contempt,  438. 
Oppoitunity  to  pay,  438. 
Burden  of  proof,  438. 
Application  for  attachment,  438. 
Notice  of  application,  438. 
When  remedy  is  used,  439. 
Wife  having  ample  security,  439. 
Issued  against  court  of  chancer)',  439. 
Imprisonment  for  debt,  439. 
How  application  made,  440. 
Ne  exeat  to  secure  alimany,  440. 

Writ  granted  in  aid  of  decree,  440. 
Writ  asked  when  bill  is  filed,  441. 
Writ  granted  even  before  decree,  441. 
Petition  and  affidavits,  441. 

Allegation  that  husband  was  about  to  depart,  441. 
Discharge  of  writ  on  husband  filing  security,  441. 
Injunction  to  sec  ira  alimony,  442. 
Power  to  grant,  442. 

Restraining  disposition  of  property,  442. 
Petition  and  affidavit,  442. 
Before  decree  and  award,  442. 
Necessary  facts  to  be  shown,  442. 
Denial  of  husband  will  not  dissolve,  442. 
Operation  of  the  injunction,  443. 
Against  third  parties,  443. 
Bona  fide  purchasers,  443. 
Terms  of  injunction,  443. 
Receiver  of  husband's  property,  44J 

1058    " 


INDEX. 

A  LI  M  O  N  Y—  Contin  ued. 

C(C  ce  as  lien  on  land,  443. 

Doctrine  of  lis  pendens.  443. 

Specially  charged  ou  particular  property,  444. 

Divorce  suit  itself  not  lien,  444. 

Order  to  convey  property  to  trustees,  444. 

To  what  attaches,  444. 
Requiring  security,  445. 

Insuring  payment  of  alimony,  445. 

After  entering  judgment,  445 

Bond  not  assignable,  445. 

How  enforced,  445. 

Suit  on  bond  without  leave  of  court,  445. 
Fraudulent  conveyances  to  de'eat  alimony,  445. 
Appeals.     Right  to  appeal  from  refusal  or  granting  of  alimony,  446. 

Discretion  as  to  amount,  446. 

KYxmox^y  pendente  lite,  447. 

Alimony  and  counsel  fees  pending  appeals,  448. 

Appeal  without  merits,  449. 

Laches  of  wife,  449. 

Grant  of  alimony  by  appellate  court,  449. 

Collateral  attack,  450. 

Order  modifying  decree,  450. 

Temporary  alimony  granted  by  appellate  court,  450. 
Suit  money,  counsel  fees  and  costs.     Definitions,  450. 
Suit  money.     Use  of  terms,  450. 

Grantable  without  statutory  aid,  451. 

Principles  on  which  awarded,  451. 

Where  wife  fails,  452. 

Of  what  it  consists,  452. 

Allowance  for  expenses.  452. 

Sum  in  gross,  452. 

Fees  of  witnesses,  452. 

Wife's  need.     Separate  estate,  452, 

Object  of  granting,  452. 

Grant  on  final  hearing,  452. 

Discretion  of  court,  453. 
Counsel  fees.     Right  of  wife  to  bind  husband  for  legal  assistance,  453. 

Award  of  sum  to  employ  counsel,  453. 

Application  for,  453. 

When  awarded,  453. 

Taxed  as  costs,  453.. 

To  whom  paid,  453. 

Dismissal  of  divorce  suit  during  vacation,  453. 

When  allowance  refused,  454. 

Proof  to  aid  court,  454. 

Number  of  attorneys,  454. 

The  amount,  454. 

Allowance  on  appeal,  455. 

Discretion  of  court,  455. 

Statutory  aid,  455. 

To  enable  wife  to  resist  motion  to  reduce  alimony,  455. 
Costs.     Costs  against  wife,  455. 

Cost  to  prevailing  party,  455. 

Discretion  of  court,  456. 

Wife  plainly  in  fault,  456. 

Bill  improperly  filed,  456. 

Where  probable  cause,  456. 

Intruder  t.ixed  with  costs,  456. 

Where  next  friend  insolvent,  456. 

Costs  of  husband  not  awarded  against  wife,  457. 

1059 


INDEX. 

ALIMONY. 

Costs —  Contin  ued. 

Not  awarded  against  wife's  solicitor,  457. 
Collection  by  contempt  proceedings,  457. 
ALLOCUTION. 

See  Cross  References,  458. 
ALTERNATIVE  PLEADINGS. 

See  Cross  References,  458. 
AMBIGUITY  IN   PLEADINGS. 

See  Cross  References,  458. 
AMENDMENTS  GENERALLY. 

Amendments  in  admiralty  practice.     See  ADMIRALTY. 
Amendments  of  appeal  bonds.     See  Appeal  Bonds. 
Amendtnents  of  affidavits.     See  Affidavits. 
Amendment  of  agreed  case.     Sefe  AGREED  CVSE. 
Definition  of  amendments,  462. 
Pleas  in  abatement  not  amendable,  26,  519. 
Allowing  pleas  in  abatement  in  place  of  pleas  in  bar,  5. 
AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTES. 
Power  to  amend.     Inherent  power,  508. 
Justices  of  the  peace,  508. 
At  any  time  before  final  judgment,  509. 
Distinction  between  penal  and  other  actions,  509. 
Real  actions,  509. 
Lex  fori  %o\-&rvi%,  509. 
Statutes  declaratory  of  common  law,  509. 
Something  to  amend  or  amend  by,  509. 
Effect  of  statutes  of  amendment,  510. 

Complaint  failing  to  state  any  cause  of  action  whatever,  510.. 
Faulty  statement  of  facts  constituting  cause  of  action,  510. 
Relation  between  federal  and  state  practice,  510. 
Federal  courts  following  state  practice,  511. 
Court  without  jurisdiction  cannot  allow  amendment,  511. 
Amendment  of  jurisdictional  averments,  511. 
Striking  out  a  count,  512. 
In  the  federal  courts,  512. 

When  such  amendments  have  been  allowed,  513. 
By  referees.     Power  wholly  statutory,  513. 
Extent  of  power,  513. 
Code  provisions,  513. 
Power  to  impose  terms,  515. 
New  cause  of  action,  514. 
May  require  application  to  court,  514. 
New  defense,  514. 
In  respect  of  parties,  514. 
To  conform  to  proof,  515. 
Review  of  referee's  ruling,  515. 
In  furtherance  of  justice.     Principle  pervades  all  amendments,  5if . 
Oversights  of  counsel,  516. 
Giving  one  party  technical  advantage,  516. 
Application  of  principle,  516. 
Amendments  favored,  516,  517. 
Reason  of  rule,  51S. 
Liberal  construction  of  statutes,  518. 
The  defendant  favored,  518. 

Municipal  corporations,  518. 
Amendments  barred  by  limitation,  518,  519. 
Further  amendments,  519. 
Amendments  in  pleas  of  abatement,  519. 
Unconscionable  defenses.     Usury  and  limitation,  520. 

Defense  of  infancj',  522. 
Laches  of  applicant,  522. 

1060 


INDEX. 

AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTES. 
In  furtherarca  of  \\x%'(\s:^—Contimied. 

Immaterial,  unnecessary  and  unavailing  amendments,  523. 
Laches  of  applicant  where  the  facts  were  known,  523. 
Amendment  contradicting  facts,  524. 

Amendment  to  which  demurrer  would  be  sustained,  524. 
Amendments  discretionary.     Review  of  discretion,  524. 

On  what  grounds,  524. 

Mistaken  view  as  to  power  to  allow  amendment,  524- 

Under  the  code  system,  525,  526,  527. 

Construction  of  statutes,  528,  529,  530. 

Absolute  right  to  have  amendment,  530. 

Want  of  power,  531. 

New  cause  of  action,  531. 

Ground  of  decision.     How  ascertained,  532 

Presumptions  in  favor  of  trial  court,  532. 

Showing  required  in  trial  court,  532. 

Sufficiency  of  record,  532. 

Harmless  error,  533. 

Objection  and  exception,  533. 

Circumstances  rebutting  prejudice,  533. 

Method  of  review,  534. 
In  respect  of  parties.     Misnomer,  535. 

Misnomer  at  common  law,  535, 

Modern  statutes,  536. 

Misnomer  of  plaintiffs,  536. 

Misnomer  of  defendants,  536. 
Misdescription  of  plaintiff.     Changing  nominal  plaintiff,  537. 
Substituting  beneficiaries,  538. 
Substituting  holder  of  legal  title,  538. 

Entirely  new  plaintiff,  538.  * 

Representative  capacity  of  plaintiff,  539. 

Proceeding  in  name  of  neither  natural  or  artificial  person,  539,  540. 
Misdescription  of  defendant.     Nominal  change,  540. 
Adding  plaintiffs.     Statutory  provisions,  541. 
Adding  plaintiffs  at  common  law,  541. 
Striking  out  defendants  at  common  law,  541. 
Striking  out  plaintiffs,  543. 

Statutory  provisions,  541. 

At  common  law,  543. 
Effect  of  making  new  defendant,  543. 
Striking  out  defendants.      By  statute,  545. 

Entering  nol.  pros.,  544. 
Entire  change  of  parties,  545. 
Introducing  new  cause  of  action  or  cefense.     Rule  under  codes  and  statutes, 

547,  543. 
Rule  at  common  law,  547. 
Prevalence  and  extent  of  rule,  547. 
Statutes  of  the  different  states  examined,  548-556. 
General  tests,  556. 
Federal  follows  state  practice,  557. 
What  amendments  are  allowed.     Amplified  statements.  55 

Correcting  misdescriptions,  558. 

Making  allegations  more  formal  or  precise,  560. 

In  ejectment,  561. 

In  action  for  death,  561. 

In  actions  for  flowage  of  land,  561. 

Trespass  quare  clausttm,  561. 

Same  allegations    n  different  form,  562. 

In  action  for  negligence,  563. 

In  action  for  slander,  563. 

Summary  statement  of  rule,  564- 

1061 


INDEX, 

AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTES. 
Introducing  new  cause  of  action  or  defense—  Continued. 
Liberal  policy,  567. 
What  amendments  are  not  allowed,  ^67. 

Changing  legal  to  equitable  action  and  vice  versa,  568. 

Changing  common-law  action  to  statutory  action,  and  vice  versa ^ 

569- 

Libel,  slander  and  malicious  prosecution,  false  imprisonment,  etc., 
570. 

Action  for  seduction  changed  into  action  for  rape,  570. 

Other  instances  collected,  571,  572. 
Objection,  how  taken,  571. 
Waiver  of  objection,  573. 
Method  of  determining  the  question,  574. 
Review  of  decision  of  trial  judge,  574. 
Changing  form  of  action.     General  rule,  574. 
Discretion  of  court,  574. 
Sanction  by  statute,  575. 
Where  forms  of  action  are  abolished,  575. 
Matters  arising  pendente  lite.     Amended  and  supplemental  complaint,  576. 

Effect  of  answering,  577. 
Amended  and  supplemental  answer,  577. 
Effect  of  improper  amendment,  577. 
To  obviate  a  variance  or  conform  to  proof.     To  obviate  a  variance,  577,  578. 

Time  to  answer  amendment,  57S. 
To  conform  to  proof.     Rules  stated.     Power,  how  derived,  578. 

Authority  to  allow,  578. 

Confined  to  original  cause  of  action,  583. 

After  reversal  and  remand,  584. 

Only  in  furtherance  of  justice,  584. 

Unconscionable  demand,  585. 

Sufficiency  of  proof,  585. 

Where  evidence  was  objected  to,  585. 

Failure  of  proof,  586. 
Amendment  of  tlie  ad  damnum.     Not  a  new  cause  of  action,  586. 
Before  trial.      By  increasing  or  reducing,  587. 

Filling  a  blank,  588. 

After  plea  in  abatement,  588. 
On  the  trial,  588. 

To  conform  to  proof,  588. 
After  verdict  or  referee's  report,  589. 
After  relinquishing  the  verdict,  5S9. 
After  merits  fully  litigated,  589. 
After  judgment,  590. 
At  what  stage  of  the  proceedings.     Before  trial.     General  rule,  590. 

After  issue  joined,  590. 

After  change  of  venue,  590. 

After  demurrer,  591. 

After  plea  in  abatement,  591. 

After  proceedings  of  the  action  have  been  abated,  59!; 

After  demurrer.     Under  Code  provisions,  594. 

After  demurrer.     Amendment  of  demurrer,  595. 
•  Before  announcing  ready  for  trial,  597. 

On  the  eve  of  trial,  598. 
On  the  trial,  598. 

Making  a  new  cause  of  action,  598. 

Formal  errors,  598. 

To  obviate  a  variance  or  to  conform  to  proof,  598. 

Liberally  allowed,  600. 

Laches  of  applicant,  601. 

Question  first  raised  on  the  trial.  5ot. 

In  case  of  mistake,  601. 

1062 


INDEX. 

AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTES. 
At  what  stage  of  the  proceedings — Continued. 

Where  plaintiff's  claim  would  be  barred,  6oi, 

After  jury  sworn,  602. 

Reswearing  the  jury,  602.  * 

At  what  stage  of  the  trial,  602. 

Only  in  furtherance  of  justice,  602. 

After  mistrial,  603. 

After  motion  for  nonsuit,  603, 

During  the  argument,  603. 

After  submission  to  jury,  603, 

After  jury  instructed,  603, 
After  report  of  referee,  603. 
After  verdict,  604. 

After  judgment  arrested,  605, 

Terms  of  amendment,  605. 
After  judgment,  605. 

Power  sparingly  exercised,  605. 

Special  circumstances,  606. 

Pending  appeal  or  writ  of  error,  607. 

In  order  to  conform  pleadings  to  facts,  607. 

Giving  opposite  party  opportunity  to  controvert  new  allegations, 
607. 
In  appellate  courts,  607. 

Where  the  cause  is  tried  upon  the  record,  607. 

Statute  of  jeofails,  608. 

By  consent  of  parties,  608, 

Where  the  trial  is  de  novo,  611. 

Amendments  considered  as  made,  6n. 

To  conform  to  proof,  611. 

Neglect  to  apply  for  leave,  611. 

Complaint  bad  on  demurrer,  611. 
Remand  with  directions  to  amend,  617. 
After  remand,  617. 

Discretionary,  619. 

Where  remand  is  general,  618. 

Res  judicata,  620. 

Where  the  remand  is  limited,  620. 

Matters  arising  after  mandate,  621. 
Effect  of  amendments.     Retroactive  effect,  621. 

Statute  of  limitations,  621. 

Where  amendment  does  not  introduce  new  cause  of  action,  621. 

Where  amendment  introduces  new  cause  of  action,  622. 

New  cause  of  action.     How  question  is  raised,  623. 

Where  new  parties  are  introduced,  623. 
Effect  upon  injunction,  624. 

Without  prejudice,  624. 

Original  defects  cured,  624. 
As  a  waiver  of  error  in  previous  rulings,  624, 
Original  pleadings  superseded,  625. 

The  original  complaint,  625. 

Original  complaint  as  evidence,  626. 

Amended  answer,  626. 

Effect  of  striking  out,  627. 
Right  to  plead  de  novo,  627. 

Substantial  amendments,  627. 

When  new  answer  required,  628. 

Election  to  stand  upon  original  pleading,  628. 

Formal  amendments,  629. 
Leave  to  amend.     Amendments  of  course,  629. 

Statutory  provisions.     Absolute  right,  629. 

Waiver  of  right,  631. 

1063 


INDEX. 

AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTES. 
Leave  to  amend — Continued. 

Amendments  by  the  plaintiff,  631. 

What  amendments  may  be  made,  631.  • 

Amendments  by  the  defendant,  632. 

What  pleadings  may  be  amended,  633. 

Supplemental  complaint,  633. 

Notice  of  lien,  633. 

Offer  of  judgment,  633. 

Summons,  633. 

Once  only,  633. 

For  the  purpose  of  delay,  634. 

Remedy  for  unauthorized  amendment,  634. 
When  leave  is  necessary.     Implied  leave,  634. 

Pleading  requiring  verification,  635, 

Effect  of  filing  without  leave,  635. 

Waiver  of  irregularity,  636. 

Implied  leave,  636. 

Presumption  of  leave,  636. 
Application  for  leave,  637. 

Suggestion  by  the  court,  636. 

Suggestion  discretionary,  636. 

Proposed  amendment,  637. 

A  general  application,  637. 

Grounds  shown  by  affidavit,  637. 

Amendment  making  new  issue,  637. 

Presumption  in  favor  of  court,  637. 

No  affidavit  necessary,  638. 

Renewal  of  motion,  638. 

Prima  facie  case  sufficient,  638. 
Notice  of  motion.     When  required,  639. 

Service  of  proposed  amendment,  639. 

Prayer  for  general  relief,  639. 

When  not  required,  640. 
Orders  granting  leave.     General  leave,  640. 

Limiting  time,  640. 

Failure  to  file  within  time  limited,  640. 
Method  of  making  amendments.     Actual  amendment,  640. 
Implied  amendment,  641. 
Entry  of  record,  641. 
Order  operating  as  amendment,  641. 
By  interlineation,  642. 

Discretionary,  642. 

Toleration  of  the  practice,  642. 

Not  a  ground  of  demurrer,  643. 
By  reference,  643. 
By  a  separate  pleading,  643. 
Form  of  amended  pleading.     Venue,  643. 

Averments,  643. 

Signature,  644. 

Verification,  644. 
Service  of  amended  pleadings.     When  necessary.     How  made,  64;;. 
Terms.     Power  to  impose  or  dispense  with,  646. 
Discretionary.     Review  for  abuse,  647. 
Objections  to  rulings,  648. 
Effect  of  accepting  terms,  648. 
Proper  terms,  648. 

Customary  to  exact  terms,  648. 

No  precise  rule,  649. 

Where  prejudice  or  surprise,  650. 

Controlling  considerations,  651. 

Bringing  in  new  plaintiffs,  651. 

1064 


INDEX. 

AMENDMENTS  AT  COMMON  LAW,  UNDER  CODES  AND  STATUTEI 
Terms —  Continued. 

Introducing  new  cause  of  action,  651. 

After  nonsuit,  651. 

After  verdict,  652. 

After  reversal  on  appeal,  652. 

Without  terms,  653. 

Government  pays  no  costs,  654. 
Miscellaneous  proceedings.     Great  latitude  allowed,  654. 
Affidavits,  654. 

Petitions  of  various  kinds,  655, 
Bills  of  particulars,  656. 
Copy  of  notice  sued  on,  656. 
Specification  of  claim,  656. 
Statement  of  account  in  probate  court,  656. 
Notice  of  special  motion,  656. 
Special  denials,  656. 

Complaints  in  forms  prescribed  by  statute,  656. 
Referee's  report,  656. 
Motion  for  new  trial,  656, 
Report  of  evidence,  656. 
Assignment  of  errors,  656. 
Caveat,  656. 
Scire  facias,  656, 
In  foreign  attachments,  656. 

Notices  of  pendency  and  returns  to  attachment,  656. 
Offers  of  judgment,  656. 
Statement  on  confession  of  judgment,  657. 
Rule  upon  which  money  has  been  brought  into  court,  657. 
Motion  and  notice  in  proceedings  against  sheriff,  657. 
Bill  of  costs.     Affidavit  accompanying  it,  657. 
Replevin  bonds,  657. 
Bond  for  ne  exeat,  657. 

Interrogatories  filed  on  return  of  attachment  against  sheriff,  657. 
Pleadings  in  suit  to  recover  penalties,  657. 
Summary  proceedings,  657. 
Statement  in  action  for  highway  injuries,  657. 
Pleadings  in  tax  cases,  657. 

Notice  served  with  summons.     Judgment  for  default,  657. 
Citation  of  creditors,  657. 
Notice  of  appearance,  657. 
Notice  of  motion,  657. 
Grounds  for  election  contests,  657. 
Answer  in  election  contest,  657. 
Statement  in  agreed  case,  658. 
Local  assessment  proceedings,  658. 
Exceptions  to  auditors'  reports,  658. 
Recognizance  for  costs,  658. 
Petition  for  certiorari,  658. 
AMENDMENTS    IN    ATTACHMENT   PROCEEDINGS. 
In  general,  675. 
The  declaration  or  complaint,  676. 

For  the  same  cause  of  action,  676. 
Defects  of  substance,  677. 
New  cause  of  action,  677. 
Adding  new  count,  677. 
Demurrable  complaint,  677. 
Change  of  parties,  678. 
Effect  of  improper  amendment,  678. 
Tort  to  contract  and  vice  versa,  C78. 
Title  acquired  pending  suit,  678. 
Misnomer  of  the  parties,  679. 

ic6; 


INjDEX. 

AMENDMENTS    IN    ATTACHMENT    PROCEEDINGS. 
The  declaration  or  compiaint — Continued. 
Increasing  ud  dumnum,  679. 
Defective  verification,  680. 
Affidavits.     In  the  absence  of  express  statute,  680. 
By  express  statute,  682. 
Under  general  statute  of  amendment,  681. 
Bonds.     Material  defects,  683. 
Form  and  substance,  684. 
Undertaking  not  signed  by  plaintiff,  685. 
The  writ.     In  general,  685. 
Misnomer,  686. 
Caption,  686. 

Direction  and  return  time  or  place,  686. 
Ad  da>n7ium,  b^l. 
Signature,  seal,  date,  687. 
Teste,  687. 
AMENDMENTS    IN    CRIMINAL   PROCEEDINGS. 
Indictments.     At  common  law,  688. 

Substance,  688. 

What  constitutes  substance,  690. 

Lost  indictments,  688. 

Recommitting  for  amendment,  689. 

In  matters  of  form,  689. 

The  caption,  689. 

Value  of  goods,  691. 

Names,  691. 

Date  of  offense,  691. 

Venue  of  offense,  691. 

What  constitutes  form,  692. 

Defective  introduction.  692. 

Informal  conclusions,  692. 

Name  of  person  defrauded,  692. 

Signature  of  district-attorney,  692. 
By  statute,  692. 

Constitutionality  of  acts,  692. 

Changing  the  crime,  692. 

Names,  dates,  descriptions,  etc,,  693. 

Amendment  in  defendant's  absence,  693. 

Allegation  of  former  conviction,  693. 

Misnomer  of  accused,  693. 

Variance  in  particulars,  693. 
Of  Informations.     Distinguished  from  indictments,  696. 
Amendments  discretionary,  697. 
Filing  new  information,  698. 
Complaints,  warrants,  etc.     Complaint  of  grand  jury,  699. 
Certificate  of  magistrate  of  superior  court,  700. 
Complaint  before  a  justice,  700. 
Justice's  warrant,  700. 
Amendment  of  plea  in  abatement,  701. 
AMENDMENTS    IN    EQUITY. 

Generally.     Cardinal  rule.     Discretion  of  court,  463. 
Legislative  power  to  change  practice,  464. 
Election  contest,  464. 

Federal  not  affected  by  state  practice,  464. 
In  furtherance  of  justice,  464. 
The  practice  liberal,  464. 
Verified  pleadings,  464. 

Special  indulgence;  to  whom  granted,  464. 
Amendment  without  proper  showing,  464. 
Curing  a  variance,  465. 
Fruitless  amendment,  465. 

1^66 


INDEX. 

AMENDMENTS    IN    EQUITY. 
Generally — Continued. 

Review  of  exercise  of  discretion  by  appellate  court,  464. 
Making  a  new  case,  465. 
Injunction  bond,  466. 
No  objection  made  at  the  time,  466, 
Verifying  answer,  465. 
Bills.     Parties.     Change  of  parties,  466. 
Parties  to  creditor's  bill,  466. 
Transposing,  466. 
Want  of,  not  fatal,  466. 
Striking  out,  467. 
At  what  stage  allowed,  467. 
Laches  of  applicant,  467. 

Where  objection  was  taken  by  answer,  467. 
Where  plaintiff  has  no  interest,  468. 
Effect  of  amendment  as  to,  468. 
In  respect  of  matter,  468. 
Prayer  for  relief,  468. 
Omission  or  mistake,  469. 
Creditor's  bill,  469. 
Avoiding  special  defense,  469. 
Freely  allowed,  470. 
Matters  of  form,  470. 
Waiving  oath  to  amendment,  470. 
Inserting  facts  set  up  by  answer,  470. 
Facts  known  to  defendant,  471. 
Matter  occurring  pending  suit,  471. 
New  law  pending  suit,  471. 

Executor  taking  out  letters  in  foreign  state,  471. 
Jurisdictional  averments,  472. 
Making  a  new  case,  472. 

What  constitutes  making  a  new  case,  472-473. 
Tests  as  to  whether  new  case  is  made,  474. 
Making  a  new  case.     Seeking  different  relief,  475. 
Making  a  new  case.     Objection  how  taken,  476. 
Inconsistent  or  repugnant  amendments,  476. 
Inconsistent  amendments.     Limitation  of  the  rule,  477. 
Inconsistent  amendments.   Striking  out  contradictory  matter,  477. 
Sworn  bills,  47S. 
At  what  stage  of  proceedings,  478. 
Before  issue,  478. 
After  demurrer,  479. 

The  old  rule  relaxed,  480. 

Leave  given  on  argument,  480. 

Application  for  leave,  480. 

Demurrer  for  want  of  parties,  480. 

Demurrer  for  want  of  equity,  481. 

Before  final  judgment  on  demurrer,  481. 

Review  on  appeal,  481. 

Remand  with  leave  to  amend,  481. 
After  plea,  481. 
After  replication.     By  adding  parties,  4S2. 

In  substance,  482. 

Excuse  must  be  shown,  482. 

Federal  equity  rules,  482. 
After  witnesses  examined,  482. 

Exception  to  general  rule,  483. 

Amending  prayer,  483. 
After  reference  or  master's  report,  483. 

Amendments  raising  new  issues,  4^3. 
At  the  hearing.      In  respect  of  parlies,  484. 

1067 


INDEX. 

AMENDMENTS    IN    EQUITY. 
Bills — Continued. 

Amending  prayer,  484. 
Perfecting  allegations,  484. 
To  conform  to  proof,  485. 
To  conform  to  theory  of  trial,  485. 
To  cure  a  variance,  486. 
To  conform  to  contract  proved,  4S6. 
To  meet  allegations  in  answer,  486. 
Where  evidence  is  defective,  4S6. 
Laches,  486. 
In  Alabama,  486. 

Facts  known  to  defendant  and  not  disclosed,  486 
After  testimony  taken,  487. 
Making  a  new  case,  487. 
After  decree,  4S7. 
In  appellate  court,  488. 
Federal  practice,  488. 
Adding  parties,  488. 
Remanding  cause,  488. 
Remand  with  leave  to  amend,  488. 
Making  new  case,  489. 
Neglect  to  apply  in  lower  court,  4S9. 
After  remand  from  appellate  court,  489. 
Amendments  discretionary,  490. 
Effect  of  amendment.     Right  to  plead  anew,  490. 
Right  of  defendant  to  put  in  new  answer,  490. 
Pleading,  answering  or  demurring  to  amended  bill,  490. 
Retroactive  effect,  491. 

Original  and  amendment  one  record,  491 
Statute  of  limitation  suspended,  492. 
Effect  on  injunction,  492. 
Effect  on  third  parties,  492. 
Discharging  contempt  proceedings,  492. 
Designed  to  promote  justice,  493. 
Adding  new  parties,  493. 
Without  prejudice  to  injunction,  493. 
Waiver  of  default,  493. 
Obviating  multifariousness,  494. 
New  process  upon  amendments,  494. 
Demurrers.     Less  extended  demurrer,  494. 
Narrowing  demurrer,  494. 
Correcting  clerical  error,  494. 
Pleas.     Accident  or  mistake,  495. 
Plea  of  account  stated,  495. 
Plea  of  release,  495. 
Additional  facts,  495. 
Amended  verification,  495. 
Ground  of  defense  alleged,  495. 
Limiting  time  to  make  amendments,  495. 
Leave  to  amend  at  or  after  argument,  495. 
Replications,  495. 
Answers.     In  general,  495. 

Matters  of  form.     Verbal  inaccuracies,  496. 

Material  facts,  496. 

Letting  in  facts  and  defenses  depending  upon  parol  evidence,  497. 

Document  omitted  by  mistake,  497. 

Discretion  of  court,  497. 

Matters  as  to  which  court  shall  be  satisfied,  497. 

Ambiguous  answer,  497. 

Mistake  of  fact,  498. 

Previous  knowledge,  498. 

1068 


INDEX. 

AMENDMENTS    IN    EQUITY. 
Answers —  Continued. 

Negligence  of  party,  498. 
Facts  accruing  subsequent  to  answer,  499. 
Making  a  new  defense,  499. 
Unconscionable  defenses,  499, 

Statutory  defenses  put  upon  same  grounds  as  other  defenses,  500. 
At  and  after  hearing,  500. 
During  progress  of  trial,  501. 

After  case  has  been  heard  and  court  has  expressed  opinion,  501. 
When  court  is  about  to  sign  decree,  501. 
On  rehearing  of  a  decree,  501. 
Master's  report     Correction  of  omission,  501. 
Error  of  expression,  501. 
In  furtherance  of  justice,  501. 
Process.     Date  of  subpoena,  501. 

Subpoena  returnable  on  Sunday,  502. 
Leave  to  amend.     When  necessary,  502. 
After  pleading  filed,  502. 
Application  for  leave,  503., 

The  affidavit,  503. 

Oath  to  proposed  amendment,  503. 

Application  to  amend  pleas,  503. 
How  made.     Bills,  504. 

Amendments  should  be  designated,  504. 

By  interlineations,  504. 

By  amended  bill,  504. 

Form  of  amended  bill,  505. 

Verification,  505. 

Signature  of  counsel,  505. 
Answers,  505. 

Supplemental  answers,  505. 

Taking  answer  off  file,  506. 

Matters  of  form,  506. 

Unsworn  answer,  506. 

Correcting  mistake  as  to  matter  of  fact,  505. 
Terms.     Discretion  of  court  to  prescribe,  506. 
In  furtherance  of  justice,  506. 
After  master's  report,  506. 
Special  terms,  506. 
Payment  of  costs,  507. 

After  demurrer,  507. 

Imposing  terms  on  allowance  of  amendments  in  equity,  507,  508 

Amendment  of  answer,  508. 
AMENDMENTS  OF  PROCESS. 
Writ  or  summons.     In  general,  658. 
At  common  law,  658. 
Under  modern  statutes,  659. 
Something  to  amend  by,  658. 
Federal,  how  far  controlled  by  state  practice,  660. 
Title,  661. 
Caption,  662. 
The  direction,  662. 
Indorsement,  662. 
Misnomer      The  common  law,  663. 

By  statute,  663. 

Inserting  christian  names,  664. 

Retroactive  effect,  665. 

Want  of  appearance,  665. 
In  respect  of  parties,  665. 
Misdescription  of  party,  665. 
Striking  out  parties,  666. 

1069 


INDEX. 

AMENDMENTS    OF    PROCESS. 
Writ  or  summons — Continued. 
Adding  parties,  666. 
Entire  omission  of  party,  666. 
Return  time  or  place,  666. 
The  ad  damnum,  668. 
The  teste,  668. 

Name  or  style,  669. 

Signature,  669. 

Date,  66g. 

Place  of  teste,  669. 
By  affixing  a  seal,  670. 
Amendment  of  scire  facias,  670. 

When  used  as  a  declaration,  671. 

Writ  issued  from  court  other  than  that  which  has  the  record,  671. 
Application  and  leave  to  amend,  671. 

Waiver  of  objections,  671. 

Leave  necessary,  671. 

Notice  of  motion,  672. 

Leave  discretionary,  672. 
Executions.     To  conform  to  judgment,  672. 
Omission  of  direction,  673. 
To  correct  mistakes,  673. 
Error  in  name,  673. 
The  caption,  673. 
Direction,  673. 
To  conform  to  praecipe,  673. 
Want  of  seal,  674. 
Signature,  674. 
The  teste,  674. 

Return  day.     Term  or  place,  674. 
Regarded  as  amended,  675. 
Retroactive  effect  of  amendment,  675. 
Amendment  discretionary,  675. 
AMOUNT  IN  CONTROVERSY. 

Amount  claimed.     Jurisdiction  determined  by,  703. 
Amount  recovered,  704. 

Wrong  amount  claimed,  704.  f 

Amount  alternatively  stated,  704. 
Erroneous  claim,  704. 

Amount  need  not  be  set  forth  in  declaration,  704 
Counter-claim  and  set  off,  704. 
Amendments  allowed,  705. 
In  actions  ex  delicto,  705. 
When  amount  is  unliquidated,  705. 
Damage  claim  and  not  the  evidence,  706. 
Damage  claim  not  allegations  of  value,  706, 
Replevin.     Value  as  claimed,  706. 
In  suits  on  bonds,  706. 
Real  debt  and  not  claim  or  penalty,  707. 
Penalty  raises  presumption  of  claim,  707. 
Amount  of  claim  uncertain  or  not  alleged,  707 
Waiver  of  interest,  708. 
Waiver  of  amount  of  recovery,  709. 
Amount  remitted.     Jurisdiction  conferred,  707. 
Jurisdiction  unaffected,  when,  708. 
Discount,  708. 
Voluntary  credit,  708. 
Credits  or  payments,  708. 
Amount  remitted  on  appeal,  709. 
Jurisdiction  ousted,  709. 
Demurrer  sustained,  709. 

1070 


INDEX. 

AMOUNT    IN    CONTROVERSY. 
Amount  remitted — Conthiued. 

Set-off  successfully  interposed,  yog. 

Paiym^nts  pendente  lite,  709. 

Amount  reduced  by  set-off,  709. 

Divided  debts,  709. 

Jurisdiction  not  conferred  on  appeal,  710. 

Reduction  by  amendments,  710. 

Preventing  appeal,  710. 
Fictitious  amount.     Bringing  case  within  jurisdiction,  710. 

Discretion  of  court  to  decide  whether  attempt  was  made  to  evade  law, 
711- 

Exemplary  damages  claimed,  711. 

No  presumption  of  bad  faith,  711. 

Honest  mistakes,  711. 

Fictitious  set-off,  711. 

On  appeal,  712. 
Real  amount.     Controlling  criterion  of  jurisdiction,  712. 

Amount  shown  by  evidence  governs  jurisdiction,  713. 

Amount  shown  by  record  and  pleadings,  714. 

Amount  recovered,  714. 

Action  arising  out  of  demand  whose  total  sum  exceeds  limit,  715. 

The  real  value.  715. 

Exemplary  damages,  715. 

Double  damages,  715. 
.  Attorney's  fees,  715. 

Courts  not  bound  by  allegations  but  will  investigate  question,  715. 

Right  to  appeal,  716. 

Affidavit  showing  amount,  716. 

Amount  must  appear  affirmatively  from  record,  716. 

Burden  of  pro.'ing  jurisdiction,  716. 

Amount  not  presumed,  717. 

Want  of  jurisdiction,  717. 

Dismissal  of  case,  717. 

Amount  unaffected  by  agreement  of  parties,  717. 

Appearance  or  appeal  cannot  confer  jurisdiction,  718. 

Amount  not  dependent  on  collateral  effect  of  judgment,  718. 

Difference  between  value  found  and  judgment,  71S. 

Contingent  loss  not  calculable,  719. 
Amount  must  be  pecuniary.     General  rule,  719. 

Market  value  not  essential,  719. 

Statutes  of  Indiana,  719. 

Appellate  court,  719. 
Accrued  interest.     When  calculable  in  determining  amount,  719 
Excluded  by  statute,  720. 

Interest  does  not  necessarily  oust  jurisdiction,  720. 

In  assumpsit,  720. 

In  debt  and  covenant,  720. 

Judgment,  720. 

After  suit  brought,  720. 

Interest  prior  to  suit  brought,  721. 

Interest  accruing  pendente  lite,  "jzi. 
Aggregated  amount.     Several  plaintiffs,  721. 
In  appeals,  721. 
In  admiralty  cases,  722. 
Cases  consolidated,  722. 
Cases  improperly  joined,  722. 

Several  defendants,  722. 

Several  claims  in  one  suit,  722. 

Several  items  in  one  demand,  723. 

Several  penalties,  723. 

Several  count",  723. 

IC7  I 


INDEX. 

AMOUNT   IN    CONTROVERSY. 
Aggregated  amount — Continued. 

Divided  claims  or  debts,  723. 
Claim  acquired  by  assignment,  723. 
Value  and  damages  consolidated,  724. 

Judgment  and  counterclaim  consolidated,  724.  > 

Unaggregated  amount.     Several  claims  in  one  suit,  724. 
Several  promises  on  one  instrument,  724. 
Several  lien  claims  in  one  suit,  725. 
Claim  and  set-off  cannot  be  united,  725. 
On  appeals,  725. 

Judgments  cannot  be  united,  726. 

On  appeals  to  supreme  court  of  United  States,  726. 
In  admiralty,  726. 
Value  distinguished  from  amount.     Property  rights  involved,  726. 
Suits  in  ejectment,  727. 
In  bills  quia  timet,  727. 
Enforcing  liens  against  land,  727. 
Suits  annulling  instruments,  727. 
Value  of  an  office,  728. 
Specific  personal  property,  728. 
Amount  immaterial.     Special  statutory  enactments,  728. 
Exception  to  general  rule,  728. 
Courts  of  various  states.     Jurisdiction  independent  of  amount,  728, 

729,  730. 
Statutes  strictly  construed,  729. 
Appca  able  amount.     When  plaintiff  appeals,  731. 

On  appeal  from  refusal  by  court  to  enter  judgment,  732. 

The  evidence  produced,  732. 

Defendant's  counterclaim,  732. 
When  defendant  appeals;  no  counterclaim  filed,  732. 

The  amount  claimed  below,  733. 

Recovery  and  not  claim,  732. 

Counterclaim  filed,  734. 
In  intermediate  appeals,  735. 

Alternative  and  general  statements,  735. 

Claiming  a  leduction  of  judgment,  735. 

Counterclaim  must  be  proved,  735. 

Difference  between  counterclaim  and  amount  allowed,  735.- 
Local  statutory  provisions.     Alabama.     Circuit  court,  735. 

Montgomery.     City  court,  736. 

Justices  of  the  peace,  736. 

Chancery  courts,  736. 
Arkansas.     Circuit  court,  736. 

County  courts  of  common  pleas,  736. 

Justices  of  the  peace,  736. 
California.     Supreme  court,  736. 

District  courts,  737. 

Justices  of  the  peace,  737. 
Connecticut.     Superior  courts,  737. 

Court  of  common  pleas,  737. 
Colorado.     Court  of  appeals,  737 

Supreme  courts,  737. 
Dakota.     District  courts,  737. 
Florida.     Supreme  court,  737. 

Justices  of  the  peace,  737. 
Georgia.     Superior  court,  737. 

Justices  of  the  peace,  737. 

District  courts,  737. 
Illinois.     Supreme  courts,  738. 

County  courts,  738. 

Justices  of  the  peace,  738. 

1072 


JNDEX. 

AMOUNT    IN    CONTROVERSY. 
Local  Statutory  provisions — Continued. 
Indiana.     Supreme  courts,  738. 

Appellate  court,  738. 

Circuit  courts,  739. 

Court  of  common  pleas,  739. 

Justices  of  the  peace,  739. 
Idaho.     Probate  courts,  739. 
Iowa.     District  courts,  739. 

Supreme  court,  739. 

Justices  of  the  peace,  740. 
Kansas.     Supreme  court,  740. 

District  court,  740. 

Justices  of  the  peace,  740. 
Kentucky.     Court  of  appeals,  740. 

Superior  court,  740. 

County  courts,  740. 

Circuit  court,  740. 

Justices  of  the  peace,  740. 
Louisiana.     Supreme  court,  741. 

Court  of  appeals,  741. 

District  courts,  741. 

Parish  court,  741. 

City  courts,  711. 

Justices'  courts,  741. 
Maine.     Supreme  judicial  court,  742. 

Court  of  appeals,  741. 

District  court,  742. 

Justices  of  the  peace,  742. 
Maryland.     Circuit  court,  742. 

Courts  of  equity,  742. 

County  courts,  742. 

Baltimore  city  courts,  742. 
Massachusetts.     Supreme  judicial  court,  742. 

Superior  courts,  742. 

Court  of  common  pleas,  743. 

District  police  courts,  743. 

Justices  of  the  peace,  743. 

Boston  municipal  courts,  743. 
Michigan.     Circuit  court,  743. 

Equity  courts,  743. 

Justices  of  the  peace,  743. 
Minnesota.     Justices  of  the  peace  and  district  courts.  743, 
Mississippi.     Supreme  court,  743. 

Circuit  court,  743. 

Justices  of  the  peace,  743. 
Missouri.     Supreme  court,  743. 

Court  of  appeals,  743. 

Circuit  court,  743. 

Justices  of  the  peace,  744. 
Nebraska.     Probate  court,  744. 

County  courts,  744. 

Justices  of  the  peace,  744. 
New  Hampshire.     Court  of  appeals,  744. 

Court  of  common  pleas,  744. 

Justices  of  the  peace,  744. 
New  Jersey.     Supreme  court,  744. 

District  courts,  744. 

Justices  of  the  peace,  744. 
New  Mexico.     District  courts,  745. 
New  York.     Court  of  appeals,  745. 

Supreme  court,  745. 

I  Encyc.  Pi.  &  Pr.— 68.  1073 


INDEX, 

AMOUNT    IN    CONTROVERSY. 
Local  statutory  provisions — Continued. 

Marine  court,  745. 

County  courts,  745. 

City  courts,  745. 
District  courts,  745. 

Justices  of  the  peace,  745. 
North  Carolina.     Superior  courts,  745. 

City  courts,  745. 

Justices  of  the  peace,  746. 
Ohio.     Court  of  common  pleas,  746. 

Justices  of  the  peace,  746. 
Pennsylvania.     Supreme  court,  746. 

District  court,  746. 

Court  of  common  pleas,  746. 

Justices  of'the  peace,  746. 
South  Carolina.     Justices  of  the  peace,  746. 
Tennessee.     Superior  courts,  747. 

County  courts,  747. 

Chancery  courts,  747. 
Justices  of  the  peace,  747. 
Texas.     Supreme  court,  747. 

Court  of  appeals,  747. 

County  court,  747. 

District  courts,  748. 

Justices  of  the  peace,  748. 
United  States.     Supreme  court,  748. 

Circuit  court,  748. 
Utah.     Justices  of  the  peace,  748. 
Vermont.     County  courts,  748. 

Justices  of  the  peace,  748. 
Virginia.     Supreme  court,  748. 

County  courts.  749. 

Justices  of  the  peace,  749. 
Washington.     Supreme  court,  749. 

Superior  court,  749. 
West  Virginia.     Supreme  court,  749. 
Wisconsin.     Justices  of  the  peace,  749. 
Wyoming.     Justices  of  the  peace,  749, 
ANOTHER  SUIT  PENDING. 

Generally.     Trial  of  plea  of  another  action  pending,  32. 

One  suit  in  admiralty  as  bar  to  another,  25S. 
As  ground  of  abatement.     General  statement  of  rule,  750. 
Pendency  of  former  suit  in  same  jurisdiction,  750. 
Rule  extends  to  equity,  751. 
Actions  in  rem  and  in  personam,  751. 
Election  of  remedies,  751. 
What  constitutes  an  action,  751. 
Suit  pending  in  equity,  751. 
Rule  in  equity  same  as  at  law,  752. 
Plea  in  equity.     Former  suit  at  law,  752. 
ipaw  and  equity  administered  by  same  court,  752. 
Election  between  suit  in  chancery  and  action  at  law,  752. 
Former  suit,  752. 

Suits  subsequently  instituted,  752. 

Writ  of  error  subsequently  sued  out,  753. 

Writs  bearing  same  date,  753. 

Writs  sued  out  the  same  day,  753. 

Writs  served  at  different  times  on  same  day,  753. 

Suits  simultaneously  commenced,  753. 

Pending  suits,  754. 

Action  must  be  "commenced,"  754. 

1074 


INDEX. 

ANOTHER   SUIT    PENDING. 
As  ground  of  abatement— Co«//«7/^c?. 

Process  necessary,  754. 

Pendency  of  former  action  must  be  averred  and  proved,  755. 
Parol  evidence  of  pendency,  755. 
Erroneous  dismissal  of  former  suit,  755. 
Discontinuance  or  dismissal  of  first  suit,  755. 
Former  proceeding  in  retn;  final  disposition  of,  756. 
Discontinuance  after  plea,  756. 
Discontinuance  before  trial.  756. 
Former  suit.     Evidence  of  termination,  756. 
Payment  of  costs  of  first  suit,  756. 
Pendency  of  writ  of  error  or  appeal,  756. 
Reversal  on  appeal,  757. 
Void  appeal,  757. 
Substantial  identity  of  parties  required,  757. 
Test  of  identity  of  parties,  758. 
Identity  of  plaintififs,  758. 
Co-plaintiffs,  758. 
Plaintiff  not  a  party,  758. 
Where  parties  are  reversed,  758. 
In  action  for  accounts,  756. 
Exceptions  to  rule  requiring,  759. 
In  qui  tarn  action  for  penalties,  759. 
Actions  for  breach  of  official  bonds,  759. 
In  cases  of  compulsory  set-off,  759. 
Counterclaims,  etc.,  759. 
Suits  by  one  of  a  class,  759. 
Parties  in  privity,  760. 
Pendenc}'  of  garnishments,  760. 
Identity  of  defendants,  760 
Two  suits  must  be  for  same  cause,  761. 

Test  of  identity  of  matters  involved,  762. 

Subsequent  suit  upon  new  or  different  title,  762. 

Attachment  suits  and  personal  actions,  762. 

Attachments  in  chancery,  762. 

Splitting  actions,  762. 

Enforcement  of   liens  and   mortgages  and   personal   actions  for 

debt,  763. 
Different  relief  obtainable,  763. 
Formal  differences  in  actions,  763. 
Same  jurisdiction.     Suits  in  foreign  jurisdictions,  764. 
What  jurisdictions  regarded  as  foreign,  764. 
State  and  federal  courts,  765. 
Suits  in  different  federal  courts,  765. 
Garnishment  in  foreign  jurisdictions,  765. 
Attachments  in  other  states.  766. 
Where  former  suit  is  defective,  766. 

Accidental  destruction  of  papers,  767. 
Ground  for  continuance  or  stay.     Garnishment  of  defendant,  767. 
Appeal  pending,  767. 

Cross-actions,  768.  |^ 

Concurrent  attachments,  768. 
Appeal  between  other  parties,  768. 
Suit  in  equity,  768. 

Stay  of  proceedings.     General  rule,  768. 
Extent  of  discretion,  769. 

In  case  of  defective  answer  in  abatement,  769. 
Pendency  of  writ  of  error,  769. 
Pendency  of  garnishment,  770. 
Suit  in  foreign  jurisdiction,  770. 
Suits  in  equity,  770. 

1075 


INDEX. 

ANOTHER    SUIT    PENDING— C^«/'/««f</. 

Taking  objections  at  common  law.     Plea  in  abatement,  770. 

Not  a  plea  in  bar,  771. 

Qui  tarn  actions,  771. 

Evidence  under  general  issue,  771. 

At  what  stage  of  the  proceedings,  771. 

Requisites  of  the  plea,  771. 

Plea  must  be  certain  and  not  argumentative,  771. 

General  or  special  imparlance,  771. 

Stating  court  in  which  action  pending,  771. 

Referring  to  record,  771. 

Averring  that  action  is  still  pending,  771. 

Plea  must  be  free  from  duplicity  or  repugnancy,  771. 

Evidence  to  prove  pendency,  772. 

Showing  that  court  has  jurisdiction,  772. 

Demurrer  to  plea,  772. 

Replication  to  plea,  772. 

Verification  by  affidavits,  772. 

Showing  that  both  suits  are  for  same  cause,  772. 

Concluding  with  prayer,  772. 

Dismissal  on  motion,  773. 

The  proper  judgment,  773. 
Taking  objections  in  equity.     By  demurrer,  773. 

By  plea  in  abatement,  773. 

By  answer  or  motion,  773. 

Suit  brought  in  name  of  infant,  773. 

Form  of  plea,  773. 

Annexing  former  bill  by  reference,  774. 

Verification  of  plea,  774. 

Proceedings  upon  plea,  774. 

Reference  to  master,  774. 

Master's  report,  774. 

Setting  down  plea  for  argument,  775. 
Taking  objections  under  Codes.     By  demurrer  or  answer,  775. 

By  motion,  775. 

Waiver  of  objection,  775. 

At  what  stage  of  the  proceedings,  775. 

Answers  in  abatement,  776. 

Necessary  averments  in  answer,  776. 

Ambiguity  in  answer,  776. 

Judgment  on  sustaining  answer,  776. 

Annexing  copy  of  record,  776. 

Separate  findings,  776. 

Joinder  with  matter  in  bar,  776. 
Taking  objections  in  admiralty.     At  what  stage,  776. 

Special  plea.     Declinatory  exception,  776. 
ANSWERS  GENERALLY. 

Amendments  of  answers.     See  Amendments. 

Answers  in  admiralty  cases.     See  ADMIRALTY. 
ANSWERS  IN  CODE  PLEADING. 
Generally.     Denials.     See  that  title. 

What  the  answer  shall  contain.     Code  provisions,  779. 

Distinction  between  denials  and  new  matter,  780. 

Answers  in  abatement  on  ground  of  pendency  of  another  suit,  776. 
New  Matter.     Definition,  830. 
General  nature,  830. 
Must  be  pleaded,  830. 
Evidence  of  defense  not  set  up,  831. 
Allegation  on  information  and  belief,  831. 
Manner  of  pleading,  831. 

Giving  color.     Confession  and  avoidance,  832. 
Not  real  party  in  interest,  832. 

1076 


INDEX. 

ANSWERS    IN    CODE   PLEADING. 
New  Matter — Continued. 

Allegation  of  legal  notice,  832. 
Payment,  833. 
Fraud,  833. 

Want  of  consideration,  834. 
Justification,  834. 
Usury,  835. 

Illegality  of  contract,  835. 
Duress,  835. 

Accord  and  satisfaction,  835. 
Estoppel  in  pais,  835. 
Hes  judicata,  836. 
Statute  of  limitations,  836. 
Equitable  defenses,  836. 
Contributory  negligence,  836. 
Statute  of  frauds,  837. 
What  constitutes  new  matter,  837. 
Equitable  defenses,  837. 
Matter  in  abatement,  838. 
Partial  defenses.     How  to  be  pleaded,  840. 
Partial  failure  of  consideration,  840. 
Mitigating  circumstances,  841. 

Action  of  pleader,  841. 

Facts  as  complete  defense,  841. 
Payment,  842. 
Hes  judicata,  843. 
Estoppel  in  pais,  843. 
Fraud,  844. 

Illegality  of  contract,  844. 
Matters  in  justification,  845. 

Assault  and  battery,  845. 

Trespass  quare  clausum  f regit,  845. 

Slander,  845. 

False  imprisonment,  846. 

By  officers,  846. 
Statute  of  limitations,  846. 
Contributory  negligence,  847. 
Statute  of  frauds,  847. 
Want  and  failure  of  consideration,  848. 
Leave  and  license,  848. 
Champerty,  849. 
Tender,  849. 

Accord  and  satisfaction,  849. 
Release,  849. 

Ratification,  subrogation  and  rescission,  849. 
Award,  849. 

Immaturity  of  indebtedness,  849. 
Discharge  in  bankruptcy,  849. 
Usury,  850. 

Objection  to  statute  or  ordinance,  850. 
Bona  fide  purchaser,  850. 
Title  in  action  of  trespass,  850. 
Liens,  850. 

All  matter  in  avoidance,  851. 
Not  properly  performed,  851. 
Release  of  guarantors,  etc.,  851. 
Mistake,  851. 

Mining  rules  and  customs,  851. 
Joinder  of  defenses.     General  rule,  852. 
Legal  and  equitable  defenses,  852. 
Manner  of  pleading  several  defenses,  852. 

1077 


INDEX, 

ANSWERS    IN    CODE    PLEADING. 
Joinder  of  defenses — Continued. 

Completely  stating  each  defense,  852. 
Separate  statement  of  each  defense,  853. 
Matter  in  abatement  and  matter  in  bar,  854. 

No  formal  commencement  or  conclusion  to  mark  each  separate  de- 
fense, 854. 
Where  inconsistent  defenses  are  allowed,  855. 
Actions  on  notes,  857. 
Denial  and  affirmative  defenses,  857. 

Denial  of  contract  with  plea  of  want  of  consideration,  857. 
What  defense  may  be  pleaded  with  general  denial,  857. 
What  are  inconsistent  defenses.     A  question  of  fact,  857. 
In  real  actions,  858. 
In  action  for  slander  or  libel,  858. 
In  actions  for  assault  and  battery,  858. 
General  denial  and  plea  of  release,  858. 
General  denial  and  statute  of  limitations,  858. 
All  affirmative  defenses  may  be  joined,  859. 
Fraud  and  breach  of  warranty,  859. 
Statute  of  limitations  joined  with  other  defenses,  859. 
Possible  for  both  defenses  to  be  true,  859. 
Waiver  of  defect  of  inconsistent  defenses,  860. 
Remedies  for  inconsistency,  860. 
Joint  and  several  answers.     Right  to  join  in  an  answer,  860. 
Several  defenses,  860. 
How  a  joint  answer  is  construed,  861. 
Right  to  interpose  a  separate  answer,  861. 
Defense  in  one  answer  enuring  to  all,  861. 
Adoption  of  answer,  862. 
ANSWERS    IN    EQUITY    PLEADING. 

Generally.     Amendment  of  answers.     See  AMENDMENTS. 

Answers  in  actions  for  accounting.     See  Accounts  and  ACCOUNTING. 
Definition,  865. 

Affidavits  of  merits  to  extend  time  to  answer,  355. 
Taking  \A\\  pro  confesso,  895. 
Form.     Caption,  865. 
Parties,  865. 

Severance,  865. 

Adopting  codefendant's  answer,  865. 
Reservation,  866. 
Substance,  866. 
Conclusion,  866. 
Oath,  necessity  for,  867. 

Corporations,  867. 

How  administered,  867. 

Before  whom  taken,  868, 

Signature,  868. 

Signature  bv  counsel,  868. 

Waiver  of,  868. 

Modification  of  rule  requiring,  868. 

Jurat,  869. 

Immaterial  defects,  869. 
Nature  of  answer.     Denials  and  new  matter.  870. 
Admitting  case  made  by  bill,  870. 
Answer  to  part  of  bill,  870. 
Defenses,  870. 
Several  defenses,  870. 

Bill  seeking  relief  as  well  as  discovery,  870. 
Not  demurrable,  871. 

Cross  bill  necessary  for  affirmative  relief,  871. 
Cross-bills.     Specific  performance,  871. 

1076 


INDEX. 

ANSWERS    IN    EQUITY    PLEADING. 
Nature  of  answer — Continued. 

When  answer  may  seek  af5rmative  relief,  872. 
Stipulation  that  answer  might  be  treated  as  cross-bill,  872. 
Failure  to  use  cross-bill.     Waiver  of  objection,  872. 
Requirements.    Must  be  full,  873. 

Full  answer.     Method  of  compelling,  874. 
Matters  which  defendant  need  not  answer,  874. 
Must  be  certain,  875. 
Illustrations  of  certainty,  876. 
Evasive  answers.     Negatives  pregnant,  876. 

Must  be  on  knowledge,  information,  remembrance  or  belief,  876. 
Answer  denying  knowledge  or  information,  877. 
Answer  in  effect  denying  information,  877. 
When  answer  need  not  express  belief,  877. 
When  answer  need  not  deny  information,  877. 
Must  state  facts,  878. 

Waiver  of  objection  as  to  inconsistent  defenses,  878. 
Must  not  contain  inconsistent  defenses,  878. 
Answer  as  to  facts  not  of  recent  occurrence,  878. 
Defenses  taken  by  answer.     Usury,  878. 

General  charge  of,  insufficient,  879. 
Waiver  of  objection  of  lack  of  legal  precision,  879. 
Statute  of  limitations,  880. 

How  pleaded,  880. 
Laches,  880. 
Innocent  purchaser,  880.  '  ■. ^ 

How  pleaded,  881. 
Undue  influence,  882.  - 

Res  judicata,  882. 

How  pleaded,  882. 
Statute  of  frauds,  882. 

When  unnecessary  to  plead  statute,  882. 
Fraud,  883. 

Want  of  jurisdiction,  883. 
Want  of  notice  of  protest,  884. 
Set-off,  884. 
Mistake,  884. 

Insufficiency  of  complainant  offer  to  do  equity,  884. 
Want  of  capacity,  884. 

Invalidity  of  mortgage  sought  to  be  foreclosed,  884. 
Estoppel.  885. 

Subrogation  to  rights  of  prior  mortgage,  885. 
By  persons  under  disability.     Married  women,  885. 

Answer  where  husband  is  complainant,  886. 
Superannuated  persons,  886. 
Lunatics,  886. 
Infants,  886. 
Corporations,  886. 

Dispensing  with  seal,  887. 
Suppressing  answer  without  seal.  887. 
Answers  in  patent  cases.     Defenses  allowed  by  statute,  887. 
Waiver  of  defense  not  set  up  by  answer,  888. 
Defense  of  prior  use,  888. 
Non-patentability,  889. 
License  to  use  invention,  88q. 
Want  of  knowledge  of  existence  of  patent,  889. 
Non-compliance  of  patentee  with  statutory  requirements,  889. 
Joinder  of  several  defenses.     Demurring,  answering  and  pleading  to  different 
parts  of  bill,  889. 
Meeting  bill  by  several  modes,  889. 

1079 


IXDEX. 

ANSWERS    IN    EQUITY. 

Joinder  of  several  defenses — Continued. 

No  plea  or  answer  to  part  demurred  to,  890. 
Answer  overruling  plea,  890. 
Disclaimer  and  answer  inconsistent,  890. 
Filing  and  serving.     Necessity  for  filing,  891. 
Time  for  filing,  891. 
Filing  after  expiration  of  time,  891. 
Waiver  of  objection  at  the  time  for  filing,  891. 
Service  of  answer,  892. 
Time  of  serving,  892. 
Service  after  expiration  of  time,  892. 
Waiver  of  service,  892. 
Striking  answers  from  file.     Irregular  answers  may  be  stricken,  892. 
Illustrations  of  irregularity,  892. 
Waiver  of  irregularity,  892. 
Lack  of  signature  or  oath,  893. 
Failure  to  entitle,  893.  . 

Unauthorized  erasures  and  interlineations,  893. 
Correction  of  formal  error,  893. 
Evasive  answer,  893. 

Answer  filed  by  person  not  named  in  bill,  894. 
Scandalous  matter,  894. 
Compelling  answer  by  attachment.     General  rule,  894. 

Statutes  and  rules  in  most  jurisdictions,  894,  895. 
Exceptions  to  answers.     Definition  and  object,  895. 
Of  two  kinds,  896. 
For  insufficiency.     When  they  lie,  896. 

Verbal  criticism.     Slight  defects,  897. 

Frivolous  exceptions,  897. 

Material  allegation  or  interrogatory  unanswered,  897. 

Confined  to  discovery,  897. 

Under  general  interrogatory,  898. 

Several  defendants,  898. 

Setting  up  questions  of  law,  898. 

Waiver  of  right  to  except,  898. 

When  they  do  not  lie,  898. 

New  matter,  898. 

Failure  to  answer.     Admission  of  truth,  899. 

Interrogatory  as  to  books  and  papers,  899. 

Interrogatories  substantially  answered,  899. 

Objection  of  res  judicata,  899. 

Disclaimer,  899. 

Irregularities  in  practice,  899. 

Answer  not  under  oath,  900. 

Answer  of  corporation,  900. 

Answer  of  attorney-general,  900. 

Answer  of  infant,  900. 

Answer  in  aid  of  plea,  900. 

Answer  of  guardians,  900. 

Answer  used  as  plea,  900. 

Plea  standing  for  answer,  901. 

Exceptions  to  part  of  bill  not  covered  by  plea,  901. 

Prohibiting  exceptions,  901. 

Answer  accompanied  by  plea  or  demurrer,  901. 

Motion  to  strike  case  from  calendar,  902. 

Plea  confined  to  relief  prayed,  902. 

Plea  or  demurrer  overruled  or  allowed,  902. 
Form,  902. 

In  writing,  902. 

Signature  by  counsel,  902. 

Properly  entitled,  903. 

1080 


INDEX, 

ANSWERS    IN    EQUITY. 

Exceptions  to  answers — Continued. 
Should  be  specific,  903. 
What  should  be  stated,  903. 
Mode  discretionary,  903, 
Time,  903. 

Rules  and  statutes,  903. 
Enforcing  time,  904. 
Exceptions  not  filed  in  time,  904. 
After  replication,  904. 
In  the  appellate  court,  904. 
After  reference  for  impertinence,  905. 
Proceedings  on  exceptions,  905. 

Endorsing,  filing  and  serving  copy,  905. 
Setting  down  for  hearing,  905. 
Two  defendants,  905. 
Disposal  of  exceptions,  905. 
Reference  to  master,  905. 
Allowed  in  part,  906. 
Decisions  directly  by  the  court,  906. 
Appeal  from  order  sustaining  exceptions,  906. 
When  disallowed,  906. 
Reading  at  trial,  907. 
Dissolution  of  injunction,  907. 
Further  answer.     Procedure,  907. 
Filing  further  answer,  908. 
Further  answer  also  insuflScient,  909. 
Form,  909. 

New  exceptions,  909. 

Amendments  insufficiently  answered,  910. 
Bills  stating  new  case,  910. 
Amended  bill,  910. 
Answers  as  evidence.     Responsive  answers.     General  rule,  910. 
Charging  and  stating  part  of  bill,  910. 
Answer  connected  with  responsive  matter,  913. 
Rules  of  evidence  apply,  913. 
Facts  not  stated  in  bill,  913. 
Voluntary  answer,  913. 
Reason  for  general  rule,  913. 
Sworn  bill  and  answer,  914. 
Answer  conclusive,  914. 

Answer  entitling  complainant  to  decree,  915. 
What  is  responsive,  916. 

Material  facts,  917. 

Answer  to  premises  of  bill,  918. 

Test,  918. 

Setting  forth  all  the  facts,  919. 
What  is  not  responsive,  919. 

Asserting  a  right  not  responsive,  919. 

Matter  in  avoidance,  919. 

Illustrations,  919. 

Facts  in  answer  distinct  from  those  in  bill,  919. 

Statement  not  called  for,  920. 

Answer  not  stating  all  material  facts,  920. 
Answer  containing  new  matter,  920. 
Illustrations,  921. 
Usury,  922. 

Alleging  cancellation  of  agreement,  923. 
Qualifications  of  rule,  923. 
Hearing  on  bill  and  answer,  924. 

Even  though  replication  be  filed,  925. 
Statutory  change  of  rule,  926. 


INDEX. 

ANSWERS   IN    EQUITY. 

Answers  as  evidence — Continued. 

Hearing  on  bill,  answer  and  replication,  926. 
Admissions  in  answer,  927. 

Admissions  conclusive,  927. 

Questioning  by  proofs,  928. 

Relief  from  improvident  admissions,  929. 

What  admitted,  929. 

Evasive  answer,  930. 

Fact  in  issue,  930. 

Decree  based  on  admissions,  930. 

Failure  to  fully  answer,  930. 
Qualification  of  rule,  931. 
Overcoming  answer.     By  witnesses  and  circumstances,  932,  933,  934, 
935- 

Full  proof,  935. 

Inadequacy  of  price  as  corroborating  circumstances,  937. 

Two  defendants  denying  same  fact,  938. 

Dismissal  of  bill,  937. 

When  answer  overthrown,  938. 

The  witnesses,  939. 

The  corroborating  circumstances,  939. 

Where  bill  is  sworn  to,  940. 

Illustrations  of  corroborating  circumstances,' 940. 

By  circumstances  alone,  941. 

Answer  inconsistent  or  contradictory,  942. 

By  circumstances  alone.     In  cases  of  fraud,  942. 

Impeaching  credibility  of  defendant,  942. 

Answer  contradicted  on  material  point,  943. 

Discrediting  testimony  by  introduction  of  independent  evidence, 

943- 
Answer  not  direct  and  positive.     General  rule,  943. 

Evasive  answers,  944. 

Answers  on  information  and  belief,  944. 

Answers  on  opinion  and  belief,  946. 

Answers  denying  knowledge,  information  and  belief,  947. 

Answers  showing  lack  of  personal  knowledge,  947. 

Answers  of  defendant  who  has  no  personal  knowledge,  947. 

Answers  on  hearsay,  947. 

Answer  alleging  ignorance,  947. 
Unsworn  answer  not  evidence,  948. 

Answer  sworn  before  unauthorized  party,  948. 

Evidence  against  defendant,  949. 

Treated  as  valid  answer  by  complainant,  949. 
Answer  where  oath  is  waived.     Right  of  defendant  to  make  oath  and 
use  his  answer  as  evidence,  949. 

Statutory  changes  of  rule,  949. 
Answer  by  defendant,  as  evidence  against  co-defendant,  951. 

Nominal  defendant,  952. 

Husband  and  wife,  953. 

Principal  and  agent,  953. 

Failure  of  one  to  answer,  953. 

Harmless  error,  953. 

Qualifications  of  rule,  953. 
,  Privies  in  estate,  954. 

Where  interests  are  joint,  954 

Fraudulent  consolidation,  954. 

Where  one  defendant  refers  to  answer  of  another,  954. 

Where  one  claims  under  another,  954. 

As  evidence  for  co-defendant,  954. 

As  evidence  for  co-defendant.     Qualification  of  rule,  955. 
Answer  of  infant,  955. 

10S2 


INDEX. 

ANSWERS    IN    EQUITY. 

Answers  as  evidence — Continued. 

As  evidence  against  him,  955. 
As  evidence  for  him,  955. 
Answer  of  adult  co-defendant,  956. 
Answer  of  corporations,  956. 

Answer  of  party  interested  or  incompetent,  957. 
Answers  in  injunction  proceedings,  957. 
When  injunction  dissolved,  958. 
Answer  not  responsive,  958. 
Allegations  unanswered,  958. 
Answers  as  evidence  in  other  causes.     Suits  in  equity.     Answer  not 
an  estoppel,  959. 
Suits  in  equity,  as  evidence  against  defendant,  959. 
Suits  in  equity,  959. 

Action  at  law.     As  evidence  against  defendant,  960. 
As  evidence  for  defendant,  961. 
Hearsay  admissions,  961. 
Weight  as  evidence,  961. 
Answers  as  evidence  in  issues  sent  to  jury,  961. 
Dependent  upon  circumstances,  961. 
Effect  as  evidence,  962. 
APPEALS. 

See  Appeal  Bonds. 

Appellate   jurisdiction    depending    upon    amount    in    controversy.      See 

Amount  in  Controversy. 
Appeals  in  admiralty  causes.      See  ADMIRALTY. 
Appeal  frori  order  of  court  granting  or  refusing  additional  allowances  of 

costs.     See  Additional  Allowances. 
Appeals  from  judgment  on  agreed  case.     See  AGREED  Case. 
Taking  objection  of  non-joinder  on  appeal,  17. 
Raising  objection  of  variance  between  writ  and  declaration  on  appeal, 

20. 
Appellate  proceedings  in  equitable  actions  for  accounting,  103. 
Amendments  in  appellate  courts.  607-616. 

Review  of  discretion,  in  granting  or  allowing  amendments,  524-534. 
APPEAL  BONDS. 

Generally.     Definition.     Character  of  contracts,  964. 
Distinction  in  securities,  964. 
Bail  in  error,  964. 
Nature  of  obligation,  964. 
Appeal  bonds  in  admiralty  causes,  279. 
Purely  statutory.     Purpose  of  bond,  965. 
At  common  law,  965. 
Construction  of  statutes,  965. 
Supersedeas  bond,  965. 

Power  to  require  in  absence  of  statute,  965. 
Modern  practice,  965. 
Requirement  mandatory.     Power  of  legislature  to  require  bond,  965. 
Power  of  courts  to  dispense  with  security,  966. 
Strict  compliance  with  statute,  966. 
Power  of  court  to  accept  different  security,  967. 
Certified  check,  967. 
Recognizance  and  bond,  967. 
Where  form  is  disregarded,  967. 
Unnecessary  bond,  967. 
No  bond  given  ;  appeal  dismissed,  967. 
Orders  of  courts.     Terms  of  orders  to  be  substantially  followed,  967. 

Conditions,  967. 
By  whom  given.     Party  to  suit  or  legal  representatives,  967. 
Separate  parties  aggrieved  by  same  judgment,  968. 
One  party  appealing  in  name  of  all,  968. 

10S3 


INDEX, 

APPEAL   BONDS. 

By  whom  given — Continued. 

Co-partner  united  in  interest,  968. 
Parties  allowed  to  come  in,  96S. 
OflBcial  capacity  of  appellant,  968. 
Sufficiency  of  bond,  968. 
Conditions  of  bond,  968. 
Appellants  exempted.    State,  968. 
Public  corporations,  968. 

County  official,  969.  ^ 

Executors  and  administrators,  968. 
Construction  of  exemptions,  969. 
Substituted  appellant,  969. 
Married  women,  969. 
Trustees,  969. 
Officials,  969. 
Towns,  969. 
Tax  collector,  969. 
Discretionary  power,  970. 
Raising  question  of  exemption,  970. 
To  whom  payable.     Person  designated  by  statute,  970. 

Wrong  payee.     Allowing  new  bond  to  be  filed,  970. 
Bond  payable  to  stranger,  970. 
One  named  other  than  one  required,  970. 
Infant  appellee,  970. 

Appellee  in  absence  of  other  designation,  970. 
Payable  to  state,  977. 
Joint  obligees,  971. 
Assignor,  971. 
In  tax  suits,  971. 
Sufficient  reference,  971. 
Separate  adverse  pa  ties,  971. 
Who  is  adverse  party,  971. 
Action  on  official  bond,  971. 
On  separate  appeals.     Where  one  obligation  is  sufficient,  972 
Separate  decisions  consolidated,  972. 
Distinct  orders,  972. 

One  undertaking  to  cover  two  appeals,  972. 
Separate  obligation  for  each  appeal,  972. 
On  second  appeal,  973. 
Execution  of  bonds.     Necessity  for  seal,  973. 
Signature,  necessity  for,  973. 
Signature  of  sureties,  974. 
Time  of  signing,  975. 
Name  not  appearing  in  bond,  975. 
Execution  in  blank,  975. 
Place  of  signature,  375. 
By  joint  appellants,  974. 
By  married  woman,  974. 
By  agent.     Presumption  of  authority,  976. 
Execution  without  authority.     Subsequent  ratification,  97; 
Execution  in  name  of  partnership,  977. 
Delivery.     Not  binding  until  delivered,  977. 
Delivery  to  clerk  of  court,  977. 
Proof  of  delivery,  977. 
What  constitutes  delivery,  977. 
Contents  and  sufficiency.     Amount.     Statutory  directions,  977. 
Amount  larger  than  required,  978. 
Unsecured  judgment,  978. 
In  suits  affecting  real  property,  978. 
Reduction  of  amount,  978. 
Amount  of  judgment.     Interest,  979. 

1084 


INDEX. 

APPEAL   BONDS. 

Contents  and  sufficiency — Continued. 

Description  of  amount,  979. 

Amount  less  than  that  required,  979. 

What  costs  included,  979. 

Costs  and  damages,  979. 

When  amount  is  discretionary,  980. 

Where  there  are  several  appeals,  980. 

Compliance  with  order  fixing  amount,  9S0. 

Amount  to  be  fixed  by  "court,"  not  judge,  980. 

Effect  of  giving  new  bond  where  amount  of  first  bond  was  too 
small,  981. 

Review  of  action  of  court  in  fixing  amount,  981. 
Description  of  judgment,  981. 

Omission  of  recital,  982. 

Offense  in  criminal  appeal,  982. 

Description  of  amended  judgment,  983. 
Description  of  court,  983. 

Reciting  judgment  in  full  in  undertaking,  983. 
Condition  of  bond,  983. 

Illustrations  of  sufficiency,  983. 

Substantial  compliance,  983. 

Construction  of  conditions,  984. 

When  costs  only  recoverable,  984. 

Prosecution  with  effect,  984. 

Omission  of  stipulation  required  by  statute,  984. 

More  onerous  condition  than  statute  demands,  985. 

Altering  conditions  in  statute,  985. 
Waiver  of  defects,  985. 
Time  for  filing.     Time  designated  by  statute,  985. 
Where  statute  names  no  time,  986. 
Construction  of  statutes,  986. 
When  waiver  made,  987. 
Appeal  granted  in  term,  987. 
After  rendition  of  judgment,  987. 
Order  of  adjournment,  987. 

Allowing  new  bond  after  expiration  of  time,  987. 
Ground  for  dismissal,  987. 
Computation  of  time,  988. 
Meaning  of  term  "  rising  of  court,"  988. 
Power  to  extend  statutory  time,  988. 
Extending  time  when  fixed  at  discretion,  988. 
After  notice  of  appeal,  989. 
Notice  of  appeal  before  undertaking,  989. 
Filing  same  day  as  notice  of  appeal,  989. 
Date  of  filing,  989. 
Recitals  as  to  date  of  filing,  989. 
Presumption  of  filing  on  day  of  justification,  989. 
Right  of  appellant  to  show  that  bond  was  seasonably  filed,  989. 
Official  mistake  preventing  filing  in  due  time,  990. 
Amendments.     When  defect  renders  bond  void,  990. 
Where  irregular  merely,  990. 
Effect  of  lack  of  jurisdiction,  990. 
When  unnecessary,  991. 
Substantial  compliance  with  statute,  991. 
Bond  sufficient  if  legal  effect  is  all  right,  992. 
Directory  provisions  of  statute,  992. 
Strict  compliance  with  substantial  requirements,  993. 
Recognizances,  993. 

Power  to  amend  without  statutory  authority,  993. 
Power  implied  from  general  authority  to  amend    proceedings,  993. 
Effect  of  curative  statutes,  993. 

ICS5 


INDEX. 

APPEAL    BONDS. 

Amendments — Continued. 

Discretion  of  court,  994. 

Construction  of  statute  allowing  amendment,  994. 

Review  of  order  refusing  or  allowing  amendment,  995. 

Official  negligence,  995. 

Where  statute  directory,  996. 

Right  of  appellee  to  have  statutory  bond,  996. 

Right  of  appellee  to  compel  dismissal,  996. 

Right  of  appellee  to  compel  correction  of  errors,  997. 

Where  motion  to  amend  is  made.  997. 

Time  of  motion  to  amend,  997. 

Practice  on  motions  to  amend,  997. 

Order  for  amendment,  997. 

Trivial  errors,  997. 

Motion  should  be  accompanied  by  proper  bond,  998. 

Offer  to  file  proper  bond,  998. 

Proper  bond  filed  before  motion  to  dismiss  granted,  998. 

Contravening  public  policy,  999. 

Appellee    ratifying    bond  varying    from    statute    by    enforcing    it    as 

common-law  contract,  999. 
Common-law  bond.     Bond  invalid  as  statutory  obligation,  998. 
Instrument  containing  essentials  of  valid  contract,  996. 
Ordinary  canons  of  interpretation,  loii. 
Appeals  in  forma  pauperis.     Requisites  of  affidavit,  999. 
Allegations  in  affidavits,  1000. 

Express  statutory  authority  for  such  appeals,  999. 
Waiver  of  defects  by  appellee.     Appellee  may  waive  all   security  whatever, 

1000. 
Technical  steps  may  be  waived,  1000. 
What  amounts  to  waiver  of  defects,  looi. 

Objections  must  be  timely,  looi. 

Statements  of  case,  looi. 

Acceptance,  looi. 
Motion  to  dismiss.     Appellant  cannot  move  to  dismiss  for  defects  in  his  own 

bond,  1002. 
Defects  specifically  pointed  out,  1002. 
Estoppel  in  suit  on  bond,  1002. 
The  sureties.     Necessary  qualifications,  1002. 
Necessary  party  as  surety,  1002. 
Party  materially  interested,  1002, 
Representative  party,  1002. 
Husband  as  surety,  1002. 
Official  as  surety,  1002. 
Partnership  as  sureties,  1002. 
Acceptance  of  surety.     Discretion,  1003. 
Affidavit  of  worth,  1003. 
Effect  of  disqualification  of  surety,  1003. 
Surety  companies,  1003. 
Statutory  qualifications,  1003. 
Surety  on  bond  in  suit,  1004. 
Attorneys  as  sureties,  1004. 
Personal  responsibility  of  sureties,  1004. 

Number  of  sureties  required,  1004.  » 

Exceptions  to  sureties.     Under  code  procedure,  1005. 

Serving  notice  of  exception,  1005. 

Justification,  1005. 

Failure  to  justify,  1006. 

Effect  of  failure  to  justify,  1006. 

Time  within  which  sureties  must  justify,  1007. 

Acceptance  of  surety  for  specified  part,  1006. 

Bond  acting  as  supersedeas,  1006. 

1086 


INBEX. 

APPEAL   BONDS. 

The  %mzX\^%— Continued. 

At  common  law,  1006. 
Approval  of  bond.     Necessity  for  approval,  1007. 
Waiver  of  approval  by  appellee,  1007. 
Approval  out  of  court,  1007. 
By  deputy  clerk,  looS. 

Jurisdiction  to  approve  vested  in  a  class,  1008. 
Where  official  acts  de  facto,  1008. 
Judicial,  not  ministerial  power,  1008. 
Delegation  of  power,  looS. 
Taking  bond  in  open  court,  1008. 
Approval  presumed,  1008. 
How  made,  1008. 
Indorsement  on  bond,  rooS. 
Approval  of  form  of  bond,  1009. 
Approval  of  irregular  bond,  1009. 
Irregularities  in  form,  1009. 
Effect  of  approval,  1009. 
How  shown.     Record,  1009. 
Date  of  approval.      How  shown,  1009. 
Approval  a  question  of  fact,  1009. 
Review  of  approval,  loio. 

When  approval  is  reviewable,  loio. 

Subsequent  insol-vency,  joio. 

Objections  not  made  in  trial  court,  loio. 
Rescinding  approval,  1010. 
Presumption  of  approval.     Costs,  loio. 
Construction  of  contract.     Intention  of  parties,  ion. 
Reference  to  record,  1012. 
Variation  in  names,  1012. 
Erroneous  description,  1012. 
Variance,  1012. 

Extension  by  implication.     Limitation  of  rule,  1013. 
When  liability  accrues.     Final  judgment,  1013. 

When  liability  accrues.     Return  of  execution  against  appellant,  1013. 
Extension  by  implication,  1013. 
When  liability  accrues.     Interlocutory  judgment,  1014. 

Modified  judgment,  1014. 

Dismissal,  abandonment  or  withdrawal  of  the  appeal,  1014. 

Second  appeal,  1014. 

Nature  of  contract,  1014. 
Measure  of  liability,  1015. 

Judgment  in  rem,  1015. 

Amount  of  judgment,  1015. 

Rents  and  profits,  1015.  . 

Liability  of  principal,  1015. 

Statutory  amount,  1015. 

Judgment  of  foreclosure,  1015. 

Interests  and  costs,  1016. 

Fixed  sum  as  penalty,   1016. 
Joint  bond,  1014. 

Contract  of  suretyship  joint,  1015. 

Successful  appellant,  1015. 
discharge  of  sureties.     Legal  satisfaction,  1016. 

Reversal  on  appeal,  1017. 

Enlargement  of  claim,  1017. 

Agreement  of  parties,  1017. 

Statutory  increase  of  liability,  1017. 
,         Amendment  aiding  new  party,  1017. 

Change  of  issues,  1017. 

Tender,  1017. 

1087 


INDEX. 

APPEAL   BONDS. 

Construction  of  contract — Continued. 

Payment  of  affirmed  judgment,  1017. 
Remedies  of  obligee.     Independent  action  on  contract,  1018. 
Pleading  ignorance  and  fraud,  1018. 

Condition  unperformed,  1018. 

Statutory  remedies  cumulative,  1018. 

Estoppel  from  questioning  sufficiency  of  bond,  1019. 

Recitals  conclusive,  1019. 

Estoppel.     Jurisdictional  defects,  loig. 

Impeachment  of  judgment,  1019. 
Successive   appeals.     Sureties   on    prior   appeal.     Liability  on    subsequent 
appeal,  1020. 

Novation,  1020. 

Waste,  1020. 

New  trial  ordered.     Bond  for  costs,  1020. 
Subrogation  of  sureties.     Application  of  doctrine  of  subrogation,  1020. 

Paying  judgment  and  securing  rights  of  appellee,  1020. 

Execution  of  bond  by  executor  or  administrator,  1021. 
Record  on  appeal.     Certificate  of  clerk,  1021. 

Sending  up  bond  or  copy  to  appellate  court,  1021. 
APPEARANCE. 

Address  of  attorneys,  236. 
APOSTLES. 

In  admiralty  appeals,  281. 
ARBITRATORS. 

Adjournment  by  arbitrators,  247. 
ARGUMENTATIVE  DENIALS. 

See  Denials. 
ASSAULT  AND  BATTERY. 

See  Affray. 

Single  cause  of  action  for  one  assault,  161. 

Joining  actions  for  assault  and  battery  and  for  slander,  188. 

What  defenses  may  be  pleaded  with  general  denial,  858. 
ASSIGNMENT. 

Assignment  of  claim.     As  ground  of  plea  in  abatement,  11. 
ASSIGNMENT  FOR  CREDITORS. 

Equity  suit  for  accounting  to  proper  parties,  105. 
ASSIGNMENT  OF  ERRORS. 

In  admiralty  appeals,  280. 
ASSUMPSIT. 

Affidavits    of   merits   in    actions   of  assumpsit.       See    AFFIDAVITS    OF 
Merits. 

Joinder  of  other  actions  with  assumpsit,  169. 

To  enforce  decree  for  alimony,  434. 
ATTACHMENT. 

See  Amendments  in  Attachment  Proceedings. 

Compelling  answers  by  attachment.     See  Answers  in  Equity. 

Foreign  attachment.     In  admiralty  practice.     See  ADMIRALTY. 

Attachment  proceedings  as  an  action,  113. 

To  enforce  decree  for  alimony,  435. 

Prayer.     In  plea  for  abatement  of  attachment,  28. 
ATTORNEYS. 

Address  of  attorneys  and  their  clients  under  the  code  practice.     See  Ad- 
dress. 

Power  to  take  affidavits,  330. 

Attorneys  making  affidavits  for  clients,  326. 
AWARDS. 

To  be  specially  pleaded,  849. 
BANKRUPTCY. 

Discharge  in  bankruptcy  to  be  specially  pleaded,  849. 

1088 


IXDEX. 

BILL   IN    EQUITY. 

Address  of  bill.     See  Address. 

Amendments  of  bills.     See  Amendments. 

In  suits  for  accounting.     See  ACCOUNTS  and  ACCOUNTING. 
BILL    OF    EXCEPTIONS. 

In  agreed  cases,  403. 
BILLS    QUIA    TIMET. 

Jurisdiction  depending  upon  amount  in  controversy,  727. 
BONDS. 

See  Appeal  Bonds. 

Amendments  of  bonds  in  attachment  proceedings,  683. 
BRIEFS. 

In  admiralty  appeals,  282. 
CALENDARS. 

Placing  admiralty  cases  on  the  calendar,  274. 
CAPACITY   TO   SUE. 

Raising  objection  by  plea  in  abatement.     See  Abatement. 
CAPTIONS. 

In  equity  answers,  865. 
CASE   MADE. 

See  Agreed  Case. 
CAUSE   OF  ACTION. 

Splitting  causes  of  action.     See  Actions. 

What  is  a  cause  of  action.     See  Actions. 
CERTIORARI. 

Certiorari  proceedings  as  an  action,  113. 

Joinder  of  certiorari  and  mandamus,  174. 

Joinder  of  proceedings  under  the  codes,  206. 
CHAMPERTY. 

As  new  matter  in  code  answers,  849. 
CHANGE  OF  VENUE. 

Affidavits  of  merits  on  change  of  venue,  355,  373. 
CIRCUIT   COURT   OF   APPEALS. 

As  a  court  of  admiralty,  252. 
CLERKS. 

Affidavits  by  clerks,  329. 
CODE    PLEADING. 

See  Answers  in  Code  Pleading. 

Joinder  of  causes  of  action  under  the  codes.     See  JoiNDER  OF  ACTIONS. 

Abolition  of  forms  of  actions.     See  ACTIONS. 
COMMISSIONERS. 

Power  to  take  affidavits,  330. 
COMMISSION    TO   TAKE   TESTIMONY. 

In  admiralty  cases,  285. 
COMMON    LAW. 

States  adhering  to  the  common-law  practice,  163. 
COMPLAINT. 

Complaints  must  be  drawn  upon  definite  theory,  194. 
CONDITIONS    PRECEDENT. 

Allegation  of  proceedings  controverted  by  general  denial,  830. 
CONFESSION    AND    AVOIDANCE. 

Answer  seeking  to  avoid  complaint,  832, 
CONSOLIDATION. 

In  admiralty  appeals,  280,  289. 

Jurisdiction  dependent  upon  amount  in  controversy.     See  Amount 
IN  Controversy. 
CONTEMPT. 

Proceedings  for  contempt  as  an  action,  115. 

Seizing  property  in  hands  of  receiver,  262. 

Attachment  for  contempt  to  enforce  decree  for  alimony,  437. 
CONTINUANCE. 

Sae  Adjournments. 

Adjournment  and  continuance  distinguished,  238. 

On  the  ground  of  pendency  of  another  suit.     See  ANOTHER  SuiT  PENDING. 

I  Encyc.  Pi.  &  Pr.— 6g.  1089 


INDEX, 

CONTRACTS. 

Illegality  of,  as  new  matter  in  code  answers,  844. 
CONTRIBUTORY   NEGLIGENCE. 

Manner  of  pleading.     When  set  up  as  new  matter,  836,  847. 
CORPORATIONS. 

Plea  in  abatement.     Denying  corporate  existence,  2. 
Denying  incorporation,  10. 
Denial  of  capacity  of  corporation  to  sue,  10. 
Misnomer  of  corporation,  13. 
Plea  by  president  of  corporation,  23. 
General  denial  as  plea  in  abatement,  828. 

Stockholder's  suit,  corporation  as  necessary  party,  105. 

Proceedings  to  charge  stockholders  are  special,  115. 

Putting  corporate  existence  in  issue,  82S. 

Answers  in  equity  suits,  886. 

Answer  of  corporations  as  evidence,  956. 
COSTS. 

Additional  allowances  of  costs.     See  ADDITIONAL  ALLOWANCES. 

Allovjing  amendments  upon  payment  of  costs.      See  AMENDMENTS. 

Costs  in  alimony  proceedings.     See  Alimony. 

Costs  upon  an  agreed  case.     See  Agreed  Case. 

In  admiralty  cases.     See  Admiralty. 

Costs  a  creation  of  statute,  211. 

Discretionary  power  of  courts,  212. 

Historical  summary  of  New  York  Code  provisions,  212. 

Costs  to  abide  the  event,  59. 

Where  new  trial  is  granted,  59. 

Costs  of  intermediate  appeal,  60. 

Where  there  is  a  test  action,  61. 

Jurisdiction  of  English  court  of  chancery,  211. 
COURTS. 

Adjournments  of  courts.     See  Adjournments. 

Admiralty  courts.     See  Admiralty. 

Jurisdiction   depending  upon  amount  in   controversy.     See   Amount    IN 
Controversy, 
COUNSEL   FEES. 

See  Alimony. 
COUNTERCLAIMS. 

Counterclaims  in  admiralty.     See  Admiralty. 
COVERTURE. 

Objection  of  coverture  as  a  plea  in  abatement.     See  Abatement. 
CRIMINAL    PROCEDURE. 

See  Abduction;  Abortion;   Adultery;   Accessories;   Affray;   Af- 
firmations; Amendments  in  Criminal  Proceedings. 
CROSS-BILLS. 

Necessity  for  affirmative  relief,  871. 

Necessity  for  filing  in  actions  for  accounting,  99. 
CROSS-LIBEL. 

See  Admiralty. 
DEATH. 

Death  of  parties  in  admiralty  suits,  290. 
DEBT. 

Joinder  of  causes  of  action,  167. 

Joinder  of  debt  and  assumpsit,  168. 

Joinder  of  debt  and  detinue,  168. 

Action  of  debt  very  technical,  168. 
DECLARATIONS. 

See  Amendments. 

In  common-law  action  of  accounts.     See  ACCOUNTS  AND  ACCOUNTING. 
DECREE. 

In  alimony  cases.     See  ALIMONY. 

Decree  based  on  admissions  in  answer,  930. 

1090 


INDEX. 

DEFAULTS. 

Affidavits  of  merits  to  prevent  or  to  open.     See  Affidavits  of  Merits. 
Respondent's  default  in  admiralty,  263. 
Waiver  of  default  by  amending  bills  in  equity,  493. 
DEFENSES. 

Joinder  of  defenses.     See  Answers  in  Code  Pleading. 
Joinder  of  several  defenses  in  equity  answers.     See  ANSWERS  IN  EQUITY. 
DEMURRERS. 

Taking  objection  to  jurisdiction  by,  4. 
Raising  objection  of  infancy  by,  9. 
Raising  objection  of  coverture  by,  9. 
Real  party  in  interest  taking  objection  by,  11. 
Objection  on  the  ground  of  misnomer,  13. 
Taking  objection  of  misjoinder  by,  14. 
-  Taking  objection  of  non-joinder  by,  14,  17. 
Overruling  demurrer  does   not  prevent  plea  in  abatement   for  non- 
joinder, 17. 
Objection  that  suit  was  premature,  22. 

Whether  plea  in  abatement  may  be  interposed  after  demurrer,  5. 
Waiving  plea  in  abatement  by  demurring,  36. 
Testing  sufficiency  of  defendant's  plea  in  abatement,  39. 
Affidavits  of  merits  to  extend  time  to  demur,  355. 
Amendments  after  demurrer,  591-595. 
Answers  in  equity  not  demurrable,  871. 
DENIALS. 

Generally.     Distinction  between  denials  and  new  matter,  7S0. 
Form.     What  constitutes  a  good  general  denial.  7S2. 

General  denial.     "  Each  and  every"  allegation  denied,  782. 
Denial  of  "material"  allegations,  782. 
Counter-averments,  783. 
Form  of  general  issue,  783. 
"  No  allegation  true,"  783. 
"  States  and  shows,"  782. 
What  constitutes  a  good  specific  denial,  783. 
Specific  denial  must  be  certain  and  definite,  783. 
Descriptions  of  allegations  denied,  784. 
Denial  of  what  is  between  certain  specified  places,  784. 
Must  be  categorical,  784. 
Facts  may  be  denied  as  alleged,  785. 
Hypothetical  denial,  785. 
May  contain  explanation,  785. 
May  enumerate  particulars,  785. 
Specific   denials  and  their  scope.     Specific  denial  precludes  general  denial, 

785-. 
Specific  denials  required  in  some  states,  7S5. 
Optional  to  use  specific  denial,  7S5. 

Where  instrument  for  payment  of  money  is  sued  on,  786. 
Execution  of  contract.     What  put  in  issue,  787. 
Suits  on  notes,  787. 
Application  to  specific  allegation,  787. 
Description  of  specific  denials,  787. 
No  issue  raised  on  averment  not  denied,  787. 
Evidence  to  support  specific  denial,  787. 
Plaintiff's  right  to  sue,  7S8. 
Action  for  breach  of  contract,  788. 
Denial  of  value,  788. 

Denial  of  ownership  and  possession,  788. 
Denials  in  actions  for  tort,  788. 
Evasive  denials.     Quibbles,  789. 
Denial  of  execution  of  deed,  789. 
Allegations  admitted  by  failure  to  deny.    General  rule.  789. 
What  are  material  allegations,  790. 

1091 


INDEX. 

DENIALS. 

Allegations  admitted  by  failure  to  deny — Contimted. 
Denial  of  immaterial  allegations,  791. 
Evidentiary  matters,  792. 
Deraignment  of  title,  792. 
Circumstances  of  aggravation,  792. 
Value,  trespass,  and  replevin,  792. 
Legal  conclusions,  793. 
Action  for  unliquidated  damages,  793. 
Where  value  is  immaterial,  793. 
Allegations  of  time,  793. 

Execution  of  notes,  bills,  and  written  instruments,  794. 
Allegations  of  possession  and  ownership,  793,  794. 
Plea  of  release  and  payment,  795. 
Actions  for  goods  sold,  795. 
Signature  to  instruments,  795. 
Libel  and  slander,  795. 
Pleading  a  different  contract  or  tort,  796. 
Mandamus  proceedings,  796. 
Divorce  proceedings,  796. 
Allegations  of  status  and  capacity.  796. 
Negatives  pregnant.     What  is  negative  pregnant,  796. 
Objection  to  this  form  of  denial,  796. 
Negatives  pregnant  no  denial  at  all,  797. 
Good  unless  objected  to,  797. 
Conjunctive  denials,  797. 
Alternative  denial,  797. 
Literal  denials,  798. 

Wrongfully  and  maliciously,  798. 
Particular  amount,  798. 
In  manner  and  form,  799. 
Allegations  of  time,  799. 
General  denial  coupled  with  admissions.     Denial  of  all  allegations  not  admitted, 
802. 
Right  to  use,  802. 

Weight  of  authority  in  favor  of  allowing,  804. 
Proper  form,  804. 

Answer  must  be  definite  and  specific  as  to  admissions,  804. 
Argumentative  denials.     Definition,  799. 

What  constitutes  argumentative  denial,  800. 

Matters  showing  that  facts  do  not  exist,  800. 
Actions  for  torts,  800. 
Actions  on  contracts,  800. 
Ownership,  800 
Effect  of  argumentative  denial,  801. 
Sanctioned  in  some  jurisdictions,  802. 
Denials  of  legal  conclusions.     In  general  a  nullity,  805. 
Judgment  on  pleadings,  805. 
Denial  of  indebtedness,  805. 
Denial  of  fraud,  806. 
Plea  of  7til  debet,  806. 
Waiver  of  objection,  807. 
Answer  containing  a  legal  conclusion,  807. 
Denial  of  capacity,  807. 
Denial  that  act  was  "  duly"  done,  807. 

Denial  of  facts  impliedly  denies  the  conclusion  of  law,  808. 
Denials  of  knowledge.     Provisions  of  codes,  808. 
How  such  denials  construed,  808. 
Form  of  such  denials,  809. 
Denials  upon  "  information  and  belief,"  810. 

When  denial  of  knowledge  and  information  cannot  be  interposed,  811. 
Practice  where  defendant  does  not  recollect,  812. 

IC92 


INDEX. 

DENIALS. 

Denials  of  knowledge — Continued. 

Denials  of  information  not  favored,  8l2. 

Denying  knowledge  of  facts  presumptively  within  defendant's  knowl- 
edge, 812. 
Contents  of  records,  813. 
Purchases  and  sales,  813. 
Acts  of  agents  and  partners,  813. 
Personal  acts,  813. 

Matters  presumptively  within  defendant's  knowledge,  813 
Making  of  contracts  and  notes,  814. 
Judgments,  814. 

Facts  not  disclosed  by  record,  814. 
Letters  of  administration,  814. 
Questions  of  law,  815. 
Attorney's  authority  to  sue,  815. 
What  may  be  proved  under  a  general  denial.     Nature  of  general  denial.     The 
general  issue,  816. 

Allegations  in  complaint  determine  its  scope,  816. 

Payment,  817. 

Ownership  of  cause  of  action,  817. 

Proof  that  cause  of  action  never  existed,  817. 

To  what  evidence  defendant  is  limited,  817. 
Actions  on  contracts,  818. 

Ultra  vires,  819. 

Failure  of  plaintiff  to  perform,  819. 

Conditions,  819. 

Invalidity,  819. 

Want  of  consideration,  819. 

Custom  or  usage,  819. 

Sale  of  goods,  820. 

Only  a  part  delivered,  820. 

Sales.     Purchase  as  agent,  820. 
Actions  on  judgments,  820. 

Former  recovery,  821. 
Actions  on  bills  and  notes,  820. 

Alteration,  820. 

Fraud  in  obtaining  signature,  820. 
Actions  for  torts.     Trover  and  conversion,  821. 

Trespass  de  bonis  asportatis,  821. 

Replevin  suits,  822. 

Fraud,  823. 

Malicious  prosecution,  823. 

Negligence  of  third  person,  824. 

Contributory  negligence,  824. 

Action  based  on  negligence,  824. 
Abandonment  of  land,  825. 
Title  in  third  person,  825. 
Paramount  title  in  defendant,  825. 

Ejectment  and  other  matters  pertaining  to  real  estate,  825. 
Statute  of  limitations,  826. 
Action  on  warranty,  826. 
Trespass  quare  claustim  /regit,  826. 
Action  to  quiet  title,  826. 
Forcible  entry  and  detainer,  826. 
Plaintiff's  title  to  sue,  827. 
Mitigating  circumstances,  827. 
Statutes  of  frauds,  827. 
Existence  of  corporation,  828. 
Waiver  of  plaintiff's  incapacity,  828. 
General  denial  as  plea  in  abatement.     General  rule,  827. 
Existence  of  partnership,  829. 

1003 


INDEX. 

BE'HIALS— Co/if  inued. 

General  denial  limited  in  scope  by  statute.     Rule  in  Texas,  Iowa.  Indiana,  and 

Missouri,  829. 

Conditions  precedent,  830. 
Joinder  of  defenses.     What  defenses  may  be  joined  with  general  denial,  8^7. 
DEPARTURE. 

Variance  between  writ  and  declaration  as  ground  for  plea  in  abate- 
ment.    See  Abatement. 
DEPOSITIONS. 

Depositions  de  bene  esse  in  admiralty  cases,  284. 
DIFFICULT  AND  EXTRAORDINARY  CASES. 

See  Additional  Allowances  of  Costs. 
DILATORY  PLEAS. 

See  Abatement  in  Pleading. 
DISCONTINUANCE. 

Additional  allowance  of  costs  on  discontinuance,  228. 
DISTRICT  COURTS. 

As  courts  of  admiralty.     See  Admiralty. 
DIVORCE. 

See  Alimony. 

Divorce  and  alimony  proceedings  as  an  action,  114. 

Joinder  of  matters  in  divorce  proceedings,  199. 

Admissions  of  allegations  not  denied,  796. 
DURESS. 

Manner  of  pleading,  when  set  up  as  new  matter,  835. 
EJECTMENT. 

Single  cause  of  action  for  one  offense,  162. 

What  may  be  proved  under  general  denial,  S25. 

Matters  in  dispute.     Jurisdiction  dependent  upon  amount,  727. 
EQUITABLE  DEFENSES. 

Manner  of  pleading,  when  set  up  as  new  matter,  836. 

As  new  matter  in  code  answers,  837. 
EQUITY  PLEADING. 

See  Answers  in  Equity  Pleading. 

Accounting  in  equity.     See  Accounts  and  Accounting. 

Address  of  the  bill.     See  Address. 

Amendments  of  proceedings  in  equity.      See  AMENDMENTS  IN  EQUITY. 

Taking  objection  of  the  pendency  of  attother  suit.     See   Another   Suit 
Pending. 

Pleas  in  abatement  recognized  in  equity,  2. 
Same  rules  as  at  law,  40. 

Objections  tending  to  abate  suit;  how  raised,  40. 
Withdrawal  of  answer  to  file  plea  in  abatement,  41. 
Misnomer.     As  plea  in  abatement,  13. 

Plea  of  account  stated,  100. 

Joinder  of  actions  at  law  and  suits  in  equity,  175. 

Joinder  of  different  causes  of  action  in  equity,  180. 
ESTOPPEL. 

Manner  of  pleading,  when  set  up  as  new  matter,  959. 

Defense  taken  by  answer  in  equity  pleading,  884. 

As  new  matter  in  code  answers,  843. 
EVIDENCE. 

Answers    in    equity  pleading  as  evidence.      See  Answers   in  Equity 
Pleading. 

Procedure  in  admiralty  cases.     See  Admiralty. 
EXCEPTIONS. 

Exceptions  to  answers.     See  Answers  in  Equity  Pleading. 

Exceptions  to  commissioners'  report  in  admiralty  practice,  276. 
EXECUTIONS. 

Amendments  of  executions.     See  AMENDMENTS  OF  Process. 
EXECUTORS  AND  ADMINISTRATORS. 

Objection  to  non-joinder  of  by  plea  in  abatement,  16. 

1094 


INDEX. 

EXTRA  ALLOWANCES. 

See  Additional  Allowances  of  Costs. 
FALSE  IMPRISONMENT. 

Single  cause  of  action  for  one  offense,  162. 

Joining  actions  for  false  imprisonment  and  slander,  189. 

Joinder  of  actions  for  false  imprisonment  and  for  malicious  prosecu- 
tion, 189. 
FEDERAL  PRACTICE. 

Amendments  of  writs  and  process,  660. 
FILING  ANSWER. 

See  Answers  in  Equity  Pleading. 
FORCIBLE  ENTRY  AND  DETAINER. 

Is  a  civil  action,  116. 

One  cause  of  action  cannot  be  split,  162. 

What  may  be  proved  under  general  denial,  826. 
FORECLOSURE. 

Joinder  of  other  matters  with  foreclosure  proceedings,  203. 

Additional  allowances  of  costs,  213,  225. 
FOREIGN  ATTACHMENT. 

In  admiralty  practice.     See  ADMIRALTY. 
FORMER  SUIT  PENDING. 

See  Another  Suit  Pending. 
FORMS  OF  ACTION. 

Abolition  of  different  forms.     See  Actions. 
FRAUD. 

Single  cause  of  action  for  same  fraud,  160. 

Denials  of  fraud  in  answers,  806. 

As  new  matter  in  code  answers,  833,  844. 

Fraud  and  breach  of  warranty  not  inconsistent  defenses   859. 

Defense  taken  by  answer  in  equity  pleading,  883. 
GARNISHMENT. 

Garnishment  in  admiralty  practice.     See  Admiralty. 
GENERAL  DENIAL. 

See  Denials. 
GENERAL  ISSUE. 

See  Denials. 

None  in  common-law  action  of  accounts,  86. 

Taking  advantage  of  misjoinder  under,  14. 

Taking  advantage  of  non-joinder  of  plaintiffs  in  actions  on  contract, 
15- 
GUARDIANS. 

Answer  of  guardian  ad  litem.     Plea  in  abatement,  11. 
HABEAS  CORPUS. 

Habeas  corpus  proceedings  as  an  action,  114. 
INDICTMENTS. 

See  Accessories;  Affirmation;  Affray. 

Amendment  of  indictments.     See  Amendments  in  Criminal  Proceed- 
ings. 

Indictment  for  abduction.     See  Abduction. 

Indictment  for  abortion.     See  ABORTION. 

Indicttnent  for  adultery.     See  Adultery. 
INFANCY. 

Flea  in  abatement  on  the  ground  of  infancy.     See  ABATEMENT. 

Answers  in  equity  suits,  886. 
INFORMATIONS. 

Amendment  of  informations.     See  AMENDMENTS  IN  CRIMINAL  PROCEED- 
INGS. 
INJUNCTION. 

To  secure  alimony.     See  ALIMONY. 

Additional  allowances  of  costs  in  injunction  suits,  221 

Injunction  upon  agreed  case,  388. 

Answers  in  injunction  proceedings  as  evidence,  957. 

•C95 


INDEX. 

INNOCENT   PURCHASER. 

Defense  taken  by  answer  in  equity  pleadine,  880. 
INSTRUCTIONS. 

Instructions,  etc.,  during  recess,  246. 
INTERVENTION. 

In  admiralty  cases,  288. 
ISSUE. 

Issue  in  admiralty  cases.     See  Admiralty. 
JOINDER. 

Joinder  0/  rem  and  personam  proceedings  in  admiralty.     See  Admiralty 
JOINDER  OF  ACTIONS. 

At  common  law.     States  adhering  to  common-law  practice,  163. 

Joinder  of  actions  dependent  on  form,  164. 

Artificial  distinctions,  164. 

Single  cause  of  action,  165. 

Illustrations  of  single  cause  of  action,  165. 

Inconsistent  cause  of  action,  166. 

Illustrations  of  inconsistent  causes  of  action,  166. 

Different  plaintiffs,  166. 

Breach  of  contract  and  rescission,  166. 

Breach  of  warranty  and  fraud,  167. 

Actions  brought  by  means  of  the  action  of  debt,  167. 

Action  on  the  case  with  count  in  assumpsit,  168. 

Count  in  case,  168. 

Debt  and  assumpsit,  168. 

Debt  and  detinue,  168. 

Trover  and  case,  168. 
Actions  in  trespass,   169. 
Trespass  and  case,  169. 
Trespass  and  trover,  169. 

Causes  of  action  enforceable  in  assumpsit,  i6g. 
Covenant  and  assumpsit,  169. 
Tort  and  assumpsit,  169. 
Assumpsit  and  trover,  169. 
Warranty  and  fraud,  169. 
Tort  and  contract  connected,  169. 
Actions  ex  contractu  and  ex  delicto,  170. 
Cases  in  tort  and  contract  illustrated,  170. 

Trespass  and  trespass  on  the  case  ;  distinction  abolished,  170. 
Actions  on  statutes  giving  penalties,  171. 
Actions  touching  real  estate,  173. 
Statement  of  cause  in  different  forms,  174. 
Slander  and  malicious  prosecution,  174. 
Certiorari  and  mandamus,  174. 
Two  counts  in  replevin,  174. 
Inconsistent  counts,  175. 
Actions  at  law  and  suits  in  equity,  175. 
Joinder  of  actions  in  Louisiana,  176. 
Actions  brought  in  representative  capacity,  177. 
Actions  by  executors  and  administrators,  177. 
Action  against  executor.     Count  charging  him  personally,  178. 
In  equity.     Joinder  of  different  causes  of  action  in  equity,  180. 
Under  the  codes.     States  having  codes  of  procedure,  180' 
Provisions  of  different  codes,  180. 
Causes  arising  out  of  same  transaction,  181. 
Single  cause  of  action,  183. 
Inconsistent  causes  of  action,  183. 
Two  kinds  of  relief,  183. 

Person  and  property  injured  by  same  negligent  act,  184. 
Adjacent  landowners  claiming  damages  in  solido,  184. 
Meaning  of  term  "transaction,"  185. 
Damage  to  land  and  personal  injury,  186. 

1096 


INDEX. 

JOINDER  OF  ACTIONS. 
Under  the  coies—ConttHuecf. 

Injuries  to  real  property  and  other  causes,  i86. 

Equitable  remedies  touching  land,  187. 

Execution  of  new  deed  and  possession  of  land,  187. 

Inclination  to  segregate  real-property  cases,  188. 

Action  to   declare  a  trust,  to  recover  purchase-money,  and  for  pos- 
session, 188. 

Assault  and  battery  and  slander,  188. 

Actions  for  warranty  and  for  fraud.  189. 

Person  and  property  injured  by  same  negligent  act,  189. 

Multifariousness,  189. 

False  imprisonment  and  malicious  prosecution,  189. 

False  imprisonment  and  slander,  189. 

Transaction  must  give  causes  of  action  in  same  right,  190. 

Rule  in  California  as  to  "same  transaction,"  190. 

Harboring  wife  and  conversion,  190. 

Unlawful  acts  by  officer  and  his  deputy,  190. 

Illustrations  of  causes  of  action  arising  out  of  same  transaction,  190. 

Actions  to  recover  penalties,  191. 

Actions  on  judgments,  193. 

Actions  for  injuries  to  character,  193. 

Causes  of  action  ex  delicto  and  ex  contractu,  194. 

Determining  whether  action  is  ex  contractu  or  ex  delicto,  194. 

Cases  involving  conversion  of  property,  195. 

Illustrations  of  proper  and  improper  joinder  of  actions  ex  contractu 
and  ^x  delicto,  196. 

All  causes  of  action  arising  ex  contractu,  198. 

Actions  for  injuries  to  property,  199. 

Divorce  proceedings,  199. 

Actions  to  recover  real  property,  200. 

Joining  partition  suits  with  other  matters,  202. 

Action  to  correct  deed  and  for  partition,  202. 

Action  to  declare  resulting  trust  and  for  partition,  202. 

Action  for  partition  and  for  rents  and  profits,  203. 

Action  for  recovery  of  real  property  and  for  partition    203. 

Foreclosure  proceedings,  203. 

Action  to  enforce  trust  and  for  partition,  203. 

Action  for  partition  and  to  quiet  title,  203. 

Action  on  note  and  for  foreclosure,  204. 

Action  for  foreclosure  and  to  set  aside  deed,  204. 

Joinder  of  actions  for  torts,  204. 

Actions  for  tort  and  for  injunction,  204. 

Illustrations  of  dififerent  actions  for  torts  which  are  joinable,  204. 

Action  of  replevin  and  action  upon  contract,  205. 

Actions    for   foreclosure   of   mechanic's   lien    and    actions   on   other 
claims,  205. 

Actions  for  forcible  entry  and  detainer,  206. 

Certiorari  proceedings,  206. 

Mandamus  proceedings,  206. 

Joinder  on  the  principle  of  complete  relief,  206. 

Illustrations  of  matters  properly  joinable  under  the  doctrine  of  full 
relief,  207. 

Legal  and  equitable  relief  asked,  208. 

Attacking  deed  on  both  legal  and  equitable  grounds,  208. 

Causes  of  action  must  exist  at  time  of  commencement  of  suit,  209. 

Cause  of  action  must  affect  all  parties  alike,  209. 

Joinder  of  husband  and  wife,  210. 

Persons  sued  or  suing  in  representative  capacity   210. 
JOINDER   OF  DEFENSES. 

See  Answers  in  Code  Pleading. 

1097 


INDEX. 

JOINDER  OF  PARTIES. 

Misjoinder  and  A^on-joinder  of  parties  as  ground  for  plea  in  abatement. 
See  Abatement. 
JOINT  ANSWERS. 

See  Answers  in  Code  Pleading. 
JOINT  DEFENSES. 

See  Answers  in  Equity  Pleading. 
JURAT. 

To  affidavits.     See  Affidavits. 
JUDGES. 

Power  to  take  affidavits,  329. 
JUDGMENT. 

Judgments  on  determination  of  pieas  in  abatement,  see  Abatement. 
JURISDICTION. 

Jurisdiction  dependent  on  amount  in  controversy.     See  Amount  in  Con- 
troversy. 

Pleas  in  abatement  to  the  jurisdiction.     See  Jurisdiction. 

Jurisdiction  of  equity   in   actions  for  accounting.       See  ACCOUNTS  AND 
Accounting. 

Want  of  jurisdiction.     Taking  objection  by  answer  in  equity,  883. 

Taking  objection  to  jurisdiction  by  demurrer,  4. 
JUSTICES  OF  THE  PEACE. 

Jurisdiction   dependent  upon   amount   in  controversy.      See  Amount  in 
Controversy. 

Adjournments,  247. 

Power  to  take  affidavits,  329. 

Power  to  allow  amendments,  508. 
JUSTIFICATION. 

As  new  matter  in  code  answers,  845. 
LACHES. 

In  admiralty  causes,  287. 

Laches  of  applicant  for  leave  to  amend,  522. 

Defense  taken  by  answer  in  equity  pleading,  880. 
LEGAL  CONCLUSIONS. 

Denials  of  legal  conclusions.     See  Denials. 

Plea  of  accord  and  satisfaction,  80. 
LIBEL. 

See  Admiralty. 
LIBEL  AND  SLANDER. 

What  may  be  proved  under  general  denial,  827. 

What  defenses  may  be  pleaded  with  general  denial,  858. 

Denials  as  negatives  pregnant,  799. 

Single  cause  of  action  for  same  slander,  162. 

Joinder  of  actions  for  injury  to  character,  193. 

Joining  actions  of  slander  and  malicious  prosecution,  174, 

Joining  actions  for  assault  and  battery  and  for  slander,  i88. 

Mitigating  circumstances,  without  confession,  832. 
LICENSE. 

As  new  matter  in  code  answers,  848. 
LIENS. 

As  new  matter  in  code  answers,  850. 
LIMITATION    OF   ACTIONS. 

When  is  an  action  commenced.     See  Actions. 

In  admiralty  causes,  287. 

What  may  be  proved  under  general  denial,  826. 

Manner  of  pleading.     When  set  up  as  new  matter,  836. 

As  new  matter  in  code  answers,  846. 

Joinder  of  other  affirmative  defenses.  859.  , 

Defense  taken  by  answer  in  equity  pleading,  880. 
LIMITATION    OF   LIABILITY. 

In  admiralty  cases,  293. 

1098 


INDEX. 

MALICIOUS   PROSECUTION. 

Single  cause  of  action  for  one  offense,  162. 

Joinder  of  actions  for  slander  and  for  malicious  prosecution,  174. 

Joinder  of  actions  for  false  imprisonment  and  for  malicious  prosecu- 
tion, 189. 

What  may  be  proved  under  general  denial,  823. 
MANDAMUS. 

Mandamus  as  special  proceeding,  113. 

Joinder  of  proceedings  under  the  codes,  206. 

Joinder  of  certiorari  and  mandamus,  174. 

Mandamus  upon  agreed  case,  388. 

Admission  of  allegations  not  denied,  796. 
MARRIED   WOMEN. 

Answers  in  equity  suits,  885. 

Objection  of  coverture  as  a  plea  in  abatement,  9. 
MECHANICS'    LIENS. 

Additional  allowance  of  costs,  225. 

Joinder  of  other  proceedings  with  actions  to  foreclose  lien,  205. 
MERITS. 

See  Affidavits  of  Merits  or  Defense. 
MISJOINDER. 

Method  of   raising  objection.     Plea  in  abatement.     See  Abatement 
IN  Pleading. 
MISNOMER. 

As  a  ground  of  plea  in  abatement.     See  Abatement. 

Amendments  in  case  of  misnomer,  535,  536. 

Amendments  of  writs  or  summonses,  663,  664,  665. 
MISTAKE. 

As  new  matter  in  code  answers,  851. 

Defense  taken  by  answer  in  equity  pleading,  884. 
MITIGATING   CIRCUMSTANCES. 

As  new  matter  in  code  answers,  841. 
MOTIONS. 

Address  of  attorneys,  236. 
NAMES. 

See  Amendments  of  Process. 

Abbreviations  of  names.     See  ABBREVIATIONS. 

Misnomer.     As  a  ground  of  plea  in  abatement.     See  Abatement  in 
Pleading. 
NE   EXEAT. 

To  secure  alimony.     See  Alimony. 
NEGATIVES    PREGNANT. 

See  Denials. 
NEW   MATTER. 

In  code  answers.     See  Answers  in  Code  Pleading 
NOTARIES    PUBLIC. 

Power  to  take  affidavits,  329. 
OATHS. 

See  Affirmations. 

Oath  to  answers  in  equity  pleading.     See  ANSWERS  IN  Equity  Pleading. 
OPEN    AND    CLOSE. 

Procedure  in  admiralty,  274. 
OVERCOMING   ANSWER. 

See  Answers  in  Equity  Pleading. 
OYER. 

Craving  oyer  on  plea  in  abatement  for  variance,  20. 
PARTIAL   DEFENSES. 

As  new  matter  in  code  answers,  840. 
PARTIES. 

Raising  objection  by  plea  in  abatement.     See  Abatement  IN  Pleading 

Parties  to  agreed  case.     See  Agreed  Case. 

Real  party  in  interest.     How  objection  taken,  11. 

1099 


INDEX. 

PARTIES—  Continued. 

Proper  parties  in  equity  suit  for  accounting,  104. 

Amendments  in  respect  of  parties,  535-546. 
PARTITION. 

Partition  proceedings  as  an  action,  113. 

Joining  partition  suits  with  other  matters,  202. 

Additional  allowances  of  costs,  213. 
PARTNERS. 

Objection  to  non-joinder  of.     Plea  in  abatement,  16. 

Showing  partnership  under  general  denial,  16. 

Non-joinder  of  partners  as  plaintiffs,  16. 

Plea  of  non-joinder.     Proving  knowledge  of  partnership,  16. 

Parties  in  suit  for  partnership  account,  104. 

Partnership  accounting.      Representatives    of   deceas  ;d    partners    as 
parties,  105. 

Affidavits  by  partnership,  326. 

Common-law  action  of  account,  85. 

General  denial  admitting  existence  of  partnership,  82c . 
PATENTS. 

Answers  in  equity  patent  cases.     See  Answers  in  Equit'  Pleading. 
PAYMENT. 

Proving  payment  under  general  denial    817. 

Pleading  payment  as  new  matter,  833,  842. 
PENALTIES. 

Joinder  of  several  actions  for  penalties,  171. 
PREMATURE   SUIT. 

Objection  as  a  ground  for  plea  in  abatement,  22. 
PRIZE   CASES. 

See  Admiralty. 
PROBATE    PROCEEDINGS. 

Probate  proceedings  as  an  action,  1x2. 
PROCESS. 

See  Amendments  of  Process. 

Process  of  admiralty.     See  Admiralty. 

Defects  in  process.     Taking  objection  by  plea  in  abate  lent,  19. 
PROHIBITION. 

Prohibition  proceedings  as  an  action,  113. 

Prohibition  upon  an  agreed  case,  388. 
PUIS    DARREIN    CONTINUANCE. 

Matters  of  abatement  arising  after  issue.     See  Abated'  :nt. 
QUIETING   TITLE. 

What  mav  be  proved  under  general  denial,  826. 
QUO   WARRANTO. 

Quo  warranto  proceedings  as  an  action,  113. 
RATIFICATION. 

As  new  matter  in  code  answers,  849. 
RECESS. 

See  Adjournments. 
RECOGNIZANCES. 

See  Appeal  Bonds. 
REFEREES. 

Adjournments  by  referees,  247. 

Referees,  Amendments  by.     See  AMENDMENTS  AT  Common  Law  under 
Codes  and  Statutes. 
REFERENCES. 

References  in  admiralty  causes,  275. 
RELEASE. 

To  be  specially  pleaded,  849. 

Plea  of  release  joined  with  general  denial,  858. 
REPLEVIN. 

Joining  two  counts  in  replevin,  174. 

Joinder  of  actions  upon  contract,  205. 

What  may  be  proved  under  general  denial,  822. 


INDEX, 

REPLICATION. 

In  relation  to  pleas  in  abatement.     See  Abatement. 
RES  JUDICATA. 

Manner  of  pleading.     When  set  up  as  new  matter,  836,  843. 

Defense  taken  by  answer  in  equity  pleadinir,  882. 
RESPONSIVE  ANSWER. 

See  Answers  in  Equity  Pleading. 
SCIRE   FACIAS. 

To  enforce  decree  for  alimony,  434. 

Amendment  of  scire  facias,  670. 
SEAL. 

Amendment  by  affixing  seal,  670. 
SERVICE  OF  PROCESS. 

Objections  to  service  as  a  ground  for  plea  in  abatement.     See  Abate- 
ment IN  Pleading. 
SERVING  ANSWER. 

See  Answers  in  Equity  Pleading. 
SET-OFF   AND    COUNTERCLAIM. 

Jurisdiction  depending  upon   amount   in   controversy.     See    AMOUNT   l.S 
Controversy. 

Defense  taken  by  answer  in  equity  pleading,  884. 
SIGNATURES. 

See  Affidavits  ;  Answers  in  Equity  ;  Appeal  Bonds. 
SLANDER. 

See  Libel  and  Slander. 
SPECIFIC    DENIALS. 

^cc   Dexiai  s 
SPECIFIC    PERFORMANCE. 

One  cause  of  action  cannot  be  split,  162. 
SPECIAL    PROCEEDINGS. 

Special  proceedings  distinguished  from  actions.     See  ACTIONS. 
SPLITTING   CAUSES   OF   ACTION. 

See  Actions. 
STATUTE   OF   FRAUDS. 

What  may  be  proved  under  general  denial,  827. 

As  new  matter  in  code  answers,  847. 

Manner  of  pleading.     When  set  up  as  new  matter,  837. 

Defense  taken  by  answer  in  equity  pleading,  882. 
STATUTE   OF    LIMITATIONS. 

See  Limitation  of  Actions. 
STAY. 

On  the  ground  of  pendency  of  another  suit.    See  Another  Suit  Pending. 

Staying  of  one  suit  in  admiralty  until  hearing  of  another,  258. 
STIPULATIONS. 

See  Abiding  the  Event. 

Stipulations  for  agreed  case.     See  AGREED  Case. 

Stipulations  for  costs  in  admiralty.     See  Admiralty. 

Stipulations  for  additional  allowance  of  costs.     See  ADDITIONAL  ALLOW- 
ANCE of  Costs. 
SUBMISSION    OF   CONTROVERSY. 

See  Agreed  Case. 
SUIT   MONEY. 

See  Alimony. 
SUMMONS. 

Amendments  of  summons.     See  AMENDMENTS  OF  PROCESS. 

Address  of  attorneys,  236. 
SUNDAY. 

Additional  instructions  on  Sunday,  246. 
SUPERSEDEAS. 

Supersedeas  bond,  965. 
SUPPLEMENTARY    PROCEEDINGS. 

Supplementary  proceedings  as  an  action,  115. 

I  10: 


INDEX, 


SUPREME   COURT   OF   THE    U.  S. 

As  a  court  of  admiralty,  252. 
TENDER. 

To  be  specially  pleaded,  849. 


TERM. 


TORTS 


See  Adjournments. 

Additional  term,  special  term,  and  adjourned  term,  238. 

Whole  term  as  one  day,  240. 

Day  adjourned  to  as  first  day  of  term,  241. 

Term  cannot  be  reopened  after  final  adjournment,  243. 

Adjourned  term.      New  special  term,  244. 

Presumption  as  to  whether  special  or  adjourned  term,  245. 


Single  cause  of  action  for  same  tort,  159. 
TRESPASS. 

Separate  causes  of  action  for  trespass,  161. 

Joinder  of  actions  of  trespass  and  case,  169. 

Distinct  actions  of  trespass  may  be  joined,  169. 
TRIAL. 

Trial  of  adjuiralty  cases.      See  ADMIRALTY. 

Instructions,  etc.,  during  recess,  246. 
TROVER. 

Joinder  of  trover  and  case,  168. 

What  may  be  proved  under  general  denial,  821. 
UNDERTAKING   ON   APPEAL. 

See  Appeal  Bonds. 
UNDUE    INFLUENCE. 

Defense  taken  by  answer  in  equity  pleading,  882. 
UNITED    STATES    COURTS. 

See  Admiralty. 
USURY. 

Manner  of  pleading.     When  set  up  as  new  matter,  835. 

To  be  specially  pleaded,  850. 

Defense  taken  by  answer  in  equity  pleading,  878. 
VARIANCE. 

Objection  as  a  ground  for  plea  in  abatement.     See  ABATEMENT  IN  PLEAD- 
ING. 
VENUE. 

Venue  of  affidavits.     See  Affidavits. 

Affidavits  of  merits  on  change  of  venue,  355. 
VERIFICATION. 

Pleas  in  abatement,  9,  28. 

Plea  of  accord  and  satisfaction,  76. 

Libel  in  admiralty  suit,  255. 

Answers  in  admiralty,  272. 

Verified  answer  equivalent  to  affidavit  of  merits,  342. 

Amendments  to  bills  in  equity,  505. 

Requisites  of  aflSdavit.     Waiving  pleas  in  abatement,  29. 
WARRANTS. 

Amendment  of  warrants,  699,  700. 
WASTE. 

One  cause  of  action  cannot  be  split,  162. 
WORDS   AND   PHRASES. 

"  Action,"  no. 

"  Adjourned,"  238. 

"  Adjournment,"  238. 

"  Cause,"  no. 

"  Cause  of  action,"  116. 

"  Commenced,"  119. 

"  Difficult  and  extraordinary  cases,"  226. 

"  Involved."  233. 

"  Prosecution  with  effect,"  984. 


INDEX. 

WORDS   AND    VYi'^KSYJS,— Continued. 

"  Rising  of  court,"  98S. 

"  Same  transaction,"  181. 

"  Session,"  240. 

"Special  proceedings,"  112. 

"  Stage  of  the  case,"  618. 

"  Suit,"  no. 

"  Term,"  240. 

"  Transaction,"  185. 

"  Whilst  tjie  cause  is  in  progress,"  619. 
WRITS. 

Amendments  of  writs.     See  AMENDMENTS  OF  PROCESS. 
WRIT   OF   ERROR. 

In  agreed  cases,  403. 

1 103 


^4s 


UC  SOimCHN  REGIONAL  UBRAHY  FAOUTY 


A    000  778  113     1 


UNIVERSITY 


\LIFORIWA 


LOS  AiNGKLES 
LIBRARY 


.'SCSKX^ 


l'^'.'.-,rn:;;3n-J 


:xK«r4ta 


